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[2012] ZAFSHC 221
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Odendaal v Hsin-Huie Plastic CC, Hsin-Huie Plastic CC v Odendaal (5949/2009) [2012] ZAFSHC 221 (29 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 5949/2009
In
the matter between:-
ADRIAAN
HENDRIK ODENDAAL
............................................
Applicant
and
HSIN-HUIE
PLASTIC CC
.....................................................
Respondent
In
re:
In
the matter between:-
HSIN-HUIE
PLASTIC CC
.............................................................
Plaintiff
and
ADRIAAN
HENDRIK ODENDAAL
..........................................
Defendant
_____________________________________________________
HEARD ON:
21 NOVEMBER 2012
_____________________________________________________
JUDGMENT BY:
THAMAGE, AJ
_____________________________________________________
DELIVERED ON:
29 NOVEMBER 2012
_____________________________________________________
[1] This is an opposed
application for a postponement of a trial scheduled for 20, 21 and 23
November 2012.
[2] Applicant is Adriaan
Hendrik Odendaal, a major male attorney and the defendant in the main
action.
[3] Respondent is
Hsin-Huie Plastic CC, a close corporation duly registered as such
with registered address situated 38 Bitterbessiebos
Street,
Pellissier, Bloemfontein and plaintiff in the main case.
[4] For the sake of
convenience I will refer to respondent as plaintiff and applicant as
defendant.
[5] On the morning of 20
November 2012 (first day of trial) both counsel for the plaintiff and
defendant approached me in chambers
wherein they indicated that they
are still busy with documents pertaining to this application for
postponement and that the matter
be rolled over to the following day,
i.e. 21 November 2012 at 14h00, which request I granted .
[6] The founding
affidavit was thus filed on the afternoon of 20 November 2012, the
opposing affidavit filed on the morning of 21
November 2012, as well
as the replying affidavits. Both counsels filed their heads of
argument minutes before the matter commenced
at 14h00.
[7] After both counsels
had argued their cases, it was already 16h05 and both counsel
submitted that the matter should be postponed
sine die
and the
judgment in respect of costs should be reserved.
[8] It is clear from the
above submission that plaintiff had abandoned his opposition towards
a postponement, a point which was
also highlighted during his
argument. It was also clear that even if the court would refuse
postponement, there remained only one
day for trial namely 23
November 2012.
[9] For just and fair
adjudication of costs, it is imperative that I consider the
submissions made by counsel, heads of argument
and the affidavit
filed of record.
[10] Defendant’s
main argument towards a request for postponement is as follows:
10.1. That the matter was
not ready for trial as the plaintiff did not make the defendant aware
of all the documentary evidence
available. The plaintiff had a duty
to put documents in proper order for the benefit of both parties and
the court. The plaintiff
failed to do that or had partially
performed. The provisions of Rule 35 of Uniform Rules are peremptory.
10.2. He further argued
that the submission by the plaintiff that reason for applying for
postponement due to the fact that defendant
wants to amend his plea
so as to file a special plea, is without merits and should be
rejected; that the defendant in his plea
did indicate a plea of
prescription and if plaintiff was not pleased with the phrasing
thereof, he ought to have filed an exception.
10.3. The plaintiff in
his papers never alleged any prejudice that may be occasioned by a
postponement.
[11] Plaintiff, on the
other hand, argued as follows:
11.1. That defendant was
served with unsigned discovery affidavit and consented to same. He
never complained about that even during
the Rule 37 conference.
11.2. That if the
document is not properly discovered, the plaintiff will not be able
to use the document, which scenario will then
be to the detriment of
the plaintiff.
11.3. Plaintiff however
stated that the only document that the defendant was not aware of up
until 30 October, was the Rule 36(9)(a)
and (b). He further state
that the information which is contained therein, even the
interpretation thereof, does not necessarily
need an expert; anyone
can interpret the document.
[12] In
SHILUBANA
AND OTHERS v NWAMITWA AND OTHERS
[2007] ZACC 14
;
2007 (9)
BCLR 919
(CC) at 922 paragraph E line 12 the Constitutional Court
held that:
“
A
postponement cannot be claimed as of right.”
