HAYES v BALDACHIN AND OTHERS 1980 ZLR 11 (G)

HAYES v BALDACHIN AND OTHERS 1980 ZLR 11 (G)

Citation 1980 ZLR 11 (G)

Case No Details not supplied

Court General Division, Salisbury

Judge Waddington, J

Heard 14th January, 1980; 15th January, 1980; 16th January, 1980; 23rd January, 1980

Judgment 23rd January, 1980

Counsel laintiff in person.

N M R Gardener with him B H Christie, for the defendants.

Case Type Civil Action

Annotations No case annotations to date

Flynote

Practice — O 9 R 62 of high Court (General Division) Rules, 1971 — withdrawal from action by plaintiff — when

Court may grant find D judgment in favour of defendant.

Costs — attorney and client costs — precipitate withdrawal from action and vexatious conduct by plaintiff — whether defendants entitled to attorney and client costs.

Headnote

Three times during the hearing of the action the plaintiff, who was appearing in person, E applied

unsuccessfully for its postponement sine die so that he could apply to the Governor for the

rescission of an order that the hearing be held in camera. On the third day of the hearing, when

his application was refused for the third time, he withdrew precipitately from the Court before

the closure F of his case and abandoned the action. Counsel for the defendants, having led

evidence, applied for final judgment in their favour.

Held that in the circumstances there was sufficient cause for the purpose of Order 9 Rule 62 of the

High Court (General Division) Rules, 1971, for the Court to exercise its inherent jurisdiction and

grant defendants final judgment G rather than absolution from the instance.

Held, further, that because the Plaintiff’s conduct in Court and his claim itself were vexatious and an

abuse of the Court’s process, costs on the attorney and client scale should be awarded against

him. H

Cases cited

Collins v Van der Merwe 1908 TS 1086;

Verkouteren v Savage 1918 AD 143;

Bosman v du Toit’s Executors 1937 CPD 209;

O’Brien v Nurick 1930 WLD 322;

Mahomed & Son v Mahomed 1959 (2) SA 688 (T).

Waddington J

Case information

Plaintiff in person.

N M R Gardener with him B H Christie, for the defendants. A

Judgment

Waddington J: The Plaintiff in this case claims $24 600 jointly and severally from the three

defendants who were all employees of the Posts and Telecommunications Corporation (hereinafter

called the Corporation). The claim arises in this way. Plaintiff was an employee of the Corporation

and as such was the subject of a confidential report on his B performance. The report was compiled

by the first defendant in collaboration with the third and fourth defendants. The action against

another defendant was withdrawn before trial. Plaintiff in his declaration alleges that the confidential

report contained statements defamatory of him. The defence raised, on behalf of the defendants,

was that the report enjoyed C qualified privilege. For his part, plaintiff alleged that the report was

untrue and made maliciously and that he was, therefore, entitled to damages.

This was an unusual case. On the first day of the trial the plaintiff, who D appeared in person,

applied for the postponement of the matter sine die. The application was made for this reason.

Before the trialon the 11th January, 1980, to be precisethe Secretary for Justice delivered to the

Registrar of the General Division a certificate issued in terms of section 4 (2) of the Emergency

Powers (Judicial and Other Proceedings) E Regulations, 1975, requiring the court to hold the trial in

camera and directing that no document requested or subpoenaed by the plaintiff should be made

available or transmitted to him unless a judge of the General Division had first examined such

document and was satisfied that it was reasonably necessary for the determination of the case that

it F should be made available or transmitted to plaintiff. The certificate also directed that no copies

of any such documents referred to above should be made and that all documents should be returned

to the Corporation. In his application, plaintiff stated that the evidence he would adduce would

disclose various corrupt practices in the Salisbury telephone exchange G and that it was vital in the

public interest to publicize those practices. In the event, the plaintiff eventually withdrew his

application and proceeded to present his case. After calling two witnesses he then elected to give

evidence himself. By the end of the first day of the trial plaintiff’s crossexamination by Mr

Gardener had commenced. It should also be H added that during the course of the first day of the

trial plaintiff asked the Court whether he would be entitled to approach His Excellency the Governor

in order to request the lifting of the direction contained in the certificate referred to above. He was

informed that it would be open to

1980 ZLR p13

Waddington J

him to do so. For the sake of convenience it should be explained that the powers which the

Secretary purported to exercise under the A regulations in question have been vested in His

Excellency the Governor in terms of section 4 of the Constitution (Interim Provisions) Ordinance,

