Sublime Technologies (Pty) Ltd v Jonker and another (484/08) [2009] ZASCA 149; 2010 (2) SA 522 (SCA) ; [2010] 2 All SA 267 (SCA) (27 November 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2009
>>
[2009] ZASCA 149
|

|

Sublime Technologies (Pty) Ltd v Jonker and another (484/08) [2009] ZASCA 149; 2010 (2) SA 522 (SCA) ; [2010] 2 All SA 267 (SCA) (27 November 2009)

Links to summary

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 484/08
In the
matter between:
SUBLIME TECHNOLOGIES (PTY) LTD Appellant
and
JOHAN JONKER First Respondent
STEVEN ROCCO WILKINSON
Second Respondent
Neutral citation:
Sublime Technologies v Jonker and
Wilkinson
(484/2008)
[2009] ZASCA 149
(27 November 2009)
Coram:
Mthiyane, Lewis, Malan, Bosielo JJA and Griesel AJA
Heard:
23 November 2009
Delivered:
27 November 2009
Summary:
Costs – whether correct exercise of judicial
discretion in relation to award of wasted costs arising from a
post­ponement
of the trial. Court’s imposition of undertaking
by party to pay costs, especially punitive costs, should trial not
finish within
estimated time an undersirable practice.
ORDER
On appeal from:
North Gauteng High Court, Pretoria (Rasefate
AJ).
Order
:
1. The appeal is upheld
with costs.
2. The order of the court
below is set aside and substituted with the following:
‘The
matter is postponed
sine
die
.
The wasted costs occasioned by the postponement shall stand over for
later determination.’
JUDGMENT
Griesel AJA (Mthiyane, Lewis, Malan, Bosielo JJA concurring):
[1] This is an appeal against a costs order granted by the North
Gauteng High Court, Pretoria. It concerns the wasted costs occasioned

by a postpone­ment of the trial at the behest of the appellant
(as plaintiff). The high court ordered the appellant to pay
the costs
of the postpone­ment on a punitive scale, thus giving rise to the
present appeal, which comes before us with leave
of this court.
[2] It is trite that the award of costs is a matter wholly within the
discretion of the trial court. An appeal court will only
interfere
with discretionary orders granted by a lower court where it is shown
that –
‘
.
. . the lower court had not exercised its discretion judicially, or
that it had been influenced by wrong principles or a misdirection
on
the facts, or that it had reached a decision which in the result
could not reasonably have been made by a court properly directing

itself to all the relevant facts and principles
.’
1
[3] With regard to costs occasioned by a postponement, the general
rule is that the party which is responsible for a case not
pro­ceeding on the day set down for hearing must ordinarily pay
the wasted costs.
2
It is important to bear in mind, however, that a litigant is not
necessarily ‘responsible’ for the case not proceeding merely

because he or she applies for a postponement. In certain
circumstances, a litigant may be forced to apply for a postponement
as
a result of the conduct of an opponent, eg through inadequate
discovery; a late amendment or any number of other reasons. The
‘normal
rule’ only applies to ‘the party who was at fault or in
default’.
3
[4] When a trial court is likely to be in a better position than the
court hearing the application for postponement to ascertain
the facts
and to decide who should be liable for the costs of a postponement,
it is a salutary rule that costs should be reserved
for later
determination.
4
[5] Turning to the facts of this case, the appellant is a company
involved in the processing of mineral ore at a large plant in

Vereeni­ging. The first and second respondents were two of the
appellant’s most senior employees, being its financial manager
and
logistics manager respectively. The appellant’s case as it emerges
from the pleadings is that the respondents, in breach
of their
fiduciary duties, dishonestly presented fictitious invoices in the
names of Econo Hire (‘Econo’) and Nyala Contractors
(‘Nyala’)
for pay­ment by the appellant. Through the dishonest presentation
of these invoices, so it was alleged, the appellant
was induced to
pay amounts of approximately R3 million and R1,2 million to
Econo and Nyala respect­ively. The appellant
further alleged that
Econo and Nyala did not exist, but that they were simply the alter
egos of the respondents. In this regard,
the appellant claims that
the bank accounts reflected on the invoices into which payments were
to be made were, in respect of Nyala,
the bank account of Mrs Jonker,
the wife of the first respondent. In respect of the Econo invoices,
three different bank accounts
had been used from time to time: the
first account belonged to a Ms Visagie, to whom one pay­ment was
made, whilst the balance
of the payments were made to two bank
accounts held in the name of a Mr C H Steyn. According to the
appellant, payments were
redistributed from these accounts to various
other accounts held or controlled by the respondents.
[6] Copies of the various bank statements were obviously vital for
the proof of the appellant’s case. In the course of a criminal

