Court name
High Court Main Division
Case name
Blaauw v Coetzee
Media neutral citation
[2020] NAHCMD 357

“ANNEXURE 11”

Practice Directive 61

 

IN THE HIGH COURT OF NAMIBIA

 

Case Title: URSULA ESTHER BLAAUW v MARIUS LEON COETZEE

 

Case No:

HC-MD-CIV-ACT-MAT-2019/02808

Division of Court:

MAIN DIVISION

Heard before

TOMMASI J

Date of hearing:

21 July 2020

Delivered on:

14 August 2020

Neutral citation: Blaauw v Coetzee  (HC-MD-CIV-ACT-MAT-2019/02808) [2020] NAHCMD 357 (14 August 2020)

 

Results on merits:

Not on the merits.

 

The order:

Having heard Mr Liebenberg on behalf of the Applicant, and Mr Pretorius on behalf of the Respondent, and having read the documents filed of record:

 

IT IS ORDERED THAT:

  1. The court imposes sanctions in terms of Rule 53 (d) and direct that plaintiff’s legal practitioner must pay the defendant’s costs caused by the non-compliance.
  2. The matter is postponed to 9 September 2020 at 14h15 for further conduct of this matter 

 

Reasons for orders:

 

 

[1]        The plaintiff was directed by the court to file an affidavit to show cause why sanctions in terms of Rule 53 should not be imposed.

 

History of the Case Management of the matter

[2]        The plaintiff instituted proceedings on 21 June 2019. The plaintiff intended bringing an application for summary judgment and the case management order dated 30 August 2019 set out the case plan for the filing of an application for Summary Judgment. The matter was postponed to 09 October 2019 to determine a date for hearing the application for Summary Judgment. No application for Summary Judgment was brought and on 07 October 2019 a Status report was filed by the plaintiff’s legal practitioners advising the court that they do not intend to proceed with the application for summary judgment.

 

[3]        The parties proposed a new case plan providing dates for the filing of pleadings and discovery affidavits. On 07 October 2019 the managing judge was not available and the parties were requested to file an affidavit to state why the parties failed to comply with the previous court order. Both parties filed affidavits and pointed out that the plaintiff filed a status report indicating that she no longer wanted to bring an application for Summary Judgment. The matter was postponed to 30 October 2019.

 

[4]        On 30 October 2019 the court issued a new case plan in the following terms: the Defendant to file his Plea and Counterclaim, if any on or before 20 November 2019; the Plaintiff to file her replication and plea to counterclaim, if any, on or before 29 November 2019; the parties to file their Discovery Affidavits on or before 02 December 2019; and directing the parties to file a case management conference report on or before 03 December 2019. The case was postponed to 04 December 2019 at 14h15 for a Case Management Conference hearing.

 

[5]        The defendant filed the plea on 20 November 2019. A Joint Status report was filed hereafter on 02 December 2019 indicating that plaintiff intended to except to the defendants’ counterclaim. On 04 December 2019 the court gave directions for the filing of the exception and the matter was postponed to 05 February 2020 to allocate dates for hearing the exception.

 

[6]        By 05 February 2020 the parties had resolved the exception and an amended plea and counterclaim were filed. The court ordered the parties to file their respective discovery affidavits on or before 28 February 2020 and their witness’ statements on or before 27 March 2020. The matter was postponed to 15 April 2020. The defendant filed his discovery affidavit on 28 February 2020 but plaintiff did not file a discovery affidavit. Both parties did not file their witness’ statements. On 27 March the parties filed a joint status report explaining that both parties could not meaningfully consult with their clients as a result of the covid -19 lockdown. The parties requested the court to postpone the matter to extend the period for filing the witness’ statements until 14 May 2020.

 

[7]        On 14 April 2020 the court, in chambers and in the absence of the parties, ordered the parties to file their respect witness statements on or before 14 May 2020 and file a joint pre-trial report on or before 22 May 2020. The matter was postponed to 27 May 2020.

 

[8]        The lock-down period was uplifted on 05 May 2020. The defendant filed his witness statement on 14 May 2020. The plaintiff however failed to file her witness statement. The parties filed a case management report 20 May 2020 and herein agreed to refer the matter for mediation and to file witness statements in accordance with the practice directives of the Judge President. On the same day a joint status report was filed indicating that the plaintiff will draft a pre-trial conference report on or before 26 May 2020 and file same on 29 May 2020. No pre-trial report was filed and the court on 27 May 2020 ordered that same should be filed on or before 05 June 2020. The matter was postponed to 10 June 2020 for a pre-trial conference hearing.

 

[9]        On 02 June 2020 the defendant submitted that they are prejudiced by the plaintiff’s non-compliance and failure to file a witness statement. The defendant’s legal practitioner indicated that there would be no point in filing a pre-trial report under the circumstances. He indicated that he would apply for the court to impose sanctions on 10 June 2020 which he did. 

