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[2022] ZAECQBHC 29
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Minister of Public Works and Infrastructure and Another v Swarts (2596/2020) [2022] ZAECQBHC 29 (9 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case No. 2596/2020
In the matter between: -
THE
MINISTER OF PUBLIC WORKS AND
First Applicant
INFRASTRUCTURE
THE
MINISTER OF JUSTICE AND CORRECTIONAL
Second Applicant
SERVICES
and
LINEEN
SWARTS
Respondent
Coram:
Bands AJ
Date heard:
7 September 2022
Delivered:
9 September 2022
JUDGMENT
BANDS
AJ
:
[1]
The applicants, the defendants in the main
action, seek leave to appeal against the whole of my judgment and
order granted in favour
of the respondent, as plaintiff, delivered on
12 August 2022.
[2]
The test to be
applied in applications of this nature finds legislative expression
in
section 17 of the Superior Courts
Act, 10 of 2013 (“
the Act
”),
which provides that leave to appeal may only be granted where the
judge concerned is of the opinion that the appeal would
have a
reasonable prospect of success, or that there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
[3]
The
Supreme Court of Appeal has on more than one occasion had the
opportunity to consider what constitutes a reasonable prospect
of
success, which is stated to be as follows:
[1]
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote, but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of
success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be
a sound, rational basis for
the conclusion that there are prospects of success on appeal.
”
[4]
The applicants bring their application in
terms of sections 17(1)(a)(i) and (ii) of the Act.
[5]
It
is incumbent upon an applicant, in an application for leave to
appeal, to set out the grounds of appeal upon which it relies,
clearly and succinctly, in clear and unambiguous terms, so as to
enable the court and the respondent to be fully appraised of the
case
which the applicant seeks to make out and which the respondent is to
meet in opposition of the application.
[2]
The applicants’ notice of application for leave to appeal is
not a model of clarity, and in most instances contends that
the court
erred, firstly in its findings; and secondly, in its application of
the legal principles to the facts at hand. Startlingly
absent from
the notice of application for leave to appeal, particularly in
respect of the applicants’ fourth ground of appeal,
being
“
application
of the law to the facts
”,
is any indication as to the manner in which the court erred in
applying the, now settled, legal principles to the facts
at hand.
[6]
Insofar as the applicants contend that
there are reasonable prospects of success as envisaged by section
17(1)(a)(i) of the Act,
five grounds of appeal are relied upon, each
of which I deal with
a seriatim
,
insofar as is necessary to do so.
The
applicants’ first and second ground of appeal
[7]
The first ground of appeal as set out in
paragraph 1, including paragraphs 1.1 to 1.4 of the notice of
application for leave to
appeal, in essence attacks my finding that
there was no merit in the applicants’ special plea of
non-joinder insofar as
Sky Ground
is
concerned. The second ground of appeal, appearing in paragraphs 2 to
9 of the notice of appeal, is predicated on my dismissal
of the
applicants’ second special plea of mis-joinder of the second
applicant to the proceedings.
[8]
To the extent that the legal principles
pertaining to joinder were not addressed in my judgment, given the
ultimate finding to which
I came, I shall deal with same in greater
detail here under.
[9]
It
is settled law that the joinder of a party to proceedings is only
required as a matter of necessity, and not of convenience.
The
substantial test is whether the party that is alleged to be a
necessary party has a direct and substantial interest in the
matter,
more commonly stated as a legal interest in the subject matter of the
litigation, which may be affected prejudicially by
the judgment of
the court in the proceedings concerned.
[3]
[10]
Insofar as the alleged non-joinder of
Sky
Ground
is concerned, the applicants, at
trial, as well as during the application for leave to appeal, failed
to indicate how the judgment
sought against the applicants, by the
respondent, which judgment was subsequently granted by me, would or
could prejudicially affect
the legal interests of
Sky
Ground
. This too is not apparent from
the applicants’ plea filed of record; their notice of
application for leave to appeal; or
in their written submissions in
support of the application for leave to appeal handed up at the
hearing of the matter.
[11]
Whilst
the aforesaid is dispositive of the applicants’ special plea of
non-joinder, it is apposite to highlight that the argument
on behalf
of the applicants at trial went as follows:
[4]
“…
I
would like to briefly just deal with the legal
principles
of misjoinder and nonjoinder. The first principle is that must arise
on the pleadings. It has arisen the points of misjoinder
and
nonjoinder had arisen from the pleadings. Then the second point, is
that if we can find nonjoinder, this will be found in Rule
10 of the
Superior Court Practice, Volume 2 and the principles as set out on
nonjoinder and misjoinder are set out there and it
also goes further
to say that if one can just briefly define non joinder. It is the
failure of the plaintiff to join a particular
defendant. That is what
it essentially is. Misjoinder is the joining of either several
plaintiffs or defendants in one circumstance
which the law does not
sanction i.e., the objection is that the wrong plaintiff are assuming
or the wrong defendant or defendants
are being sued. That is the
point that was made with the points raised there.
”
[12]
The
high-water mark of the applicants’ argument, as it developed at
trial in respect of non-joinder, was that the respondent
sought to
hold the applicants liable for the conduct of
Sky
Ground
on the basis of vicarious liability and for this reason,
Sky
Ground
ought to be brought before court.
