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[2020] ZAECPEHC 4
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Price N.O and Others v Sun Citrus Packers (Pty) Ltd (3223/2017) [2020] ZAECPEHC 4 (6 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO: 3223/2017
Heard
on: 30 January 2020
Delivered on:
06 February 2020
In
the matter between:
RENNIE
CHARLES BLAINE
PRICE,
N.O.
FIRST PLAINTIFF
MICHAEL
LOWELL BLAINE
PRICE,
N.O.
SECOND
PLAINTIFF
ROBIN
OWEN JEFFERSON,
N.O.
THIRD
PLAINTIFF
TORTELLO
INVESTMENTS
N.O.
20 (PTY) LTD
FOURTH
PLAINTIFF
EQUISTOCK
PROPERTIES 7
(PTY)
LTD
FIFTH
PLAINTIFF
And
SUN
CITRUS PACKERS (PTY) LTD
DEFENDANT
JUDGMENT
GQAMANA
J:
[1]
This matter was set down for trial on the separated issues as per
Madam Justice Revelas’
Order of 28 June 2019.
[1]
On the morning of the trial on 29 January 2020, the plaintiffs filed
a substantial application for postponement as well as
for other
relief, including and more importantly a relief that, the Order for
separation of issues taken by agreement be revisited/rescinded.
Through some negotiations between the parties, an agreement was
reached in respect of postponement as well as other relief sought,
save for the issue relating to the revisiting of the Order of Revelas
J referred to above. The main action was accordingly
postponed
sine die
and that the costs occasioned by such postponed were reserved.
[2] Reverting
to the issue at hand, Revelas J on 28 June 2019 made the following
order
by agreement:
“
1.
That the Plaintiffs’ claims 2 and 3 (paragraphs 38, 39, 64, 65,
90 and 91 of the Plaintiffs’
amended particulars of claim, read
in conjunction with the defences pleaded thereto) be and is hereby
separated from the remaining
issues.
2.
That the hearing in regard to the remaining issues be postponed until
judgment
is granted on the issues referred to in paragraph 1 above.”
[3]
The plaintiffs’ application to revisit the aforesaid order was
vehemently opposed
by the defendant.
[4]
As a point of departure, the Order which is the subject matter herein
was granted
in terms of rule 33 (4) of the Uniform Rules and by
agreement between the parties. Rule 33 (4) of the Uniform Rules
of Court
reads:
“
If, in any
pending action, it appears to the Court mero motu that there is a
question of law or fact which may conveniently be decided
either
before any evidence is led or separately from any other question, the
Court may make an order directing the disposal of
such question in
such manner as it may deem fit and may order that all further
proceedings be stayed until such question has been
disposed of, and
the Court shall on the application of any party make such order
unless it appears that
the questions cannot
conveniently be decided separately
.” [my
emphasis]
[5]
The order of Revelas J was not proceeded by or granted pursuant to a
formal application
in support of the agreed separation but was moved
on an informal basis.
[6]
The parties are in agreement that such an order is interlocutory in
nature and this
court has the authority to revisit same.
[2]
I agree that this court has the power to revisit the order which is
the subject matter herein.
[7]
Both parties referred the court in detail on the purpose of rule 33
(4) which is aimed
at facilitating the convenient and expeditious
disposal of litigation.
[3]
[8]
Mr Buchanan SC, counsel for the plaintiffs, referred the court to
some authorities
wherein the Supreme Court of Appeal admonished
parties in dealing with the procedure on rule 33 (4) on an informal
basis.
[4]
[9]
In
Adlem
(
supra
) the Supreme Court of Appeal said this:
“
[5]
It appears that the parties adopted, and the court sanctioned, an
informal approach based on rule 33
(4). That is not
acceptable. As this court held in ABSA Bank Ltd v Bernert
2011
(3) SA 74
(SCA) para 21:
‘
It is
imperative at the start of a trial that there should be clarity on
the questions that the court is being called upon to answer.
Where issue are to be separated rule 33 (4) requires the court to
make an order to that effect. If for no reason but to clarify
matters for itself a court that is asked to separate issues must
necessarily apply its mind to whether it is indeed convenient
that
they may be separated, and if so, the questions to be determined must
expressed in its order with clarity and precision’.
[10]
In this case too, the informal procedure which was adopted by the
parties in obtaining the order
of Revelas J must be frowned up and
parties must refrain from adopting informal procedures especially in
matters of significance
where issues to be separated are not as clear
as they might think so.
