IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DJ VISION, MAHIKENG
Case no: 615/20
Not reportable
In the matter between:
GODISOANE GOODBOY SERIMA PLAINTIFF
and
THE MINISTER OF POLICE DEFENDANT
Coram: Wessels AJ
Reserved: 5 May 2026
Delivered: This judgment was handed down electronically , circulated to the
parties ' representat ives via ema il, uploaded to CaseLine s and
release to SAFLII. The date and time for the handing down of the
judgment are deemed to be I 0h00 on 5 August 2026.
Summary: Costs of postponement - defendant's counsel unavailable on
allocated trial date - State Attorney failed to communicate
unavailability to plaintiff for over five weeks - whether
Wessels AJ
Introduction
postponement costs should be on attorney-and-client scale or
patty-and-party scale - attorney-and-c lient costs refused - party
and-pa1ty costs awarded.
JUDGMENT
[l] This matter was set down for trial on quantum on 5 May 2026, following
the separation of merits and quantum ordered by Djaje DJP on 25 August 2022,
on which date the defendant was held liable for l 00 per cent of the plaintiff's
agreed or proven damages arising from an unlawful assault, arrest and detention.
When the matter was called on 5 May 2026, counsel for both parties appeare d. lt
was apparent that the trial could not proceed and the parties agreed on a
postponement. The only dispute was the costs of that postponement. [ granted the
postponement by agree ment and reserved my judgment on costs.
Background
[2] The following chronology emerges from counsel's address and related
correspondence between the legal representatives of the parties, which was placed
before this Court. On 27 Novem ber 2025 the Registra r allocated 5 May 2026 as
the trial date. The plaintiff served and filed a notice of set down for.trial on 7
January 2026. On 13 March 2026, Mrs Williams, counsel for the defendant,
emailed the State Attorney to advise that she was unavai lable on 5 May 2026 and
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requested that the matter be removed from the roll. Two reminder emails by Mrs
Williams to the State Attorney followed on 16 March and 15 April 2026. The
State Attorney took no steps in response to any of the three emails.
[3] Five weeks after Mrs William s' first email, on 23 April 2026, the State
Attorney wrote to the plaintiffs attorneys for the first time, attachi ng an email
described as being from 'our client' and 'self-explanatory ' . This email was in fact
the email from Mrs Williams to the State Attorney. The plaintiff's attorneys, on
28 April 2026, indicated in writing that they were ready to proceed. On 30 April
2026, the State Attorney replied and advised that Mrs Williams was not availab le
and asked for a postponement , with costs to be reserved. The plaintiffs attorneys
responded the same day, proposing to agree to a postponement on conditio n that
the defendant pay the wasted costs on the party-and-party scale.
[4] At the hearing on 5 May 2026, Mrs Williams had become available again
shortly before the trial date but seemi ngly only for the purposes of appearing in
the application for postponement. The plaint iff's Rule 38(2) application had been
filed on 23 April 2026, 5 (five) days before the hearing. The defendant filed no
opposing papers to that application.
Counsel's submissions
[5] Mr Maree, for the plaintiff, submitted that the postponement was caused
sole ly by the defendant's failure to ensure counsel's availability and by the State
Attorney 's unexplai ned delay in commu nicating it. The plaintiff had been ready
to proceed, having filed the notice of set down , prepared the trial bundle, filed
expert notices and brought the Rule 38(2) applicat ion. The plaintiff sought an
order that the defendant pay the wasted costs on the attorney-and-client scale,
including the bundle and preparation costs and counsel's Scale B fees.
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[6] The defendant, for the first time at the hearing, offered party-an d-party
costs. Mrs Williams, for the defendant , submitted that the plaintiff also bore some
responsibility, on the following ground s: Firstly, the Rule 38(2) appl ication was
filed five court days before the hearing. However, the defendant filed no opposing
papers and did not seek a postponement on that grou nd, its actual gro und being
the unavailability of counsel. Secondly, Uniform Rule 37(8) leaves the pre-trial
conference to be initiated by eithe r party or directed by the court, and that duty
did not rest exclusively on the plainti ff. Although written pre-trial quest ions and
answers were excha nged between the parties, the defendant did not request a pre
trial conference. In any event, a pre-tria l confe rence would not have resolved
counse l's unavailab ility.
Application to the facts
[7] The position is that costs ordinaril y follow the result. The party who cause s
a postponement is genera lly liable for the wasted costs of the other party. A
postponement by agreemen t does not, automat ically, deprive the innocent party
of its costs. These are trite principles that do not demand in-depth analysis in light
of the facts before this Court. The postponement was necessary because the
defendant ' s counsel would not be available on the allocated trial date. Havin g
cons idered the facts, I find that the plaintiff did not contribute materially to the
postponement. The defendant bears sole responsibi lity.
[8] The State Attorney's conduct gives cause for concern. It took five weeks
to inform the plaintiff of cou nsel's unavailability , and did so only by forwarding
an internal com munication with counsel that was inacc urately described as
com ing from 'our client'. Whether that was done by accident or design is not a
matter I need to decide. The State Attorney then made no offer of costs and did
not respond to the plaintiff's further letters regarding the postponement.
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[9] An attorney-and-client costs order is a punitive measure reserved for
conduct that is vexatious or otherwise reprehensib le which principle was stated
in ABSA Bank ltd (Volkskas Bank Division) v SJ du Toil & Sons Earthmovers
(Pty) Ltd1 as follows:
' As stated above, I am of the view that there were no such grounds in the instant matter. In In
re Alluvial Creek Ltd 1929 CPD 532 Gardiner AJ expressed himself as follows, at 535:
'An order is asked for that he pay the costs between attorney and client. Now sometimes
such an order is given because of someth ing in the conduct of a party which the Court
considers should be punished, malice, misleading the Court and things like that, but I think
the order may also be granted without any reflection upon the party where the proceedin gs
arc vexatious, and by vexat ious I mean where they have the effect of being vexatious,
although the intent may not have been that they should be vexatious. There are people who
enter into litigation with the most upright purpose and a most firm belief in the justice of
their cause, and yet whose proceedings may be regarded as vexatious when they put the
other side to unnecessary trouble and expense which the other side ought not to bear.·
[1 O] The conduct of the State Attorney was dilatory and unreasonab le, but it did
not involve dishonesty , malice or a deliberate attempt to prejudice the plaintiff. It
was passive and poorly communicated rather than improper. On this analysis , it
does not meet the threshold for a punitive order. Party-and-party costs are the
appropriate order, including preparation costs and counsel's Scale B fees.
Order
[11] In the result, the following order is made:
The trial scheduled for 5 May 2026 is postponed to a date to be allocated .
1 A BSA Bank Ltd (Volkskas Bank Division) v SJ du Toil & Sons Earthmover.1· (Pty) ltd 1995 (3) SA 265 (C) at
268 A-C.
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2 The defendan t shall pay the plaintifrs wasted costs occasione d by the
postponement on the party-and -party scale and the costs of counse l for the
plaintiff on Scale B for attendin g court on 5 May 2026 and for all
reasonable preparation related to that date .
3 The Rule 38(2) application stands over for determi nation on the new trial
M WE SELS
ACTING JUDGE OF THE HIGH COURT
NORT H WEST DIVISION, MAHIKENG
Appearances
For the plaintiff: Adv Maree
Instructed by: Nienaber Wissing Attorneys
Mahikeng
For the defendant: Adv Williams
Instructed by: The State Attorney
Mmabatho
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