Brief Summary

Postponement — Application for postponement of main application — Respondents sought postponement on grounds of counsel's unavailability and ongoing investigation — Applicant opposed the application — Court's discretion to grant postponement considered — Respondents failed to provide satisfactory explanation for late application — Application for postponement refused with costs.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an urgent interlocutory application for a postponement of a hearing that had already been scheduled for the leading of oral evidence in a pending main application. The postponement application was brought by the First, Second and Third Respondents (collectively referred to in the judgment as the Department of Minerals and Energy (DME)), and it was supported by the Fourth Respondent. The Applicant opposed the postponement.

The parties in the main matter are Saamwerk Soutwerke (Pty) Ltd as applicant, and the Minister of Minerals and Energy, the Director-General: Mineral and Energy, the Regional Manager: Mineral and Energy, Northern Cape Region as the first to third respondents, with SA Soutwerke (Pty) Ltd as the fourth respondent.

The procedural posture was that the main application (launched in March 2007) had come before Lacock J, who directed that limited issues be referred for oral evidence due to disputes of fact on the papers. Dates for oral evidence were agreed for 22, 23 and 25 September 2009, with the stated consideration that Lacock J preferred to hear the evidence himself because of the voluminous record. Two days’ notice was then given for the urgent postponement application, which was heard by Majiedt J on 11 September 2009.

The general subject-matter of the dispute in the main application is the validity of a mining permit (MP 169/2004) and, consequentially, which of the competing private parties (the Applicant or the Fourth Respondent) has the lawful right to mine on a particular salt pan in the Gordonia District. Majiedt J’s judgment is confined to whether the scheduled oral-evidence hearing should be postponed.

2. Material Facts

The court treated as central and largely uncontested the procedural history demonstrating a prolonged and irregular course of litigation management, particularly in relation to the DME’s approach to the litigation. The Applicant had instituted the main application in March 2007 seeking, in substance, the issuing of the Applicant’s approved mining right and the setting aside of the Fourth Respondent’s alleged mining right founded on the disputed permit.

The DME’s stance in the main application was described as ambivalent and shifting. It initially opposed the main application, withdrew its opposition, and later again opposed. When the matter was enrolled for 23 May 2008, the DME filed an answering affidavit only on 14 May 2008, and did so out of time. That affidavit asserted that the DME would abide the court’s decision and was filed to assist the court, while also indicating opposition only insofar as the relief would “usurp” statutory functions. The main matter was postponed sine die due to the late filing, to enable a reply.

In October 2008, the Applicant delivered a detailed replying affidavit, including evidence from a handwriting expert suggesting that the Fourth Respondent’s mining permit was falsified. The Applicant invited the respondents to file further affidavits addressing the new material; none did so. The Applicant then launched an urgent interim application (24 October 2008) to interdict the Fourth Respondent’s mining pending determination of the main dispute. The DME filed a notice of opposition but did not file answering affidavits within the allocated time, and later delivered another affidavit out of time indicating uncertainty about its earlier position and requesting an opportunity to investigate.

When the interim application was heard, it emerged that the DME had not been served with the Applicant’s replying papers, and the DME requested a postponement to consider them; the matter was postponed to 1 December 2008. On that date the DME had no legal representation and the interim application was dismissed, with reasons provided.

A hearing date for the main application was later obtained for 5 June 2009. Shortly before that date, on 1 June 2009, the Third Respondent filed an affidavit by a new deponent (Swart), described by the court as contributing nothing new and failing to demonstrate that the promised detailed investigation into the disputed permit had been done. The affidavit asserted that Swart had studied records (not attached) and was satisfied the permit was valid, notwithstanding the Applicant’s contention that relevant records had been discovered and no supporting documents were annexed.

When the matter came before Lacock J on 5 June 2009, disputes of fact led to a referral to oral evidence. Importantly for the postponement application, the court noted that the September 2009 dates were carefully considered and agreed, taking into account the availability of the parties, legal representatives, and Lacock J himself. The DME’s counsel, Ms Nkosi-Thomas, indicated at that stage that the dates suited her, despite being engaged in another matter from 14–18 September 2009.

