About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 943
|
|
Phutuma Networks (Pty) Ltd v Telkom SA Limited (A182/2015) [2016] ZAGPPHC 943; [2017] 1 All SA 265 (GP) (16 November 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case number: A182/2015
Date: 16/11/2016
In the matter between:
PHUTUMA NETWORKS (PTY)
LTD APPELLANT
Vs
TELKOM SA
LIMITED RESPONDENT
JUDGMENT
TOLMAY, J:
[1] This appeal came before us with
leave of the Supreme Court of Appeal. The appeal is against two
orders and judgments by the
court
a quo
, namely:
1. An order refusing an application
for postponement on the second day of the trial that commenced on 20
May 2016, and
2. An order granting absolution from
the instance with costs in favour of the Respondent after the
dismissal of the application
for postponement.
[2] The Appellant contends that the
Court
a quo
erred in the refusal of the application for
postponement. It is also contended that the Court
a quo
could
and should not have granted the subsequent application for absolution
from the instance.
[3] The appeal record was not complete
as the transcript of the proceedings from the commencement of the
trial on 20 May 2013 until
the lunch adjournment on the same day was
not transcribed. The record is also incomplete in that the evidence
in chief of the Appellant’s
witness, Dr Scott, on the afternoon
of 20 May 2013 has been omitted and only the first and last pages of
the transcription of that
evidence has been included.
[4] The Respondent agreed that the
Court could, despite the aforesaid, entertain the appeal if certain
statements in the Respondent’s
heads of argument are accepted
as correct. Appellant agreed and the appeal proceeded on that basis.
I will later on in my judgment
deal with the contents of the heads of
argument that was admitted by the Appellant.
BACKGROUND
[5] The trial commenced on 20 May 2013
in the Court
a quo
as a special trial. Both parties appeared
and were represented by counsel and an attorney.
[6] There was apparently an opening
address and as per the agreement, pertaining to the incomplete
record. Mr Maritz (SC) for the
Respondent’s heads of argument
states that he, at this stage, drew the Court’s attention to
par 10 and 12 of the pre-trial
minute and the Respondent alerted the
Appellant to the fact that it had no evidence available to support
its pleaded case. Paragraph
10 and 12 of the pre-trial minute reads
as follows:
“
10. The defendant wishes to
record the following, and insists that its view be brought
pertinently to the attention of the Court
at the commencement of the
hearing:
10.1 The services which Network
Telex has provided to the defendant in the period January 2007 to
date consists only of the supply
of equipment and facilities to
distribute and transmit telexes and e-mail messages from
shore-to-ship via the Inmarsat C satellite
system (on which Network
Telex has leased capacity). Telkom has not caused any messages to be
transmitted via the Network Telex
link on behalf of ship agents or
any other private individuals since January 2007. The engaging of
Network Telex to provide this
link became necessary in an emergency
situation when British Telecoms in January 2007 terminated Telkom’s
use of an undersea
IPLA cable to the United Kingdom, and by means of
which Telkom previously had access to the Inmarsat satellite system
for purpose
of the distribution and transmission of telexes from
shore-to-ship.
10.2 The total amount which Telkom
has paid Network Telex for the provision of this satellite link to
distribute and transmit e-mails
and e-telex from shore-to-ship in the
period from January 2007 to date is less than R25 000-00. Telkom
has not contracted
with Network Telex to provide any of the
Telex/Gentex services which formed the subject matter of the tender
RPF 0112/2007.
10.3
The plaintiff has no evidence available which could
refute or contradict the defendant’s version as set out above,
as such
evidence simply does not exist.
(My emphasis)
10.4 If the service which has been
rendered by Network Telex to Telkom (being the provision of the
equipment and facility to distribute
and transmit e-mail and e-telex
messages from shore-to-ship via the Inmarsat C satellite) had been
rendered by the plaintiff,
the gross amount which the plaintiff
would have been paid to date would not have exceeded R25 000-00.
After deduction of the
costs which the plaintiff would have incurred,
the plaintiff’s profit, if any would have been negligible. The
plaintiff’s
claim for damages, which is premised on the
allegation that approximately 80% of the services specified in Tender
RFP 0112/2007
are being rendered by Network Telex (which the
defendant denies) and that had it not been for the involvement of
Network Telex
the tender would have been awarded to the plaintiff
(which the defendant denies) and that the plaintiff would have
performed the
services (which it alleges Network Telex is performing)
at a profit, is without any conceivable factual or legal foundation,
and
is spurious and vexatious.
