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IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between
McCarthy Retail
Ltd Appellant
and
Shortdistance Carriers
CC Respondent
Before: Smalberger ADCJ, Harms, Olivier, Schutz and Cameron JJA
Heard: 27 February 2001
Delivered: 16 March
2001
Garage’s action for necessary and useful
expenses against owner with whom it has no contract - repaired in mistaken
belief insurance
company had instructed it - enrichment proved - irrelevance of
insurance policy - question of whether enrichment at the expense of
not arising
- obiter dicta on acceptance of general enrichment action- and overruling of
Gouws v Jester Pools - postponement of appeal
refused.
W P SCHUTZ
________________________________________________________________
J U D G M E N T
________________________________________________________________
SCHUTZ
JA:
[1] The dispute is whether the appellant, McCarthy Retail Ltd (“the garage”),
has an enrichment claim for repairs to a
Peterbilt truck owned by the respondent, Shortdistance Carriers CC (“the
owner”).
The agreed value of the repairs is R 186 000.
[2] The truck
was damaged in an accident in December 1995, after which the owner took it to
Dan Perkins Trucks (Pty) Ltd, an agent
of the garage, which together with its
principal will also be referred to as “the garage”. No instruction
to repair
was given by the owner, who had insured the truck with Truck and
General Underwriting Managers (Pty) Ltd (“the insurer”)
and paid the
premiums. On 12 December 1995 the owner submitted a claim. An insurance
loss-adjuster, Mr Hamilton, was employed
by the insurer to inspect the truck at
the garage. At the trial there was a dispute whether he instructed the garage,
represented
by Mr Dinkel, to proceed with the repairs on behalf of the insurer.
The trial judge, Booysen J, accepted Hamilton’s evidence
that no such
instruction was given, but held that Dinkel had laboured under the bona
fide but mistaken belief that he had. The garage effected the repairs,
which were completed by the end of January or early February 1996.
The repaired
truck was delivered to the owner by the garage at the end February or early
March. During December an agreement
had been concluded between Dinkel and
Mr Ramdhani, a member of the owner. The excess payable by the owner under the
policy was
R 50 000, but Dinkel agreed to reduce the amount to R 25 000 at the
expense of the garage, which amount the owner paid in two instalments.
[3] The garage, believing it had a contract with the insurer, submitted its
invoice to it. On 2 April 1996 the insurer repudiated
the owner’s claim
in a letter addressed to his insurance broker. This triggered the operation of
a clause of the policy which
provided that if legal action were not commenced
within six months of the rejection of a claim, all benefits under the policy
would
be forfeited. This meant that under the policy the owner had until about
2 October 1996 to launch legal action. Ramdhani’s
undisputed evidence was
that he did not know of the letter of repudiation until his broker transmitted a
copy of it to him in September
1996. His further undisputed evidence was that
although a Mr Buchanan from the garage asked him for a copy of the claim form in
August 1996, Buchanan did not tell him that there was a problem with regard to
the payment of the claim. This despite the fact that
Dinkel learned of the
repudiation in the middle of June 1996, and had throughout been conducting the
dealings with the insurer
and informing Ramdhani of progress. The owner did
not institute action against the insurer.
[4] On appeal it is common cause that Booysen J was correct in holding
that the insurer was not entitled to repudiate the policy
on the grounds that it did. (This has nothing to do with the six months
period.
The grounds of repudiation alleged were that the owner was not in possession of
a certificate of fitness or an operator’s
card as required by the policy.)
What remained in issue was whether a direct contract of repair was concluded
between the garage
and the insurer.
[5] With regard to this issue Booysen J
held:
“It was equally clear from the evidence that no contract existed between Truck and General/Global and Dan Perkins pursuant to which Defendant’s truck was repaired. Mr Dinkel, the manager of Dan Perkins, gave evidence to the effect that Mr Hamilton, claims assessor, authorised Dan Perkins to repair the truck. It is quite clear though that even if he had done so, he had no mandate or authority from the insurance company to do so. I am, however, in any event, satisfied that Mr Hamilton did not authorise the repairs. His evidence is clear and credible. It accords with the contemporaneous notes and correspondence. He came across in the witness box as a careful man with a perfect understanding of his duties and mandates. Having seen him give evidence I have no doubt that he did not, as Mr Dinkel claims, instruct the latter to do the repairs. Mr Dinkel, it was clear from his evidence, was an impatient and somewhat impulsive man who, I could see, could easily have jumped to the conclusion that he had the necessary authority to proceed with the repairs when such conclusion was not justified. One could see him misunderstanding what was said to him by Hamilton.”
