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CASE NO. (P) I 2836/2006

ANETTE SKIBOWSKI-BETH Plaintiff

and

BEATE RAITH First Defendant

ERNA GROOTENBOER Second Defendant

SILUNGWE, AJ

24/03/2009

COSTS - Postponement – General rule – Applicant responsible – Must pay wasted costs – contrast where each party or none of parties has contributed towards need for postponement.

CASE NO.: (P) I 2836/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

ANETTE SKIBOWSKI-BETH Plaintiff

and

BEATE RAITH First Defendant

ERNA GROOTENBOER Second Defendant

CORAM: SILUNGWE, AJ

Heard on: 2009/03/10 – 11

Delivered on: 2009/03/24

JUDGMENT:

SILUNGWE, AJ: [1] This application is brought by the plaintiff for postponement of the trial to a date to be arranged with the Registrar of the Court. It is essentially couched in the following terms:

1. Ordering that this trial be postponed to a date to be arranged with the Registrar.

2.1 Ordering that the wasted costs of the postponement stand over for determination at the end of the trial;

alternatively,

2.2 Ordering that the plaintiff, the first and the second defendants, respectively, bear the wasted costs of this application.

[2] The plaintiff is represented by Advocate Corbett while the first and second defendants are represented by Mr Erasmus and Advocate Obbes, respectively.

[3] The first and second defendants are niece and aunt, respectively, and live together at the first defendant’s residence in Windhoek. The first defendant is the owner of a Rhodesian Ridgeback which she had put under the charge and control of the second defendant when the said dog attacked and injured the plaintiff by biting her several times. The plaintiff thereafter instituted an action for damages against the defendants.

[4] The matter had been set down for trial on July 15, 2008, but on that date, the appellant sought a postponement (which was unopposed) to a date to be arranged with the Registrar and tendered wasted costs to the defendants. Accordingly, the application was granted.

[5] On September 22, 2008, the plaintiff filed (through his legal practitioners of record) an application for trial date(s) on the fixed or continuous Civil Roll, in terms of Rule 39(2), read with Consolidated Practice Directions, and a notice to that effect was given to the defendants’ legal practitioners to attend the office of the Registrar on Wednesday, October 15, 2008, at 09h00. Consequently, the plaintiff’s legal practitioners filed a notice of set down for the hearing of the matter during the period March 10 to 12, 2009, which apparently did not reach the first defendant’s current legal practitioners, possibly because the initial legal practitioners had withdrawn.

[6] At a pre-trial hearing in the afternoon of Monday, March 9, 2009, the parties’ legal representatives indicated to the Court that attempts to reach a settlement were in progress. The matter was thereafter postponed to the following day.

[7] When the Court reconvened on March 10, Mr Corbett stated that parties had been unable to reach a settlement agreement. He further told the Court that he was applying for a postponement to a date to be arranged with the Registrar and for the costs to stand over.

[8] Mr Erasmus, for the first defendant, opposed the application for postponement, adding that his client was ready to proceed. However, Mr Obbes, for the second defendant, submitted that he was not averse to the application provided the plaintiff paid wasted costs. As Mr Corbett stuck to his guns, the matter was postponed to the following day, March 11, to enable him to bring a formal application (together with a supporting affidavit).

[9] On March 11, Mr Corbett brought the formal application for postponement which necessitated the filing of answering affidavits by the first and second defendants, respectively. After argument by the parties’ legal representatives later in the afternoon of that day, the application for postponement to a date to be arranged with the Registrar was granted, for reasons to be given at a later stage, but a decision on the issue of costs was reserved.

[10] The thrust of Mr Corbett’s argument on the application for postponement of the trial and for costs was that none of the parties was ready for trial. In support of the application, Mr Corbett referred to an exchange of correspondence between the plaintiff’s legal practitioners of record, namely, Petherbridge Law Chambers, and Messers Francois Erasmus & Partners, who have been representing the first defendant since October 2008. A change in the initial legal representatives of both the plaintiff and the first defendant seemingly gave rise, in so far as the first defendant was concerned, to the confusion of the March 10 to 12, 2009, set down. On October 21, 2008, Mrs Schultz of Petherbridge Law Chambers, addressed a letter to Messrs Francois Erasmus & Partners, notifying them of the March 2009 set down and enclosing a Notice of Set Down for their attention. In his response of October 23, 2008, Mr Erasmus wrote that his law firm had no record of having been served with the notice of application for the trial dates and requested that a copy of such notice be faxed to his law firm. On December 1, Mr Erasmus wrote to the plaintiff’s legal representatives drawing their attention to his letter of October 23 and requesting them to revert to him. On February 11, 2009, Mr Erasmus wrote to the plaintiff’s legal practitioners in these terms:

Our letters of 23 October 2008 and 1 December 2008 respectively refer.