The urgent postponement application was then brought on two days’ notice on grounds that included the unavailability of Ms Nkosi-Thomas on the scheduled dates, the alleged incompleteness of an ongoing criminal investigation concerning alleged forgery or falsification of the mining permit, and alleged non-compliance by the Applicant with the discovery timetable set in Lacock J’s order and with Rule 37.

As to the alleged discovery default relied upon by the DME, it was common cause that the Applicant’s discovery was late, but the Applicant explained that it was awaiting discovery from the DME, and had served notices under Rule 35(1) and Rule 35(3) seeking documents from the DME. The Applicant then pursued further notices under Rule 35(3) and Rule 35(12) and ultimately brought an application to compel discovery. A court order by Kgomo JP required the DME to comply with the discovery notice by 26 August 2009. At the time of the postponement hearing, the DME had still not complied with that order.

On Rule 37, the relevant sequence reflected that the Applicant initiated correspondence proposing a pre-trial conference date, served a Rule 37(2) notice for 31 August 2009, and delivered an agenda. The DME’s objections to the Rule 37 notice and agenda were raised later in correspondence in the context of seeking a postponement.

Regarding the criminal investigation, the judgment records that it had been ongoing for more than two years, that nothing tangible had emerged, and that the police were said to be awaiting the outcome of the oral-evidence hearing before proceeding further.

3. Legal Issues

The central legal question was whether the respondents had shown good cause for a postponement of the oral-evidence hearing dates allocated in the main application, and whether the court’s discretion should be exercised in favour of granting that indulgence.

The dispute before Majiedt J was predominantly one of the application of established legal principles to procedural facts, including an evaluative assessment of prejudice, adequacy of explanation, timing, and the interests of justice. It also involved a discretionary value judgment inherent in postponement decisions, including consideration of broader public interest and prospects of success as recognised in authority cited to the court.

4. Court’s Reasoning

The court approached the matter from the established premise that a postponement is not for the asking. It emphasised that the granting of a postponement lies within the court’s discretion, to be exercised judicially on all relevant facts. A postponement is an indulgence, and the party seeking it must provide good and strong reasons supported by a full and satisfactory explanation of the circumstances giving rise to the request. An overriding consideration is prejudice to the parties, and the application must be brought timeously once the relevant circumstances are known.

In applying these principles, the court evaluated each ground advanced for postponement, but considered that the true driver of the application was the unavailability of the DME’s chosen counsel. The founding affidavit indicated that counsel’s other matter (set down for 14–18 September 2009) was expected to run over into the dates reserved for the oral-evidence hearing. Although that overlap was not foreseen when the September dates were agreed, the court was not persuaded that this justified postponement. The judgment reasoned that, despite counsel’s familiarity with the matter, the issues were relatively straightforward and another counsel could prepare sufficiently to test and cross-examine the handwriting expert evidence and other witnesses. The court further relied on authority to the effect that the unavailability of a particular legal representative is generally not a good ground for postponement.

The court also found that the postponement application was not brought timeously. The State Attorney became aware as early as 4 August 2009 that counsel would not be available. The Applicant’s attorneys communicated from 19 August 2009 that they would not consent to a postponement and that a substantive application would be required. Despite this, the DME only issued the postponement application on 9 September 2009, leaving two days’ notice. The court regarded the urgency as self-created and the delay as weighing against the indulgence.

Turning to the reliance on the Applicant’s alleged non-compliance with discovery deadlines, the court acknowledged that the Applicant’s discovery was late, but placed weight on the context that the Applicant had actively sought discovery from the DME through Rule 35 mechanisms, that the DME had not produced many of the requested documents, and that a compelling order had been granted directing the DME to comply by 26 August 2009. At the time of the postponement hearing, the DME had still not complied. The court concluded that the DME was approaching the court with unclean hands and was, on the facts recorded, in contempt of Kgomo JP’s order. In this setting, the court did not accept that the DME could rely on the Applicant’s discovery default to justify postponement.

