About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2019
>>
[2019] ZAKZPHC 84
|
|
Ethekwini Municipality: Water and Sanitation Unit v Ekansi Trading Enterprise (Pty) Ltd (AR7/2019) [2019] ZAKZPHC 84 (22 November 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE
NO: AR7/2019
In
the matter between:
ETHEKWINI
MUNICIPALITY: WATER AND SANITATION UNIT
Appellant
and
EKANSI TRADING ENTERPRISE
(PTY) LTD
Respondent
Coram
:
Madondo DJP et Seegobin et Poyo Dlwati JJ
ORDER
In
the result the order I make is the following:
(a) The
appeal is upheld and each party is ordered to pay its own costs of
appeal.
(b) The
order of the court a quo is set aside and replaced with the
following:
"1. The
application is adjourned sine die.
2. The
respondent is ordered to deliver its answering affidavit within five
(5) days of the grant
of this order.
3. The
respondent is ordered to pay the wasted costs occasioned by the
adjournment, such costs
to be paid on an attorney and client scale."
(c) The
appellant shall be precluded from pursuing its defence to the
respondent's claim until and
unless it has paid the costs of the
respondent as set out in paragraph (b) (3) above.
APPEAL
JUDGMENT
Seegobin J
Introduction
[1] The
respondent Ekansi Trading Enterprise (Pty) Ltd ('Ekansi') sought a
monetary judgment against the appellant
being the Ethekwini
Municipality: Water and Sanitation Unit ('Ethekwini') in an amount of
R745 645.29 together with interest and
costs. When the matter was
called on the unopposed motion roll on 2 November 2017 Ethekwini's
legal representative informed the
court (Kruger J) that he was in
possession of an unsigned answering affidavit on behalf of Ethekwini.
He explained that the answering
affidavit was in the process of being
signed and requested that the matter stand down. The learned Judge,
however, did not accede
to this request and granted judgment against
Ethekwini.
[2] A
subsequent application for leave to appeal was refused by the learned
Judge. Ethekwini now appeals the judgment
and order of the court a
quo with leave from the Supreme Court of Appeal.
Relevant facts
[3] The
learned Judge's decision not to accede to the request made on
Ethekwini's behalf to stand the matter down
was no doubt influenced
by the following facts. The application was issued on 2 August 2017.
Service of the papers was duly effected
on Ethekwini on 4 September
2017. Ordinarily and in terms of the Uniform Rules Ethekwini had
fifteen (15) days within which to
deliver an answering affidavit
after the filing of a notice to oppose. On 2 October 2017 and
following the delivery of a notice
of opposition the matter was
removed from the unopposed roll. Given Ethekwini's failure to deliver
an answering affidavit Ekansi's
attorneys re-enrolled the matter for
2 November 2017 as they were no doubt entitled to do in terms of the
KwaZulu-Natal Practice
Directive 9.3.
[4] As
matters stood before the learned Judge on 2 November 2017 there was
in fact no answering affidavit on behalf
of Ethekwini nor was there a
substantive application for a postponement of the matter. In these
circumstances it was understandable
for the learned Judge to adopt
the view that he was perfectly entitled to grant judgment against
Ethekwini, more so bearing in
mind that Ethekwini was in possession
of the application papers for a period just short of two months and
did nothing to comply
with the rules of this court.
Ethekwini's grounds of
appeal
[5] In
pursuing this appeal Ethekwini relies on four grounds which it
contends are sufficient to warrant appellate
interference. They are
the following:
first,
that the court a quo did not consider
Ethekwini's defence;
second,
that it did not consider the
possibility of a postponement and an adverse order of costs;
third,
that its refusal (to stand the matter down which was akin to a
postponement) amounted to an unjustified violation of the
audi
alteram partem
principle; and
fourth,
that it did not
consider that public funds were implicated.
[6] Having
regard to the view I take of this matter and the conclusion that I
arrive at I see no reason to address
each of these grounds in any
great detail.
