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[2008] ZAWCHC 272
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Nedbank Ltd v Amalgamated Properties Holding (Pty) Ltd (1369/2006) [2008] ZAWCHC 272 (15 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
1369/2006
DATE:
15
OCTOBER 2008
In
the matter between;
NEDBANK
LIMITED
Plaintiff
and
AMALGAMATED
PROPERTY HOLDINGS (PTY) LTD
Defendant
RULING
BOZALEK.
J
During
the cross-examination of the plaintiff's first witness yesterday it
appeared that the defendant's case as it was being
put to the
witness was somewhat different to that pleaded. The case stood down
a little early so that the defendant coufd be
afforded an
opportunity to formally seek an amendment to its plea. This morning
Mr Mouton, director of the defendant company,
and who appears on
behalf of the defendant in person, applied for a postponement of the
matter so that defendant could amend
its plea and file a
counterclaim. He tendered the wasted costs occasioned by the
postponement.
The
application for postponement was initially opposed by
Mr
Vos
on
behalf of the plaintiff, but he has withdrawn his client's
opposition on the basis that the postponement would be for a limited
period. This was after I indicated to the parties that if a
postponement was granted I envisaged that it would only be until
later this term.
I
am disposed to grant a postponement in no small part because the
defendant is legally unrepresented, and I am not persuaded
that the
applicant, ie the defendant, is
mala
fide
or
that it amounts to a time wasting tactic. I propose to allow a
postponement to 3 December 2008 to allow the defendant to place
its
pleadings in order. To that end I will order that the defendant must
file the necessary documentation by 11 November at the
latest, which
is a period of some four weeks, which will give the plaintiff at
least three weeks to come to terms with any new
case it may have to
meet.
I
do not propose to set out precisely what notices or documents must
be filed, because it is by no means clear to me exactly what
steps
defendant may or will take to refashion its case once new attorneys
are appointed and consulted.
1
should
mention that the defendant's last set of attorneys withdrew the day
before trial, Mr Mouton has mentioned that defendant
will be
engaging new legal representation. I hope that this proves to be the
case for any number of reasons. In the first place,
in my view, the
defendant's interests will be better served if it is legally
represented. Secondly, on the resumption of this
matter I expect
that it will be, that the matter will run and that the substantive
dispute between the parties will be dealt
with. The defendant should
not be misled or lulled into believing that it will always be able
to obtain a postponement or enjoy
similar indulgences, because it
may be legally unrepresented, in my view it ts in the public
interest and in the interest of
the administration of justice that
litigation is disposed of with reasonable expeditiousness.
I
wish also to record that granting the postponement should not be
understood as indicating that the applicant, defendant, has
been
granted leave to file a counterclaim, or that each and every
proposed amendment which it may seek will be granted. On the
other
hand I have indicated to the representatives that I would like to
see that the substantive issues between the parties
are dealt with
on the resumed date, and that neither party stands on procedural
points.
As
far as the costs are concerned
Mr
Vos
asked that the cost order be made on the scale of attorney and
client, but I am not persuaded that factors are present to justify
such an order. 1 therefore make the following order;
The
matter is postponed for hearing to 3 December 2008;
Defendant
must by no later than 11 November 2008 serve and file whatever
notices are necessary in order for it to put its pleaded
case in
order, before the resumed hearing on 3 December 2008;
The
defendant is ordered to pay the wasted costs occasioned by this
postponement.
BOZALEK, J