10.5 The defendant gives notice
that it intends to seek a punitive order against the plaintiff in
this matter. The defendant challenges
the plaintiff to place on
record, with the concurrence of all its directors, whether or not it
would be in a financial position
to pay the defendant’s costs
of the action should the plaintiff be unsuccessful in the action to
be ordered to pay the defendant’s
costs.
ANSWER
:
(i)
The plaintiff
disagrees with the factual allegations made by the defendant in
paragraphs 1.1 to 1.4 but submits that it is a matter
for evidence
and the issues will be adjudicated upon by the above Honourable
Court.
(ii)
The plaintiff has
noted that the defendant will seek a punitive cost order against the
plaintiff in the matter, but denies, even
in the event of the
defendant being successful (which the plaintiff submits with respect
should not be the case) that the defendant
is entitled to a punitive
cost order.
(iii)
The defendant
availed itself of its remedies in terms of Rule 47 of the Uniform
Rules of Court by seeking from the plaintiff to
furnish security for
the defendant’s cost. When the plaintiff refused, an
application was brought by the defendants to the
above Honourable
Court to obtain an order that the plaintiff should furnish security
for the defendant’s cost, which application
was dismissed with
costs.
(iv)
Therefore, the
request of the defendant as contained in paragraph 1.5 has already
been adjudicated upon by the above Honourable
Court.
REQUEST FOR ADMISSIONS AND
PARTICULARS:
The defendant requests the
following admissions and particulars from the plaintiff in respect of
the pleadings:
12.1 With reference to paragraph 18
of the particulars of claim, is it the plaintiff’s contention
that the alleged legitimate
expectation would give rise to a
substantive right in law vesting in the plaintiff? If so, the
plaintiff is requested to identify
the substantive right which
allegedly vested in the plaintiff, and to identify, with reference to
the allegations in the particulars
of claim, how such right was
infringed?
Answer
:
(i)
The plaintiff point
out to the defendant that the plaintiff’s cause of action is
based not only on the provisions of paragraph
18 of its Particulars
of Claim, but that the cause of action as pleaded from paragraphs 3
to 26 should be read as a whole.
(ii)
The plaintiff
alleges in [paragraphs 3 to 26 of its Particulars of Claim that the
plaintiff has a cause of action based on a substantive
right
recognised in law as pleaded in paragraphs 3 to 26 of its Particulars
of Claim.
(iii)
The plaintiff has
referred to the provisions of Section 217 of the Constitution of the
Republic of South Africa, 1996, which of
course should be read
together with Section 33, 38 and 195 of the Constitution.
12.2 With reference to paragraph 19
of the particulars of claim the plaintiff is required to specify in
detail precisely which of
the service specified in the tender (and
which allegedly constitute approximately 80% of the services
specified in the tender)
are being performed or have at any time
since the publication of the tender been performed by Network Telex.
Answer
:
The services as set out in die
defendant’s “TECHNICAL SPECIFICATION FOR TELKOM’s
TELEX”_GENTEX” outsourcing
projects as contained in the
Executive Summary (ALL PAGE NUMBERS ARE REFERENCE TO THE BUNDLE AS
PREPARED BY THE DEFENDANT) read
with the scope of the tender, the
specifications read together with paragraph 5 and furthermore read
with paragraph 6.
12.3 With reference to paragraph 20
of the particulars of claim the plaintiff is required to specify the
facts and legal principles
on which it relies for the conclusion of
unlawfulness and illegality alleged in this paragraph.
Answer
:
For the reasons pleaded by the
plaintiff in its Particulars of Claim and specifically as contained
in the following:
(i)
Paragraph 16;
(ii)
Paragraph 17;
(iii)
Paragraph 18;
(iv)
Paragraph 19;
(v)
Paragraph 21;
(vi)
paragraph 22;
(vii)
paragraph 23;
(viii)
paragraph 24;
(ix)
paragraphs 25 and
(x)
paragraph 26
12.4 With reference to paragraph 21
of the particulars of claim, does the plaintiff concede that as a
matter of law it would have
no claim for damages against the
defendant on the grounds that the tender should have been awarded to
the plaintiff unless the
plaintiff proves that the non-award of the
tender to the plaintiff was due to corruption, dishonesty or mala
fine conduct on the
part of the defendant. The plaintiff is invited
to consider the numerous decisions of the SCA and the Constitutional
Court to this
effect.
