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2024
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[2024] ZAFSHC 315
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N.C.L v P.A.L (87/2023) [2024] ZAFSHC 315 (15 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
87/2023
In
the matter between:
N[…]
C[…] L[…]
Plaintiff
(Respondent
in the application for postponement)
And
P[…]
A[…] L[…]
Defendant
(Applicant
in the application for postponement)
Coram:
DAFFUE J
Heard
:
08 OCTOBER 2024
Delivered
:
15 OCTOBER 2024
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 10H00 on 15 OCTOBER
2024.
Summary:
The defendant in a divorce action applied for a postponement at
the eleventh hour. The application was granted. A previous
postponement
was necessitated because of his erstwhile attorney’s
withdrawal as attorney of record. The court considered the reasons
for
postponement, the lateness of the application, the history of the
litigation, as well as the reasonableness of the plaintiff’s
opposition of the application. It held that there was no reason to
deviate from the general rule in respect of an award of costs.
The
defendant, seeking an indulgence, was ordered to pay the costs of the
application, including the plaintiff’s costs of
opposition
thereof, as well as the wasted costs occasioned by the postponement.
ORDER
1.
The defendant shall pay the costs of the application
for
postponement, including the plaintiff’s costs of opposition, as
well as all wasted costs in respect of the divorce action,
the
counsel’s fees to be taxed in accordance with scale B.
JUDGMENT
Daffue
J
Introduction
[1]
On 8 October 2024 I had to adjudicate an opposed application
for
postponement of a divorce trial set down for hearing on 8 and 9
October 2024. After considering the application and the parties’
oral submissions, I made the following order:
‘
1.
The divorce trial is postponed for hearing on 28 and 29 January 2025.
2.
Notice shall be given by the defendant of any amendment that he may
be advised to seek, such
notice to be given within 10 days hereof and
in the event of opposition the defendant shall ensure that the
application for amendment
be set down for hearing as soon as
possible.
3.
Judgment is reserved in respect of the costs of the application for
postponement and the
wasted costs occasioned thereby.
4.
Reasons shall follow in due course and will be sent electronically to
the parties.’
Litigation
history
[2]
The parties hereto, a wife and a husband, are embroiled
in divorce
proceedings. The wife, being the plaintiff, issued summons on 11
January 2023. She seeks a decree divorce, division
of the joint
estate, primary care of their two sons (the one became a major
recently and the other is 13 years old), subject to
the defendant’s
right to access which was carefully set out in the particulars of
claim, maintenance for the children and
costs of suit.
[3]
On 6 April 2023 the defendant filed his plea and counterclaim.
He
accepts that a decree of divorce and division of the joint estate
should be granted. However, he insists to be the primary caregiver
of
the children, subject to the plaintiff’s right to access.
Finally, costs of suit are sought. On 4 May 2023 the plaintiff
filed
her plea to the counterclaim. The pleadings became closed.
[4]
Both parties filed requests for further particulars and
responded
thereto. A pre-trial meeting was held and the minutes thereof were
filed on 19 February 2024. On 18 March 2024 the matter
was certified
trial-ready whereupon the plaintiff’s attorneys set the matter
down for hearing on 18 and 19 June 2024. At
that stage Blair
Attorneys were still the defendant’s attorneys of record.
[5]
On 18 June 2024 the divorce trial was postponed to 8
and 9 October
2024, defendant to pay the costs occasioned by the postponement. The
matter was eventually allocated to me. When
I received the file by
the end of September 2024 I was unaware that Blair Attorneys had
withdrawn and that new attorneys had substituted
them. There is no
indication in the court file that Blair Attorneys had withdrawn. On 3
October 2024 the defendant’s new
attorneys filed a notice,
indicating their status as the defendant’s new attorneys. This
document was apparently emailed
to the plaintiff’s attorneys on
27 September 2024.
[6]
On 30 September 2024 my secretary sent an email to Honey
and Partners
and Blair Attorneys on my instructions. Within a few minutes
thereafter Ms Van Aardt of Honey Attorneys informed my
secretary of
Blair Attorneys’ withdrawal and the identity of the defendant’s
new attorney, where after the email was
also sent to the address
provided. At that stage there was no record in the court file of the
aforesaid withdrawal and the substitution.
I do not deem it necessary
to quote the contents of the email, but confirm that I sought clarity
as to the primary care dispute.
I also gave instructions to both
parties pertaining to the evidence required to adjudicate the
maintenance dispute.
