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[2015] ZAGPJHC 285
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Passenger Rail Agency of South Africa (PRASA) v Dlakana (4532/2010) [2015] ZAGPJHC 285 (16 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NUMBER: 4532/2010
In the
matter between:
PASSENGER
RAIL AGENCY OF SOUTH AFRICA (PRASA)
APPLICANT
(FORMERLY
CITED AS TRANSNET LIMITED t/a
METRORAIL
– DEFENDANT / RESPONDENT)
AND
SIMBONILE
DLAKANA
RESPONDENT
(FORMERLY
CITED UNDER SAME NAME AS
PLAINTIFF
/ APPLICANT)
APPLICATION
FOR LEAVE TO APPEAL: JUDGMENT
LAMPRECHT,
AJ
Introduction
[1] In
the main judgment of 18 August 2015 (later supplemented on 28
September 2015 with a revised judgment) I handed down
my ‘
REASONS
FOR
REFUSAL TO
RULE
ON
INTERMEDIATE
ISSUE
AND FOR
REFERRAL TO PRE-TRIAL
CONFERENCING
IN TERMS OF RULE 37(8)(a)
OF THE UNIFORM RULES REGULATING THE CONDUCT OF THE PROCEEDINGS OF THE
SEVERAL PROVINCIAL AND LOCAL DIVISIONS OF THE SUPREME COURT
OF SOUTH
AFRICA’.
[1]
The intermediate issue that I refused to rule on concerned an
‘informal application’, without prior notice or
supporting
affidavits as required in terms of Rule 6(11), by the
respondent (then plaintiff / applicant) to abandon an amendment of
the papers
substituting defendant for the applicant that were a few
days before the trial date allegedly ‘effected’ by
plaintiff
by delivering (per e-mail) the amended papers in terms of
Rule 28(7) to the attorneys of the defendant before amendment,
Transnet
Ltd t/a Metrorail. These amended papers were never filed
with the Registrar and were only brought to the attention of the
presiding
judge when both Counsel approached the judge in chambers
after the trial was allocated at roll call for a trial of two days on
the merits. The amended papers and the available documents pertaining
to the amendment were handed in only during argument in court.
The
‘amendment’ that was allegedly ‘effected’
concerned the substitution of the erstwhile defendant (Transnet
Ltd
t/a Metrorail) for the applicant, PRASA (as new defendant). I refused
to rule on the issue (‘abandonment of the amendment’)
for
mainly two reasons.
[2]
First, and foremost, there was no substantive application before
court, for which prior notice (and such affidavits as the case
might
require) is required in terms of Rule 6(11) and which shall be set
down for argument “at a time assigned by the registrar
or
as directed by a judge
”.
[2]
On the trial date this matter came before me on the unrevised papers
(before ‘amendment’) as a trial on the merits
and after I
had already studied the respective pleas and prepared myself to be
able to promptly rule on the merits of the pleas
after all evidence
and arguments had been heard. I was thus taken by surprise when I was
informed that there had in the past week
before the allocated trial
date been an amendment of the papers substituting the defendant; and,
that the plaintiff was subsequent
to the date on which the
‘amendment’ was ‘effected’ of second thoughts
as to whether the amendment was
indeed required and that he was
therefore prepared to abandon the amendment altogether and to proceed
on the papers as they were.
[3] There
was no formal notice of application in terms of Rule 6(11) for
abandonment of the ‘amendment’ that was purportedly
effected in terms of Rule 28 and no explanation by affidavit or
otherwise of the reason why the abandonment was sought. Moreover,
the
defendant who was reportedly substituted for another, Transnet Ltd
t/a Metrorail, was never notified that plaintiff now wishes
to revive
the pre-existing papers and to continue against it as defendant and
that plaintiff was no longer desiring to proceed
against the new
defendant, PRASA, for which it was substituted by means of the
amendment. Procedurally, therefore, there was thus
no substantive
‘application’ before court that required a ruling at the
end of argument to the effect that the application
is either granted
or refused with an appropriate order as to costs. This is the main
reason why I refused to ‘dismiss the
application for
abandonment
with costs’ as requested by Counsel for
applicant (defendant / respondent) on 18 August 2015.
