South Africa: High Courts - Eastern Cape

Not reportable

In the High Court of South Africa

(Eastern Cape Division)

(Grahamstown High Court) Case No 2599/06

Delivered:

In the matter between

ROAD ACCIDENT FUND Applicant (Defendant)

and

ADEL SUSAN BARNARD Respondent (Plaintiff)

SUMMARY: Application for postponement of a trial – to succeed the applicant must show good cause, which involves inter alia establishing that the applicant is made bona fide and not for the purpose of delay – good cause was shown where an applicant explains fully why he is insufficiently prepared for trial, and where there is no prejudice to the plaintiff which cannot be compensated by an award of costs.

JUDGMENT

JONES J:

[1] This is an opposed application for a postponement of a trial. At the conclusion of argument I made an order and indicated that I would furnish reasons later. My order provided as follows:

1. An order will issue declaring that the plaintiff is entitled to the full amount of compensation which she is able to prove arising out the death of the deceased Reon Johan Barnard on 31 January 2004.

2. The defendant is ordered to pay the taxed party and party costs of the trial on the merits, with interest thereon at the prescribed rate from a date 14 days from the date of the taxing master’s allocatur to the date of payment.

3. The application for a postponement made on 21 February 2008 is granted and the trial on quantum will be postponed to a date to be arranged between the parties, subject to the proviso that in the event of the parties not being able to agree on a date for the further hearing of the matter, either party is given leave to set the matter down for hearing on notice to the other party.

4. The defendant is ordered to pay the party and party costs of the postponement on an unopposed basis, and any wasted party and party costs occasioned by the postponement.

5. The costs of opposition to the application for the postponement are reserved for decision by the trial court.

[2] My reasons for this order follow.

[3] The claim is for loss of support suffered by a widow and three children following fatal injuries sustained by their husband and father in a motor collision on 3 January 2004. During his lifetime the deceased carried on the business of an electrician which he conducted on his own account from his home. The amount of the claim is R1 627 221-00. The pleadings are closed. On 16 April 2007 the matter was set down for hearing. A pre-trial conference was held in June 2007, at which the parties contemplated that the trial would proceed without separating the issues. In due course the registrar set the matter down for trial on 21 February 2008. On 15 February 2008 the defendant filed an application for the separation of the issues and a postponement of the trial on quantum. The application was to be heard on the morning of the trial. The plaintiff decided to oppose the application without filing any papers in opposition. In the meantime she continued to prepare for trial. On the evening of 20 February 2008 her attorneys were advised by the defendant’s attorneys that the defendant conceded liability on the merits. The application for a separation of issues therefore fell away. There remained the application for a postponement of the trial on quantum.

[4] A decision on an application for a postponement in circumstances such as these involves balancing conflicting interests – the plaintiff’s interest in having his or her case heard promptly on the appointed day, for which he or she has properly prepared himself, and, on the other hand, the defendant’s interest in a full and proper presentation of the defence where there has for some reason not been proper preparation. A postponement is an indulgence, which requires an applicant to show good cause (Gentiruco A G v Firestone (SA) Ltd 1969 (3) SA 318 (T)). In Persadh v General Motors South Africa (Pty) Ltd 2006 (1) SA 455 (SE) 459E-G the requirements for an application for a postponement were summarized in paragraph 13:

‘The following principles apply when a party seeks a postponement. First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent's procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant's inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the parties may or may not suffer must be considered; and, fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.’

[5] The concept of good cause involves satisfying the court that the postponement is bona fide required for the proper presentation of a cause of action or defence, and is not a delaying tactic or an attempt to evade the consequences of inexcusable dilatoriness. The courts will be slow to refuse a postponement where good cause is shown and where there is no prejudice to the other party which cannot be compensated either by an appropriate costs award, or in some other way, such as an appropriate in order for interest or a preliminary payment of damages. In this case the applicant has shown good cause in this sense. I say so for the following reasons:

1. There is no history here of undue delay giving rise to prejudice. This is the first application for a postponement. There has been no prejudice caused by delay up to now. I am advised that the applicant has tendered a provisional payment to cater for any potential financial prejudice which may be suffered by the respondent. As far as financial prejudice is concerned, the applicant also alleged that the plaintiff is not indigent, having received considerable benefits from the estate of the deceased to tide her over. This allegation has not been denied, and the respondent has not alleged any prejudice which will be occasioned by the postponement which cannot be compensated by a costs order. Furthermore, the applicant has made an appropriate offer to pay costs, including wasted costs if the indulgence of a postponement is granted.

2. Circumstances have changed since the pre-trial conference of June 2007 when the defendant’s attorney confidently expected to be given full instructions by the Fund on the quantum of damages. A new policy was introduced in terms of which claims for more than a million rand were all to be dealt with by a special office in Pretoria. This meant that the respondent’s claim was transferred to the Pretoria office where it was allocated to an official. That official resigned and another official was appointed, but not in time to be able to acquaint herself with the intricacies of this case. She has been unable to give her attorneys adequate instructions. As a result the applicant now finds itself prejudiced in the preparation and presentation of its defence. While the plaintiff is, of course, not to blame for this, and while the Fund should perhaps have taken more effective steps to deal with this case in view of the imminence of the trial date, the default is understandable in the light of the volume of cases transferred to the Pretoria office, the resignation of the original official appointed to deal with the matter, and the time frame within which all of this happened. This is not a case where it is proper to penalize the Fund for being inadequately prepared, especially where it would seem that the transfer of large claims to a special office is designed for the better administration of public moneys.

3. Further, it appeared from the information in the respondent’s accountant’s expert notice that there may have been income tax irregularities which require investigation because they relate to basis upon which the deceased’s future income has been calculated. If there is no postponement and no investigation the plaintiff may be awarded compensation out of public funds in an amount in excess of her entitlement. This is under desirable.

4. There is reason for the applicant to believe that there may be a considerable body of documents which have not been discovered. A rule 35(3) discovery notice has been sent to the plaintiff’s attorney to which no reply has yet been received. Mr Eksteen has argued for the applicant that until a reply is received and such further documents as are available are furnished the applicant is prejudiced in its preparation for trial.

5. As I have said, the applicant is entrusted with the payment of compensation from public moneys. It is not in the interests of the good administration of justice that it should be inhibited in the conduct of its defence because it finds itself inadequately prepared to go to trial on quantum for reasons for which it can carry no or little blame. See in this regard the unreported judgment of Southwood J in Campbell v Road Accident Fund TPD Case No 34841/99 (5 November 2001) where this consideration was properly given weight even where there was considerable blame attaching to the Fund.

[6] For these reasons the application for a postponement was granted. The applicant tendered to pay the costs of the postponement on an unopposed basis, and any wasted costs. Such an order must be granted. There are no grounds for ordering these costs on the scale as between attorney and own client, as suggested by the respondent. The respondent asked for an order for the costs of opposition to the application because of its lateness and on the ground that the opposition was not frivolous. In my view an order for the costs of opposition may be affected by issues which are not yet resolved, and I think that they should be reserved for decision by the trial court.

RJW JONES

Judge of the High Court

21 February 2008