Southey v Scheepers (2996/2016) [2021] ZAECGHC 46 (11 May 2021)

IN THE HIGH COURT OF

SOUTH AFRICA

EASTERN CAPE DIVISION,

GRAHAMSTOWN

CASE NO: 2996/2016

Date heard: 30 April 2021

Date delivered: 11 May 2021

In the matter between:

SHANE

SOUTHEY

Applicant/Plaintiff

and

THE EXECUTOR OF ESTATE

LATE PIERRE

SCHEEPERS

Respondent/Defendant

JUDGMENT

LOWE, J:

INTRODUCTION

[1] This action came before me having been set down for trial.

[2] Applicant (Plaintiff in the action) commenced however by lodging an application to postpone the matter, Respondent (Defendant in the main action) to pay the costs thereof including those of the day of set down (26 April 2021) and the day of argument of the postponement (30 April 2021), the delay being due, so it is argued, to Applicant’s need to file replying papers and heads of argument.

[3] I heard fairly lengthy argument on the application, which at the end of the day came down to costs only as Respondent/Defendant finally conceded the postponement, but not the costs.

[4] Applicant’s heads of argument ran to 34 pages and Respondent’s 16 pages. To say that the application, itself, a lengthy 236 pages, was hotly contested on the costs front would not overstate matters.

[5] I will be more concise as to the crucial issues which are capable of being distilled to their essence.

BACKGROUND

[6] The action arose from an aviation accident in a Piper P18 aeroplane which crashed on take-off from a runway on the farm Falstaff, on 2 August 2013.

[7] Plaintiff was the only passenger and Defendant (now deceased having been killed in a second aviation accident in January 2019) the pilot.

[8] Plaintiff was severely injured and instituted action claiming a large sum for damages.

[9] After disputing liability, Defendant finally conceded same and the remaining issues relate to the quantum of Plaintiff’s claim.

[10] When the application was launched this sought both a postponement of the trial and the costs occasioned thereby.

[11] Later, as will be seen, the postponement was conceded but not the cause therefor or the costs thereof.

[12] The application was served early on Thursday, 22 April 2021 and no opposition indicated by close of business on Friday, 23 April 2021. An answering affidavit being filed after close of business on the Friday.

[13] Subsequent to the settlement of the merits the action has been postponed on no fewer than four trial occasions: 31 January 2019; 4 November 2019; 6 May 2020 and 16 November 2020.

[14] On these occasions, the postponements were by agreement, but save for the Covid 19 related postponement in May 2020, Applicant alleged that it was not the cause of the earlier postponements and costs were reserved.

[15] Of course, contrary to Ms Sephton’s submissions, as counsel for Respondent, to postpone by agreement does not mean necessarily that each party concedes this to have been fault free by the other and in this case the costs reserved status indicates just this.

[16] Of relevance particularly is the postponement on 16 November 2020. The matter had been set down on 26 August 2020 for trial. In preparation for trial Respondent had called for Plaintiff to be examined by Dr Ormond-Brown a neuropsychologist giving four days notice (Rules (36(2)(a)(ii))) but such notice much less than the required 15 Court days – and was refused.

[17] In addition Respondent’s Attorney declared that he was unavailable on the trial date some 2½ months prior to trial.

[18] A further examination notice in respect of Dr Ormond-Brown was given on 19 October 2020 with only 5 Court days notice – again contrary to the Rules.

[19] There was a further issue raised being Respondent’s objection, at the instance of Dr Ormond-Brown, to having Plaintiff’s neuropsychologist present at the examination. That this objection was contrary to Rule 36(2) is more than apparent[1].

[20] In the result no examination was held and subsequently the trial was postponed as aforesaid by agreement, costs reserved.

[21] This is important background to what followed as it was by then clear that Respondent wanted to have Plaintiff examined by Dr Ormond-Brown and would have been expected to pursue same and arrange this in terms of and subject to the Rules of Court and to do so timeously well prior to the next trial date having regard to the Rules requirements in this regard.

[22] On 30 November 2020 Appellant’s attorneys wrote to Respondent’s attorneys as to the cause of the wasted costs of the postponement and Applicant’s intention to finalise the matter. This letter said notice would be given of a new trial date. The letter went unanswered.