Answer
:
No. The plaintiff is of the view
that each matter should be considered on its own facts and merits,
and the plaintiff therefore
contends, even if no corruption,
dishonesty or mala fide conduct is found on the part of the
defendant, that the plaintiff still
has a cause of action against the
defendant.
12.5
With reference to paragraph 21 of the particulars of claim,
the plaintiff is required to specify who, acting on behalf of the
defendant,
allegedly acted corruptly, allegedly acted dishonestly,
allegedly acted in bad faith, allegedly acted unethically, and
allegedly
acted illegally.
Answer
:
The defendant does not require the
requested information in order to prepare for the matter.
(My emphasis)
12.6
The defendant contends that it is entitled to this
particularity in order to know with whom consultations must be held
and who the
witnesses are whom the defendant might be required to
call to refute these allegations.
Answer
:
The defendant knows who has been
involved with the matter, and the defendant therefore does not
require any information in order
to assist it to prepare for the
matter.
(My emphasis)
12.7 With reference to paragraph 17
of the particulars of claim, the plaintiff is required to stipulate
when the validity date of
the tender was extended, by whom acting on
behalf of the defendant the validity date was extended, whether the
extension was communicated
in writing (if so, a copy of such written
extension is required), and to stipulate to what date the validity
date of the tender
was extended in each case.
Answer
:
(i)
The plaintiff does
not have any knowledge regarding the internal workings of the
defendant and the extensions of the validity period
of the tender.
(ii)
The defendant’s
representatives however continued to have clarification meetings and
other contact and communication with
the plaintiff regarding the
tender and the final clarification session was held between plaintiff
and defendant on 4 December 2008.
(iii)
The defendant only
notified the plaintiff or/on about 10 June 2009 that no award has
allegedly been made in respect of the tender,
and that the validity
period of the tender has expired.
(iv)
On/or about 12
March 2009 and in a Memorandum (pp 511-512, Vol 2 of the bundle) the
defendant’s Executive Strategic Sourcing
and BEE recorded that
the RFP was still in the adjudication process and no award has been
made as yet.
(v)
On/or about 29
April 2009 the defendant still corresponded with the plaintiff
regarding the tender.
(vi)
A meeting was held
by the defendant’s Procurement Review Council on/or about 8 May
2009 and it was only during this meeting
that a recommendation was
made that RFP 0112/2007 be cancelled.
12.8 Does the plaintiff admit that,
if the validity date of the tender was not extended (as has been
alleged in paragraph 17 of
the particulars of claim) the plaintiff’s
bid or proposal was open for acceptance only for a period of 180 days
from 16 January
2008.
Answer
:
No, and the plaintiff refers the
defendant to its answer in paragraph 12.7 hereof.
12.9 Does the plaintiff admit the
allegation made in paragraph 17.2 of the plea?
Answer
:
The admission is not made.
12.10 Does the plaintiff
admit the allegations made in paragraph 14.2 of the plea?
Answer
:
Insofar as the allegation is in
consonance with the provisions of the RFP it is admitted, although
the plaintiff therefore does
not derogate at all from the allegation
as made in its Particulars of Claim.
12.11 Does the plaintiff
admit the allegations made in paragraph 25.1 of the plea?
Answer
:
The admission is not made.
12.12 Does the plaintiff
admit the allegations made in paragraph 25.2 of the plea, or any of
such allegations?
Answer
:
The admission is not made.
[7] After the opening address Dr
Scott, the director of the Appellant was called as the first witness
on behalf of the Appellant.
It was, according to the admitted parts
of the heads of argument, during the evidence of Dr Scott that
Respondent’s counsel
successfully objected to the admissibility
of speculative allegations made by Dr Scott, not based on his
personal knowledge as
to fraud, dishonesty and corruption on the part
of unidentified Telkom officials. It must also be accepted, as per
the agreement
between counsel as referred to above, that counsel for
Respondent challenged Appellant’s counsel to place on record
whether
the Appellant had witnesses available and intended to lead
evidence to support these allegations and the appellant’s
pleaded
case. Appellant’s counsel was unable to give such
assurance.