investigation against the respondents, the appellant obtained copies
of the relevant bank statements from the police docket. The
appellant
sought to use these documents at the trial and further sought
discovery from the respondents of the relevant bank statements.
The
discovery measures were strenuously resisted by the respondents who
raised several objections, including an alleged violation
of their
constitutional right to privacy and lack of relevance.
[7] After many months of interlocutory skirmishes, the appellant
eventually obtained an order compelling the respondents to make

discovery. Notwith­standing such order, however, discovery of the
bank statements was still not forthcoming, the respondents
claiming
that they were no longer in possession of such statements. At a
pre-trial conference, held during the week pre­ceding
the trial,
the appellant’s legal representa­tives also unsuccess­fully
sought the respondents’ agreement that copies
of the bank
state­ments could be produced at the trial by consent. Instead of
obtaining the cooperation it had hoped for, the
appellant was
pointedly informed that the respondents would oppose the use of bank
statements at the trial.
[8] The appellant thereupon served subpoenas
duces tecum
on
the managers of the various branches of the banks at which the
relevant accounts were held. Copies of the bank statements had
been
received from the banks and placed into a trial bundle a few days
prior to the trial.
[9] The action was enrolled for trial in the high court on Tuesday,
31 July 2007. When the roll was called before the Deputy Judge

President (‘DJP’) on that day, counsel for the appellant
indicated that the trial was expected to run for not more than three

days. Counsel for the respon­dents was less optimistic,
estimating that it would run for at least five days. It appears that

there is a rule of practice in the North Gauteng High Court that a
trial requiring more than five days ought not to be enrolled
except
on a date specifically allocated by the Judge President or a judge
delegated by him. From this rule, a practice has apparently
developed
in that court, adopted by the DJP, that unless counsel for both
parties could give an undertaking at the calling of the
roll that the
trial action would not endure for more than five days, the matter
would not be allocated to a judge and a new enrolment
would have to
be sought, resulting in a delay of anything up to two to three years
before a new trial date can be obtained.
[10] In relation to the present matter, and in view of the
conflicting estimates of the duration of the trial, the DJP enquired

of counsel for the appellant whether the appellant would be prepared
to accept the risk that if the matter was allocated for hearing
and
did not finish within the estimated time, the matter would be
postponed
sine die,
that the trial would have to commence
de
novo
before a new judge, and the appellant would have to pay the
costs occasioned by the postpone­ment on an attorney and client

scale. Faced with Hobson’s choice, the appellant agreed to the
allocation of a judge on the basis as stipulated by the DJP and

authorised counsel to give an undertaking to that effect.
[11] It should be said that the practice that has evolved in the high
court appears to be highly prejudicial to litigants. Whilst
the
difficulties of preparing an efficient trial roll are understood, the
inflexibility of the approach adopted by the DJP may
lead to serious
prejudice to litigants, as is demonstrated in this case. Whether it
is within the power of the court to order that
a trial that is
part-heard is a nullity is doubtful. And instructing a trial judge to
cease hearing a matter once seized of it
is an unacceptable
interference with judicial independence. Furthermore, imposing an
undertaking to pay costs, especially on a
punitive scale, in the
event of counsel’s estimate turning out to be incorrect, is
undesirable.
[12] When the trial commenced before Rasefate AJ, who had been
designated to hear the matter, the appellant’s counsel gave
a short
opening address. Thereafter he called his first witness, an officer
in the service of Absa Bank, to identify and authenticate
copies of
bank state­ments which had been printed from the bank’s
computers. After the witness’s evidence in chief, the
first
respondent’s counsel sought an adjournment on the basis that he had
been ‘taken by surprise’ and wished to consider
the bank
statements prior to any cross-examination. It appears that although
indexes, which included and referred to the bank state­ments
in
the bundles, had been furnished to the respondents on the pre­ceding
Friday, copies of the actual bank statements were only
delivered on
the day before the trial.
[13] Upon the resumption of the trial after the luncheon adjournment,
counsel for the respondents objected, on a number of different

