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[2021] ZAECPEHC 60
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Janssen Products CC v Joubert Galpin & Searle Incorporated and Another (896/2019) [2021] ZAECPEHC 60 (30 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No.: 896/2019
Date
Heard: 11 November 2021
Date
Delivered: 30 November 2021
In
the matter between:
JANSSEN
PRODUCTS
CC
Applicant
and
JOUBERT
GALPIN & SEARLE INCORPORATED
First Respondent
NEVILLE
DU
PLESSIS
Second Respondent
JUDGMENT
EKSTEEN
J:
[1]
There is currently litigation pending between the applicant, Janssen
Products
CC (the plaintiff in the action), and the first respondent,
Joubert Galpin and Searle Incorporated (Joubert Galpin) (the
defendant
in the action). In this application Janssen Products sought
to join the second respondent, Mr Neville du Plessis, as a defendant
in the action, either as a necessary party, alternatively, as a
matter of convenience in terms of Rule 10 of the Uniform Rules
of
Court (the rules). Whilst the second respondent did not enter an
appearance to defendant Joubert Galpin opposed the application.
[2]
Mr Bruce Percival Williams previously traded as East Cape Lighting in
Gqeberha. In the course of the business he incurred debt in respect
of goods sold and delivered to him by Janssen Products. On 29
June
2012 he signed an acknowledgement of debt (the acknowledgement) in
favour of Janssen Products in the amount of R2 170 798.81.
In terms
of the acknowledgement Mr Williams undertook to pay the said amount
together with interest thereon upon demand.
[3]
On the same day Mr du Plessis bound himself, in writing, as the
surety
and co-principle debtor,
in solidum,
in favour of
Janssen Products, for the due fulfilment by Mr Williams of his
obligations set out in the acknowledgement.
[4]
During October 2012 Janssen Products instructed Joubert Galpin, an
established
firm of attorneys in Gqeberha, to assist it to recover
the amounts owed by Mr Williams. Thus, in September 2014 Joubert
Galpin,
acting in accordance with the mandate of Janssen Products,
demanded payment from Mr Williams of the amount due under the
acknowledgement.
When payment was not forthcoming Joubert Galpin
issued summons, against Mr Williams only, in the Port Elizabeth
Magistrate’s
Court on 16 September 2014.
[5]
By April 2016 Janssen Products had become disillusioned with the
progress
in the matter and terminated Joubert Galpin’s mandate.
New legal advisors were appointed and they obtained judgment against
Mr Williams on 22 January 2018 for payment of the amount of R2 170
796.81 together with interest and costs of the action.
[6]
However,
execution on the judgment proved problematic. After various
appearances in terms of section 65 of the Magistrate’s
Court
Act
[1]
Mr Williams deposed to an
affidavit confirming that he has no money or disposal property
available to satisfy the judgment. This
led to the issue of summons
in the action on 8 April 2019, wherein Janssen Products alleged that
Joubert Galpin had been negligent
in the performance of their mandate
in various respects. In particular it alleged that they had failed to
commence proceedings
against Mr du Plessis, either as a co-defendant
in the Magistrate’s Court, alternatively, by means of separate
legal action.
They said that they had obtained advice that their
right of action against Mr du Plessis arising from the suretyship had
become
prescribed on 29 June 2015, three years after the signature of
the suretyship. Had it not been for the alleged negligent conduct
of
Joubert Galpin, they contended, they would have been successful in
their claim against Mr du Plessis and, accordingly, they
sought
payment from Joubert Galpin in the amount of R2 170 796.81 together
with interest and legal costs.
[7]
Joubert
Galpin disputed their claim and filed an exception. The exception is
not before me, however, it is apparent that Joubert
Galpin contended
that, in law, the claim against Mr du Plessis, as surety, did not
become prescribed on 29 June 2015 because the
running of prescription
had been interrupted by the service of summons upon Mr Williams, as
the principle debtor, in September
2014. The merit of the exception
appears to be unassailable
[2]
and Mr
Nel,
who appeared on behalf of Janssen Products,
[3]
did not suggest the contrary.
