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[2024] ZAFSHC 340
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University of the Free State v Doovey and Another (5668/2018) [2024] ZAFSHC 340 (22 October 2024)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable / Not
reportable
Case
No.: 5668/2018
In
the matter between:
UNIVERSITY
OF THE FREE STATE
Applicant
and
MOEGAMAD
ASHRAF DOOVEY
First
Respondent
INTERCONNECT
SYSTEMS (PTY) LTD
Second
Respondent
In
re:
MOEGAMAD
ASHRAF DOOVEY
Plaintiff
and
UNIVERSITY
OF THE FREE STATE
Defendant
INTERCONNECT
SYSTEMS (PTY) LTD
Third
Party
Neutral Citation:
Coram:
Van Rhyn J
Heard:
10 September 2024
Delivered:
22 October 2024
Summary:
Application for postponement of trial – failure by plaintiff to
file expert notice and report within prescribed time frames
–
rule 36(9)
(a).
Matter removed from the roll – costs.
ORDER
1
The matter is removed from the roll.
2
The plaintiff is ordered to pay the wasted
costs of the defendant and the third party occasioned by the removal
of the matter from
the roll, inclusive of the costs of two counsel
(where applicable), on Scale C for senior counsel and Scale B for
junior counsel.
JUDGMENT
[1]
This is an opposed application for postponement heard when the trial
was called on 10 September
2024. The matter was set down for trial to
be heard on 10, 11 and 13 September 2024. The application is brought
by the University
of the Free State, the defendant in the main
action. A similar application is before this Court, brought by
Interconnect Systems
(Pty) Ltd, the third party in the main action.
For ease of reference the parties will be referred to as in the main
action.
[2]
The plaintiff, Mr Moegamad Ashraf Doovey caused summons to be issued
against the defendant on
12 November 2018 claiming past and future
medical expenses, past and future loss of earnings as well as general
damages in the
total amount of R1 910 000 with interest and
costs. The claim emanates from an incident during November 2015 when
the
plaintiff fell through a ceiling and suffered injuries while
performing duties at the defendant’s premises. The defendant
denies liability and has joined the third party, the plaintiff’s
employer at the time, to the proceedings.
[3]
The parties are
ad idem
that the pleadings are considered
closed on 12 July 2021. On 28 September 2023 a pre-trial conference
was held during which the
plaintiff noted that he will not be
appointing an expert witness for purposes of testifying during the
trial. The plaintiff, however,
attempted to reserve the right to
appoint an expert witness. At the judicial pre-trial proceedings held
on 13 May 2023 the matter
was certified trial ready in respect of the
merits and the adjudication of the quantum to stand over for later
determination, if
necessary.
[4]
A few days later the plaintiff applied for a trial day whereafter the
notice of set down was duly
served upon the defendant and the third
party on 17 May 2024 enrolling the matter for trial on 10, 11 and 13
September 2024.
From 17 May 2024 to 17 July 2024 no further
steps were taken by the plaintiff. On 18 July 2024 the
plaintiff delivered a
notice in terms of Rule 35(3) calling upon the
defendant to provide certain listed documents.
[5]
On 6 August 2024 the defendant delivered a request for trial
particulars in terms of Rule 21.
According to the defendant,
the content thereof was materially the same as the Rule 35(3) Notice.
On 6 August 2024 the plaintiff
filed a notice in terms of Rule
36(9)
(a)
(i) of his intention of calling an expert witness, Mr
Anton Krause. On 27 August 2024 the plaintiff filed the notice in
terms of
rule 36(9)
(a)
(ii) and delivered the expert report of
the said Mr Krause.
[6]
On the day before the first trial date, 9
September 2024, the defendant filed an application for postponement
of the trial. On the
same date, the third party also filed its
application for postponement of the trial. On the morning of the
first trial day, 10
September 2024, Mr Grobler, counsel on behalf of
the plaintiff requested an indulgence to file the plaintiff’s
answering
affidavit to the defendant’s and third party’s
application for postponement. Neither the plaintiff nor the third
party
filed any replying papers and the arguments in respect of the
application for postponement were heard during the afternoon of the
10
th
of September 2024.
