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2024
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[2024] ZANCHC 31
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MEC: Department of Agriculture, Land Reform and Rural Development: Northern Cape v Civil Tech Construction CC (828/2019) [2024] ZANCHC 31 (12 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
Number: 828/2019
Date
Heard: 11/03/2024
Date
Delivered:12/03/2024
Reportable:
YES /
NO
Circulate
to Judges: YES /
NO
Circulate
to Regional Magistrates: YES /
NO
Circulate
to Magistrates: YES /
NO
In
the application of:
THE
MEC: DEPARTMENT OF AGRICULTURE,
LAND
REFORM AND RURAL DEVELOPMENT:
NORTHERN
CAPE
APPLICANT
and
CIVIL
TECH CONSTRUCTION
CC
RESPONDENT
IN
RE:
CIVIL
TECH CONSTRUCTION
CC
PLAINTIFF
AND
THE
MEC: DEPARTMENT OF AGRICULTURE,
LAND
REFORM AND RURAL DEVELOPMENT:
NORTHERN
CAPE
DEFENDANT
Coram:
Tyuthuza AJ
JUDGMENT
ON APPLICATION FOR POSTPONEMENT
Tyuthuza
AJ
INTRODUCTION
1.
The present trial proceedings served before me as an
action by the plaintiff for
payment
of the sum of R31,804,375.51 for services rendered during 2010 and
2011 pursuant to an agreement with the defendant. The
defendant
has to date failed to pay and disputes that the plaintiff had the
necessary approval or consent as provided for in the
Conservation of
Agricultural Resource Act 43 of 1983.
2.
Pursuant to the parties obtaining a trial ready
certificate, the matter was set down for 11 March 2024 to 13 March
2024.
APPLICATION
FOR POSTPONEMENT
3.
On the date of
the hearing, the applicant launched a substantive application for
postponement. I stood the matter down for
the respondent to
file its answering affidavit, after it had indicated that it would
oppose the application for postponement.
4.
The respondent
delivered its answering affidavit on 11 of March 2024 and the
applicant chose not to file a replying affidavit.
5.
The
application for postponement is premised on the applicant’s
unpreparedness to proceed with trial as the applicant’s
attorneys only received instructions on 6 March 2024.
6.
Adv
Motselebane, for the applicant, contends that the application is
bona
fide
and
that the applicant will suffer more prejudice than the respondent if
the application is not granted because the matter is complicated
and
has huge financial implications for the applicant. She further
contends that the applicant has attempted to resolve the
matter
internally and has attempted to drive the legal process.
7.
Adv Knoetze
SC, for the respondent, contends that this application for
postponement is demonstrative of the applicant’s lack
of
seriousness in finalising the matter. He further contends that
the applicant has failed to take the Court into its confidence
by not
proffering reasons for the state attorney withdrawal. He
submitted that there is no merit in the application for postponement
and that it must be dismissed with costs.
8.
It is clear
from the papers filed in this application that the applicant has:
8.1.
Waited until
the eleventh hour to file its application for postponement, after
having intimated in June 2023 that they are ready
to proceed with the
matter.
8.2.
Waited until
the eleventh hour to appoint legal representatives after having
intimated in June 2023 that it would appoint attorneys.
8.3.
Failed to
disclose all the facts leading up to this application.
9.
Of
significance is the fact that the applicant was aware of the trial
date since August 2023 but, despite numerous correspondence
from the
respondent’s attorney in February 2024 indicating that the
trial would proceed from 11 to 13 March 2024, the applicant
did
nothing. Having regard to the applicants conduct, I find that
it is solely to blame for its unpreparedness.
BACKGROUND
The
background succinctly in relation to this application is the
following:
10.
On 24 March 2023 the parties
convened a pre-trial conference before Nxumalo J. The pre-trial
minutes were signed on 13 June 2023,
wherein it was agreed that the
matter is ready to proceed to trial and that the applicant agreed
that it would make a decision
on whether it would appoint attorneys.
On 4 July 2023 a certificate of trail readiness was issued.
The application
for a trial date was made during July 2023,
whereafter the Registrar of this Court allocated a trial dates of 11
to 13 March 2024.
Due notice of this trial date was given to
the applicant in August 2023.
11.
It is common cause that the
applicant’s erstwhile attorneys, the State Attorney, had
withdrawn on 3 June 2020 and that the
applicant has been
unrepresented since.
12.
On 5 March 2024, the applicant
appointed Mosikare attorneys to represent it and filed its notice of
appointment on 7 March 2024.
Upon an enquiry from the court on
7 March 2024, the applicant’s attorney advised that it would
not be ready to proceed
with the trial and would approach the
respondent’s attorneys for future dates.
13.
On 7 March 2024 the applicant’s
attorneys contacted the respondent’s attorneys requesting the
trial bundle. On
8 March 2024, the applicant’s attorney
advised the respondent’s attorneys that the applicant would not
be ready to
proceed with trial on 11 March 2024, and requested a
postponement of the matter and also tendered the wasted costs.
14.
The respondent
indicated that it is opposed to the postponement of the matter and is
ready to proceed.
LAW
15.
