IN THE HIGH COURT OF SOUTH AFRICA 

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER							25338/2009

DATE:							26 MAY 2010

In the matter between

and
MIDNIGHT STORMS INVESTMENTS 

JUDGMENT

GAMBLE, J

This is an application for a postponement in an application for provisional winding up order of the respondent company. I refer to the parties as they are in the main application. The matter commenced urgently in December 2009 and when it came before Court, it was postponed until today for hearing, with an agreed timetable for the filing of answering and replying papers. Those papers were, to all intents and purposes, filed timeously.

In the answering papers the respondent launched a blistering attack on the integrity of the directors of the applicant company and the intervening creditor. Allegations tantamount to fraud, theft and deceit were readily made. On 7 April 2010 the applicant and the intervening creditor filed a voluminous reply, collectively in excess of 1 000 pages, inclusive of annexures. Nothing was heard from the respondent company's attorneys until 28 April 2010 when an inquiry was made regarding the index which was required so that the pages could be paginated for consideration by counsel. This was about four weeks ago. The index was filed the following day.

There was a further hiatus until 11 May 2010, when the applicant and the intervening parties filed their heads of argument. On that very day a lengthy letter was sent by the company's attorneys, indicating that there was extensive new matter in the reply and that the respondent needed time to deal with it. A postponement was sought. I accept counsel's say-so that the letter was not written in response to the persuasive arguments made in the heads of argument, but independently thereof. The applicant and the intervening creditor indicating in no uncertain terms that such an application would be opposed. The application only saw the light of day ten days later on 21 May 2010. Answering papers and a reply were filed and that interlocutory application was heard first today.

1.	The trial judge has a discretion as to whether an application for a postponement should be granted or refused.
2.	That discretion must be exercised judicially, it should not be exercised capriciously or upon any wrong principle, but for substantial reasons.
3.	A Court should be slow to refuse a postponement where the true reason for a 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 purposes of presenting his case.

6.	Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of a court will be exercised. What the Court has primarily to consider is whether any prejudice caused by the postponement to the adversary of the applicant for a postponement, can be fairly compensated by an appropriate order of costs, or any other ancillary mechanisms
7.	The Court should weight the prejudice which will be caused to the respondent in such an application, if the postponement is granted against the prejudice, which will be cause to the applicant if it is not.

8. 	Finally, where the applicant for a postponement has not made his application timeously, or is otherwise to blame with respect to the procedure which he followed, but justice never justifies a postponement in the particular circumstances of a case, the Court can make an appropriate costs order against that party.

In the present case, the application was not brought timeously, allegedly due to the peregrinations of both the respondent's senior counsel and its lead attorney, himself a senior practitioner. This, of course, is no fault of the client but I should add, however, in their favour, that no one could have reasonably anticipated in December 2009, that an affidavit in excess of 1 000 pages would be filed in reply. The conduct of the respondent's director, has clearly not been the cause of the delay and an order, therefore, should not be to the prejudice of the respondent. Nevertheless the delay in bringing the application to postpone is unacceptable and the conduct of the company's attorneys in this regard will be addressed more fully in the costs order that I intend making.

We have spent the last couple of days running around, reading applications for a postponement, when the time could have been used otherwise more productively. The fact that remains, however, is that there is a plethora of new matter in the reply and it may be that the respondent needs to deal therewith. To determine the relevance thereof, is a difficult task at this stage, because it would involve a consideration of the merits, but I need to cite only one example. The company relied on a valuation of its farming land at a figure of around R45 million, (if I am not mistaken) and filed a summary by a Mr Blewett in this regard with its answering papers.
The applicant and the intervening creditor say that the value is only about a third of that and they rely on two valuations obtained by them after the filing of the answering papers. It appears that Mr Blewett passed away very recently and the respondent is unable, and at short notice, to verify the correctness of the new valuations advanced by the applicant and the intervening creditor. This detail is, of course, relevant to the overall solvency of the respondent company.

Finally I turn to the issue of costs. As an indication of my displeasure with the manner in which the respondent's attorneys have dealt with this matter in relation to the application for a postponement, I am of the view that they should be precluded from recovering any fees in relation to the application for a postponement. I do this because it is not fair that the client should be mulcted in costs due to the attorney's dilatoriness. The following order is then made:

2.	The applicant is given leave to file a further set of affidavits in response to the new matter raised in the replying affidavits, filed of record on behalf of first and second respondents herein.

4.	Mr. Rafiq Dawood is directed to make payment forthwith of all necessary and reasonable expenses relating to the maintenance, upkeep and farming activities on the immovable property owned by the applicant, pending the hearing hereof on 12 August 2010, alternatively such earlier date as a provisional winding up order may be granted.
5.	In the event of non-payment of, or a dispute in relation to any of the costs referred to in paragraph 4 above, the first and second respondents are authorised to approach this Court forthwith, on reasonable notice to the applicant, for appropriate relief.
6.	The costs of this postponement, including the costs of two counsel, are to be paid by the applicant.
7.	The applicant's attorneys of record are precluded from recovering any fees from their client in relation to the application to postpone.