[7]
The reason for the substantive
application for postponement is that the plaintiff has taken various
late steps, including the out
of time delivery on 27 August 2024 of a
comprehensive expert report by Mr Anton Krause. On behalf of
the defendant, it is
contended that reliance is placed on new issues
not founded in the pleadings or raised previously. Similarly, the
application for
postponement by the third party is along the same
lines and on the basis that the third party is severely prejudiced as
a result
of the blatant disregard of the Rules of Court by the
plaintiff.
[8]
The following was agreed and recorded in the rule 37A minutes:
(a)
the defendant recorded that it intended to amend its plea and would
deliver a notice of intention
to amend within 15 days of receiving
the signed copy of the pre-trial minute from the plaintiff’s
attorney;
(b)
the plaintiff and the third-party would be entitled to amend their
pleadings, should the amendment
not be opposed or be effected with
leave of the court, in accordance with the provisions of rule 28(8);
(c)
in the event of the parties relying on expert evidence for purposes
of the adjudication of the
merits of the plaintiff’s claim, any
further amendments which may be required pursuant thereto will be
brought in accordance
with the provisions of rule 28;
(d)
plaintiff agrees to serve and file any request for trial particulars
within ten days after any
consequential amendments subsequent to the
defendant’s amendment of its plea have been made and the
defendant’s reply
to the plaintiff’s request will be
served and filed within ten days after receipt thereof or such
extended period as the
relevant parties may agree to in writing;
(e)
the defendant and the third-party agreed to deliver any request for
trial particulars within ten
days after the date of the defendant’s
reply to the plaintiff’s request. The replies to any such
requests will be served
and filed within ten days after receipt
thereof, or such extended period as the relevant parties may agree to
in writing;
(f)
the plaintiff noted that he will not be appointing an expert but
reserve the right to appoint
an expert upon receipt of the
defendant’s reply to the plaintiff’s request for trial
particulars;
(g)
the defendant will consider its position once request for trial
particulars have been delivered
and answered by the respective
parties. The defendant also reserves its right to appoint one or more
experts should the need arise.
The third party noted the issues as
agreed and reserved its right to amend its pleadings, request trial
particulars and appoint
an expert(s) should the need arise.
[9]
The application for postponement of the trial by the plaintiff and
the third-party follows as
a result of the late filing of the
plaintiff’s expert notice and report. The notice in terms of
rule 36(9)
(a)
(ii) was served nine court days before the trial.
The attorney acting on behalf of the third-party, Mr Frankim of
Frankim Attorneys,
Pretoria, addressed a letter to the plaintiff’s
attorney, DSC Attorneys, Cape Town, on 4 September 2024 indicating
that not
only is the filing thereof contrary to the provisions of the
Rules of Court, but the time period in which it has been delivered
makes it impossible for the other parties to investigate and test the
findings of the plaintiff’s expert. According to the
third
party a letter dated 29 August 2024 was also addressed to the
plaintiff’s attorney subsequent to the delivery of the
plaintiff’s notice in terms of Rule 36(9)
(a)
(ii). The
third party objected to late filing of the plaintiff’s expert
notice.
[10]
On behalf of the defendant, its attorney also addressed a letter to
the plaintiff’s attorney on 23
August 2024 requesting that the
plaintiff’s expert report be provided as a matter of urgency in
a bona fide attempt to prepare
for the upcoming trial. The
plaintiff’s expert report was delivered on the 27
th
of August 2024, notwithstanding the request to expedite the delivery
thereof. Thereafter the defendant consulted with two expert
witnesses
in an endeavour to prepare for trial and to salvage the situation
with a view to proceed with the trial on the allocated
trial dates.
[11]
On 5 September 2024 the plaintiff’s attorney responded to the
third party’s letter and indicated
that the matter is trial
ready and that the expert report was filed in accordance with rule
36(9). On 6 September 2024 the defendant
addressed a further letter
to the plaintiff indicating that the matter cannot proceed on trial
due to the various belated steps
taken by the plaintiff as
specifically pointed out in the said letter.
[12]
In the plaintiff’s answering affidavit to the third party’s
application for postponement it is
denied that the plaintiff filed
his expert report contrary to the provisions of rule 36(9)
(a)
(i)
and (ii). The plaintiff contends that rule 36(9) was amended on 12
May 2023 to provide that a plaintiff shall, not more than
30 days
after close of pleadings, deliver a notice of intention to call an
expert and, not more than 90 days after close of pleadings,
deliver a
summary of such expert’s opinion and the reasons therefore. Due
to the fact that the pleadings in this matter closed
on 12 July 2021,
it was impossible for the plaintiff to comply with the provisions of
the substituted rule 36(9). Therefore, the
plaintiff filed his expert
report in accordance with the provisions of rule 36(9) as it was
prior to the amendment, being notice
to call an expert being given 15
days before the trial and the summary of such expert’s opinion
and reasons no later than
ten days prior to the trial.
