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[2016] ZASCA 31
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Bunton and Another v Coetzee and Another (20794/2014) [2016] ZASCA 31 (23 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 20794/2014
In
the matter between:
ESTEE
BUNTON
FIRST APPELLANT
PIETER
BUNTON
SECOND APPELLANT
and
W
A COETZEE
FIRST RESPONDENT
AUTO
& GENERAL INSURANCE CO LTD
SECOND RESPONDENT
Neutral
citation
:
Bunton v Coetzee
(20794/2014)
[2016]
ZASCA 31
(23 March
2016)
Coram
:
Navsa ADP, Tshiqi, Seriti and Swain JJA and Fourie AJA
Heard
:
14 March 2016
Delivered:
23 March 2016
Summary:
Civil
Procedure – agreement by parties aimed at achieving inexpensive
and expeditious completion of litigation – high
court
erroneously refusing to permit agreed procedure.
ORDER
On
appeal from:
Gauteng Division of the High
Court, Pretoria
(Khumalo J with Tlhapi J and
Mushasha AJ concurring, sitting as court of appeal).
1
The appeal is upheld.
2
The second respondent, Auto & General Insurance Co Ltd is ordered
to pay the costs of appeal of the first appellant, Estee
Bunton and
the second appellant, Pieter Bunton.
3
The order of the full court is set aside and replaced with the
following order:
‘
(a)
The appeal is upheld.
(b)
The second respondent, Auto & General Insurance Co Ltd is ordered
to pay the costs of the first appellant, Estee Bunton
and the second
appellant, Pieter Bunton.
(c)
The order of the trial court is set aside and replaced with the
following order:
‘‘
The
third party, Auto & General Insurance Co Ltd, is ordered to
indemnify the first defendant, Estee Bunton and/or the second
defendant, Pieter Bunton, in the amount of R80 000 plus legal
costs, in respect of the claim of the plaintiff, W A Coetzee.
The
third party is ordered to pay the costs of the first and second
defendants.’’’
JUDGMENT
Swain
JA
(Navsa
ADP, Tshiqi and Seriti JJA and Fourie AJA concurring):
[1]
This appeal has its
origins in a collision which took place on 26 June 2001 between a
motor vehicle driven by the first respondent,
Mr W A Coetzee and a
motor vehicle driven by the first appellant, Ms Estee Bunton. The
motor vehicle driven by Ms Bunton was owned
by her father the second
appellant, Mr Pieter Bunton and insured by him with the second
respondent, Auto & General Insurance
Co Ltd (Auto & General).
[2]
In terms of the
schedule to the policy of insurance, Ms Bunton was specified as the
regular driver of the motor vehicle in question.
Auto & General
undertook to compensate the insured, Mr Bunton, against any damage
caused to another person’s property
where the regular driver,
Ms Bunton was responsible in law for the damage caused by the
collision.
[3]
Mr Coetzee as
plaintiff, instituted action against Ms Bunton as defendant, alleging
that she was the sole cause of the collision.
He claimed that his
vehicle was damaged beyond economical repair and she was accordingly
obliged to make payment of the sum of
R116 000 to compensate him
for his loss. Ms Bunton filed a plea denying that she was the sole
cause of the collision and in
turn alleged that Mr Coetzee was the
sole cause. Together with the plea a counterclaim was filed in which
Mr Bunton was reflected
as the plaintiff in reconvention. Mr Bunton
then served a Third Party Notice upon Auto & General claiming an
indemnity in respect
of any damages which he and / or Ms Bunton might
be ordered to pay to Mr Coetzee. In the Third Party Notice it was
alleged that
‘the defendant is Pieter Bunton’ which Auto
& General simply denied in its plea. If Auto & General wished
to
object to the procedure adopted by Mr Bunton, it should have
served a notice in terms of rule 30 of the Uniform Rules specifying
the irregularity complained of. By pleading and not doing so, Auto &
General took a further step in the proceedings and was
precluded in
terms of rule 30(2)
(a)
from thereafter objecting to the procedure. If Auto & General
wished to challenge the locus standi of Mr Bunton to join it
as a
third party, it should have raised this expressly by way of a special
plea. Mr Coetzee in his plea to the counterclaim denied
that Mr
Bunton had legal capacity to institute a counterclaim, as he was not
a party to the proceedings. This resulted in a replication
being
filed by Mr Bunton in which he alleged that Mr Coetzee had agreed
during October 2002, that he could institute a counterclaim
despite
the fact that he was not a party to the proceedings and that the
Apportionment of Damages Act 34 of 1956 would apply to
both the
claims of Mr Coetzee and the counterclaim of Mr Bunton. Mr Coetzee
thereafter accepted that such an agreement had been
reached.