I find nothing to criticise in this finding and
conclude that there was no contract between the garage and the insurer,
although,
as the judge also found, Dinkel bona fide believed that there
was.
[6] Accordingly, the essential facts are: The owner took his damaged
truck to the garage but did not instruct it to repair the truck,
made a claim on
his insurer, but took no active part in the dealings between the garage and the
insurer thereafter. The garage
repaired the truck believing that the insurer
had instructed it to do so, but it was wrong. There was no contract. Before
the insurer
repudiated the claim the garage returned the truck to the owner.
The value of its repairs was R 186 000. The insurer communicated
its
repudiation to the owner’s broker on 2 April 1996, but the broker did not
inform the owner until September. In the meantime
the six months period for
instituting action had been running, so as to expire by 2 October. The owner
did not institute an action
at any stage. There had been no basis for the
insurer’s repudiation before 2 October and the policy was a valid policy.
Despite
its knowledge of the repudiation by June 1996, the garage did not alert
the owner to the existence of a difficulty about the one
or other of them
recovering the cost of the repairs from the insurer. Do these facts support an
enrichment claim by the garage against
the owner?
[7] Booysen J held that
they did not, saying:
“As I understood the argument advanced on behalf of the Plaintiff, it was conceded that if the insurance company had not been entitled to repudiate the claim, no unjust enrichment could be said to have taken place. I agree. In that event the Plaintiff would have repaired the vehicle under the mistake that it was doing so at the request of the insurance company, and the Defendant on the other hand received the repaired vehicle in terms of its contract with the insurance company. It thus received the benefit for which it had paid its premiums and was not unjustly enriched or enriched sine causa.”
In its notice of application for leave to
appeal the statement that the garage had made the concession recorded by the
judge a quo was challenged as a misdirection. Leave to appeal was
granted by him and the appeal proceeded on the footing that no such concession
is made.
What are the foundations of our enrichment law?
[8] Unlike
other branches of our law, the rich Roman source material has not led to an
unqualified judicial recognition (with a few
exceptions) of a unified general
principle of unjustified enrichment, from which solutions to particular
instances may be derived.
Rather there has been an augmentation of the old
causes of action, from case to case, usually with reference to rules treated as
being of general application. This has led to a more or less unified patchwork
(the “lapwerk” according to Professor
de Vos
Verrykingsaanspreeklikheid in die SA Reg 3ed). And although there has
been no unequivocal recognition of a general enrichment action, time and again
unjustified enrichment
principles have been treated as a source of obligations
being the basis for creating a new class or sub-class of liability in
particular
circumstances. No better example of this can be found than the
minority judgment of Ogilvie Thompson JA in Nortje en ‘n Ander v Pool
NO 1966(3) SA 96 (A) - the majority judgment in which is still sometimes
held out as having given the final death-blow to a general
enrichment action.
The question whether such an action should be recognized was passed by in
Kommissaris van Binnelandse Inkomste en ‘n Ander v Willers en
Andere 1994(3) SA 283 (A), but Botha JA made it clear that the piecemeal
extensions of the old actions, which have been proceeding for over
a century in
South Africa, have not been impeded by the decision in Nortje’s
case (at 331 B - 333 E). See also Bowman, de Wet and du Plessis NNO and
Others v Fidelity Bank Ltd 1997(2) SA 35 (A) at 40 A - B. One of the
restraints upon the acceptance of a general action is the belief, or fear, that
a tide
of litigation would be let loose. Initially there may be some surge of
litigation, particularly under the emotive banner of “unjust
enrichment.” But it should not last long, once the restrictions even on a
general action are appreciated. My opinion is
that under a general action only
very few actions would succeed which would not have succeeded under one or other
of the old forms
of action or their continued extensions. For this reason, if
it be a good one, the acceptance of a general action may not be as
important as
is sometimes thought, save, of course, that its denial may lead to occasional
individual injustices. A more daunting
consequence of acceptance is the
possible need for a re-arrangement of old-standing rules. Are the detailed
rules to go and
new ones to be derived from a broadly stated general principle?
