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[2023] ZAGPJHC 1035
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Nortiger Logistics SA (Pty) Ltd v Marais NO and Others (14866/2022) [2023] ZAGPJHC 1035 (14 September 2023)

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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case No: 14866/2022
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
14.09.23
In the matter
between:
NORTIGER LOGISTICS
SA (PTY) LTD
Applicant
And
HENDRIE ANDRIES
MARAIS NO
First respondent
CHRISTINA MAUREEN
PENDERIS NO
Second respondent
ADRIANA MARIA VAN
WYK
(Identity
number:[…])
Third respondent
In re:
HENDRIE ANDRIES
MARAIS NO
First applicant
CHRISTINA MAUREEN
PENDERIS NO
Second applicant
And
NORTIGER LOGISTICS
SA (PTY) LTD
Respondent
Delivere
d:
This judgement was prepared and authored by the
Judge whose name is reflected in it and is handed down
electronically by circulation
to the parties/their legal
representatives by email and by uploading it to the electronic
file of this matter on CaseLines.
The
date for hand-down is deemed to be 14 September 2023.
JUDGMENT
DUNN
AJ
:
Introduction and
background
1.
The
present app
lication
is for the joinder of Mrs Adriana Maria van Wyk (Mrs AM van Wyk) as a
respondent in the main application brought under
the same case number
(the joinder application).
[1]
2.
In
the main application,
[2]
the
joint provisional liquidators of Marboe en Seuns (Pty) Ltd (in
liquidation) (Marboe),
[3]
viz
.,
Mr Hendrie Andries Marais N.O. and Ms Christina Maureen Penderis N.O.
(the provisional liquidators), seek, among others, the
following
relief (the main application):
[4]
2.1.
That they (i.e., the provisional liquidators) be
granted leave to bring the main application in terms of section 387
(3) of the
Companies Act 61 of 1973 (the previous Act);
2.2.
that the sale to the respondent, Nortiger
Logistics SA (Pty) Ltd (Nortiger), of a
certain
crane,
namely
a
Tadano TR-250 EX
with
registration
number RYC
735 GP (the mobile crane), be set aside; and that the Sheriff further
be authorised to attach and remove the mobile crane
from Nortiger, or
wherever else it might be found, and to hand same to the provisional
liquidators, and – should that be
necessary - to also make use
of the South African Police Service to assist him in doing so.
3.
The main application is not presently before me
for adjudication.
It is only the joinder
application that I am currently seized with.
4.
The
joinder application was instituted by Nortiger against the
provisional liquidators for the joinder of Mrs AM van Wyk –
who
is the same person, and who is also known, as ‘
Ms
Adriana Maria Honiball
’
[5]
- because she sold the mobile crane to it (i.e., Nortiger) for the
sum of R650 000.00 on 6 November 2020 in terms of a written
sale
agreement (the agreement).
[6]
5.
In Nortiger’s founding affidavit, its
deponent, Mr Frank Peter Nortier (Mr Nortier), states, among others,
the following:
5.1.
First,
under the caption ‘
Purpose
of Application
’
,
that it is an application ‘…
for
reasons relating to convenience and to avoid multiplicity of actions
and costs
’
;
[7]
5.2.
second,
that Mrs AM van Wyk is also an interested party to the main
application as she is liable to Marboe;
[8]
and
5.3.
third,
that the principal relief essentially sought by the provisional
liquidators in the main application is the setting aside
of the
agreement Nortiger concluded with Mrs AM van Wyk and for which
Nortiger paid her the sum of R650 000.00;
[9]
5.4.
fourth,
what the provisions of Rule 10 (3) of the Uniform Rules of Court (the
Rules) provide for, which he then – assumedly
on the advice of
Nortiger’s legal representatives – proceeds to quote in
its entirety;
[10]
5.5.
fifth,
refers to the provisions of section 82 (8) of the Insolvency Act 24
of 1936 (the
Insolvency Act) of which
he quotes the portion
considered germane to Nortiger’s case;
[11]
and
5.6.
