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[2008] ZAWCHC 90
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Stoltenberg v Butler and Others (309/06) [2008] ZAWCHC 90 (17 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
309/06
DATE
:
17
APRIL 2008
In
the matter between:
ENNO GuNTER
STOLTENBERG
Plaintiff
versus
VALERIE SYLVIA BUTLER
1
st
Defendant
S
A MEDICAL IMPORTERS CC
2
nd
Defendant
IRWING
430 CC (in liquidation)
3
rd
Defendant
GERHARDUS
CORNELIUS KACHELHOFFER N.O.
4
th
Defendant
FEIROUZ
WEHR-WILLIAMS N.O.
5
th
Defendant
THE MASTER OF THE HIGH
COURT 6
th
Defendant
JUDGMENT
STEYN, AJ
I am sorry there has been a
small delay, but at least the representatives can be aware
that I have given this
matter some consideration. I have
prepared quite a long judgment in the circumstances in order to
explain the position clearly.
I will firstly deal with the
background facts in this matter. On 18 January 2006 the plaintiff
issued a summons for declaratory
relief against a number of
defendants. The relief claimed relates mainly to disputed claims in
a liquidated estate. The plaintiff,
the 5 respondent in the
application for postponement, claims declaratory order that the
first and second defendant's claims,
the applicant's in the
application for postponement, be disallowed, and that a second
liquidation and distribution account be
amended accordingly.
At
the time of the institution of the action the first and second
defendants, hereinafter referred to as the applicants, were
represented by Mallinicks Attorneys in Cape Town. A notice of
intention to defend was filed on 30 January 2006. A notice of
bar
was eventually served on 17 March 2006 after no further action was
taken by the applicants. The applicants were compelled
to file their
plea by 24 March 2006. Prior to 24 March 2006 Mallinicks Attorneys
informed respondent's attorneys that they were
withdrawing as
attorneys of record and that the applicants would henceforth be
represented by attorneys from Bloemfontein, the
attorneys E G Cooper
and Sons, represented by the correspondents in Cape Town, MacGregor,
Stanford, Crew.
Only on 7 April 2006, after the
plaintiff, referred to as the respondent, refused to allow further
time extensions, a plea was
filed by the applicants, now represented
by E G Cooper and Sons. It was recorded in the correspondence that
the plea had been
5 prepared in haste and rights to amend were
reserved. No amendments have been effected or requested to date. On
19 May 2006
a notice of discover, in terms of Rule 35, was served on
the applicants, requesting discovery of certain documents by 19 June
2006.
This notice, and later requests for
discovery, were not complied with. On 10 October 2006 the trial was
set down for hearing on
21 November 2007. Due to applicant's
continued failure to discover an application had to be launched to
compel discovery by the
applicants, and it was served on the
applicant's attorneys on 12 March 2007. On the same date the
applicant's attorneys withdrew.
The order was granted on 29 March
2007, that applicants should comply with discovery by 19 April 2007.
On 19 April the applicants
filed the discovery and were now
represented by Attorneys Hugo, Teneyne and Brewer, hereinafter
referred to as HTB from Bloemfontein.
The minute of the prescribed Rule 37
meeting of the parties, dated 2 October 2007, was filed by
respondent's attorneys. It appeared
there from that the applicant's
attorneys had elected not to attend the meeting after attempts to
arrange such meeting had 5
not met with success. On 21 November
2007, the allocated trial date, the applicants, in a substantive
application, applied for
a postponement of the trial, which
apparently was vehemently opposed.
The
attorney then acting for the applicants raised three main reasons
why the postponement was necessary. One for the excuses
for his
non-preparedness for trial was that certain documentation was being
retained by the erstwhile attorneys of the applicants,
Mallinicks, who refused to hand over the documents due
to applicant's non-payment of their fees due. It was mentioned
that
the relationship between applicants and her erstwhile attorney had
turned sour. It was alleged that the applicant could
not be properly
represented without insight into the documents retained by
Mallinicks. The matter was postponed by order of
the Court to a
date that the parties finally agreed to, namely 16 April 2008.
Only on 14 March 2008 a notice was
received by the respondent that applicant's last set of attorneys,
HTB, had withdrawn as attorneys
representing the applicants.
In
the present application for leave to postpone it is alleged on
behalf of the applicant's by Mr Hassan of Hassan Bassier and
Valingham, attorneys of Durban, that they were requested in January
2008 to represent the first applicant in several matters.
As regards
the present matter they were initially instructed to hold a watching
brief for a reason undisclosed to this Court.
