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[2010] ZAWCHC 592
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Mittal Steel South Africa L t/a Vereeniging Steel v Pipechem CC and Another (7027/07) [2010] ZAWCHC 592 (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
,d
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