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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: ERIC NKOSIVUMILE MATOMELA

And

PRESBYTERIAN CHURCH OF SOUTH AFRICA

BANILE BISHOP NOCANDA

ADVOCATE NJ MILLINS

• Registrar: 483/08

• Magistrate:

• High Court: EASTERN CAPE DIVISION

DATE HEARD: 13/11/08

DATE DELIVERED: 19/11/08

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

1. for the Applicant(s): ADV: M. Lowe

2. for the Respondent(s): ADV: S.H. Cole

Instructing attorneys:

• Applicant (s): DOLD & STONE ATTORNEYS

• Respondent(s): N.N. DULLABH & CO.

CASE INFORMATION -

1. Nature of proceedings : POSTPONEMENT

Not reportable

In the High Court of South Africa

(Eastern Cape Division)

(Grahamstown High Court) Case No 483/2008

Delivered:

In the matter between

ERIC NKOSIVUMILE MATOMELA Applicant

and

PRESBYTERIAN CHURCH OF SOUTH AFRICA 1^st Respondent

BANILE BISHOP NOCANDA 2^nd Respondent

ADVOCATE NJ MULLINS 3^rd Respondent

SUMMARY: Postponement – applicant appearing at the last moment to apply for a postponement of his own application – wasted costs tendered – while a punitive order is justified by the applicant’s cavalier attitude, there were insufficient facts on record to justify an order that the proceedings not be set down till payment of the wasted costs.

JUDGMENT

JONES J:

[1] This is an application for an order condoning the lateness of the application, declaring a meeting held by the Church on 30 March 2003 to be invalid as being contrary to its constitution, setting aside the election of a moderator on that date as invalid and unconstitutional, and directing that a fresh vote for the election of a moderator be held. The notice of motion is not in the form of a review under rule 53, but the relief sought is patently for the review of the proceedings and decisions in question, and the terms of the Promotion of Administrative Justice Act 2 of 2000 are applicable. .

[2] The matter was set down before me today as an opposed motion. The 1^st and 2^nd respondents appeared by counsel, with full heads of argument which argued the defence of unreasonable delay and moved for a dismissal of the application on that ground. The respondents argue that a review was initially brought in 2003, but abandoned in 2004, and that the applicant gives no satisfactory explanation in his founding papers for bringing it only now, after such an inordinate delay.

[3] The applicant is in breach of the rules of court by not filing his heads timeously. Indeed, he filed no heads at all. But he appeared by counsel this morning to move from the bar for a postponement, with a tender to pay wasted costs. Counsel for the 1^st and 2^nd respondent somewhat reluctantly agreed to a postponement without requiring a formal application, no doubt to avoid unnecessary delay and expense. But he argued that this is a proper case for a punitive costs order. He suggested that I order that the applicant pay the wasted costs of the day on the scale as between attorney and client, and that I should in addition order that the matter not be set down again by the applicant until those costs have been paid.

[4] Despite argument to the contrary by counsel for the applicant, I am in agreement that the applicant’s action in leaving it to the very last moment to seek the indulgence of a postponement, seen in the context of the time lapse between his alleged cause of action and the hearing of this application, shows such scant regard for the rights of the respondents and the convenience of the court that I should, as a mark of disapproval, order him to pay costs on the attorney and client scale. But there are insufficient facts before me to justify the additional punitive order that the proceedings effectively be stayed until payment of the wasted costs. Counsel mentioned from the bar that the applicant is still in default of payment of the costs of an application between the same parties in relation to similar subject matter, which the applicant brought unsuccessfully in another Division. This may indeed form justification for a special costs order, but not without an examination of all the facts and circumstances. These are not before me.

[4] In the result the matter is postponed by consent to a date to be arranged. The applicant is ordered to the pay the 1^st and 2^nd respondent’s wasted costs occasioned by the postponement on the scale as between attorney and client.

RJW JONES

Judge of the High Court

13 November 2008

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