Or are the old ones to stand, and be supplemented by a general action
which will
fill the gaps? The correct answers to these questions are not obvious. But I
would support the second solution. In
a rare case where even an extension of
an old action will not suffice I would favour the recognition of a general
action. The rules
governing it should not be too difficult to establish - see
de Vos ch VII for an outline. We have been applying many of them
for a long
time.
[9] How we have reached our present state is a matter of history. The
Roman law, although containing several general affirmations
of liability for
unjustified enrichment, did not evolve a general action. Nor did the mediaeval
writers, although there are some
who would challenge this statement. But there
is a strong, if by no means unanimous, body of academic opinion that Grotius,
influenced
by Spanish jurists and theologians, had come to accept unjustified
enrichment as an independent source of obligations, just as contract
or delict
were. The case for Grotius is persuasively stated in Feenstra’s chapter
Grotius’ Doctrine of Unjust Enrichment as a Source of Obligation: its
Origin and its Influence in Roman-Dutch Law p 197, contained
in Vol 15, Unjust Enrichment The Comparative Legal History of the Law of
Restitution (1995) edited by Schrage, in the Comparative Studies in
Continental and Anglo-American Legal History series. Whether Professors
Feenstra and Scholtens are right about Grotius need not be determined, because
the latter has demonstrated
quite convincingly, in my opinion, that by the
eighteenth century the Hooge Raad had come to accept the existence of what we
would
call a general enrichment action, although the descriptions of it by
individual judges differed - see Scholtens “The General
Enrichment Action
That Was” (1966) 83 SALJ 391, Feenstra (op cit) 228-235. The main reason
why this development did not affect
the evolution of Roman-Dutch Law in Southern
Africa, up to and including Nortje’s case, is that the decisions
recorded by Bynkershoek and Pauw lay unpublished for two centuries and more.
This reveals the weaknesses
of a practice (that of Holland at the time) which
did not require judges to give full reasons for their decisions and which
lacked
systematic law reporting. We now know from the hard print that there is
a common law basis for the acceptance of a general enrichment
action, at least
one of a subsidiary nature. In this respect the decision of the majority in
Nortje’s case at 139 G - H has been shown by the then largely
dormant authority to be clearly wrong.
[10] However, if this court is ever
to adopt a general action into modern law, it would be wiser, in my opinion,
to wait for that
rare case to arise which cannot be accommodated within the
existing framework and which compels such recognition. If once a general
action
is accepted much less energy, hopefully, will be devoted to the correct
identification of a condictio or an actio than at present and more
time to the identification of the elements of enrichment. This does not mean,
however, that the old structure’s
relatively few distinctive rules
applying only to particular forms of action, such as the requirement in the
condictio indebiti that the mistake should be reasonable, will disappear.
The case before us
[11] The case before us can be solved by
reference to established principles. Appellant’s counsel, as also the
trial judge
in granting leave, suggested that the appropriate action is the
condictio sine causa. This presents a difficulty:
“The object of condiction is the recovery of property in which ownership has been transferred pursuant to a juristic act which was ab initio unenforceable or has subsequently become inoperative (causa non secuta; causa finita)”.
Per van den Heever J in
Pucjlowski v Johnston’s Executors 1946 WLD 1 at 6.