[13]
During the hearing of this matter, Mr Grobler, however, conceded that
the substitution of rule 36 by GN R
842 in GG 42497 of 31 May 2019
took effect from 1 July 2019 with the result that the filing of the
expert report by the plaintiff
was out of time. Mr Grobler
furthermore conceded that the matter is not trial ready and ought to
be postponed or removed from the
roll. The matter was removed from
the roll and such an order was handed down. The only aspect for
adjudication remains the issue
of costs.
[14]
Mr Snellenburg SC, counsel on behalf of the defendant (appearing with
Mr Johnson), argued that the plaintiff’s
late filing of the
expert report severely prejudices the other parties. The defendant
not only seeks an order postponing the matter
but also seeks a costs
order against the plaintiff. On behalf of the third party Mr van
Ryneveld SC argued that the plaintiff filed
a very voluminous expert
report shortly prior to the trial date. Notwithstanding objections
being lodged, not only by the third
party but also by the defendant,
the plaintiff ignored the provisions of rule 36(9) and proceeded to
travel to Bloemfontein and
now asks that a cost order be made against
the defendant and the third party. The plaintiff, due to its
disregard of the rules
of court, should be ordered to pay the wasted
costs on an attorney and client scale.
[15]
Mr Grobler contended that due to the failure of the defendant and the
third party to timeously object to
the late filing of the rule 36(9)
notices, expenses were incurred by the plaintiff to travel from Cape
Town to Bloemfontein for
the trial. Not only the plaintiff, his wife
and the legal team (which included two counsel and the attorney),
also the plaintiff’s
expert witness had to travel for purposes
of the trial.
[16]
In
Persadh
& Another v General Motors South Africa (Pty) Ltd
[1]
Plaskett J (as he then was) succinctly set out the applicable legal
principles when a party applies for a postponement as follows:
‘
The following
principles apply when a party seeks a postponement. First, as
that party seeks an indulgence he or she must
show good cause for the
interference with his or her opponent’s procedural right to
proceed and with the general interest
of justice in having the matter
finalised; secondly, the court is entrusted with a discretion as to
whether to grant or refuse
the indulgence; thirdly, a court should be
slow to refuse a postponement where the reasons for the applicant’s
inability
to proceed has been fully explained, where it is not a
delaying tactic and where justice demands that a party should have
further
time for presenting his or her case; fourthly, the prejudice
that the party may or may not suffer must be considered; and fifthly,
the usual rule is that the party who is responsible for the
postponement must pay the wasted costs.’
[17] In
Sublime
Technologies (Pty) Ltd v Jonker and Another
[2]
Griesel AJA held as follows:
‘
With regard to
costs occasioned by a postponement, the general rule is that the
party which is responsible for a case not proceeding
on the day set
down for hearing must ordinarily pay the wasted costs. It is
important to bear in mind, however, that a litigant
is not
necessarily ‘responsible’ for the case not proceeding
merely because he or she applies for a postponement.
In certain
circumstances, a litigant may be forced to apply for a postponement
as a result of the conduct of an opponent, e.g.
through inadequate
discovery, a late amendment or any number of other reasons. The
‘normal rule’ only applies
to ‘the party who was at
fault or in default.’
[18]
The plaintiff simply failed to comply with the
provisions of the rule 37 minute and the time limits applicable in
terms of rule
36(9)
(a)
,
as well as the proviso thereof which reads as follows: ‘Provided
that the notice and summary shall in any event be delivered
before a
first case management conference held in terms of rule 37A(6) and (7)
or as directed by a case management judge’.
In all matters
falling under rule 37A, and despite the time periods laid down in
subrule (9)
(a)
(ii),
both the intention to call an expert witness and the summary of such
person’s opinion and the reasons thereof must be
delivered
prior to the first case management meeting or otherwise as directed
by the case management judge.