The firm then
representing applicants in this matter was still HTB of
Bloemfontein. Mr Hassan states that the first applicant
had informed
him that she had encountered, in his words, a difference of opinion
with Mr Bruwer of HTB attorneys and no detail
is provided. On 29
January 2008 a letter was addressed to applicant's erstwhile
attorneys, HTB attorneys of Bloemfontein by her
soon to be new set
of attorneys, Hassam, Bassier and Valingham, that first defendant,
that was the first applicant, had terminated
the power of attorney
previously held by HTB attorneys on behalf of the applicant. Mr
Bruwer, unsurprisingly responded by requesting
his fees due before
withdrawing and providing documentation.
Correspondence ensued between these
new attorneys and respondent's attorneys, some of which is quite
puzzling. Mr Hassan seemed
to believe he could not legally represent
the applicant's despite his instructions and the withdrawal of a 5
previous power of
attorney to the erstwhile attorneys, unless the
erstwhile attorneys consent to such representation. Even after the
previous attorneys,
HTB, withdrew officially, Mr Hassan still
persisted in asking them to confirm that they consented to his firm
taking over the
matter. In the meantime, despite such lack of 10
direct consent, consultations were in fact held with the applicant
and correspondence
continued.
Mr Hassan states that he consulted
with the first applicant, one of the dates that the Court is aware
of, on 13 March 2008.
It is obvious from the papers that instead
of preparing for the eminent trial first applicant then left the
Republic at some
stage prior to 19 March 2008, only to return on or
about 5 April, we heard in court that it was in fact a few days
later. The
matter relating to the outstanding fees of Mr Bruwer
remained unresolved. On 26 March 2008 a letter was finally
forwarded by
Mr Hassan of the respondent's attorney, informing them
of the fact that they had been requested to represent the first
applicant
in the present matter. The averment of the consent
awaited was made. No mention is made of any proposed
postponement, despite
the fact that there had been consultation with
the applicant. On the very next day a letter was addressed by the
respondent's
attorneys to attorney Hassan, setting out a brief
history of the matter 5 pertaining to the previous postponement.
Reference
is made to the fact that applicant previously requested a
postponement ostensibly to obtain documents.
Applicant's attorneys are
specifically requested to take such steps 10 as may be necessary to
obtain the so-called crucial documents.
They were even informed of
possible ways to attend to the matter. The pleadings filed in the
postponement application were also
sent to Mr Hassan in order to
update. It was further pointed out that it was the perception of the
respondent that the applicant
15 has, since 2001, and the
commencement of the dispute, done everything in her power to
postpone finalisation of the matter.
In a response dated 7 April
2008 Mr Hassan indicates for the first time that he does not know if
he will be, as he said, in a
position to be ready for hearing.
Some correspondence between Mr
Hassan and attorneys Mallinicks, now Webber, Wentzel, Mallinicks,
regarding outstanding documentation,
allegedly in the
safekeeping of attorneys Mallinicks followed, In a letter dated 15
April 2008 Mr Arranouf of Mallinicks
states that the applicant has
had a period of two years to settle outstanding accounts. It is
recorded that she had not been
prepared to undertake to pay her
account in 5 exchange for the documents. It was felt even by him
that the applicant was manipulating
the situation to facilitate
another postponement. Most importantly in the letter it is stated
that we have never denied your
client access to the documents. Your
client and her legal advisors have always been free to attend on 10
our offices in order
to inspect and make copies of the documents.
The fact that for a period of over two years your client and her
legal representatives
have failed to do so speaks for itself.
It was further recorded that in view
of the subpoena that was 15 threatened, as it could have been done a
long time ago, the documents
would be delivered the same day to the
office of the registrar of the High Court Cape Town, where they
could be inspected. Proof
that the documents had been delivered as
promised was later provided.
Despite the fact that applicant's
attorneys must have been aware that the respondent would not agree
to a further postponement
of the matter the legal representatives of
the applicant only arrived
Despite the advice of respondent's
attorneys regarding the importance of obtaining documentation
allegedly required by applicants,
no steps were immediately taken in
this regard and no adequate acceptable reason for such failure is
provided. Mr 5 Hassan's
averment that he could not attend to this
issue prior to confirmation from applicant's previous attorneys that
he could act on
her behalf, despite the filing of a notice of
withdrawal by the previous attorneys, is rejected. The outstanding
fees due to
yet another firm of attorneys need not have prevented
him from 10 proceeding to attempt to obtain the documents from
another
set of previous attorneys.
On 9 April 2008 Mr Hassan states
that he commenced preparation for trial. He states that he
consulted with applicant on 11 April
2008, immediately on her
return to South Africa from abroad. As stated previously it had been
advised that she was due to return
on 5 April 2008. It is quite
apparent that neither the attorney or the applicant or both had
allowed an inordinate amount of
time to elapse, prior to actually
attempting to start preparation for trial. Applicant clearly
regarded her overseas visit as
more important that attending to a
trial set down for a date she had agreed to after a previous
indulgence to her. It is further
alleged that it became apparent
during a consultation on 12 April 2008 that Despite the advice of
respondent's attorneys regarding
the importance of obtaining
documentation allegedly required by applicants, no steps were
immediately taken in this regard and
no adequate acceptable reason
for such failure is provided. Mr 5 Hassan's averment that he could
not attend to this issue prior
to confirmation from applicant's
previous attorneys that he could act on her behalf, despite the
filing of a notice of withdrawal
by the previous attorneys, is
rejected. The outstanding fees due to yet another firm of attorneys
need not have prevented him
from 10 proceeding to attempt to obtain
the documents from another set of previous attorneys.
