Horn v Swart and Others (549/01) [2003] ZANCHC 54 (1 June 2003)

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[2003] ZANCHC 54
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Horn v Swart and Others (549/01) [2003] ZANCHC 54 (1 June 2003)

Verslagwaardig:
JA/NEE Sirkuleer onder
Regters: JA/NEE
Sirkuleer
onder Landdroste: JA/NEE
IN DIE HOOGGEREGSHOF
VAN SUID-AFRIKA
IN
THE HIGH COURT OF SOUTH AFRICA
(Noord-Kaapse
Afdeling / Northern Cape Division)
Case No: 549/01
Date
Heard: 10/6/2003
Date
Delivered:
In
the case between:
CORNELIUS
JOHANNES GERHARDUS HORN PLAINTIFF
And
PIETER
JACOBUS SWART 1
st
DEFENDANT
NEL
& VENNOTE 2
ND
DEFENDANT
JC
(KOBUS) NEL 3
RD
DEFENDANT
JUDGMENT
TLALETSI,
AJ
INTRODUCTION
1. The parties have
agreed that this matter should not be proceeded with and should be
and was postponed
sine die
judgment reserved. What was argued
before me was at whose door the blame lies for the postponement as
such party had to bear the
costs occasioned by the postponement.
2. Plaintiff
enrolled the case for trial on the 10
th
– 12
th
June
2003. On the 28
th
March 2003 he served a Notice in terms
of Rule 36(9)(b) of the Supreme Court Rules on the defendants. This
notice was filed with
the Registrar’s office on the 31
st
March
2003. The document contains a summary of the evidence of Mr Benjamin
Van Den Heever, who plaintiff intended to call as his
expert. On the
5
th
June 2003 plaintiff served and filed a Supplementary
Rule 36(9)(b) Notice. This document is described as a further
summary of the
evidence to be tendered by Mr Van Der Heever.
3. Mr Van Staden who
appeared on behalf of the 1
st
defendant submitted,
inter
alia,
1
st
defendant was entitled to a postponement
because plaintiff introduced new matters in the supplementary Rule
36(9)(b) Notice. This
has created a need to consult an expert on
these matters. First Defendant was ready to proceed but for these
alleged new aspects.
Mr Van Staden further submitted that because
the Supplementary Notice was filed late 1
st
defendant is
entitled to costs. He was however prepared to allow the
determination of costs to stand over until the conclusion of
the
trial. First Defendant did not file a Rule 36(9)(b) Notice.
4. Mr Botha who
appeared on behalf of the plaintiff submitted that 1
st
defendant
should tender the costs as the postponement was at his request. He
argued that 1
st
defendant should have foreseen that an
expert will be used, and he instead waited until the last day to
decide whether or not to consult
the experts. He submitted that the
Supplementary Notice was merely an expansion on the Notice which had
been filed in compliance
with the Rule. He argued further that the
determination of costs should wait until the conclusion of the trial.
The basis for this
submission is that it is only at that stage that
the Court will be in a position to decide whether the defendants
would have been
prejudiced by the matters raised in the Supplementary
Notice.
5. Mr Green, on behalf
of the 2
nd
and 3
rd
Defendants submitted,
inter
alia
, that he was in a position to proceed and since the
plaintiff filed the Supplementary Notice late the plaintiff should be
responsible
for the costs being the defaulting party who seeks an
indulgence.
6. Rule 36(9) reads:
“(9) No person
shall, save with the leave of the Court or the consent of all parties
to the suit, be entitled to call as a witness
any person to give
evidence as an expert upon any matter upon which the evidence of
expert witnesses may be received unless he shall
(a) ---
(b) not
less than ten days before the trial, have delivered a summary of such
expert’s opinion and his reasons therefore”
As to the contents of
the summary referred to above the Appellate Division in
Coopers
(SA) Ltd v Deutsche Schädlingsbekämpfung MBH
(3) SA 352 (A) at
371
D - E per Wessels, JA.
said the following:-
“
In
deciding whether there has been due compliance with sub-rule (9) (b
), it is, in my opinion, relevant to have regard to the main
purpose
thereof, which is to require the party intending to call a witness to
give expert evidence to give the other party such information
about
his evidence as will remove the element of surprise, which in earlier
times (regarded as an element affording a tactical advantage)
frequently caused delays in the conduct of trials. Indeed, all the
sub-rules of Rule 36 were formulated with that purpose in mind.
Consequently, when summarizing the facts or data on which the expert
witness premises his opinions, the draughtsman should ensure
that no
information is omitted, where the omission thereof might lead to the
other side being taken by surprise when in due course
such
information is adduced in cross-examination or evidence
.”
7. One of the plaintiff’s
causes of action against the defendants according to the Particulars
of Claim is based on a fraudulent
misrepresentation allegedly made
regarding the value of the subject matter of the sale agreement and
the monthly income it generated.
Evidence on which the plaintiff
will rely in order to substantiate these allegations is contained in
the Supplementary Notice.
It is not in dispute that the
Supplementary Notice was filed less than the stipulated ten days
before the trial.
8. I endorse the
argument by Mr Botha that the time limits provided for in Rule 36(9)
are not designed to provide a litigant with
a tactical advantage over
the other party and each party has to prepare for trial individually.
Authority for this argument is found
in Doyle v Sentraboer
(Co-operative) Ltd 1993(3) SA 176 (SECLD). However this case is
distinguishable from the present case in that
in the former, the
Court had to consider a situation where a party requested a
postponement of the trial merely because the details
of an expert’s
opinion, delivered timeously in terms of the Rules of Court, added to
or even differed from views expressed previously
by other experts in
the same field. (See page 183 A). The cause of complaint in casu,
is different.
9. I am of the view that
in order to decide whether the supplementary Notice is merely an
expansion of the original Notice, regard
should be had to the
evidence as a whole. The trial Court will be in a better position at
the conclusion of the trial to decide
the nature and extent of the
differences if any, between the two Notices as well as the prejudice
caused to any parties.
10. In the exercise of my
discretion I am of the view, under the circumstances, that the wasted
costs occasioned by the postponement
of the trial should be reserved
for determination by the trial Court.
ORDER
The costs occasioned
by the postponement of the trial scheduled for 10 – 12 June 2003
including the costs of arguing the postponement
are hereby reserved
for decision by the trial Court.
_________________
L
P TLALETSI
ACTING JUDGE
(NORTHERN CAPE
DIVISION)
ADV. C BOTHA FOR THE
PLAINTIFF instructed by Messrs. ELLIOTT, MARIS, WILMANS & HAY
ADV.
W H VAN STADEN FOR THE 1
ST
DEFENDANT instructed by Messrs VAN DE WALL & PARTNERS
ADV.
I P GREEN FOR THE 2
ND
DEFENDANT instructed by Messrs. DUNCAN & ROTHMAN