- April 19, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
This was an application for leave to re-open the case for the first defendant to argue absolution from the instance.
Order
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- The late filing of the applicant’s heads of argument is condoned.
- There is no order as to costs in relation to the condonation application.
- The applicant’s application to re-open the case is dismissed with costs.
- The costs are consequent upon the employment of one instructing counsel and one instructed counsel and are subject to the provisions of Rule 32(11).
- The matter is postponed to 10 May 2023 at 8h30 for a status hearing.
- The parties shall file a joint status report no later than 05 May 2023 regarding additional supplementary closing submissions before the judgment, orally or in written format.
Reasons For Order
Counsel for the first defendant submitted that at the time of the trial, it was fit to close the case of the first defendant without further ado, but now, after the Supreme Court referred it back to be dealt with on the merits, the first defendants deemed it appropriate to argue on absolution from the instance. In accordance with what is contained in the heads of argument, he impressed on the court that the intention was not to call witnesses, but merely deal with absolution from the instance. He conceded that it will protract the proceedings, but that it was necessary for a complete record. His view was that it would not be sufficient for the first defendant to merely argue on the merits, without arguments on absolution, and that the plaintiff will not suffer prejudice which cannot be cured by a costs order and that the court can give directions regarding the further conduct of the matter.
Counsel for the plaintiff’s stance was that if the court grants the application to reopen the case and dismisses the absolution, the natural consequence would be that the first defendant can then present its case by calling witnesses. Counsel argued that such a situation should not be allowed. Counsel also argued that the first defendant had not made out a case as the founding affidavit made no factual allegations about why the witnesses were not called and why the court should now reopen the case. She articulated that the plaintiff would be inclined to argue before judgment, but that arguments on absolution are not necessary and it will only waste the court’s time. She stated that the Supreme Court’s finding that this matter be determined on the merits, does not add or detract anything to the application to reopen the case. She submitted that the first defendant must stand or fall on its decision to close its case without any witnesses at the time.
Per CLAASEN J:
Legal considerations
‘[9] The legal criteria for applications to reopen a case has been elucidated in Soltech CC v Swakopmund Super Spar (I 160/2015) [2017] NAHCMD 115 (18 April 2017) as follows:
‘(a) As a general rule, a party who has closed his or her case, cannot reopen it to lead further evidence.
(b) The court has the discretion to depart from the rule;
(c) There is less likelihood of this discretion being exercised the longer the trial progresses and a strong case will have to be made out therefore;
(d) The party seeking to reopen must show that proper diligence was used to procedure the evidence for the trial;
(e) The party must show that the evidence was not available before the closing of his or her case, or could not reasonably have been obtained; or, if it was indeed available, he or she should advance an acceptable explanation why it was not adduced before the closing of the case.
(f) If that party is taken by surprise during the trial and for that reason did not endeavor to obtain evidence or lead available evidence, he or she may be granted leave to reopen his case;
(g) The proposed evidence must be material;
(h) It is not required that, if believed, it would be practically conclusive;
(i) The evidence must not relate to a collateral issue;
(j) The court must consider the prejudice to the opposing party, for example, his or her inability to recall a witness;
(k) A case may be reopened at any stage before judgment; and
(j) Delay is an important consideration but it is not necessarily fatal to the application to reopen.’
[10] The authors, Herbstein and van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th ed p 906 para XIII, referred to the judgment of Du Plessis v Ackermann 1932 O.D.P.A 139 wherein the court distinguished between cases in which the application is made to lead further evidence: (a) where only one party has closed; (b) where both parties have closed; and (c) where the argument has been concluded. It was stated that, where both parties have closed their cases, the possibility of unfair disadvantage is increased but the court, in its discretion, may sanction the admission according to the circumstances.’
With regard to the instant case, where the first defendant at the time of trial, after the evidence of the plaintiff, elected to close its case. The first defendant did so without calling the defence witnesses who had filed witness statements. It did not apply for absolution from the instance at the time. Now, after having had some time to consider its position, the first defendant contends that it merely wants the case to be re-opened for the sake of presenting arguments on absolution from the instance. If that is indeed just for arguments to be made, the court stated that it is hard-pressed to see the need to reopen the case, as additional arguments before ‘final judgment’ can serve the same purpose. Such arguments can still poke holes in the plaintiff’s case. When asked about this, counsel for the first defendant did not provide a satisfactory rationale for wanting an opportunity merely to make arguments on absolution from the instance.
The court also stated that it shared the same opinion as that of counsel for the plaintiff insofar as there are inevitable consequences that flow from a reopening of a case. In this instance, should the case be reopened for the applicant to apply for absolution from the instance and if that application is dismissed, the natural consequence is that the first defendant will get another opportunity to present its case. That in turn may prompt the plaintiff to want to deal with issues that may arise as a result thereof, with disastrous consequences for the finalization of the matter.
Consequently, it was found that the first defendant had not made out a case for the court to re-open the case and the application was therefore dismissed with costs.