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[2010] ZAGPPHC 618
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Century Civils CC and Another v Calsicrete Brickworks (Pty) Ltd; In Re: Century Civils CC v Calsibrick (Pty) Ltd (4145/2009) [2010] ZAGPPHC 618 (7 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 4145/2009
DATE: 7 May 2010
In the matter
between:
CENTURY
CIVILS
CC
..............................................................................................................
First
Applicant
TIENIE
VAN DER WESTHUIZEN
CIVIL
.........................................................................
Second
Applicant
ENGINEERING
CONSULTANTS CC
And
CALSICRETE
BRICKWORKS (PTY)
LTD
................................................................................
Respondent
In
re:
CENTURY
CIVILS
CC
.........................................................................................................................
Plaintiff
And
CALSIBRICK
(PTY)
LTD
................................................................................................................
Defendant
JUDGMENT
[1] The applicant
seeks an order to join the second applicant as second plaintiff in
the action under the abovementioned case number.
Secondly, to amend
the particulars of claim dated the 27
th
of January 2009.
[2] Simultaneously
with the issue of the application for "joinder", first
applicant as plaintiff issued a second action
against respondent as
defendant and attached the Particulars of Claim dated the 27
th
of January 2009. The respondent excepted to the Particulars of Claim
in the second action. The exception has not yet been enrolled.
The
plaintiff attempted to effect an amendment to its Particulars and the
defendant objected to the proposed amendment.
[3] In the main
application, first applicant as plaintiff, instituted an action
against Calsibrick (Pty) Ltd for damages allegedly
suffered as a
result of defective paving bricks that they purchased from the
defendant that were used in the construction of roads
and an
intersection for the Lesedi Municipality. It is alleged that the
defects in the manufacturing of the paving bricks only
manifested
itself after the project was completed, and that the plaintiff /
first applicant had to replace the defective pavers
at its own
expense, which resulted in the damages now being claimed.
[4]
The defendant was cited as Calsibrick (Pty) Ltd in the main action,
the applicant now applies for an amendment in terms whereof
if seeks,
inter alia,
to
amend the citation of the defendant to Calsicrete Brickworks (Pty)
Ltd, trading as Calsibrick (Pty) Ltd.
[5] The respondent
in its Answering Affidavit and Heads of Argument contend that the
interlocutory application is defective and
fails to sustain a cause
of action for the relief sought in that applicant attempt, through an
amendment and joinder, to effect
a substitution of the parties. It is
submitted that Calsibrick (Pty) Ltd is a non party to the main action
and can only be introduced
into the main action by way of substantive
application. Counsel for the respondent did not take this point
further during argument
and correctly abandoned it. It is obvious
that the respondent knew that it was the instance intended to the
sued in this action
as it was cited in the particulars of claim under
its trading name Calsibrick (Pty) Ltd and not as Calsicrete
Brickworks (Pty)
Ltd. It is clear that the amendment, as far as the
citation of the respondent as defendant is concerned, is only aimed
at correctly
citing the correct defendant as Calsicrete Brickworks
(Pty) Ltd t/a Calsibrick. I am accordingly satisfied that the initial
citation
of the defendant was an apparent misnomer and not an
endeavour to substitute a non-existing defendant as alleged by
respondent.
[6]
It was submitted further by the respondent in the Opposing Affidavit
that the institution of the second action by the applicant
simultaneously with the interlocutory application was indicative
thereof that applicant had elected to abandon the main action.
This
point was also abandoned during argument. Counsel for the applicant
correctly argued that the issue of abandonment is a factual
issue on
which evidence will be necessary as it requires unequivocal conduct.
In any event, it is open to the respondent to raise
lis
pendens.
[7]
The Respondent claims
lis
alibi pendens
to
object to the joinder. It is argued that this court should in its
discretion, dismiss this application to join by virtue of the
said
pending second action and, in particular, because of failure of the
applicants to have shown good cause to litigate through
identical
actions. Respondent submitted that applicant must be put to an
election as to which action it intended proceedings with
and until it
has done so, the court should not allow the present application to
proceed.
