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2024
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[2024] ZAFSHC 206
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Fourie and Another v Matjhabeng Local Municipality (5316/2019) [2024] ZAFSHC 206 (28 June 2024)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No.: 5316/2019
In
the matter between:
SUSANNA
CATHARINA FOURIE
FIRST
PLAINTIFF
JOHANNES
CHRISTOFFEL WELMAN
SECOND
PLAINTIFF
And
MATJHABENG
LOCAL MUNICIPALITY
DEFENDANT
Judgment
by:
VAN
RHYN, J
Heard
on:
15 MAY 2024
DELIVERED
ON:
28
JUNE 2024
[1]
The applicants, the plaintiffs in the action, is applying for a
postponement of a trial that was set
down by the plaintiffs for
hearing on the 14
th
, 15
th
and 17th of May 2024.
The application is opposed by the respondent. For ease of
reference I refer to the applicants as the
plaintiffs and the
respondent as the defendant.
[2]
The plaintiffs are Mrs Susanna Catharina Fourie, a
farmer from Henneman, Free State Province, cited as the
first
plaintiff and Mr Johannes Christoffel Welman, the second plaintiff.
The second plaintiff used to farm on a farm in the Ventersburg
district, Free State Province. Prior to the hearing of this matter
the second plaintiff passed away. The action instituted by the
plaintiffs on 15 November 2019 concern a claim for damages against
the defendant, Matjhabeng Local Municipality in respect of a
fire
that allegedly originated, alternatively, spread from the property
owned by the defendant at Phomolong Township, Henneman.
[3]
To comprehensively deal with the application for postponement it is
necessary to set out the history
that precipitated the application
for postponement. The background and chronology of the events leading
to the application for
postponement are as follows:
3.1
Subsequent to the closing of pleadings, the plaintiffs filed a
discovery affidavit on 12 April 2021.
3.2
On 13 August 2021 the plaintiffs issued a substantive application for
an order for the defendant to
deliver their reply to the plaintiffs’
request to make discovery in terms of Rule 35(1)(2)(6)(8) and (12)
dated 28 January
2021.
3.3
The defendant filed a discovery affidavit on 25 August 2021.
3.4
The plaintiffs appointed 21 April 2023 and their counsel’s
chambers as the date and place for
convening a pre-trial conference.
3.5
The minutes pertaining to the first pre-trial conference, held on 21
April 2023 was filed on 23 May
2023.
3.6 On
4 December 2023 the matter was declared to be trial ready.
3.6
The plaintiffs enrolled the matter on 19 January 2024 to be heard on
14, 15 and 17 May 2024.
3.7
The plaintiff’s filed a supplementary discovery affidavit on 25
March 2024.
3.8
The defendant filed an unsigned supplementary discovery affidavit on
14 May 2024.
3.9
The plaintiffs made amendments to the particulars of claim, on 25
August 2020 and on 25 March 2024 to which
no objection was raised and
the amendment was effected on 11 April 2024.
3.10 On 9 May
2024 the defendant filed a notice to amend the plea in terms of
Rule
28.
3.11 On 10
May 2024 the plaintiff filed a notice of objection to the defendant’s
proposed amendment dated 9 May
2024.
[4]
On 14 May 2024, the first day of the trial, the matter stood down
until the following morning
to enable the parties to discuss certain
aspects. On 15 May 2024, Mr Roux, counsel on behalf of the
plaintiffs, handed up a bundle
of correspondence and documents
relating to the defendant’s amendment during the application
for postponement brought from
the bar. From the correspondence
included in the bundle it appears that the attorneys on record for
the defendant informed the
attorney on record for the plaintiffs on 8
May 2024 that the defendant intends to amend the defendant’s
Plea in terms of
the Notice to Amend attached to the letter pursuant
to the plaintiffs’ amendment delivered on the 11
th
of April 2024.
[5]
The plaintiffs were requested to consent to the defendant’s
amendment of its plea to avoid
delays in the adjudication of the
matter. On 10 May 2024 the plaintiffs addressed a letter to the
defendant in response to the
letter dated 8 May 2024 and subsequent
to considering the proposed amendment of the plea and responded as
follows:
“
2.1 We do not
object to your proposed amendment regarding paragraph 5 of your
client’s plea.
2.2 We do object to
your proposed amendment to paragraph 9 of the plea. Kindly find
attached hereto the formal Notice
of Objection.”
[6]
The plaintiffs’ objection to the defendant’s proposed
amendment of its plea is based
on the following grounds:
6.1
The notice of the proposed intention to amend was served 3 court days
prior to the commencement of
the trial;
6.2
The amendment raises further issues on which the plaintiffs will need
to obtain instructions, consider
a replication and further trial
preparation.