 

[10]       On 10 June the court, at the request of the defendant, ordered the Plaintiff to file an affidavit to show cause why  sanctions as contemplated under Rule 53(2), should not be imposed, for its non-compliance with court orders, on or before 26 June 2020. The Defendant was afforded the opportunity to file his opposing affidavit on or before 10 July 2020. The court then postponed the matter for a sanctions hearing.

 

[11]       The plaintiff’s legal practitioner filed an affidavit and essentially offered the following explanation. He did not have any documents to discover and hence he did not file a discovery affidavit. He accidently deleted the reminder to file the witness statement on his electronic diary. He then realised on 27 May 2020 (most likely when he prepared the pre-trial report) that he did not file witness’s statement herein and quickly compiled the pre-trial report which was due to be filed. He attached the pre-trial report wherein he stipulates that plaintiff will call three witnesses and will file her witnesses’ statements on or before 02 June 2020. He forwarded same to the defendant’s legal practitioner. In addition hereto he is completely inundated after the return to office on 05 May 2020 with his own files and with the added responsibility of helping out a colleague who is medically unfit to practice.

 

[12]       The defendant in his opposing papers took issue with the fact that no discovery affidavit has been filed by plaintiff. He pointed out that defendant suffered the same consequences and inconveniences as a result of the lockdown. He submits that the pressing schedule cannot be a ground for condonation. He further submitted that the plaintiff’s attorneys knew since 27 March 2020 that the witness statements had to be filed and had ample time to consult with witnesses before the lockdown. He also submits that taking over his colleague’s practice cannot be a ground for condonation as all legal practitioners work under tremendous pressure and should be able to arrange their diaries efficiently. The defendant stressed that both parties make use of correspondents in Windhoek and the defendant’s correspondent in Windhoek usually reminds the instructing attorneys in South Africa a few days in advance to prepare the witness statements. He urges the court to impose sanctions in terms of Rule 52(2).

 

[13]       Counsel for the defendant referred this court to the matte of Voigts v Voigts (I 924/2016) [2018] NAHCMD 55 (16 March 2018) and  Escon Electrical cc & Another v Bank Windhoek Ltd (I 210/2013) [2017] NAHCMD 258 (06 July 2017).

 

[14]       Rule 53 provides that if there has been non-compliance with a court order without reasonable explanation, the managing judge may enter any order that is just and fair in the matter including any of the orders set out in subrule (2) which reads as follow:

(a) refusing to allow the non-compliant party to support or oppose any claims or defences;

(b) striking out pleadings or part thereof, including any defence, exception or special plea;

(c) dismissing a claim or entering a final judgment; or

(d) directing the non-compliant party or his or her legal practitioner to pay the opposing party’s costs caused by the non-compliance.

 

[15]       Mr Pretorius, counsel for the defendant submitted that there has been no compliance with rule 32(9) and (10). Mr Liebenberg indicated that he was ordered to file an affidavit to show cause why sanctions should not be imposed.

 

[16]       The proceedings before this court are in terms of Rule 53. One of the issues is in fact that the plaintiff failed to, on application, seek relief from this court for having failed to comply with this court’s order. This court however will determine whether (1) there is a reasonable explanation and (2) if there is no reasonable explanation what order would be just and fair. 

 

[17]       The explanation proffered why the witness statement has not been filed is that the legal practitioner has accidently deleted the entry in his electronic diary which he maintains became a chaotic mess with having to reschedule entries as a result of Covid-19. He describes this as an unfortunate mishap and not an intentional act.

 

[18]       It is indeed so that legal practitioners ought to run an effective diary as this is the most important tool for their practice. It is however not uncommon even for the most conscientious practitioner, for the occasional error to occur.

 

[19]       The plaintiff’s legal practitioner however became aware of the failure to file the witness statements and opted to file the pre-trial report wherein he makes provision for the filing of witness statements without seeking relief from this court for non-compliance with the court’s order. This conduct was not reasonable and must be squarely visited upon the legal practitioner who was responsible for the non-compliance with the rules.

 

[20]       I do not agree that the plaintiff’s conduct in the circumstances of this case warrants the most drastic measure i.e the dismissal of the plaintiff’s claim. The plaintiff’s non-compliance is nowhere near the errant and contumacious conduct described in the cases cited by Mr Pretorius. This matter also has not yet reached trial stage. I am mindful of the prejudice suffered by the defendant in this matter as a result of the plaintiff’s non-compliance with the court orders.

 

[21]       I am of the considered view that a cost order against the legal practitioner of plaintiff would be just and fair under the circumstances of this case.

 

[22]       In the result the following order is made:

1.         The court imposes sanctions in terms of Rule 53 (d) and direct that plaintiff’s legal practitioner must pay the defendant’s costs caused by the non-compliance.

2.         The matter is postponed to 09 September 2020 for further conduct of this matter.

 

Judge’s signature:

Note to the parties:

 

 

Not applicable.

Counsel:

 

Applicant

 Respondent

P J Liebenberg

Of

Van Heerden Liebenberg & Co.

Mariental

F A Pretorius

Of

Francois Erasmus & Partners

Windhoek