REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE N UMBER : 2022 -013143
In the matter between :
THE STANDARD BANK OF SOUTH AFRICA LIMITED Applicant
and
KHEWIJA ENGINEERING & CONSTRUCTION (PTY) LTD First Respondent
LAVEHELESENI ELISAH DLADLA Second Respondent
THEMBA MABUZA Third Respondent
KHEW IJA ASSETS AND VEHICLES (PTY) LIMITED Fourth Res ponde nt
KHEWIJA HOLDINGS (PTY) LIMITED Fifth Respondent
JESPER MOLLEBEAK LARSEN Sixth Re spondent
REASONS
WANLESS J
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : YES
..........................................
SIGNATURE 13 JANUARY 2025
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Introduction
[1] This matter has suffered several unfortunate delays due to, inter alia , various
administrative errors and other shortcomings. These reasons will not be burdened
unnecessarily by dealing therewith.
[2] Ultimately, the Respondents have requested reasons for the orders made by this
Court on the 12th of March 2024 whereby, in the Unopposed Motion Court, an
application by the Respondents for a postponement of the matter was dismissed (with
costs) and judgment in respect of the Applicant’s monetary cl aims was granted in
favour of the Applicant (with costs ).
[3] The history of this matter is common cause between the parties. In the premises,
these reasons will not be burdened unnecessarily by setting out the lengthy history of
this matter (going back as far as November 2022 ).
[4] In this regard, it is important to note that, at the time of providing these reasons,
transcripts of the proceedings before this Court on the 6th and 12th of March 2024, in
the Unopposed Motion Court, have now both been uploaded onto Caselines. In the
premises, these reasons should be read as if the contents thereof are incorporated
herein.
Reasons for the order refusing the application by the Respondents on 12 March
2024 for a postponement .
[5] An application by the Respondents for a postponement of the matter sine die was
served upon the Applicant during the course of the afternoon of the 11th of March 2024
(the day before the hearing on the 12th of March 2024 ).The relief sought by the
Respondents (as set out in the Respondents’ Notice of Motion) was that the
application be postponed sine die and that the costs be costs in the cause,
alternatively , the Respondents pay the costs, jointly and severally, occasioned by the
postponement. No answering affidavit was filed by the Respondents and the
Respondents sought no order in respect thereof. At the date of this Court providing
these reasons the Respondents have not filed an answering affidavit or taken any
steps to secure an order from this Court that they be gran ted leave to do so.
[6] In this application for a postponement of the application sine die the Respondents
relied principally (if not solely ) upon “prejudice” , by submitting that in the event of this
Court declining to postpone the application and granti ng judgment in favour of the
Applicant the Respondents would be prejudiced. It was further submitted that a
postponement of the matter sine die would not prejudice the Applicant as the Applicant
is “a large financial institution” .
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[7] The principles to be applied to every application for the postponement of a matter
(to be decided by a court when exercising its discretion judicially and applying those
principles to the accepted facts) are fairly trite. In the exercise of its discretion this
Court dismis sed the application (with costs on the scale of attorney and own client )
having considered the principles set out hereunder and having applied those principles
to the particular facts (and history) of the matter before this Court as at the 12th of
March 2024.
[8] The general underlying principle in relation to applications for a postponement is
that the postponement of a matter cannot be claimed as a right since the applicant in
an application for a postponement seeks an indulgence from the court.
[9] This principle was considered by the Constitutional Court in the matter of National
Police Service Union and Others 2000 (4) SA 1110 (CC) at, inter alia, 1112C – G,
where it was held that a postponement will not be granted unless the court is satisfied
that it is in the interests of justice to do so. In order to do this, an applicant must show
good cause for the interference with the other party’s procedural right to proceed with
the matter and the generally accepted doctrine of “finality”. (At 1112D; Persadh v
General Motors SA 2006 (1) SA 455 (SE) at 459F).
[10] It was further held by the Constitutional Court that what is in the “interests of
justice” will be determined not only by what is in the interests of the parties themselves
but also by what, in the opinion of the court, is in the public interest (at 1112G) .
[11] A court has a discretion (See paragraph [7] ibid ) as to whether to grant or refuse
the indulgence (Persadh at 459F) and in exercising its discretion must ensure fairness,
justice and efficiency in judicial proceedings (Legal Practice Council v Kleynhans 2024
JDR 3341 (WCC) at page 10, paragraph 20 ). In order to do so, ,a court should take
into account a number of factors.
[12] These factors include , but are n ot limited to, the following (National Police Service
Union at 1112E – F), namely:
12.1 whether the application has been timeously made (See also Myburgh
Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmS) at, inter alia, 315C –
E).
12.2 whether the explanation given by the applicant for postponement is full
and satisfactory and a compelling justification supported by evidence under oath
supporting the necessity for delaying the matter , is given (Legal Practice Council v
Kleynhans 2024 JDR 3341 (WCC) at page 10, paragraph 20 ).
12. 3 whether there is prejudice to any of the parties and whether the
application is opposed (Persadh v General Motors SA 2006 (1) SA 455 (SE) at 459G).
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[13] It is also well -established that an application for a postponement must always be
bona fide and must not be used simply as a tactical manoeuvre for the purpose of the
applicant obtaining an advantage to which the applicant is not legitimately entitled o r
as a delaying tactic (Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310
(NmS) at 315C – E).
[14] Usually, the party seeking the postponement or who is responsible therefor, will
be ordered to pay the costs occasioned by the postponement ( Persadh v General
Motors SA 2006 (1) SA 455 (SE) at 459G). In the event of the application being
refused the trite principles in respect of costs will apply.
