City of Mbombela v Seriti Institute (3418/18) [2020] ZAMPMBHC 30 (16 July 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(MPUMALANGA DIVISION, MBOMBELA)

(1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: YES

Case No: 3418/18

In the matter between:

THE CITY OF MBOMBELA

Applicant

and

SERITI INSTITUTE

Respondent

JUDGMENT

MASHILE J:

[1] This Court has been requested by the legal representatives of the Applicant to furnish reasons for its order of the above date. Ostensibly, the reasons are required to enable them to argue their leave to appeal application set down for the 17th of July 2020.

[2] On 19 February 2020, this Court by agreement between the parties granted a case management order wherein the parties committed themselves to perform certain acts on the dates stipulated in the order. The date and time of hearing was determined as 26 May 2020 at 10:00.

[3] The order went on to state, among other things, that:

3.1 The answering affidavit had already been delivered on 7 May 2019;

3.2 The replying affidavit would be filed on or before 6 March 2020;

3.3 The Applicant’s legal representatives would deliver their heads of argument on or before 10 April 2020;

3.4 The Respondent’s legal representatives would deliver their heads on or before 24 April 2020;

3.5 The court file would be properly indexed, paginated and filed with the Registrar of this Court by the 4th of May 2020 at 12:00.

[4] Significantly, the case management order at Paragraph 4 records that it is the parties or legal representatives in determining the time frames confirm that such time-lines are reasonable and achievable. It comes as a surprise therefore that the Applicant has by and large ignored the provisions of the order.

[5] The legal representatives of the Applicant did not only fail to deliver their replying affidavit timeously on or before 6 March 2020 but they also did not file their heads at all on 10 April 2020. They only delivered their replying affidavit on 19 March 2020, 13 days later. As at the date of the hearing of the application, heads had still not been delivered.

[6] When the Applicant appeared before this Court on 26 May 2020, it moved an informal application to postpone the matter and sought to blame its lack of preparedness to argue on the declaration of the lockdown on 26 March 2020 by the President of this Country.

[7] Assuming that the Applicant is correct, it could not explain why it did not prepare a formal application to postpone the matter. In any event, it could not point to any single COVID-19 Regulation that prohibited it from complying with the order of 19 February 2020 to which it is a party.

[8] Quite apart from the delivery of the heads of argument, the Applicant had already defaulted with the delivery of its replying affidavit on the date stipulated on the case management order. Untenable, as its argument of blaming it on COVID-19 is, the Applicant had no explanation why it had contravened the provisions of the order insofar as the delivery of the replying affidavit was concerned.

[9] Conversely, the Respondent was expected to deliver its heads of argument on 24 April 2020 but it filed them on 20 April 2020, 4 days earlier than the anticipated date. It is notable that it did so without the advantage of the heads of argument of the Applicant, which could not have been easy. Against that backdrop, the Respondent, correctly in the opinion of this Court, asserted that it was ready to proceed because it had taken all the trouble to prepare to argue the matter as it was not aware that it would be faced with a shaky informal application for postponement

[10] Noting that the Applicant could not proceed because it was not ready, the Respondent stated that it would only consent to a postponement of the matter in the event that the Applicant tendered wasted costs as at the scale between attorney and client. The Respondent, on the other hand, still attributing its failure of compliance with the case management order on COVID-19, would not agree to tender costs of any sort.

[11] Considering that it would be in the interest of justice that the matter be fully ventilated on some future date, the court leaned in favour of postponement of the matter especially because it was possible, albeit not entirely. to appease the Respondent with a cost order. In doing so the court had to weigh the interest of both parties.

[12] For this Court the question was not whether the Applicant should or should not pay costs but the scale of such costs. Thus, it was a choice between attorney client and party and party costs. It is clear that the legal representatives of the Applicant had failed it by not complying with the case management order. In fact, this could easily have been an appropriate case for ordering costs de bonis propiis for why should the Applicant be out of pocket when it has appointed experts to conduct its case professionally.

[13] Instead of mulcting the Applicant with a massive attorney client costs, the court showed leniency on both the Applicant and its representatives. Whilst the court did so, it did not wish the Respondent to be out of pocket on account of the shortcomings of the Applicant and its legal representatives. For that reason it ordered that costs be paid by the Applicant at the scale as between party and party. These constitute my reasons insofar as they seem not to have been deliberately heard or recorded on the 26th of May 2020.

______________________________

B MASHILE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA

DATE OF HEARING:

26 MAY 2020

DATE OF REASONS:

16 JULY 2020

Counsel for the Applicant:

Adv L Zwane

Instructed by:

QQ Mkhatswa Attorneys

Counsel for the Respondent:

Adv AW Pullinger

Instructed

Falcon & Hume Attorneys