On 9 April 2008 Mr Hassan states
that he commenced preparation for trial. He states that he
consulted with applicant on 11 April
2008, immediately on her return
to South Africa from abroad. As stated previously it had been
advised that she was due to return
on 5 April 2008. It is quite
apparent that neither the attorney or the applicant or both had
allowed an inordinate amount of
time to elapse, prior to actually
attempting to start preparation for trial. Applicant clearly
regarded her overseas visit as
more important that attending to a
trial set down for a date she had agreed to after a previous
indulgence to her. It is further
alleged that it became apparent
during a consultation on 12 April 2008 that certain crucial
documents were possibly among the
documents retained by attorneys
Mallinicks. These documents will purportedly show whether certain
monies advanced by the respondent
were in repayment of a debt, or
whether the payments 5 were a loan to the applicant.
No
explanation is given why no action was taken after the previous
postponement to obtain these documents. On 16 April 2008
the
documents delivered to the registrar's office were inspected,
as stated herein above. Mr Hassan states that it is
obvious that
there are many, as he calls them, pertinent
documents,
that relate to the
issues
in this
matter.
No
details are
provided. It is further submitted that the applicants will be
irreparably prejudiced if the trial were to continue
and they were
unable to counter-contest the
allegations that the respondent's advancement of funds constituted
loans payable on demand, because
of inadequate documentary
preparation.
As advised, and warned, previously
by respondent's attorneys, 20 applicant's attorney now realised that
the marshalling of all
available documentation is critical to ensure
that justice is done. A postponement is requested and wasted costs
tendered once
again. Previously ordered costs have not yet been
paid. Not the respondent that the main issue in the trial is
whether
respondents advances to the third defendant constituted
loans or not, and that this issue does not necessitate a detailed
inspection
of voluminous documentation necessitating another
postponement.
On
behalf of the respondent it was submitted that he will suffer
prejudice in the event of a postponement. His financial resources
have been depleted and he relies on a pension and social security.
In addition the stress of the matter is affecting his health
detrimentally.
As
regards the legal position it is correct that the granting of a
postponement is an indulgence and that it is in the Court's
discretion whether or not to allow a postponement. The discretion
must obviously be exercised judicially. The Court is usually
slow to
refuse a postponement where the true reason for the non-preparedness
for a litigant has been fully and satisfactorily
explained and where
it is clear that a postponement is not due to delaying tactics, or
where justice demands a further extension.
A postponement is not
granted where the application is brought about by an applicant's
lack of interest in proceedings or inexcusable
conduct on the part
of the attorney or the litigant or when a finalisation of a matter
is inordinately delayed.
After consideration of all the facts
and the law in this matter the applicants have failed to convince
the court that they are
entitled to a postponement in the matter.
There is a clear indication that 5 the first applicant is employing
delaying tactics.
No explanation has been given for her failure to
attend to the matter and especially her failure to obtain the
so-called crucial
documentation after the previous postponement she
was granted. I am not convinced that the further evidence that is
sought will
be relevant 10 and material or that it even exists.
Applicant has not shown that such evidence is not available through
no fault
of her own. Even if the documents are crucial the applicant
and her representatives will have sufficient time to deal there
with.
I
do not believe the applicant will be irreparably prejudiced if the
matter were to proceed. I agree with Mr Vivier that respondent
will
be prejudiced by a further postponement. In this case justice
demands that the matter be brought to finality. It is not
only the
interests of the applicant that are at stake. Finally finality
should now be reached in this matter that has dragged
on for far too
long, with a lot of indulgence shown to the applicant. I do not
agree with Mr Jefferies that prejudice is the
only important factor
in a
matter such as
this, I believe that proper administration of justice
is.
If the matter commences today, on a
Thursday afternoon, or on 5 Monday, the applicant and her
representatives will have the weekend,
starting on Friday morning
the 18
th
of April, to further prepare for trial. Applicant is in the
fortunate position that she does not have to commence to give
evidence.
There is no reason why applicant should not be ready to
proceed
on
Monday
21 April 10
2008. If this date is unacceptable for a good reason the parties may
decide if they would prefer to start on Tuesday.
I may be addressed
in chambers in this regard.
The
APPLICATION
FOR A POSTPONEMENT IS ACCORDINGLY REFUSED WITH COSTS
,
such costs to be on a scale as between attorney and client,
STEYN,
A J