The party applying for
postponement must therefore show good cause that one should be
granted. The factors to be taken into account
include:
“’
whether
the application has been timeously made, whether the explanation
given by the applicant for postponement is full and satisfactory,
whether there is prejudice to any of the parties and whether the
application is opposed.’”
See
SHILUBANA
AND OTHERS v NWAMITWA AND OTHERS
,
supra
.
[13] The Constitution
Court went further and stated as follows on page 922 paragraph F line
11:
“
In
Lekolwane
and Another v Minister of Justice and Constitutional Development
this
Court added the following factors to be considered in granting a
postponement: (1) the broader public interest; and (2)
the prospects
of success on the merits. The following factors could
non-exhaustively be added to the above: the reason for the
lateness
of the application if not timeously made; the conduct of counsel; the
costs involved in the postponement; the potential
prejudice to other
interested parties; the consequences of not granting a postponement;
and the scope of the issues that ultimately
must be decided.”
[14] The reasons for
making the late application for postponement of the matter
in
casu
, as indicated by the applicant, is that they received the
Rule 36(9) well out of time and their endeavour to discuss the
question
of postponement of the matter due to plaintiff’s late
discovery, could not bear fruits, hence the application in terms of
Rule 27.
[15] From the plaintiff’s
answering affidavit and from the plaintiff’s counsel’s
argument and for the reason that
the only trial day left was one out
of three days allocated, I was also of the view that the postponement
is inevitable. The prayer
that the matter should be postponed
sine
die
was thus granted.
[16] What remains now is
the issue of costs. A standard way to mitigate prejudice to the other
parties, is for the court’s
indulgence to postpone a hearing,
particularly one requested at the last minute, is to offer or to be
ordered to pay the costs
of the postponement. See
A G
PETZETAKIS INTERNATIONAL HOLDINGS LIMITED v PETZETAKIS AFRICA (PTY)
LTD
2012 (5) SA 515
at 519.
[17] The scenario in this
matter is more of a vicious circle. Plaintiff served and filed Rule
36(9)(a) out of time. The expert evidence
is intended to prove
ownership of the plaintiff on machinery and equipment allegedly
burned by fire. The issue of plaintiff’s
ownership of the said
machinery and equipment is denied and is placed in dispute by the
defendant. It is of cardinal importance
that the defendant fully and
adequately prepares his defence. Defendant further stated that he
needs time to can get also his expert
witness to can peruse the
affidavit and if need be contradict the plaintiff’s expert.
Plaintiff, on the other side, state
that defendant was at all
material times in possession of the draft and that the evidence of
expert contained on the affidavit
is not
per se
expert
evidence, a lay person will and can be able to interpret same. This
argument is surprising because plaintiff used the provision
of Rule
36(9)(a) and (b).
[18] Plaintiff, on the
other hand, had made late discovery and some other documents were not
properly discovered. They were put
on a joint bundle without being
discovered, i.e. documents from page 100 to 110. He argued that the
trial would have proceeded
and defendant would have objected on the
production of the document(s). These would in anyway result in the
matter being postponed
to afford defendant time to peruse the
document and prepare his defence.
[19] The plaintiff’s
argument that the case of the late discovery is not a real issue and
that the real issue is that defendant
intends amending his plea so as
to plead special plea of prescription, has no merits and speculative.
Defendant is requesting court
to order costs against plaintiff
viz
wasted costs, as well as costs of this application. Plaintiff is
requesting court to order costs against defendant, alternatively
each
party to pay its own costs.
[20] Defendant is the one
who came to court and requested court’s indulgence. Usually the
party requesting indulgence has
to pay costs. At the same time
plaintiff contributed to this application being made. Both parties
are equally at fault. The court
has a discretion in awarding costs,
which discretion is to be exercised judicially.
[21] The trial action was
postponed
sine die
already and the following order as to costs
is made:
21.1 Costs for the trial
action: Each party to pay his own costs.
21.2 Costs for this
application: Each party to pay his own costs.
________________
S.J. THAMAGE, AJ
On
behalf of applicant (defendant): Adv J.G Gilliland
Instructed
by:
Bezuidenhouts
Inc
BLOEMFONTEIN
On
behalf of respondent (plaintiffs): Adv J.J. F Hefer
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
/spieterse
2012/11/23
12:41:37 PM
2012/11/27
03:01:44 PM