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[2015] ZAGPPHC 262
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Ilze Eichstadt Attorneys v Debt Rescue CC (36774/13) [2015] ZAGPPHC 262 (8 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 36774/13
DATE:
8/5/2015
In
the matter between:
ILZé
EICHSTäDT
ATTORNEYS
...............................................................................................
Plaintiff
and
DEBT
RESCUE
CC
..................................................................................................................
Defendant
(Registration
Number: 2008/168319/23)
JUDGMENT
POTTERILL
J
[1]
The applicant, the defendant in the action, is applying for a
postponement of a trial that was set down by the defendant.
The
applicant is also in terms of Rule 6(5) of the Uniform Rules of Court
applying that portions of the opposing affidavit of the
respondent,
the plaintiff in the trial, of the substantive application for
postponement be struck out.
[2]
For ease of reference I refer to the applicant as the defendant and
the respondent as the plaintiff.
[3]
The substantive application for postponement was served on the
plaintiff on 30 April 2005. The trial date was set down for 6
May
2015. On 4 May 2015 the plaintiff served its answering
affidavit. This answering affidavit was e-mailed to the defendant
at
17:09 on the 4
th
of May 2015. It was also served and filed on the defendant on the 5
th
of May 2015. Upon perusal it was the opinion of the defendant
that the opposing affidavit contained defamatory and/or scandalous
and/or vexatious and/or irrelevant and prejudicial allegations. On 5
May 2015 a letter from the defendant’s attorney to the
plaintiff’s attorneys of record was e-mailed requesting them to
withtract such matter before 09:00 on 6 May 2015, failing
which the
applicant would proceed with an application to strike out. The
replying affidavit and the application for strike-out
were sent by
e-mail to the attorney of record of the plaintiff after close of
business. This was done as the trial was the next
day.
[4]
Background and chronology of events
4.1
On 18 November 2013 the pleadings were closed.
4.2
On 29 November 2013 the defendant requested the plaintiff to
discover.
4.3 The defendant
enrolled the action on 30 January 2014 for hearing on 6 May 2015.
4.4 On 4 February
2015 the plaintiff gave notice of an amendment to the particulars of
claim which amendment was effected by service
of amended pages on 3
March 2015. The pleadings were accordingly reopened. On 2
April 2015 the plaintiff started calling
to re-arrange a pre-trial.
On 9 April 2015 the pre-trial was rescheduled from 9 April 2015 to 20
April 2015.
4.5 On 20 April 2015
(9 days before trial) the plaintiff e-mailed a discovery notice
wherein 1 326 items are discovered of which
more than a 1 000
represented client files forming part of the quantum calculation.
4.6
On 21 April 2015 the plaintiff files and serves her discovery notice.
4.7
On 22 April 2015 (6 days before trial) a pre-trial conference was
held.
4.8 At this
pre-trial conference the plaintiff gave notice of a further amendment
of the plea to the defendant’s counterclaim.
4.9
Once again the pleadings were thus reopened.
4.10 In the
defendant’s Rule 37(4) list it was requested that a copy of the
trial bundle be provided on or before 20 April
2015 for purposes of
preparation.
4.11 The defendant
requested copies of numerous items on the plaintiff’s discovery
list. The plaintiff requested payment
for photocopying and once
payment was made on 21 April 2015, the plaintiff advised the
defendant that the items sought to be copied
were in the plaintiff’s
trial bundle. This trial bundle was then served on 30 April
2015 (3 court days before trial)
on the defendant.
4.12
The defendant had however served its application for postponement on
30 April 2015 before the aforesaid trial bundle was received.
On 28
April 2015 the defendant filed its consequential amendment to the
plaintiff’s amendment of 3 March 2015.
[5]
It was thus submitted on behalf of the defendant that the pleadings
haven’t closed; the plaintiff is not objecting
to the
amendment of the plea on the counterclaim, but once effected, will
require a replication. The pleadings are thus not
closed.
[6]
The plaintiff’s late discovery has prejudiced the defendant in
its preparation and therefore the matter should be postponed.
