Sublime Technologies (Pty) Ltd v Jonker and Wilkinson

Sublime Technologies (the appellant) was a company processing mineral ore in Vereeniging. The two respondents, Jonker and Wilkinson, were senior employees (financial manager and logistics manager respectively). The appellant sued them for approximately R4.2 million, alleging they dishonestly presented fictitious invoices in the names of Econo Hire and Nyala Contractors and induced the appellant to pay into bank accounts controlled by the respondents or their associates. Bank statements obtained from a police docket were critical to the appellant's case. After a pre-trial dispute over discovery of bank statements, the appellant served subpoenas on bank managers. At the calling of the roll, the Deputy Judge President required the appellant to undertake that if the trial did not finish within the estimated three days, the matter would be postponed sine die, proceed de novo, and the appellant would pay costs on an attorney-client scale. During trial, the respondents objected to the bank statements on the ground that the appellant had not complied with the 10-day notice requirement under section 30(1) of the Civil Proceedings Evidence Act 25 of 1965. The trial judge upheld the objection. The appellant then applied for a postponement to comply with the notice requirement. The trial judge granted the postponement but ordered the appellant to pay wasted costs on a punitive (attorney-client) scale.

• Whether the trial court exercised its discretion judicially in awarding wasted costs arising from a postponement on a punitive scale
• Whether costs occasioned by a postponement should be reserved for later determination when the trial court would be in a better position to assess fault
• Whether the appellant's undertaking regarding trial duration applied to a postponement caused by evidentiary objections rather than time estimation errors
• The propriety of requiring a party to give an undertaking to pay punitive costs as a condition for access to court

The appeal was upheld with costs. The order of the North Gauteng High Court was set aside and substituted with: 'The matter is postponed sine die. The wasted costs occasioned by the postponement shall stand over for later determination.'

The binding legal principles established are: (1) A party is not necessarily 'responsible' for a postponement merely because they apply for one; responsibility depends on fault or default. (2) When a trial court is likely to be in a better position than the court hearing the postponement application to ascertain the facts and decide who should be liable for costs, the salutary rule is that costs should be reserved for later determination. (3) An undertaking to pay costs if a trial does not finish within estimated time is triggered by inadequate time estimation, not by a postponement for other reasons such as evidentiary objections that prevent the trial from commencing. (4) A court fails to exercise its discretion judicially when it awards immediate punitive costs for a postponement without considering whether the trial court would be better positioned to assess fault after hearing all the evidence and determining the merits of the underlying dispute.

The Court made important non-binding observations about court practices in the North Gauteng High Court: (1) The practice requiring trials exceeding five days to be specially allocated, and the inflexibility of refusing to allocate trials unless counsel gives firm duration undertakings, may lead to serious prejudice to litigants and is 'highly prejudicial'. (2) Whether it is within the power of court to order that a part-heard trial is a nullity is doubtful. (3) Instructing a trial judge to cease hearing a matter once seized of it is an unacceptable interference with judicial independence. (4) Imposing an undertaking to pay costs, especially on a punitive scale, in the event of counsel's estimate turning out to be incorrect, is 'undesirable'. The Court also noted that section 15(4) of the Electronic Communications and Transactions Act 25 of 2002 has been described as 'controversial', but expressly declined to analyze it in detail as it was unnecessary for the decision.

This case is significant for establishing important principles regarding costs orders on postponements in South African civil procedure. It reinforces that courts should exercise restraint in making immediate costs orders when the trial court will be better positioned to assess fault after hearing all evidence. The judgment criticizes the practice of requiring undertakings to pay punitive costs as a condition for trial allocation, describing it as undesirable and potentially an unacceptable interference with judicial independence and access to courts. It clarifies the scope of undertakings regarding trial duration and emphasizes that liability for postponement costs depends on genuine fault, not mere formal non-compliance when the underlying circumstances may justify the litigant's conduct. The case provides important guidance on the proper exercise of judicial discretion in costs matters and the appropriateness of reserving costs for later determination.