W D Mining (Pty) Ltd v New Venture Mining Investment Holdings and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mfenyana J |
| Judgment Date | 15 August 2023 |
| Citation | 2023 JDR 3061 (NWM) |
| Hearing Date | 19 January 2023 |
| Docket Number | M107/22 |
| Court | North West Division, Mahikeng |
Mfenyana J:
Introduction
This matter served before me in the opposed motion court, having been set down by the respondents. In the notice of motion, the applicant seeks an order declaring that the respondents are in breach of the agreement concluded by the parties on 19 March 2019. The applicant thus further seeks an order that the respondents be ordered to perform their contractual obligations in terms of the said agreement.
2023 JDR 3061 p3
Mfenyana J
On the day of the hearing the applicant was represented by Mr Madisha as the director of the applicant. The respondents were represented by Mr Jorge.
It appears from the record that Kholisile Lumka Incorporated had come on record as the applicant’s attorneys. They remain as such, as no notice of their withdrawal has been filed. They were not present in court when the matter was called on 19 January 2023. Mr Madisha sought a postponement of the matter. He stated that he required time to source funds in order to pay his attorneys as he had not been able to earn an income for the past few years. He admitted that he had been involved in prosecuting the application from the onset and had deposed to the founding affidavit when the application was instituted on 1 March 2022, and he was conversant with the facts of the matter. He further conceded that having instructed attorneys, his instructions were predominantly captured in the papers before Court.
Mr Jorge, in opposing the application for postponement on behalf of the respondents, stated that a postponement is not for the mere taking and that the applicant had to show good cause why a
2023 JDR 3061 p4
Mfenyana J
postponement should be granted. He averred that the timeline in this matter is of particular relevance to the issue of postponement, it being so that the applicant instituted the proceedings in March 2022 whereafter it took no further action. Mr Jorge further submitted that when the respondent set the matter down in September 2022, the applicant had sufficient time to consider its financial position. He added that Mr Madisha was very vague in this regard. He further argued that Mr Madisha, as he had conceded, was fully aware of the facts of the matter. The applicant would not suffer any prejudice if the matter proceeded, as opposed to the prejudice that would be suffered by the respondents, in view of the time that had already lapsed together with the fact that the respondent had to take steps to have the matter heard, he said. Mr Jorge bemoaned the fact that the applicant waited until the day of the hearing to seek a postponement, which added to the prejudice suffered by the respondents.
In reply, Mr Madisha stated that he had been waiting for a court date, and on that basis he would have sourced the necessary funds to pay his attorneys before the matter came to court. He further stated that his attorneys notified him of the court date, only a few days ago.
2023 JDR 3061 p5
Mfenyana J
I dismissed the application for postponement with no order as to costs. I consider it prudent to set out the chronological events leading up to the setting down of this matter.
On 8 March 2022 the applicant instituted the present application. On 16 March 2022 the respondents filed their notice of opposition followed by their answering affidavit on 7 April 2022. The applicant did not file a replying affidavit. From April 2022 to date of hearing, the applicant took no steps to bring the matter closer to finality, in a matter it had instituted.
Two months later, on 9 June 2022, apparently frustrated by the applicant’s inaction, the respondents applied for a date for the hearing of the application. The notice thereof was served on the applicant’s attorneys of record on the same day. Ignorant of the fact that a date had already been allocated by the registrar, the respondents on 19 August 2022 served another application for hearing date on the applicant’s attorneys of record. Upon learning that a date had already been allocated, the respondents on 23 August 2022 served a notice of withdrawal of the second
2023 JDR 3061 p6
Mfenyana J
application for hearing date, in which they explained that a date had already been allocated. The upshot of this is that it clearly indicated that the respondents had every intention to have the matter heard. None of these steps taken by the respondents sparked any interest from the applicant.
On 2 September 2022, the respondents served a notice of set down on the applicant, for 19 January 2023. Even after the notice of set down was served, there was no action from the applicant.
It is trite that the postponement of a matter cannot be claimed as of right. An applicant seeking a postponement seeks an indulgence from the court. That party must show good cause and provide a comprehensive and satisfactory explanation for the postponement. The application itself, must be brought timeously. Prejudice on either party is one of factors to be taken into consideration when the court exercises its discretion to grant or refuse an application for postponement.
The applicant dismally failed in providing a comprehensive explanation why it had taken no steps to advance its own
2023 JDR 3061 p7
Mfenyana J
application. Save for a vague explanation, Mr Madisha could not explain why for a period of over nine months, the applicant took no action in its own matter. He further could not explain why the applicant simply ignored the various attempts by the respondents to obtain a hearing date, and set the matter down, or and why miraculously the applicant’s attorneys informed him of the hearing date a mere two days before the hearing as...
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