[8] The Court adjourned at 15:52 on 20
May 2013 for the day. At that point Dr Scott’s evidence was not
concluded. The next
morning when the trial resumed the entire legal
team of the Appellant withdrew. Mr Erasmus SC, who appeared for the
Appellant,
placed on record that they were withdrawing because they
could not carry out their mandate. At this point counsel did not
reveal
the reasons for the inability to execute their mandate due to
attorney/client privilege.
[9] When the legal team of the
Appellant withdrew Dr Scott’s evidence was not concluded and
the Appellant’s case was
not closed.
[10] At that point Dr Scott requested
a postponement, which Mr Maritz SC opposed. Mr Maritz SC challenged
the Appellant to bring
a substantive application or tender evidence
to support its request for a postponement. After lengthy argument the
matter stood
down until 22 May 2013 to allow Dr Scott, to obtain
legal representation and to bring an application for postponement.
[11] On 22 May 2013 the Appellant
appeared with a new legal team and brought an application for
postponement on the grounds set
out in an affidavit deposed to by Dr
Scott. No opposing affidavit was filed by the Respondent.
[12] On 22 May 2013 Seymore Du Toit
Basson Pretoria Inc served a notice of appointment as attorneys of
record on the attorneys for
the Respondent. The court’s
attention was drawn to the notice.
[13] No notice of motion was filed but
an affidavit was filed in support of the application for
postponement. The following issues
were
inter alia
raised by
Dr Scott in this affidavit:
a. Dr Scott stated that neither he nor
the Appellant was made aware of the fact that the legal
representatives encountered difficulties
that rendered them unable to
carry out their mandate prior to Tuesday 21 May 2013. Dr Scott was
still testifying and was only advised
about the position shortly
before it was put on record.
b. Dr Scott waived Appellant’s
legal privilege and set out the reasons why the legal team withdrew,
he stated that:
i. Appellant planned to call a number
of witnesses that would testify to the fact that Respondent acted
unlawfully, unethically,
unfairly and in bad faith in its dealings
with the Appellant. These witnesses would, according to him,
substantiate the necessary
averments in the Appellant’s case;
ii. The Appellant’s attorney did
not formally subpoena these witnesses but relied on informal
arrangements with them that
they will testify; and
iii. Appellant’s senior counsel
requested on Monday 20 May 2013 to have these witnesses available on
Tuesday morning. On Tuesday
it transpired that the witnesses that
were requested to attend Court expressed their reluctance and refused
to adhere to the informal
request to attend Court.
[14] It is important to note that,
according to this affidavit, Dr Scott was only requested by his legal
representatives to have
the witnesses available on 20 May 2013, which
was the day that the trial commenced.
[15]
Before
the newly appointed senior counsel on behalf of the Appellant, Mr
Cilliers SC, could move the application for postponement
on the basis
of the aforementioned affidavit, Mr Maritz SC on behalf of the
Respondent addressed the court. During this address
it was placed on
record that the Respondent elected to oppose the application for
postponement without filing an answering affidavit
in response to the
Appellant’s affidavit in support of the postponement.
[16] Counsel for the
Respondent also advised the Court that he had a discussion with Mr
Erasmus SC. The record reads
as follows:
“
MR MARITZ: Having
regard to the fact that the privilege in the communications with the
previous legal advisors was waived,
I telephoned Advocate Erasmus and
I communicated to my learned friend and his client in his presence,
what Advocate Erasmus had
relayed to me, having regard to the waiver
of the privilege. He has never consulted with any other
witness, except Dr Scott
[?]. He does not know who any of the
other witnesses are and he does not know whether they are in fact
able to give any positive
contribution to the case. He has
nothing more than the allegation of Dr Scott, that they can do so.
Otherwise it is
so, he impressed on Dr Scott, it is necessary for the
witnesses to be produced so that he can consult with them and decide
whether
they can support the allegations. The witnesses were
never forthcoming. So that I relayed to him.
COURT: Thank you.
MR MARITZ: So in the light of
that, we accept that they withdrew because they had no evidence
available to support the case.
[17] In opposition to the
application for postponement it was suggested from the bar that the
content of the Appellant’s
affidavit was false because the
witnesses which the Appellant testified that it wished to call did
not exist.