[4]
Secondly, so I held, the procedure that was followed by the plaintiff
to seek and to ‘effect’ an amendment of the
papers
substituting the ‘wrong’ defendant for the ‘correct’
one, and the defendant’s cooperation
to allow the amendment
without proper observation of the rules, was in any event bad in law
since there was no proof that ‘all
the parties’
(including the previous defendant – Transnet Ltd – and
the new defendant – PRASA) had been
properly notified by
plaintiff that such an amendment was sought. Instead, so I learned
during argument for the applicant (defendant
/ respondent), ‘notice’
was given (per e-mail)
[3]
and, furthermore, only to the instructing attorneys
[4]
acting on behalf of the previous defendant (Transnet Ltd t/a
Metrorail) that plaintiff now wants to honour the consideration he
disclosed during the pre-trial conference, namely that he wanted to
substitute defendant for PRASA in terms of Rule 15.
[5]
There is no indication that such ‘notice’ was directed
also at PRASA whereas Rule 28(1) clearly states that a party
desiring
to amend papers “shall notify
all
other parties
”
[6]
of the intended amendment.
[5]
The e-mailed ‘notification’ of intended amendment was
simply put in the following terms: “
Attached
is the amendment for the name and citation of the Defendant. Please
indicate if there will be any objection thereto at
the trial.
”
No time prescript as intended in Rule 28(2) was inserted in the
‘notice’, which is a peremptory requirement.
[7]
The requirements of Rule 28 were thus clearly not observed. In the
e-mailed response there was no indication by the said attorneys
that
an objection would be lodged (or that no objection would be lodged)
at the trial against the proposed amendment, but it rather
constituted a challenge (or invitation)
[8]
to the plaintiff in the following terms: “
Please
effect the amendment and serve the amended pages today.
”
[9]
There is thus no indication on the papers that both the previous and
the new defendants had officially taken notice of the envisaged
amendment and that neither of them had any objection to the amendment
being effected; nor was there any written indication that
the same
attorneys that drove the matter on behalf of Transnet Ltd t/a
Metrorail had now also been briefed by the new defendant,
PRASA, and
that they had subsequent to receipt of the ‘notice’
properly been instructed to file the revised plea on
behalf of PRASA.
PRASA was therefore never formally placed on record. All that there
was, is an informal indication from the bar,
by the same Counsel that
filed the initial pleas by Transnet Ltd, that PRASA now wants to
continue with the action on the amended
papers with the consequential
plea filed.
[6]
In refusing to uphold the amendment (which plaintiff now sought to
abandon), I held that to allow amendments of this nature
without
formal notice to all parties, including the new defendant, and
without requiring at least an acknowledgement of receipt
and a
written indication by them of what the relevant parties intend to do
next, would open the way for fraud and abuse of process.
This is
exactly the reason why the courts have always been loath to allow
such amendments without proper notice to all parties
concerned, not
only the existing litigants.
[10]
During the course of my judgment I further pointed out that, for
exactly these reasons, and because it was clear on defendant’s
initial plea that PRASA had legally succeeded Transnet Ltd t/a
Metrorail, the appropriate procedure that had to be followed was
the
more stringent procedure provided for in Rule 15 rather than the
procedure provided for in Rule 28. Furthermore, even though
courts
have in the past allowed substitutions of plaintiffs and defendants
in terms of Rule 28 procedure, the immutable requirement
has always
been that proper ‘notice’ to “all other parties”
is required in terms of Rule 28(1) so that
the substituted party can
have a proper opportunity, within the time stipulated in Rule 28(2)
if he so wishes, to show that he
will be unfairly prejudiced if the
amendment is allowed to proceed.
[11]
One must bear in mind that ‘notice’ in this context takes
the place of ‘summons’ where the initial action
was
instituted on summons, which is exactly the reason why Rule 28(2)
states that the notice of intended amendment “shall
state”
that unless written notice of an objection is received within 10 days
after “delivery of the notice”,
the amendment will be
effected. The requirement of formal ‘notice’ and
‘response’ that fulfills the requirements
of Rule
28(1)-(5), (7) can to my mind therefore not be remedied by an
informal indication from the bar (without affidavit or written
confirmation by the old and / or the new party that it has taken
notice of the intended amendment and substitution and that it
waives
the right to proper notice in terms of the Rules) that the new
defendant has taken note of the envisaged substitution and
that he is
now properly prepared to meet the case against him. Furthermore, the
attorneys on record for the previous defendant
(Transnet Ltd t/a
Metrorail) have not in terms of Rule 16(1) formally notified “all
other parties” that they are now
acting on behalf of the new
defendant (PRASA) so that plaintiff could know where to serve further
process if required.