[12] The case before us was presented as if it was the delivery of the
repaired truck which was the defining event. That delivery
transferred neither
the truck (which was already owned by the recipient) nor the repairs (which had
already become the property of
the owner by accession). What we are concerned
with is a typical instance of necessary and useful improvements made to an
owner’s
property without a contract between the repairer and owner. In
the Roman and Roman-Dutch law the bona fide possessor could exercise a
lien for the amount of his necessary and useful expenses or the increase in
market value brought about,
whichever was the lesser (de Vos 96). This
principle applied also to the improvement of movables (de Vos 97, Grotius
2.10.4, van
der Linden 1.7.2). The Roman-Dutch law developed on the Roman law
in the respect that the improver was not confined to the defensive
remedy of
exercising his lien, but was granted an action (de Vos 98). Thus the fact that
in the case before us the garage has given
up possession voluntarily does not
leave it remediless. It may sue, as it has done.
[13] A further development
in modern South African law has occurred in the case of occupiers (as opposed to
possessors). A bona fide possessor believes that he holds as owner,
although he is mistaken as to his ownership. An occupier does not have that
belief, but
nonetheless has or believes he has some lesser right to possess. If
he in fact has such a right he is a lawful occupier. If he
bona fide
believes he has but is mistaken, then he is a bona fide occupier
(de Vos 246-7). Both have rights of defensive possession and action similar
to those accorded bona fide possessors (de Vos 259 et seq and 249 et seq
respectively). De Vos 263 asserts that none of these actions is to be seen
as an
application of the condictio sine causa. But see Scholtens
“Enrichment at Whose Expense?” (1968) 85 SALJ 371 at 374 and
O’Brien “A Generally Applicable
Condictio Sine Causa for South
African Law?” 2000 TSAR 752 at 760. (Both these articles are in part a
reaction to the refusal
of a general action in Nortje. There is an
attempt to inspan the condictio sine causa in an extended form in its
place. A few spadefuls of earth are thrown over the course of the enrichment
stream. In no time little
rivulets advance to penetrate over, round or through
the dam. Have we not been defying gravity?)
[14] On the facts the garage was
a lawful occupier. The owner placed it in possession of the truck in the
contemplation that it should
be repaired, even though it did not itself instruct
those repairs. The fact that Dinkel then made a bona fide mistake in
believing that the insurer had instructed him to repair does not affect that
position. At worst for the garage it was
a bona fide occupier. It makes
no difference which of the two it was.
[15] Are the four general requirements
for an enrichment action, as listed in the title “Enrichment” by
Lotz (revised
by Horak) Lawsa Vol 9 First Reissue para 76, satisfied? The
owner’s arguments on these points largely hinge upon the role
of the
insurance policy.
[16] The first and fourth requirements in Lawsa are
enrichment of the defendant and the lack of a causa for that enrichment.
The owner was impoverished when his truck was damaged in an accident. Had he
not been insured he would have
had to bear the cost of repair. Had he
contracted for repairs he would not have been enriched when the repaired truck
was returned
to him as he would have had to pay the agreed contract price. As
it was put by Rose-Innes J, following de Vos, in Govender v Standard Bank of
South Africa Ltd 1984(4) SA 392 (C) at 404 D, “In assessing whether
defendant has been enriched by the payment, account must be taken of any
performance rendered by defendant which was juridically connected with his
receipt of the money”. See also B&H Engineering v First National
Bank of SA Ltd 1995(2) SA 279 (A) at 294 I-J, in which
Govender’s case was approved.
[17] But in the case before us
the owner did not enter into a contract with the garage in respect of the
repairs not covered by the
excess, so that he did not have to pay a contract
price therefor. On the face of it he was enriched by the receipt of the
repaired
truck without there being a countervailing performance on his part,
juridically connected with that enrichment. However, says the
owner, but what
of my insurance policy for which I had to pay premiums? This is said to be the
cause of the enrichment. The answer
is that it was not the policy or the
payment of the premiums which procured the repairs, but the mistaken belief of
Dinkel that the
insurer had instructed him to proceed. The policy was something
quite extraneous when it did not give rise to the repairs. Its
purpose was to
reimburse the owner in one way or another should his truck be damaged. As far as
the garage was concerned all that
the payment of the premiums procured was a
visit by an insurance assessor, who may have agreed what a reasonable price for
the repairs
would be, but who did not instruct that they be effected. The
upshot is that the owner was enriched sine causa. The amount of the
enrichment was agreed at R 186 000. By clear implication this meant that the
market value of the damaged truck
was agreed to have been raised by that amount
by necessary and useful expenditure.
