IN THE EQUALITY COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No:EC14/2023
In the matter between:
ROVENDRANATH RABIKISSOON SEWPERSAD First Complainant
YASMIN ADAMS Second Complainant
AERO COACH LINES CC Third Complainant
AERO TOWING CC Fourth Complainant
RYKHANA RABIKISSOON Fifth Complainant
RUSHDA RABIKISSOON Sixth Complainant
RIAARD RABIKISSOON Seventh Complainant
YAGYAH RABIKISSOON Eight Complainant
RASHID RABIKISSOON Ninth Complainant
and
-
STANDARD BANK OF SOUTH AFRICA (PTY) LTD First Respondent
FIRST RAND BANK Second Respondent
TRADEPORT 62 (PTY) LTD t/a AUCOR SOUTH AFRICA Third Respondent
EILEEN MARGARET FEY N.O. Fourth Respondent
PRICE WATERHOUSE COOPERS Fifth Respondent
MINISTER OF JUSTICE AND Sixth Respondent
CORRECTIONAL SERVICES
MASTER OF THE HIGH COURT, CAPE TOWN Seventh Respondent
SHERIFF’S OFFICE, WYNBERG SOUTH Eighth Respondent
____________________________________________________________________
JUDGMENT IN POSTPONEMENT & CONDONATIONAPPLICATION
DELIVERED ELECTRONICALLY ON 09 DECEMBER 2024
_____________________________________________________________________
MANGCU-LOCKWOOD, J
A. INTRODUCTION
[1] This an opposed application for sine die postponement of preliminary
proceedings which were supposed to proceed on 25 and 26 November 2024 , and for
permission to file the complainants’ heads of arguments, which are late, 14 days prior
to the next set down date.
[2] In essence, the basis for the application is that the complainants lack the funding
necessary to proceed with the matter at this stage. In this regard, the first complainant
has deposed to an affidavit stating that counsel who drafted the complainants’ replying
papers and assisted them thus far is no longer available to assist with the matter,
having withdrawn on 16 October 2024 due to his fee account not being settle d. In
addition, the first complainant states that his expectation was that, after payment of
fees for the replying affidavit in the main matter , the next payment would be for
preparation towards the hearing of the main matter. Instead, because of the decision
of this Court to first hold a preliminary hearing for determination of certain defined
preliminary issues, this doubled the cost of the antici pated fees in the matter. In the
circumstances, the complainants seek postponement on a sine die basis.
[3] The application is vehemently opposed by all the respondents, who each
delivered notices of intention to oppose, although only the first respondent delivered
an answering affidavit. The applicant did not deliver a replying affidavit. In court, the
opposition converged upon similar arguments as those raised in the first respondent’s
answering affidavit , although with some variation, which may be summarized as
follows:
a. Firstly, the main complaint relies on events that occurred almost twenty years
ago, and given that the matter was instituted on 19 December 2023, it
constitutes an unexplained and unreasonable delay. In those circumstances,
the request for a sine die postponement, without a clear indication of when
the heads of argument will be delivered, or when the necessary funding to
continue with the litigation will be raised , constitutes an abuse of court
process which is materially prejudicial to the respondents.
b. Secondly, the respondents rely on the chronology leading to the matter being
set down on 25 and 26 November 2024 , which shows that th is application
was not brought as soon as the circumstances which might justify it became
known to the complainants.
c. Thirdly, by the time the application was launched, the respondents ’ legal
representatives had spent time preparing for the hearing, and their clients had
incurred significant costs to be ready for the hearing. I n the case of the first
respondent, flight arrangements, accommodation and car hire ha d already
been organized and paid for.
d. Fourthly, the respondents point to what they refer to as an unexplained irony
in the fact that the complainants managed to obtain legal assistance to
prepare papers in th is application, while those resources could more
productively have been utilised to prepare for the hearing of the preliminary
issues. They also point out that, given the apparent failure by the
complainants to attempt to obtain pro bono legal assistance or local counsel,
the contention that they will be left with no representation if the Court does not
grant the postponement and condonation sought, is not made bona fide.
e. The complainants’ main claim is spurious and bears no prospects of success.