[7]
One should further bear in mind that it was only the previous
defendant (Transnet Ltd t/a Metrorail), not the new defendant
(PRASA), which was involved in the pre-trial conference where the
previous defendant (through Counsel) stated as follows:
“
The
Defendant [Transnet Ltd t/a Metrorail – not PRASA]
is
not prepared to make this admission. The Plaintiff is considering to
do a Substitution in terms of Rule 15. Should the Plaintiff
do such a
substitution it undertakes to substitute the Defendant, for PRASA-
Passenger Rail Agency of South Africa.
The
Defendant [Transnet Ltd t/a Metrorail – not PRASA]
will
consider the plaintiff’s substitution upon receipt.”
[12]
PRASA (or
the attorneys representing PRASA) never made any formal statement in
this regard.
[8] If
the more stringent requirements of Rule 15
[13]
were followed, there would have been no room for an argument
[14]
that amendments of this nature can informally, in ‘wishy-washy’
fashion, be done and accepted by those affected; and,
that the
substitution could not later on proper application be abandoned (set
aside or varied).
[15]
The main reason for my refusal to rule on the issue outlined
above is therefore that I am of the opinion that serious amendments
such as these (where a party is substituted for a new one, especially
where that party is the defendant with a right to properly
prepare
and defend actions of the kind brought here) require formal (as
opposed to informal) notice to
[16]
and acceptance (or consent) by
[17]
the new party, regardless of whether Rule 15 or Rule 28 applies.
The
application for leave to appeal
[9]
Feeling aggrieved by my refusal to rule on the issues between the
parties (that have not properly been placed before court)
and my
consequential order that the parties are called upon in terms of Rule
37(8)(a) to hold or to continue with a pre-trial conference
before a judge in chambers, applicant filed an application for leave
to appeal ‘the whole’ of my judgment (in other
words to
appeal against each and every ruling / reason stated in my judgment).
In response I provided the parties with a revised
judgment dated 28
September 2015, mainly providing for additional authority for my
views during the initial judgment (as I have
now had proper time to
reconsider the matter). In addition I provided further reasons for
judgment dated 08 October 2015. In my
further reasons I advised
applicant to reconsider the need to appeal in the light of what has
been said in the revised judgment
and further reasons; and, if it
decides to continue bringing the application, that it should indicate
which ‘order’
(as opposed to ‘reasons’ or
‘ruling’) applicant wants to appeal against and what the
relief is that is
sought in the Court of Appeal, should the appeal be
allowed to continue.
[18]
[10] I
have subsequently been advised by the Registrar that applicant
insists on bringing the application for leave to appeal and
that,
because my acting term has come to an end on 18 September 2015, she
has arranged with the parties concerned, to provide
me with
written heads of argument after which I will write a formal judgment
that will be handed down in court on my behalf by
another judge. No
revised notice of application for leave to appeal was filed in terms
of Rule 49(1)(b) after I supplied the parties
with my revised
judgment and further reasons. I indicated to the Registrar per
electronic communication (e-mail) that the procedure
that she wants
us to follow is in order if the Deputy Judge President deems it meet;
but, pertinently requested that she inform
the parties to also
advance “pertinent and specific arguments” on the
question whether my ‘ruling’ and
/ or ‘order’
of 18 August 2015 is at all appealable.
[11] I
have received heads of argument from Counsel for both the applicant
and the respondent. Regrettably, only Counsel for the
respondent
heeded my latter request and presented full argument that the ruling
and order that I made are not appealable for the
reasons advanced in
the heads. Applicant did not deal with the appealability issue.
The
appealability of the order dated 18 August 2015
[12] It
probably needs be restated that a judicial decision in a civil matter
is only appealable if it displays the following three
attributes:
12.1
First it must be final in effect and not be susceptible of alteration
by the court of first instance;
12.2
Secondly, it must be definitive of the rights of the parties; and,
12.3
Third, it must have the effect of disposing at least a substantial
portion of the relief claimed.
