Paul v Ronald Bobroff and Partners Incorporated (14103/2020) [2025] ZAGPJHC 256 (2 June 2025)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
Number: 14103/2020
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
In
the matter between:
ALTON
PAUL
Plaintiff
and
RONALD
BOBROFF & PARTNERS INCORPORATED
Defendant
(UNDER
CURATORSHIP)
JUDGMENT
CRUTCHFIELD J
[1]
This trial matter comes before me on the
morning of 2 June 2025. Upon the matter being called, the
defendant informed me that
the defendant intended to seek a
postponement of the trial. The plaintiff indicated that it was
willing to agree to the postponement
of the trial subject to a tender
for the payment of the wasted costs on the part of the defendant. The
latter, the defendant, was
not prepared to tender the wasted costs of
the postponement. The parties duly represented by counsel proceeded
to argue the postponement
before me.
[2]
The rules of a postponement take cognisance
of the need for parties to have at their disposal all of the
necessary information required
by the relevant parties to place the
matter fully and properly before a court. The purpose of the rule is
to prevent matters being
dealt with piecemeal and that all the
relevant issues should be dealt with in a single hearing. The matter
before me bears a 2020
case number but it is evident from argument
placed before me that the matter has a long history going back at
least as far as 2016.
[3]
In respect of the application for a
postponement, the defendant detailed the chronology relevant to the
request for a postponement
commencing with a request for discovery in
terms of Rules 35(3) and (6) on 16 September 2024. That was
followed by an application
to compel a reply to the Rule 35(3)
request dated 14 November 2024 and a request for further
particulars by the defendant
dated 15 November 2024.
[4]
The order that the plaintiff furnish its
reply to the request for discovery in terms of Rule 35(3) was granted
on 3 December
2024. The order provided that the plaintiff should
comply with the order to discover within 10 court days from the
date of
that order. The plaintiff did not comply and did not furnish
its discovery in terms of the order within 10 court days,
delivering
seven lever arch files to a value of R16 000.00 paid
by the defendant, on 8 May 2025.
[5]
The trial was set down for hearing on
2 June 2025. The defendant argued that the prejudice to the
defendant and the reason
ultimately for the request for the
postponement of the trial was not the lateness of the delivery of the
seven lever arch files
of documents, but the fact that having perused
the seven lever arch files, the defendant’s attorneys together
with the defendant’s
counsel determined that they required the
oral evidence of various attorneys and others, being the authors of
various correspondence
contained in the seven lever arch files
together with the authors of various file notes contained in the
seven arch files. The
authors of the correspondence and the various
file notes, being attorneys, were not immediately willing to come to
court in order
to give evidence, a fact that is not unsurprising.
[6]
As a result, the defendant’s legal
representatives determined that subpoenas would be necessary in order
for the relevant
parties to give evidence in court. The defendant’s
attorney engaged with the relevant potential witnesses until Thursday
of last week, being the 29th
of May 2025. Given the necessity for subpoenas to be served, the time
available for the defendant to serve those subpoenas and
give the
potential witnesses sufficient time was not sufficient and as a
result it is the absence of sufficient time to serve the
relevant
subpoenas upon the potential witnesses and to give the potential
witnesses sufficient time in terms of the subpoenas that
is the
prejudice suffered by the defendant and the reason for the
postponement of the trial being sought by the defendant.
[7]
The plaintiff’s counsel duly opposed
the application for a postponement and argued that the seven lever
arch files were delivered
in terms of the time period allowed by the
Court order, being the Court order one dated the 5th
of May 2025. However, that Court order relates to the defendant’s
request for further particulars for trial, and not for
discovery by
the plaintiff. The request by the defendant for further particulars
for trial was made initially by the defendant
on the 15th
of November 2024. The particulars not being forthcoming, an
application was brought before the Court and the order granted by the
Court in terms of Rules 21 of the Rules of this Court on 5 May
2025.
[8]
Furthermore, counsel for the plaintiff
argued that if the defendant’s attorney had approached the
plaintiff’s attorneys
after delivery of the seven lever arch
files, the plaintiff would have been in a position to avoid the costs
of briefing counsel
to appear at the trial on 2 June 2025.
However, it was only on Thursday, 29 May 2025, that the
defendant’s attorneys
finally realised that it was not going to
be possible for the authors of the various file notes and
correspondence contained in
the seven lever arch files to appear in
Court on 2 June 2025 and that subpoenas were going to be
necessary. Counsel on behalf
of the plaintiff was briefed well before
29 May 2025.
[9]
It is evident that a postponement stands to
be granted in this matter and that the defendant should not have to
be prejudiced by
running the trial in the matter albeit the special
pleas, without the necessary evidence relevant to its case and
necessary for
the defendant to achieve potentially success in respect
of its case.
[10]
As to the costs of the postponement, being
the wasted costs caused by the postponement, it is evident to me from
the chronology
placed before me that the plaintiff has failed to
apply itself adequately to the requirements of the Rules and to the
various Court
orders in respect of this matter and the chronology
bears out that the delay by the plaintiff in various respects, too
many to
articulate in this judgment, is ultimately the cause for the
defendant having to apply now for a postponement of the matter.
[11]
In my view, the defendant is entitled to
its costs to be paid by the plaintiff and I intend to grant such an
order.
[12]
In the circumstances, the following order
will issue:
1.
The trial under case number 14103/2020 is
postponed.
2.
The wasted costs of the postponement,
including the costs of counsel, are to be paid by the plaintiff on
scale B.
I hand down the judgment.
CRUTCHFIELD J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For
the Plaintiff:
Adv Chowan instructed by Larry Marks Attorneys.
For
the Defendants: Adv M Patel instructed
by Eversheds Sutherland (SA) INC.
Date
of hearing:
2 June 2025.
Date of Judgment:
2 June 2025.
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