[18] Much of the argument was devoted to
the part played by the insurance policy and it was central to the court a
quo’s judgment. I have sought to demonstrate that upon a
proper analysis it is irrelevant to the case before us. My decision depends
upon that
conclusion. However, I would point out, without incorporating it in
my decision, that had the owner availed himself of the rights
for which he had
expended premiums he should have had not only the repaired truck but also a good
claim against his insurer, the
proceeds of which he could have used to pay the
garage’s enrichment claim. He had actual notice of the repudiation of the
policy in September 1996, some time before the six months period expired on 2
October 1996. He may be deemed to have known even earlier,
if his broker’s
knowledge is to be attributed to him. Although the existence and extent of
enrichment is usually taken at
the date of the summons (August 1997 in the case
before us), one of the exceptions is where the defendant permits the enrichment
to be lost at a time when he should have allowed for the possibility that the
benefit he had received might later prove to constitute
an unjustified
enrichment: Lawsa para 76 p 63, de Vos 336-7. In my opinion a reasonable
person in the owner’s position would
have anticipated that the garage had
not been paid and might look to him; and would then have studied his policy and
instituted action
within the six months period. The record contains no
suggestion that he did so. Instead he chose to ward off the garage’s
claim. On the face of it he could have saved himself. On appeal it was common
cause (although it was in issue in the court below)
that the insurer was not
entitled to repudiate the policy on the grounds originally relied on. Had his
action succeeded, no enrichment
problem would have arisen. He would have had
the funds to pay the garage, there being no suggestion that the insurer would
not have
been able to pay the claim. And also for the reason of the
insurer’s solvency, had the facts been that there was a contract
between
the insurer and the garage, again there would have been no enrichment problem,
as the garage would have been paid by the
insurer and would not have sued the
owner. During argument mention was made of the Scottish case of Kirkland
Garage (Kinross) Ltd v Clark 1967 Scots Law Times 60. The facts in that
case were similar to those in the case before us, save in the respects that
there was
a contract between the insurer and the garage, and the insurer was
insolvent. The case accordingly has no bearing on our situation,
which does
not present the sort of case, to be described more fully below, the “type
one” case, where an intermediate
party has absconded or is insolvent.
[19] The next requirement postulated by Lawsa is that the plaintiff should
be impoverished. Clearly the garage was impoverished.
[20] The remaining and
sometimes vexed question is whether the owner’s enrichment was at the
expense of the garage. How to
handle cases of “indirect
enrichment”, in which three or more parties are involved has caused
considerable debate. At
the one extreme is the “subcontractor”
class of case, represented in this court by Buzzard Electrical (Pty) Ltd v
158 Jan Smuts Avenue Investments (Pty) Ltd en ‘n Ander 1996 (4) SA 19
(A). A, a property owner, had contracted with B to perform certain work on his
property. B subcontracted the electrical
section of the contract to C, who
performed his obligations. C was unable to recover from B, which had been
liquidated, so it sued
A as owner for enrichment. The action failed, on the
footing that the primary source of A’s enrichment was not C, but the
main
contract between A and B (at 29 F-G). (The proposition was also expressed in an
alternative form, that because A had got exactly
what he had bargained for with
B, any enrichment was not sine causa (at 29 G)). The reasoning has been
criticised as being “very rigid” by and Visser and Miller
“Between Principle
and Policy: Indirect Enrichment in Subcontractor and
‘Garage-Repair’ Cases” (2000) 117 SALJ 594 at 605, on the
ground that even though the enrichment could never be sine causa
vis-à-vis the main contractor, it could conceivably be so
vis-à-vis the subcontractor, whose entitlement would be
subject to the
policy considerations relevant to the particular situation. However that may
be, we are not concerned with a Buzzard situation, called by van Heerden
JA a “type two” situation.
