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[2008] ZAWCHC 148
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Webster v Oubaai Golf Estate (Pty) Ltd (11711/2006) [2008] ZAWCHC 148 (25 February 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER:
11711/2006
DATE: 2008-02-25
GILBERT
T J WEBSTER PLAINTIFF
and
OUBAAI
GOLF ESTATE (PTY) LTD
DEFENDANT
JUDGMENT
FOURIE.
J
:
This
matter is set down for hearing on the 25
th
and the 26
lh
of February 2008, during the extended civil circuit at George. Due to
problems with accommodation at the George Magistrates' Court
and the
unavaifability of the envisaged court room at the George Municipal
Chambers, a special arrangement has been made with the
Chief
Magistrate of Mossel Bay, Mr Vermeulen, to use one of their courts.
He has gone out of his way to reschedule his courts to
enable us to
sit at Mossel Bay this week. I thank him for his kind assistance in
this regard. In the result my Registrar and I,
as well as the
stenographer, have travelled to Mossel Bay from George and will do so
for the rest of the week.
The
second matter on the roll for this week is that of E. Vorster versus
J.J. Vorster, which is scheduled to run on Wednesday and
Thursday,
the 27
th
and 28
th
instant. On Friday the 29
th
unopposed motion matters will be heard. The extended period of this
circuit was agreed to by the Judge-President at the request
of the
legal practitioners of the Southern Cape, who made representations to
him regarding the state of the roll. They complained
about an alleged
backlog of civil trials and the Judge-President agreed to provide a
Judge to sit permanently in George for the
first two terms of this
year, on the understanding that trials which were to be enrolled were
ready to proceed to trial. On Friday,
in the late afternoon, I was
advised telephonically by Mr Coetsee who appears for Plaintiff in
this matter, that the parties have
agreed that the trial should be
postponed. I indicated to him that 1 require an explanation by the
parties as to why the matter
was not ready to proceed. I should
mentioned that the pleadings in this matter run to some 540 pages and
involve some intricate
points of law. I have studied these pleadings
over a number of days and am ready to hear the matter, but now the
parties have decided
to seek a postponement. This means that when the
matter is in future re-enrolled, another Judge who will then preside
over this
circuit will yet again have to read and study these papers.
A
similar situation has arisen in the Vorster matter which is to be
heard this coming Thursday and Friday. I have now been informed
that
the parties in the Vorster matter have also agreed to seek a
postponement. The papers in the Vorster matter, which I also
studied,
are in access of 370 pages. I am also ready to hear that matter, but
now another Judge will in due course have to be burdened
with it
again. These are not the only two cases on the roil in which
applications for postponement have been brought. In fact,
to date a
staggering 42% of the matters set down for trial during this extended
civil circuit, forming part of an alleged backlog,
had to be
postponed. In a number of these matters, the legal representatives
have shown a total disregard for the rules of court
and failed to pay
the court the basic courtesy of keeping it informed regarding matters
which had been settled or are to be postponed.
In certain instances,
matters had been settled several days before the allocated trial
date
f
yet the attorneys failed to inform the court forthwith of the
settlement. In one instance the parties had settled the case seven
days before the trial date, but kept the court in the dark and only
mentioned it when the matter was called. In another, a postponement
was sought as the defendant's attorney was on holiday, but no effort
was made to inform the court of this state of affairs prior
to the
matter being cafled. And so the sad tale continues.
I
find this most disturbing and in appropriate cases I have voiced my
strong disapproval, and in one instance I have made a punitive
costs
order, but all to no avail. This has resulted in several court days
being wasted as I was unable to find sufficient alternative
matters
to slot into the gaps which have opened up on the roll. In fact, I
had to scrounge around for other matters to be heard.
Now the same
scenario is to play itself out this week. Four court days are going
abegging. I unfortunately have to conclude, that
if this is the
attitude displayed by practitioners who have matters on this roll,
then the Southern Cape does not deserve an extended
civil circuit.
Finally, as a matter of interest I should mention that to date 80% of
the days on the roll allocated for trials,
have due to postponements
and settlements not been taken up by the hearing of trials. I have
been able to hear a number of applications
in their stead, but it has
still resulted in a significant number of court days being wasted. I
shudder to think of the costs incurred
to provide this forum, which
costs not only include direct costs, but also the costs of appointing
an acting Judge to take my place
in Cape Town.
I
now deal with the matter presently before me. As I have said in a
previous matter in which the parties had applied for a postponement,
an applicant for a postponement seeks an indulgence and a
postponement is not merely there for the asking. Full reasons and a
satisfactory explanation of the circumstances giving rise to the
application for a postponement, should be given to the court.