[8]
In
Loader v Durst
Bros (Pty) Ltd
1948
(3) SA 136
(T) at 138 Roper J held that a plea of
lis
alibi pendens
does
not have the effect of an absolute bar to the proceedings in which
the defence is raised. The court intervenes to stay one
or other of
the proceedings, because it is
prima
facie
vexatious
to bring two actions in respect of the same subject matter. It
follows that a plea of
lis
pendens
merely
stays one or other of the proceedings brought in respect of the same
matter and does not require the other action to be dismissed.
In my
view, the balance of convenience and of equity requires that the
question of
lis
pendens
be
dealt within the main action. It will be convenient for the
respondent to plead
lis
pendens
either
in the main action or the second action.
[9] The Respondent
raises the alleged excepiability of the Particulars of Claim as a
ground of objection to the joinder of the second
applicant. The
exception has not been enrolled and is a separate matter that should
be dealt with separately at an appropriate
time.
[10]
In an application for leave to intervene , the intervening party must
show that he has a legal interest, not merely a financial
intererst
in the right which is a subject matter of the litigation and that his
legal interest could be prejudicially affected
by the judgment of the
court. It is sufficient for the applicant to make such allegations as
would show that he has a
prima
facie
case
and that his application is made seriously and is not frivolous. In
this regard see
Ex
Parte Moosa: In Re: Hassim v Harrop - Allin
1974
(4) SA 408
(TPD) at 416 E - H. See Erasmus, Superior Court Practice
pBl/103.
[11] The basis of
applicant's application that second applicant be joined as second
plaintiff in the action is that first and second
applicants
constituted the Tienie van Der Westhuizen joint venture that was
awarded the project for the construction of the Denne
and Akasia
Roads. The Tienie van Der Westhuizen joint venture allegedly suffered
damages as a result of sub-standard interlocking
bricks that were
supplied by the respondent. As the joint venture had suffered
damages, it is necessary that the second applicant
be joined as
second plaintiff as it is a necessary party to the action.
[12]
In my view, the allegations made by the applicants are such that if
they can be proved in the main action, they will be entitled
to
succeed. See
Moosa
In Re: Hassim v Harrop - Allin
1974
(4) SA 408
(TPD) at 416G. I am convinced that the application to join
second applicant as second plaintiff is seriously and not frivolously
made and a proper case for joinder has accordingly been made out.
[13] There remains
the matter of costs to be considered. Rule 69 of the Rules of this
court provides that:-
"Save where
the court authorises fees consequent upon the employment of more than
one advocate to be included in a party and
party bill of costs, only
such fees as are consequent upon the employment one advocate shall be
allowed as between party and party".
[14] Mr P J Venter
SC has asked, in the event of the amendment being allowed, applicants
must pay the opposed costs of the matter
to date hereof. Mr Louw SC
on the other hand tendered the unopposed costs of the amendment. He
argued that the opposition was unreasonable
and vexatious and
respondent must accordingly be ordered to pay the opposed costs of
the application for amendment, including the
costs of two counsel.
[15]
The basic rule is that all costs are in the discretion of the court.
The court must consider whether it was proper or wise
and reasonable
to brief two counsel. See
Law
v Kin
1966
(3) SA 7
(E). The relevant factors to the granting of the costs of
the second advocate includes,
inter
alia,
the
volume of evidence, the complexity of the facts or the law relevant
to the case, the importance of the matter in issue, any
difficulties
or obscurities in the relevant legal principles etc. See
Motaung
v Mothiba,
N.O
1975 (1) 618 (0) at 631.
[16] In my view, the
issues of fact and law in this matter were of not such complexity as
to warrant the employment of two counsel
and the point which was
argued is a crisp one. The issues in the main trial appear simple and
straighforward, involving as they
do, alleged defects in the
manufacture of paving bricks. I do not consider that two counsel were
necessary to argue an opposed
application to amend and joinder.
I consequently make
the following order:
1. Second applicant
is joined as the second plaintiff under case number 4145/2009.
2. Leave is granted
to applicants to amend the Pleadings under case number 4145/2009 to
give effect to the joinder of the second
applicant as the second
plaintiff.
3. Leave is granted
to applicants to amend the Particulars of Claim dated the 27
th
of January 2009 by substituting same with the Particulars of Claim
attached to the replying affidavit as Annexure "AB3B".
4. The respodent is
ordered to pay the opposed costs of the application.
4. The respodent is
ordered to pay the opposed costs of the application.
MATOJANE J