Ngobese v MEC for Police, Roads and Transport for the Free State and Another (4137/2016) [2021] ZAFSHC 35 (18 February 2021)
The court found that the defendants' conduct, specifically the late filing of a counter-application and supplementary papers, was the direct cause of the matter not being ripe for trial and necessitated the postponement. The judge exercised discretion and applied the general rule that the party at fault should bear...
Source-derived case information.
- Citation
- [2021] ZAFSHC 35
- Parties
- Plaintiff: Philip Sifiso Ngobese; Defendant: MEC for Police, Roads and Transport for the Free State; Defendant: Department of Police, Roads and Transport for the Free State
- Court
- Free State High Court, Bloemfontein
- Jurisdiction
- South Africa
- Case Number
- 4137/2016
- Procedural Posture
- Civil Procedure / Postponement; Determination of Wasted Costs
- Outcome
- The defendants are ordered to pay the wasted costs occasioned by the postponement, the one paying the other to be absolved.
- Judges
- Mathebula
- Legal Topics
- Wasted Costs, Postponement, Costs Award, Trial Preparation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Sifiso Ngobese
Plaintiff
MEC for Police, Roads and Transport for the Free State
Defendant
Department of Police, Roads and Transport for the Free State
Defendant
Procedural Posture
Civil Procedure / Postponement; Determination of Wasted Costs
Legal Issues
- 1 Who should bear the wasted costs occasioned by the postponement on 16 February 2021.
- 2 Whether the defendants' late filing of a counter-application justifies an award of costs against them.
Ratio Decidendi
The court found that the defendants' conduct, specifically the late filing of a counter-application and supplementary papers, was the direct cause of the matter not being ripe for trial and necessitated the postponement. The judge exercised discretion and applied the general rule that the party at fault should bear the wasted costs. The reasons for the postponement were clear, and it was just and equitable for the defendants to pay the costs occasioned by the postponement.
Court Disposition
The defendants are ordered to pay the wasted costs occasioned by the postponement, the one paying the other to be absolved.
Orders
- The first and/or second defendant must pay the wasted costs occasioned by the postponement, the one paying the other to be absolved.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Case No.: 4137/2016
In the matter between:
PHILIP SIFISO NGOBESE
Plaintiff
and
MEC FOR POLICE, ROADS AND TRANSPORT
FOR THE FREE STATE
1st Defendant
DEPARTMENT OF POLICE, ROADS AND
TRANSPORT FOR THE FREE STATE
2ndDefendant
HEARD ON: 16 FEBRUARY 2021
JUDGMENT BY: MATHEBULA, J
DELIVERED ON: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 18 February 2021. The date and time for hand-down is deemed to be 18 February 2021 at 12:30
[1] The only issue to be determined is the question of who must bear the wasted costs occasioned by the postponement on 16 February 2021. The plaintiff contends that the defendant, being the one seeking an indulgence, must pay. According to the defendant the costs must be reserved for later determination.
[2] This matter has a long history of several postponements. Nevertheless, it is the postponement stated above that is the concern of this judgement. This matter was allocated to me for trial and on preparation it became apparent that it was not ripe for hearing. Voluminous papers had been served and filed by the defendants as late as 11 February 2021 dealing with an application to strike out a defence. In the same papers the defendant had launched a counter-application. At this stage the plaintiff has not filed opposing papers. These were accompanied by defendant’s supplementary answer to the plaintiff’s notice in terms of rule 35(3) and response to the plaintiff’s request for further particulars.
[3] I raised this issue with the attorney for the defendants when he came to see me on another matter. I request that he contact his counterpart to sensitive him of my concern. Both parties are ad idem that the matter is not ripe for trial. However, none of them, accept responsibility for the postponement resulting in wasted costs.
[4] At the outset let me state categorically clear that the filing of the counter application at this late stage put the spanner in the works for the parties to proceed to trial. The application hinted over a year ago finally came to fruition albeit late. The crux of it is that it seeks to remove the admission on which the matter turns. It stands to reason that it is the defendants who are seeking an indulgence from court to postpone the matter to a later date.
[5] The general rule was set out in Sublime Technologies (Pty) Ltd v Jonker and another[1] as follows:-
“With regard to costs occasioned by a postponement, the general rule is that the party which is responsible for a case not proceeding on the day set down for hearing must ordinarily pay the wasted costs. It is important to bear in mind, however, that a litigant is not necessarily ‘responsible’ for the case not proceeding merely because he or she applies for a postponement. In certain circumstances, a litigant may be forced to apply for a postponement as a result of the conduct of an opponent, eg through inadequate discovery; a late amendment or any number of other reasons. The ‘normal rule’ only applies to ‘the party who was at fault or in default”
I align myself with the sentiment of the court in this matter.
[6] The conduct of the defendants brought us to this position. It will not be fair and just that the costs be determined at a later stage when the reasons for postponement are clear and who bears the responsibility thereof. In the exercise of my discretion, I conclude that the defendants must pay the costs.
[7] I make the following order:-
7.1 The first and/or second defendant must pay the wasted costs
occasioned by the postponement, the one paying the other to be absolved.
M. A. MATHEBULA, J
On behalf of the Plaintiff: Adv. J.C. Prinsloo assisted by
Adv. V.L. van Niekerk
Instructed by:
Lovius Block
BLOEMFONTEIN
On behalf of the Defendant : Adv. C.D. Pienaar
Instructed by:
State Attorneys
/roosthuizen
[1] 2010 (3) SA 522 (SCA) at para 3