[21] Of more immediate interest are
the remarks made in Buzzard about the “type one” case, with
which the subcontractor “type two” case was contrasted (at 25 H- 26
A and
27 D - E). Type one arises (I take the most typical example) when A
contracts with B to improve property of another (the owner)
and A claims from
the owner for his enrichment, B having disappeared or gone insolvent. Van
Heerden JA found it unnecessary to
make a finding on the “type one”
situation and assumed for the sake of argument that an action would lie in such
a case
(Buzzard at 27 C). A sharp dispute of opinion underlies this
assumption. In a long-standing series of decisions in type one or analogous
situations, among which may be mentioned United Building Society v
Smookler’s Trustees and Golombick’s Trustee 1906 TS 623 and
Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3)
SA 264 (A), it has been held that a type one improver may exercise an enrichment
lien against the owner in order to procure
payment of his necessary and useful
expenses. But in Gouws v Jester Pools (Pty) Ltd 1968 (3) SA 563 (T), a
Transvaal full bench held that the improver in a comparable situation had no
action, because, such was the
reasoning, the enrichment of the owner had not
been at the expense of A (the plaintiff) but at the expense of B, as the
enrichment
flowed from the performance by A of a contract with B. This
reasoning, of which he was a long-time proponent, was welcomed by de
Vos 343
and 350 - 1.
[22] The result was that the defensive remedy of a lien was
available but not its counterpart of action. The attempt in the Brooklyn
House case to reconcile this anomaly was stigmatised in Buzzard at 26
I - L as wrong. Neither a lien nor an action can exist without an underlying
liability for unjust enrichment, so that they
were either both good or both bad
(at 26 J - 27 B). See also Singh v Santam Insurance Ltd 1997 (1) SA 291
(A)at 297 D - E.
[23] Either Gouws v Jester Pools must go, or many or
all of the long list of cases represented by the United Building Society
case must go, or so it seems to me. De Vos 347, 351 expresses concern that the
heresy (as he sees it) embodied in the lien cases
may yet contaminate the action
cases, leading to the jettisoning of the “at the expense of”
requirement in both situations.
The case before us does not require us to
decide the question which line of approach is to be accepted. De Vos himself
expresses
disquiet, in at least some situations, in which the improver does work
and cannot recover, whilst the owner holds the improved goods
without being
liable to anyone (351 - 2). For myself I think there is much to be said for the
justice of the lien cases, an unsophisticated
justice though it may be, but with
which we have lived for a long time. A improves a car at the instance of B,
wrongly believing
him to be owner. C claims the car by virtue of his ownership.
Is he to get it scot-free? Or is he to first pay A his necessary
and reasonable
expenses; A’s claim being moderated by the increase in market value cap,
by the limitation to expenses to the
exclusion of the market price, and by the
operation in the last resort of the jus tollendi (the right to compel
removal of materials)? The question whether C is enriched at the expense of A
or of B in the example given,
is in any event a matter of semantics (I do not
dispute that the manner in which the question is answered can have practical
consequences).
When A improves C’s vehicle the ownership in the
improvements passes at once to C’s estate by accession and it seems
to me
to pass there directly from A’s estate. Is it not a fiction that it
passes through the estate of B, even though A owes
a contractual obligation to
him to effect the repairs? (Cf Bregstein Ongegronde
Vermogensvermeerdering (1927) 218). Or take a case of necessary expenses -
Acton v Motau 1909 TS 841. By keeping Motau’s donkeys alive and
well in putting them to graze on his land, Acton there and then enriched
Motau,
and had he established that in so doing he had incurred expense, instead of
turning them into a field of withered grass which
would soon have been burned,
he would have established his lien and his right to compensation. Innes CJ and
Bristowe J found no
difficulty in the fact that there was a B in the case - that
Acton had come into possession of the donkeys under a contract of pledge
with
one Jonas, so that Acton was obliged to look after them. The fact that Acton
was mala fide, in that he knew that Jonas’s title was disputed,
does not affect the matter.
[24] However, the questions I have raised need
not be answered in the case before us, because it is not a multi-party case.
There
is no B in the equation. There was no contract between the garage and
the insurer or indeed with anyone. There is no-one else
at whose expense the
owner could have been enriched. Accordingly, in the case before us the
“at the expense of” problem,
sometimes encountered, does not arise.