[4]
A rule 37 pre-trial
conference was thereafter held attended by the legal representatives
of all of the parties. The minutes of the
conference that were signed
by the representatives of Mr and Ms Bunton, as well as the
representatives of Auto & General, record
that it was agreed
between Mr Coetzee and Mr and Ms Bunton that Mr Bunton was permitted
to claim his damages by way of a counterclaim.
It also recorded that
he joined Auto & General on the basis of a policy of insurance,
in terms of which Auto & General
was obliged to indemnify him and
/ or Ms Bunton against the claim of Mr Coetzee. In response Auto &
General simply denied that
it was liable to indemnify Mr / Ms Bunton
and did not record any objection it had to Mr Bunton’s right to
join it as a third
party and himself to be a party to the litigation.
It was also agreed by the appellants that Mr Coetzee was entitled to
payment
of the sum of R80 000 with costs, without opposition by
the representatives of Auto & General. In the light of the fact
that the only substantive defence raised by Auto & General was
that proper notice was not given to it in terms of the policy
by Mr
Bunton, which defence was revealed in evidence to be groundless, it
is difficult to see why at the trial Auto & General’s
counsel sought to persuade the trial court (Motata J) that Mr Bunton
was not properly before the court. The accident occurred almost
15
years ago and has spawned a great deal of litigation in the interim,
over the princely sum of R80 000. Tellingly, however,
at the
final hurdle, namely the present appeal, Auto & General chose to
abide the outcome.
[5]
When at the
commencement of the trial, counsel for Auto & General submitted
that Mr Bunton was not a party to the proceedings
and was not
entitled to file a counterclaim, or to join Auto & General as a
third party, counsel for Mr Bunton responded by
stating that Auto &
General had failed to challenge the procedure in terms of rule 30, or
had failed to ‘except’
to its joinder and was not
entitled to challenge Mr Bunton’s agreed status as a party to
the proceedings.
[6]
The trial court (Motata
J) however made no reference in its judgment to the issue of whether
Auto & General had agreed to this
procedure, or had failed to
object to it in terms of rule 30, or had failed to challenge Mr
Bunton’s locus standi and decided
the case simply on the basis
that the procedure adopted by the parties was not permitted by the
Uniform Rules of Court. The claim
by Mr Bunton and / or Ms Bunton to
be indemnified by Auto & General in the agreed amount of R80 000,
was accordingly dismissed
with costs.
[7]
Leave to appeal to the
full court was granted to Mr and Ms Bunton by Van der Merwe J in the
absence of Motata J, as he was indisposed.
Leave was granted on the
basis that the minutes of the rule 37 Conference had defined the
issues between the parties. Van der Merwe
J stated that he could not
understand why Motata J had gone beyond the agreement between the
parties and non-suited Mr and Ms Bunton.
He was accordingly satisfied
that there was a reasonable prospect another court may come to a
different conclusion.
[8]
The appeal court
(Khumalo J with Tlhapi J and Mushasha AJ concurring) referred to the
appellants’ (Mr and Ms Bunton) allegation
that the trial court
erred in ignoring the agreement between the parties as recorded in
the minutes of the rule 37 Conference.
