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REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT

JOHANNESBURG

 

CASE NO:  02895/2010

 

In the matter between:

 

Road Accident Fund	Applicant
and
Mordant Cole	Respondent

J U D G M E N T

 

 

Modiba AJ:

 

[1]  The trial in this matter is set down for 29 April 2013. The Road Accident Fund who is the defendant in the main action has applied for the postponement of the trial. The plaintiff in the main action who is the respondent in this application is opposing the application.

 

[2] The primary reason advanced by the applicant for the postponement is to afford the applicant an opportunity to obtain reports from two medico-legal experts. The respondent initially failed to honour appointments with these experts resulting in the matter being removed from the roll on 20 February 2012.  The appointments were rescheduled to dates in March/ April 2013. The respondent refused to honour these appointments because he was short served by the applicant. Counsel for the applicant argued that the respondent was unreasonable in insisting on strict compliance with the court rules. He is unemployed and could have attended the assessments. Had the respondent not insisted on strict compliance with court rules, the applicant would have obtained these reports and the matter would have been ready for trial.

 

[3] Counsel for the respondent advanced the following reasons for opposing the application:

3.1 the respondent did not unreasonably refuse to honour appointments with the applicant’s medico-legal experts. Despite the short service of the notice to attend assessments with the applicant’s medico-legal experts, the applicant tried to honour the appointments by attending 3 of the 5 assessments. 3 of the 5 expert reports are opposed. Only 2 reports are outstanding, namely the neurosurgeon report and the industrial psychologist report.

3.2 the respondent does not wantonly dishonour appointments with the applicant’s medico-legal experts. His capacity to understand the importance of things and to act in accordance with that appreciation has been affected by the accident. To ensure that he does not miss appointments with the applicant’s medico-legal experts anymore, his attorneys have resolved to accompany him to the assessments. His attorneys were not available at short notice; hence he could not honour 2 of the 5 appointments.

 

3.3 At the pre-trial conference held on 12 April 2013 and signed on behalf of both parties, the parties agreed that:

3.3.1 the trial set down for 29 April 2013 will proceed;

3.3.2 if the respondent attends the appointment with the applicant’s industrial psychologist, then applicant will not be prejudiced;

3.3.3 the respondent’s industrial psychologist will assess the respondent and work off the respondent’s neurosurgeon, occupational therapist, clinical psychologist and maxilla-facial surgeon reports when compiling her report.

 

[4]  The court has discretion as to whether an application for postponement should be granted or refused. This discretion must be exercised in a judicial manner.

 

[5]  The applicant for postponement seeks an indulgence from the court. Isaac v University of the Western Cape 1974 (2) SA 409 (C) at 411(H). He must therefore advance good and strong reasons for his request. In Greyventein v Neethling 1952 (1) SA 463 (C) at 466 A-D, the following principles for considering an application for a postponement were laid down: (a) the application for a postponement must be made timeously, (b) it must not be occasioned by circumstances which should have been foreseen when the matter was set down, (c) the other party should not suffer prejudice which may not be alleviated by a cost order and by safe guards regarding payment. In Estate Norton v Smerling 1936 OPD 44 at 54 and in Gwenzi Cebekhula 1996 (1) SA 525 (N) at 529 B, the principles enunciated in the Greyventein judgement were held to apply a fortiori to an application for postponement by a defendant. In the Estate Norton case, it was further held that where the defendant applies for a postponement to obtain further evidence he must show that (i) the evidence he seeks to obtain is relevant and material to the issue, (ii) there is such evidence to be had and that (iii) it is through no fault of his that the evidence is not available for trial.

 

[6]  I am of the view that the applicant has failed to give good grounds for the postponement. It is therefore not entitled to have the discretion to postpone the trial exercised in it’s favour for the following reasons:

6.1 the applicant failed to bring the application for a postponement timeously. The application was only served on the respondent on the morning of the trial.

6.2 attorneys for the applicant had a full year to reschedule appointments with it’s medico-legal experts. These appointments were only rescheduled to a period of a month to two weeks before trial. Counsel for the applicant failed to give a good reason why these appointments were rescheduled so close to the trial date when attorneys for the applicant had a full year to prepare for the trial.

6.3 It is unreasonable for the applicant’s attorneys to expect the respondent to attend 5 appointments in the period referred to in para 5.1 above, worse so that the notice to attend the assessments was short served on the respondent;

6.4   from the agreement reached by the parties at the pre-trial conference, it appears that the need for the head injury expert report can be dispensed with through other means (see para 3.2.2 of this judgement). I am therefore not convinced that the absence of this evidence is an impediment to the applicant’s case;

6.5 at the pre-trial conference, the parties further agreed that there will be no prejudice to the applicant if the respondent attends the appointment with the applicant’s industrial psychologist expert.

 

ORDER

 

1. The application for the postponement of the trial set down for 29 April 2013 is dismissed;

2. The costs of the application for the postponement are costs in the cause.

 

L MODIBA

ACTING JUDGE OF THE HIGH COURT

Counsel for the Applicant:  Mr C. Snoyman

Instructed by:   Shishi Incorporated

 

Counsel for the Respondent: Mr U. Jordaan

Instructed by:   McMillan Attorneys

 

Matter heard on: 29 April 2013

Judgement delivered on: 30 April 2013

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