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CIV/T/3/1992
IN THE HIGH COURT OF LESOTHO
In the matter between:
MAFUPU LELOSA Plaintiff
And
'MAMORAFO LEKHANYA Defendant
For the Plaintiff : Mr. Metlae
For the Respondent : Mr. Khauoe
RULING ON APPLICATION FOR POSTPONEMENT
Delivered by the Honourable Mr. Justice T. Monapathi On the 25th Day of February 2004
Yesterday, before the hour of twelve midday a witness for the Plaintiff called Mr. Moshoeshoe completed his evidence. This man is a structural engineer in Lesotho Government. He testified. This was a follow up to a previous report that he made on affidavit. I do not want to comment any further about the content of his evidence.
What it is now of moment is that after he be heard, after he being cross examined and re-examined I perceived that Mr. Metlae could be having misgiving about the full content or the quality of this witness1 evidence. And indeed when we were about to postpone for the day of yesterday Mr. Metlae indicated that due to the
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absence of Mr. Khauoe's witness the Defendant, he (Mr Metlae) would be taking the opportunity for a postponement to further evidence to put in and call another witness. This could be understood to mean that the Plaintiff's case would be re-opened for that witness if Plaintiff had closed her case. But it is not quite clear that she had said she was closing her case. Postponements of on going cases are not there for the taking. See Masupha Epraim Sole v Brendan Peter Cullinan, NO and Six Others Constitutional case No.3/2002, Lehohla CJ 17th December 2002 at page 9.
What is further important to me is that before expiry of Mr Moshoeshoe's evidence Mr. Metlae had intended and had not thought of finding other evidence. This he conceded. To me there can be no better indication of indifference if not negligence. See generally VAN DYK vs CONRADIE AND ANOTHER 1963(2) SA 413 (A). Because it is not disputed that during adjournment Mr. Metlae went about looking for the witness of some quality. On principle he is entitled to do that. But what is the problem is that today he has not secured the witness and he is now seeking for a postponement. This is opposed by Mr. Khauoe.
I suggested that Counsel must argue the postponement from the bar immediately. I did not want them to adjourn. They did argue. The
normal rule being that:
"If a postponement has become necessary in consequence of a fault or default of one of the parties or his representative ...
wasted costs are awarded against the party who was at fault or in defaul".
See BURGER v KOTZE AND ANOTHER 1970(4) SA 302. (Headnote).
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Much as I find fault on Mr Metlae on the circumstances of this postponement that he requires, I do not think it is in the interest of justice to refuse the postponement. It is clear that he feels that his case can be complete only if that unnamed witness is available. But he ought to have realized much earlier about defects on the quality of Mr. Moshoeshoe's evidence. An application for postponement must be made timeously. See Myburgh Transport v Bothat t/a Truck Bodies 1991(3) SA 310 at 315 as approved in Masupha Ephraim Sole's case (supra) at page 12.
About the evidence of Mr. Moshoeshoe the witness seems to say no more than what he said in the said report. This I say without prejudging the matter. One of the answers he has not given is that definitely actions or disturbances around the house of the Defendant caused the cracks on Plaintiff's house. That is why the specific answers that he gives are only those in which he professes any knowledge only when he is questioned by Court or merely in response to the last question from Mr. Khauoe. That is why it was not surprising that his Counsel might have had misgivings. I said he might.
If before Mr. Moshoeshoe's evidence was led it was intimated that another witness would be pursued it would be a different case. My attitude would therefore differ about costs under those circumstances. That is why I grant this postponement but with wasted costs of today to the Defendant. I felt slow in my discretion to award those costs on a high scale. One of the things I considered was that the application for a postponement seemed to have been made bona fide. See Masupha Ephraim Sole's case (supra) at page 13. I also accepted the explanation offered by the Plaintiff for the
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requested postponement. See Masupha Ephraim Masupha Sole's case at pages 14 and 15 and cases cited therein.
I still endorse that this is an old case but not a complicated case. It has taken too long. It really should not. I do not want to blame anybody. That is not my task for now. Today is about this postponement which I have granted with costs to the Defendant.
This case must be given a specific date of hearing during April this year. That is my order.
T. Monapathi
Judge 25th
February 2004