6.3
Summons was issued during 2019. The defendant filed its plea
during January 2020. The amendment
would furthermore entail that the
plaintiffs obtain instructions and possible witnesses relating to a
fire that occurred during
August 2017. According to the plaintiffs,
it is doubtful whether such witnesses, including documentary
evidence, will still be
available.
6.4
In the event of the proposed amendment to the defendant’s plea
being allowed, it would lead to
the postponement of the trial.
6.5
The plaintiffs will be severely prejudiced if the amendment is
allowed.
[7]
On 10 May 2024 the defendant indicated that as a result of the
plaintiffs’ initial averment
that the fire occurred on 14
August 2017, which date has been amended on 11 April 2024 without
objection to read 12 August 2017,
the defendant had to substantially
re- prepare for trial, consult, take instructions, all as a matter of
urgency, and thereby requiring
an amendment to the defendant’s
plea. The defendant confirmed its intention to proceed with the
proposed amendment of the
plea which was prompted by the late
amendment of the plaintiffs’ particulars of claim. The
defendant stated that it is ready
to proceed with the trial on the
allocated dates and if the plaintiffs intend to ask for a
postponement of the trial, a tender
for costs is awaited.
[8]
In response to the above mentioned letter, the plaintiffs replied
that the plaintiffs effected
the amendment of the particulars of
claim on 11 April 2024, where after it took the defendant 19 court
days to file a notice of
its intention to amend its plea. In
any event, the plaintiffs merely amended the date on which the fire
occurred which could
hardly have resulted in a reason to
“substantially re-prepare for trial”. Accordingly,
the plaintiffs proposed
that should the defendant accept liability
for the plaintiffs’ wasted costs occasioned by the
postponement, including the
costs of counsel, the applicant will
proceed to obtain instructions regarding the possibility to agree to
the postponement of the
trial.
[9]
During his address, Mr Roux argued that on 14 May 2024 when the
plaintiff’s legal team arrived
at court they received an
unsigned supplementary discovery affidavit from the legal
representatives of the defendant. From the
supplementary discovery
affidavit it was ascertained that Incident Report 164/2018 by the
Matjhabeng Fire Station pertaining to
an incident on 12 August 2017
was available. A copy of the said report was requested by the
plaintiffs and received per WhatsApp
during the evening of 14 May
2024, the first day of the trial.
[10]
The plaintiffs endeavoured to finalize a supplementary expert report
subsequent to studying Incident report
164/2018, however, the expert,
who is said to have worked most of the previous night, was unable to
finalize the supplementary
report with the result that the plaintiffs
are not in a position to proceed with the trial. Due to the late
discovery of the said
incident report, the plaintiffs are placed in a
predicament regarding the evidence they wish to present during the
trial. The defendant
did not advance any reason why the said incident
report had not been discovered in terms of the Rules of Court.
[11]
Counsel on behalf of the defendant, Ms Manyelo, argued
that the defendant did not receive any indication that
the plaintiff
would be seeking a postponement of the trial and are therefore quite
surprised by the conduct of the plaintiffs.
In any event if the
proposed amendment by the defendant is the cause for the request for
the postponement, the defendant is willing
to withdraw the proposed
amendment of the plea in order for the trial to proceed. On behalf of
the defendant it was contended that
if the court should grant the
postponement that the plaintiff should carry the costs.
[12]
A court has a wide discretion as to whether an application for a
postponement should be granted or refused.
The discretion must
be exercised in a judicial manner. An applicant for a
postponement is seeking an indulgence and therefore
the applicant
must set out good and strong reasons furnishing a full and
satisfactory explanation of the circumstances that gave
rise to the
application for postponement.
[13] An
application for postponement must be made timeously, as soon as the
circumstances which must justify such
an application becomes known to
the applicant. Naturally an application for postponement must
be made
bona
fide
and
must not be used as a tactical manoeuvre. The main test for a
court in deciding whether a postponement must be granted
is
considerations of prejudice.
[1]
[14]
The term ‘discovery’ is used to describe the process by
which the parties to civil proceeding are enabled
to obtain, within
certain defined limits, full information of the existence and the
contents of all relevant documents relating
to any matter in question
between the parties and which are, or have been in their possession.
The function of discovery is to
provide the parties with the relevant
documentation prior to the trial or hearing so as to assist them in
appraising the strength
or weakness of their respective cases and
thus to provide the basis for a fair disposal of the proceedings
before or at the hearing.
[15]
Each party is therefore enabled to use, before the hearing or adduce
in evidence at the hearing, documentary evidence
to support or rebut
the case made by or against him or her. The function of discovery is
further to eliminate surprise at or before
the hearing relating to
documentary evidence and to reduce the costs of litigation.
