Kara NO and Others v Department of Land Affairs (LCC44/98) [2003] ZALCC 10; 2005 (6) SA 563 (LCC) (15 April 2003)

IN

THE LAND CLAIMS COURT OF SOUTH AFRICA

Held at Randburg on 21 February 2003 CASE NUMBER: LCC 44/98

before Meer, Gildenhuys JJ

Deccided on: 15 April 2003

In the case between:

EBRAHIM ESSOP KARA NO First Applicant

MOOSA ESSOP KARA NO Second Applicant

MOHAMMED HOOSEN ISMAIL KARA NO Third Applicant

and

THE

DEPARTMENT OF LAND AFFAIRS Respondent

JUDGMENT

MEER J:

This judgment deals with the postponement of cases set down for hearing in the Land Claims Court. Land Claims Court Rule 55(5) states:

“No case may be postponed after a date of hearing has been allocated, except with leave of the Court.”

With the consent of the respondent, the claimants (applicants in the application for postponement, but for convenience referred to as claimants in this judgment) applied for and were granted a postponement sine die. The claimants were ordered to pay the wasted costs occasioned by the postponement. The postponement was however not sought timeously. Leave was granted under circumstances which invoked the displeasure of the Court and precipitated this judgment, given the inconvenience occasioned by last minute postponements in the Land Claims Court. It is hoped that the effect of this judgment will be to prevent future incidents of this nature.

The claimants claim restitution of rights in land in terms of the Restitution of Land Rights Act1 in respect of properties situated in Cato Manor, Durban, of which they allege they were dispossessed by the operation of the Group Areas Act.2 After a hearing of one week in Durban in October 2002, the trial was postponed at the request of the parties for a five month period and set down for a further two weeks hearing, also in Durban, on 3-14 March 2003. At that stage various witnesses had already testified for the applicants, including a valuer. Testimony about the values of properties alleged to have been dispossessed is crucial in any land claim, as one of the threshold requirements for a successful claim for restitution of rights in land pertains to the sufficiency of the amount of compensation received at the time of the alleged dispossession. In this respect section 2(2)of the Restitution of Land Rights Act states:

“No person shall be entitled to restitution of a right in land if -

(a) just and equitable compensation as contemplated in section 25(3) of the Constitution; or

(b) any other consideration which is just and equitable.

calculated at the time of any dispossession of such right, was received in respect of such dispossession.”

The seat of the Land Claims Court is not in Durban, but in Randburg. A hearing away from the seat of the Court, as in this case, involves the making of cumbersome and time consuming logistical arrangements and preparations on the part of the Registrar, the Judges and the assessor.3 A venue for the hearing has to be found and booked well in advance, travel arrangements made and importantly the diaries of the Judges concerned and the assessor have to be cleared for the duration of the hearing away from the seat of the Court. Cases are accordingly never set down for hearing without being preceded by one or more pretrial conferences, often telephonic, so as to ensure that the time of the Court is not wasted and that travel expenditure is not incurred unnecessarily. Given the manner in which this Court operates, it is understandably not feasible to have a continuous roll. Accordingly, in circumstances such as these, if a party wishes to apply for a postponement, this must be done well in advance of the day of hearing so that the allocated dates may be utilised for other cases. Practitioners in the Court are presumed to be aware of this.

All of this notwithstanding, the claimants took it upon themselves to seek leave for a postponement4 of the March hearing5 only on 21 February 2003 (all of four months after the postponement in October last year), due both to their non-preparedness for the resumption of the trial and difficulties with funding their legal costs. Their non-preparedness stemmed from the fact that they deemed it necessary to present the testimony of a second valuer, and they had been unable in the four months since the postponement to find and prepare such an expert valuer for trial. Nor had they been able to sort out the funding they required. They did not indicate that this was a crisis which befell them only on the eve of the postponement application, and no reasons were given why it was impossible for them to seek a postponement at an earlier date.

The legal principles applicable to an application for the postponement of a trial in a court operating a continuous roll were succinctly set out by Mahomed AJA, as he then was, in Myburgh Transport v Botha t/a SA Truck Bodies.6 In my view, these principles are all the more applicable to a court not operating on a continuous roll, and operating away from its seat. The principles of relevance to an application for the postponement of a hearing in a trial court are stated to be as follows:

“ 1. The trial judge has a discretion as to whether an application for a postponement should be granted or refused (R v Zackey 1945 AD 505).