1979, and that His Excellency has, in terms of section 6 of the same Ordinance, delegated those

powers to the Secretary for Justice. B

On the second day of the trial plaintiff renewed his application for a postponement sine die, stating

that a member of the staff of His Excellency the Governor had indicated that His Excellency would

be prepared to give consideration to his, the plaintiff’s, request. Not being satisfied that a

postponement sine die would be necessary for this purpose, C the Court granted an adjournment of

the matter until 2.15 p.m. that day and then again until 9.30 a.m. the following day to enable the

plaintiff to submit written representations to the appropriate authority in this regard. plaintiff stated

that he would be able to do so by the late afternoon on the 15th January. D

At 9.30 a.m. on the third day of the trial (the 16th January) plaintiff informed the Court that he

might expect a reply to his written representations by no earlier than the afternoon of the 17th

January. Plaintiff again applied for a postponement sine die reiterating his original reason E for

making the application and raising for the first time certain other grounds in support of that

application. After considering the application the Court dismissed it for the reasons contained in the

judgment of the Court given during the morning of the 16th January. Immediately the decision of

the Court was pronounced the plaintiff stated that he did not F wish to proceed with the trial and that

he would have nothing to do with a secret trial. He was enjoined to do nothing precipitate which

might prejudice his claim and the Court then explained to him what the consequences of his

withdrawal might be. He was informed that he might withdraw the action with the consent of the

defendants or close his case G or simply withdraw from the case. He was warned that if he simply

withdrew from the case the Court might grant absolution from the instance or possibly give a final

judgment in favour of the defendants. The ramifications thereof were explained to him in detail.

Plaintiff indicated that he would “rather die” than proceed with a secret trial and he then H withdrew

from the court room without further ado.

Mr Gardener then applied for leave to lead evidence on behalf of the defendants in order to rebut

the evidence of the plaintiff so that he could, in due course, apply for final judgment in favour of the

defendants. On

Waddington J

the authority of the decision of INNES CJ, in Collins v van der Merwe, 1908 TS 1086, defendants

were given leave by the Court to lead that evidence. In due course Mr Gardener closed his case and

applied A for final judgment in favour of the defendants. Rule 62 of the High Court (General Division)

Rules, 1971, provides:

“62. When on the calling of any case the defendant appears in court personally, or by his counsel, and the

plaintiff makes default, the defendant shall be absolved from the said suit or action, unless sufficient cause

to postpone B the same, or to make some other order therein, appears to the court.”

In the circumstances of this case it was, in my opinion, open to me to grant final judgment in favour

of the defendants. In the case of Verkouteren v Savage, 1918 AD 143 at page 144, INNES, CJ, is

reported as saying: C

“I assume the correctness of the principle laid down in Collins v van der Merwe (supra), for there must be

an inherent right in a Supreme Court, under special circumstances, to finally determine an action with

which the plaintiff neglects to proceed. But that right should be carefully exercised. The circumstances in

Collins’ case were very special.” D

Then in Bosman v du Toit’s Executors, 1937 TPD 209 at 210, DAVIS, J, stated:

“Rule of Court No. 177 is as follows: ‘When on the calling on of any cause, the Defendant shall appear in

Court personally, or by his counsel, attorney, or agent, and the Plaintiff shall make default, the said

Defendant shall be E absolved from the said suit or action, unless where sufficient cause to postpone the

same, or to make other order therein, shall appear to the Court.’ It is difficult to see what further

alternative could be open to the Court than either to take the ordinary course of granting absolution or,

instead of doing that, give the plaintiff further time by postponing the case or to give the plaintiff no

further opportunity by giving judgment for, the defendant. It F seems to me that under our Rules provision

is specially made that where there is sufficient cause shown the Court may grant judgment for the

defendant. But that that is in any case, apart from the rule, the inherent prerogative of the Court is shown

by the case of Collins v van der Merwe (1908 TS 1086) which has been commented on and followed by the

Appellate Division in Verkouteren v Savage (1918, AD 143). A case has also been G cited to me from our

own Court, Kriel v van der Merwe, which was decided on the 16th October, 1924, where this course was

adopted. In Verkouteren v Savage (supra), INNES, CJ, pointed out that the right finally to determine an

action in these circumstances is one that should be carefully exercised, and it is suggested that there

should be special circumstances. On my reading of Rule 177, that Rule requires very much the same thing,

because it is only H where ‘sufficient cause’ is shown that the Court can depart from the ordinary procedure

laid down by that Rule of granting absolution from the instance.