[7]
Plaintiff’s attorney presented the information
required, but
the defendant’s new attorney informed my secretary that he came
on record on 27 September 2024 and would not
be available for the
hearing due to his commitments as a JSC commissioner. Also, the
attorney was still awaiting the ‘full
record of papers’.
He reported that the plaintiff’s attorneys insisted on a
substantive application for postponement,
but that he ‘was
unable to do so’ due to his JSC commitments. He mentioned that
he would be conducting the trial on
behalf of the defendant should
the parties fail to settle. Finally, he requested the court to
‘consider postponing
the matter.’ I requested my
secretary to respond, indicating that in the absence of a formal
application for postponement,
or an agreement in that regard, I may
well be inclined to insist that the matter be heard and adjudicated.
[8]
The application for postponement was indeed filed during
the
afternoon of 7 October 2024, the day before the first day of the
hearing. The plaintiff filed an answering affidavit early
the next
morning. Adv P Modise, the defendant’s counsel, indicated that
he had instructions to argue the matter without filing
a replying
affidavit.
The
reasons for postponement
[9]
The following reasons were advanced by the defendant:
a.
after he was advised of the trial dates, he
informed the plaintiff’s
attorney that he would not be available because he was scheduled to
attend an arbitration hearing
on 8 October 2024;
b.
his former attorney withdrew and the current
attorney came on record
on 27 September 2024, where after he informed the plaintiff’s
attorney that he would not be able
to attend the trial on 8 and 9
October 2024;
c.
the reason advanced and communicated to the
plaintiff’s
attorney was that the defendant’s ‘lead attorney’
would be attending the Judicial Services
Commission interviews;
d.
upon consultation with the new attorney it
was discovered that the
defendant’s instructions were not incorporated in the pleadings
and that an amendment was required
to enable the defendant to
adequately place his defence, which apparently has something to do
with the best interests of the children,
before the court; and
e.
it also appeared to the defendant that he
would have to file a
supplementary discovery affidavit.
[10]
Although it appears as if the defendant is of the view that the care
and contact
rights to the children have not been appropriately dealt
with in the pleadings, he failed to explain the nature of the
proposed
amendment. The defendant sought costs of the application in
his notice of motion, but his counsel submitted during argument that
it would be appropriate for costs to be reserved for adjudication
during the hearing. The defendant insisted that he could not
be
blamed for the indulgence sought.
Evaluation
of the parties’ contentions
[11]
The only outstanding issue to be adjudicated is the costs of the
application
for postponement and the wasted trial costs occasioned by
it. In order to consider this, it is important to deal with the
applicable
principles. I shall do so herein.
[12]
I set out the defendant’s reasons for the postponement above.
The plaintiff
filed an opposing affidavit, confirmed under oath by
her attorney. She indicated that Blair Attorneys withdrew as the
defendant’s
attorneys of record on 14 June 2024, just four days
before the matter was to be heard on 18 and 19 June 2024. This caused
the postponement.
According to the plaintiff their one child is still
a minor and it would be in his interest to finalise the divorce
proceedings.
The application for postponement was vehemently opposed.
Adv HJ van der Merwe submitted that the defendant caused the first
postponement
and was now seeking a further postponement at the
eleventh hour. He did nothing since June 2024 till the end of
September 2024
to obtain the services of a new legal representative
and/or to inform the plaintiff’s attorney that he could not
arrange
a postponement of the arbitration hearing. Alternatively, and
if the court was prepared to grant a postponement, he submitted that
the defendant, who failed to tender the costs of the postponement
whilst he was seeking an indulgence, should be ordered to pay
the
costs of the opposed application as well as all wasted costs
occasioned by the postponement. He concluded that there is no
reason
why another court should later be saddled with the adjudication of
the costs of a postponement.
[13]
Ex facie
the emails presented by the plaintiff attached to the
opposing affidavit, the defendant had been informed of the new trial
dates
as early as 19 June 2024. The defendant, who initially
mentioned that the divorce proceedings could be postponed to the end
of
September or during October 2024, all of a sudden recorded the
next day a clash of dates. He did not mention anything about an
arbitration hearing during the previous two days. He was told
immediately that the divorce matter would not be postponed again and
that he needed to seek a postponement of the arbitration hearing.
