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[2007] ZAWCHC 103
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Davidson v Davidson and Another (13125/06) [2007] ZAWCHC 103 (15 March 2007)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: 13125/06
DATE: 15 MARCH 2007
In the matter between:
GEOFFREY CLIVE
DAVIDSON
...........................................................................................
Applicant
And
TRUDIE ANNE DAVIDSON (bom
Tembe)
...............................................................
First
Respondent
THE SHERIFF, WYNBERG
SOUTH
....................................................................
Second
Respondent
JUDGMENT HANDED DOWN THIS 15™
DAY OF MARCH 2007
RILEY, AJ:
1. Applicant brought an application in
this court on the 4th December 2006 for an order staying the writ of
execution issued out
of this court on 13 October 2006 under Case
Number 2772/98 and directing the first respondent to provide the
applicant with the
necessary bank statements indicating proof of
payment since 1998 to 2004.
2. On 4 December 2006 the matter was
postponed by agreement between the parties and Allie, J ordered that:
“1. The matter is postponed to
the semi-urgent roll of the Fourth Division of this Honourable Court
on Monday 12 March 2007
at 10h00 or soon thereafter as counsel for
the parties may be heard.
2. The writ of execution issued by the
Registrar of this Court on 13 October 2005 under Case No 2772/98
annexed thereto as ‘A’
is stayed pending the finalisation
of the matter.
3. The first respondent shall file its
Answering Affidavit on or before Monday 22 December 2006.
4. The first respondent shall provide
applicant with all her bank statements for the period from 1 June
1998 to 1 May 2004 on or
before Monday 22 December 2006.
5. The applicant shall file its
Replying Affidavit, if any, on or before Friday 26 January 2007.
6. The parties shall file their Heads
of Argument in accordance with the Rules of this Honourable Court.
7. Costs of the application shall stand
over for later determination. ”
3. It is common cause that first
respondent failed to file an Answering Affidavit by 22 December 2006
and further failed to provide
applicant with her bank statements for
the period 1 June 1998 to 1 May 2004 by 22 December 2006.
4. On 12 March 2007, i.e. the date on
which the main action was to be heard, first respondent, who was
represented by Mr W Fisher,
served on Mr B Atkins, applicant’s
counsel, at court, a Notice of Motion in terms of which first
respondent sought the following
relief:
“1. Condoning applicant’s
failure to conform to the Uniform Rules of Court relating to
time-periods, service and form
and hearing this matter as one of
urgency.
2. Postponing the main application
under the above-named case number to a date to be determined by the
above Honourable Court pending
applicant filing her Answering
Affidavits and Heads of Argument in the said main application.
3. Granting applicant such further
and/or alternative relief as this Honourable Court may deem fit.
4. Costs in the event of opposition. ”
5. A perusal of the Notice of Motion
shows that it is undated and no address is indicated as a service
address in terms of the Rules
of Court. The supporting affidavit of
the first respondent is dated 12 March 2007 and the court was advised
that it was prepared
on the morning of 12 March 2007. Doubt is
expressed whether there has been proper compliance with the
provisions of Rule 12(a)
and (b) of the Rules of Court.
6. During argument for the postponement
of the main matter, Mr Fisher argued that the court should approach
the first respondent’s
request for a postponement with
sympathy. The thrust of his argument was that the reason for first
respondent’s unreadiness
is due to the fact that she was unable
to obtain the bank statements timeously. He conceded in argument that
even though first
respondent has attached some of the bank statements
required by applicant to her affidavit in support of her request for
the postponement
that there were several months and at least one year
of bank statements outstanding.
7. The following is not disputed:
7.1 that first respondent’s
attorney had moved offices during December 2006 from Cape Town to
Joostenbergvlakte;
7.2 that he had failed to notify
applicant’s attorney of this fact, nor did he provide
applicant’s attorney with a service
address which was required
in terms of the Rules of Court;
7.3 that applicant’s attorney
eventually managed to track down the first respondent’s
attorney and the latter then suggested
that a round table conference
be held between the two legal teams to discuss the matter;
7.4 the round table conference took
place on 9 February 2007 and the applicant was represented by Ms
Naslev Abrahams and Adv Atkins,
whilst first respondent was
represented by Mr Mever and Adv Fisher.