Legal principles
governing applications for postponements
[7]
The
legal principles governing an application for a postponement were
succinctly articulated by Mahomed AJA as only he could in
Myburgh
Transport v Botha t/a SA Truck Bodies
[1]
as follows:
'The relevant legal
principles of application in considering this appeal may be stated as
follows:
1. The
trial Judge has a discretion as to whether an application for a
postponement should be
granted or refused
(R v Zackey
1945 AD
505).
2.
That
discretion must be exercised judicially
. It should not be
exercised capriciously or upon any wrong principle, but for
substantial reasons.
(R v Zackey (supra); Madnitsky v Rosenberg
1949 (2) SA 392
(A) at 398 9;
Joshua v Joshua
1961 (1) SA
455
(GW) at 457D.)
3. An
appeal Court is not entitled to set aside the decision of a trial
Court granting or refusing
a postponement in the exercise of its
discretion merely on the ground that if the members of the Court of
appeal had been sitting
as a trial Court they would have exercised
their discretion differently.
4. An
appeal Court is, however, entitled to, and will in an appropriate
case, set aside the decision
of a trial Court granting or refusing a
postponement where it appears that the trial 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 has 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.
(Prinsloo v Saaiman
1984 (2) SA 56
(O); cf
Northwest Townships (Ply) Ltd v Administrator, Transvaal, and
Another
1975 (4) SA 1
(T) at 8E-G;
Johannesburg Stock Exchange
and Another v Witwatersrand Nigel Ltd and Another
1988 (3) SA 132
(A) B at 152.)
5. A
Court should be slow to refuse a postponement where the true reason
for a party's non-preparedness
has been fully explained, where his
unreadiness to proceed is not due to delaying tactics and where
justice demands that he should
have further time for the purpose of
presenting his case.
Madnitsky v Rosenberg (supra
at 398-9).
6. 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.
Greyvenstein v Neethling
1952 (1) SA 463
(C).
Where, however, fundamental fairness and justice justifies a
postponement, the Court may in an appropriate case allow such an
application
for postponement, even if the application was not so
timeously made
.
Greyvenstein v Neethling (supra
at 467F).
7.
An
application for 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
.
8.
Considerations
of prejudice will ordinarily constitute the 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
. (Herbstein and Van
Winsen
The Civil Practice of the Superior Courts in South Africa
3rd ed at 453.)
9.
The
Court should weigh the prejudice which will be caused to the
respondent in such an application if the postponement is granted
against the prejudice which will be caused to the applicant if it is
not
.
10. Where
the applicant for a postponement has not made his application
timeously, or is otherwise to blame
with respect to the procedure
which he has followed,
but justice nevertheless justifies a
postponement in the particular circumstances of a case, the Court in
its discretion might allow
the postponement but direct the applicant
in a suitable case to pay the wasted costs of the respondent
occasioned to such a respondent
on the scale of attorney and client.
Such an applicant might even be directed to pay the costs of his
adversary before he is allowed
to proceed with his action or defence
in the action. as the case may be
.
Van Dyk v Conradie and
Another
1963 (2) SA 413
(C) at 418;
Tarry
&
Co Ltd
v Matatiele Municipality
1965 (3) SA 131
(E) at 137.' [My
emphasis]
[8]
The
following comments by the Constitutional Court
in
National Police Service Union
&
others v
Minister of Safety and Security
&
others,
[2]
whilst made in the context of postponements in that court are, in my
view, equally relevant to such applications in lower courts:
'[4]
The Constitutional Court has the inherent power to protect and
regulate its own process. The postponement
of a matter set down for
hearing on a particular date cannot be claimed as of right. An
applicant for a postponement seeks an indulgence
from the Court. Such
postponement will not be granted unless this Court is satisfied that
it is in the interests of justice to
do so. In this respect the
applicant must show that there is good cause for the postponement. In
order to satisfy the Court that
good cause does exist, it will be
necessary to furnish a full and satisfactory explanation of the
circumstances that give rise
to the application. Whether a
postponement will be granted is therefore in the discretion of the
Court and cannot be secured by
mere agreement between the parties. In
exercising that discretion, this Court will take into account a
number of factors, including
(but not limited to): whether the
application has been timeously made, whether the explanation given by
the applicant for postponement
is full and satisfactory, whether
there is prejudice to any of the parties and whether the application
is opposed. All these factors
will be weighed by the Court to
determine whether it is in the interests of justice to grant the
postponement.