It also referred to the fact
that Auto & General in their plea to the Third Party Notice
clearly stipulated that Mr Bunton
lacked legal capacity to
counterclaim as he was not a defendant in the action. However, as
pointed out above, the plea of Auto
& General simply denied that
Mr Bunton was a defendant, but it did not expressly challenge his
locus standi by way of a special
plea. Indeed it appears to have
acquiesced in the agreement. It noted that Mr Coetzee had not signed
the rule 37 Minutes and that
this deficiency had not been explained.
It was quite clear, however, from the record of the proceedings
before the trial court,
that Mr Coetzee did not participate in those
proceedings, because his claim had been settled in accordance with
the agreement set
out in the rule 37 Minutes. It also noted that the
rule 37 Minutes did not record any agreement regarding the Third
Party Notice.
However, as pointed out above, all that Auto &
General denied at the conference was that it was obliged to indemnify
Mr Bunton
and / or Ms Bunton, but it did not record any objection to
the procedure adopted by Mr Bunton in joining it as a third party or
raise any challenge to his locus standi to do so.
[9]
The court a quo made no
finding on the issue that Auto & General agreed to the procedure,
or should be held to have done so.
It decided the matter on the basis
that Mr Bunton lacked locus standi to sue and be sued. It held that
locus standi was a matter
of law and could not be conferred by
consent or condonation. Accordingly he was not entitled to invoke the
provisions of rule 13
to join Auto & General as a third party to
the proceedings. It held that the trial court was entitled to go
beyond the alleged
agreement between the parties ‘as it needed
to preside over a due process’ and ‘parties to legal
proceedings
could not by agreement compel a court to decide a case on
an incorrect legal basis’. The appeal was accordingly dismissed
without any order as to costs. The present appeal which Mr Coetzee
and Auto & General do not oppose, is with the special leave
of
this court.
[10]
In my view, the court a
quo erred in defining the locus standi of Mr Bunton as the issue that
the parties’ agreement sought
to address. In terms of the
policy of insurance that Mr Bunton concluded with Auto & General,
he had locus standi to claim
an indemnity from it. He also had locus
standi to claim damages from Mr Coetzee resulting from damage caused
to his motor vehicle,
as a result of the negligent driving of Mr
Coetzee. The parties’ agreement was aimed solely at the
procedure to be followed.
[11]
In
Federated
Trust Ltd v Botha
1978 (3) 645 (A) at 654D it was stated that:
‘
The
court does not encourage formalism in the application of the Rules.
The Rules are not an end in themselves to be observed for
their own
sake. They are provided to secure the inexpensive and expeditious
completion of litigation before the courts.’
It
is quite clear that the agreement concluded between the parties did
not prejudice any party and had as its object, the inexpensive
and
expeditious completion of the litigation between all of the parties.
[12]
The trial court and the
court a quo accordingly erred in ignoring the agreement concluded
between the parties and dismissing the
claim of Mr Bunton and / or Ms
Bunton to be indemnified by Auto & General in the sum of R80 000
plus costs.
[13]
The following order is
granted:
1
The appeal is upheld.
2
The second respondent, Auto & General Insurance Co Ltd is ordered
to pay the costs of appeal of the first appellant, Estee
Bunton and
the second appellant, Pieter Bunton.
3
The order of the full court is set aside and replaced with the
following order:
‘
(a)
The appeal is upheld.
(b)
The second respondent, Auto & General Insurance Co Ltd is ordered
to pay the costs of the first appellant, Estee Bunton
and the second
appellant, Pieter Bunton.
(c)
The order of the trial court is set aside and replaced with the
following order:
‘‘
The
third party, Auto & General Insurance Co Ltd, is ordered to
indemnify the first defendant, Estee Bunton and/or the second
defendant, Pieter Bunton, in the amount of R80 000 plus legal
costs, in respect of the claim of the plaintiff, W A Coetzee.
The
third party is ordered to pay the costs of the first and second
defendants.’’’
K G
B Swain
Judge
of Appeal
Appearances:
For
the First and Second Appellant:
G B Botha SC
Instructed
by:
G P
Venter Attorneys, Pretoria
Honey
Attorneys, Bloemfontein
For the First and Second
Respondent: No appearance
Instructed
by:
Savage
Jooste & Adams Inc, Pretoria