How to find a divorce lawyer in Cape Town, South Africa

Postponements in divorce trials

It frequently happens in divorce cases that one of the parties tries to stall the divorce by constantly seeking a postponement. This is most frustrating for the party who really wants the divorce quickly. In certain instances you as attorney can argue against the postponement but in other instances the attorney can simply do nothing at all.

I have recently had two matters where postponements were sought by the other side: In the one matter I was acting for the male. The matter had been set down for trial. Prior to the trial we had had a roundtable with all parties and the matter had been settled, or so we thought. An agreement had been reached that the other side would draft a consent paper and forward it to us for perusal. Then all of a sudden the opposing attorney withdrew. Either her client had not paid her or her client was no longer happy with the settlement. On the day of the trial all of a sudden a new attorney introduced himself to me at the court and explained that he was acting for my client’s wife. The new attorney requested a postponement and the court allowed it as this man had only been recently instructed and had not had an adequate opportunity to peruse the content of the court file. The court had to allow the postponement, as it was for a legitimate reason. The new attorney had undertaken that day at the court to forward me with settlement proposals, which he never did. I could never get hold of him either and he never returned my calls. I then set the matter down a second time for trial. At the second set down date the new attorney then arrived at court and explained that his client was sick and couldn’t attend court. A legitimate medical reason, like having a new attorney, is also a valid reason for requesting a postponement, and the courts usually accept it. Eventually on the third occasion at court the other side ran out of reasons for seeking a postponement, and the divorce went through.

It sometimes however happens though also that you can argue against the application for a postponement. If you as attorney can give reason to the court that there will be a huge prejudice suffered if a postponement is granted, the court may not allow the postponement. For example, if your client had to travel from a different province to attend the hearing, the prejudice suffered would be large as if a postponement was allowed our client would later have to travel down again at his expense to attend a hearing.

Another aspect of a postponement is the costs aspect. Who pays the wasted costs of attorneys having to attend court and the matter is postponed? If you are successful in proving that the postponement is due to the fault of the other side, you would normally be successful in asking the other side to pay your legal fees.

Sometimes the attorneys agree that the costs of the postponement should be “costs in the cause”, which means that no order should be made as regards costs. The costs would then stand over for determination at a later stage at the hearing of the main action.

Arguing for and against postponements is an interesting aspect of the law, and happens frequently. The courts will only however allow two or three postponements before eventually hearing the matter. The courts normally take the view that “justice delayed is justice denied” and that everyone is entitled to a speedy trial.

article written by Cape Town lawyer, Peter M Baker


married overseas annulmentreasons for divorce