[23] In fact the matter was then enrolled on 4 February 2021, for trial on 26 April 2021, on considerable notice to the parties.

[24] Nothing further had happened in respect of Dr Ormond-Brown by that time.

[25] On 10 February 2021 Applicant’s attorney wrote to Respondent’s attorney in clear terms accusing them of being “complacent” and asking if the Dr Ormond-Brown consultation was being pursued, and when and where, if so, as nothing further had happened in this regard.

[26] Extraordinarily this important letter went unanswered.

[27] A further letter was addressed to Respondent’s attorneys on 15 February 2021 drawing attention to the new trial date of 26 April 2021, referring to the letter of 10 February 2021, referring to the fact this went unanswered, and to the Dr Ormond-Brown outstanding examination.

[28] This again went unanswered.

[29] On 29 February 2021 a further letter was addressed to Respondent’s attorneys referring to the unanswered letters and the Dr Ormond-Brown examination complaining of prejudice.

[30] Once again this went unanswered – a notable omission on the said attorney’s part.

[31] On 8 March 2021 a further letter was written referring to the Dr Ormond-Brown issue and warning that if this led to a postponement a punitive costs order would be sought, seeking an urgent response.

[32] By now some three and a half months had passed since the trial had been postponed and three important letters which addressed the Dr Ormond-Brown report and examination issue directly (went unanswered).

[33] Finally on 18 March 2021 Respondent’s attorney answered, shortly referring to the earlier letters and apologised for not responding as he had been “caught up in other trial matters” and promising a response “as soon as possible”.

[34] In fact no further “response” was in fact received save for the issue by Respondent of a further Rule 36(1) and (2) notice dated 25 March 2021, relevant to Dr Ormond-Brown.

[35] It seems Respondent’s attorney had learned nothing from the previous events as this notice again failed to comply with the Rules calling for an examination on 8 April 2021, on short notice.

[36] This was followed on the same date by a letter from Respondent’s attorneys complaining of Mr Eaton’s intended presence at the consultation and complaining of potential prejudice to Respondent.

[37] In fact Applicant, notwithstanding the late notice and truncation of time limits, made arrangements to attend the consultation accompanied by Mr Eaton.

[38] The expert notice of Dr Ormond-Brown was already very substantially out of time in terms of the Rules and particularly due to Respondent having failed to pursue this timeously, or at all, over a period of some three and a half months, for reasons that are entirely inadequately explained or dealt with by Respondent.

[39] On 14 April 2021, eight Court days before the trial date, Dr Ormond-Brown’s comprehensive 32 page report was filed.

[40] The report itself joins issue with Applicant’s basis for his claim from a neuropsychologist standpoint and effectively suggests that Applicant is malingering or exaggerating.

[41] The report in essence changes the game and clearly requires to be addressed and responded to by Applicant and Applicant’s experts in preparation for trial, raising new and important issues which Applicant must consider or address and attempt to meet.

[42] In addition the report has been addressed in a Rule 35(3) Notice by Applicant requiring delivery of various records pertaining to the report served on 16 April 2021, as yet unanswered at the time of argument.

[43] On 14 April 2021 Applicant’s attorneys drew attention to these difficulties arising requiring Respondent’s agreement to postpone the trial, at Respondent’s cost, failing which an application would be brought.

[44] On 16 April 2021 Respondent replied saying he was ready for trial and there was no reason why Plaintiff should not be ready.

[45] The letter is breath-taking in its contents having regard to Respondent’s long and largely unexplained silence detailed above. To say this was due to Respondent’s attorney being held up in trials is no proper or acceptable explanation. To deny Applicant’s prejudice is to demonstrate a completely erroneous understanding of the relevant issues and circumstances.

[46] The letter then speculates, without apparent foundation, and asked whether Plaintiff’s experts were available as also Plaintiff’s counsel – seemingly in an attempt to suggest that Applicant was being, at best, opportunistic seeking a postponement for his own reasons but improperly laying this at the door of Respondent’s Dr Ormond-Brown’s report, and moreover trying to have the costs to which he was not entitled.

[47] The letter concludes as follows:

“9. At this stage it is clear that the plaintiff is not ready to proceed and the matter is doomed to be part heard if it does. My client is concerned about costs being wasted. Given the difficulty with the matter running over a public holiday, the amount of experts involved, the plaintiff’s unpreparedness and his intention to introduce additional reports and/or addendum reports, we will reluctantly agree to the postponement of the matter on condition that the plaintiff tenders our wasted costs.