[11]
Mr Buchanan SC, further argued that with the benefit of hindsight and
there being no aspersions
cast against Revelas J, the issues that
were sought to be separated are not discreet but are inextricably
linked and that it was
the fault of the legal representatives to
agree to the separation order.
[12]
Mr Beyleveld SC, counsel for the defendant, argued to the contrary.
His argument is that
claims 2 and 3 are discreet and are able to be
conveniently disposed and are not inextricably linked to claim 1.
His argument
was that claims 2 and 3 are for monetary claims i.e.
whether the defendant was entitled to the remuneration and commission
already
paid to it, whilst claim 1 is for accounting and debatement.
Therefore, so the submissions go, the original idea to separate
was
sound on the pleadings and should stand.
[13]
The question to be answered in this application is whether, it will
be convenient to both parties
for the trial to proceed only on the
separated issues as set out in the Order of Revelas J. The word
“convenient”
in the context of rule 33 (4) conveys not
only the notion of facility or ease or expedience, but also the
notion of appropriateness
and fairness.
[5]
[14]
Not only convenience must be considered but also the fashioning of
the order is equally important.
The questions/issues to be
determined must be expressed by the court with clarity and precision
in its order.
[6]
[15]
I must indicate that having read the pleadings (both the particulars
of claim and the amended
plea) and having regard to the affidavits
filed both by the plaintiffs in this application and the defendant in
opposition thereto,
I hold the view that the issues contested by the
parties in the main action are inextricably link.
[16]
It has also not escaped me that, the source of the entire
lis
is rooted from the contracts entered into between the parties
[7]
attached as annexures “POC1A”, “POC5” and
“POC6” to the plaintiffs’ amended particulars
of
claim. I am alive to the point raised by Mr Beyleveld SC that
claim 1 is for accounting and debatement and that claims
2 and 3 are
for monetary claims. However, it does not appear to me having
read the pleadings as they currently stand and
the affidavits filed
by both parties in this application, that it will be convenient to
separate the hearing and for the trial
to proceed only in respect of
claims 2 and 3.
[17]
In my objective assessment there is an overlap of issues in claims 1
and 3. More so, if
one has regard to the defence pleaded by the
defendant that of prescription, although at the last moment during
hearing, Mr Beyleveld
SC abandoned the prescription defence in
respect of claim 1. Despite such abandonment, I still hold the
view that there will
be an overlap of evidence and it will not be
convenient to separate the issues.
[18]
Insofar as the issue of costs are concerned, although the plaintiff
argued that the costs should
follow the results, but if one has
regard to the reasons and the manner in which the order was obtained
separating the issues and
the concession by Mr Buchanan SC, that it
is the parties’ legal representatives that are at fault in
agreeing to the separation
and to fashioning the relief in the manner
in which it currently stands. On those bases it will not be
fair to mulct one
party with a costs order at this stage, therefore
the costs of this application should be the costs in the trial.
[14]
In the circumstances the following order is issued:
1. The
order of Revelas J taken by agreement on 28 June 2019 for separation
of the issues is revisited and set
aside.
2. The
costs of this application shall be costs in the main trial.
________________________
N
W GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
For
the plaintiffs
:
R. G.
Buchanan SC (with D Gess)
Instructed
by
:
Rushmere, Noach Inc.
5
Ascot Office Park
Conyngham Road
Greenacres
PORT ELIZABETH
Tel:
041 399 6700
For
the defendant
:
A.
Beyleveld SC (with T. Zietsman)
Instructed
by
:
Schoeman Oosthuizen Inc.
167 Cape Road
PORT ELIZABETH
Tel:
041 373 6878
Fax:
041 373 5303
[1]
The Order is at pages 260 – 261 of the bundle of notices and I
shall revert to this Order later.
[2]
Kelbrick and Others v Nelson Attorneys and Another
[2019] JOL 43037
(SCA) at para [28], see also Wallach v Lew Geffin Estates CC
[1993] ZASCA 39
;
1993
(3) SA 258
(AD) at 262 – 263.
[3]
Denel (Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) at 485 A –
E.
[4]
See for instance Adlem v Arlow
2013 (3) SA 1
(SCA) at para 5 and
also ABSA Bank Ltd v Bernert
2011 (3) SA 74
(SCA) at para [21].
[5]
See: Erasmus Superior Court Practice at D1 – 437.
[6]
FirstRand Bank Ltd v Clear Creek Trading 12 (Pty) Ltd
2018 (5) SA
300
(SCA) at 306 C – E.
[7]
Using the word “parties” loosely so for the time-being.