[18] It was specifically
suggested from the bar that the Appellant’s previous legal
representatives and specifically
Mr Erasmus SC did not even know if
the witnesses which the Appellant intended to call in fact existed.
The submission was
made from the bar as follows:
“
MR
MARITZ: Now they tell, now Dr Scott tells Your Ladyship what
happened after that day. They then said to him you had
better
get the witnesses here, because Counsel had never seen the
witnesses. Counsel did not even know if the witnesses existed
and Counsel had no knowledge whatsoever as to whether the evidence
was in fact available.”
[19]
The discussion between Mr Maritz SC and Mr Erasmus SC did not
contradict Dr Scott’s submission that he was only requested
on
the day that the trial commenced to have the witnesses available the
following day. It also did not dispute the fact that Dr
Scott was
only informed of the fact that his legal representatives were unable
to execute their mandate on 21 May 2013. One would
have hoped that a
proper consultation in preparation of the trial would have revealed
potential problems in the presentation of
the case long before the
commencement of the trial. Even on what Mr Erasmus SC conveyed to Mr
Maritz SC there is no indication
that Appellant, or Dr Scott in
particular, was timeously requested to identify the witnesses or
asked to make them available.
[20] Mr Cilliers SC, on
behalf of the Appellant placed on record that he was briefed late on
the previous afternoon
to move the application for postponement, and
that he did not have the opportunity to study the merits of the case
set out in the
pleadings.
[21] When the application
for postponement was moved it was pointed out by Mr Cilliers SC to
the court that the Appellant’s
previous legal team, who
withdrew on the previous day i.e. the 21
st
of May 2013,
came on record on 29 April 2013. This would at least have given
them three weeks to prepare for the trial and
to identify any
difficulties that could have prevented them to execute their mandate.
[22]
Mr Maritz SC insisted that the identities of the witnesses that the
Appellant intended to call be disclosed during his argument
in
opposition to the postponement. Mr Cilliers SC informed the court
that he had been presented in court with an affidavit of a
candidate
attorney from the previous attorneys’ offices which identified
certain witnesses. He also told the Court that he
was instructed not
to reveal their identities because of fears of intimidation.
[23] It was pointed out by Mr Cilliers
SC, to the Court that the suggestion that no evidence was available
to prove the Appellant’s
claim was incorrect and that the
correct position is rather that the witnesses necessary to
substantiate the content of the particulars
of claim were not
available, due to the fact that they were not subpoenaed.
[24] After argument the Court refused
the application for postponement. Mr Cilliers SC who argued the
postponement withdrew. Junior
counsel was appointed to note the
judgment and withdrew after the noting of the judgment.
[25] Respondent then proceeded with an
application for absolution from the instance. At this point Dr Scott
and Mr Day, his attorney,
were present. The Court proceeded to grant
absolution from the instance. The record indicates that this was done
without engaging
Dr Scott or his attorney who were still present.
[26] In the judgment the
Court recognised that the affidavit in support of the application for
postponement and more
specifically the facts set out therein were
central to the Appellant’s reasons for asking for a
postponement. The Court however
recorded and emphasised what was
relayed by Mr Maritz SC to the court, from the bar, in respect of Mr
Maritz SC’s telephonic
conversation with Mr Erasmus SC as
follows:
“…
he
had spoken personally to Mr Erasmus, the plaintiff’s erstwhile
counsel, who indicated to him that the only witness that
he had
consulted with during preparation for trial, was Dr Scott and that no
other witness was made available to him by the plaintiff,
despite the
say so of Dr Scott that the plaintiff had other witnesses.”
[27] The Court also found
as follows:
…
It
has become clear in this matter that the plaintiff’s legal
representatives had withdrawn because the plaintiff does not
have the
evidence available to prove the allegations made out in its
particulars of claim. The Plaintiff’s affidavit
in
support of the application for postponement is, at best, vague on the
question of the witnesses that plaintiff intends to call
to prove its
case, and specifically on what aspects of its case they will give
evidence.”
[28] The Court rejected the
Appellant’s explanation as to why the identity of its witnesses
was not disclosed to Court.
The explanation was rejected
apparently because it was not given under oath but merely recorded
from the bar.
One has to note that Mr Maritz
SC’s remarks, which were also not under oath, were however
accepted.
