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[2010] ZAWCHC 589
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Mittal Steel South Africa Ltd t/a Vereeniging Steel v Pipechem CC and Another (7027/07) [2010] ZAWCHC 589 (1 December 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NO:7027/07
DATE
:
1 December 2010
In the matter between:
MITTAL STEEL SOUTH
AFRICA LTD
t/a
VEREENIGING STEEL
….............................................................................................
Applicant
and
PIPECHEM
CC
….............................................................................................................
1
st
Respondent
MICHAEL
LANE N.O.
…...................................................................................................
2
nd
Respondent
JUDGMENT
CLEAVER, J
This
is an application to join the second defendant as a party to the
action in which the first respondent is the defendant and
the
applicant is the plaintiff. The application stems from an order made
by Acting Judge
Schippers
in
this division on the 23
rd
of
October 2009.
The order was to the
effect that the plaintiff, that is the applicant before me, was
directed to join Mr M Lane N.O. and the liquidator
of Bell
Engineering (Pty) Limited, that is the second respondent before me,
as a necessary party to the above action by not later
than Friday 20
November 2009.
The order followed on an
analysis by the judge of some very inexact pleadings which had been
placed before him on behalf of the
first respondent, who at all
times in the action between the plaintiff and the defendant had been
represented by the managing
member of the first respondent. I
mention this because I note from the rather voluminous files that
the first respondent was
advised on more than occasion by judges of
this division to employ legal representation, as it was apparent
that the pleadings
which had been filed on behalf of the first
respondent were prolix, unnecessary and by no means of assistance in
establishing
precisely what claims the first respondent intended to
make.
The judge, in analysing
pleadings of this nature concluded that the first respondent, as
defendant in the main action, had established
a counter claim which
in his view was for the return of the goods against either the
plaintiff, the insolvent company as represented
by its liquidator,
Lane, or both, and it was on that basis that he concluded that the
liquidator had a legal interest in the
subject matter of the
litigation and might be prejudicially affected by any order which
might be made.
I have examined the
counter claim once more, and I regret that in my view it is not
apparent from the counter claim that the defendant
was seeking the
return of the goods in question from either the plaintiff or the
liquidator. The counter claim is to the effect
that the first
respondent, as defendant, is entitled to claim the return of goods
said to be subject to reservation of ownership
in favour of the
defendant, from the plaintiff, because the plaintiff allowed these
goods to be installed in its plant when it
was aware of the fact
that the defendant claimed ownership of the goods. The fact that the
defendant avers that the second respondent
knew of its claim to the
ownership of the goods does not mean that the defendant has claimed
against the second respondent for
return of the goods, and in fact
the counter claim makes it clear that the counter claim is against
the plaintiff.
In any event the
defendant has also made it clear that it is counterclaiming against
the plaintiff because it says it cannot claim
the goods from the
second respondent, as the goods are no longer in the possession of
the second respondent.
Counsel for the second
respondent is accordingly correct, when he resists the application
to join the second defendant on the
basis that no case or claim has
been made out against the second defendant.
In the circumstances the
application must fail, and all that remains is to decide on an
appropriate order as to costs.
The applicant and the
first respondent are in agreement that the cost of the application
should stand over for later consideration.
Counsel for the second
respondent submits that his client was brought to court
unnecessarily, that he has no wish to be joined,
that he is not
involved in the dispute between the applicant and the first
respondent. This is perfectly correct. There may be
something to be
said for the view that the second respondent could have adopted the
view that there was no need for him to object
to being joined as he
would not be prejudiced thereby since he was not involved in the
matter. That would have been an approach
which he could have adopted
had the papers merely been served on him. He could then have decided
whether to abide or to join.
The position is somewhat different
here; here he is being brought to Court and obliged to become a
party to an action against
his will, and where no claim has been
made out against him.
I consider therefore
that he is entitled to resist the application.
I have some sympathy
also for both the applicant and the first respondent. The first
respondent filed the application in order
to comply with the court
order. While the first respondent did not ask for the order which
was granted on 23 October that order
was the direct result of the
first respondent's managing member continuing to represent the first
respondent personally, instead
of obtaining proper legal advice
which the first respondent could well afford. In doing so he had
extended the course of the
trial unnecessarily and produced a series
of totally inadequate and sometimes un-understandable pleadings.
While a Court would
perhaps be guarded in making a costs order against an individual who
has sought personally to protect his
interests in a court the time
has passed in this particular matter where that should be a
consideration. In any event the first
respondent has had legal
representation for some considerable time and it seems clear that
proper consideration was not given
to the ambit and effect of the
order which had been granted previously. I consider therefore that
the second respondent is entitled
to his costs.
In the result I make the
following order:
1)
The application to join the second
respondent
is dismissed and the first respondent is
ordered
to pay the second respondent's costs in
opposing
the application;
2) As between the
applicant and the first defendant the question of costs will stand
over for determination at a later stage.
CLEAVER, J
Ids
I.