IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 1256/2021
Reportable NO
In the matter between:
FANISWA NONCOLELA Plaintiff
and
MINISTER OF POLICE AND ANOTHER Defendants
RULING
IN RE: APPLICATION FOR A POSTPONEMENT
CENGANI- MBAKAZA AJ:
[1] These are action proceedings and midway through the trial, the plaintiff
approached this court through a notice of motion seeking for a postponement of
the matter sine die, with costs reserved for determination at the conclusion of
the trial.
DI r I
,._ 1~
,;
... .. ..,,,,,, . . ~
ll
[2] The Mthatha High Court standard practice is to hold the roll call in the
mornings, with the trial judge receiving the file on the same morning as the trial.
The trial judge would then examine the papers and subsequently arrange a time
to commence the matter wi th the parties involved. This practice is no different
from what occurred on 13 October 2025 in this matter.
[3] Before the commencement of the trial, I convened a meeting with the
parties in chambers, where I enquired about their readiness to proceed with the
case. In that meeting I also expressed concerns regarding the potential
challenges associated with picking up a partly- heard matter.
[4] Notwithstanding the parties’ assurance regarding the readiness of the
case, the trial was plagued with challenge s stemming from the plaintiff’s
readiness to present relevant evidence. In his founding affidavit, the plaintiff’s
attorney appears to diminish the delay they caused in these proceedings. As
noted, the objections to the presentation of hearsay testimony an d the
documents are a matter of record. I will however, not elaborate further on this
point, as it is not my intention to address the merits of this case.
[5] Considering numerous ‘stand downs’ which emanated from the objections
raised, during the discus sion in chambers, I expressed my discomfort with the
manner in which the plaintiff was handling the matter. The crux of the issue was
the plaintiff’s consistent display of unpreparedness, evident in the late arrival of
the witness on day two and the overall presentation of the case. The fact that the
plaintiff seems to defend all those delays in the founding affidavit is puzzling.
[6] Another delay can be attributed to the plaintiff’s uncertainty regarding
whether to sue Minister of Police or both the Minis ter of Police and Mr Buhle
Mayishe. Again, it is perplexing that the plaintiff seeks to apportion the blame,
considering the ambiguity in the citation of the parties throughout the court
documents.
[7] Given the plaintiff’s status of being dominis litis, the plaintiff ought to keep
a proper check of the court papers, ought to know who they are citing, and if a
mistake occurred take responsibility for it rather than shifting the blame. In this
instance, it is a matter of record that the ambiguity in citat ion of the defendants
led to withdrawal of the claim against the third defendant.
[8] It is a fact that the ensuing debate over the issue of citation and
representativity added to the delays in the proceedings. I am highlighting this
because after the debate over the citation of the parties and representativity, the
plaintiff requested a postponement of the case to obtain certain information
which was only known to them. Notably, Ms Da Silva SC stated her
representation of the first and second defendants, a fact that was known since
August 2024. Another reason advanced was that one of the defendants’ counsel
was excused to conduct a research, but it is a matter of record that this excusal
did not halt the proceedings.
[9] Taking all these factors into account, the five -day allocation for the
presentation of evidence was adequate. Contrary to the argument raised by the
plaintiff’s attorney in his founding affidavit, the merits of the case would have
been concluded on day five had it not been for those delays including the
events of 15 October 2025 . These events further complicated the completion of
the merits and exacerbating the issues that were already apparent in the
plaintiff’s handling of the matter.
[10] On 15 Octo ber 2025, before the commencement of the testimony of the
third witness, the plaintiff introduced a document and sought to lead evidence,
prompting the defendants to object due to lack of prior knowledge. After the
defendants’ request to examine the docume nt, it became apparent that the
authenticity of the document was disputed. Despite the plaintiff’s attempt to
address the court regarding the document’s discovery, in particular Rule 35(6)
address the court regarding the document’s discovery, in particular Rule 35(6)
of the Uniform Rules of Court, it is clear that the truth and corre ctness of the
document in question including the authenticity was not admitted during the
pre-trial conference or at any stage of the trial proceedings.
[11] Therefore, if the authenticity of the document is disputed as it does in this
case, the plaintiff will likely need to present evidence to support its authenticity
if they intend relying on it. Contrary to what the plaintiff’s attorney alludes in
the founding affidavit, the application for a postponement is not based on the
parties’ underestimation of the trial’s duration and the delays by the defendants.