lastly,
contended that (i) Nortiger had acted in ‘
good
faith
’
in
purchasing the mobile crane from Mrs AM van Wyk and that it should
enjoy the protection afforded under section 82 (8) of the
Insolvency
Act;
[12]
(ii) the question of
law van Wyk in the main application is substantially the same because
it has always been Nortiger’s
case that it had acted
bona
fide
and
that the provisional liquidators’ claim for relief actually
lies against Mrs AM van Wyk;
[13]
(iv) Nortiger, as an innocent party, will stand to lose a substantial
amount if the provisional liquidators were to be successful
with the
principal relief sought in the main application;
[14]
and (v) that Mrs AM van Wyk should therefore be joined as a party in
the main application so that her version would also be before
the
court.
[15]
The provisional
liquidators’ opposition to the joinder application
6.
The
provisional liquidators oppose the joinder of Mrs AM van Wyk as a
respondent in the main claim on the grounds that she neither
has a
direct and substantial interest in it
[16]
nor that the question of law and fact (i.e., as to whether Nortiger
or Mrs AM van Wyk is, or ultimately would be, liable to Marboe)
is
substantially the same.
[17]
7.
The
provisional liquidators further contend that Nortiger’s
reliance on Rule 10 (3) of the Rules is misplaced and that, having

confined itself to the provisions of this Rule, the joinder
application is bound to fail.
[18]
8.
The
provisional
liquidators,
moreover,
submit
that
Nortiger’s
reliance
on
section
83
(3) of the
Insolvency Act is
equally misplaced and also bound to
fail, because this section only affords protection to a third-party
acquirer of property
after
the
second meeting of creditors was held by a liquidator authorised to
sell same.
[19]
Has Nortiger made out a
case for the joinder of Mrs AM van Wyk?
Rule
10
(3) of the Rules
:
9.
It is convenient first to deal with the
provisional liquidators’ submission that Nortiger’s
application for Mrs AM van
Wyk’s joinder as a respondent in the
main application, is confined solely to the provisions of
Rule 10
(3)
of the Rules.
10.
If
that were to have been the case, the joinder application was bound to
fail because
Rule 10
(3) cannot be used at the instance of a
respondent (i.e., such as Nortiger) to join another respondent (i.e.,
Mr AM van Wyk in
this instance).
[20]
11.
However, I am not convinced – although
Rule
10
(3) is prominently quoted in joinder application – that
Nortiger’s case is necessarily confined to it.
Admittedly the joinder application is neither a
model of elegance nor clarity, but does it contain sufficient
rudimentary averments
that might otherwise rescue it from failure?
On a benevolent reading of the joinder
application, as a whole, I think it does, but, perhaps, then also
only just.
12.
Elsewhere
I pointed out that Mr Nortier states that the purpose of the joinder
application is for reasons relating to convenience
and to avoid
multiplicity of actions and costs
[21]
and that Mrs AM van Wyk is also an interested party to the main
application.
[22]
In
this respect it is certainly distinguishable from
Notshe’s
case
[23]
where the header to the joinder application unambiguously referred to
it having been brought in terms of
Rule 10(3)
and the founding
affidavit itself specifically relying on it.
Reasons
relating to convenience and to avoid multiplicity of actions and
costs
:
13.
Leaving
aside for the moment the obligatory joinder of a party who has a
direct
and substantial interest
in
the subject matter of litigation, it is clear that South African
courts have over a long period of time held that a party, such
as a
defendant, may be joined under the common law on grounds of
convenience, equity, the saving of costs and the avoidance of

multiplicity of actions.
[24]
14.
In
Van
der Lith’s
case
[25]
the court (
per
Barry,
JP, with whom Maritz and Malan, JJ concurred) held as follows:
‘
In
our Courts, the question of convenience has been recognised. In the
case of
Morgan
and Others v Salisbury Municipality
1935
AD 167
, DE VILLIERS, J.A., in dealing with the question of
non-joinder points out that there is no authority in Roman- Dutch
works on
practice on the question of non-joinder, and proceeds to say
as follows: "
The
South African practice was no doubt in the first instance founded on
grounds of convenience or equity or in order to save costs
or in
order to avoid oppression or multiplicity of actions or on other
similar grounds
"
and continues to state that the practice has hardened so as to confer
on a defendant a right of demanding joinder of parties
in certain
cases. The wide language used is equally applicable in considering
the question of misjoinder.’ (Own emphasis)
15.
