IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

INDUSTRIAL DEVELOPMENT CORPORATION

and

In the matter between:

and

JUDGMENT

The Court is put in a difficult position, because on the one hand this application for postponement raises a plethora of difficulties. In the first place it is trite to remark that postponements are not for the taking. They have to be properly motivated. The reason that they have to be properly motivated is because the interests of both parties have to be safeguarded by a court.

Plaintiffs are also entitled to ensure an expeditious resolution of the claims that they have brought before the Court. It goes without saying that defendants are also entitled to be given every opportunity to put their case in the best possible light. In this case, however, further difficulties arose which can be outlined as follows. The matter was due to start today after postponements during 2009. There is no disputing that the applicants' expert forensic account, Mr Hudson-Bennett, is sadly ill and not available to provide the applicants with the expert evidence required. There is no dispute, on the evidence, that the applicants sought to obtain the services of other experts, two of whom indicated that there was no basis by which they could prepare a report and be available to provide the necessary expertise for this case by 3 August 2010.

Inherent is the problem that the matter cannot be heard in that week or the following week or the week thereafter, it may well be that this case will have to be heard, would be in the first term of the following year, which would be more than six months. That would certainly, in my view, work to the considerable prejudice of the respondents in this application. Insofar as this suggestion is concerned, I will go so far as to suggest that the matter commences on 13 October unless counsel wish to approach me about some date that may be more convenient to all of them, but I would be very reluctant to extend any postponement beyond that date.

Whatever the merits of those arguments, the overriding fact is that the defendants placed this Court in a position that was extremely unlikely that the Court could force the case to go ahead without prejudice. That a skeletal explanation, at the very best, was provided as to why a definite date could not have been proposed as to when Professor Everingham was available and the trial might have been begun. For this reason, it appears to me that this is an application for a postponement which was caused, in a large measure, by an inability on the part of the applicants to come up with a date that would have been practical and which would have then placed the defendants in the position that they would have either had to accept it, or arguably run the risk that their conduct would have been classified as unreasonable. For these reasons, therefore, the postponement is granted, but the costs, insofar as this application is concerned, are to be paid for by the defendants and those will include the cost of two counsel.