[8]
The filing of the exception led to a demand being made upon Mr du
Plessis.
He insisted that the claim against him had indeed become
prescribed. Janssen Products accordingly resolved to hold the
exception
in abeyance pending the application to join Mr du Plessis
as a defendant in the action. Hence these proceedings.
[9]
In these proceedings Janssen Products said that they intended to
amend
their existing particulars of claim to include Mr du Plessis as
a defendant in the action and they annexed to their founding
affidavit
a draft “Amended Particulars of Claim”. No
notice of intention to amend has been delivered and Janssen Products
did
not ask in these proceedings for leave to amend. The draft
Amended Particulars of Claim reflected a claim against Mr du Plessis,
as first defendant, for the same amount that had been claimed from
Joubert Galpin in the action. It reflected, too, a different
cause of
action against Joubert Galpin, in which it sought payment from
Joubert Galpin, in the event of Mr du Plessis being unable
to pay the
amount claimed. I revert to this issue below.
[10]
As I have
explained, the joinder was sought primarily on the grounds that Mr du
Plessis is an essential, or necessary, party to
the action. Where a
third party has, or may have, a direct and substantial interest in
any order which a court might make in proceedings,
or, where such an
order cannot be sustained or carried into effect without prejudicing
that party, it is a necessary party and
should be joined in such
proceedings.
[4]
A “direct
and substantial interest” is “an interest in the right
which is the subject matter of the litigation
and not merely a
financial interest which is only an indirect interest in such
litigation.
[5]
In
South
African Riding for the Disabled Association
[6]
the Constitutional Court confirmed that what was required was a
“legal interest” in the subject matter of the case
which
could be prejudicially affected by the order of the court
[7]
.
In
Amalgamated
Engineering
the Supreme Court of Appeal
[8]
employed two tests in order to decide whether a third party had a
direct and substantial interest. The first was to consider whether
the party would have
locus
standi
to claim relief concerning the same subject matter.
[9]
The second was to examine whether a situation could arise, in which,
because the third party had not been joined, any order the
court
might make would not be
res
judicata
against him, entitling him to approach the court again concerning the
same subject matter and possibly obtain an order
irreconcilable with
the order made in the first instance.
[10]
[11]
Janssen Products’ case against Joubert Galpin in the action is
for damages arising
from the alleged negligent breach of their
mandate. It is an implied term of a mandate given to an attorney that
they will exercise
the skill, adequate knowledge and diligence
expected of an average practicing attorney. Janssen Products would be
required in the
action to prove that Joubert Galpin had been
negligent, in the sense that they had failed to exercise such skill,
knowledge and
diligence as is to be expected of an average practicing
attorney, and that it had suffered damages as a consequence of such
negligence.
I do not consider that Mr du Plessis can have any legal
interest in the subject matter of such litigation. If the action were
to
succeed, and Joubert Galpin ordered to pay damages, it could have
no impact on any right or interest which Mr du Plessis holds.
Similarly, if the action were to be dismissed Mr du Plessis’s
interests remain unscathed. Mr du Plessis is not an essential
party
to the action.
[12]
The thrust of the argument on behalf of Janssen Products was, as I
have said, based on
the alleged intention at some future stage to
seek an amendment to the Particulars of Claim. As adumbrated earlier,
Janssen Products
said that they intend to amend their pleadings so as
to introduce a new claim, as the main claim, against Mr du Plessis
for payment
of the aforestated amounts in terms of the Deed of
Suretyship concluded in 2012. The amendment, it said, would seek, as
an alternative,
to recover such money from Joubert Galpin in the
event that Mr du Plessis is found not to be liable or being unable to
pay. If
such an amendment were to be granted, then, in that event, so
the argument went, the issue of prescription of the claim against
Mr
du Plessis would be material both for their cause of action against
him and against Joubert Galpin.
