The Western Cape Division of the High Court, sitting as the Equality Court, recently heard an opposed interlocutory application for the sine dine postponement of preliminary proceedings which were supposed to proceed on 25 and 26 November 2024 in Cape Town. The basis for the application was that the complainants lacked the funding necessary to ensure that counsel could act on their behalf on these dates. In its judgment, the Equality Court shed guidance on the relevant factors which a court must consider when exercising its discretion on whether to grant a postponement or condonation application.
Grounds of opposition
This application was opposed by all the respondents in this matter who raised several grounds of opposition, namely that the underlying main complaint arose from events that occurred almost 20 years ago, yet the matter had only been instituted in the Equality Court late last year which, according to the respondents, constitutes an inexplicable and unreasonable delay.
A request for a sine dine postponement in these circumstances would therefore entail an abuse of the court's process and be materially prejudicial to the respondents, many of whom lacked the necessary documentation and reliable memories of these events to substantiate their relevant legal defences. The respondents further argued that the chronology of events leading to the matter being set down on 25 and 26 November 2024, following several court directives and reminders issued by the court's registrar, demonstrates that the application had not been brought as timeously as it could have been.
In addition, it was noted that the respondents' legal representatives had already spent much time and costs in preparation for the hearing by the time this application was launched. On the other hand, the complainants' legal representatives had inexplicably spent their energy and resources preparing postponement and condonation applications, instead of organizing themselves for the hearing of the preliminary issues. Alternatively, it was suggested that they could have attempted to obtain pro bono legal assistance or employ local counsel in Cape Town rather than from Gauteng to help reduce their legal costs.
The respondents further contended that the complainants' main claim was, in any event, spurious and had no prospects of success, particularly given the legislative effect of prescription, and highlighted that the application had failed to make a tender for the wasted costs occasioned by the postponement.
The relevant law
The Equality Court emphasised that the legal principles applicable to postponement and condonation applications are both trite – neither application is simply there for the asking. An applicant in either case must formally seek an indulgence and furnish the court with a full and satisfactory explanation of the circumstances which gave rise to their application. In this regard, the Equality Court noted that it has a discretion on whether to grant or refuse such an application, which must be exercised judicially and with substantial reasons.
When exercising this discretion in terms of a condonation application, a court should take into consideration:
- the degree of non-compliance,
- the explanation for the indulgence required,
- the importance of the case,
- a respondent's interest in the finality of the judgment of the court below,
- the convenience of the court, and
- the avoidance of unnecessary delays in the administration of justice.
When considering a postponement application, a court must take into account:
- whether the application has been timeously made,
- whether a full and satisfactory explanation is given by the applicant,
- whether any of the parties will suffer prejudice, and
- whether the application is opposed.
All of these factors are ultimately weighed together to determine whether it is in the interests of justice to grant the requested postponement which looks at both the interests of the immediate parties and the broader public interest.
The Equality Court further noted that a postponement application must be brought as soon as the applicant becomes aware of the relevant circumstances which would justify seeking such a postponement. Nevertheless, even if the application is not timeously made, a court may in appropriate cases grant the application if fundamental fairness and justice justify it. A postponement application must accordingly be brought bona fide, rather than to achieve some illegitimate legal advantage through tactical judicial delays.
The Equality Court found that considerations of prejudice ultimately constitute the dominant factor in terms of which the court exercises its discretion. In this regard, the courts conduct a 'balance of convenience' which weighs the prejudice which will be caused to the respondent if the postponement application is granted against the prejudice which will be caused to the applicant if it is not.
The court must consider whether any such prejudice can be fairly compensated by an appropriate cost order or any other ancillary mechanism. This may include an order to pay the wasted costs of the respondent on an attorney and client scale, or an order directing the applicant to pay the costs of their adversary before they are allowed to proceed with their action or defence.
The Equality Court highlighted that it has been held that a lack of funding is not a sufficient reason for a last-minute postponement application. In these circumstances, a legal practitioner must withdraw or apply for a postponement in good time.
Conclusion
The Equality Court concluded that the explanation given by the complainants' legal representatives for their inability to attend the preliminary proceedings on 25 and 26 November was not full or satisfactory, nor had the application been brought timeously. Nevertheless, the Equality Court found no evidence that the application had been brought as a delaying tactic or for any other mala fide motive. Furthermore, the court concluded that the interests of justice demanded that the matter be properly ventilated, including the preliminary issues.
The Equality Court accordingly ordered the hearing of the preliminary proceedings to be postponed sine dine but ordered the complainants to pay the wasted costs of the postponed proceedings on an attorney and own client basis which had to be settled before the next set down date of the preliminary proceedings.
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