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[2011] ZAGPJHC 10
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Orion Real Estate Limited v Cobra Watertech (Pty) Limited and Others In re: Orion Real Estate Limited v Cobra Watertech (Pty) Limited and Others (28166/2007) [2011] ZAGPJHC 10 (14 March 2011)
IN
THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
REPORTABLE
CASE
No. 28166/2007
DATE:
14/03/2011
In
the matter between:
ORION
REAL ESTATE LIMITED
.........................................
Plaintiff
and
COBRA
WATERTECH (PTY) LIMITED
...................................
Defendant
and
GROUP
FIVE BUILDING (PTY) LIMITED
..................
First
Third Party
EPE
CATER AND ASSOCIATES
.............................
Second
Third Party
JUSTUS
VAN DER HOVEN
CC
..................................
Third
Third Party
INTERNATIONAL
PLUMBERS (PTY) LIMITED
.......
Fourth
Third Party
In
re :-
ORION
REAL ESTATE LIMITE
.........................................
Applicant
and
COBRA
WATERTECH (PTY) LIMITED
.....................
First
Respondent
GROUP
FIVE BUILDING (PTY) LIMITED
.............
Second
Respondent
EPE
CATER AND ASSOCIATES
..............................
Third
Respondent
JUSTUS
VAN DER HOVEN
CC
..............................
Fourth
Respondent
INTERNATIONAL
PLUMBERS (PTY) LIMITED
........
Fifth
Respondent
_____________________________________________________________________________
JUDGMENT
_____________________________________________________________________________
WILLIS J:
[1] The applicant
seeks what is, in effect, a retrospective order. The order sought in
the applicant’s Notice of Motion reads
as follows:
“Granting
the Applicant leave to have served third party notices on the Second
to Fifth Respondents as follows:
Second
Respondent: 8 July 2008
Third Respondent:
20 August 2008
Fourth
Respondent: 16 October 2008
Fifth Respondent:
25 July 2008.”
The reason for the
casting of the order in the somewhat unusual form of leave being
granted to the applicant “to have served”
the third
party notices is that the applicant faces certain difficulties with
prescription if the order does not have a retrospective
operation.
In bringing the application, the applicant purports to rely on Rule
13 (3) (b), alternatively Rule 27 of the Uniform
Rules of Court. The
application has been opposed by the second, third and fifth
respondents who have filed answering affidavits.
Although the fourth
respondent has filed a notice of intention to oppose, it has filed no
answering affidavit. The fourth respondent
filed exceptions to the
applicant’s third party notice, but did nothing further. The
first respondent, who is the defendant
in the action between itself
and the present applicant, has adopted a position of indifference in
these third party proceedings.
[2] During
November 2007 the applicant commenced action against the first
respondent, Cobra Watertech (Pty) Limited (“Cobra”),
for
a claim of some R3,7 million being the alleged damages which have
arisen from a water leak which occurred at the applicant’s
business premises on 23
rd
November, 2006. In its summons, the applicant, as plaintiff, alleges
that the water leak was caused by a complete radial separation
fracture of the bonnet housing of a gate valve manufactured by Cobra.
Accordingly, so the plaintiff alleges, Cobra was negligent.
Cobra, as
defendant, delivered its plea on 23
rd
January, 2008. Cobra denied liability on the basis that although it
manufactured the particular gate valves in question, these
were
sprinkler valves designed, manufactured and intended to be used for
purposes other than plumbing in the water supply pipeline
to any
building; only gate valves approved by the South African Bureau of
Standards (SABS) may lawfully be used in water supply
pipelines to a
building; the valves in question were not SABS approved; Cobra does,
however, manufacture SABS approved valves which
can be used for water
supply pipelines to a building; whoever may be at fault
in
casu
,
it was accordingly not Cobra. Pleadings closed on 13
th
February, 2008. After the pleadings had closed between the applicant
and Cobra, the applicant delivered a third notice to the second
respondent on 8
th
July, 2008, to the fifth respondent on 25
th
July, 2008 and to the third respondent on 20
th
August, 2008. These notices were therefore, in each instance, served
several months after the close of pleadings.
[3] The
subsequent chronology of events in this case is significant. On 5
th
September, 2008, the second respondent’s attorney
had a telephone conversation with Cobra’s attorney. Cobra’s
attorney informed the second respondent’s attorney
that the
pleadings between the applicant and Cobra in the matter had closed.