I have to consider in this case whether such sufficient cause has been shown to me as to warrant my

acceding to the request of the defendants.”

Waddington J

In the case of O’Brien v Nurick, 1930 WLD 322, SOLOMON, J, considered an application for final

judgment in the following A circumstances. Plaintiff’s counsel on the first day of the trial applied for

a postponement sine die on the strength of a medical certificate over the signature of a doctor,

which certificate was to the effect that the plaintiff was suffering from a good deal of nervous shock

and pain and that in the opinion of the doctor he should have complete rest in bed for at B least one

week. Counsel for defendant requested that the doctor should appear in the witness box for cross-

examination and as a result of the crossexamination it transpired that the plaintiff, although he had

had a tooth extracted the day before the trial, was in a fit condition on the day of the trial to appear

in Court and give his evidence. When the C application for a postponement was refused plaintiff’s

counsel withdrew from the case. Defendant’s counsel was not satisfied with absolution from the

instance on the plaintiff’s claim, but asked leave to call the defendant on the strength of Collins v

van der Merwe (supra) so that on his evidence he might get final judgment. The judgment of

SOLOMON, J, then D reads:

“Now I have read the judgment of the CHIEF JUSTICE in that case, and the principle underlying the

judgment appears to be that there is no objection to granting an application such as Mr Rathouse has

made, provided it is clear to the Court that the plaintiff is not in default through circumstances E beyond his

control. If he is in default through circumstances beyond his control, as for instance the plaintiff would

have been today had he been in truth too ill to attend, of course no Court would grant final judgment, but

I am quite satisfied from the evidence of Dr. Myerson that the plaintiff is not in default through

circumstances beyond his control but is making a deliberate default, and this finding is confirmed by the

Act that the plaintiff’s counsel has not been instructed for trial. In the circumstances I think the procedure

F in Collins v van der Merwe (supra) may be adopted here, and having heard the defendant’s evidence I

give judgment for the defendant . . . “

The cases which I have mentioned above all concerned matters where the plaintiffs themselves

were in default on the first day of the trials. The G fact that the plaintiff in the instant case was

originally present and had commenced to lead evidence, including his own evidence, does not, in my

view, detract in any way from the proper application of the principle in the cases referred to above

to the circumstances of the present case. In considering the circumstances of this case I must

satisfy myself that there is H “sufficient cause” to grant final judgment in favour of the defendants.

In this case plaintiff was clearly able to continue prosecuting his action on and after the third day of

the trial. He was actually under cross examination and was physically able to proceed. He had in

fact proceeded with the trial on its first day despite the fact that the trial was then

Waddington J

being held in camera. It was only on the third day of the trial that he said that he was not prepared

to participate in a secret trial. The situation on the third day was no different from the first day.

Furthermore, A plaintiff knew that His Excellency the Governor was prepared to consider his

application to lift the certificate of the Secretary for Justice, that His Excellency was in possession of

his written submissions and that he might receive a reply as early as the afternoon of the fourth day

of the trial. In the course of the judgment of the Court on plaintiff’s B application for a postponement

sine die it was remarked that plaintiff seemed to be intention ensuring that the defendants and the

Corporation be exposed to public opprobrium following the revelation of plaintiff’s allegations

concerning the existence of malpractices in the Salisbury telephone exchange which forms part of

the Corporation’s various premises. C Plaintiffs inconsistent attitude towards continuing with the

prosecution of his action on the third day of the trial fortifies me in this belief. He originally, as I

have said, was prepared to commence leading his evidence; no new circumstances beyond the

plaintiffs control had arisen such as would have justified granting a postponement. When he

withdrew from D the case he did so deliberately for the sole reason apparently that he had not

succeeded in obtaining a postponement sine die. His conduct smacked of petulance. The defendants

were ready for trial and plaintiff on the first day had not indicated that he was in any way

unprepared to commence the trial. He did, however, suggest in his renewed application on E the

third day of the trial that the presentation of his case would be prejudiced in this way. If the trial

were to be held in open court, he argued, members of the public who had paid bribes to members

of the Corporation for various reasons would, on reading the Press reports of the trial, be induced to

offer themselves to plaintiff as witnesses in order to substantiate F plaintiff’s allegations regarding

malpractices in the Salisbury telephone exchange. I consider that there was no merit in this

submission and dealt with it in my judgment on the application for a postponement on the morning

of the third day of the trial. G

In my view all these circumstances constitute sufficient cause for departing from the ordinary

procedure laid down in Rule 62 of the Rules of Court of granting absolution from the instance.

