28641/2019 -hj 2 JUDGMENT
02-06-2025
called, it became clear that because of the plaintif f’s
attorney ’s failure to timeously upload certain documents to
Caselines, including a replication and various amended
documents including an amended plea , the attorney for Ms
O’Reilly had been hampered in his preparation. As I
understand Mr Meman i, who appeared for Mr. Luckan, his
trial strategy had also been affected by the failure to upload
the documents. Mr Mofoken g, who appeared for the plaintiff , argued
quite strenuously that, although the plaintiff’s attorney had
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failed to comply with the practice directions of this court requiring the documents to be uploaded to Caselines , the
documents had been properly served on both the defendants’ attorneys . Although he did not want to adopt
this proposition when I put it to him , it appears to me that
the plaintiff’s case is really that the non- compliance with
the practice directive made no difference to the defendants’
preparedness, given that the documents had been properly
served . The suggestion seems to have been that counsel for
the defendants ought to have known that the documents
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existed and that the documents could have been made
available to them, had they asked.
Whether or not this is true, the bottom line is that I
have an apparently good faith allegation before me that the first defendant’s attorney reasonably believed that all the
28641/2019 -hj 3 JUDGMENT
02-06-2025
documents that were relevant had been uploaded to
Caselines. I also know that at least some of the documents
that had not been uploaded were not served on him, but on
Ms. O’Reilly’s previous attorney.
Whomever is at fault, the fact is that Ms. O’Reilly’s
attorney is not ready to proceed today, apparently through no fault of his own. G iven the nature of the relief sought ,
the complexity of the enrichment actio n, and the need to
permit Ms. O’Reilly’s special plea of prescription to be fully
and properly ventilated , it seems to me that the prejudice to
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Ms. O’Reilly in proceeding today plainly outweighs any
prejudice to the plaintiff in postponing the matter.
Ultimately, Mr Mofokeng was instructed to agree to
the postponement, and the only issue that remained
between the parties was costs. The plaintiff wishes to file
an affidavit in which it will adduce a factual version that in
Mr Mofokeng’s submission may affect the exercise of the
trial court’s discretion on costs.
In those circumstances, I am inclined to allow the
filing of the affidavit and to hold over the question of costs 20
of the postponement for determination at trial. The plaintiff
will be directed to file an answering affidavit by 13 June
June 2025. The defendants will be entitled to reply, if so
advised , by 20 June 2025. The costs of today will then be
determined at trial.
28641/2019 -hj 4 JUDGMENT
02-06-2025
This trial action was instituted six years ago, in
2019. N otwithstanding the necessity of a postponement, it
is appropriate that something be done to expedite the
hearing.
Upon reading the papers it seem s to me that this
case is a good candidate for a Commercial Court
disposition . There was no objection from any of the parties
when I raised that possibility with them. None of the parties objected either to my being appointed the Commercial Court
Case Manager if the matter was accepted into the
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Commercial Court stream.
For all of those reasons, I make the following order:
1. The trial is postponed sine die .
2. The costs of the postponement are reserved for
determination by the trial court as a discrete issue.
3. The plaintiff is granted leave to file an affidavit in
answer to the postponement application, by no later than 13 June 2025, dealing only with the issue of costs.
4. The defendants may thereafter reply to that
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affidavit by no later than 20 June 2025.
5. The parties may approach the Deputy Judge
President of this division to apply have the trial dealt with as a Commercial Court matter.
6. It is noted that none of the parties objects to the