[14]
Postponements
are not there for the taking. Applications in this regard shall be
made timeously and it is expected of the applicant
for postponement
to explain their predicament fully and satisfactorily. The
Constitutional Court held as follows in
Lekolwane
and Another v Minister of Justice:
[1]
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement
seeks
an indulgence from the court. A 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 ordinarily show that
there is good cause for the postponement. Whether
a postponement will
be granted is therefore in the discretion of the court. In exercising
that discretion, this Court takes 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, whether the
application is opposed and the
broader public interest. All these factors, to the extent
appropriate, together with the prospects
of success on the merits of
the matter, will be weighed by the court to determine whether it is
in the interests of justice to
grant the application.’
[15]
My initial
prima
facie
view was to dismiss the application for postponement, bearing in mind
the concise issues in dispute and the fact that the divorce
trial
would have to be postponed a second time because of the defendant’s
ill-preparedness. I refer in this regard to
Magistrate
Pangarker v Botha and Another.
[2]
On the previous occasion the defendant did not even attend the
proceedings, claiming to be outside the province. The court
proceedings
apparently do not concern him. He claims that his
work-related issues take precedence over the divorce proceedings. I
find it difficult
to understand why the defendant waited till the
last moment to obtain the services of a new attorney. He is clearly
not a man of
straw. He is a Chief Director
ex
facie
his emails. I also find it unacceptable that the defendant’s
‘lead attorney’ could take on the instructions whilst
knowing that he was unavailable to assist his client during the
forthcoming trial due to his JSC commitments. The defendant’s
vagueness in respect of the intended amendment has not escaped my
attention. It does not impress me. The parties’ only minor
son
is 13 years old. It is clear that each of the parties insists on his
primary care, but both of them are satisfied to allow
the
non-custodial party sufficient contact rights.
[16]
Eventually and notwithstanding the aforesaid authorities and my own
personal
view that the defendant is guilty of kicking for touch a
second time, I decided to exercise my discretion in granting a
postponement.
The main reason for my conclusion is the defendant’s
agreement to a postponement to dates during the first term in 2025.
The prejudice to be suffered by the plaintiff and/or the parties’
child appears to be minimal. As requested by me, the parties
obtained
new trial dates, to wit 28 and 29 January 2025. The divorce matter
will hopefully be finalised in three months’
time.
[17]
A postponement will allow the defendant to amend his pleadings to
which the
plaintiff may respond if so advised. In order to ensure
that the matter will be trial-ready in January next year, I made an
appropriate
order pertaining to the intended amendment.
Conclusion
[18]
The applicant sought and obtained a postponement. I am satisfied that
the plaintiff
and/or her attorney cannot be blamed for the
predicament in which the defendant found himself. I do not believe
that he was really
bona fide
in seeking a postponement, but
for purposes hereof I am prepared to accept that he may want to amend
his pleadings and that the
amendment may be relevant to the dispute
between the parties. The general rule is that an applicant, as the
defendant
in casu
, who seeks an indulgence should pay the
costs of reasonable opposition and all further costs that can
reasonably be regarded as
wasted costs. The application was brought
on the first day of the divorce trial. There is no reason why the
defendant shall not
be ordered to pay not only the costs of the
opposed application for postponement, but the wasted costs consequent
upon the postponement,
including the appearance costs on 8 October
2024. The fees of plaintiff’s counsel on scale B shall be
included in such costs.
If I did not request my secretary to
communicate with the parties, the defendant would probably not even
consider filing a formal
application for postponement. The plaintiff
was ready to proceed on trial and responded appropriately as directed
in the emails
referred to above. Neither she, nor her attorney, is to
be blamed. The plaintiff’s opposition of the application for
postponement
was reasonable.
[19]
Consequently, there is no reason not to follow the general rule.
Costs shall
be awarded in favour of the plaintiff.
Order
[20]
The following order is made:
1.
The defendant shall pay the costs of the application
for
postponement, including the plaintiff’s costs of opposition, as
well as all wasted costs in respect of the divorce action,
the
counsel’s fees to be taxed in accordance with scale B.
DAFFUE
J
Appearances
For
Plaintiff
(Respondent in the application for
postponement)
Adv HJ
Van der Merwe
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
For
Defendant
(Applicant in the application for
postponement):
Adv P
Modise
Instructed
by:
Marumoagae
Attorneys Inc
c/o
Moruri Attorneys Inc
BLOEMFONTEIN
[1]
[2006] ZACC 19
;
2007 (3) BCLR 280
(CC) para 17.
[2]
2015 (1) SA 503
(SCA) paras 22 to 38.