[25] All the general requirements for enrichment liability being present,
the garage’s action should have succeeded.
Application for a
postponement
[26] On the day before the hearing of the appeal (set down
for 27 February 2001) a letter was placed before us on behalf of the respondent
“the owner”. It stated:
“We confirm that our counsel in this matter is Piet van Rooyen [the heads had been signed by Mr G R Thatcher, who had appeared at the trial]. Counsel has only just recently perused the papers in this matter and he firmly believes that it is one of an intricate nature and accordingly since he has only been instructed recently, more adequate preparation has to be done on behalf of the Respondent.
In the circumstances our Counsel will be seeking a
postponement tomorrow.”
[27] Inevitably the application for
postponement, which was opposed, was dismissed and the appeal proceeded with Mr
van Rooyen, whose
submissions on the merits were in the event of material
assistance to the court, still appearing for the owner. Reasons for the
dismissal of the application were to follow. These are the reasons.
[28] A
party opposing an application to postpone an appeal has a procedural right that
the appeal should proceed on the appointed
day. It is also in the public
interest that there should be an end to litigation. Accordingly, in order for
an applicant for a
postponement to succeed, he must show a “good and
strong reason” for the grant of such relief: Gentiruco A G v Firestone
SA (Pty) Ltd 1969 (3) 318 (T) at 320 C - 321 B. The more detailed
principles governing the grant and refusal of postponements have recently been
summarised by the Constitutional Court in National Police Service Union and
Others v Minister of Safety and Security and Others 2000 (4) SA 1110 (CC) at
1112 C - F as follows:
“The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the Court. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. Whether a postponement will be granted is therefore in the discretion of the Court and cannot be secured by mere agreement between the parties. In exercising that discretion, this Court will take into account a number of factors, including (but not limited to): whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed.”
[29] When the appeal was called Mr van Rooyen
informed us that he had been briefed on appeal on the previous day. Despite the
fact
that he informed his attorney that a formal application for postponement
would have to be filed, nothing further has been done and
all that we have by
way of explanation is the letter already quoted and Mr van Rooyen’s
statements from the bar: that the
owner’s former attorney had not been
placed in funds, that he had withdrawn and that the new attorney had been placed
in funds
only some days before the appeal.
[30] In opposing the postponement
Mr King, for the garage, handed in an affidavit by his attorney. This showed
that after receiving
notice of the former attorney’s withdrawal on 19
January 2001, more than five weeks before the appeal date, she took steps
to
ascertain whether the owner was aware of the date and to inform him of it if he
was not so aware. By 12 February she had established
that the owner knew of the
appeal and intended to instruct a new attorney. In the end she supplied the new
attorney with a copy
of the record and the heads of argument.
[31] The
application for postponement falls short on all counts. There is not even a
serious attempt to provide a “full and
satisfactory explanation” for
the owner’s unpreparedness or the lateness of the application. Nor is
such explanation
as there is, on oath, notwithstanding counsel’s advice to
the new attorney.
[32] The interests of other litigants and the convenience
of the court are also important. The record and heads have been read by
five
judges, variously months or weeks before the appeal date. The fact that this
case was placed on the roll meant that another
case had to wait for the
following term and if a postponement is granted this consequence will extend
into succeeding terms.
[33] Moreover, if the appeal were to be postponed, the
garage would be prejudiced by not obtaining a final determination of its claim
and payment, should it succeed.
[34] These are the reasons why the
postponement was refused. The owner will have to pay the costs of the
unsuccessful application,
of the communications referred to in the affidavit of
the garage’s attorney and of the affidavit itself.
[35] The appeal is
allowed with costs, including the costs of the postponement application, which
latter are to include the communications
referred to in the affidavit of Ms
Kunst and the affidavit itself.
The order of the court a quo is
altered to read:
“The defendant is ordered to
make payment of
(1) R 186 000;
(2) Interest at the rate of 15.5% per annum a tempore morae;
(3) Costs of suit.”
W P SCHUTZ
JUDGE OF APPEAL
CONCUR
OLIVIER JA
CAMERON
JA
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