grounds, to the evidence proposed to be led on behalf of the
appellant. One of the grounds raised was based on the provisions of

s 30(1) of the Civil Proceedings Evidence Act 25 of 1965, which
require ten days’ notice to be given of the appellant’s
intention
to adduce evidence of accounting records of a bank, which requirement
had not been complied with.
5
Counsel for the appellant attempted to counter this argument by
relying on the provisions of s 15(4) of the Electronic
Communications
and Trans­actions Act (‘ECTA’) 25 of 2002
which, so it was submitted, enabled the appellant to place the
relevant documents
before the court without complying with any notice
period.
6
[1
4] ‘Data message’,
as defined in s 1 of ECTA,
means
‘data generated, sent, received or stored by electronic means and
includes  . . .
a
stored record’. It was common cause that these provisions are wide
enough to include copies of bank statements.
[15] After hearing argument, the trial judge adjourned the matter to
the following day, when he announced his ruling upholding
the
respondents’ objection. In the result, he held that ‘evidence of
the bank records will be inadmissible unless the prescribed
notice
has been given’.
[16] Faced with this ruling, the appellant found itself on the horns
of a dilemma: it could either decide to press on without such

evidence, which would inevitably have resulted in the demise of its
case; or it could apply for a post­pone­ment in order
to give
the requisite notice in compliance with the court’s directive.
Under­standably, counsel for the appellant opted for
the latter
course, moving for a post­ponement and asking that the question
of liability for the wasted costs be reserved for
later
deter­mination.
[17] This application was vigorously opposed on behalf of the
respondents, who asked that the application for postponement be
refused; alternatively, if the court were minded to grant a
postponement, that the appellant be ordered to pay costs of three
days
of trial on a punitive scale in accordance with its earlier
undertaking.
[18] The trial judge, after a further adjournment to consider the
issue, granted the postponement and issued an order in the following

terms:
‘
. . . [T]he
plaintiff is ordered to pay the wasted costs of both . . . the
first and the second defendant,
and also the reservation of counsel
for the three days that were reserved, on an attorney and client
scale.’
[19] In coming to his conclusion, the trial judge accepted the
respondents’ argument that the postpone­ment was wholly
attributable
to the fault of the appellant in that it ‘did not
comply with the rules and requirements of s 30 of the Civil
Pro­ceedings
Evidence act as it should have’. In fact, so the
learned trial judge held, the postponement was due to the
‘recklessness’
of the appellant because, despite prior warning,
it elected to proceed with the matter without complying with the
provisions of
the Civil Proceedings Evidence Act, knowing that its
case would rest on the production of bankers’ books.
[20] Secondly, the court referred to the fact that the appellant had
given an undertaking that if the matter was not finalised
within
three days, then it tendered to pay the costs on an attorney and
client scale and the matter would lapse and proceed
de novo
on
a future date.
[21] Counsel for the appellant took issue with the reasons furnished
by the trial court, submitting that the court failed to exercise
its
discretion judicially. He submitted
inter alia
that it amounts
to a mis­direction to find, as the trial court did, that the
appellant was reckless in seeking to circum­vent
the provisions
of the Civil Proceedings Evidence Act by invoking the provisions of
ECTA. In the light of my conclusion with regard
to the exercise of
the court’s discretion, I do not find it necessary to undertake any
detailed analysis of the provisions of
s 15(4) of ECTA, which
have been described as ‘controversial’.
7
[22] The present case is, in my view, an instance where the trial
court is likely to be in a better position than the court hearing
the
application for postponement to decide who should be liable for the
costs of the postponement. The mere fact that the appellant
may, with
the benefit of hindsight, be criticised for the fact that it did not,
at an earlier stage give the requisite notice in
terms of s 30
of Act 25 of 1965, or that it did not timeously utilise its remedies
in terms of rule 38 to obtain copies of
the bank statements, may or
may not be decisive at the end of the trial when it comes to the
costs of the postponement. On the
other hand, it may appear in the
fullness of time and after all the evidence has been heard, that the
post­ponement was precipitated
by a spurious objection on the
part of the respondents; or that they had lied about their possession
of the documents in question;
or that they had been obstructive and
had deliberately adopted delaying tactics through­out the process
(as claimed by the
appellant), in which event it would work great
injustice to have rewarded them at this stage with an irrevocable
order for costs
arising from the post­ponement.
[23] To sum up, should it appear at the end of the trial that the
appellant itself was entirely to blame for the post­pone­ment,