[29]
The Court concluded that:
“
... Having regard to the
allegations of the Appellant in its affidavit in support of the
application for postponement, its evasive
response to questions posed
by the Defendant in the pre-trial minute and its failure to accept
the invitation of the Defendant
to disclose the names of the
witnesses it intends to call, the relevance of the testimony which
they will give and the names of
those witnesses who are refusing to
testify, I am compelled to the conclusion that the Plaintiff will be
unable to present any
direct or circumstantial evidence that there
was fraud, corruption or bad faith in the evaluation by the Defendant
of the tenders.”
[30] The appellant attached a
memorandum by Mr Erasmus SC and his junior to the application for
leave to appeal. This memorandum
only came to the knowledge of the
Appellant’s attorney on 27 May 2013. This memorandum was not
before the Court. It accordingly
falls within the category of new
evidence which was not before the Court
a quo
.
[31]
Section 19 (b) of the Superior Court’s Act No 10 of 2013
provides that a division of the High Court exercising appeal
jurisdiction may in an appeal “
receive
further evidence”
.
In the matter of
Dormell
Properties vs Renasa Insurance NNO
[1]
the
court held (with reference to the provisions of section 22 (a) of the
now repealed Supreme Court Act 59 of 1959) that
a court of appeal may
admit new evidence, but that the power should be exercised sparingly
and only if the further evidence is
reliable, weighty and material
and presumably to be believed. In addition, there must be an
acceptable explanation for the
fact that the evidence was not adduced
in the trial court.
[32] Counsel for the Respondent
submitted that it would be in the interest of justice for the Court
to take the content of that
memorandum into account, but only to the
extent that it clarifies, according to Respondent, certain
ambiguities in Dr Scott’s
affidavit, and established that
counsel at no time consulted with any witnesses other than Dr Scott.
I am of the view that this
approach will not be just. Either the
memorandum should be considered in totality or not at all. The Court
should not rely on parts
of the memorandum which suits a certain
party’s case and ignore the rest. Such an approach will be
manifestly unjust. In
this memorandum, several people are identified
that are potential witnesses. At the very least it seems that Mr
Erasmus SC was
aware of who the Appellant intended to call which
contradicts the statement from the bar that Mr Erasmus SC was unaware
of the
identity of any of the witnesses.
THE REFUSAL OF THE POSTPONEMENT
[33]
It is trite that a trial Judge has a discretion as to whether a
postponement should be granted or refused. In
Myburgh
Transport v Botha t/a SA Truck Bodies
the applicable legal principles pertaining to the consideration of an
application for postponement were set out as follows
[2]
:
“
The legal principles of
application
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 (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) 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 cost or any other ancillary
mechanism. (Herbstein and Van Winsen
The civil Practice of the Superior Courts in South Africa 3
rd
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
1962 (2) SA 413
(C) at
418; Tarry & Co Ltd v Matatiele Municipality
1965 (3) SA 131
(E)
at 137.
[34]
It is trite that a party is not as a matter of right entitled to a
postponement and should be able to show
prima
facie
that if it is granted the indulgence it will be able to place facts
before the Court which will constitute a ground of opposition
to the
relief sought.
[3]
[35] In this matter the Appellant was
not forewarned by his legal representatives that they foresaw
difficulty in executing their
mandate. It is uncontested that Dr
Scott, the director of the Appellant was only informed of their
decision shortly before they
placed on record that they are
withdrawing and that was after the trial had commenced. The record
reflects that the team that appeared
at the trial came on record on
29 April 2013, nearly a month before the trial date. Any difficulty
with the presentation of the
case should have been addressed by them
before the trial commenced.
[36] In this regard it must also be
considered that the pre-trial took place on 10 May 2013, ten days
before the trial commenced
and in this pre-trial it was recorded that
the Respondent was of the view that:
a. the Plaintiff has no evidence which
could refute or contradict the Defendant’s version; and
b. the Defendant specifically asked
who Plaintiff alleges acted corruptly, dishonestly in bad faith,
unethically and illegally.
The answer to this question given by the
Plaintiff’s legal team was merely that the Defendant does not
require this information
in order to prepare for the trial. The
Defendant persisted that it needs the information and Plaintiff’s
legal representatives
answered that the Defendant knows who has been
involved and therefore does not require this information.
