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[2016] ZAGPPHC 1032
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South African Human Rights Commission v Dublila (36314/13) [2016] ZAGPPHC 1032 (29 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(
NORTH
GAUTENG HIGH COURT, PRETORIA
)
CASE
NO
: 36314/13
DATE
:
29-08-2016
In
the matter between
SAHRC Applicant
and
JQ
DUBLILA Respondent
JUDGMENT
MOSHIDI
J
: I have a difficult decision to make in this matter. I have
before me an application... An interlocutory application for the
postponement
of the trial set down from today 29 August 2016 up to 9
September 2016. The postponement application is brought by, what I
shall
call simply, the respondent in the Equality court proceedings,
or the applicant in the consolidated constitutional challenge., ie.,
Mr. Jon Qwelane. The grounds for the postponement are almost
exclusively the ill health of Mr. Qwelane. The present medical
condition
of Mr. Qwelane has been fully set out in the medical
reports and confirmatory affidavit of his treating physician, Dr.
Sedat.
The
interlocutory application is opposed by the South African Human
Rights Commission and the second
amicus curiae
, ie, the
Psychological Society of South Africa. I have, during the
adjournment, given careful consideration to both the merits
and
demerits of the application and the opposing submissions made in
respect thereof. Indeed the only negative aspect of the application
is the fact that the founding affidavit in support of the application
for a postponement, was served on the opposing parties last
night, I
believe, or early this morning, but at least also given to the court
this morning before the commencement of the proceedings.
However
Mr. Qwelane's attorneys of record had made the interested and
affected parties aware of his health condition already by
last week
Thursday 26 August 2016 and indicating the possibility, or necessity
for a postponement of the trial. As a consequence,
some of the
parties involved in the litigation have indicated that the
application will either not be opposed today, or they will
abide by
the court's decision. The concessions, in my view, have been well
made and are reasonable.
The
ill health of Mr. Qwelane as described by Dr. Sedat, not only has a
long history, but it is also grave on the face thereof.
The prognosis
of the patient is also not on the bright side. I am not persuaded
that any further and independent medical examination
of Mr. Qwelane,
as suggested in argument, will bring him to the trial today, or even
in the immediate future. I am equally not
persuaded that any
answering affidavits opposing the application without the physical
examination of Mr. Qwelane will likely, or
probably alter his
physical and mental condition.
It
is not unusual for trials to be postponed, or adjourned due to the
ill health of a party, or a witness thereto. See for example
Myers
v Greef
which is spelt M.Y.E.R.S. v Greef, G.R.E.E.F
1950 (1) SA
105
(E). The principles regarding the consideration of applications
of this nature have also been well spelt out in cases such as
Mineback Transport v Botha trading as Truck
Bodies
1991
(3) SA 310
(Nm) Supreme Court at 314 to 315.
In
the exercise of my discretion I have considered all the aspects of
this matter including the question of possible prejudice to
the other
parties as well as the main consideration which is the interest of
justice and the reasons for Mr. Qwelane's absence
and inability to be
involved in the proceedings today.
I
have come to the difficult conclusion that the application is indeed
well made and grounded. It is also based on common human
nature, or
what is commonly called,
ubuntu
, or
botho
. It is
in my view a
bona fide
application. It does not appear at all
to me that the application is a delaying tactic, or in order to gain
some sort of advantage
over the other opposing parties. I am rather
loath to be presiding over a trial whereat one party with significant
interest in
the litigation, has to be so-called dragged out of their
sick bed in order to proceed, or participate in the proceedings. For
these reasons the application must succeed at this stage. I also find
that the alternative means of proceeding with the trial now,
are
truly more practical, or viable in the circumstances.
There
should be no order as to the costs of the application which, in any
event, is a discretionary matter. In the result I make
the following
order:
ORDER
1. The trial is postponed
sine die
.
2. There is no order as to costs.