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[2021] ZAGPJHC 411
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BCG Stainless Steel Service CC v Brits and Another (10781/2019) [2021] ZAGPJHC 411 (27 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 10781/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
27 AUGUST 2021
In
the matter between: -
BCG
STAINLESS STEEL SERVICE
CC
Applicant
(REGISTRATION
NUMBER: [....])
and
BRITS,
MARINDA
First respondent
(IDENTITY
NUMBER: 6[....])
BRITS,
WILLEM
JACOBUS
Second respondent
(IDENTITY
NUMBER: 5[....])
JUDGMENT
DELIVERED
:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e mail and
publication
on CaseLines. The date and time for hand-down is deemed
to be 10h00 on 27 August 2021.
F.
BEZUIDENHOUT AJ:
INTRODUCTION
[1]
The parties in this application for
payment, agreed to a postponement of the hearing
.
The applicant contends that the respondents are liable to pay the
costs occasioned by the postponement. The respondents disagree.
I am
called upon to determine this issue.
CHRONOLOGY OF EVENTS
[2]
The applicant instituted the application for payment on the 22
nd
of March 2019. On the 5
th
of April 2019 the
respondents filed an intention to oppose. They were represented by
attorneys.
[3]
On the 30
th
of April 2019 the respondents served an
answering affidavit in opposition to the relief claimed by the
applicant. The applicant
served a replying affidavit on the 26
th
of July 2019.
[4]
On the 4
th
of November 2019 heads of argument were
prepared on behalf of the applicant. The respondents failed to file
their heads of
argument and as a result, the applicant applied for a
hearing date on the 14
th
of December 2020.
[5]
On the 16
th
of March 2021, the applicant instituted
an application and applied for an order compelling the respondents to
file their heads
of argument. On the 14
th
of April 2021,
the respondents filed their heads of argument.
[6]
On the 3
rd
of August 2021 the respondents were
invited to a pre-hearing conference. The pre-hearing conference was
held on the 13
th
of August 2021 and a joint
practice note was filed.
[7]
On the 17
th
of August 2021, the respondents’
attorneys of record withdrew by way of notice.
[8]
On the 18
th
of August 2021, after the court had allocated
this matter for hearing to the 24
th
of August 2021,
the court was informed that the respondents were unable to attend the
hearing as their presence was required
in a criminal matter linked to
the civil proceedings. The respondents were accommodated and the
hearing was moved to the 25
th
of August 2021.
[9]
On Sunday morning, the 22
nd
of August 2021, the first
respondent addressed e mail correspondence to my Registrar,
advising that she has no legal
representation due to finances, that
she attempted to install Microsoft Teams without success and that she
does not have access
to CaseLines. The first respondent advised
further that she had an appointment with Legal Aid on the 25
th
of
August 2021 and that they required hard copies of the papers
filed in this matter. Subsequently, the first respondent
was given
access to CaseLines and advised to physically attend at the High
Court building where she would be assisted with access
to Microsoft
Teams in order to attend the virtual hearing.
APPLICANT’S
SUBMISSIONS
[10]
Ms Lipshitz, appearing on behalf of the applicant, submitted that the
respondents should pay
the applicant’s costs occasioned by the
postponement for the following reasons: -
[a]
Although the respondents admitted liability to claims 1 and 2 of the
application as far back as
the 30
th
of April
2019,
they have failed to make any tender towards settling this debt,
thereby forcing the applicant to come to court in respect
of all of
the claims;
[b]
The respondents lacks
bona
fides
;
[c]
The set-down was served as far back as June 2021;
[d]
The respondents’ attorneys withdrew a week
before the hearing but notwithstanding, the respondents failed to act
timeously
and to make the necessary arrangements for legal
representation;
[e]
The postponement was occasioned by no fault of the
applicant;
[f]
The postponement, without an order for costs in
its favour, would leave the applicant out of pocket.
RESPONDENTS’
SUBMISSIONS
[11]
Both the first and second respondents were present and addressed
the court.
[12]
The first respondent, Mrs Brits, informed the court that their
former attorneys of record
advised them of the hearing date two weeks
before. However, a week before the hearing of the matter, the
attorneys required a deposit,
which the respondents were unable to
pay. As a result, the attorneys withdrew.
[13]
Mrs Brits confirmed that she had consulted with Legal Aid and
that they are yet to advise
her whether they are prepared to take on
the matter. She also indicated that she intended to approach the
pro
bono
organisation for legal representation. Mrs Brits stated
that they have no legal knowledge and therefore required someone with
the requisite expertise to present their case in court.
[14]
On the issue of admitting liability to two of the applicant’s
claims, the respondents advised
the court that they have made certain
proposals to settle the debt in instalments, but have not received
any response. They indicated
that they have attempted to sell their
immovable property, but that the proceeds of the sale would not be
sufficient to settle
their indebtedness to the applicant. Mrs Brits
stated that they have been informed by the bank that foreclosure
proceedings
are imminent due to the respondents’ breach of the
mortgage loan agreement.
