Judgment
NDOU
J: This
is my partly-heard civil trial matter. This matter has a disturbing
chequered history characterised by dalliance.
The
trial commenced before me in October 2010. Just a bit of evidence was
adduced from the plaintiff. Thereafter, the matter was subjected to
several postponements. Eventually, the matter resumed on 16 October
2014.
On
that day, the plaintiff's legal practitioner of record was ill and
she sent a Mr Mutsauki
to stand on her behalf. The latter took over the matter at
short-notice. He further led the plaintiff in his evidence-in-chief.
The matter was postponed sine
die
when the plaintiff was under cross-examination by the defendant's
legal practitioner.
After
the parties failed to reach agreement on the date of resumption of
the trial, the Deputy Registrar contacted me. I indicated to him the
dates when I would be available to proceed with the matter. I
directed that the matter would proceed on a date convenient to the
Registrar of the court. The matter was accordingly set down for
continuation on 24 November 2014.
Unfortunately,
on that date I was not feeling well. I nevertheless forced myself to
appear and explain my predicament to the parties and possibly set
down a new date convenient to the parties. At the hearing, in
chambers, I was informed that the 2nd
and 3rd
defendants were not in attendance. A legal practitioner, Mr Ngwenya
had been instructed by their legal practitioner of record to come and
seek a postponement as the 2nd
and 3rd
defendants were said to be out of the country.
The
plaintiff viewed this conduct as the defendants' insouciance
towards this litigation.
Ms
Mudenda,
for the plaintiff cited previous instances where the matter was
postponed at the behest of the defendants. She submitted that the
plaintiff was seriously ill and he wanted the matter to be brought to
finality. She prayed that an order be granted in favour of the
plaintiff against the defendants with costs.
This
was opposed by Mr Ngwenya.
He proposed that a postponement with an order of costs against the
defendants will meet the justice of the case.
Generally,
a party who appears when the hearing starts, but thereafter withdraws
or absents himself from the remainder of the proceedings must be
accounted a defaulter – Katritsis
v De
Macedo
1966 (1) SA 613 (A) at 617G-618G and The
Civil Practice of the Supreme Court of South Africa
(4th
Ed) Herbstein and Van Winsen at 661.
In
casu,
the defendants have applied for postponement, the issue of the
default will fall away.
It
is trite law that the granting of such an application is in the
nature of an indulgence and it lies entirely in the court's
discretion to grant or refuse the application – Isaacs
& Ors
v University
of the Western Cape
1974 (2) SA 409 (C) at 411 and Gerry
v Gerry
1958 (1) SA 295 (W).
A
court should be slow to refuse to grant a postponement where the true
reason for the party's non-preparedness has been fully explained,
where his unreadiness to proceed is not due to delaying tactics and
where justice demands that he should have further time for the
purpose of presenting his case – Madnitsky
v Rosenberg
1949 (2) SA 392 (A) at 399 and Myburg
Transport
v Botha
t/a SA Trade Bodies
1991 (3) SA 310 (NmS).
The
prejudice to the plaintiff if the postponement is granted is that he
needs finality to this matter as he is chronically ill and the matter
is taxing on his health. Further, the defendants are in possession of
the property subject-matter of this matter.
In
my view, there is need to bring this matter to finality.
The
course suggested by the plaintiff's counsel may not achieve such
finality as it will open the matter to unnecessary further litigation
such as applications for rescission etc. In order to bring the matter
to finality expeditiously, it is my humble view that the trial should
be set down for continuation at the earliest available date. It is
better to conclude the matter on the merits.
I
will avail myself for continuation of the trial at the date agreed
upon by the Deputy Registrar and the parties.
I
discussed the matter with the Honourable Judge in charge and I am
informed it is possible to have the matter heard in April 2015.
I
have taken all these practical steps because I am concerned by the
delay.
On
the question of costs, it is my view that the defendants caused
prejudice to the plaintiff by leaving it to the eleventh hour to
inform him that the defendants were out of the country. The reason
given that their legal practitioner was making frantic efforts to
secure their attendance is not convincing. The defendants have
exhibited a cavalier attitude towards the litigation. They must bear
wasted costs for this hearing.
Accordingly,
the matter is postponed sine
die.
The
parties are directed to urgently meet the Deputy Registrar in order
to find a convenient date for continuation of the trial in April
2015. The 2nd
and 3rd
defendants are ordered to bear wasted costs for this hearing.
Messrs
Mudenda Attorneys,
plaintiff's
legal practitioners
Dube
& Company Legal Practitioners, 2nd
and 3rd
defendants legal practitioners