Application of the aforesaid principles to the facts of the present matter.
[15] The appl ication by the Respondents for the postponement of the application sine
die was, in the exercise of this Court’s discretion and based on the facts of the matter,
dismissed by this Court for the following reasons, namely:
15.1 the application was not brought timeously. It was brought on the afternoon
of the 11th of March 2024 and the matter had been postponed by this Court from the
6th of March 2024 to the 12th of March 2024;
15.2 the application was not brought bona fide but simply as a delaying tactic .
On the 6th of March 2024 the Third Respondent requested a postponement on the
basis that the Respondents wished to instruct new attorneys and to be allowed a final
attempt to settle the monetary claims of the Applicant. Most importantly, at the hearing
on the 6th of March 2024 , the Third Respondent stated that the Respondents had no
defence to the claims of the Applicant but sought a postponement to attempt to settle
the matter with the Applicant. However, in the Founding Affidavit deposed to by the
Third Respondent in the application for the postponement of the matter sine die , it is
stated , inter alia , that the reason for the postponement is for the Respondents’ la test
attorneys to familiarise themselves with what is described as a “complex matter” and
for the Respondents to oppose the application (which could only mean the filing of an
answering affidavit). At the same time, this Founding Affidavit failed to disclo se the
nature and grounds of any opposition to the relief sought by the Applicant ;
15.3 in addition to the facts as set out above the history of this matter contains
numerous instances where the Respondents have engineered delays to avoid t he
finalisation of the application (despite the Respondents having no defence whatsoever
to the claims against them by the Applicant as this Court was informed by the Third
Respondent );
15.4 the so-called “explanation” given by the Applicant for postponement is
far from full and satisfactory . The application for a further postponement does not
satisfy the requirement of providing compelling justification , supported by evidence
under oath , which support s the necessity for delaying the matter further. This flies in
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the face of the doctrine of finality (Van Wyk v Unitas Hospital and Another (Open
Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) at pages 478 –
479; paragraph [31]) ;
15.5 the Applicant’s reli ance upon “prejudice” (See paragraph [6] ibid) is
misconstrued. The fact that the sums involved are substantial does not mean that the
Respondents will be prejudiced to a greater extent than the prejudice which the
Applicant would have suffered had the mat ter been postponed sine die . A further delay
in the finalisation of the matter, particularly in light of the fact that the application was
served upon the Respondents during November 2022; the fact that the Respondents
have failed, to date, to file an answ ering affidavit and the fact that the Respondents
have no defence whatsoever to the claims by the Applicant, would have been highly
prejudicial to the Applicant. A costs order (even on a punitive scale) in respect of the
postponement of the matter on the 1 2th of March 2024 would have done very little (if
anything) to cure the prejudice suffered by the Applicant. This is particularly so when
regard is had to the substantial amounts owing by the Respondents to the Applicant
in the present matter ;
15.6 the Respondents failed to provide a full and satisfactory explanation or
compelling justification in the application which would have enabled this Court to
exercise its discretion in favour of the Respondents and grant the relief sought by
them ;
15.7 the application is mala fides and an abuse of process. On the facts of the
present matter, it is clear that it is nothing more than a delaying tactic. In addition
thereto, it appears that the First Respondent is no stranger to the utilisat ion of these
tactics ( Van der Steen NO and Another v Khewija Engineering Construction (Pty) Ltd
2022 JDR 2899 (GJ) ) Hence, it would not have been in the public interest (See
paragraph 10 ibid) if this Court had, on the facts before this Court, granted a
postponement of the application sine die thereby further delaying the finalisation of the
matter (particularly where the Respondents have no defence to the Applicant’s claim
for payment).
Reasons for the granting of the order on 12 March 2024 in terms of which the
Respondents are liable to pay certain amounts to the Applicant
[16] Once this Court had dismissed the application for a postponement, there was, as
at the 12th of March 2024, no de facto opposition to the relief sought by the Applicant.
In this regard, there was no answering affidavit from the Respondents, despite the
Respondents having had ample time and having been granted ample opportunities, to
file same. . The Respondents had also fai led to institute any interlocutory applications
(such as , for example, an interlocutory application for the extension of time limits
and/or a condonation application for the late filing of an answering affidavit ) in respect
thereof. Moreover, as dealt with above, the Third Respondent had advised this Court,
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when he appeared before this Court on the 6th of March 2024, that the Respondents
had no defence to the monetary claims of the Applicant.
[17] This Court was satisfied that the application papers were in order and made out
a case for the relief sought. In the premises, it granted the order that it did.
Costs
[18] In the exercise by this Court of its general discretion in respect of costs the award
of costs on the scale of attorney and own client w as justified . Furthermore, costs on a
punitive scale are provided for in the agreements entered into between the parties,
alternatively , justified by the conduct of the Respondents.
Conclusion
[19] The aforegoing constitute the reasons as to why this Court dismissed the
application for the postponement of the matter and granted the order whereby the
Respondents are to pay to the Applicant certain amounts.
______ _______
BC WANLESS
Judge of the High Court
Gauteng Division , Johannesburg
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Hearing : 12 March 2024
Judgment (Ex Tempore ): 12 March 2024
Written Reasons : 13 January 2025
Appearances :
For Applicant : C Gordon
Instructed by Martin Weir -Smith Inc.
For Respondents : N Loop oo
Instructed by Andraos and Hatchett Inc