10. In the event that the plaintiff does not agree to tender our wasted costs herein, we suggest that, in the interest of avoiding the incurring of unnecessary costs herein, that the issue of costs be reserved for later argument.

11. Kindly provide us with your client’s answer by close of business on Monday 19 April 2021.”

[48] This was conditional on costs being tendered by Applicant and was soundly rejected, Applicant seeking agreement to postpone with a costs tender from Respondent.

[49] In due course Respondent on 20 April 2021 reluctantly stated as follows:

“7. As mentioned previously, the defendant is ready to proceed to trial. That being so, it has not transpired that the plaintiff’s only intention is to have the matter postpone. The defendant must therefore guard against the incurring of unnecessary and wasted costs. For inter alia this reason, the defendant has reluctantly offered to agree to the postponement of the matter now on condition that the issue of costs be reserved. For the reasons mentioned above, we are firmly of the view that this is a reasonable proposal under the circumstances.”

[50] This offer was not accepted as Plaintiff wanted his wasted costs occasioned by the postponement.

[51] On 21 April 2021 Applicant stated that he would launch a substantial application to postpone with costs.

[52] The application proceeded and was opposed as appears above.

[53] The answering affidavit ended with the following:

“63.1 In the premises, I respectfully submit that the applicant’s attorney of record should be ordered to pay costs de bonis propriis for disclosing that an offer of settlement has been made in terms of Rule 34 herein which has severely prejudiced the respondent’s defence of the matter and for failing to avail himself to a further pre-trial conference which could have promoted the effective disposal of the litigation; and

63.2 In the event that this Honourable Court is inclined to grant the applicant the indulgence of a postponement, then and in that event it is in the interests of justice that the applicant should pay the costs of the postponement on a punitive scale, alternatively on a party-and-party scale, further alternatively that the issue of costs be reserved.”

[54] Respondent said further that the Applicant’s attitude was “perplexing” as costs would be better determined by a trial Court in due course.

ARGUMENT

[55] Applicant in argument referred to the history of, and background to, the application emphasising the delay caused by Respondent in respect of the Dr Ormond-Brown report as also the clear need for time to meet same which was not available due to the late filing thereof.

[56] Mr Cole for Applicant turned to the issue put up by Respondent in correspondence, in argument and under oath, that in essence Applicant sought to mislead the Court, this effectively as an inference to be drawn from the fact that it was suggested that Applicant’s counsel was not available and that an expert, Dr Van Daalen who was on holiday in Namibia was the real, but undisclosed, reason for Applicant seeking a postponement, placing this need for a postponement opportunistically at the door of the Respondent.

[57] Mr Cole dealt with this at the outset in no uncertain terms. He stated that he had always been available for the trial. As for Dr Van Daalen he said that his evidence was not crucial for Plaintiff’s case and that, available or not, he would not have been called as a witness a decision he, as Counsel, had timeously taken and upon which Plaintiff relied.

[58] As to the suggestion that Dr Van Daalen was required to prove Applicant’s retirement age, he said Applicant would give the necessary evidence in this regard, and that again Dr Van Daalen was not required herefor and would not have been called.

[59] As to the fact that the replying papers did not express the above, simply denying Dr Van Daalen’s unavailability, he said that this was by the way and that he had convincingly set aside a wrong understanding of the situation by Respondent and that it was for Plaintiff to run his own trial on his legal team’s advice.

[60] As to the suggestion that Plaintiff would need to file a further report by accountant Klinkradt, Mr Cole argued that again this was Plaintiff’s case to run as advised and that in essence he was happy with the reports being as they were, the Klinkradt evidence being a matter for argument at the end of the trial.

[61] In short Respondent cast about in an attempt to avoid its own default and to suggest that Applicant was himself opportunistic in seeking a postponement with costs on an ulterior basis to cover his own difficulties in preparation for trial and in the absence of Dr Van Daalen.