[37] Appellant’s legal
representatives should at the very least at that point have
determined who the witnesses were that
were required to testify and
should have subpoenaed them. One would have hoped that at this stage
already they would have realised
that this point will be raised at
the trial and would have made arrangements to ensure their presence
at Court.
[38] The legal representatives should
therefore have been well aware of any potential inability to execute
their mandate long before
the trial commenced. The Appellant was left
in a predicament as a result of the withdrawal of his legal team as
new representatives
had to be found overnight. It is obvious that
these representatives would not be able to prepare on the merits but
would only be
able to prepare the application for postponement.
[39] Even if one accepts that the
contention by Appellant’s legal representatives that they need
not reveal the identity of
the witnesses that they intended to call
was incorrect, Appellant relied on his legal team for advice There is
nothing to indicate
that the Appellant was informed that it was
obliged to reveal the identity of witnesses but refused to do so.
[40] In the light of the fact that the
Appellant was left in the lurch by his legal team a postponement
should have been granted.
The Court
a quo,
in my view,
misdirected itself when it did not take in consideration the
Appellant was placed in an untenable situation due to the
late
withdrawal of its legal representatives. The Court also misdirected
itself when it found that the Appellant had no evidence
to prove its
case. No exception was ever raised by the Respondent, consequently at
least on the papers Appellant revealed a cause
of action. There was a
dispute pertaining to the availability and/or existence of witnesses
to support the claim. Mr Cilliers SC
however referred to information
contained in an affidavit about the identity of witnesses and for the
Court to infer from Mr Maritz
SC’s submissions only that no
evidence could be led to sustain the Plaintiff’s cause of
action amounts in my view to
a misdirection.
[41] It is trite that a Court should
be slow to refuse a postponement where the reasons for the
postponement are explained. In the
final analysis this predicament
would not have arisen if Appellant’s legal team did not
withdraw. In my view the postponement
should have been granted and
Appellant should have been ordered to pay the costs of the
postponement.
ABSOLUTION FROM THE INSTANCE
[42] I only deal with this aspect if
it is found that I erred in my finding pertaining to the
postponement, because it follows that
if the postponement is granted
that the order granting absolution from the instance should be set
aside. If however another Court
should find that the postponement was
correctly refused I deal with the order of absolution from the
instance.
[43]
An order of absolution from the instance is generally not appealable
as it is not final in its effect and the order is still
susceptible
to being revisited and rescinded.
[4]
The consequences of the award of absolution from the instance are
that Appellant would be entitled to raise the issue between it
and
the Appellant again in future.
[5]
I am accordingly of the view that standing on its own the order of
absolution from the instance is not appealable.
[44] However if I am wrong pertaining
to the appealability of the order I am of the view that the order for
absolution should not
have been granted.
[45]
When the trial was called on 20 May 2013 the Appellant was
present and the trial of the matter commenced. The first witness on
behalf
of the Appellant was still testifying and his testimony in
chief was incomplete when the Appellant’s entire legal team
withdrew
on 21 May 2013 i.e. the second day of trial.
[46]
After the withdrawal of the Appellant’s entire legal team the
Court engaged the director of the Appellant,
i.e. Dr Scott and after
such engagement, at the request of Dr Scott, allowed the matter to
stand down for the Appellant to obtain
the services of new legal
representatives.
[47] Prior to the matter
standing down for the aforementioned purposes on the 21
st
of May 2013 counsel for the Respondent pointed out to the Court that
the matter was part-heard, at the stage when the court allowed
it to
stand down to the 22
nd
May 2013 for purposes of the
Appellant to make application for a postponement.
[48] On 22 May 2013 new
attorneys entered appearance on behalf of the Appellant and stated by
means of the notice (that
was brought to the attention of the Court
)
that they entered appearance as attorneys of record for purposes of
the action as a whole.
[49] When the
aforementioned notice of appointment as attorneys of record was
served and made available to the Court
on 22 May 2013 the Appellant
was duly represented notwithstanding the withdrawal of its entire
legal team the day before.
[50] After presenting
argument in respect of the application for postponement Mr Cilliers
SC obtained the leave of the
Court to absent himself under
circumstances where he was only briefed to move the application for
postponement on behalf of the
Appellant. Counsel who noted the
judgment also excused himself.