or that it was pursuing vexatious and baseless claims against the
respondents (as they allege), then the court can fully give effect
to
such a finding at that stage by mulcting the appellant in costs, in
which event the respondents would have lost nothing.
8
Looked at in its totality, it is clear to me that the trial court
will be in a far better position properly to assess the liability
for
the wasted costs occasioned by the postponement once it has all the
evidence before it.
[24] With regard to the appellant’s undertaking – leaving aside
the propriety of requiring the appellant to furnish such an

undertaking in order to be afforded access to the court – it seems
to me that the undertaking to pay the costs of a postponement
was
given on the basis of the appellant’s estimate of the time
necessary for the conduct of the trial being inadequate; it was
not
given on the basis that the costs of a post­ponement – for
whatever reason – would inevitably be for the appellant’s

account. To put it differently, the undertaking would be triggered if
the trial could not finish within the estimated time;
not
if
it could not even start. I accordingly conclude that the trial judge
erred in relying on the undertaking furnished on behalf
of the
appellant.
[25] In these circumstances, I am of the view that an order reserving
the wasted costs for later determination would undoubtedly
have been
the proper order to have made. In failing to make such an order the
trial judge, in my respectful opinion, failed to
exercise his
discretion judicially. It follows that this court is at large to
interfere with the exercise of the trial court’s
decision, that the
appeal should succeed and the order of the high court should be
changed to reflect the views expressed above.
[26] The following order is granted:
1. The appeal is upheld
with costs.
2. The order of the court
below is set aside and substituted with the following:
‘The
matter is postponed
sine
die
.
The wasted costs occasioned by the postponement shall stand over for
later determination.’
b m griesel
Acting Judge of Appeal
APPEARANCES:
FOR APPELLANT: John Peter
Instructed by:
Schindlers Attorneys
c/o Friedland Hart Inc
Pretoria
Webbers Attorneys
Bloemfontein
FOR RESPONDENTS: Gerhard Wagenaar (attorney)
Instructed by:
Gerhard Wagenaar Attorneys (First Respondent)
Pretoria
Symington & De Kok
Bloemfontein
1
National Coalition for Gay and Lesbian Equality &
others v Minister of Home Affairs & others
2000 (2) SA 1
(CC) para 11. See also
Naylor & another v Jansen
2007 (1)
SA 16
(SCA) para 14 and the authorities referred to therein.
2
A C Cilliers
Law of Costs
(Service issue 17), para 8.11; H J
Erasmus
Superior Court Practice
B1 306D–E (Service 28,
33).
3
Burger v Kotze & another
1970 (4) SA 302
(W) at 304E–F.
4
Cf Erasmus
loc cit
.
5
Section 30(1) provides:
‘No ledger, day-book,
cash-book or other account book of any bank, and no copies of
entries therein contained, shall be adduced
or received in evidence
under this Part, unless at least ten days' notice in writing, or
such other notice as may be ordered
by the person presiding at the
proceedings concerned, containing a copy of the entries proposed to
be adduced in evidence, has
been given by the party proposing to
adduce the same in evidence to the other party.’
6
Section 15(4) reads as follows:
‘A data message made by
a person in the ordinary course of business, or a copy or printout
of or an extract from such data message
certified to be correct by
an officer in the service of such person, is on its mere production
in any civil, criminal, administrative
or disciplinary proceedings
under any law, the rules of a self regulatory organisation or any
other law or the common law, admissible
in evidence against any
person and rebuttable proof of the facts contained in such record,
copy, printout or extract.’
7
See for example the judgment of the full bench of the South Gauteng
High Court in
LA Consortium & Vending CC t/a LA Enterprises v
MTN Service Provider (Pty) Ltd
(Case No A5014/08, 17 August
2009, not yet reported) paras 12–13.
8
Compare the remarks of Marais JA in
Williams v Harris
[1998] ZASCA 51
;
1998
(3) SA 970
(SCA) at 984F in similar circumstances.