As to the Rule 37 complaint, the court analysed the correspondence and found that the Rule 37 point was a “red herring”, raised late and in a manner that concealed the real reason for the postponement request. The court reasoned that if the DME genuinely regarded the Rule 37 notice as improper (for example, as an interrogatory), it could have stated so promptly, rather than using it as a later ground in support of postponement.

Finally, the court was not persuaded by reliance on the ongoing criminal investigation. The judgment highlighted that, despite earlier undertakings, the DME had failed to demonstrate that it had conducted the promised detailed investigation into the permit. The criminal investigation had been ongoing for more than two years without tangible results, and the police were reportedly awaiting the outcome of the oral-evidence hearing. The court treated the position as a “catch-22” and distinguished the situation from cases where a civil matter might be stayed due to concurrent pending criminal proceedings, noting that this was an investigation and that no criminal proceedings were pending.

Synthesising these considerations, and taking into account the lengthy history of delay and shifting positions, the court concluded that the interests of justice required the matter to proceed on the already allocated September dates. It accepted that a postponement would likely push the hearing into 2010 and would materially prejudice the Applicant given the nature of the dispute and the expert evidence already advanced.

5. Outcome and Relief

The court refused the urgent application for postponement.

The court ordered costs against all four respondents, jointly and severally, the one paying the others to be absolved.

Cases Cited

McCarthy Retail Ltd v Shortdistance Carriers CC 2001(3) SA 482 (SCA)

National Police Service Union and others v Minister of Safety and Security and others 2000(4) SA 1110 (CC)

Shilubana and others v Nwamitwa (National Movement of Rural Women and Commission for Gender Equality as amici curiae) 2007(5) SA 620 (CC)

Lekolwane v Minister of Justice and Constitutional Development 2007(3) BCLR 280 (CC)

Myburgh Transport v Botha t/a SA Truck Bodies 1991(3) SA 310 (NmSC)

D’anos v Heylon Court (Pty) Ltd 1950(2) SA 40 (C)

Centirugo AG v Firestone (SA) Ltd 1969(3) SA 318 (T)

Legislation Cited

No specific statute was cited in the text of the judgment provided.

Rules of Court Cited

Uniform Rule 35(1)

Uniform Rule 35(3)

Uniform Rule 35(12)

Uniform Rule 37

Held

The court held that the respondents failed to establish good and strong reasons for a postponement of the oral-evidence hearing in the main application. The unavailability of the DME’s counsel was not treated as sufficient, particularly given the relative straightforwardness of the issues for purposes of preparation and the availability of alternative counsel.

The court held further that the postponement application was brought late despite the relevant circumstances being known more than a month earlier, and that additional grounds advanced concerning discovery, Rule 37, and an ongoing criminal investigation did not justify postponement on the facts. The DME’s own non-compliance with a discovery order and the late emergence of procedural complaints counted against the indulgence.

LEGAL PRINCIPLES

A postponement is an indulgence granted in the court’s discretion, which must be exercised judicially on all relevant facts, with prejudice to the parties being an overriding consideration. The party seeking a postponement must provide good and strong reasons and a full and satisfactory explanation for the request.

An application for postponement must be brought timeously once the circumstances justifying it are known. Delay in bringing such an application may weigh against the granting of the indulgence, especially where the urgency is self-created.

The unavailability of a particular legal representative is generally not, without more, a sufficient basis for postponement, particularly where the matter can reasonably be prepared and presented by another practitioner.

In assessing whether to grant a postponement, considerations may include broader public interest and prospects of success on the merits, alongside the interests of justice and the practical consequences of delaying adjudication.

Where a party seeking a postponement is itself non-compliant with procedural obligations or court orders relevant to readiness for trial (including discovery), that party’s position may be materially weakened in seeking discretionary indulgence.

Saamwerk Soutwerke (Pty) Ltd v Minister of Minerals and Energy and Others (292/07) [2009] ZANCHC 39 (18 September 2009)