[19]
[13] It
also needs be restated that there is a distinction to be drawn
between a ‘ruling’ on the one hand and an ‘order’
on the other hand, the former not being subject to appeal while the
latter is, subject to its having the abovementioned attributes.
In
Dickinson and Another v
Fischer’s Executors
,
[20]
Innes ACJ had the following to say in this regard:
“
But
every decision or ruling of a Court during the progress of a suit
does not amount to an order. The term implies that there must
be a
distinct application by one of the parties for definite relief. The
relief prayed for may be small, as in an application for
a discovery
order, or it may be of great importance, but the Court must be duly
asked to grant some definite and distinct relief,
before its decision
on the matter can properly be called an ‘order’. A trial
Court is sometimes called upon to decide
questions which come up
during the progress of a case, but in regard to which its decisions
would clearly not be orders. A dispute
may arise, for instance, as to
the right to begin: the Court decides it, and the hearing proceeds.
But that decision, though it
may be of considerable practical
importance, is not an order from which an appeal could under any
circumstance lie, apart from
the final decision on the merits. So,
also in a case like the present. The parties differed as to what
portion of the evidence
(which was all in Court) could properly be
referred to in support of the applicant’s contention that the
award was bad. The
Court gave its ruling on the point. But that was
not an order in the legal sense; it decided no definite application
for relief,
for none had been made; it was a mere direction to the
parties with regard to the lines upon which their contention upon the
merits
should proceed.”
In his
separate concurring judgment Solomon JA said as follows:
[21]
“”
The
question is whether that decision was an order. In my opinion it was
not. The term ‘order’ is a technical one, which
is common
in use in courts of law and which is well understood, though it may
not be easy to give a precise definition of it. One
thing, however,
is clear, and that is no order can be made except upon an application
to the Court for relief. Such an application
usually takes the form
of a motion or petition, and the decision of the Court upon such
motion or petition is the order, which
is embodied by the Registrar
in a formal document. I do not say that there can be no order of
Court except upon a formal motion
or petition, but what is essential
is that there should be an application to the Court for some relief.”
In
Pretoria Garrison Institutes
v Danish Variety Products (Pty) Ltd,
[22]
Shreiner JA held as follows regarding ‘preparatory’ or
‘procedural’ orders that a Court gives during the
course
of preparation for a trial:
“
...
[A] preparatory or procedural order is a simple interlocutory order
and therefore not appealable unless it is such as to ‘dispose
of any issue or any portion of the issue in the main action or suit’
or, which amounts, I think, to the same thing, unless
it ‘irreparably
anticipates or precludes some of the relief which would or might be
given at the hearing.”
The
Constitutional Court has endorsed these ‘policy considerations’
that underlie the appealability of court orders
in
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[23]
in the following terms:
[24]
“
The
‘policy considerations’ that underlie these principles
are self-evident. Courts are loath to encourage wasteful
use of
judicial resources and of legal costs
[25]
by allowing appeals against interim orders that have no final effect
and that are susceptible to reconsideration by a court
a
quo
when final relief is
determined. Also allowing appeals at an interlocutory stage would
lead to piecemeal adjudication and delay
the final determination of
disputes.”
[14]
While argument can be made that my judgment in this matter is to an
extent definitive of the rights of the parties as far as
procedure is
concerned, I am not convinced that it has been shown that the
‘ruling’ (as opposed to ‘order’)
on the
procedure that had to be followed on amendment of papers in terms of
Rules 15 or 28 is not susceptible of alteration by
a court of first
instance. The respondent may at any stage before final judgment in
the matter is given (and which has not yet
been given) amend his
papers to the position that existed before or after the ‘amendment’
which was rejected by the
court,
by
reinstating Transnet Ltd t/a Metrorail as defendant;
[26]
by
persisting in the attempt to substitute the defendant (Transnet Ltd
t/a Metrorail) for PRASA, this time by following proper
procedure;
by
adding PRASA as a defendant in addition to Transnet Ltd t/a
Metrorail; or,
by
issuing a new summons to get the correct party before court.
The
effect of my ruling can therefore still be changed at any time by a
judge presiding as Court of first instance, without following
the
formal appeal process. I am therefore not convinced that my ‘ruling’
and/or ‘order’ of 18 August 2015
has the attributes
mentioned in 12.1 and 12.3 above.