However,
a closer examination of De Villiers JA’s above-quoted
dictum
in
the
Morgan
case,
where the learned judge refers to ‘
the
practice
[that]
has
hardened so as to confer on a defendant a right of demanding joinder
of parties in certain case
’
,
shows that he did not intend to suggest that a defendant
automatically had such right irrespective of the specific factual
circumstances
of the case.
This
is illustrated by the
words
that
immediately
followed
those
quoted
above,
where
De
Villiers
JA
proceeded to state:
[26]
‘…
the
practice has in course of time so hardened as to confer on a
defendant a legal right of demanding that the other joint owner,
or
joint contractor, or partner, shall be joined as a party to the
action.
Now
the feature which is common to the cases of joint owners, joint
contractors and partners, is that in all of them there is a
joint
financial or proprietary interest.
It
has been stated that the interest is indivisible as well as joint,
but that point need not be here discussed.
The
feature to which I draw attention is the joint financial or
proprietary interest.
The
position may therefore be broadly stated to be that by South African
practice the only cases in which a defendant has been allowed
to
demand a joinder as of right are the cases of joint owners, joint
contractors and partners, in all of which cases there exists
a joint
financial or proprietary interest, but that in other cases a
defendant, as a general rule, has not been allowed to demand
such
joinder. Now it is not necessary or advisable to formulate here any
general statement as to the principles on which the practice,

hitherto so narrowly confined, ought to be based in the future, or as
to the directions, (if any) in which it ought to be extended
or
enlarged.’ (Own emphasis).
16.
This
common
law
practice
now
under
discussion,
does
not
appear
to
support
Nortiger’s insistence or demand that Mrs AM
van Wyk must be joined as of right.
Is
Mrs AM van Wyk an ‘
interested
party
’
to or in the
main application
?
17.
This
averment by Mr Nortier,
viz
.,
that Mrs Van Wyk is an ‘
interested
party
’
,
is inadequate.
The
test is not whether Mrs AM van Wyk merely has an ‘
interest
’
in
the main application: It is whether or not she has a
direct
and substantial interest
in
it.
In
Erasmus:
Superior Court Practice
the
author expresses the test and its ramifications as follows (footnotes
omitted):
[27]
‘
The
test is whether or not a party has a ‘
direct
and substantial interest
’
in
the subject matter of the action, that is, a legal interest in the
subject matter of the litigation which may be affected prejudicially

by the judgment of the court.
A
mere financial interest is an indirect interest and may not require
joinder of a person having such interest.
The
mere fact that a party may have an interest in the outcome of the
litigation does not warrant a non-joinder plea.
The
rule is that any person is a necessary party and should be joined if
such person has a direct and substantial interest in any
order the
court might make, or if such an order cannot be sustained or carried
into effect without prejudicing that party, unless
the court is
satisfied that he has waived his right to be joined.
’
18.
Applying this approach – and especially the
wording I have also emphasised in the penultimate phrase (i.e., ‘…
or if such an order cannot be sustained
or carried into effect without prejudicing that party
…’
)
– I consider that Mrs AM van Wyk’s does not merely have
‘
an interest
’
in
the main application, as Mr Nortier avers, but that she actually has
a
direct and substantial interest
in
it – and, at the very least, even if I were to be wrong about
this, the principal relief claimed by the provisional liquidators
in
the main application certainly cannot be sustained or carried into
effect without prejudicing Mrs AM van Wyk.
19.
