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[2008] ZAWCHC 176
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Stoltenberg v Butler and Others (309/06) [2008] ZAWCHC 176 (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
GONTER 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 smalI delay, but at least the
representatives can be aware that I have given this matter some
consideration.
I have prepared quite a fong 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 mainfy to
disputed claims in a liquidated estate. The plaintiff,
the
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 Mallimcks 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
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
T
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 faifure 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 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-pre pa redness 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 HT8 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, Sassier 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 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 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 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 as may be
necessary to obtain the so-caned 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
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 Malli nicks, 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 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 fegal advisors have always
been free to attend on 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
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 in Cape Town
too Jate on 15 April 2008 to inspect the documents.
On 16 April, on
the trial date, the matter stood down, while they were allowed the
opportunity to inspect these crucial documents.
Subsequently however
they still requested a postponement and launched another substantive
application which was also opposed
substantively.
In
the founding affidavit to the application Mr Hassan, for the
applicants, alleges that it has not been possible for him in the
time since he has been involved in the matter, to adequately prepare
to properly represent the applicants at the trial if it
were to
commence immediately. Mr Hassan states that the applicant had had a
difference of opinion with her previous attorneys,
without
elaborating on the nature of such a difference. Neither was an
affidavit filed by the applicant herself, explaining the
position.
She also does not explain what steps, if any, were taken by her, to
obtain the crucial documents after the last postponement.
Why Mr
Hassan continued to insist on consent from the applicant's previous
attorneys that he could represent the applicant, even
after the
previous attorneys formally withdrew, is not explained, save for his
personal ethical reasons.
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 Hassan's averment
that he
coufd 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 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 Aprif
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 possfbly 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 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,
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 surprising
the respondent opposes a further postponement. Mr
Bronn, of Jan S de
Villiers Attorneys, representing respondent, submits that the
application for postponement is another attempt
by applicant to deny
the respondent the opportunity to present his case, and obtain
finality in the dispute between the parties.
Certain further
hitherto undisclosed facts were divulged to the Court, such as a
letter dated 13 March 2007, from attorneys Mallinicks,
to another
firm, apparently representing the applicant at one stage, namely
Abrahams and Gross Inc, and reference is made of
a file containing
documents and that after payment of a sum of money Mallinicks had
agreed to release the file pertaining to
Mrs Butler, the applicant's
against matter against Mr Stoltenberg, the plaintiff. The file had
apparently been collected by Mr
Sangarakis from attorneys E G
Coopers and Son during April 2006 when that firm was representing
applicant after Mallinicks had
withdrawn. The remainder of the files
were retained by Mallinicks, it was later alleged that the documents
released were not
the crucial documents in question.
Respondent's
attorney reiterates that applicant's sets of attorneys have always
been at liberty to inspect any files at the offices
of Mallinicks
and no reason has been given for their continuous failure to take
this course of action. It was submitted on behalf
of the respondent
that the main issue in the trial is whether respondents advances to
the third defendant constituted loans or
not
h
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 ah 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
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. \ am not convinced
that the further evidence that is sought will
be relevant 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.
1
do
not agree with Mr Jeffenes 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 Monday,
the applicant and her representatives will have the weekend,
starting on Friday morning the 18
th
of April, to further prepare for triaf. Appficant 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 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, AJ