[15] All
that is arguably
[27]
susceptible to an appeal is my order in terms of Rule 37(8)(a) that
the parties are called upon to engage or to continue to engage
in
pre-trial conferencing held before a judge in chambers. It should
however be clear from my main judgment and the papers filed
and
handed in at the previous appearance that the history of the matter
indicates that the parties have not properly and
bona
fide
engaged in pre-trial
conferencing, so that the matter can speedily and effectively be
disposed of. This should be enough reason
for a presiding judge to
make the order without creating the possibility that his order may be
taken on appeal. Rule 37(8)(a) affords
judges (whether presiding at a
trial or otherwise) extremely wide powers in this regard, namely:
“
(8)
(a)
A judge, who need not be the judge presiding at the trial,
may,
if he deems it advisable, at any time at the request of a
party
or
meru motu
, call upon the attorneys
or advocates for the parties to hold or to continue with a conference
before a judge in chambers and may
direct a party to be available
personally at such conference.”
I do not
think that a Court of Appeal would hold that I was wrong in calling
upon the parties to engage in properly conducted pre-trial
conferencing. In any event, the order to pre-trial conferencing is
not finally determinative of the dispute whether further pre-trial
conferencing is required. For example, as far as the ordered
pre-trial conferencing is concerned, the parties may agree or the
allocated judge in chambers may direct that further pre-trial
conferencing as directed by the presiding judge in this matter is
unnecessary and that they are ready to proceed to trial on the papers
that existed before the abortive amendment or subject to
further
amendments (if any) being effected. The judge before whom the
pre-trial conference is to be held may in terms of Rule 37(8(c)
give
any direction which might promote the effective conclusion of the
matter. Furthermore, in terms of Rule 37(11) a direction
made in
terms of Rule 37 before commencement of the trial may at any time be
amended without following the formal appeal process.
I have not
received an application to amend this order.
[16] In
this regard I want to stress the fact that I have not entertained an
application, evidence or argument to rule on the merits
of the cause
of action and the pleadings filed either before or as a consequence
to the abortive amendment; and, I have not issued
an order which can
be regarded as a ‘final order’ disposing of at least a
substantial portion of the relief claimed.
To my mind, and without
choosing sides on this issue, argument can still be made by both
parties on the papers (as they existed
before and after the intended
‘amendment’ where Transnet Ltd was substituted for PRASA)
that prescription of the claim
against PRASA was interrupted or not
interrupted by the amendment that I refused to countenance. It may
even be argued that Transnet
Pty Ltd t/a Metrorail is the wrong
defendant if the matter goes on trial on the unamended papers and the
Court may uphold or reject
such plea. Such judgment is not possible
in the circumstances of this matter as they currently stand, and I
have never been seized
with such an application. In this regard a
court properly seized with the matter where PRASA is brought before
court as a substitute
for Transnet Ltd t/a Metrorail (in terms of
proper amendment) would undoubtedly pay close attention to
applicant’s pleadings
before and subsequent to the aborted
amendment; and, in these heads of argument,
that
PRASA actually
ex lege
substituted SARCC;
[28]
which
at the time of the incident had subcontracted to Transnet Ltd t/a
Metrorail the management and administration of its rail
commuter
services;
[29]
resulting
in Transnet Ltd having already admitted in the initial plea that it
was responsible for the railway services at the
relevant place and
time that are subject to the current litigation;
[30]
and, therefore,
a
very real possibility exists that the court may find that the
amendment sought did not give rise to a prescribed claim being
resuscitated by substituting Transnet Ltd with the correct
debtor in name and status.
The
converse is also possible and I will pertinently desist from opining
on the probabilities of either argument being upheld by
a court. It
is impossible to make a ruling on the pleas tendered, without full
evidence and argument which were not presented or
entertained in my
Court, because of my refusal to rule on the interlocutory issue,
namely whether the amendment was correctly effected
and whether such
an amendment could be abandoned after it having become effective.
However, I think that the parties will
be well advised to
canvass the issue of prescription properly during the ordered
pre-trial conferencing so that they can properly
prepare for the
trial should it continue on the merits. The current pleadings are
confusing and confused in this regard.