[7]
Once pleadings have closed a sensible separation of issues can be
determined.
[8]
In answer thereto the plaintiff set out that the matter is in fact
ripe for hearing and the defendant is the party acting
mala fide
in bringing the application for postponement because the
defendant is in fact not ready for trial. The following reasons
were
set out for this averment:
8.1 The plaintiff in
March 2015 filed an amendment to the particulars of claim and the
amended plea of the defendant was only filed
on 29 April 2015.
8.2 The plaintiff
already on 2 April 2015 enquired to arrange a pre-trial conference
and a date for 9 April 2015 was arranged.
The defendant’s
attorney later changed the date to 20 April 2015 due to the
non-availability of the senior counsel of the
defendant; but it
only transpired on 22 April 2015.
8.3 Mr. Day,
attorney for the defendant, had on 7 April 2015 informed plaintiff’s
attorney that Labuschagne SC was briefed,
but this was submitted as
doubtful because Labuschagne SC’s secretary was on 8 April 2015
unaware of this. Thus Labuschagne
SC was only briefed on short
notice; another indication that the defendant is not ready for
trial. Veracity for this statement
was found in paragraphs 4.5
and 4.6 of the founding affidavit which reads as follows:
“
4.5
The plaintiff, during the pre-trial conference, also indicated that
the plaintiff will place reliance on a core bundle to be
utilised as
a trial bundle, consisting of approximately 150 pages. In this
regard the plaintiff undertook to make the draft
trial bundle
available to the defendant’s representatives by no later than
the morning of 28 April 2015.
4.6
The undertaking to make the draft trial bundle available to the
defendant’s representatives was made in circumstances
where it
was recorded and placed on record that the
defendant
had very little limited time
in
which to prepare if it was to proceed to trial. The plaintiff’s
representatives was specifically informed that the defendant’s
representatives have set aside the 28
th
and 29
th
of April 2015 for purposes of preparation for trial.”
[plaintiff’s emphasis]
8.4 It is common
cause that the plaintiff’s trial bundle would be delivered to
the defendant on 28 April 2015 and that it
was forwarded to the
defendant but after this substantive application for postponement had
been drafted and e-mailed. The
plaintiff is however not to
blame for this situation as the defendant did not pay timeously for
the copies of the documents.
8.5 The defendant’s
reliance on late discovery of the documents is
mala fide
because
they are aware and able upon mere perusal of each and every item
contained therein to identify what the item is and is in
fact au fait
with that item. Not in the pre-trial minutes, nor in the
letter, neither at the stage when the discovery notice
was delivered
did they cry prejudice. This is all a clear indication that
this is not a good reason for a postponement and
is brought as an
afterthought.
8.6
As for the amendment of the plaintiff’s plea to the
counterclaim it was already made clear at the pre-trial conference
that if there was an objection to such an amendment that the
plaintiff would not proceed with the amendment. In support of
this contention I was referred to a letter:
“
Indien
die voorgestelde wysiging van die pleit jou kliënt belg sal ons
dit ernstig oorweeg om nie daarmee voort te gaan nie
en dit as ‘n
kwessie vir argument aan die einde van die verrigtinge laat of anders
na goeddunke tydens die verhoor daarmee
handel.”
This
letter was dated the 24
th
of April 2015.
[9]
In reply the plaintiff had set out that in fact all the documents
that were discovered was upon perusal of the now received
trial
bundle - the “would be discovered” documents that they
had paid for. It was submitted it was the first
time in history
that a party had to pay for another party’s trial bundle.
[10]
In reply the defendant explained that it could not discover because
it could only discover what is in its possession.
The plaintiff
had retained the files due to non-payment therein and therefore only
upon receipt of the files could they in their
turn discover these
files.
[11]
Application to strike out
As
for the application to strike out it was the defendant’s
contention that this application should not be heard and should
be
postponed. The defendant’s attorney and counsel
effectively received it the morning of the trial and the defendant’s
attorney against whom a costs order is sought needs time to answer
thereto. He needs to be afforded an opportunity to answer
thereto when and where he pleases to do so. They also had
travel time from the “
platteland”
(apparently Hartbeespoortdam) and could therefore not respond.
