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[2017] ZAFSHC 86
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Preller Plein Apteek v Hesketh (5900/2008) [2017] ZAFSHC 86 (25 May 2017)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5900/2008
In
the matter between:
PRELLER
PLEIN
APTEEK
Applicant
and
BERNADETTE
MARION HESKETH
Respondent
HEARD
ON:
18 APRIL 2017
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
25 MAY 2017
[1]
This partly heard complex medical negligence matter was scheduled as
a special allocation commencing on the 18
th
to 21 April 2017. A day prior to the hearing,
Dr
Leon Wagner (Forensic Pathologist)
assisting
the applicant took ill and was admitted to the Intensive Care Unit at
Mediclinic Bloemfontein with acute renal failure.
It was
confirmed by submitting a medical certificate from Dr van der Merwe
(Cardiologist) at the same hospital. This information
was
communicated to the legal team of the respondent who were still in
Gauteng at the time. They were also alerted to the
fact that
due to his central role in their case particularly at this stage of
the trial they will be seeking a postponement of
the proceedings.
In any event the legal team of the respondent proceeded to
Bloemfontein to attend the hearing.
[2]
The parties agreed with each other that the matter be postponed to
enable Dr Leon Wagner to recuperate alternatively that the
applicant
acquire the services of another expert. The only issue of
disagreement and to be decided upon remained the
wasted costs of the
day of two (2) counsel and an expert namely Dr Herman Edeling
(Neurosurgeon) based in Johannesburg.
[3]
Mr Benade, on behalf of the applicant, submitted that the legal
representative of the respondent were aware as early as
13H00
pm
on the
17
th
April
that the postponement of the matter was unavoidable and therefore a
definite eventuality. This postponement was occasioned
by no
deliberate act on the part of the applicant but by an “
Act
of God”
.
Lastly, that the matter against the applicant may be dismissed, given
the many versions that are contained in the medico
legal reports.
[4]
It was submitted on behalf of the respondent by Mr Joubert that even
though the discretion to order a party to pay the costs
lies with me,
I must exercise such discretion in a judicial manner. I agree
with his submission in this regard. He
was of the view that the
postponement benefited the applicant and that as such must be liable
to pay the wasted costs. The
costs that he was asking for were
only limited to one (1) day and not subsequent days.
[5]
It is indeed correct that it is discretionary to award costs against
any party involved in litigation. However such discretion
must
be exercised judicially pertinently to achieve fairness and justice
to all parties. It is not all the time that the
party
requesting a postponement will be made to pay the wasted costs, but
surrounding circumstances need to be carefully examined
in
adjudication of that aspect.
[6]
I was referred to the decided case of
Grobbelaar
v Snyman
1975 (1) SA 568
(O)
and beseeched to follow it. I disagree with Mr Joubert that I
am bound by that decision and that it can only be persuasive
to me.
However the facts in that matter are on the opposite end of the facts
in this matter. The court found there
that the defendant should
have ensured that the witnesses and himself are present in court on
the trial date. He failed to
take adequate measures to be able
to attend the hearing. It had been raining for some time and
foreseeable that it might
pose a hindrance to leave his farm.
In this matter it was an emergency and could not have been foreseen
that Dr Leon Wagner
will have to be admitted at the hospital.
[7]
In
Cape
Law Society v Feldman
1979 (1) SA 979
(E)
,
the court emphasized that all relevant considerations must be made
available before the court to achieve a just and equitable
decision
in exercising its judicial discretion. The legal
representatives of the plaintiff were informed of the incapacity
of
Dr Leon Wagner while they were still in Gauteng. Strangely they
made the fruitless trip to Bloemfontein patently conscious
that there
is a zero chance of the matter proceeding on the 18
th
April. They are the proverbial authors of their own
misfortune. They did not act in the best interests of the
respondent
on this aspect and should have realised the unnecessary
costs they are incurring by continuing with the trip to court.
[8]
There is no culpability on the part of the applicant that the matter
could not proceed as scheduled. It was beyond their
control.
I am therefore not convinced that I can exercise my discretion to the
extent that the applicant should be ordered
to pay the wasted costs.
It will be unjust and inequitable to do so.
[9]
Accordingly, I make the following order:
1.
The matter
is postponed to the
16
th
to 20
th
October 2017
.
2.
Each party
to pay its own costs.
__________________
M.
A. MATHEBULA, J
On
behalf of applicant: Adv H.J. Benade
Instructed
by: Symington & De Kok
Bloemfontein
On
behalf of respondent: Adv S Joubert SC with
Adv
H Bothma
Instructed
by: Bezuidenhout Inc.
Bloemfontein