[The learned Judge then dealt with the merits of the action and continued:] H

I find that, although the defendants had no reason for holding the plaintiff in any esteem, they bore

no malice towards him in the compilation of Exhibit 15. Their communication of the contents of the

report was, in

Waddington J

my view, within the privilege they claim. The plaintiff failed to prove affirmatively that the

defendants were activated by malice in reporting in the A manner they did.

I now turn to the question of costs. There is no question that costs should, in the ordinary course of

events, be awarded to the defendants. But Mr Gardener has argued that costs should be awarded

against B the plaintiff on the attorney and client scale. In seeking this special order, Mr Gardener

relies on two main grounds.

First, he points to the manner in which the plaintiff conducted himself in court. While the plaintiff

was testifying, the following occurred: C

“MR HAYES: Yes, my Lord. The impression I get from the confidential report is that there are no reports in

existence which in any way qualify it. Soon after I was asked totold to leave the international exchange, I

was then sent to Gatooma as a relief operator, so that I could cause pandemonium down there. D

MR JUSTICE WADDINGTON: Q I beg your pardon? A I was sent to Gatooma telephone exchange so that I

could cause havoc in the Gatooma telephone exchange, because that is the opinion my superiors had of

me.

Q. Is that a facetious remark or is it intended seriously? A It is a serious E remark.

Q. You were sent to Gatooma to cause pandemonium?

A. Yes. It was thought that as I was a man of disruptive tendencies I would cause pandemonium on

the Gatooma telephone exchange. If your lordship is bored with me or my methods I would like your

lordship to tell me why. F

MR JUSTICE WADDINGTON: I must warn you . . . “

Plaintiff’s intonation when uttering the words underlined above was impertinent as was the

statement itself. Plaintiff was, therefore, warned G of the consequences of impertinence and

contemptuous behaviour towards the Court. Mr Gardener also draws attention to the fact that the

plaintiff, having first abandoned his application for a postponement sine die and having proceeded to

prosecute his action for two days, then left the courtroom when a subsequent similar application

failed in circumstances H identical to those obtaining at the time of the first application. I agree with

Mr Gardener that this conduct was vexatious and an abuse of the process of the Court and justifies

the making of a special order. (See Mahomed and Son v Mahomed, 1959 (2) SA 688 (T) at page

692G.)

Waddington J

Mr Gardener also argues that plaintiff’s claim was itself vexatious. The uncontradicted evidence led

on behalf of the defendants demonstrates clearly that plaintiff had for some time before the

confidential A report which forms the substance of plaintiff’s claim been considered inefficient, rude

and a disruptive element in the Salisbury and Gatooma telephone exchanges. Of this, furthermore,

he had been made aware previously. Notwithstanding this, he has made far reaching and serious

accusations, particularly in regard to the first defendant, of malice in the compilation B of the

confidential report. He stated that no one could honestly have believed in the truth of the report. It

was inconsistent with all the available evidence and it was compiled in terms adverse to him in

retaliation for criticisms he had levelled against the defendants in a report plaintiff had previously

made to the PostmasterGeneral. (Exhibit 3 refers.) C In the light of the evidence given by first

defendant I am satisfied that there was absolutely no foundation for plaintiff’s accusation that first

defendant had been activated by malice. So far as the other two defendants are concerned, Exhibit

3 does not name them and no other cogent evidence was adduced at all that either of them knew or

must have known D that they had been seriously criticised by plaintiff on any occasion. There is no

justification, therefore, for the view that either the second or third defendants had any reason for

acting maliciously visávis plaintiff. In my view, the plaintiff himself has been guilty of the very

conduct of which he has complained. I therefore have no hesitation in finding that a E special order

should be made on the ground that plaintiff has brought these proceedings vexatiously. It is

unnecessary to consider Mr Gardener’s remaining submission which was based on the inconvenience

occasioned to the defendants by the bringing of this action. F

In conclusion reference must be made to the certificate of the Secretary for Justice. Since this

judgment mainly concerns matters of procedure and has not canvassed any matter the disclosure of

which would be inimical to the public interest, I do not consider that it is incumbent on me to

suppress its terms from public perusal. G

Judgment is accordingly given for the defendants with costs on the attorney and client scale.

Coghlan, Welsh and Guest, attorneys for the defendants. H