[12]
As set out earlier in the judgment the opposing affidavit to the
application for postponement was only received the day prior
to the
trial and the plaintiff accordingly could only bring the application
pursuant to receipt of the opposing affidavit.
[13]
I allowed the matter to stand down for an hour and a half for the
plaintiff’s attorney, who was in court, to read the
5 pages
setting out why 4 paragraphs in the opposing affidavit contains
matter that needed to be struck out. I also informed
counsel
for the plaintiff that I would be amenable to the attorney opposing
the application by means of
viva voce
evidence. Pursuant to the
adjournment I was informed that the plaintiff is not ready to
proceed. I ordered that both
applications were to be argued.
I was then “
instructed”
by Mr. Bolt for the plaintiff to place on record that the application
to strike out was “
litigation by
ambush”
.
[14]
I find it pragmatic to deal with each paragraph, which contains the
alleged material to be struck out, individually.
[15]
Paragraph 2.4:
“
I
wish to point out the allegations made by Roets where they are in
contradiction to what I say, are deliberate untruths and made
in a
blatant attempt to mislead this honourable Court.”
Paragraph
2.4 is in answer to paragraph 1 of the founding affidavit which reads
as follows:
“
1.1
…
1.2 I am duly
authorised to depose to this affidavit, the contents of which falls
within my personal knowledge and belief, unless
the contrary appears
from the context and/or is expressly stated and which are both true
and correct.
1.3
…”
[16]
The allegation in paragraph 2.4 is most certainly defamatory.
If this allegation is left unanswered the innocent party
may well be
defamed. The retention of this paragraph would therefore be
prejudicial to the innocent party –
Weeber
v Vermaak en ‘n Ander
1974
(3) SA 207
(O).
This allegation
must thus be struck from the affidavit.
[17]
Paragraph 2.5 of the answering affidavit reads as follows:
“
I
submit that this is the only reason why the Defendant’/Applicant’s
attorney of record, Mr. Morné Day (“Day”),
did not
make an affidavit, setting forth what actually happened at the
pre-trial conference and that the other real fact is that
he
disagrees with the allegations made by Roets as relayed to him by a
junior candidate attorney, A.N. Du Randt (“Du Randt”).
Day is probably better aware of the consequences of lying under oath
in order to deliberately attempt to mislead the Court than
what Du
Randt is in his limited exposure and experience as a young
unqualified candidate attorney. As will be pointed out more
fully
here under by me it is a deliberate falsehood to state …”
This
paragraph is still in answer to paragraph 1 as quoted
supra
.
[18]
Although Mr. Bolt requested that this application be postponed, he
did proceed to advance reasons for the above proposition
made by the
deponent to the answering affidavit. In fact Mr. Bolt
exasperated the matter by from the bar loosely flinging
around the
following submissions: he emphasised that the defendant is unprepared
and “
opsetlik”
,
that their conduct “
spreek
boekdele oor hulle gebrek aan bona fides”
,
that the plaintiff “
woorde
verdraai”
and rely on “
blatante
onwaarhede”
. He himself
made scurrilous remarks based on assumptions without having knowledge
of the facts. He for instance stated
that they were telling
untruths about the consultation apparently set down for the 28
th
and 29
th
of April 2015 because the plaintiff had a consultation on the 24
th
of April 2015. According to him
the consultation of the 24
th
stretched over a whole day. He conceded that he was not there
and would not know how long the consultation would have taken
place,
yet he persisted with this argument. He further submitted that
it was accordingly a fallacy that they needed discovery
to consult,
because they consulted a whole day without any discovered documents.
He further expressed his dismay that the
defendant had served the
substantive application for postponement on the 30
th
of April i.e. the day before a long weekend thus forcing him to work
over the long weekend.