Chief among the reasons is prescription.
f. There is no tender for wasted costs that are to be occasioned by the
postponement, to alleviate any prejudice to be suffered by the respondents.
B. THE RELEVANT LAW
[4] The legal principles applicable to an application for postponement are trite1, as
are those applicable in condonation applications 2. Neither application is there for the
1 See summary of the principles in D E Van Loggerenberg Superior Court Practice Vol 2 at D1-552A and
Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmS).
2 Melane v Santam Insurance Co. Ltd. 1962 (4) SA 531 (A) at 532B-E; Grootboom v National Prosecuting
Authority [2013] ZACC 37; 2014 (2) SA 68 (CC) at para 23.
asking. In either instance, a n applicant seeks an indulgence, and must furnish a full
and satisfactory explanation of the circumstances that gave rise to the application.
[5] The court has a discretion as to whether either application should be granted or
refused, which must be exercised in a judicial manner, not capriciously or upon a
wrong principle, but for substantial reasons.
[6] Factors which usually weigh w ith a court in considering an application for
condonation include the degree of non -compliance, the explanation therefor, the
importance of the case, a respondent's interest in the finality of the judgment, the
convenience of the court and the avoidance of unnecessary delay in the administration
of justice.3
[7] When considering a postponement application , the 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 is full and satisfactory,
whether there is prejudice to any of the parties and whether the application is
opposed.4 All these factors will be weighed to determine whether it is in the interests of
justice to grant the postponement. What is in 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.5
[8] An application for a postponement must be made timeously, as soon as the
circumstances which might justify such an application become known to the applicant.
If, however, fundamental fairness and justice justify a postponement, the court may in
an appropriate case allow such an application for postponement even if the application
3 Mulaudzi v Old Mutual Life Assurance company (SA) Limited [2017] ZASCA 88 ; [2017] 3 All SA
520 (SCA); 2017 (6) SA 90 (SCA).
4 National Police Service Union and Others v Minister of Safety and Security and Others [2000] ZACC
15; 2000 (4) SA 1110; 2001 (8) BCLR 775 (CC) para 4.
5 Psychological Society of South Africa v Qwelane and Others (CCT226/16) [2016] ZACC 48 ; 2017 (8)
BCLR 1039 (CC) para 31.
was not so timeously made. 6 A court will be slow to refuse a postponement where the
true reason for a party’s non -preparedness has been fully explained ; where the
unreadiness to proceed is not due to delaying tactics ; and where justice demands that
the applicant should have further time to present his or her case.
[9] An application for postponement must be bona fide and not used simply as a
tactical maneuver for the purpose of obtaining an advantage to which the applicant is
not legitimately entitled.
[10] Considerations of prejudice will ordinarily constitute the dominant component of
the total structure in terms of whi ch the discretion of the court will be exercised . The
court should weigh the prejudice which will be caused to the respondent in such an
application if the postponement is granted against the prejudice which will be caused
to the applicant if it is not – what the writers in Erasmus refer to as a balance of
convenience.
[11] The court has to consider whether any prejudice caused by a postponement can
fairly be compensated by an appropriate order of costs or any other ancillary
mechanism.7 That may include an o rder to pay the wasted costs of the respondent on
the scale of attorney and client. It may also include an order directing such an
applicant to pay the costs of his or her adversary before he or she is allowed to
proceed with his action or defence in the action, as the case may be.8
[12] It has been held that a l ack of funding is not a sufficient reason for a last -minute
postponement application. A practitioner who has insufficient funding must withdraw or
apply for a postponement in good tim e. If (s)he does not, (s)he must continue
representing his clients at his or her own risk.9
6 Greyvestein v Neethling 1952 (1) SA 463 (C) at 467 F.
7 Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 453.
8 Van Dyk v Conradie and Another 1963 (2) SA 413 (C) at 418; Tarry & Co Ltd v Matatiele Municipality
1965 (3) SA 131 (E) at 314-315.
9 S v Ndima 1977 (3) SA 1095 (N) at 1097; Ngcobo v Union & South West Africa Insurance Company Ltd
1964 (1) SA 42 (D) at 44.
