[5]
Mr. Murorua, on the other hand, argued that the applicant should be awarded costs because the usual
rule is that the party at whose instance the postponement is obtained must pay the wasted costs. Apart from relying on the general rule, which undoubtedly supports the applicant’s position, Mr. Murorua argued further thus:
by being given a trial date by the Registrar, the applicant had acquired a procedural right and if the Court, in the exercise of
its discretion, grants the respondents’ application, which, in effect, would take away that right, then the respondents who
applied to the Court to take away that right, so to speak, must be ordered to pay costs. Mr. Heathcote’s response was simply
this: the applicant cannot insist on a right and gain from it if such right was obtained improperly.
[6]
In my opinion, the above-mentioned usual rule being a general rule is open to qualifications: there
may be rationes for not awarding costs in accordance with the general rule. And whether or not there is a reason or reasons for not applying the usual rule will depend principally on the facts and circumstances
of the particular case. In this connection, the principal facts and circumstances, which I keep in view, are the following:
(1)
The respondents’ application to strike out and their application for condonation for the late filing of the respondents’
answering affidavit remain undetermined by this Court.
(2)
There has been a misreading or misunderstanding, common to both parties, of the Judge-President’s Practice Direction regarding
set down and trial dates of cases during the ‘transitional period’ between 2006 and 2007.
(3)
There has been a failure on the part of the Registrar to respond to the various important and critical enquiries addressed to him
by the respondents’ legal practitioners of record.
(4)
The applicant’s representative was informed that the granting of a postponement was a likely result if an application for same
was made by the respondents, and yet he persisted in his refusal to agree a postponement to a date in the First Term of 2007. But,
counsel for the applicant, without contest, conceded in the hearing of this application that the respondents have made out a case
for a postponement. Why this costly belated concession, if one may ask?
(5)
There is the Registrar’s inadvertence in not carefully scrutinizing the applicant’s notice for a trial date (dated 14
August 2006), which was defective, and his allocation of a trial date based on the defective notice, making the allocation a nullity.
And yet the applicant’s representative insists that as far as the applicant is concerned, the Registrar duly allocated a trial
date for the hearing of the matter.
(6)
There is the absence of agreement concerning the allocated trial date.
(7)
The respondents averred that since there was no agreement concerning the trial date, they were unable to obtain the services of counsel
of their choice. But they do not say whether they tried, but failed, to obtain the services of another counsel.
(8)
Due allowance must be given to the fact that the applicant and her representative are not legal practitioners, even if the latter
was misguided in his comprehension of the relationship between the Rules of Court and the Judge-President’s Practice Directives
and the applicability of the Practice Directives so long as they are not offensive of the Rules.
[7]
Having considered factors (1) to (8) in the next preceding paragraph against the backdrop of all the circumstances of the case, I do not see the scales favouring the
position of either the applicant or the respondents. In Klein v Klein, the Court found that each of the parties contributed to the need for postponement of the trial. Consequently, the Court regarded
it just and fair that each party should pay its wasted costs. Besides, the conduct of the Registrar also contributed in some way
to the present situation, resulting in an application for postponement. That being the case, a fair solution of the issue of costs
is to make no order as to costs instead of ordering that the wasted costs be made costs in the cause. Relying on these authorities, I come to the reasonable conclusion that it would be just and fair that each party should bear its
own wasted costs.
[8]
In the result, I make the following order:
(1)
the matter is postponed to a date to be arranged with the Registrar; and
(2)
there shall be no order as to costs.
_________________
PARKER, J
ON BEHALF OF THE APPLICANT
Mr. L. Murorua
Instructed by:
Murorua & Associates
ON BEHALF OF THE RESPONDENTS
Adv. R. Heathcote
Instructed by:
Van der Merwe-Greef Inc.
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