[19]
In paragraph 5.3 it was stated:
“
This
will be pointed out more fully hereunder by me “it is a
deliberate falsehood to state that the plaintiff/respondent adopted
the attitude to proceed with the matter irrespective of the
shortcomings”.
Yet
in answer to this averment as set out in paragraph 3.4 of the
founding affidavit paragraph 5.3 of the answering affidavit reads
as
follows:
“
It
was pointed out to the Defendant’s/Applicant’s legal team
that the Plaintiff/Respondent contends that she is ready
to proceed
to trial on 6 May 2015 and that she cannot be blamed for the fact
that Defendant/Applicant has not pleaded to the amended
particulars
of claim. Also that Defendant/Applicant is not prejudiced nor
advances any reasons therefore that it is prejudiced
by the alleged
late discovery by the Plaintiff/Respondent and that the reasons
advanced by the Defendant/Applicant rather indicates
that the
Defendant/Applicant is not ready to proceed to trial and/or to
present it’s case on it’s counter claim.”
[20]
I find it absolutely astonishing that on behalf of the plaintiff it
can be argued that they did not insist on proceeding with
the trial.
The plaintiff’s own affidavit set out that they insisted to
proceed with the trial.
[21]
It was further set out that proof of the falsehoods is that it is
untrue that an attempt to agree on the separations of issues
was
similarly dismissed by the plaintiff/respondent. Paragraph 3.5
reads as follows:
“
In
this regard I should also point out that when it was conveyed to the
plaintiff’s legal representatives during the pre-trial
conference that the parties should, in any event, attempt to agree on
the separation of issues, the plaintiff’s representatives
refuse to do so and expressed the view that the trial of the matter
should continue in respect of all disputes.”
In
answer thereto in paragraph 5.9 the following is set out:
“
On
the way out, Advocate E. Labuschagne SC [“Labuschagne”]
mentioned to Advocate Bolt in passing that the question of
separation
of the merits and quantum should be considered. Advocate Bolt
pointed out that in the final draft pre-trial minute
it is contended
for on behalf of the Plaintiff/Respondent that Plaintiff/Respondent
is of the opinion that there exist no reasons
to do so.
Advocate Labuschagne SC indicated that he will consider the
Defendant’s/Applicant’s position after
the consultation.”
[22]
It was recorded that there should be no separation of quantum and
merits in the plaintiff’s draft pre-trial conference
minute.
It was told to Adv. Labuschagne on the way out of the pre-trial
conference. Mr. Bolt also in court strenuously
tried to
convince the court as to why there should be no separation of merits
and quantum. What then defies all logic is
that the averment is
then made that the defendant is blatantly lying to this court in
making such submission. In fact this
court is astounded that
such submissions can be made to this court in good faith.
[23]
It was also strenuously argued on behalf of the plaintiff that the
defendant never raised the late discovery by the plaintiff
as a point
of prejudice at the pre-trial conference (paragraph 23.2 of the
defendant’s reply). It was submitted that
on page 112 of
the application the pre-trial minute of the plaintiff reflected as
follows:
“
1.
Nadeel:
Nie
een van die partye opper op die stadium enige benaderling nie weens
die nie- of laat voldoening aan enige bepaling van die hofreels
nie.”
It
was submitted by plaintiff’s counsel that such an averment was
a blatant lie. This pre-trial minute is most certainly
not
complete. Paragraph 5 has many question marks next to whether
there should be separation indicating that nothing was
decided
pertaining to paragraph 5. Paragraph 9 has empty spaces in a
sentence. Its speaks for itself that late discovery
of 1 326
items of which more than 1 000 items represent client files
holds prejudice to a party. The fact that
the defendant worked
on the files, most certainly does not entail that the defendant can
go to court without having sight of these
files, let alone be
prepared on a quantum dispute without having insight to these
documents.
[24]
Reliance was also placed on the untruthfulness of the averments that
the pre-trial conference was recorded because in fact
the pre-trial
conference was not recorded. It was not recorded because the
attorney for the plaintiff did not fulfil his
duty and did not keep
the minute of the pre-trial conference. However orally issues
were “recorded”. Reliance
on this submission to
call an officer of the court a liar is most certainly scurrilous.