Final
judgment and order
[17] In
the light of everything stated above and in the main judgment; and,
in the further reasons supplied, I am of the opinion
that there is no
reasonable prospect that a Court of Appeal would come to a different
conclusion than what I have. I think that
it amounts to sound
judicial practice to expect litigants to properly observe the rules
(be it under the Uniform Rules of Court
or the common law) regulating
procedure; and, that such ‘wishy-washy’ attempts to amend
papers substituting litigants
and such ‘informal’
applications to abandon amendments that were not legally begotten
should not be countenanced but
deprecated in the strongest possible
terms. As indicated in the preceding paragraphs I am also of the
opinion that my refusal to
make a ruling on the informal application
to abandon an amendment that was never legally effected is not
appealable.
[16] In
the result the application for leave to appeal is dismissed with
costs.
____________________________
A
A LAMPRECHT
ACTING
JUDGE OF THE SOUTH GAUTENG HIGH COURT
16
November 2015
Representation
for the applicant
:
Counsel
Adv M Smit
Instructed
by Attorneys: Cliffe Dekker Hofmeyr Inc
Representation
for respondent
Counsel
Adv LS De Klerk, SC
Instructed
by Attorneys: Tyron I Pather Inc
[1]
Emphasis
added.
[2]
Emphasis
added.
[3]
Electronic
communication per e-mail is a novel practice that has not yet been
properly dealt with in the Uniform Rules or in the
practice of the
courts, especially as far as the ‘delivery’of
notifications / summonses is concerned. There are no
prescripts as
to how guarantees are to be sought regarding the ‘delivery’
and ‘acknowledgement of receipt’
of notices and whether
e-mail addresses can be regarded on the same footing as
domicilii
citandi et executandi
for the delivery of process. If notifications of amendment
substituting a party for another should be allowed to be delivered
and executed per e-mail, it should arguably also be in order to
deliver summons in the same fashion, without requiring a Court,
properly seized with such an application, to pertinently authorize
such service procedure – and I think we are still a
long way
from adopting such practice.
[4]
Cliffe Dekker Hofmeyr Inc.
[5]
Although during the pre-trial conference plaintiff indicated that he
would consider substituting the defendant for PRASA (Transnet’s
legal substitute according to Transnet’s initial plea) in
terms of Rule 15 and although the erstwhile defendant (Transnet
Ltd
t/a Metrorail) indicated that it would ‘consider the amendment
once requested’, t
he
notice that was sent per e-mail did not state in terms of which Rule
(15 or 28) the amendment would be sought; or, if in terms
of Rule
28, whether the two defendants (the substituted and the substitute)
are afforded enough time to lodge objections or to
file pleas if the
amendment is accepted.
[6]
Emphasis added. This means that
not
only the original other party (litigant) need be notified, but also
the substitute that is sought to be introduced in the
action.
[7]
“(2)
The notice
in subrule (1)
shall
state
that unless
written objection to the proposed amendment is delivered within 10
days of delivery of the notice the amendment will
be effected.”
– Emphasis added.
[8]
This
‘challenge’, which was obviously hastily drafted and
immediately sent per e-mail, was probably due to defendant’s
Counsel sensing that there is now a chance of entering a special
plea of prescription on behalf of PRASA without properly considering
its legal status as the successor of Transnet Ltd – which plea
still needs to be adjudicated in the light of defendant’s
own
description of the history that SARCC legally succeeded Transnet ltd
t/a Metrorail and later that PRASA legally succeeded
SARCC and which
might or might not be successful.
[9]
It is wrong
for one party to challenge (or invite) the other party to ignore the
peremptory prescripts contained in the Uniform
Rules of Court.
[10]
Holdenstedt
Farming v Cederberg Organic Buchu Growers (Pty) Ltd
2008 (2) SA
177
(C) at para [21]: “It appears to me to be axiomatic that
in the context of substitution of an existing party or the joinder
of another person or entity, the concept ‘party’ in rule
28 cannot be construed as referring only to one of the litigants
to
the proceedings as such a construction would obviate the need of
notice to the entity intended to be substituted or being
joined
without any opportunity of being heard.”
[11]
Holdenstedt
Farming supra
(n
10).
[12]
Para [7] of
the main judgment.
[13]
Which I still hold is applicable in instances such as these where
the new defendant (PRASA) has reportedly
ex
lege
stepped into the
shoes of the previous defendant (Transnet Ltd t/a Metrorail)
ex
tunc
.
