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[2013] ZAGPPHC 528
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Tovani Trading 269 CC t/a Berlo Construction v Chikala N.O. and Others (62171/11) [2013] ZAGPPHC 528 (12 March 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Date:
2013-03-12
Case Number:
62171/11
In the matter
between:
TOVANI
TRADING 269 CC t/a
BERLO
CONSTRUCTION
.
.......................................................................................................
Plaintiff
and
M S CHIKALA
NO
..........................................................................................................
First
Defendant
M D
MAPONYANE-CHIKALA
NO
.
.........................................................................
Second
Defendant
M MICHAU
NO
..............................................................................................................
Third
Defendant
JUDGMENT
A B ROSSOUW A
J
[1] The plaintiff
instituted action against the defendants in their official
capacities as trustees of the KK Trust for payment
of an amount
of R1 407 540,61 plus interest and costs. The plaintiff’s claim
is basically in respect of work done and services
rendered in terms
of an oral building agreement that has not been lawfully cancelled by
the trust and in respect of which the plaintiff
has been prevented to
render complete performance because of the repudiation of the
agreement by the trust, which repudiation the
plaintiff has not
accepted. It is not necessary to deal with the plaintiff’s
particulars of claim in detail.
[2] The defendant, in its
plea, inter alia, disputes the terms of the agreement and the
quantum of the plaintiff’s claim
and it alleges that the
agreement has been duly cancelled.
[3]
This matter was allocated to this court for purposes of default
judgement. Mr Stoop, who appears for the plaintiff, informed
me that
there was no appearance on behalf of the trust when the matter was
called during the calling of the role. He also informed
me that the
first defendant was seen in the court building earlier this morning.
When the matter was called in this court, there
was likewise no
appearance on behalf of the trust.
[4] According to the papers
before me the notice of set down was served on the trust’s
erstwhile attorneys on 22 March 2012.
It also appears from the papers
that the trust’s erstwhile attorneys withdrew as attorneys of
record on or about 13 December
2012 and a notice to this effect was
properly served on the plaintiff's attorneys. Thereafter notices in
terms of a rule 36 (9)
(a) as well as a notice in terms of rule
37 (2), calling upon the defendants to attend a pre-trial meeting on
31 January 2013,
were delivered by leaving copies thereof at the
first defendant’s private residence on 14 January 2013, as more
fully appears
from the affidavit of Mr Van der Merwe, a candidate
attorney in the employ of the plaintiff's attorneys of record. It
also appears
from Mr Van der Merwe’s affidavit that the first
defendant was until middle January 2013 not aware of the fact that
the trust’s
attorneys had withdrawn. Further notices in terms
of rule 36 (9) (b) were delivered by hand at the first defendant's
private residence.
When the pre-trial was held on 31 January 2013
there was no attendance on behalf of the trust.
[5] In view of the
aforesaid, the court was satisfied that the matter could proceed on
an unopposed basis, whereafter the plaintiff
started to lead evidence
to prove its quantum. Shortly before the tea adjournment the court,
mindful of the first defendant being
observed in the court building
earlier on, and in all fairness to the trust, requested the plaintiff
to make an attempt to get
hold of the first defendant to find out
what the trust’s position was. The plaintiff's attorneys were
successful in contacting
the first defendant. When contact was made
with the first defendant, he had already left the court building and
was on his way
to, I think, Centurion.
[6] The first defendant
later appeared in court, without representation, and asked for a
postponement, which was opposed by the
plaintiff.
[7] The first defendant
explained that he could not find the court where the matter was to be
heard. This explanation is not convincing
because if the first
defendant had made an honest effort he would have found that the
matter was number 68 on the roll in court
6E, which court deals,
inter alia
, with matters requiring an allocation to a judge.
[8] The first defendant
further explained that during 2012 he was involved in a dispute with
his erstwhile attorneys of record regarding
the further funding of
the trust’s case in view of which, I assume, the said attorneys
withdrew as the trust’s attorneys
of record during late 2012.
The first defendant also stated that although the trust was in a
position to pay the said attorneys,
he was, in the light of the
dispute with the attorneys, not willing to do so. The plaintiff can
certainly not be blamed for this.
The first defendant further
informed the court that he only became aware of the fact that the
trust’s attorneys had withdrawn
during January 2013, whereafter
he approached another firm of attorneys, ie MKM Attorneys and more in
particular Mr Maritz.
The first defendant told the court that
he had given instructions to Mr Maritz to handle the matter on the
trust's behalf and that
he had laboured under the impression that his
new attorney would do what was necessary, hence his inactiveness
since January 2013.