[25]
Not one of these “untruths” is substance for the averment
that Mr. Day deliberately let his clerk depose to the
affidavit in an
attempt to mislead the court. This is so scandalous that one’s
breath is taken away; it is so
irrelevant but so worded as to
be defamatory. The attorney for the defendant and his article
clerk in other words made this
plan so that they could lie in an
affidavit to deliberately mislead the court. In the first
instance on affidavit these untruths
turn out to be truths and
secondly Mr. Bolt complained that Mr. Day had to leave the pre-trial
conference early and left the pre-trial
in the hands of his little
experienced article clerk. It is no wonder that the article
clerk made the affidavit as he attended
the pre-trial till the end.
[26]
It is thus so clear that the defendant has satisfied the requirement
that the paragraph indeed has scandalous matter and that
is to the
prejudice of the defendant. The matter in this paragraph must
thus be struck out.
[27]
Paragraph 6.3.1 relates to the fact that the late discovery could not
prejudice the defendant as the defendant did not need
a copy of the
trial bundle for preparation purposes for trial. This is
especially so as he intended to make discovery of
the exact same
documents. I need not repeat the court’s finding
pertaining to discovery as set out
supra.
A defendant is entitled to discovery
and the trial bundle in order to prepare. It is common cause
that the trial bundle was
not available for the dates set aside for
consultation. The defendant thus proved that this vexatious and
scurrilous and
scandalous averment is prejudicial to the defendant.
This portion of the paragraph is accordingly to be struck.
[28]
Paragraph 6.6.5 of the answering affidavit specifically refers to the
fact that paragraphs 4.6 and 4.8 are fallacious.
Paragraph 4.7
of the founding affidavit expressly sets out that the defendant is of
the opinion that the matter is not ripe for
hearing as they need the
trial bundle for their preparation for trial purposes on the 28
th
and the 29
th
of April 2015. On behalf of the
plaintiff it was argued that they had already consulted on the 24
th
without any documents and therefore this is fallacious. It is
very clearly set out by the applicant that the consultation
of the
24
th
related to settlement and in fact is confirmed with
the letters attached to the notice to the founding affidavit.
It is thus
mindboggling that the deponent to the answering affidavit
can make the following averment:
“
The
fact of the matter is that Roets knew the exact content and nature of
the discovered documents and he intended to make discovery
of the
exact documents as is indicated in paragraph 7 of Annexure ‘R7’.
The Defendant/Applicant, thus, did not
need a copy of the trial
bundle in order to prepare for trial.”
Using
these averments as a basis for an averment that the deponent to the
founding affidavit made fallacious statements intending
to mislead
this court can have nothing else but an effect on the costs order
given herein. In paragraph 6.6.5 the prejudice
to the defendant
speaks for itself and this portion of the paragraph must also be
struck out.
[29]
Even if the untruths were found to be untrue, that is not the test in
an application for striking out. In
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA)
in paragraph [25] it
was held as follows:
“…
It
is correct that relevance has to be tested with reference to the
merits of the case but that does not mean that relevance depends
on
the factual merit of the impugned allegations. Whether they are
true or not is of no moment; their relevance to
the merits of
the case is what is of consequence …”
The
relevance to the merits of this application for postponement is of
consequence and therefore the application for striking out
is upheld.
[30]
It was submitted that due to the fact that the deponent on behalf of
the respondent was an attorney, the attorney should be
censored by an
appropriated costs order and therefore it was submitted that the
appropriate order would be one of
de
bonis propriis
. It was further
submitted that the costs should be on an attorney and own client
scale including the costs of two counsel.
[31]
On behalf of the plaintiff it was argued that the intricacy of this
matter did not require two counsel and that under no circumstances
the costs of two counsel should be awarded.