[14]
Which is actually presented by applicant, even in this application
for leave to appeal.
[15]
Note that
Rule
15(4) provides for such applications by any of the parties,
including the one who brought the application to substitute.
Such
applications are however not catered for in Rule 28 procedure, which
is probably the reason why applicant argued at the
time that the
Court had no jurisdiction to order that plaintiff be allowed to
abandon amendments that were affected, even if
good reason is shown.
[16]
Holdenstedt
Farming v Cederberg Organic Buch Growers (Pty) Ltd
2008 (2) SA
177
(C) at 181B-D. See also
Van
rensburg v Condoprops 42 Pty Ltd
2009 (4) SA 539
at 545-546 quoted by applicant in para 9.b. of its
heads of argument, which, if read properly, would indicate the
importance
of requiring formal notice to “all the other
parties”: “In that regard it is not without significance
that
the process adopted, viz seeking an amendment to substitute one
plaintiff for another, did not deprive the defendant of its right
to
object to the substitution (or amendment) and to raise whatever
prejudice it might allege it would suffer. Indeed, in the
rule 28
notice given in respect of the amendment, the defendant was
specifically afforded 10 days in which to provide its written
objections and informed that, if it did not do so, it would be
‘deemed to have consented thereto’.”
[17]
Greef v
Janet
1986
(1) SA 647
(T). See para [15] of the revised version of the main
judgment. Although, as pointed out in paragraph 17. of applicant’s
heads of argument “[t]he cases are not harmonious as to
whether a court has the power to replace by way of amendment to
a
summons a defendant by a person who is not party to the dispute
without the latter’s consent”, I consider myself
bound
by
Greef
v Janet
and I am of the opinion that, where prejudice is possible and where
proper notice to the new party is therefore required as in
this
matter, the courts should insist (as I do) that a defendant cannot
be substituted in terms of an amendment process without
the formal
consent of the new party.
[18]
Molteno
Bros v SA Railways
1936 AD
408
;
Western
Johannesburg Rent Board v Ursula Mansions (Pty) Ltd
1948 (3) SA 353
(A);
Haviland
Estates (Pty) Ltd v McMaster
1969 (2) SA 312
(A);
Holland
v Deysel
1970 (1) SA 90
(A) at 93E;
Lipschitz
NO v Saambou-Nasionale Bouvereniging
1979 (1) SA 527
(T) at 529H;
Cape
Empowerment Trust Ltd v Fisher Hoffman Sithole
2013 (5) SA 183
(SCA) at 198I-J.
[19]
Zweni
v Minister of Law and Order
[1992]
ZASCA 197
;
1993 (1) SA 523
(A) at 532I - 533B, cited with approval
by the Constitutional Court in
International
Trade Administration
Commission
v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC)
para 49). See now also
SABC
v DA
(393/2015)
[2015] ZASCA 156
(8 October 2015) at para [63]; and
Praescripto
(Pty) Ltd v Imatu and Others In Re Mi-Tax (Pty) Ltd (In Liquidation)
(66839/12)
[2015] ZAGPPHC 689 (7 October 2015) at para [3].
[20]
1914 AD 424
at 427-8.
[21]
At 429.
[22]
1948 (1) SA
839
(A) at 870.
[23]
2012 (4)
SAb618 (CC) at para [50].
[24]
At para
[50] of the judgment.
[25]
This is
exactly also part of the reason why courts are loath to allow
informal disposal of procedural requirements such as ‘notice’
or ‘summons’ and ‘notice of intention to defend’,
which lie at the heart of the reason why Rule 28 amendments
of
summonses seeking substitution of defendants without proper notice
and consent to be substituted are not easily allowed.
[26]
In the
light of the pleas filed to date, which I will touch on in passing
below, this might be a stupid direction to take.
[27]
Although I
do not think that any strong argument can be made in this regard.
[28]
E.g., para
3
of the ‘Consequential
Plea to Amended Particulars of Claim’;
also
paras 8.e.iii. and 24. of applicants heads of argument.
[29]
E.g., p
ara
23. of applicant’s heads of argument.
[30]
E.g., para 2.1 of the initial plea of Transnet Ltd t/a
Metrorail quoted at para [2] of the main judgment.