On 14
th
October, 2008 the applicant delivered a notice of bar to the second,
third and fifth respondents. On that day the second respondent’s
attorneys informed the applicant’s attorneys in a telephone
conversation that the notice of bar was irregular because the
third
party notice was delivered after pleadings had closed. This was
followed up with a letter from the second respondent’s
attorneys to the applicant’s attorneys the very next day
recording this advice and protesting that the notice of bar was
accordingly of no effect. On the day before, the third and fifth
respondents’ attorneys had sent a similar letter to the
applicant’s attorneys. In that letter the third and fifth
respondents’ attorneys pertinently advised that the notices
of
bar were irregular owing to the applicant’s failure to obtain
the leave of the court prior to serving the notices. On
17
th
October, 2008 it was agreed in a telephone conversation between the
attorneys acting for the applicant and the second respondent
that the
applicant’s proceedings against the second respondent would be
held in abeyance. On 11
th
November, 2008 the applicant’s attorneys sent a telefax to the
second respondent’s attorneys recording that the applicant
held the view that it could apply for a condonation for delivering
the third party notice after the close of pleadings or it could
issue
a separate summons against the second to fifth respondents and then
consolidate the actions. The applicant’s attorneys
requested
that second respondent agree to condonation being granted
accordingly.
[4] On 15
th
December, 2008, the second respondent’s attorneys sent a letter
to the applicant’s attorneys requesting that they provide
reasons for the service of the third party notice after the close of
pleadings in order that instructions could be taken from client
in
the matter. During the whole of 2009, the applicant took no further
steps in the matter. On 15
th
January, 2010 the second respondent’s attorneys received a
letter from the applicant’s new attorneys of record recording
that they would shortly be substituting themselves and that they had
been instructed to apply for condonation for the delivery
of the
third party notice after the close of pleadings. On 18
th
January, 2010 the second respondent’s attorneys sent a letter
to the applicant’s new attorneys recording that an application
to obtain leave to deliver the third party notice on the second
respondent after the close of pleadings would serve little effect
because the applicant’s claim against the second respondent had
prescribed. The present application before this court was
served on
the second, third and fifth respondents on 16
th
September, 2010.
[5] The only
explanation for the failure to serve the third party notices before
the close of pleadings is laconically stated as
being that, after the
receipt of the plea, the applicant realized that third parties might
possibly be liable for the applicant’s
damages. It is not clear
whether an attempt was made by the applicant to place the blame on Mr
McCarthy of McCarthy Cruywagen,
the applicant’s attorney in
this matter until November 2009. The applicant, in its founding
affidavit, refers to delay “occasioned
by McCarthy in the
preparation and finalising of the third party notices” but
elsewhere, somewhat cryptically and elliptically,
attributes the
lapse of time between the close of pleadings and the service of the
third party notices to time-consuming analyses
of various agreements
and expositions of the involvement of the respondents, none of which
have been annexed in this application.
Moreover, the lapse of time
between the service of the third party notices and the service of
this application is left without
any explanation whatsoever.
[6]
Rules
13(3)(a) and (b) of the Uniform Rules of Court read as follows:
“
13 Third
Party Procedure
.
. .
(3) (a) The
third party notice, accompanied by a copy of all pleadings filed in
the action up to the date of service of the notice,
shall be served
on the third party and a copy of the third party notice, without a
copy of the pleadings filed in the action up
to the date of service
of the notice, shall be filed with the registrar and served on all
other parties before the close of pleadings
in the action in
connection with which it was issued.
(b) After
the close of pleadings, such notice may be served only with the leave
of the court.
”
Rule
13(3)(b) is peremptory in its terms, constituting a bar to a party
delivering a third party notice after the close of pleadings,
without
obtaining the leave of the court. I agree with counsel for the
respondents that this entails that a party wishing to deliver
a third
party notice must obtain the leave of the court prior to the delivery
of the third party notice: a party cannot, in terms
of this Rule,
seek retrospective condonation for an irregularly served third party
notice – i.e. such a notice served after
the close of pleadings
but without the antecedent leave of the court. In other words, the
service may take place after the close
of pleadings only with the
leave of the court; the service cannot take place after the close of
pleadings without the leave of
court, which leave is only to be
obtained later. It seems to me to be plain enough that the leave of
the court is a “condition
precedent” for service and not
an
imprimatur
that
may be granted
ex
post facto
an
otherwise irregular step.
[7]
Moreover, a request by a party wishing to deliver a third party
notice after the close of pleadings is in the nature of a request
by
that party for an indulgence. I am in respectful agreement with
Lombard J when he said in
Padongelukkefonds v Van den Berg
that,
in terms of this rule, a court is given a wide discretion to grant an
application for the delivery of a third party notice
after the close
of pleadings.
