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[2017] ZANCHC 64
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Multopro Investments (Pty) Ltd and Another v Windsorton and Monte Leo Partnership and Others (2750/2016) [2017] ZANCHC 64 (6 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No:
2750/2016
Requested
on: 01/06/2017
Provided
on: 06/06/2017
In the matter
between:
MULTIPRO INVESTMENTS
(PTY) LTD
1
ST
APPLICANT
GABRIEL ACHEBE
IWEKA
2
ND
APPLICANT
And
WINDSORTON & MONTE
LEO PARTNERSHIP
1
ST
RESPONDENT
RAUTIES
DIAMOND
2
ND
RESPONDENT
EB DIAMONDS
CC
3
RD
RESPONDENT
SPARAX TRADING 144 (PTY)
LTD
4
TH
RESPONDENTS
JUDGMENT
MAMOSEBO J
[1]
On 26 May 2017 this matter was before me in the motion court. Adv Van
Tonder, appearing for the 3
rd
and 4
th
respondents applied for a postponement which was opposed by Adv
Jankowitz appearing for the applicants. These were his submissions
from the Bar:
1.1
He only received instructions by e-mail to request a postponement
and to tender costs a day before
the motion court, 25 May 2017 and
was not made aware of the history of the case or the
merits thereof;
1.2
The respondents needed time to file opposing papers.
1.3
He had already approached the office of the Registrar for a date of
08 September 2017 to the opposed
roll.
1.4
He further submitted that any possible prejudice by the applicants
can be alleviated by a tender of
wasted costs.
I
refused to grant the postponement which resulted in Mr Van Tonder
withdrawing as counsel for the said respondents.
[2]
After the respondents’ counsel’s withdrawal, Mr Jankowitz
asked for the prayers as appearing in the notice of motion
winding up
the first respondent, appointing Mr Bennie Keevy of Commonwealth
Trust (Pty) Ltd as liquidator with specified powers.
Costs were
ordered to be costs in liquidation. On 01 June 2017 the respondents
sought reasons for my decision to refuse the postponement.
[3]
The respondents have simultaneously filed an application for leave to
appeal against the whole of the judgment and the order
as to costs
that I granted on 26 May 2017 to the Full Bench of the Northern Cape
Division, alternatively, to the Supreme Court
of Appeal.
[4]
Without knowing what my reasons are for the decision to refuse the
postponement, the following are grounds upon which the respondent
will rely
for purposes of the application for leave to appeal.
That I erred:
4.1
In refusing to grant a postponement for purposes of filing opposing
affidavits;
4.2
I infringed on the rights of the respondents with reference to
section 34 of the Constitution of the
Republic of South Africa, 108
of 1996.
[5]
A historical background is necessary. On 30 January 2017 the
3
rd
and 4
th
respondents filed a notice to
oppose the application. In the notice of motion dated 06
December 2016 the following
was specified:
“
Take
further notice that if you intend opposing this application you are
required:
(a)
To notify the
applicant’s attorneys in writing within 5 (Five) days after
receipt hereof; and
(b)
Within 15
(fifteen) days after you have so given notice of your intention
to oppose this application, to file your answering
affidavits, if
any;
(c)
In your notice
of intention to oppose, provide an address contemplated in rule
6(5)(b) where you will accept notice and service
of all documents in
these proceedings.
Take
further notice that if no such notice of intention to oppose be
given, the application will be made on 24 February 2017 at
09:30 or
soon thereafter as the matter may be heard.”
[6]
On 24 February 2017 the matter came before Pakati J in the unopposed
motion and was postponed to 26 May 2017 to the opposed
roll and costs
were costs in the application.
[7]
The respondents had fifteen (15) court days within to file their
answering affidavits calculated from 30 January 2017.
They had
until 20 February 2017 to do so. Nothing was forthcoming. Hence the
enrolment for 24 February 2017 and later 26 May 2017.
On 26 May 2017
the matter came before me in the unopposed motion. Mr van Tonder, for
the applicant, requested the court to postpone
the application, but
could give no cogent reason as to why the respondents had not filed
the answering affidavits or brought a
substantial application for
postponement. In my view a postponement could not be granted as a
matter of course. The respondents
were in wilful disregard of the
rules of the court.
[8]
In
Myburgh Transport v Botha t/a SA Truck Bodies
1991
(3) SA 310
(Nm) Mahomed AJA outlined the relevant legal principles of
application in considering a postponement 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 ha
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 (Pty) 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 C 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 J Matatiele
Municipality
1965 (3) SA 131
(E) at 137.
[9]
The respondents have raised an infringement of their rights in terms
of s 34 of the Constitution. The section stipulates:
“
Access
to courts. – Everyone has the right to have any dispute that
can be resolved by the application of law decided in a
fair public
hearing before a court or, where approppriate, another independent
and impartial tribunal or forum.”
[10]
The respondents have not been deprived of their constitutional right
of access to court. The manner in which the respondents
have dealt
with this litigation amounts to an abuse of court process. In my view
the respondents should have filed a substantive
application timeously
as soon as they became aware of circumstances that prevented them
from complying with the Rules of the Court.
As stated
hereinbefore, they already served and filed their notice of intention
to oppose by 30 January 2017 and until 26 May 2017
no opposing papers
were in the court file; this clearly shows some tactical manoeuvre by
the respondents for the purpose of obtaining
an advantage to which
they were not legitimately entitled. This is a nonchalant approach
which seems to be overlooking interests
of the other party. The
respondents’ application has fallen woefully short of what is
required of an application for a postponement.
It is for these
reasons that I refused to grant the application for the postponement
and made the orders as set out in paragraph
2 of this judgment.
_____________________
MAMOSEBO
J
NORTHERN CAPE HIGH COURT
For
the applicants:
Senekal
Simmonds
c/o Duncan & Rothman
For
the respondent:
Etienne Naude
Attorneys
c/o Towell Groenewaldt Attorneys