[32]
A court has a wide discretion to make an appropriate costs order
pertaining to a striking out application. It includes
an order
for costs on the attorney and client scale depending on the facts and
circumstances of the matter –
Rail
Commuter Action Group v Transnet Limited t/a Metrotrail (No 1)
2003
(5) SA 518
(C)
at 589F-G. It
follows that where the application for striking out is successful the
costs must be awarded to the successful
party. In order to
grant a punitive costs order on an attorney and client scale it is so
ordered to mark the court’s
disapproval of the conduct of the
losing party. However the true explanation of awards of
attorney and client costs is that
by reason of special considerations
arising either from the circumstances which gave rise to the action
or from the conduct of
the losing party the court in a particular
case considers it just, by means of such an order, to ensure more
effectually that it
can do by means of a judgment for party and party
costs that the successful party will not be out of pocket.
A court
will only make such an order if there are special grounds
present. In these circumstances the party has acted
unreasonably,
recklessly and vexatious. The conduct of the
deponent is certainly reprehensible in his impugning the deponent’s
honour.
I am thus satisfied that these special circumstances
justify a reward on an attorney and client scale. The question
then
remains whether the attorney who is representing the plaintiff
must pay these costs himself. The basic notion underlying such
an award is a material departure from the responsibility of his
office. In deciding whether the representative’s party’s
conduct is reasonable the test is not that from the point of view of
the trained lawyer, but from the point of view of the man
of ordinary
ability bringing an average intelligence to bear at the question at
issue –
Re Estate Potgieter
1909 TS 982
at
1012. This is most certainly not a case where the
representative made a mere error of judgment or acted
bona
fide
. The whole tenure of the
defamatory allegations were continued orally from the bar by the
representative on behalf of the
plaintiff. These remarks were,
thus as seen from the point of view of an ordinary person of average
intelligence, persisted
with intent.
[33]
I accordingly make the following order:
The
objectionable matter is struck out and the deponent, Jaco du Plessis,
must pay the costs
de bonis propriis
on an attorney and client scale. The costs do not include the
costs of two counsel. Mr. Du Plessis has 7 work days
to file
argument as to why he should not pay the costs
de
bonis propriis
and why his client
should pay these costs. These reasons must be submitted to my
chambers as well as to the defendant’s
representative for them
to file counter submissions. If no submissions is received
within 7 working days from today the costs
order as set out will
stand.
[34]
Application for postponement
A
court has a wide discretion as to whether an application for a
postponement should be granted or refused. The discretion
must
be exercised in a judicial manner. An applicant for a
postponement is seeking an indulgence and therefore the applicant
must set out good and strong reasons furnishing a full and
satisfactory explanation of the circumstances that gave rise to the
application for postponement. An application for postponement
must be made timeously, as soon as the circumstances which
must
justify such an application becomes known to the applicant.
Naturally an application for postponement must be made
bona
fide
and must not be used as a tactical
manoeuvre. The dominant test for a court in deciding whether a
postponement must be granted
is considerations of prejudice.
This would also involve the balance of convenience to both parties if
a postponement should
be granted.
[35]
The plaintiff submitted that the application for postponement was not
made timeously. This contention is to be rejected
for the
following reasons:
35.1
Already on 24 April 2015 the defendant’s attorney informed the
plaintiff’s attorney that the matter is not ripe
for hearing
and that they suggest that the matter be postponed on 6 May 2015 with
the costs to be reserved. On 25 April 2015
an e-mail by the
defendant’s attorney to the plaintiff’s attorney informs
the plaintiff that they will proceed with
a substantive application
for postponement as the plaintiff has declined such a suggestion.
On 29 April 2015 an answer of
the defendant on the plaintiff’s
draft pre-trial note is served on the plaintiff’s attorney.
In this pre-trial
note it is once again reiterated that the matter is
not ripe for hearing. The notice of motion for application is
then served
on the plaintiff’s attorney on the 30
th
day of April 2015. The trial bundle was not yet received by the
defendant and they accordingly proceeded to request a postponement.
The defendant thus approached this court as soon as it became aware
of the circumstances which justify such an application.
