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[2021] ZAGPJHC 368
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Reliance Distributors (Pty) Ltd v Growtrade Invest 16 CC In re: Reliance Distributors (Pty) Ltd v Growtrade Invest 16 CC and Others (41533/2020; 2020/41969) [2021] ZAGPJHC 368 (2 June 2021)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 41533/2020 AND 2020/41969
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
02
June 2021
In
the matter between:
reliance
distributors (pty)
ltd
Applicant
(Registration
number: [....])
and
GROWTRADE
INVEST 16 CC
Respondent
(Registration
number: [....])
IN
RE:
RELIANCE
DISTRIBUTORS (PTY) LTD
Applicant
(Registration
number: [....])
And
GROWTRADE
INVEST 16 CC
First Respondent
(Registration
number: [....])
WATPROP
(PTY)
LTD
Second Respondent
(Registration
number: [....])
TLT
ATTORNEYS
Third Respondent
(Registration
number: [....])
Judgment
Mdalana-Mayisela
J
1.
The applicant has instituted the
application for the consolidation of the two related applications
between the parties in terms
of Rule 11 of the Uniform Rules of
Court. The applicant seeks an order in the following terms:
“
1.
That the Main Application for a Declaratory Order under Case Number:
2020/41533
be consolidated with the Eviction Application under Case Number:
2020/41969
and that both the Applications be heard together at the same time;
2. In the event that
the Consolidation Relief sought in paragraph 1 above is not granted,
then in that event, that the Eviction
Application under Case Number:
2020/41969
be stayed pending the final determination of the
Main Application for a Declaratory Order, under Case Number:
2020/41533
;
3. That the hearing of
the Eviction Application under Case Number:
2020/41969
set
down for
15 March 2021
be postponed sine die;
4.
That the Costs of this Application be paid by
GROWTRADE
INVEST 16 CC
(the first
Respondent), alternatively, by the Respondents opposing it, jointly
and severally, the one paying the others to be absolved,
on Attorney
and Client scale;
5. That the applicant
be granted such further alternative relief as the Court may deem
appropriate.”
2.
During the hearing of this application
Counsel for the applicant informed me that the applicant is not
pursuing prayer 3 of its
Notice of Motion. The respondent is opposing
this application and has prayed that the application be dismissed
with costs on an
attorney and client scale.
3.
Rule 11 of the Uniform Rules of Court
provides that:
“
Where
separate actions have been instituted and it appears to the court
convenient to do so, it may upon the application of any
party thereto
and after notice to all interested parties, make an order
consolidating such actions, whereupon-
(a)
the said actions shall proceed as
one action;
(b)
the provisions of rule 10 shall
mutatis mutandis apply with regard to the action so consolidated; and
(c)
the court may make any order which to it
seems meet with regard to the further procedure, and may give one
judgment disposing of
all matters in dispute in the said actions
.”
4.
The provisions of rule 11 are applicable to
applications by virtue of the provisions of rule 6(14). Under rule
11, the court has
a discretionary power to order a consolidation of
actions. The paramount test in regard to consolidation of actions is
convenience.
In
Mpotsha v Road Accident
Fund
2000 (4) SA 696
C
at 700I-J
the Court held that the word
‘convenient’ connotes not only facility or expedience or
ease, but also appropriateness
in the sense that procedure would be
convenient if, in all the circumstances of the case, it appears to be
fitting and fair to
the parties concerned.
5.
The applicant avers that it would be
convenient to consolidate the two related applications because they
arise out of the same written
Sale Agreement (“the Sale
Agreement”) and are based on substantially the same facts in
that the applicant in the Main
application seeks to enforce the terms
of Sale Agreement and two Addenda thereto, entered into by and
between the applicant and
the respondent on 24 February 2020.
6.
The applicant in the Main application avers
that, by virtue of the exercising of its rights to waive the
suspensive condition as
set out in Clause 14 of the Agreement and
Fulfilment of the obligations imposed upon it in terms of the Sale
Agreement, the Sale
Agreement is extant and enforceable, with the
result that the property is to be transferred and until such time as
transfer has
taken place, the applicant is and remains permitted to
exercise the rights afforded to it by the Sale Agreement in respect
of the
property, including
, inter alia
,
access and occupation thereof for purposes of giving effect to Clause
15 and 29.9, that is for the purposes of the alterations
and repairs
to the property.
7.
The respondent in the Main application
contends that the applicant has failed to fulfil the terms of the
suspensive condition and
disputes the applicant’s right to
waive said condition, as contained in Clause 14 of the Sale
Agreement, with the effect
that the respondent contends that the Sale
Agreement is of no force and effect.
8.
The respondent in the Eviction application
seeks an order that the applicant be evicted from the property, based
on the alleged
unlawful occupation of the property by the applicant,
in the circumstances where the Sale Agreement never came into
existence,
due to the alleged non-fulfilment of the suspensive
condition contained in Clause 14 of the Sale Agreement.
9.
