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[2006] ZANCHC 47
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Everite Pipe AC (Pty) Ltd v Galama (871/2004) [2006] ZANCHC 47 (1 September 2006)
Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: 871/2004
Heard: 13/06/06
Delivered: 01/09/06
EVERITE
A C PIPES (PTY) LDT PLAINTIFF
versus
HERMANJOHANNESGALAMA DEFENDANT
JUDGMENT
MOKGOHLOA
AJ:
The
defendant brought an application seeking an order that the trial
that was set down for 13 June 2006 be postponed
sine
die
and that the plaintiff to carry the costs brought about by this
application. I was informed at the commencement of the trial that
the parties have agreed that the matter be postponed
sine
die
and what was to be argued was the issue of costs. The matter was
then postponed
sine
die
and I reserved my decision on costs. What follows is my ruling on
costs and reasons therefore.
The
main reason advanced by the defendant that necessitated the
postponement application is that the matter is not ripe for trial
and that the plaintiff is to blame for such a situation.
The
action concerns a claim for goods sold and delivered by the
plaintiff to Galama Engineering CC for an amount of R94 837.81.
The
defendant signed and bound himself as surety and co-principal debtor
in
solidum
with Galama Engineering CC in favour of the plaintiff for the due
and proper compliance by Galama Engineering CC of all its
obligations
to the plaintiff.
A
Notice of set down was served by the plaintiff on the defendant on
17 May 2006. On 22 May 2006 the defendant served a Notice
in terms
of Rule 35(1); (6) and (8) of the Uniform Rules on the plaintiff. A
Notice calling the parties to a pre-trial conference
was served by
the plaintiff on the defendant on 2 June 2006. The defendant served
his Discovery Affidavit on the plaintiff on
6 June 2006.
The
pre-trial conference was held on 8 June 2006 and by this time the
plaintiff had not yet delivered his Discovery Affidavit.
The
defendant then informed the plaintiff at the pre-trial conference
that he is being prejudiced and that it will be impossible
to
prepare for trial without the plaintiffâs Discovery Affidavit.
The defendant informed the plaintiff at the pre-trial conference
of
his intention to apply for a postponement with costs against the
plaintiff. The plaintiff agreed to the postponement but suggested
that there be no order as to costs alternatively, costs be costs in
the cause as both parties, according to the plaintiff, are
to blame
for non compliance with the Rules of Court.
Rule
37(1) states that a party who receives notice of the trial date of
an action shall, if he has not yet made discovery in terms
of Rule
35, within 15 days deliver a sworn statement which complies with
Rule 35(2). The authors of
Farlam,
et al
in
Erasmus
,
Superior
Courts Practice
Juta
,
at page B1-274A comment as follows:
â
The
effect of this sub rule (R37(1)) is that a party to an action is
obliged
to make discovery upon
receipt of notice of the trial date of an action even
where
such a party was not under Rule 35(1) required to make discovery
on
oath
â.
The
authors comment further on Rule 35(1) that:
â
The
rule is permissive in so far as it does not oblige a party to compel
his or
her opponent to give
discovery. However, discovery is a procedure designed
for the benefit of the
parties and failure to take advantage of the procedure
may
result in a disorderly presentation of the case in Court. In such a
case,
the court may show its
disapproval of a partyâs failure to apply for discovery
by an
adverse order as to costs
.
â
(at
page B1-250A-B1-251)
The
defendant received a notice of set down on 17 May 2006 and served
his discovery affidavit on 6 June 2006. The plaintiff who
set the
matter down for trial, only delivered his Discovery Affidavit on 9
June 2006, a day after the pre-trial conference. This
day was
outside the 15 day period. The 15 day period ended on 7 June 2006.
Rule 37(3)(a) provides that a pre-trial conference
â
shall
be held not later than six weeks prior to the date of hearing
â.
The
conference should thus have been held not later than 2 May 2006. On
this date the defendant had not yet received a notice of
set down.
It
is clear that the plaintiff being
dominis
litis
after receiving the notice of trial date set the matter down without
first satisfying himself that the matter was ripe for trial.
Also
clear is that the plaintiff served his Discovery Affidavit late and
thereby making it difficult for the defendant to prepare
for the
trial adequately.
It
is an accepted principle of our law that the party at whose instance
the postponement is obtained must pay the costs. See generally
Van
Rooyen v Naude
1927 OPD 122.
However, it was held in
Burger
v Kotze and Another
1970(4) SA 302 (W) at 304 that this may be the normal order if no
one is to blame for the postponement. But if a postponement
is
occasioned by the fault or default of one of the parties then wasted
costs are awarded against the party who was at fault or
in default.
Mr
de Koning who appeared on behalf of the plaintiff argued that the
defendant is also at fault as he failed to make demand for
the
compliance with his notice calling for discovery timeously and
further that the defendant did not compel the plaintiff in terms
of
Rule 35(7). Rule 35(1) provides that the party calling for
discovery must give another party 20 days within which to discover.
In the present case the plaintiff had until 20 June 2006 to
discover. Therefore the defendant could not have brought an
application
to compel. There was in my view no duty upon the
defendant to demand from the plaintiff of his (plaintiff) duties
under the Rules
of Court nor was the defendant under any obligation
to make use of a remedy available to him under Rule 35(7). In my
view blame
for the postponement of the trial should be attributed to
the plaintiff.
The plaintiff
acted unreasonably in opposing this application and I see no reason
why the costs order should not be granted against
him.
In
the result, I make the following order:
The
plaintiff is ordered to pay the party and party costs of this
application.
___________________
FE MOKGOHLOA
ACTING
JUDGE
For
the Plaintiff : Adv. de Koning
Instructed by : Venter &
Van Eeden Inc.
For
the Defendant : Adv. Coetzee
Instructed
by : Engelsman, Magabane Inc.