[19]
The main purpose of rule 36(9) is to require the party, intending to
call a witness to give expert evidence,
to give the other party(s)
such information about the expert evidence as will remove the element
of surprise. The subrule in its
amended form is more efficient and
practical in that it now allows the other party, on receipt of the
notice of intention to call
an expert witness, more time to consider
its position and, if necessary, to find an expert to give evidence at
the hearing of the
matter. Proper compliance with the subrule may
furthermore enable experts to exchange views before giving evidence
and thus reach
agreement on at least some of the issues, thereby
saving costs and the time of the court.
[3]
[20]
Subrule (9)
(a)
contains its own sanction in that the party who fails to comply with
the provisions thereof is precluded from calling an expert
witness.
The non-compliance with the provisions of subrule (9)
(a)
entitles the other party to a postponement of the trial.
[4]
[21]
To determine what an appropriate cost order should be in this case it
is worth recalling that the defendant
and the third party objected to
the late filing of the rule 36(9) notices by the plaintiff, albeit
that the defendant initially
attempted to consult with two experts to
salvage the situation and only, sometime later, made their intention
to bring an application
for the postponement of the trial known to
the plaintiff.
[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.
[23]
The usual rule, that the party who is responsible for the
postponement should pay the wasted costs is the
fifth rule laid down
in the
Persadt
- matter and applies to the matter at hand. In
the exercise of my discretion under these circumstances, the
plaintiff should bear
the costs occasioned by the postponement.
[24]
In the premises I am of the view that the removal of
this matter from the roll is essentially as a result of the
plaintiff’s
failure to file the expert notice and report within
the prescribed time frames, which failure was to the prejudice of the
other
parties. During argument, Mr Snellenburg SC indicated that the
normal party and party costs ought to be ordered, whereas Mr van
Ryneveld SC argued that having regard to the conduct of the plaintiff
a punitive cost order is called for.
[25] It
appears that the parties proceeded to convene a rule 37 conference
and prepared the rule 37 minute with the
view that further
preparation for the trial will only be dealt with subsequent to
attending a judicial pre-trial hearing which
took place on 13 May
2024. Since 17 July 2024, steps were taken by the plaintiff to
prepare for the upcoming trial. Even though
the purpose of the
judicial pre-trial is to rule on the readiness of the matter for
trial, the parties actually agreed to proceed
with the
judicial-pre-trial and attend to the further trial preparations
thereafter.
[26]
Therefore, because of the agreement between the parties, as contained
in the rule 37 minutes, to only finalise
any amendments to the plea
and requests for trial particulars subsequent to the judicial
pre-trial, I am of the view that the conduct
of the plaintiff
does
warrant a punitive costs order. The application for postponement has
become necessary in consequence of the fault or default
of the
plaintiff or rather his legal representatives who were unaware of the
provisions of the amended rule 36(9) time periods.
I do not agree
with the submission that those costs be borne by the plaintiff on an
attorney and client scale. The plaintiff and/or
his legal team were
not dishonest or willfully vexatious or guilty of anything more than
neglect. Party and party costs will suffice.
[5]
[27]
IT
IS ORDERED THAT:
1.
The matter is removed from the roll.
2.
The plaintiff is ordered to pay the wasted costs of the defendant and
the third party occasioned
by the removal of the matter from the
roll, inclusive of the costs of two counsel (where applicable), on
Scale C for senior counsel
and Scale B for junior counsel.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
Appearances
On
behalf of the Plaintiff:
Adv.
E Grobler with Adv S Botha
Instructed
by:
Rosendorff
Reitz Barry Attorneys
Bloemfontein
On
behalf of the Defendant:
Adv.
N Snellenburg SC with Adv. J Johnson
Instructed
by:
Phatshoane
Henney Attorneys
Bloemfontein
On
behalf of the Third Party
Adv
Van Ryneveld SC
Instructed
by:
McIntyre
van der Post Attorneys
Bloemfontein
[1]
Persadh
& Another v General Motors South Africa (Pty) Ltd
2006
(1) SA 455
(SE) at [13].
[2]
Sublime
Technologies (Pty) Ltd v Jonker and Another
[2009]
ZASCA 149
;
2010 (2) SA 522
(SCA) at
[3]
.
[3]
Hall
v Multilateral Motor Vehicle Accidents Fund
1998
(4) SA 195
(C) at 200A.
[4]
Smit
v Shongwe
1982
(4) SA 699
(T) at 700 H-701A.
[5]
Burger
v Kotze and Another
1970 (4) SA 302
(W) at 305 D-G.