The first defendant also told the court that he
phoned his attorney earlier this morning to find out what was going
on and that
his attorney’s explanation for not being at court
was the holding of ‘partial instructions’.
[9] I instructed Mr Maritz
to be present in court to hear from him what transpired between him
and the first defendant. Mr Maritz
told the court that, although the
first defendant sought his advice in respect of certain matters, he
at no given point in time
held instructions to represent the trust in
this matter. It appears from what Mr Maritz told the court that there
could have been
some form of misunderstanding or lack of proper
communication between him and the first defendant.
[10] Be that as it may, the
first defendant neglected to follow up the trust’s instructions
to its own attorney in circumstances
where he ought to have done so.
The first defendant also failed to contact the plaintiff’s
attorneys about his intention
to ask for a postponement under
circumstance where he could and should have done so. The first
defendant could not give any reasonable
explanation for these
omissions.
[11] Initially I was
inclined to consider refusing the application for a postponement,
but after giving it some thought I
realised that I would not only do
an injustice to the trust but also to the plaintiff. No pre-trial has
been held to curtail the
proceedings. This means that if the trial
does proceed, the parties will in all likelihood have to stand down
from time to time,
inter alia
, to reach an agreement regarding
the authenticity of the documents contained in the court bundle that
was handed up by the plaintiff
as well as other factual issues in
order to curtail the proceedings.
Witnesses will further have
to be called by the defendants, and if these witnesses are
necessary but unavailable, this case
will have to be postponed. It is
not desirable for matters to become part heard for obvious reasons.
The defendants will further
have to be guided through the
proceedings, which will cause this matter to be further dragged out
and unduly delayed, at the unnecessary
expense of both parties.
[12] It is trite law that a
judge has a discretion as to whether an application for a
postponement should be granted or refused.
That discretion must be
exercised judicially. 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. An application for a
postponement must be made timeously,
as soon as circumstances, which
might justify such an application, become known to the applicant.
Where, however, fundamental fairness
and justice justifies a
postponement, the court may in an appropriate case allow such
application for postponement even if the
application was not
timeously made. An application for postponement must always be bona
fide and not used simply as a tactical
manoeuvre for the purpose of
gaining an advantage to which the applicant is not legitimately
entitled. Considerations of prejudice
will ordinarily constitute the
dominant component of the total structure in terms of which the
discretion of the 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 cost order or any other
ancillary mechanisms. 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. 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.
[13] I cannot ignore the
fact that an attorney represented the trust until at least December
2012 and the fact that, when the first
defendant became aware of
trust’s attorneys’ withdrawal, he approached another
attorney to assist the trust. I also
cannot ignore the fact that the
first defendant was in the court building prior to the matter being
called in this court and that
he made an effort to be in court when
he was called upon to do so. This is not the conduct of a
person who is in wilful default
or who seeks to delay the matter or
who wants to obtain an advantage to which he is not entitled.
Furthermore, if a postponement
is not granted, the trust will be
severely prejudiced because it has no expert witnesses to counter
those of the plaintiff. I am
of the view justice demands that the
trust be given a proper opportunity to present its case and that the
plaintiff’s prejudice
caused by the delay can be fairly
compensated by an appropriate costs order.
[14] I find that the
plaintiff has shown utter indifference to the necessity of saving
wasted costs as far as possible. The
trust’s conduct in moving
for an application for a postponement at such a late stage is
blameworthy in a high degree and
I can find no reason why the
plaintiff should be out of pocket and why the trust should not be
penalised with a special order as
to costs.
[15] Mr Stoop suggested
that the trust be ordered to file its notices in terms of rule 36 (9)
(a) and (b) within 30 days in order
to expedite the matter, failing
which the plaintiff would be entitled to approach the court to have
the trust’s defence struck
out. The first defendant indicated
that he had no objection against the making of such an order.
[16]
For completeness sake, I wish to point out that Mr Stoop informed me
the third defendant has in the mean time resigned as a
trustee.
[17]
In the premises, I make the following order:
1. The
case is postponed
sine die
;
2.
The first and second defendants in their official capacities as
trustees are ordered to pay the wasted costs on an attorney
and
client scale including, but not limited to, the preparation,
qualifying, attendance and reservation fees of the plaintiff’s
experts in respect of which expert notices have been given;
3. The
first and second defendants in their official capacities as trustees
are ordered to file the trust’s notices in terms
of rule 36 (9)
(a) and (b) within 30 days from date hereof, failing which the
plaintiff will be entitled to approach the court
to have the trust’s
defence struck out.
________________________
A B ROSSOUW A J
DATE:
12 March 2013