The reasons for this conclusion are essentially
the following: (i) If the principal relief in the main application
were to succeed,
it would imply that Marboe was the owner of the
mobile crane and that Mrs AM van Wyk was not authorised to sell it to
Nortiger;
(ii) if the proposition in (i) is correct (
which
I consider to be the case
), then
Nortiger will be obliged to deliver the mobile crane to the
provisional liquidators, or they will be entitled as of right
to
enforce its removal from Nortiger; and (iii) if propositions (i) and
(ii) are correct (
which I also consider
to be the case
), the purchase price for
the mobile crane that accrued to Mr AM van Wyk upon, or pursuant to,
the sale thereof to Nortiger, will
have to be repaid by her to
Nortiger –
thereby directly
affecting and prejudicing her rights to such purchase price
.
In my view, it would be quite improper for the
court in the main application to grant such principal relief, which
would clearly
be adverse to Mr AM van Wyk’s interest and
rights, without first hearing what she has to say about such order.
20.
In
addition to the abovementioned considerations, I consider that it is
right and proper for Mr AM van Wyk to be joined for the
reasons
mentioned and, even if Nortiger’s joinder application
were
entirely
deficient,
I
consider that
this
court
should
use
its inherent power to order Mr AM van Wyk’s joinder as an
additional respondent in the main application.
[28]
Section
82
(8) of the
Insolvency Act
:
21.
In
view of the conclusion I have arrived at, it is strictly speaking
unnecessary for me to deal with Nortiger’s contention
based on
this section.
But,
for the sake of convenience, I synoptically state why I disagree with
such contention.
Section
82
(8) of the
Insolvency Act must
be read in context.
This
requires a consideration of the
text
,
context
and
purpose
of
section 82
(8) of the
Insolvency Act.
[29
]
This
also means that it, at least, must be read in the context of
section
82
thereof.
22.
Section
82
(1) of the
Insolvency Act deals
with the sale of property
after
the second meeting of creditors
and
is clearly not applicable to the sale of the mobile crane in the
circumstances of this case.
However,
I consider that Nortiger cannot rely on the protection of
section 82
(8)
[30]
simply because it did
not acquire the mobile crane from Marboe’s insolvent estate, or
from any of the categories of persons
described in subsection (7)
thereof, but rather directly from Mrs AM van Wyk, who does not fall
into any of those categories either.
In
other words, Nortiger’s purported reliance on the protection
section 82
(8) is intended to provide, is entirely destructive of its
main contention too.
23.
A successful applicant usually would be entitled
to the costs of application.
However, in
this case I consider that the interests of justice would better be
served if the costs were to be dealt with as costs
in Marboe’s
estate.
Conclusion
24.
In the circumstances, I make an order in the
following terms:
24.1.
The third respondent in the joinder application,
i.e., Mrs Adriana Maria van Wyk (also known as Ms Adriana Maria
Honiball), with
identity number […] , is hereby joined as the
second respondent in the main application under case number
14866/2022;
24.2.
the applicant in the joinder application, is given
leave to amend the headings of the notices and affidavits already
delivered in
the main application to reflect Mrs AM van Wyk’s
joinder as the second respondent therein; and
24.3.
the costs of the joinder application are to be
costs in Marboe’s estate in liquidation.
EW DUNN
Acting Judge of the
High Court
Gauteng Division,
Johannesburg
Counsel for the
applicant:
Adv WJ Prinsloo
Instructed by:
Botes Mahlobogoane
Christie & Van Heerden Inc.
Counsel for the
respondent:
Adv JC Carstens
Instructed by:
GD Ficq Attorneys,
Roodepoort; and Hertzberg Attorneys, Hyde Park.
Date
of hearing: Monday, 4 September 2023
Date of Judgment:
Thursday, 14 September 2023.
Judgment handed down
electronically
[1]
Joinder
application: CaseLines, pp. 09-1 to 09-23
[2]
Main
application: CaseLines, pp. 01-1 to 01-65.
[3]
Marboe
was placed in final liquidation on 15 April 2021. See, in this
regard, main application (founding affidavit (
MA-FA
)):
para 1.5, CaseLines, p. 001-7, read with annexure ‘
B
’
thereto,
pp. 001-23 and 001- 24.