[5]
What is in the interests of justice will in turn be determined not
only by what is in the interests of the parties themselves. but
also
by what. in the opinion of the Court, is in the public interest. The
interests of justice may require that a litigant be granted
more
time, but account will also be taken of the need to have matters
before this Court finalised without undue delay
.' [My emphasis;
footnotes omitted.]
[9] Applying
these principles to the material facts outlined above I consider that
fundamental justice required
the matter to stand down if only for a
short while so as to allow Ethekwini's legal representative to obtain
a properly signed
and attested affidavit from his client
alternatively
to allow a postponement of the matter with a
suitable costs order even if this was made on a punitive scale.
Either of these options
would have resulted in a measure of fair play
ultimately ensuring that fair and substantial justice is achieved.
[10] Whilst
I accept that the issue of a postponement always lies within the
discretion of the court I nonetheless
consider that such a discretion
must be exercised judicially after a careful weighing up of the
prejudice that either party may
stand to suffer in the process. In
the present matter I believe that the interests of justice would have
been better served by
allowing Ethekwini (which exercises a public
function with public funds) an indulgence to place its case properly
and fully before
the court. This is not to say that in every case
where a public body such as Ethekwini is involved a court should bend
backwards
to grant an indulgence. Each case will have to be assessed
on its own facts and circumstances. In the present matter I believe
that any prejudice caused to Ekansi as a result of Ethekwini's
remissness in not having its answering affidavit delivered timeously
can and should be met with a special order of costs, payable on an
attorney and client scale. It therefore follows that the appeal
must
succeed.
[11] The
only remaining issue to consider is whether Ethekwini is entitled to
its costs of appeal including all
costs arising out of the
applications for leave to appeal. Whilst ordinarily the costs should
follow the result I consider that
in this particular matter both in
this court as well as in the Supreme Court of Appeal it would be
manifestly unfair to burden
Ekansi with such costs bearing in mind
that it was not the guilty party herein. On behalf of Ethekwini Mr
Boúlle
submitted that the applications for leave to
appeal were vigorously opposed by Ekansi thus resulting in more costs
being incurred.
One can well understand the stance adopted by Ekansi
in this regard: it was favoured with a judgment against Ethekwini in
a substantial
amount and which it believed was justifiably granted at
the time. In these circumstances it could be forgiven for believing
that
it was entitled to hold onto the judgment at all cost. In my
view, this entire saga could have been avoided had Ethekwini complied
with the rules and ensured that its answering affidavit was filed
timeously. In these circumstances I see no reason why it should
not
carry its own costs in this regard.
Order
[12] In
the result the order I make is the following:
(a) The
appeal is upheld and each party is ordered to pay its own costs of
appeal.
(b) The
order of the court a quo is set aside and replaced with the
following:
"1. The
application is adjourned sine die.
2. The
respondent is ordered to deliver its answering affidavit within five
(5) days of the grant
of this order.
3. The
respondent is ordered to pay the wasted costs occasioned by the
adjournment, such costs
to be paid on an attorney and client scale."
(c) The
appellant shall be precluded from pursuing its defence to the
respondent's claim until and
unless it has paid the costs of the
respondent as set out in paragraph (b) (3) above.
Seegobin
J
Madondo
DJP
Poyo
Dlwati J
APPEARANCES:
FOR
THE APPELLANT: A
J Boulle
(instructed
by S D Maloi & Associates)
FOR
THE RESPONDENT: V M Naidoo
SC
(instructed
by Sergie Brimiah & Associates)
DATE
OF HEARING: 18
October 2019
DATE
OF JUDGMENT: 22
November 2019
[1]
Myburgh
Transport v Botha t/a SA Truck Bodies
1991
(3) SA 310
(NmS) at 314F-315J.
[2]
National
Police Service Union
&
others
v Minister of Safety and Security
&
others
2000
(4) SA 1110
(CC).