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[2019] ZANCHC 3
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Pentecostal Christian Mission v Smith and Others (1678/2016) [2019] ZANCHC 3 (22 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case No: Date 1678/2016
Heard: 30
I
11 / 2018
Date
Available: 22/02/2019
In
the matter between:-
PENTECOSTAL
CHRISTIAN MISSION
Applicant
And
DESMOND
SMITH
First Respondent
KINGDOM
WORTH
MINISTRIES
Second Respondent
Coram:
Coetzee, AJ
REASONS FOR JUDGMENT
COETZEE,
AJ
1.
When
this matter was called on Friday, 30 November 2018, Mr. Eilert, who
appeared for the respondents, handed up an application
for the
postponement of the application. After hearing argument I refused the
application for a postponement and made a further
order in terms of
the notice of motion. The terms are as referred to in paragraph 2
infra.
I indicated that reasons for the order would be given
if requested. I have now been so requested and my reasons are set out
hereunder.
2.
On 9
September 2016, Matlapeng, AJ made the following order:-
1.
That
the 1
st
, alternatively the 2
nd
,
alternatively the 1
st
and 2
nd
RESPONDENTS or any other person through them are interdicted from
utilising the property known as Erf 29799, Kimberley situated
at the
corner of Saint Pauls and Flower Streets in Kimberley (herein after
the Property) as well as any permanent or temporary
building/structure on the Property for purposes of conducting church
sermons and/or services;
2.
That
the 1st, alternatively the 2
nd
,
alternatively the 1
st
and 2
nd
RESPONDENTS or any other person through them are interdicted from
entering upon the Property without prior obtained authorisation
from
the APPLICANT;
3.
That
the 1st, alternatively the 2
nd
,
alternatively the 1
st
and 2
nd
RESPONDENTS or any other person through them are interdicted from
interfering in any way with the activities of the APPLICANT on
the
Property;
4.
That
the 1st, alternatively the 2
nd
,
alternatively the 1
st
and 2
nd
RESPONDENTS or any other person through them are interdicted from
preventing the personnel or members of the APPLICANT or any other
person from entering upon the Property in order to conduct attend or
partake in the afore mentioned activities;
5.
That
the 1s alternatively the 2
nd
, alternatively
the 1
st
and 2
nd
RESPONDENTS or any other person through them are interdicted from
threatening, intimidating or victimising any of the personnel
or
members of the APPLICANT or any other person for conducting,
attending or participating in the activities of the
APPLICANT;
6.
That
the 1st, alternatively the 2
nd
,
alternatively the 1
st
and 2
nd
RESPONDENTS are to pay the costs of this application jointly and
severally, the one paying the other to be absolved.
"
3.
This order
was served on the respondents on 30 September 2016.
4.
On 28 November 2016 the applicant launched a contempt of
court application against the respondent which application was set
down
for hearing on 19 December 2016 and which application was
postponed to the opposed motion roll for hearing on 16 March 2017.
This
postponement was as a result of the first respondent appearing
in person on 19 December 2017.
5.
On 16 March 2017 the contempt application was postponed
to 30 May 2017 and the respondents were ordered to bring an
application
for the rescission of the order made by Matlapeng, AJ.
The Respondents were also ordered to apply for condonation for the
late
filing of their opposing papers to the main application.
6.
On 30 May
2017 three applications, to wit:-
5.1
applicant's contempt application;
5.2
Respondents' application for condonation; and
5.3
Respondents' application for the rescission of the order
granted on 9 September 2016
served before Williams, J, who, on 1 November 2017,
issued the following order:-
"a(1) The order of Matlapeng AJ
dated 9 September 2016 under case no 1678/2016 is rescinded and set
aside.
(b) The
respondent in the rescission application, the Pentecostal Christian
Mission, is to pay
the costs of the application.
2(a) The application for
contempt of court is dismissed.
(b) Each party is
to pay its own costs including the costs of the application for
condonation.
7.
What
transpired, between 1 November 2017 and 30 November 2019, when I
heard the main application, is set out in the founding affidavits
attached to an application for postponement deposed to on 30 November
2018 by the respondent's attorney, Mr Mario Williams, of
record ("Mr
Williams'') and the first respondent.
8.
On
23 January 2018, the applicant's attorneys, in a letter marked
"urgent" remarked as follows:
"The above matter under case number 1678/2016
and the order granted by Judge Williams on 1 November 2017 has
reference.
1.
In
terms of the order, the order of Matlapeng, A.], dated 9 September
2016
was rescinded and set aside;
2.
The main reason for the rescission order was that Judge
Williams was of the view, that your client's was not aware of the
application
and accordingly did not have the opportunity to oppose
same.