[36]
I am satisfied that the plaintiff set out sufficient reasons for the
postponement. It is common cause that the pleadings
are not
closed. The plaintiff’s counsel does not seem to
understand the difference between opposition of an application
for an
amendment and the right to file a further pleading to the amendment.
The defendant has reiterated over and over that
it is not objecting
to the proposed amendment of the plaintiff’s plea to the
defendant’s counterclaim but that it relates
to a limitation of
damages and therefore requires a replication. The pleadings are
thus not closed. Secondly, I am
satisfied that although the
defendant had worked on the files that are to be discovered they are
not in his possession due to the
retainment of the files by the
plaintiff and that they most certainly not on such voluminous
documents can proceed to trial without
having seen those documents
again. This is accordingly a good reason and a full and
satisfactory explanation has been set
out as to why the application
for postponement must be granted. This again entails that the
defendant could not consult on
the 28
th
and 29
th
in preparation for trial without having a trial bundle. This is
also a good and just cause for an application for postponement.
On these two facts alone the application for postponement should be
granted.
[37]
As set out in Alice in Wonderland: “curiouser and
curiouser …” plaintiff’s counsel in closing
requested that the court grant the application for postponement,
because he is well aware of the view that a court is slow in denying
a postponement. It is thus mindboggling that the matter was
argued for nearly a full court day only to be then consented
to.
When confronted with this the plaintiff’s counsel then
persisted that the application should be denied but that
if the court
should grant the postponement that the defendant should carry the
costs on an attorney and client scale.
[38]
The party seeking the indulgence would ordinarily be ordered to carry
the costs. I am however satisfied that the exercise
of my
discretion under these circumstances would necessitate that the
plaintiff carry the costs. The reason for this is that
the
plaintiff has acted unreasonably resulting in increasing the costs
unnecessarily. The plaintiff unreasonably opposed
an
application for a postponement and therefore may be ordered to pay
the costs of the opposition –
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008
(4) SA 312
(SCA)
at 323I-324A.
Where pleadings are not closed a matter may not proceed, where
voluminous trial bundles were not in the possession
of the defendant
in order to consult in preparation for trial and these reasons are
forwarded to the plaintiff, but rejected, the
plaintiff has
unreasonably increased the costs. This unreasonable conduct can
only be ascribed to the fault of the plaintiff
and/or the plaintiff’s
representative. I am thus satisfied that I would exercise my
discretion judicially in depriving
the plaintiff of its costs where
the defendant requested an indulgence and I accordingly would make
the following order:
The
application for postponement is granted. The trial is postponed
sine die.
The
plaintiff is to carry the wasted costs of the postponement including
the costs of one counsel. I am satisfied that for
the
application for postponement two counsel was not necessary. It
was clear that they could not prepare for trial as they
did not have
the bundles. Under these circumstances I am satisfied that the
plaintiff is only to carry the costs of one counsel.
[39]
The following order is made:
1.
The objectionable matter is struck out and
the deponent, Jaco du Plessis, must pay the costs
de
bonis propriis
on an attorney and
client scale. The costs do not include the costs of two
counsel. Mr. Du Plessis has 7 work days
to file argument as to
why he should not pay the costs
de bonis
propriis
and why his client should pay
these costs. These reasons must be submitted to my chambers as
well as to the defendant’s
representative for them to file
counter submissions. If no submissions is received within 7
working days from today the costs
order as set out will stand.
2.
The application for postponement is
granted. The trial is postponed
sine
die.
The plaintiff is to carry the
wasted costs of the postponement including the costs of one counsel.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 36773/2013
HEARD
ON: 6 May 2015
FOR
THE PLAINTIFF/RESPONDENT: ADV. L. BOLT
INSTRUCTED
BY: Jaco du Plessis Attorneys
FOR
THE DEFENDANT/APPLICANT: ADV. E.C. LABUSCHAGNE SC
ADV.
G.F. HEYNS
INSTRUCTED
BY: Day Inc
DATE
OF JUDGMENT: 8 May 2015