[62] Ms Sephton argued that the postponement itself had, by then, been agreed/conceded, it being the costs thereof which remained in issue. In her heads of argument she submitted:

[62.1] That Dr Ormond-Brown report was not the “sole cause of the delay” and that “had Applicant’s experts been available the trial would have proceeded…”

[62.2] That somehow Applicant, having agreed to the Dr Ormond-Brown consultation, had expressly consented to this and somehow denied himself the right to raise the late filing of an expert notice, even though this clearly required considerable attention and response.

[62.3] That Dr Van Daalen was out of the country – though in argument quite correctly accepting Mr Cole having said that he would not ever have been called – Ms Sephton pointed out that this had not been set out in reply, but said for the first time in argument.

[62.4] That there would have been the need for further reports from Klinkradt, which Plaintiff required still to attend to.

[62.5] That Applicant had failed to agree to a “a further pre-trial conference”. I should say that if Respondent considered this necessary, and Applicant unreasonably refused, this would have been simply dealt with in terms of Rule 37 and convened before a Judge. It was not however.

[62.6] That as to costs the trial Court would be best equipped to deal herewith but was hard put to give any real reasons as to why this was the case.

THE

RESULT

[63] In Persadh and Another v General Motors South Africa (Pty) Ltd [2] Plasket J (as he then was) summarised the principles applicable to an application for a postponement as follows:

“[13] The following principles apply when a party seeks a postponement. First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent's procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant's inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the parties may or may not suffer must be considered; and, fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.”

[64] It has also been held and although in the context of a trial that it is equally applicable in application, and that a postponement will not be granted in circumstances where the postponement is occasioned by a happening or circumstance which applicant, at the time of set-down, could have or should have foreseen[3].

[65] In this matter and as appears from the above:

[65.1] The entire situation in respect of the Dr Ormond-Brown report, and its late filing shortly before the trial, is due solely to Respondent’s inexplicable, and largely unexplained, delay in arranging same timeously. The trial could not possibly have proceeded on this basis alone.

[65.2] This must be seen against the issues raised in respect of the consultation with Dr Ormond-Brown prior to the November 2020 postponement, this is, contrary to Ms Sephton argument, highly relevant.

[65.3] Respondent’s attorney simply ignored and failed to reply to correspondence in this regard from late November 2020 to 18 March 2021, claiming that he had been delayed in other trials – an inadequate reason indeed, causing a long delay over three and a half months, and effectively this rendering the Dr Ormond-Brown’s expert notice as late and in the circumstances the cause of Plaintiff’s unreadiness. This was not adequately addressed by Respondent in the answering affidavit.

[65.4] The continued delivery of a Rule 36(1) and (2) notice affording a shorter period than the Rule provides is difficult to rationalise as is the continual raising of the purported objection to the presence of Mr Eaton – this latter issue certainly not pursued as it could have been in an application, if a valid contention, which at least on the face of it was not.

[65.5] Respondent attempted to establish that Plaintiff/Applicant had misled the Court as to the real reason for the postponement and moreover claiming the costs thereof. This turned out to have no substantial basis and was to say the least a serious accusation, in the face of Respondent’s attorneys own delay in pursuing the Dr Ormond-Brown report, which went largely unexplained.

[65.6] Applicant’s prejudice on the filing of Dr Ormond-Brown’s report, a detailed 32 page document, which to say the least, if it finds favour in due course, would seriously damage Applicant’s/Plaintiff’s case as to quantum and the basis thereof, was more than apparent and constituted real and substantial prejudice justifying the need to take time to properly consider and assess – followed by whatever further preparation and/or supplementary reports may have been necessary or advised.

[65.7] Plaintiff was more than entitled to allege prejudice in its preparation to meet same and clearly required time and opportunity to do so which could clearly not be achieved in the short 8 days left to trial.

[65.8] Whatever the final result will be in this regard, upon which I cannot and do not comment, the Plaintiff/Applicant was entitled in all fairness to consider and prepare therefor as also Plaintiff’s relevant experts, this being something entirely new and its seems unexpected.

[65.9] This situation was created through no fault of Plaintiff. The Mr Eaton issue is a red herring in this regard of considerable proportion.

[65.10] There is clearly no merit in Respondent’s argument such as to suggest that a postponement should not be granted or that this is to be placed at Applicant’s door as to cause and effect[4].

COSTS

[66] The postponement must clearly carry with it an order as to costs, as this was due solely as a result of Respondent’s default as set out above.