7.5 At this meeting first respondent’s
legal team confirmed that they were aware that:
7.5.1 the matter was due for hearing by
this Honourable Court on 12 March 2007;
7.5.2 the first respondent was in
breach of the terms of the order taken on 4 December 2006 in that
first respondent had failed
to supply applicant with her bank
statements and that she failed to file an Answering Affidavit;
7.5.3 first respondent confirmed that
she was in possession of copies of the relevant bank statements
required by the applicant;
and
7.5.4 first respondent’s legal
representatives further agreed that first respondent would file her
answering affidavit on/before
Thursday 15 February 2007.
7.6 first respondent and her legal
representatives failed to make first respondent’s bank account
statements available to
the applicant on 12 February 2007;
7.7 since 13 February 2007, applicant’s
attorney made repeated calls to the offices of the first respondent’s
attorney
of record on virtually a daily basis;
7.8 first respondent has failed to make
her bank statements available to the applicant, nor did first
respondent’s attorney
of record return the telephone calls of
applicant’s attorney;
7.9 first respondent failed to file her
answering affidavit in this matter on 15 February 2007 as she
undertook to; and
7.10 despite repeated telephone calls
on a daily basis by applicant’s attorney to first respondent’s
attorney since
16 February 2007, first respondent failed to file her
Answering Affidavit in this matter, nor has first respondent’s
attorney
of record returned applicant’s attorney’s
telephone calls.
8. Mr Atkins argued with reference to
authority that first respondent should not have brought her
application in this court and
that the Maintenance Courts in terms of
the
Maintenance Act, No 99 of 1998
, could provide her with more than
adequate relief for her alleged problem. He argued that the first
respondent should have exhausted
all the resources and remedies
available to her in the maintenance office of the Magistrate’s
Court and if she had exhausted
all the remedies and was still not
assisted in that court, that only then should she have approached
this court.
9. Based on first respondent’s
conduct of this matter, Mr Atkins argued that this court should not
grant a postponement, but
rather grant applicant the relief sought in
the Notice of Motion in the main action. He contended that if the
court granted applicant
the relief sought in the Notice of Motion
that first respondent would not be denied her right to be heard on
the matter and that
she could still approach the Maintenance Court
for relief.
10. Mr Fisher was vigorously opposed to
such a drastic intervention by this court and argued that first
respondent was not precluded
from approaching the High Court for the
writ for the purpose of enforcing payment of a High Court maintenance
order. He was adamant
that first respondent had approached the
correct forum for relief.
11. He argued that to refuse a
postponement in these circumstances would be to deny the first
respondent a hearing. He contended
that no undue prejudice would be
caused to applicant by the postponement and that whatever prejudice
was suffered by applicant,
could be remedied by an appropriate cost
order.
12. The relevant legal principles,
which find application when a court has to grant a postponement to a
party, are clearly set out
in the matter of Myburci Transport v Botha
t/a SA Truck Bodies 1991(3) SA 31 (NMSC) at p 314F-J to p 315A-H and
can be summarised
as follows:
12.1 The trial judge has a discretion
as to whether an application for a postponement should be granted or
refused.
12.2 The discretion must be exercised
judicially and not be exercised capriciously or upon any wrong
principle, but for substantial
reasons.
12.3 A court should be slow to refuse a
postponement where the true reason for a party’s
non-preparedness has been fully explained,
where his unreadiness to
proceed is not due to delaying tactics and where justice demands that
he should have further time for
the purpose of presenting his case.
12.4 An application for a postponement
must be made timeously, i.e. as soon as the circumstances which might
justify an application
became known to the applicant. A court may,
considering principles of fundamental fairness and justice, justify a
postponement
even if the application was not timeously made.
12.5 An application for postponement
must always be bona fide and not used simply as a tactical manoeuvre
for the purpose of obtaining
an advantage to which applicant is not
legitimately entitled.
12.6 Considerations of prejudice will
ordinarily constitute the dominant component of the total structure
in terms of which the
discretion of a court will be exercised. The
court will primarily consider whether any prejudice caused by a
postponement to the
adversary of the application for a
postponement can fairly be compensated
by an appropriate orders of costs or any other ancillary mechanisms.
