IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN BRAAMFONTEIN
CASE NO. : J640/00
In the matter between :
SURYIA KUMAR PARMANAND APPLICANT
And
THE UNIVERSITY OF VENDA RESPONDENT
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EX TEMPORE JUDGMENT
MAYA J. :
[1] This is an opposed application for a postponement. The respondent seeks a postponement
of the proceedings which were set down for hearing on trial today. The basis of the
application is mainly that the respondent has not been able to prepare properly for the
trial because the documentation the applicant intends to rely on in the trial proceedings (“the
bundle”)was delivered out of time.
[2] It is common cause that –
a) the parties agreed at a pretrial conference that the applicant would deliver the bundle
not later than three weeks before the date of trial;
b) in a letter dated 21 June 2004 the applicant’s attorneys undertook to deliver the bundle
shortly, by registered mail, and requested their counterparts to timeously acknowledge
receipt thereof;
c) on 24 June 2004 the applicant’s attorneys sent their counterparts a facsimile message,
apparently a covering minute accompanying the bundle, asking to be notified within
7 days of receipt thereof if there was any objection to the content of the bundle;
d) the respondent’s attorneys did not receive the bundle by the expected date; as the trial
date drew closer, during the court recess, they made various enquiries in an attempt
to obtain it; it
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was established only on 26 July 2004 when the respondent’s attorneys retrieved the
bundle from the post office, upon obtaining the relevant tracing details from the
applicant’s attorneys, that the latter had sent it to a wrong address.
[3] It was argued on the applicant’s behalf that his attorneys’ letter of 24 June 2004 made it
clear to their counterparts that the bundle was ready and had been sent to them as agreed and
that when they did not receive it within the expected time, at the expiry of the 3 week period
before trial, they should have made enquiries to locate it. It was argued further that the error
made by the applicant’s attorneys in sending the bundle to a wrong address was an innocent
one and was not a deliberate tactic to delay the matter or hamper the respondent’s defence.
[4] I am not persuaded that these submission assist the applicant. Clearly, the obligation was
on him to ensure that the bundle was served on the respondent. The respondent was certainly
under no legal obligation to follow up on his failure to carry out his undertaking. In any
event, as pointed out above, the respondent’s attorneys did make extensive enquiries at some
stage.
[5] I raised issue with the applicant’s counsel about his instructing attorneys’ failure to
timeously notify the respondent’s legal representatives of their intention to seek a
postponement. His response, which I find convincing in the circumstances, was that the need
for the postponement became apparent only during preparation which continued until this
past weekend.
[6] On a consideration of all the relevant factors I am satisfied that the respondent has met
the criteria for the grant of a postponement which are set out, for example, in the case of
Myburgh Transport v Botha 1991(3) SA 310 (NmSC). In view of the fact that the delay,
Myburgh Transport v Botha 1991(3) SA 310 (NmSC). In view of the fact that the delay,
which has resulted in the need for a postponement, has been occasioned solely by the
negligence of the applicant’s attorneys, it seems only fair in the circumstances that he should
bear the costs.
[7] In the result the following order is made :
3.
a) The application for a postponement is granted.
b) The matter is postponed for hearing on 15 November 2004.
c) The applicant is ordered to pay the costs.
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ACTING JUDGE OF THE LABOUR COURT
For the Applicant : Mr Olivier (instr. by A.C.Osman Att.)
For the Respondent : Mr Skosana ( instr. by Ramagaga Att.)
Heard and delivered on 2 August 2004
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