3.
The
effect of the order of Judqe Williams dated 1 November 2017,
according/v was that even though (sic) the order of Matlapeng,
Al was
rescinded that our client's Application dated 4 August 2016, with the
relief as per paragraphs 1, 2, 3, 4, 5, 6 and 7 still
remains before
the Court.
4.
In
terms of the Uniforms Rule of Court your client's Opposing Affidavit
was due within 15 days. We calculated that the affidavit
should have
been filed by 22 November 2017.
5.
To
date hereof we have not received any Opposing Affidavit which is now
2
months late. Our instructions are not to condone the late
filing of the said affidavit.
6.
Our
further instructions are to approach the Court for an opposed date,
to argue the application."
(my underlining)
9.
The Respondents did not respond to this letter, nor was
an application for condonation prepared. The reason advanced for not
taking
any further steps is that Adv Schreuder (respondents' council)
was of the view that it was not necessary to file opposing papers
as
Williams J already pronounced on the merits of the application. As
Adv Schreuder's view was patently incorrect and, although
Mr Williams
doubted the correctness thereof, discussed Adv Schreuder's view with
the first respondent, who instructed Mr Williams
to accept Adv
Schreuder's advice.
10.
On
22 March 2018 the main application was set down for hearing on 1 June
2018 on which date the matter was, by agreement, removed
from the
roll. By agreement between the parties' attorneys, applicant's
attorneys enrolled the main applications for hearing on
30 November
2018. On 24 August 2018 the applicant served and filed the notice of
enrolment.
11.
On receipt
of the Notice of Enrolment, Mr Williams merely attached a copy
thereof to a letter dated 30 August 2018 addressed to
Adv Schreuder,
who, on 16 October 2018, informed Mr Williams that he would no longer
act for the respondents.
12.
The
principles applicable when a party seeks a postponement can be
summarized as follows:
a)
The applicant seeking an indulgence must show good cause for
the interference with the respondent's procedural right to proceed
his action or application to finality;
[1]
b)
The court is entrusted with a discretion as to whether to
grant or refuse the indulgence;
[2]
c)
A court should be slow to refuse a postponement where the
reasons for the applicant's inability to proceed has been fully
explained,
where it is not a delaying tactic and where justice
demands that a party should have further time for presenting his or
her case;
[3]
d)
A court must consider the prejudice that the parties may or
may not suffer.
[4]
13.
In
applying the above principles to the present case, I am of the view
that it is necessary to balance the procedural right of the
applicant
to proceed with his application to finality against the right of the
respondents to properly present their case.
14.
In
balancing these two opposing rights the following factors should be
considered:
(a)
The cause for not being in a position to proceed; and
(b)
Whether the demands of justice warrants a postponement.
15.
The
respondents offered only one explanation for their default being Adv
Schreuder's advice based on his misconceived interpretation
of the
effect of the judgment of Williams, J.
16.
Notwithstanding Mr Williams's doubt in the correctness
of the advice, and the specific reference, by the applicant's
attorney to
the correct interpretation of the effect of the order,
the respondents opted to accept Adv. Schreuder's advice.
17.
I am of the view that the respondents' failure to pursue
an application for condonation based on the misconception of the
effect
of the order made by Williams, J, cannot be viewed as just or
good cause for their defautl.
[5]
19.
The
respondents did not advance any argument nor deposed to any fact or
facts warranting a conclusion that justice demands a postponement
and
thereby ousted my discretion.
I THEREFOR DISMISSED THE APPLICAT ION FOR
POSTPONEMENT AND ORDERED AS I DID.
W J
COETZEE AJ
For
the Applicant;Adv.
D
Olivier (Haarhoffs)
For
the
Respondent;
Adv
A Eilert (Rick Ismael Attorneys)
[1]
Gentiruco v Firestone SA (Pty) Ltd
1969 (3) SA 318
(T) at 320E;
Ecker v Dean, 1939 SWA 22 where Van Heerden said the following on 23
"She has a procedural right and it seems
to me that before that
can be disturbed the applicant would have to show good cause"
[2]
Isaacs v University of the Western Cape
1974 (2) SA 409
(C) at 411H.
also reported as [1974] 2 all SA 478 (C)
[3]
Western Bank Ltd v Lester & Mclean and others
1976 (3) SA 457
{SE) at 460A also reported as [1976] 3 all SA 241 (SE
[4]
Burger v Kotze
1970 (4) SA 302
(W), 305D-G
[5]
Absa Bank Limited v Mosworthty & Another
[2017] JOL 37247
(ECP)
para 4