C. DISCUSSION
[13] Neither the complainants nor their legal representatives appeared in court on the
set down date of 25 November 2024 for the preliminary hearing, or to move the
application for postponement and condonation , with no explanation provided or
enquiry made prior to the hearing date . Only the respondents’ representatives - all of
them - appeared in court. As a result, the application was heard in the absence of the
complainants and their legal representatives.
[14] It should come as no surprise that the matter proceeded on the set down date of
25 November 2024, as previously scheduled. It need hardly be re -stated that
applications for postponement and condonation are not there for the asking , and a n
applicant in such circumstances seeks an indulgence . That means the mere act of
lodging the application did not grant the complainants the indulgences they sought.
[15] In circumstances where the complainants filed their application one court day
prior to a hearing which was set down for two days, the default position, unless the
parties were directed otherwise, was for the matter to proceed on the scheduled dates,
even if only for the purposes of the hearing of the postp onement and condonation
applications. When and where else were these applications to be determined?
[16] The chronology in this regard is relevant. Two virtual Directions Meetings were
held with the parties’ legal representatives, on 16 and 27 August 2024. On 3
September 2024, the Court issued a directive, to the effect that the following issues,
which arose from the respondents’ answering papers as points in limine, were to be
determined separately as preliminary issues: (i) misjoinder, (ii) prescription, and (iii)
unreasonable delay. The same directive proposed alternative dates for the hearing of
the preliminary issues, namely 14 October, or 24 and 25 November 2024.
[17] After some e xchange of correspondence between the Court registrar and the
parties, the date of 25 November 2024 was agreed. This was confirmed by email
correspondence dated 18 September 2024 from the first respondent to the other
parties, in which the complainants’ at torneys were advised that, unless they indicated
otherwise before the end of that week , “we will assume that 25 November 2024 suits
you and we will go ahead with our travel arrangements”.
[18] On 20 September 2024, the complainants’ attorneys recorded that th ey were
experiencing some difficulty in obtaining instructions from their clients, and promised to
revert by Friday, 27 September 2024. They did not revert, even when the first
respondent’s attorneys requested an update on 30 September 2024.
[19] One issue which received attention at the Directions Meeting of 27 August 2024
is the complainants’ indication that the claims against the second, seventh ( “the
Master”) and eighth respondents would likely be withdrawn. In this respect, the
complainants’ legal represe ntatives undertook to revert with notices of withdrawal.
Because of the assurances given by the complainants’ legal representatives that the
claims would likely be withdrawn against those respondents, no directives were issued
in respect of the preliminary issues raised by those parties. However, the complainants
subsequently indicated that they would not be withdrawing the complaint against the
Master. As a result, o n 9 October 2024 the Court issued a further directive that the
following issues were to be added to the preliminary issues previously delineated,
namely (a) the complainants’ failure to issue the notices contemplated in section 3 of
the Institution of Legal Proceedings against Certain Orga ns of state Act 40 of 2002;
and (b) whether the confirmatory affidavits filed by the complainants comply with the
Justice of Peace and Commissioner of Oaths Act 16 of 1969.
[20] On 14 October 2024 the Court’s registrar again confirmed the date of 25
November 2024 with the parties for hearing of the preliminary issues, with the addition
of 26 November 2024 to accommodate the increased number of preliminary issues
that was to be determined. O n the same day, the parties agreed to a timetable for the
submission of heads of argument in preparation for the hearing date. In terms thereof,
the respondents were to deliver their heads of argument by 8 November 2024, and the
complainants were to deliver theirs by 15 November 2024.
[21] On 1 November 2024, the Court registrar o nce again confirmed with the parties
via email that the hearing would proceed on 25 November and 26 November 2024.
This was formally confirmed by the first respondent’s attorneys, who delivered a formal
notice of set down to that effect on 5 November 2024. On 8 November 2024 all the
respondents delivered their heads of argument in respect of the preliminary issues, as
previously agreed.
[22] On 12 November 2024, the complainants’ attorneys addressed a letter to the
Presiding Judge, requesting postponement of t he hearing of the preliminary issues.
After objections were noted by all the respondents, the Court directed, on 15
November 2024, th at the complainants should bring a formal application, in
accordance with the Uniform Rules, for the indulgences referred to and sought in the
letter of 12 November 2024.