We note that we have still not received any reply thereto. Please note that as the matter stands now, we were alerted to the fact that you would apply for a trial date herein and as such we have not agreed to the trial date for which you have set the matter down. We have repeatedly requested you to provide us with copies of the notice when you made the application for a trial date, but until date hereof you have failed to provide us with same. Please revert to us within three (3) days from date hereof. In the interim all our client’s rights remain reserved.

(Emphasis provided).

The foregoing letter prompted the following response from Mrs Schulz:

…

We are aware of the fact that you did not receive an application for a trial date, but it was not filed on you because we received a Notice of Withdrawal from Van Der Merwe-Greeff and therefore we did not file same on Van Der Merwe-Greeff, because of this notice. Thereafter writer hereof left the offices of Chris Brandt attorneys and Mr Francois Erasmus filed a Notice of Representation on Chris Brandt Attorneys, who only later furnished writer hereof with the Notice and thereafter a Notice of Set Down was filed on Francois Erasmus and Partners. In the light of the above you are aware of the Notice of Set Down and no prejudice has been suffered as this matter was already set down for hearing on a previous occasion. We further wish to finalize the matter.

On February 23, Mrs Schulz wrote to the first defendant’s lawyers advising them that the plaintiff “does not accept the settlement proposal”. She continued thus: “Kindly advise if your client wishes to proceed with the trial and kindly advise which counsel your client briefed to proceed with the trial”. To this letter, Mr Erasmus made the following brief response dated February 24: “… Please note that we could not brief any counsel due to the unavailability of some”.

On March 9, Mrs Schulz addressed a letter to the first defendant’s legal practitioners requesting them to advise if they wished to proceed with the trial or to postpone the same. Mr Erasmus replied on the same date in these terms:

You are dominus litis and should decide whether you wish to pursue your action. We are ready to proceed if you decide to do so.

[11] Commenting on the first defendant’s stance, Mrs Schulz avers in her founding affidavit that this was a tactical move on the part of the first defendant’s legal practitioners who had allegedly withheld their position in regard to the future conduct of the matter for approximately two weeks after they had been requested what their client’s position was. This led Mrs Schulz to conclude that the only purpose of the said delay in communicating the first defendant’s position was an attempt to force the plaintiff into a position where it would have to tender wasted costs for the day.

[12] In his answering affidavit, Mr Erasmus emphatically denies the existence of any tactical move on the part of the first defendant, as alleged. He goes on to state that the plaintiff and her legal representatives were well aware of an authority requiring a party who is not ready to proceed with a hearing to apply for a postponement thereof as soon as it becomes evident that the said party would not be in a position to proceed. He further avers that, once the period for filing of summaries of expert evidence in terms of Rule 36(9)(b) had lapsed, it was evident that the plaintiff was in trouble and would not be able to proceed with the trial.

[13] For the second defendant, Mr Mark Kutzner of Engling, Stritter & Partners, avers that, as the matter did not become settled, notwithstanding attempts made to achieve a settlement, the only logical result was that it (the matter) would either proceed or become postponed. In the latter event, he continues, and given the plaintiff’s failure to file any of her expert’s summaries, postponement would inevitably be at the plaintiff’s costs.

[14] It is apparent that the central issue in the matter is a dispute concerning the quantum of damages. In her affidavit on behalf of the plaintiff, Mrs Schulz concedes that, although the plaintiff has filed expert notices (i.e six in all) in terms of Rule 36(9)(a) of the Rules, signaling her intention to call expert witness, no expert summaries have yet been filed, pursuant to Rule 36(9)(b). The reason for this state of affairs, she explains, is that the plaintiff was subjected to further medical examinations but the doctors’ reports furnished are not adequate for the purposes of precisely determining the quantum of damages. As I see it, if there is anything that accounts for the plaintiff’s inability to provide expert summaries and thus speaks volumes about her state of unpreparedness, this is it.

