Kholisani Nkala v Sarah Nkala (Nee Sebata)

### Preamble
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HB 261/20
HC 2178/19
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KHOLISANI NKALA

Versus

SARAH NKALA (Nee SEBATA)

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 10 & 19 NOVEMBER 2020

Application for a postponement

A. Kunda, for the plaintiff

M. Ndlovu, for the defendants

DUBE-BANDA J: On the 11 September 2019, plaintiff sued out a summons against the defendant praying for an order of divorce and other ancillary relief.   On the 8 September 2020, a pre-trial conference was held before a judge of this court. The presiding judge referred the matter to trial. The trial was set down for the 10 November 2020. A copy of the notice of set-down was served on defendant’s legal practitioners on the 6 October 2020, and on plaintiff’s legal practitioners on the 7 October 2020.

In anticipation of the trial date, defendant filed an affidavit in support of an application for a postponement.   On the date of the trial, i.e. 10 November 2020, plaintiff filed a notice of opposition and opposing affidavit, all in anticipation of an application for a postponement of the trial. On the trial date and time set for the commencement of the trial, defendant was not in attendance, and Mr Ndlovu made an application for a postponement of the trial relying on the factual averments contained in the affidavit filed of record.

In her affidavit in support of the application for a postponement of the trial, defendant avers that she is resident in the United Kingdom. Pending the finalisation of the divorce proceedings, she has been given custody of the minor children. She alleges that when she was notified of the set down date of the trial, there was already a crucial medical appointment for one minor child of the parties. The appointment was set down for the 10 November 2020, i.e. on the trial date. The reason for the appointment is that the child had a brain tumour that was removed. On a follow up examination done on the 24 October 2019, signs of regrowth were observed. In light of the regrowth, the doctor is said to have indicated that it was essential that the child attends the 10 November appointment. Defendant contends that as the custodian parent and for the medical procedure to be done, she has to be present during the medical appointment. Defendant avers that she could not make an alternative arrangement for the care of this child, because there has been a resurgence of the Corona Virus cases in the United Kingdom, that have led to further lockdowns.

In his opposing affidavit, plaintiff accuses defendant of a number of ills, the main being that she deliberately set the medical appointment for the child to coincide with the trial date, to avoid attending the trial.  It is averred that there is a relative, who was willing to take care of the minor children, to permit defendant to travel to this country to attend the trial.

During argument, plaintiff conceded to the postponement of the matter, and insisted that that defendant pays the costs of the postponement and his travel and ancillary costs put at 1 300 British Pounds. I advised counsel for both parties that it would be difficult to find a date to postpone this matter to, the preferable option would be to remove it from the roll. Both counsel agreed. After hearing counsel for both parties on the application for a postponement, I handed down the following order:

That the matter is and hereby removed from the roll.

That the issue of costs is reserved.

Therefore, one issue remains for disposition. It is the question of costs. In considering the issue of costs, I will have to determine whether the application for a postponement had merit. In examining the fundamental rules relating to awards of costs, the learned authors Hebstein and Van Winsen in The Civil Practice of the High Court and the Supreme Court of Appeal of South Africa, 5 ed: Vol 2 p 954, stated the following:

The award of costs in a matter wholly within the discretion of the court, but this is a judicial discretion and must be exercised on grounds upon which a reasonable person could have come to the conclusion arrived at. In giving the magistrate (or judge) a discretion, the law contemplated that he should take into consideration the circumstances of each case, carefully weighing the various issued in the case, the conduct of the parties and any other circumstances which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties…….

Even the general rule, viz that costs follow the event, is subject to the overriding principle that the court has a judicial discretion in awarding costs.

It is trite that the award of costs is entirely in the discretion of the court. In exercising this discretion however, the court is guided by a number of settled principles which all support the raison d’ etre  of the justice delivery system of achieving fairness and justice between the feuding parties. In this jurisdiction, costs are awarded to a party that is successful as a way of vindicating their approach to the courts. In a way, the award of costs, though hardly sufficient to fully indemnify the successful party, is to penalize the unsuccessful party for being unreasonable and not conceding a validly raised claim or defence. In times when legal costs, have escalated beyond the reach of many, an award of costs may mean financial ruin to the mulcted party. Thus, in my view, the question of costs must not be dealt with lightly but must be considered carefully.  See Alice Sunga & 32 Others versus Deron Mutengwa HH 68/2007.

The following facts that are either common cause or not seriously disputed; both litigants are Zimbabweans resident in the United Kingdom; both parties were served with a notice of set-down; the matter was set-down for the 10 November 2020; defendant has the custody of the minor children of the marriage; one child had  a medical appointment for the 10th November 2020; defendant’s legal practitioners notified plaintiff legal practitioners that an application for a postponement was going to be made on the 10 November 2020; at the time plaintiff was notified of the application for postponement he had already purchased his air ticket for travelling; plaintiff travelled from the United Kingdom for the purposes of attending the trial; when plaintiff travelled to Zimbabwe, he knew or must have known of the pending application for a postponement of the trial; defendant did not travel.

All litigants are encouraged to attend court in answer to a notice of set-down. However, the facts of this case are somewhat exceptional, plaintiff must have known by the 23rd October 2020 that an application for a postponement was going to be made on the date of the trial. He knew that the defendant was not travelling to Zimbabwe for the trial. Accepted, that when he was informed of the pending application for a postponement, he had already secured his air ticket, on the facts of this case, it was incumbent upon him to find ways of mitigating his loss. I also take into account the medial appointment of the child; and the further restrictions caused by Covid Lockdown in the United Kingdom, which according to the defendant made it impossible to get a third party to look after the children in her absence.

I also factor into the equation that a court should be slow to refuse a postponement where justice demands that a litigant should have further time for the purpose of presenting his or her case. On the facts of this case, I take the view that even if plaintiff had persisted with his opposition, I was still going to remove this matter from the roll. This is a divorce matter, parties must, depending of the facts of the case be given an opportunity to appear before court and defend their positions. Such a right can be taken away in certain circumstances, e.g. in particular where it is clear that a litigant is playing games and appears not to be interested in having the matter concluded.  The history of this matter does not show that the defendant is not keen to have this matter concluded. See Sijabulisiwe Hunda v Esmael Hunda HB 56/06.

Again, I take into account that plaintiff was notified timeously of the intention to make an application for a postponement, this was done as soon as the circumstances which justify such an application became known to the defendant. See Greyvenstein v Neethling 1952 (1) SA 463 (C). My view is that he should have taken immediate steps to mitigate his lose.

I therefore viewed the question of costs in light of the above. In the premises, it presented itself to me as fair and just that neither party be mulcted with an order of costs for the removal of the matter from the roll.

Disposition

In the result, I order as follows: - each party shall pay its own costs.

Dube and Associates, plaintiff’s legal practitioners

Ndlovu Mehluli and Partners, defendant’s legal practitioners