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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO:  1185/2016

In the matter between:

MASWABI ABEL THENEITSILE                                     Applicant

and

MINISTER OF POLICE                                                      Respondent

DATE OF HEARING                                          :           06 FEBRUARY 2018

DATE OF REASONS FOR JUDGMENT           :        15 MARCH 2018

COUNSEL FOR THE PLAINTIFF                      :           ADV. DU PLESSIS

COUNSEL FOR THE DEFENDANT                   :           ADV. MONGALE

REASONS FOR ORDER / JUDGMENT

HENDRICKS J

Introduction

[1]        On the 06^th February 2018, I granted an order in the following terms:

“1. THAT:       The matter be and is hereby removed from the roll.

2. THAT:       That the plaintiff pay the wasted costs occasioned by the removal.”

The order typed and sent out by the Registrar of this Court erroneously states in paragraph 2 “… occasioned by the postponement.” On the 13^th February 2018 a request for written reasons was filed with the office of the Registrar, which subsequently found its way to my chambers. Here follows the reasons for the order granted.

[2]        This matter is an action for the damages as a result of the alleged wrongful arrest and detention by members of the South African Police Services (SAPS). After close of pleadings an application was made for trial dates. Initial dates were allocated. On the 15^th November 2017 the matter was postponed until 06^th and 7^th February 2018 for trial. This was inter alia as a result of the request by the plaintiff for certain documents from the defendant. The documents were discovered.  On 18^th January 2018 a further request for documents were made in terms of Rule 35 (3) of the Uniform Rules of Court. The reply thereto was filed on 02^nd February 2018. The plaintiff is dissatisfied with the reply by the defendant. The plaintiff wants the police pocket books and fingerprint reports also discovered. This request is opposed by the defendant on the basis that it is not relevant. Adv. Mongale on behalf of the defendant states that bearing in mind the cause of action of the plaintiff being unlawful arrest and detention, the requested documents are irrelevant. She contended that the plaintiff is on a fishing expedition insofar as the further request for documents are concerned. Furthermore, it is a matter for evidence.

[3]        On the 06^th February 2018, Adv. Du Plessis applied for a postponement from the bar, alternatively that the matter be removed from the roll. He also submitted that the defendant be ordered to pay the wasted costs occasioned by the postponement or removal. The application insofar as the costs are concerned, was also opposed by Adv. Mongale, acting on behalf of the defendant. Adv. Mongale contended that the reason for the postponement alternatively removal of the matter should squarely be laid at the door of the plaintiff who was clearly not ready to proceed with the matter.

[4]        That the plaintiff was not ready to proceed with the matter on the 06^th February 2018 is beyond question. That explain why Adv. Du Plessis applied for a postponement alternatively the removal of the matter from the roll. A postponement is an indulgence. The postponement was sought on the first date of trail (06^th February 2018) without a substantive application been made for it. Upon consideration of the grounds for the postponement, I concluded that it does not support the application. This Court has a discretion whether to postpone a matter or to remove it from the roll in terms of the Rules of Court and the Practice Directives of this division.

[5]        In Erasmus: Superior Court Practice, B1-305 and further, the following is stated as the legal principles applicable to an application for the grant or refusal of a postponement:

“The court has a discretion as to whether an application for a postponement should be granted or refused[1]. Thus the court has a discretion to refuse a postponement even when wasted costs are tendered or even when the parties have agreed to postpone the matter;

That discretion must be exercised in a judicial manner. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons;[2]

An applicant for a postponement seeks an indulgence[3]. The applicant must show good and strong reasons[4], i.e. the applicant must furnish a full and satisfactory explanation of the circumstances that give rise to the application. 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 purpose of presenting his case;[5]

An application for a postponement must be made timeously, as soon as the circumstances which might justify such an application become known to the applicant. Where, however, fundamental fairness and justice justify a postponement, the court may in an appropriate case allow such an application for postponement even if the application was not so timeously made;

An application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled;[6]

Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of the court will be exercised; the court has to consider whether any prejudice caused by a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanism;[7]

The balance of convenience or inconvenience to both parties should be considered[8]: the court should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the applicant if it is not.[9]”

[6]        At the heart of a postponement lies the prejudice to the other party that must be considered by the Court. A postponement is not there for the mere asking. In the context of late or inadequate discovery, like in this case, the ultimate criteria is prejudice. Having considered the grounds for the postponement, I was of the view that a postponement will not be prudent under the circumstances of this case. This matter has some history to it. A removal of the matter from the roll rather than to postpone it, was more appropriate under the circumstances especially given the history of this matter.

[7]        The removal of this matter from the roll will afford the plaintiff ample opportunity to thoroughly prepare his case and enroll it when it is indeed ripe for hearing. Keeping the matter on the roll and to postpone it on numerous occasions does not satisfy the interest of justice and a speedy resolution of the disputes between the parties. The plaintiff as dominus litis must drive his case and do so promptly. The attention of the plaintiff was also drawn to Practice Directions No 20 (4) which states:

“All matters removed or struck from the roll may be re-enrolled on a date to be arranged with the Registrar only if there is an undertaking in writing from the party applying for a trial date that the matter is ripe for hearing. The Judge President or designated Judge may direct the parties to attend a pre-trial/trial management conference in accordance with Practice Direction No. 32A.”

[8]        It is for these reasons amongst others, that I ordered the removal of the matter from the roll and ordered that the plaintiff should pay the wasted costs. The error of the order referring to a postponement is regrettable. It is common knowledge between the parties that the matter was not postponed because a date for postponement of the matter was not arranged with either the Office of the Registrar or the Office of the Judge President.

R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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