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[2021] ZAGPPHC 384
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Ishmail v G L Events Oasys Consortium and Another (19126/18) [2021] ZAGPPHC 384 (18 June 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 19126/18
REPORTABLE:
YES/NO
OF
INTEREST TO OTHERS JUDGES: YES/NO
REVISED
In the
matter between:
ZOOLAKHA
ISHMAIL
(ID NO:
[…])
PLAINTIFF
and
G
L EVENTS OASYS
CONSORTIUM
DEFENDANT
(REG NO: [….])
ZL
CLEANING SERVICES
CC
THIRD PARTY
JUDGMENT
TSATSI AJ
INTRODUCTION
1.
This is an opposed Rule 38 (3) read with
Rule 38 (4), (5), (6) and (7). This application has been heard in a
virtual hearing via
Microsoft Teams.
2.
The purpose of the application is to have
the evidence of the Applicant recorded by way of commission in the
main action.
The Plaintiff is the Applicant in this
application. The Applicant is said to be 89 years old, suffers from
leukemia and is in a
state of ill -health.
3.
For the sake convenience the Plaintiff will
be addressed as the Applicant in this application.
4.
The Second Respondent is opposing the
application.
FACTS
5.
The application is to have the Applicant
(Zoolakha Ishmail) record her evidence on commission as provided for
in Rule 38.
6.
The reasons advanced for the application is
due to old age and ill- health of the Applicant. The Applicant is
diagnosed with blood
cancer as per the report of Dr DJM Frantzen,
attached to the application.
7.
The Applicant’s evidence is relevant
in the main action between the parties.
ISSUES
8.
The main issue is whether or not it is
necessary for the Applicant to record her evidence on commission at
her trial during the
time when Court proceedings are conducted
through Microsoft Teams due to Covid- 19 pandemic.
SUBMISSIONS
Submissions
on behalf of the Applicant
9.
Counsel for the Applicant submitted that
the Applicant is old and weak. As a result it would not be possible
for the Applicant to
be expected to travel to Court to give evidence
in the trial in which she is the Plaintiff. Counsel for the Applicant
contended
that the Applicant may not survive to testify at
trial.
10.
It was further submitted on behalf of the
Applicant that the Applicant deserves a day in Court. There will be
cross examination
and objections will also be recorded.
11.
A further submission on behalf of the
Applicant was that in order to cause least invasion for her, evidence
had to be recorded by
a Magistrate of Pretoria, where the Applicant
is residing, alternatively evidence to be commissioned before an
advocate of at least
ten (10) years’ experience be appointed as
a Commissioner.
12.
If the above fails evidence can be recorded
at the place which is least invasive for the Applicant.
13.
The submission was made that time is of
essence as the Applicant’s prognoses is limited to support in
care while awaiting
the inevitable results.
14.
Counsel for the Applicant referred the
Court to Dr DJM Frantzen medical report. The said medical report
indicated that the Applicant
is diagnosed with CLL(blood cancer),
sustained a right hip fracture in 2017.
15.
According to the said medical report the
Applicant is allegedly wheelchair bound and has got shortening of her
right leg due to
the previous fracture. The Applicant is not in a
position to travel or sit in Court and it would be advisable to have
her conduct
consultations at her home.
16.
It was submitted on behalf of
the Applicant that the opposition by the Second Respondent is
unreasonable and unnecessary.
17.
When the Court asked Counsel
for the Applicant why did the Applicant not apply for a preferential
trial date, Counsel for the Applicant
submitted that it would not
make a difference to apply for a preferential trial date as this
process may also take long.
18.
Counsel asked the Court
to grant the order and reserve costs for the trial Court.
Submissions
on behalf of the Second Respondent
19.
Counsel submitted that an
allegation that the Second Respondent is obstructive is denied.
20.
It was further submitted on behalf of the
Second Respondent that all the evidence given does not proof
the Applicant’s
case.
21.
Courts have facilities
for persons who are wheelchair bound and this should not be a reason
for depriving the Second Respondent
the opportunity to having this
matter finalized speedily.