[13]
It seems to me that there are two fundamental difficulties with this
approach. First, as
I have said, Janssen Products have not delivered
a notice in terms of Rule 28 of their intention to amend their
Particulars of
Claim and they have not sought leave to amend in these
proceedings. The consequence thereof is that Joubert Galpin have not
had
the opportunity, to which they are entitled in terms of Rule 28,
to object to the proposed amendment. On the existing cause of action,
Mr du Plessis has no direct or substantial interest in the action.
[14]
Second, in these proceedings Mr
Shapiro
, on behalf of Joubert
Galpin, argued that the proposed claim against Joubert Galpin would
be excipiable because it is premature
as it is speculative, being
based upon allegations of harm which have not yet arisen. It can
therefore safely be accepted that
an application for the proposed
amendment will be opposed. The application for amendment, as I have
said, is not before me and
it would be inappropriate to consider it
on its merits in these proceedings. Suffice it to say that it seems
to me,
prima facie
, that there is a reasonable prospect that
the application for an amendment, as contained in the draft Amended
Particulars of Claim,
would not be granted.
[15]
I turn to
the joinder of convenience. Rule 10(3) provides for the joinder of
defendants in one action whenever the question arising
between them
and the plaintiff depends upon the determination of substantially the
same question of law or fact which, if such
defendants were sued
separately, would arise in each separate action. At common law, too,
a defendant could be joined to an action
on the grounds of
convenience, equity, the interests of justice, saving of costs and
the avoidance of a multiplicity of actions.
[11]
The principle is not contentious. The common law joinder would
ordinarily occur to ensure that persons who have an interest in
the
subject matter of an existing dispute, or have rights which may be
affected by the judgment of the court in such a dispute,
are before
court.
[12]
The question of
joinder arises when there is an issue in dispute in the action which
requires such a joinder. As demonstrated earlier,
Mr du Plessis has
no interest in the subject matter of the existing litigation. Thus,
the question of joinder cannot arise in this
matter unless the
proposed amendment were adjudicated upon and granted simultaneously
with the joinder application. Janssen Products
have chosen not to
seek an amendment in these proceedings.
[16]
In the result, the application for the joinder is dismissed with
costs.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv G Nel SC instructed by R
G Robinson Attorney c/o Friedman
Scheckter, Gqeberha
For 1
St
Respondent: Adv W N Shapiro SC instructed by
Joubert Galpin & Searle Inc, Gqeberha
[1]
Magistrate’s Court Act 32 of 1944
[2]
Jans
v Nedcor Bank Ltd
2003 (6) SA 646
(SCA) para [32]
[4]
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A);
Henri
Viljoen (Pty) Limited v Awerbuch Brothers
1953 (2) SA 151
(O) at 165-171;
Ex
Parte Pearson and Hutton
NNO
1967 (1) SA 103
(E) at 107C; and
South
African History Archive Trust v South African Reserve Bank
2020 (6) SA 127
(SCA) at para [30].
[5]
Henri
Viljoen
169, 170; and
Aquatur
(Pty) Limited v Sacks
and
Others
1989 (1) SA 56
(A) at 61J-62G.
[6]
South
African Riding for the Disabled Association v Regional Land Claims
Commission and Others
2017 (5) SA 1 (CC)
[7]
Para [9]
[8]
Then the Appellate Division of the Supreme Court
[9]
Amalgamated
Engineering
at 661
[10]
Amalgamated
Engineering
at 660-661. See also
Herbstein
and Van Winsen: The Civil Practice of the High Court of South Africa
(5
th
ed) at 218
[11]
Sheshe
v Vereeniging Muncipaliaty
1951 (3) SA 661
(A) at 666H;
Rabinowitz
and Another NNO v Ned-Equity Insurance Co Limited
and
Another
1980 (3) SA 415
(W) at 419E
[12]
Ploughmann
NO v Pauw and Another
2006 (6) SA 334
(C) at 341