12.7 The court should weigh the
prejudice which will be caused to the respondent in such an
application if the postponement is granted
against the prejudice
which will be caused to the applicant if it is not.
12.8 Where the applicant for a
postponement has not made his application timeously or is otherwise
to blame with respect to the
procedure which he has followed, but
justice nevertheless justifies a postponement in the particular
circumstances of a case, the
court in its discretion might allow the
postponement, but direct the application in a suitable case to pay
the wasted costs occasioned
to such respondent on the scale of
attorney and client. Such an applicant might even be directed to pay
the costs of his adversary
before he is allowed to proceed with his
action or defence in the action, as the case may be.
13. After hearing argument, it is clear
to me that the absence of the bank statements has affected both
parties in the preparation
of their respective cases. As a
consequence, the main matter is not ripe for hearing.
14. The court has given careful
consideration to the arguments presented and based on considerations
of justice and fairness the
court has decided to exercise its
discretion in favour of the first respondent and accordingly condones
first respondent’s
failure to conform with the Rules of the
Court relating to the hearing of this matter as one of urgency and
grants first respondent
a postponement.
15. However, in considering the
question of cost, the court has regard to the following: The court is
not satisfied that first respondent
has set out fully the reasons for
her nori-preparedness. What is of concern to the court is that first
respondent’s attorney
has failed and refused to provide a
reasonable explanation for the present state of affairs of this
matter. First respondent has,
either by her own conduct or through
the conduct of her legal representatives, failed and neglected to put
into place certain steps
and/or mechanisms in anticipation of the
fact that she would not be able to obtain the information required by
applicant during
the time periods agreed to by her. The court is
unable to comprehend how first respondent could give the undertaking
to provide
the bank statements to applicant (i.e. at the round table
conference) if she is presently still not in possession of all the
bank
statements.
16. What is of further concern, is the
fact that first respondent’s attorney failed and neglected to
contact applicant’s
attorney at all to advise of first
respondent’s dilemma. The court is not convinced by Mr Fisher’s
argument that the
first respondent was waiting up until the last
moment to obtain the bank statements. If the statements were not
obtained and provided
in time, it would in any event have
necessitated a request for a postponement and new timetables for
filing of papers would have
had to be worked out.
17. When the statements were not
obtained on the date which had been agreed on at the round table
conference, nothing prevented
first respondent’s attorney from
addressing appropriate correspondence to applicant’s attorney.
First respondent’s
attorney also did not have the courtesy to
contact applicant’s attorney when it must have been obvious to
him that first
respondent would not be able to comply with Allie.J’s
order. It is common cause that first respondent’s attorney had
also failed to communicate to the applicant’s attorney in
advance the reasons for first respondent’s failure to file
answering affidavits on the main action, as this would clearly have
the effect that she would not be able to proceed with the matter
at
all.
18. The court is satisfied that both
first respondent and her attorney were grossly negligent in their
conduct of the matter thus
far. The court is satisfied that this is a
suitable case where I can order that the first respondent pay the
costs of the applicant
on the scale of attorney and client in respect
of the application for a postponement. The court will not make an
order that first
respondent be directed to pay the costs of applicant
before she is allowed to proceed with the defence of the action.
19. In the result, I make the following
order:
19.1 The matter is postponed to the
semi-urgent roll of the Fourth Division of this Honourable Court on
13 August 2007 at 10h00
or so soon thereafter as counsel may be
heard.
19.2 The writ of execution issued by
the Registrar of this Honourable Court on 13 October 2006 under Case
No 2772/98 annexed hereto
as “A” is stayed pending the
finalisation of this matter.
19.3 The first respondent shall file
its Answering Affidavit and provide the applicant with all her bank
statements for the period
from 1 June 1998 to 1 May 2004 on or before
16 May 2007.
19.4 The applicant shall file its
Replying Affidavit, if any, on or before 15 June 2007.
19.5 The parties shall file their Heads
of Argument in accordance with the Rules of this Honourable Court.
19.6 First respondent is ordered to pay
the costs of the application for the postponement on the scale of
attorney and client, such
costs to be taxed.
RILEY AJ