22.
The medical report indicates
that the Applicant cannot sit for long but still she is able to sit
on a wheel chair.
23.
A further submission on
behalf of the Second Respondent was that if the Applicant is able to
instruct an attorney she can as well
be able to make use of her
faculties and give evidence in Court.
24.
The Applicant is dragging her feet and the
case is taking too long to be finalized. The Applicant never
responded to the Second
Respondent’s emails. No pre-trial
conferences were held, three years post institution of summons.
25.
The appointment of an
advocate was never discussed with the Second Respondent.
26.
A further submission on
behalf of the Second Respondent was that the Applicant failed to
exhaust all remedies available to her.
27.
This application will be
costly for the Second Respondent as the Second Respondent has to
appoint an advocate for purposes of prosecuting
the Rule 38
application.
28.
The convenience must be
of both the Applicant and the Respondents not only for the Applicant.
29.
The Rule 38 application
is redundant in that our Courts conduct proceedings through Microsoft
Teams or Zoom due Covid- 19 pandemic.
The Applicant can still make
use of these communication means.
30.
Counsel for the Second
Respondent submitted that the application be dismissed with costs and
the Applicant apply for a trial
date forthright.
THE
LAW
31.
Plasket
J in Plascon v Tsotsi
[1]
,
the Court held that wherever the inherent jurisdiction of the Court
is in issue, the court has a discretion whether or not to
invoke it.
This court has a discretion whether to invoke its inherent
jurisdiction or not.
a.
In
Bremer
Vulkan Schiffbau and Maschinenfabrik v South India
Corpn
[2]
,
the Court described the Courts’ inherent jurisdiction to hear
any matter before it, as a general power to control its own
procedures so as to prevent an injustice. It has to be used to ensure
convenience and fairness in legal proceedings, prevent steps
being
taken that would render judicial proceedings ineffective, prevent
abuses of process and act in aid of superior courts and
in aid or
control of inferior courts and tribunals.
32.
In
Chandra
v Canadian Broadcasting Corporation and others
[3]
,
the Court dealt with Rule 1.08(1) of the Rules of Civil
Procedure, R.R.O, 1990 regulation 194 which permits trial evidence
by
telephone or video conferencing, where facilities are available at
the Court or are provided by a party.
33.
The
witnesses at the trial of any action shall be examined
viva
voce
,
but a court may at any time, for sufficient reason, order that all or
any of the evidence to be adduced at any trial be given
on affidavit
or that the affidavit of any witness be read at the hearing, on such
terms and conditions as to it may seem meet:
Provided that where it
appears to the court that any other party reasonably requires the
attendance of a witness for cross-examination,
and such witness can
be produced, the evidence of such witness shall not be given on
affidavit
[4]
.
34.
Rule 39 (20) provides that “
If it appears convenient
to do so, the court may at any time make any order with regard to the
conduct of the trial as to it seems
meet, and thereby vary any
procedure laid down by this rule”.
35
.
Section 173 of
the Constitution provides that ….
High Courts have the
inherent power to protect and regulate their own process, and to
develop the common law, taking into account
the interests of
justice”.
36
.
In
Salojee
Development
1965 (2) SA 135(A)
at 140,
Steyn
CJ [as he then was], remarked: “This Court has on a number of
occasions demonstrated its reluctance to penalize
a litigant on
account of the conduct of his attorney.
APPLICATION
OF THE LAW
37.
I am of the considered view that the Applicant took long to apply for
a trial date. The submission by Counsel for the Applicant
that
applying for a preferential trial date is going to take too long is
not correct and misplaced.
38.
The
time spent by the Applicant making a Rule 38 application should have
been spent bringing the action to speed and applying for
a trial
date. The Rule 38 application may have been more costly than applying
for a preferential date.
39.
I
agree with Counsel for the Second Respondent that the Applicant is
dragging her feet to finalize the matter.
40.
At the same time the Applicant is elderly and sickly and left this
matter in the hands of his legal team to do something about
it.