[67] There is no merit in the suggestion that a trial court will be in a better position than I am to determine these cost issues on the analysis above.

[68] As to the scale thereof Applicant seeks this on a punitive basis.

[69] Attorney and client costs are in general awarded in circumstances where the litigation is vexatious, fraudulent or dishonest, or constitutes an abuse of process[5]. To this one may add that such order is justified where the conduct concerned is “extraordinary” and worthy of the Court’s rebuke[6]

[70] In this matter the extraordinary delay by Respondent in pursing the consultation with Dr Ormond-Brown; the failure to response to correspondence between late November 2020 and 18 March 2021; the late filing of the Rule 36(1) and (2) notice with inadequate time periods (although acceded to); the consequent filing at a late stage and out of time of a crucial expert notice accordingly; the attempt to cast fault on Applicant/Plaintiff in this regard and impute, at best, conduct by Applicant/Plaintiff not established (which would have brought Plaintiff and his legal team into disrepute had this been established) all amounts to conduct warranting an attorney and client costs order in Plaintiff’s/Applicant’s favour showing the Court’s displeasure as to such conduct.

[71] The costs order should adhere to the wasted costs of the trial day on 26 April 2021, and the costs of this application. That the matter was postponed on 26 April 2021 to Friday, 30 April 2021 for argument and to enable a replying affidavit to be filed, to the answer which was filed after close of business on Friday 23 April 2021, is such as to warrant costs, also on the same scale, incurred on the day of argument.

[72] I should say in passing that the suggestion by Respondent that Applicant mentioning the fact that an offer to settle was made by Respondent, without any detail thereof, is in no way such as to disturb the above. The disclosing of the fact that an offer had been made is without any content of the offer being disclosed[7].

ORDER

[73] The following order issues in the result:

1. The trial set down on 26 April 2021 is postponed sine die.

2. Respondent is to pay the wasted costs occasioned by such postponement on 26 April 2021 including the costs of the application to postpone itself and those of the day of argument on 30 April 2021.

3. The said costs are to be on the scale of attorney and client.

______

M.J. LOWE

JUDGE

OF THE HIGH COURT

Obo Applicant/Plaintiff: Adv S.H. Cole

Instructed by:

Whitesides Attorneys, Grahamstown

Obo Respondent:

Adv S.A. Sephton

Instructed by: Neville Borman & Botha Attorneys, Grahamstown

[1] Goldberg v Union and South West Africa Insurance Co Ltd 1980 (1) SA 160 (E).

[2] 2006 (1) SA 455 (SE) at para [13] (I have omitted the references to authorities).

[3] Greyvenstein v Neethling 1952 (1) SA 462 (C) at 466A – D.

[4] The issues are succinctly summarised in paragraph [70] hereof.

[5] Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) [8]

[6] Public Protector supra; Plastic Converters Association of South Africa (PCASA) v National Union of Mineworkers Union of South Africa and Others [2016] 37 ILJ 2815 (LAC) (6 July 2016) [46].

[7] The purpose of Rule 35(10), (13) and (14) is that a Court should approach a question of damages unaffected by the knowledge of an offer made by a defendant, such as to avoid the remote possibility a Court being influenced to award something more than the offer relevant to costs as set out in Rule 34(12). Jacobs v Santam Insurance Co Ltd 1974 (3) SA 455 (C) 463C-E. Whilst this is peremptory the Court has a discretion to condone such breach. Jacobs supra 462G – 646H. No detail or amount of such offer was disclosed and it seems to me that this is a matter which Defendant must raise at trial if it wishes to pursue same. In the context of this application it seems to me not to impact at all on my decision as to the costs of postponement.

[7] The purpose of Rule 35(10), (13) and (14) is that a Court should approach a question of damages unaffected by the knowledge of an offer made by a defendant, such as to avoid the remote possibility a Court being influenced to award something more than the offer relevant to costs as set out in Rule 34(12). Jacobs v Santam Insurance Co Ltd 1974 (3) SA 455 (C) 463C-E.

Whilst this is peremptory the Court has a discretion to condone such breach. Jacobs supra 462G – 646H.

No detail or amount of such offer was disclosed and it seems to me that this is a matter which Defendant must raise at trial if it wishes to pursue same. In the context of this application it seems to me not to impact at all on my decision as to the costs of postponement.