I
t
is trite that the party seeking postponement must proffer good and
strong reasons therefor and that the applicant must give a
full and
satisfactory explanation of the circumstances that gave rise to the
application
[1]
.
The application itself must be
bona
fide
and must not be used as a tactical endeavour to obtain an advantage
to which the applicant is not entitled.
16.
Factors
that need to be taken into account in an application for a
postponement are set out by the Constitutional Court in
National
Police Service Union and Others v Minister of Safety and Security and
Others
[2]
where Makgoro J said:
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as of right. An applicant for a postponement
seeks an indulgence from the Court. Such postponement will not
be granted unless this Court is satisfied that it is in the
interests
of justice to do so. In this respect the applicant must show
that there is good cause for the postponement. In
order to satisfy
the Court that good cause does exist, it will be necessary to furnish
a full and satisfactory explanation of the
circumstances that give
rise to the application. Whether a postponement will be granted
is therefore in the discretion of
the Court and cannot be secured by
mere agreement between the parties. In exercising that
discretion, this Court will take
into account a number of factors,
including (but not limited to): whether the application has been
timeously made, whether the
explanation given by the applicant
for postponement is full and satisfactory, whether there is
prejudice to any of the parties
and whether the application is
opposed.
’
17.
The
Constitutional Court has also held that
the
interests of justice is determined not only by what is in the
interests of the immediate parties, but also by what is in the
broader public interest.
[3]
18.
A postponement
is usually accompanied by wasted costs which the court is called upon
to award to one of the parties. The award
is a matter wholly
within the discretion of the court, but it is a judicial discretion
which must be exercised on grounds upon
which a reasonable person
could have come to the conclusion arrived at.
19.
In
considering the court’s discretion, it was held in
Fripp
v Gibbon & Co
[4]
that:
“
the
law contemplates that [the Judge] should take into consideration the
circumstances of each case, carefully weighing the various
issues in
the case, the conduct of the parties and any other circumstance which
may have a bearing upon the question of costs,
and then make such
order as to costs as would be fair and just between the parties.
”
ANALYSIS
20.
The respondent’s answering
in the application for postponement sets out detailed averments
illustrating that various correspondence
was addressed to the
applicant’s legal advisor regarding the trial and it is clear
that the respondent’s attorney of
record went to substantial
lengths to ensure that the applicant was aware that the respondent
would be ready to proceed with trial.
21.
There is no
explanation why the applicant has not prosecuted this matter to
finality in almost seven years and yet it still seeks
a further
indulgence “
for
further time to be able to present its case
.”
22.
As alluded to
above, an application for postponement must be made
bona
fide
. It
must have a specific objective in mind, and it must give due
consideration for competing role-players that co-exist within
the
interests of justice. Bona fides is analogous to good faith. I
have no basis to doubt the
bona
fides
of
the application for the postponement. The applicant’s
counsel indicated in open court, candidly and on record that
the
applicant’s case would not be presented properly in light of
the combined experience of the applicant’s representatives.
It
is clear that the applicant will be unable to proceed with trial
without proper and adequate preparation if the application
for the
postponement is dismissed.
23.
In light of
the fact that the parties are unable to reach a settlement, the
merits and quantum of this matter will have to be fully
ventilated
for a well-informed decision to be reached. I am of the view
that the application for postponement was made with
a
bona
fide
intention, even if it’s argued that the application was not
made timeously, I am of the view that the fairness and interests
of
justice justify a postponement of the matter. Given the
circumstances of this case, justice demands that the applicant
cautiously be given time for the purpose of presenting its case.
24.
The
applicant’s tardiness with actively pursuing the matter and
preparing for the trial is relevant in determining the costs.
The
respondent was ready to proceed with trial and finalise the hearing,
despite the applicant having been aware of the trial
date in August
2023. In the circumstances the respondent is entitled to be
compensated for wasted costs.
25.
As a result, I
make the following order:
(a)
The trial
which was set down for 11 to 13 March 2024 is postponed to 21 to 24
May 2024
;
(b)
The applicant
is ordered to pay the wasted costs occasioned by the postponement,
including the costs of two counsel as well as the
reservation fees of
both senior and junior counsel for trial.
T
TYUTHUZA AJ
ACTING
JUDGE
APPEARANCES
:
On
behalf of the Applicant:
Adv.
K. Motselebane
On
the instruction of:
Mosikare
Attorneys
On
behalf of the Respondent:
Adv.
B. Knoetze SC & Adv J.G. Gilliland
On
the instruction of:
Haarhoffs
Inc.
[1]
See National Police Service Union (note 2 above) at 1112 C-F;
Shilubana and Others v Nwamitwa (National Movement of Rural
Women
and Commission for Gender Equality as Amicus Curiae)
[2007]
ZACC 14
;
2007
(5) SA 620
(CC)
at 624B-C;
[2]
National
Police Services Union and Others v Minister of Safety and Security
and Others (CCT21/00)
[2000] ZACC 15
;
2000 (4) SA 1110
;
2001 (8)
BCLR 775
(CC) (27 September 2000)
[3]
Psychological Society f South Africa v Qwelane and
Others
(CCT226/16)
[2016] ZACC 48
;
2017 (8) BCLR 1039
(CC) (14 December 2016)
[4]
1913
AD 354
at
363
.