[4]
Main
application (notice of motion): paras 1 to 3, CaseLines, pp. 001-1
and 001-2.
[5]
Joinder
application (founding affidavit (
JA-FA
)):
para 2.5, CaseLines, p. 009-8.
[6]
JA-FA:
paras 5.1 to 5.3, CaseLines, pp. 009-9 and 009-10, read with
annexure ‘
FPN
1
’
thereto,
pp. 009-
15 to 009-18.
[7]
Ibid
.,
para 4.1, CaseLines, p. 009-8.
[8]
Ibid
.,
paras 4.2 and 4.3, CaseLines, p. 009-9.
[9]
Ibid
.,
para 6.1, CaseLines, p. 009-10, read with para 5.3, CaseLines, p.
009-10, as well as with annexure ‘
FPN
2
’
thereto,
p. 009-19.
[10]
Ibid
.,
para 6.4, CaseLines, p. 009-12.
[11]
Ibid
.,
para 6.5, CaseLines, p. 009-12.
[12]
Ibid
.,
para 6.6, CaseLines, p. 009-12.
[13]
Ibid
.,
para 6.7, CaseLines, p. 009-13. The contention that the provisional
liquidators’ claim for relief actually lies against
Mrs AM van
Wyk is assumedly based on the premise that the court is likely to
find that the mobile crane was indeed an asset of
Marboe at the time
it was by Mrs AM van Wyk to Nortiger. Obviously, if it was indeed
Mrs AM van Wyk’s personal asset and
she was at liberty to
dispose of it at will, the provisional liquidators would have no
recourse against her whatever.
[14]
Id
.
[15]
Ibid
.,
para 6.8, CaseLines, p. 009-13.
[16]
Joinder
application (answering affidavit (
JA-AA
)):
para 7, CaseLines, p. 011-6.
[17]
Ibid
.,
paras 9 to 12, CaseLines, pp. 011-6 and 011-7.
[18]
The
provisional liquidators’ heads of argument (drawn by Adv JC
Carstens): paras 9 to 13, CaseLines, pp. 025-4 to 025-6.
[19]
Ibid
.,
paras 14 to 18, CaseLines, pp. 025-6 to 025-8.
[20]
Notshe
v State Attorney, Johannesburg and Another
(2022/00966)
[2023] ZAGPJHC 480 (15 May 2023)
at para [8].
[21]
See,
paragraph 5.1 above.
[22]
See,
paragraph 5.2 above.
[23]
See
footnote 20 above.
[24]
Morgan
v Salisbury Municipality
1935
AD 167
at p. 171;
Van
der Lith v Alberts
1944
TPD 17
at p. 22; and
Rabinowitz
and Another NNO v Ned-Equity Insurance Co Ltd and Another
1980
(3) SA 415
(W) at
p. 419 D – F.
[25]
Van
der Lith v Alberts
,
supra
,
at p. 22
[26]
Supra
,
at p. 171.
[27]
Van
Loggerenberg, DE at RS 20, 2022, D1-124 to D1-126.
[28]
Ploughman
NO v Pauw
2006
(6) SA 334
(C) at 341E–F; and
Matjhabeng
Local Municipality v Eskom Holdings Ltd
2018
(1) SA 1
(CC) at paras [91] and [92], p. 33 D - G.
[29]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at paras [18] and [19], pp. 603 E to 605 B;
Telkom
SA SOC Ltd v Commissioner, South African Revenue Service
2020
(4) SA 480
(SCA) at paras [10] to [17], pp. 485 to 489; and
Capitec
Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty)
Ltd and Others
2022
(1) SA 100
(SCA) at para [25], pp. 107 and 108, as
well as at paras [49] to
[51], p. 115.
[30]
Bertelsmann,
E
et
al
,
Mars’s
Law of Insolvency in South Africa
,
Tenth Edition (2019), ISSN (Online) 2224-4743, at §15.15.6, p.
366, as well as
Sheonandan
v Thorne NO
1963
(2) SA 226
(N), where the reference to
section 81
in the headnote
should read
section 82.