[15]
Ultimately, the respondents submitted that if they were ordered to
pay the costs of the postponement,
they would have to somehow make
arrangements to settle it by way of monthly payment.
THE LAW ON
POSTPONEMENTS
[16]
A postponement is usually accompanied by wasted costs which the court
is called upon to award
to one or other of the parties. The award is
a matter wholly within the discretion of the court, but it is a
judicial discretion
which must be exercised on grounds upon which a
reasonable person could have come to the conclusion arrived at.
[17]
Firstly, it
is trite that a party who applies for a postponement, seeks an
indulgence.
[1]
Once a
postponement has been granted at the behest of one party, the
prejudice that the other party may suffer as a result of the
postponement, must be considered when determining the issue of costs.
[18]
The usual
rule is that the party who is responsible for the postponement must
pay the wasted costs.
[2]
[19]
Considerations
of prejudice will ordinarily constitute a dominant component of the
total structure in terms of which the discretion
of a court will be
exercised. What the court has primarily to consider is whether any
prejudice caused by a postponement to the
adversary of the applicant
for a postponement can fairly be compensated by an appropriate order
of costs or any other ancillary
mechanisms.
[3]
[20]
In
Erasmus
v Grunow
[4]
the court held as follows:
-
“
The
law contemplates that he should take into consideration the
circumstances of each case, carefully weighing the various issues
in
the case, the conduct of the parties and any other circumstances
which may have a bearing upon the question of costs and then
make
such order as to costs as would be fair and just between the
parties.”
[21]
In
Myburgh
Transport v Botha t/a SA Truck Bodies,
[5]
the court stated that an application for a postponement must be made
timeously as soon as the circumstances which might justify
such an
application become known to the applicant.
[6]
Such an application for a postponement must always be
bona
fide
and not used simply as a tactical manoeuvre for the purposes of
obtaining an advantage to which the applicant is not legitimately
entitled.
FINDING
[22]
Although I have not been called upon to consider whether a
postponement should be granted, the
reason for the postponement
becomes equally relevant when determining what costs order would be
justified under the circumstances.
[23]
In this matter the respondents knew for almost a week before the
hearing that they would have
to apply for a postponement, but failed
to inform the applicant of the position which would have helped to
save some of the wasted
costs.
[24]
The respondents require alternative legal representation. The
applicant recognised this need
and accommodated the respondents. The
fact that the respondents’ former attorneys withdrew at the
eleventh hour due to them
not having been placed in funds and the
fact that Legal Aid first has to consider the merits of the
respondents’ case before
taking it on, are eventualities that
occurred due to no fault of the applicant. The applicant was ready to
proceed and finalise
the hearing. The respondents were not.
[25]
In the circumstances, I find that the applicant is entitled to be
compensated for its wasted
costs.
[26]
Ms Lipshitz referred me to a draft order that has been uploaded
onto CaseLines, which also
includes prayers to facilitate the service
of all further notices on the respondents via e mail. The order
that I intend to
make provides for this.
ORDER
I
make the following order: -
[1]
The application is postponed
sine die
;
[2]
Until the respondents have appointed new attorneys of record, service
of all
further notices in this matter will be effected on the
respondents via e mail as follows:
-
[a]
First
respondent:
marinda83@icloud.com
;
[b]
Second
respondent:
britswillie5@gmail.com
;
[3]
The first respondent shall provide the applicant’s attorneys
with an alternative
Gmail-address within 5 (five) days from date of
this order, failing which the applicant shall be entitled to effect
service on
the first respondent at the email address referred to in
paragraph 2[a].
[4]
The respondents shall pay the applicant’s wasted costs
occasioned by the
postponement, jointly and severally, the one paying
the other to be absolved.
F
BEZUIDENHOUT
ACTING
JUDGE OF
THE HIGH COURT
DATE
OF HEARING: 25
August 2021
DATE
OF JUDGMENT: 27 August 2021
APPEARANCES:
On
behalf of applicant:
Adv T Lipshitz
talipshitz@gmail.com
Instructed
by:
Hamilton
Attorneys
Tel: (011) 482-1279
shaun@hamiltonattorneys.co.za
On
behalf of respondents:
In person.
[1]
Centriugo
AG v Firestone (SA) Ltd
1969 (3) SA 318
(T) at 320E.
[2]
Burger
v Kotze and Another
1970 (4) SA 302
(W) at 305D - G.
[3]
Herbstein
& Van Winsen:
The
Civil Practice of the Superior Courts in South Africa
(5
th
edition)
p 756.
[4]
1980
(2) SA 793
(O) at 797.
[5]
1991
(3) SA 310 (NMS).
[6]
See
also
Greyvenstein
v Neethling
1952 (1) SA 463
(C).