[15] It is not in dispute that, on February 19, 2009, Mr Erasmus too filed, on behalf of the first defendant, a Rule 36(9)(a) notice to call Mr Robert Koch, a qualified actuary, to give expert evidence at the trial. Mrs Schulz avers that not only was the first defendant’s Rule 36(9)(a) notice filed out of time but, more importantly, no expert summary was ever filed – a fact that has, according to her, severely prejudiced the plaintiff in her “preparation for trial and is conclusive of the fact that this matter is not ripe for trial”.

[16] What the preceding paragraph demonstrates is that the plaintiff placed great emphasis on the first defendant’s state of unpreparedness, partly as a contributing factor to her own unpreparedness for the trial; and partly to highlight the fact that trial is premature at this stage. Surely, it stands to reason that had the plaintiff herself been prepared and therefore ready to proceed with the trial, she would hardly have taken the initiative to eagerly champion a postponement. Instead, she would simply have been content to express her readiness to proceed, in which event it would have been open to the first and second defendants to either proceed with the hearing or to seek a postponement. Since the plaintiff’s claim is for damages arising from the injuries she suffered and, as the onus of proving the quantum thereof squarely rests upon her shoulders, she has (as previously shown) given notice of her intention to call six expert witnesses in order to discharge such onus. She can not, however, lead that evidence in the absence of expert summaries (required by Rule 36(9)(b)), which are still outstanding.

[17] When all is said and done, a clear picture that emerges is that the matter is not ripe for trial; and that, in the circumstances of the case, the interests of justice justify a postponement. This was the basis upon which the plaintiff’s application for postponement was granted.

[18] The final issue is the determination of costs. Mr Corbett forcefully argued that none of the parties was ready for trial, particularly in the absence of expert summaries. Although the second defendant had not filed a Rule 36(9)(a) notice to signify her intention to call an expert witness, her placement in the same boat with the first defendant was allegedly justified on the basis that she would benefit from the expert witness called by the first defendant. Be that as it may, the question is whether either the first or the second defendant can reasonably be said to be responsible for the postponement of the trial? Both Mr Erasmus and Advocate Obbes were adamant in their respective submissions that the ball was in the plaintiff’s court, as she was the one that bore the burden of proving the quantum of damages against them. Mr Erasmus went so far as to contend that, if the first defendant failed to file an expert summary, that would mean that she would not lead expert evidence. In my view, that contention is sound. In any event, the only party that was solely and overtly responsible for the application for postponement was none other than the plaintiff. Hence, her attempt to lay the responsibility at the door of either the first or second defendant (or at both doors) was, ultimately, an exercise in futility. Although the fact that the first defendant has given the Rule 36(9)(a) notice shows her intention to adduce expert evidence, it may not be conclusive that, given the filing of an expert summary, such evidence would necessarily be adduced as the leading of that evidence might, for instance, become superfluous after the plaintiff’s expert evidence has been presented. In addition, and as we have already seen, a defendant who files a Rule 36(9)(a) notice but fails to furnish an expert summary would, in terms of Rule 36(9)(b), be precluded from leading such evidence.

[19] The general rule is that an applicant for a postponement who is responsible for the case not being proceeded with on the day set down for hearing, must pay wasted costs: See: Christian v Metropolitan Life Namibia and Another 2007 (1) NR 255 at 256I-267A-C; Myburgh Transport v Botter t/a SA Truck Bodies 1991 NR 170 at 175; Law of Costs (by AC Cilliers) Service Issue 14, 2006 ed. para 8.11 at 8–9. The present matter is, in my view, a case in point, as the responsibility for postponement lies at the door of the plaintiff. This is, of course, to be contrasted with a case where each of the parties, or none of them, has contributed towards the need for postponement of the trial; in such circumstances, the Court may, for instance, make no order as to costs; order each partly to pay his or her own costs; order that wasted costs be costs in the cause. See: Christian v Metropolitan Life Namibia and Another, supra, at 258C-D; Prior t/a Pro Security v Jacobs t/a Southern Engineering 2007 (2) NR 564 at 566G; Klein v Klein 1993 (2) SA 684(B) at 654A.