[16]
In the matter at hand the plaintiffs filed a notice to make discovery
in terms of Rule 35 on 28 January 2021 and was
obliged to file a
substantive application before the defendant complied with the
provisions of Rule 35. Discovery affidavits
and the discovery
of relevant documents are very important in every trial. During the
pre-trial conference held on 21 April 2023
it was noted that both
parties have already filed their discovery affidavits and reserve the
right to file further discovery affidavits.
It can be assumed that
both parties agreed and informed the court during the pre-trial
conference, held on 4 December 2023, that
the matter is trial ready,
which resulted in the court certifying the matter ready for trial.
[17]
The subsequent attempt by the defendant to hand an unsigned
supplementary discovery affidavit to the plaintiffs on the
first day
of the trial is not proper compliance with the Rules and the
plaintiffs cannot be required to content themselves with
such
conduct. To my mind the plaintiffs cannot be compelled to commence
with the trial after having received a document relating
to the fire
station’s report pertaining to the incident which forms the
subject of the claim instituted by the plaintiffs,
the fire on 12
August 2017.
[18] Where there
has been late discovery as in the matter at hand, there is no
onus
on the party seeking a postponement to satisfy the court that he or
she will be prejudiced. The
onus
is on the party making late discovery to show that there will be no
prejudice.
[2]
In
Maeder
v Carnes
[3]
the court held as follows in considering the question of prejudice:
“ …
the party
on whom the affidavit was served was entitled to a proper opportunity
of considering the documents, reading the affidavits,
comparing the
documents in his possession so as to make a case, if possible, that
there were further documents in existence which
should have been
disclosed, and to deliberate whether the Court should be moved to
order a further and better discovery.”
[19]
On behalf of the defendants it was argued that the document handed to
the plaintiffs the previous evening, is similar
to another document,
namely the occurrence book discovered by the defendants. Therefore,
the document cannot be regarded as very
significant and there can be
no prejudice to the plaintiffs as a result of the late discovery. I
do not agree with this submission.
The issue remains- why has there
not been complete discovery by the defendant during 2021 or at least
soon thereafter. The document
was not handed up during argument and
it is not possible to decide whether the document is similar or not
to the occurrence book
that was previously discovered by the
defendant.
[20]
The defendant has provided no explanation for the late discovery of
the document and has failed to advance convincing arguments
that the
plaintiffs did not suffer any prejudice. The defendant
disregarded the Rules of Court by failing to comply with
the
provisions of Rule 35. I am satisfied that the application for
postponement was necessitated entirely by the late discovery
as well
as the late proposed amendment by the defendant of its plea.
[21]
In the premises, the reasons for the plaintiffs’ inability to
proceed with the trial were fully explained
and the postponement
sought is not a delaying tactic. Justice demands that the legal team
and especially the expert witness for
the plaintiffs be afforded the
opportunity to consult and to properly prepare for the trail.
[22]
The
court
has
a
discretion
to
make
an
order
for
costs,
which
discretion
must
be
exercised judicially
upon a
consideration
of the
facts
in
each case. The Court has to take
into
consideration
the
circumstances
of
each
case,
carefully
weighing
the
issues
in
the
case,
the
conduct
of
the
parties
and
any
other
circumstances
which
may
have a
bearing
on the
issue
of costs in
order to
make an
order
which
would
be
fair
and
just
between the
parties.
With regard to the costs occasioned by a postponement, the general
rule, as re-stated by Griesel AJ in
Sublime
Technologies (Pty) Ltd v Jonker
[4]
,
is that the party responsible for a case not proceeding on the day of
the trail, must ordinarily pay the wasted costs.
[23]
ORDER
:
In the result the
following order is made:
1.
The application for
postponement is granted.
2.
The matter is postponed to
the pre-trial roll of 1 July 2024.
3.
The defendant shall pay
the costs occasioned by the postponement on scale B.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Plaintiffs:
ADV.
L A ROUX
Instructed
by:
HILL
McHARDY & HERBST ATTORNEYS
BLOEMFONTEIN
On
behalf of the Defendant:
ADV.
C B MANYELO
Instructed by:
EG
COOPER MAJIEDT ATTORNEYS
BLOEMFONTEIN
[1]
Myburgh
Transport v Botha t/a S A Truck Bodies
1991 (3) SA 310
(NmSC) at
315B-G.
[2]
Ferreira v Endley 1966(3) SA 618 [ECD].
[3]
1944
(1) P.H.F 18.
[4]
2010(2) SA 522 (SCA) at para [3]