The primary reason for the application for a postponement stems from a
disputed document. This fact is corroborated by the plaintiff’s counsel, who
admitted needing four months to engage experts to verify the authenticity of key
documents. It is undeniable that these issues should have been addressed during
a pre -trial conference. Again, the delay appears to stem from the plaintiff’s
counsel’s preparedness , as evidenced by the facts presented.
[12] This court acknowledges that the discretion to grant or refuse a
postponement lies with it and must be exercised judiciously. By principle, a
discretion to postpone should not be exercised capriciously or upon wrong
principle, but for substantial reasons. In otherwords, the decision to grant a
postponement should be grounded in sound reasoning and a thorough
consideration of the relevant factors. In Psychological Society of South African
v Qwelane1, Nkabinde ACJ held that:
‘postponements are not merely for the taking. They have to be properly motivated and
substantiated…and when considering an application for a postponement a court has to
exercise its discretion whether to grant the application. It is discretion in the true or
narrow sense- meaning that, so long as it is judicially exercised, another court cannot
substitute its decision because it disagrees. The decision to postpone is primarily one
for the first instance court to make.’
for the first instance court to make.’
[13] As evident from the discussion above, it is well -established that an
indulgence is a privilege that must be earned, it does not come as a right. In
1 2017 (8) BCLR 1039 (CC).
Persadh &Another v General Motors South Africa (Pty) LTD (Persadh)2,
Plasket J (as he then was) set out the principles regarding the application for a
postponement. These are paraphrased as follows:
1. The party must demonstrate good cause as the postponement
interferes with the opponent’s rights and the interest of justice.
2. The court has a discretion to grant or refuse a postponement.
3. Postponements should be granted if the reasons for delay are fully
explained, not tactical and justice requires additional time.
4. Potential prejudice to either party must be considered.
5. Typically, the party responsi ble for the postponement must bears the
wasted costs.
[14] Given the submissions, as well as the plaintiff’s approach as evident in
the papers filed, the plaintiff’s attorney appears to be demanding or exhibiting
some entitlement for the granting of a post ponement rather than applying for
one, which is inappropriate. This is evident from the incorrect facts presented
where it was stated that the defendants insisted that the plaintiff should file
papers to pursue the application for a postponement. The plain tiff’s counsel has
failed to take full responsibility for their own unpreparedness, particularly
regarding the authenticity of the disputed document, an issue that was known
since the pre-trial stages.
[15] Considering all the circumstances presented in t his ruling, it appears that
this application is tainted with malafides, as demonstrated by the grounds upon
which a postponement is sought and the handling of the matter which is clearly
marred by the delays. Notwithstanding the plaintiff’s assertion in th e replying
2 2006(1) SA 455 (SE).
affidavit that they caused no delays, my observation of the proceedings suggests
otherwise.
[16] It needs emphasis that in the ordinary course of events this application
would not have warranted a consideration. I agree with the defendants that a
postponement will not ordinarily be granted where the circumstances are self -
created. The plaintiff’s counsel’s unpreparedness is prejudicial to both the
defendants and the plaintiff in person. To rectify the situation, the interests of
justice require that the postponement be granted, despite the application’s
shortcomings. This decision is motivated by the practical implications of
refusing the postponement, given the unavailability of a closer date, which is
caused by the plaintiff’s glaring unprepar edness to proceed with the matter this
week.
[17] I now deal with the issue of costs. Ordinarily, the successful party would
be entitled to costs. However, is it is well -established that the awarding of costs
is the matter within the court’s discretion, w hich must be exercised in a judicial
manner.
[18] While it may seem repetitive, the plaintiff’s attorney’s malafides are
apparent in the motivation for a postponement. I agree with the defendants that
when the party’s difficulties stem from neglect, inad equate preparation and so
on, such party must bear the consequences of their own fault. Reserving the
issue of costs for future determination would prejudice the defendants. The
plaintiff’s submission that the defendants should be liable for costs is
inconsistent with the principles set out in Persadh (supra).
[19] Resultantly, I make the following order:
1. The application for a postponement is granted. The date for future
consideration of the case shall be arranged with the court, failing
which the court will direct that the matter be set down for hearing.
2. The plaintiff shall pay costs on scale B, that includes the costs of
the trial dates of the 16 and 17 October 2025 as well as costs of two
counsel where so employed.
____________________________________
N CENGANI-MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Plaintiff : Adv Machaba SC with Adv Mantyi -
Mfino
Instructed by : F. Ntayiya & Associates
MTHATHA
Counsel for the Defendants : Adv Da Silva SC
Instructed by : STATE ATTORNEY
MTHATHA
Application heard on : 21 October 2025
Ruling delivered on : 21 October 2025