In
my view, there is not much that the Appellant could have done herself
as a person.
41
In
addition, the use of video conferencing, zoom and Micro soft teams in
our Courts have become the new normal. One can say that
the Rule 38
application may not have been necessary.
42.
However, it is not known how long this practice of using video
conferencing, zoom and or Microsoft teams is going to last. It is
also not known how long this Covid- 19 pandemic is going to be
around.
43.
It
is a fact that presently the use of video conferencing/zoom and or
Microsoft teams is the new normal, things may change if the
world is
able to rid itself of the virus. Whether the world can rid itself of
the Covid -19 virus is a scientific debate and is
beyond the scope of
this judgment.
44.
However, if by the time the trial start things have changed and the
Applicant is expected to appear in Court in person, this may
be
cumbersome for her. This statement is informed by her age and medical
report. It is true that a person of her age suffers from
old age
illnesses.
45.
Besides the question of whether to conduct proceedings virtually or
physically falls within the discretion of the presiding judge.
It
will be the prerogative of the judge presiding over the trial whether
or not to conduct the trial virtually or physically.
46.
Courts
have to be accommodating of the needs of litigants where possible.
Courts must adapt to the requirements of the times we
live in and
circumstances upon which the Courts adjudicate.
47.
As mentioned above, the High Court has the inherent power to protect
and regulate its own process, develop the common law taking
into
account the interest of justice.
48.
I
am of the view that although the Applicant dragged her feet to
finalize the matter, this Court can still accommodate her request.
This is based on her age and state of ill-health, not forgetting
ubuntu.
Since
S
v Makwanyane
:
(CCT3/94)
[1995] ZACC 3
;
1995 (6) BCLR 665
,
ubuntu
has
become an integral part of the constitutional values and principles
that inform interpretation of the Bill of Rights and
other areas of
law. Basically
ubuntu
means
“I am because you are” or “humanity towards
others”.
49.
This
Court has inherent jurisdiction to hear any matter before it, as a
general power to control its own procedures so as to prevent
an
injustice. It has to be used to ensure convenience and fairness in
legal proceedings, prevent steps being taken that would render
judicial proceedings ineffective.
50.
In light of the above I accordingly make the
following order:
50.1
The
Applicant is authorised and directed to lead evidence, as Plaintiff,
to record the evidence in terms of the provisions
of Rule 38 (3) read
with Rule 38 (4) (5) (6) (7) before an advocate of at least ten (10)
years’ experience to be agreed upon
by the parties within
thirty (30) days from date of this order,
alternatively
to be appointed by the Chairperson of the Pretoria Bar Council within
thirty (30) days from the date of this order.
50.2 The Respondents are
entitled and authorised to have a legal representative present when
the Applicant gives evidence.
50.3 The Respondents will be
entitled and authorised to have legal representatives in attendance
at all material stages;
50.4 The Applicant shall
ensure that a bundle of documents, agreed to by the Respondents shall
be delivered to the Respondents
and the Advocate before whom evidence
is going to be led.
50.5 No order as to costs
with regard to the opposed Rule 38 interlocutory application because
it was necessary for parties
to ventilate issues.
50.6 Costs with regard to
the commissioning of evidence be reserved.
TSATSI
EK
ACTING
JUDGE OF THE HIGH COURT
DELIVERED:
This
judgment was handed down electronically by circulation to the
parties’ representatives via email and by uploading on
case
lines.
APPEARANCE:
For
the Applicant: Adv. GJ Scheepers SC
Instructed by: Barnard &
Patel inc.
For the Second Respondent: Adv. JL Khan
Instructed by: Singh Attorneys
DATE
OF
HEARING:
2 June 2021
DATE
OF
JUDGMENT:
18 June 2021
1)
2004 (2) SACR 273
(E) para 13
2)
[1981]
1 All ER 289
3)
2015
ONSC 5385
, a judgment by the superior court of Court of Justice and
available on the CanLii database.
4)
Rule
38 (2).