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[2021] ZAGPPHC 433
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Zoolakha v G L Events Oasys Consortium and Another (19126/18) [2021] ZAGPPHC 433 (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
Not
Reportable
Not
of Interest to other Judges
Revised
In
the matter between:
ZOOLAKHA ISHMAIL
[…]
PLAINTIFF
and
G
L EVENTS OASYS
CONSORTIUM
DEFENDANT
(REG
NO: 2008/007826/07)
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).