The applicant’s contention in the
Eviction application is that its continued occupation is, in light of
the lawful waiver
of the suspensive condition and its compliance with
the terms of the Sale Agreement, lawful, in that pending transfer,
the applicant
is entitled to exercise the rights afforded to it in
terms of the Sale Agreement, more specifically, the right to
access/occupation
of the property for purposes of the alterations and
repairs, as in accordance with Clauses 15 and 29.9 thereof.
10.
The second respondent in the Main
application has launched a Counter-application wherein it also seeks
a Declaratory Order that
the Sale Agreement is valid and binding on
the parties thereto. The applicant submits that there exists a
material connection between
the issues raised in the Main
application, the Eviction application and the Counter-application, as
well as the relief sought in
each of the applications.
11.
The applicant further submits that the
consolidation of the applications is in the interests of all the
litigants, more particularly,
in that: it is convenient and
appropriate; the parties seeking substantial relief in each of the
applications are substantially
the same, if not identical; the
determination of the Main application will have a substantial effect
on the determination of the
Eviction application; if the
consolidation application is not granted, there exist a risk of
conflicting judgments which could
be prejudicial to the litigants;
the substantial legal costs associated with litigation will be
substantially curtailed; and the
Eviction application is set down to
be heard on 7 June 2021 and therefore the outcome and determination
of various disputes will
be expedited.
12.
The respondent is opposing the relief
sought by the applicant in this application on the grounds that the
issues in the two applications
are not substantially similar; it is
not convenient nor appropriate for the two cases to be consolidated;
it will be materially
unfair for the respondent if the consolidation
application is granted; there will be no disadvantage to either party
if the two
applications proceed separately of each other; the
applicant has not fairly and correctly set out the relevant facts to
support
the relief which it seeks in its notice of motion; there is
no risk of conflicting judgments; and the respondent will be
substantially
prejudiced if such relief were to be granted; and the
real purpose of this application is to delay the hearing of the
Eviction
application and the applicant to remain in unlawful
occupation of the property.
13.
I have considered the submissions made by
both parties. I agree with the applicant’s submissions that the
Sale Agreement is
relevant to the Eviction application as it sets out
the contractual nexus between the applicant and the respondent; and
further
that the determination of each of the two applications and
the Counter-application is substantially dependant on the
interpretation
of the Sale Agreement, which primarily constitutes a
determination of the waiver provisions and therefore, the status of
the Sale
Agreement.
14.
In my view the consolidation of the
aforementioned applications would reduce the legal costs and expedite
the proceedings; the parties’
various disputes arising from the
same Sale Agreement would be heard in one application; and there
would be one finding concerning
the status of the Sale Agreement.
15.
During the hearing of this application I
asked the parties to address me on the substantial prejudice, if any,
to be suffered by
the respondent if the consolidation application
were to be granted. Counsel for the respondent submitted that the
Eviction application
will not take more than 2 hours to argue.
However, he submitted there is a risk that the Eviction application
may be postponed
on 7 June 2021 if the applications are consolidated
because there may be a need to apply for a special allocation of the
hearing
date; that it may be necessary to refer the Main application
to trial and that will delay the finalization of the Eviction
application;
and that the respondent does not have access to the
property as the applicant is still in occupation of the property.
16.
Counsel for the applicant submitted that
there will be no need to apply for a special allocation of the
hearing date because the
duration of the hearing of both applications
will not take more than a day; that the will be no need to refer the
Main application
to trial because the issue for determination of the
Main application is the interpretation of the Sale Agreement; and
that the
respondent has been provided with a spare key in order to
access the property. He submitted that the respondent will not suffer
a substantial prejudice if the Consolidation application were to be
granted. Counsel for the respondent conceded that the respondent
has
been provided with a spare key of the property.
17.
It is common cause between the parties that
both the applications are ready for hearing. The papers in both
applications have been
uploaded on Caselines. Both parties have filed
their heads of argument, chronology and list of authorities. It is
unlikely that
the Eviction application will be postponed on the
hearing date on 7 June 2021. Therefore, I find that the respondent
will not suffer
a substantial prejudice if the Consolidation
application is granted. It appears to me that it will be convenient
to consolidate
the aforementioned applications and that they shall
proceed as one application.
18.
As to costs, I find no reason why costs
should not follow the result. However, I find no justification that
the costs should be
awarded on an attorney and client scale.
19.
Accordingly, I make the following order:
19.1
The Main application for a Declaratory
Order under Case number: 2020/41533 is consolidated with the Eviction
application under Case
number: 2020/41969 and the said applications
shall proceed as one application;
19.2
The respondent (GROWTRADE INVEST 16 CC) is
ordered to pay the costs of this application on a party and party
scale.
MMP
Mdalana-Mayisela
Judge
of the High Court
Gauteng
Division
(
Digitally
submitted by uploading on Caselines and emailing to the parties)
Date
of delivery: 2 June 2021
Appearances:
On
behalf of the Applicant:
Adv M Nowitz
Instructed
by:
Glynnis Cohen Attorneys
On
behalf of the Respondent:
Adv R G Cohen
Instructed
by:
Hirschowitz Flionis Attorneys