2. That discretion must be exercised judicially. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons. (R v Zackey (supra); Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398-9; Joshua v Joshua 1961 (1) SA 455 (GW) at 457D).

...

5. 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. Madnitsky v Rosenberg (supra at 398-9).

6. 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. Greyvenstein v Neethling 1952 (1) SA 463 (C). Where, however, fundamental fairness and justice justifies a postponement, the court may in an appropriate case allow such an application for postponement, even if the application was not timeously made. Greyvenstein v Neethling (supra at 467 F)

7. An application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purposes of obtaining an advantage to which the applicant is not legitimately entitled.

8. 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 a postponement to the adversary of the applicant for a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanisms. (Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 453.)

9. 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.

10. Where the applicant for a postponement has not made his application timeously, or is otherwise to blame with respect to the procedure which he has followed, but justice nevertheless justifies a postponement in the particular circumstances of a case, the Court in its discretion might allow the postponement but direct the applicant in a suitable case to pay the wasted costs of the respondent occasioned to such a respondent on the scale of attorney and client. Such an applicant might even be directed to pay the costs of his adversary before he is allowed to proceed with his action or defence in the action as the case may be. Van Dyk v Conradie and Another 1963 (2) SA 413 (C) at 418; Tarry & Co Ltd v Matatiele Municipality 1965 (3) SA 131 (E) at 137.”7

Lack of funding is not a sufficient reason for a last minute postponement application. A practitioner who has insufficient funding must withdraw or apply for a postponement in good time. If he does not, he must continue representing his clients at his own risk.8

Applying the legal principles to the facts, and bearing in mind both the significance of and complexity of the testimony of a valuer in a land claim and in this case in particular, as well as the cost of prosecuting a land claim, I came to the view that fundamental fairness and justice justified the granting of the postponement, even though the application therefor was not timeously made. I was satisfied that any prejudice to the respondents could be compensated by an appropriate order for wasted costs. This does not, however, detract from the Court’s displeasure at the claimants’ request for a postponement so close to the trial, given the circumstances under which this Court operates. Practitioners in this Court would do well to take cognisance hereof and to apply well in advance for postponements. Because of the particular circumstances in which this Court operates, this Court will, in future, be less inclined to grant postponements which are not applied for timeously.

The following order was made by consent between the parties on 21 February 2003:

“(a) The hearing of the matter, which was set down for 3-14 March 2003, is postponed sine die.

(b) The applicants must pay the wasted costs occasioned by the postponement, which shall include:

(i) the costs of two counsel;

(ii) counsel’s fees for three days of hearing; and

(iii) the wasted qualifying fees of the defendant’s expert witnesses.

(c) The wasted costs shall not be taxed before the completion of the matter.

(d) Should any party wish to tender new expert evidence:

(i) a summary of the evidence must, if it is tendered by the applicant, be delivered one month before the resumed hearing; and

(ii) a summary of the evidence must, if it is tendered by the defendants, be delivered two weeks before the resumed hearing.

(e) Reasons for this order will be given at a later stage.”

This judgment contains the reasons for the order.

_____

JUDGE

Y S MEER

I agree.

JUDGE

A GILDENHUYS

For the claimants:

Adv M Pillemer SC instructed by Chennells Albertyn and Tanner, Durban.

For the first respondent

Adv H K Naidu SC and Adv G H Vanker instructed by the State Attorney, Durban.

1 Act 22 of 1994, as amended.

2 Act 36 of 1966.

3 Section 28(4) of the Restitution of Land Rights Act requires an assessor to assist the Court in a hearing of a claim for restitution of rights in land.

4 In terms of Rule 51(5).

5 Set down from 3 to 14 March 2003.

6 1991 (3) SA 310 (NmS).

7 At 314-315.

8 S v Ndima 1977 (3) SA 1095 (N) at 1097; Ngcobo v Union & South West Africa Insurance Company Ltd 1964 (1) SA 42 (D) at 44.