It
is also trite that an application for a postponement should be made
timeously to prevent inconvenience being caused to the other
party
and the court. The court has a discretion to grant or refuse a
postponement. A postponement cannot be secured by mere agreement
between the parties. It is for the court to determine whether it is
in the interests of justice to grant a postponement. But the
interests of justice would be determined not only by what is in the
interests of the parties themselves, but also by the need to
have
matters before this court finalised without undue delay.
In
the instant matter a postponement is sought as Defendant now seeks an
amendment in accordance with a notice of intention to amend,
delivered on 18
th
of February 2008, i.e. four court days before the trial date. In the
amendment two additional special pleas are added as special
pteas
numbers 4 and 5. It is clear that Plaintiff requires time to respond
thereto. As a resutt the matter will have to be postponed
if the
interests of justice are to be served. In these circumstances I would
have expected defendant's legal representatives to,
at least, have
placed the circumstances giving rise to the belated amendment and
postponement, before me. This was not done and
it was left to Mr
Coetsee on behalf of PEaintiff to explain the circumstances to the
court. In view thereof, I requested Mr Coetsee,
through his attorney,
to contact Defendant's attorneys and to advise them that they should
place representations before me by 10a.m.
today as to the
circumstances which led to the matter being postponed and why a
punitive costs order should not be made against
Defendant.
I
have now received written representations from Defendant's attorney.
The attorney states that it was only during the course of
preparation
that two potential legal defences came to tight, namely those
reflected in special pleas numbers 4 and 5. However,
no explanation
is given why these defences only "came to light'
1
at this late stage. The attorney also, rather unconvincingfy,
suggests that Defendant's tender to make payment of the wasted costs
occasioned by the postponement, as per the draft order handed up by
Mr Coetsee, was motivated by economic and commercial reasons
and that
such tender does not justify the inference that a postponement has
been necessitated by Defendant's conduct alone. It
is clear to me
that the late introduction of special pleas numbers 4 and 5, is the
causa
causans
of the postponement of the trial. The suggestion of Defendant's
attorney that Plaintiff's "unpreparedness to deal with
special
pleas numbers 4 and 5" attributed to the matter being postponed,
may be factually correct, but fails to take into
account that such
unpreparedness is the direct result of the late introduction of the
additional two special pleas by Defendant.
In
the draft order the parties have agreed that Defendant shall be
liable to pay Plaintiffs wasted costs occasioned by the postponement,
on the scale as between party and party. My view of the matter is
that a punitive costs order would have been justified, especially
having regard to the late introduction of the additional special
pleas by Defendant. In his written representation Defendant's
attorney emphasises that the terms of the draft court order are the
subject matter of an agreement between litigants in civil litigation.
In so far as this statement may be construed as implying that the
court is bound by the agreed draft order, regardless of the
circumstances prevailing, it is without merit. The postponement of
the trial, dealt with in paragraph 2 of the draft order, is,
as I
have already indicated, not merely there for the asking, but subject
to the exercising of a discretion by the court. Similarly,
the
agreement in paragraph 3 of the draft order, is subject to the court
ordering it in terms of Rule 33(4), namely if the court
considers it
to be convenient to hear the said special pleas mentioned therein,
separately. Finally, the agreement of the parties
in regard to the
issue of wasted costs, cannot bind the court, especially in
circumstances where the court is of the view that
a punitive costs
order should be made as a mark of its disapproval of the manner in
which a party has conducted itself, or where
an order
de
bonis propriis
against a party's attorneys is called for. As I have mentioned, a
postponement is necessary to enable Plaintiff to deal with the
late
amendments of its plea by Defendant. A trial date has to be
arranged with Mr Botes of
Millers
Inc., George, who compiles the roll on behalf of the Registrar In
regard to paragraph 3 of the draft order, I believe that
the
presiding Judge who hears the trial, should consider whether the
suggested separation is convenient or not.
As
far as the issue of the wasted costs is concerned, I would, if I were
required to decide same, have had no hesitation in ordering
Defendant
to pay these costs on the scale as between attorney and client.
Although I am not bound by the parties' agreement in
regard to the
wasted costs, it, however, appears to me that if I were to make such
a punitive order, it could amount to a
brutum
fulmen
,
as Plaintiff could,
inter
partes
,
be regarded as contractually limited to recover his wasted on the
lesser scale only. In the result I make an order in terms of
the
draft order, which I have amended and marked X.
FOURIE,
J