[23] The application was delivered on Thursday 21 November 2024. On 22 November
2024 the first, fourth and fifth respondent delivered notices of intention to oppose the
application, whilst the Master’s was delivered on the day of the hearing. The first
respondent also delivered an answering affidavit on 22 November 2024.
[24] It remains unexplained why the complainants waited until 12 November 2024 –
after all the parties had delivered their heads of argument in compliance with
previously arranged timeframes – before notifying the respondents and the Court of
their request for postponement. On the complainants’ own version, they were aware by
16 Octobe r 2024 at the latest , when the ir counsel withdrew, that they would not be
able to proceed with the matter due to lack of funding. There are no details given of
what occurred after that date in relation to fundraising or procuring local counsel
instead of their Gauteng -based counsel or pro bono counsel. In this respect, the
explanation given is not full or satisfactory.
[25] There is also no explanation for why the application was only brought on 18
November 2024 after the court directive inviting the application was issued on 15
November 2024, or before the issue of the directive. The application was brought on a
Thursday, 18 November 2024, which effectively left one court day for the respondents
to file opposing papers. This , in circumstances where the complainants knew that the
application was to be opposed by all the respondents, since they had each made clear
in response to the letter of 12 November 2024 that they were opposed to any request
for postponement.
[26] Clearly, the application was not brought as soon as the circumstances which
might have justified such an application became known to the complainants. And there
is no explanation for that conduct.
[27] However, despite the delayed application for postponement and condonation , I
am mindful that there is no evidence that the complainants seek the postponement as
a delaying tactic. It remains undisputed that funding is their challenge. I have not found
any evidence of mala fide motives for bringing the application, or that it is b eing used
to obtain an advantage to which the complainants are not legitimately entitled.
[28] Furthermore, and without commenting on the prospects of the claim, t he main
matter concerns substantive issues relating to justice and fairness. That is one way of
construing the complaint, comprising hundreds of pages, which was launched decades
after the events complained about. The interests of justice demand that the
complainants should have the matter properly ventilated , including by proper
consideration of the preliminary issues. A proper ventilation of the matter is not only in
the interests of the immediate parties, but also in the broader public interest.10
10 Psychological Society of South Africa v Qwelane and Others (CCT226/16) [2016] ZACC 48 ; 2017 (8)
BCLR 1039 (CC) para 31.
[29] For those reasons, I am of the view that it is the complainants who will be more
prejudicially and finally impacted, if postponement is not granted.
[30] In considering whether t he prejudice visited upon the respondents can be fairly
compensated by an appropriate order of costs or another ancillary mechanism,11 I am
alive to the fact that the reason for the request for postponement is lack of funding. But
justice and fairness must work in favour of all the parties, not just in favour of the
complainants. After all, it is not disputed that the prejudice suffered by the respondents
is not only in the fact that the matter will not be expeditiously resolved, but in the
wasted expenses incurred in preparation for the preliminary hearing.
[31] As a result, I am of the view that the complainants should bear the wasted costs
of the postponement , on an attorney and own client basis. And given the manner in
which the prejudicial conduct unfolded, and to prevent similar ci rcumstances, the
complainants should settle those costs before the preliminary proceedings are next set
down.
D. ORDER
[32] In the circumstances, the following order is granted:
a. The hearing of the preliminary proceedings is postponed sine die.
b. The complainants are granted permission to deliver heads of arguments in
the preliminary issues 14 days prior to the next set down date.
c. The complainants are to pay the wasted costs of the postponed proceedings
on an attorney and own client basis, and must settle those costs before the
next set down date of the preliminary proceedings.
11 Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 453.
_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
APPEARANCES
For the complainants : No appearances
Instructed by : No appearances
For the first respondent : Adv S Khumalo SC
Adv Y Peer
Instructed by : F Omar & L Mort
Edward Nathan Sonnenbergs Inc.
For the fourth and fifth respondent : Adv M Bishop
Adv E Cohen
Instructed by : K Rew & L M Doubell
Webber Wentzel Attorneys
For the seventh respondent : Adv S Mahomed
Instructed by : S Appalsamy
The State Attorney Cape Town