[51] The attorneys on
behalf of the Appellant and more specifically Mr Day and Dr Scott of
the Appellant remained present
in court. At that stage Dr Scott was
still sworn in as a witness whose testimony remained unconcluded. The
presence of Mr Day and
Dr Scott was pointed out to the Court by Mr
Maritz SC.
[52]
Immediately after their presence was pointed out and placed on
record, Mr Maritz SC proceeded with an application
for absolution
from the instance in terms of Rule 39 of the Uniform Rules of Court.
The Court dealt with the application without
engaging the Appellant’s
director, Dr Scott, or the Appellant’s attorney, Mr Day.
The
Court then proceeded to grant the application for absolution from the
instance with costs.
[53] The Appellant argued that the
jurisdictional requirements for an application for absolution from
the instance in terms of Rule
39(3) of the Uniform Rules of court
were not satisfied. This rule reads as follows:
“
if, when a trial is called,
the defendant appears and the plaintiff does not appear, the
defendant shall be entitled to an order
granting absolution from the
instance with costs, but may lead evidence with a view to satisfying
the court that final judgment
should be granted in his favour and the
court, if so satisfied, may grant such judgment”.
[54] It was also argued that
Appellant’s case was not closed at the point that the
application was brought.
[55]
The Appellant was not only physically present in the person of Dr
Scott, but still represented by Mr Day and as such Appellant
was not
absent, which would have allowed for absolution from the instance to
be granted. Mr Day at no stage withdrew as attorney
of record.
Appellant was both represented and present when absolution was
granted.
[6]
[56]
In my view Appellant should have been given at least an opportunity
to consider its position after the postponement was refused
as was
done in
Katritsis
v De Macedo
.
[7]
Especially in the light of the fact that Dr Scott could not represent
the Appellant.
[8]
Neither Dr Scott nor Mr Day was given an opportunity to consider
their position or to address the Court. Mr Day or Dr Scott could
not
be expected to interrupt the proceedings to obtain a hearing. The
Court should have created that opportunity as it did on the
previous
day when Dr Scott’s team withdrew.
[57] In the light thereof I am of the
view that the Court
a quo
misdirected itself when it granted
absolution from the instance.
[58] Consequently I make the following
order:
58.1 The appeal
is upheld;
58.2 The orders
of the Court a quo are set aside and substituted with the following;
58.3 The
application for postponement is granted and Appellant is ordered to
pay the wasted cost occasioned by
the postponement;
58.4 The order of
absolution from the instance is set aside; and
58.5 Respondent
is ordered to pay the costs of the appeal.
______________________
R G TOLMAY
JUDGE OF THE HIGH COURT
______________________
N RANCHOD
JUDGE OF THE HIGH COURT
_____________________
L ADAMS
ACTING JUDGE OF THE HIGH COURT
DATE OF
HEARING:
7 SEPTEMBER 2016
DATE OF JUDGMENT:
ATTORNEY FOR APPELLANT:
DAY ATTORNEYS INC
COUNSEL FOR APPELLANT:
ADV G F HEYNS
ATTORNEY FOR RESPONDENT:
HOGAN LOVELLS
(SOUTH AFRICA)
COUNSEL FOR RESPONDENT:
ADV N G D MARITZ (SC)
[1]
2011 (1) SA 70
at par 21
[2]
1991 (3) SA 310
(NMS) on 314-315
[3]
Manufacturers Development Co (Pty) Ltd v diesel & Auto
Engineering Co and Others 1975(2) SA 776 (W); Motaung v Makubela &
Another NNO; Motaung Mothiba, NO 1975(1) SA 618 (O)
[4]
Zweni v Minister of Law and Order 1993(1) SA 523 A at 532; Pitelli v
Everton Garden Projects CC 2010(5) SA 171 SCA
[5]
Irish & C Inc (Now Irsih & Menell Rosenberg Inc) v Kritzos
1992(2) SA 623 (W)
[6]
De Allen v Baraldi t./a Embassy Drive Medical Centre
2000 (1) SA 390
(T); Meer Leather Works Co v Afican Sole and Leather Works (Pty)
Limited 1948 (1) SA 321 (T)
[7]
1966(1) SA 613 (A) on p 616-617
[8]
Manong
& Associates (Pty) L:td v Minister of Public Works and another
2010(2) SA 167 (SCA)