1
In
Wapnick
v Durban City Garage
Booysen J concluded that a party applying to deliver a third party
notice after the close of pleadings must furnish an acceptable
explanation for its failure to deliver the third party notice before
the close of pleadings and must also make out a
prima
facie
case on the merits against the third party.
2
Booysen J said that he accepted that it may not always be a
sine
qua non
to
the success of every application in terms of Rule 13 (3) that the
applicant should make out a
prima
facie
case
on the merits.
3
For reasons which should soon become apparent, it is unnecessary in
this particular case to determine whether the applicant should
have
made out a
prima
facie
case against the second, third and fifth respondents and, if so,
whether it has done so.
[8]
The applicant has submitted that there is no reason, in principle,
why Rule 27 of the Uniform Rules of Court should not be applicable,
particularly having regard to Rule 27(3) which states as follows:
“
(3) The
court may, on good cause shown, condone any non-compliance with these
Rules
.”
I fully accept, as
counsel for the applicant invited me to do, that, as was said in
Mynhardt
v Mynhardt
,
in addition to the provisions of Rule 27 (3), the court has, in any
event, inherent jurisdiction derived from common law to condone
non-compliance with its rules.
4
In summary, I accept that the court has a wide discretion in a matter
such as this – a discretion that must nevertheless
be exercised
judicially. In other words, ultimately the niceties of
interpretation of Rule 13(3) (b) and Rule 27(3) do not really
matter
in an application such as this. What matters is whether, in all the
circumstances, justice will be better served by condoning
a
non-compliance with the court’s ordinary rules or by granting
an indulgence.
[9] In
Ford
v Groenewald
Nestadt J (as he then was) held that the principles in the
well-known case of
Breitenbach
v Fiat (Edms.) Bpk
,
5
were applicable in the case of a party seeking the removal of a legal
bar: that party should not state its case in a manner that
is bald,
vague or laconic.
6
In
Standard
General Insurance Company Limited v Eversafe (Pty) Limited
the
court held that in an application for condonation in terms of Rule
27, where the delay has been particularly long, the defaulting
party
must satisfy a court that the relief sought should be granted and
that this applied particularly where the defaulting party
is the
dominus
litis
.
7
In the
Eversafe
case,
the court also held that in an application under Rule 27, it is
insufficient for an applicant to show that condonation of
the default
will not result in prejudice to the other party – the question
of prejudice arises only if an applicant is able
to show good cause.
8
[12] The best
that can be gleaned from the applicant’s delays in failing (a)
to serve the third party notices before the
close of pleadings and
(b) to apply for the leave of the court to do so in reasonably good
time, is that the applicant was like
a mouse mesmerized by a cobra.
Be that as it may, the explanations given by the applicant for its
various delays are bald, vague
and laconic. In particular, as has
already been mentioned, the delay for the lapse of time from the
service of the third party
notices during July and August 2008 and
the service of this application on 16 September 2010 is entirely
unexplained. This long
delay cries out for an adequate explanation.
There are limits to which a court can indulge a “wee, sleeket,
cow’rin’,
tim’rous beastie”.
9
[13] Against this
background, the proper exercise of a judicial discretion requires
that the application be dismissed on the basis
of the inadequacy of
the applicant’s explanation for the delays relevant to this
matter. Accordingly, it is unnecessary to
consider the point raised
by the respondents as to whether granting the application would fall
foul of the
Prescription Act, No. 68 of 1969
inasmuch as the court would, by
granting the application, allow the applicant to prosecute a
prescribed claim.
[14] The
following is the order of the court:
The application
is dismissed with costs.
DATED AT
JOHANNESBURG THIS 14th DAY OF MARCH, 2011
______________________
N.P.WILLIS
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant:
L.
Hollander
No
Appearance for the First Respondent
Counsel
for Second Respondent:
I.P.
Green
Counsel
for Third and Fifth Respondents:
H.
Martin
No
Appearance for the Fourth Respondent
Attorneys
for Applicant: Nita Van Zyl Incorporated
Attorneys
for Second Respondent: Webber Wentzel
Attorneys
for Third and Fifth Respondents: Wertheim Becker Incorporated
Date
of hearing: 8
th
March, 2011
Date
of judgment: 14
th
March, 2011
1
1999 (2) SA 876
(O) at 886B.
2
1984 (2) SA 414
(D &CLD) at 424B-C.
3
Ibid
.
4
1986
(1) SA 456
(T) at 463H
5
1976 (2) SA 226
(t) at 228-9
6
Ford v Groenewald
1977 (4) SA 224
(T) at 225E-226H.
7
2000 (3) SA 87
(W) at 93G.
8
95E-F.
9
From Robbie Burns’ (1759-1796) famous poem, “Ode to a
Mouse”.