[5]
This too was the argument that was advanced, although in not so many
words, at the hearing of the application for leave to appeal.
This
contention was rejected by me in the main action and I have dealt
fully with my reasons for such finding in my judgment. Insofar
as the
applicants, in the application for leave to appeal, have raised new
legal contentions in respect of the manner in which
the respondent’s
case was pleaded, I deal with same hereunder at the appropriate
juncture.
[13]
Turning to the issue of misjoinder, raised
on the pleadings in respect of the second applicant. It cannot be
gainsaid that the second
applicant against whom judgment was sought
(and thereafter granted), had (and has) a legal interest in the
subject matter of the
litigation, which may be (and subsequently is)
affected prejudicially by the judgment of the court in the
proceedings concerned.
[14]
Uniform Rule 10(3) reads as follows:
“
Several
defendants may be sued in one action either jointly, jointly and
severally, separately or in the alternative, whenever the
question
arising between them or any of them and the plaintiff or any of the
plaintiffs 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.”
[15]
Correctly
so, at no stage in the proceedings was it contended by the applicants
that the respondent’s particulars of claim
lacked averments
which are necessary to sustain a cause of action against the second
applicant. It is trite that an action is based
on both facts and law,
such facts, if proven, would sustain in law the cause of action
relied upon.
[6]
The respondent’s
claim against the first and second applicants is founded on delict.
The pleaded cause of action against
both of the applicants is founded
on the same incident, taking place at the same time and place.
[16]
Regard being had to what I have stated
above, it is startling that the second applicant contends that: (i)
it does not have a direct
and substantial interest in the litigation;
(ii) a judgment of the court will not affect the interests of the
second applicant
prejudicially; and (iii) there is no live
controversy between the respondent and the second applicant on the
particulars of claim.
[17]
The plea on behalf of the second applicant,
if properly construed, is no more than one of a denial of liability,
which does not
fall within the ambit of mis-joinder and accordingly
the special plea raised in this regard is ill conceived.
[18]
For the above reasons, I am of the view
that there are no reasonable prospects that another court will come
to a different conclusion
on the issues of non-joinder and
mis-joinder.
The
applicants’ third ground of appeal
[19]
The applicants’ third ground of
appeal, as set out in paragraph 10, including sub-paragraphs 10.1 to
10.8 of the notice of
application for leave to appeal, pertains to
the formulation of paragraph 6 of the respondent’s particulars
of claim.
[20]
Due to an oversight, I note that my
judgment contained a typographical error in that certain words were
omitted in my recordal of
the content of paragraph 6 of the
respondent’s particulars of claim. Whist nothing turns on this
error, regard having been
had to the pleadings at the time of writing
my judgment, I repeat the relevant portion of the said paragraph
herein, with the previously
omitted words being underlined for ease
of reference. The said paragraph reads as follows:
“
6.
The Plaintiff’s slip and fall was caused by, and ascribable to,
the negligence of the First Defendant
,
alternatively the Second Defendant, alternatively both Defendants,
and/or one or more of their employees and/or cleaning contractors,
who acted within the course and scope of their employment, and
who
were negligent in one or more or all of the following respects:”
[21]
In short, the applicants take issue with
the manner in which the respondent utilised the expression “
and/or
”
in paragraph 6 of his particulars of claim, and concomitantly, the
manner in which I dealt therewith.
[22]
The applicants’ contention is that
the said expression has been the subject of “
judicial
disapproval”
and “
endangers
”
the “
accuracy in the pleadings
”.
In essence, the main complaint on behalf of the applicants is that
the use of such expression resulted in the applicants
being
prejudiced or embarrassed and subjected to a trial by ambush. I pause
to mention that this was not raised by the applicants
at trial and
accordingly, was not dealt with by me in my judgment.
[23]
Not only is the aforesaid an incorrect
assessment of the present state of our law, but such allegations are
misleading.
[24]
Insofar as the applicants belatedly now
contend that they were prejudiced; embarrassed; or subject to a trial
by ambush in that
they at all stages understood the respondent’s
pleaded case to be founded solely on vicarious liability for the
alleged wrongs
committed by
Sky Ground
,
such contentions can be dismissed out of hand.
[25]
The applicants, in their request for trial
particulars, dated 4 June 2021, requested the following trial
particulars from the respondent:
“
1.2
T
he plaintiff is requested to
explain with when references made that the plaintiff’s ‘slip
and fall was caused by the
ascribable to the negligence of the first
defendant’ which grounds of negligence are ascribable to the
first defendant only.
Full details and particularity are requested.
1.3
The plaintiff is requested to explain what negligence is ascribable
to the second defendant. Full details
and particularity are
requested.
1.4
The plaintiff is further requested to explain whether there are
similar grounds of negligence that is (sic)
ascribable to both first
and second defendants. Full details and particularity are requested.
”
[26]
Accordingly, the applicants, were already
at that stage under no misapprehension as to the fact that the
respondent’s particulars
of claim, ascribed negligence to the
first applicant; alternatively, the second applicant; further
alternatively, to both applicants,
and not merely to
Sky
Ground
. It does not lie in the mouth of
the applicants to now contend otherwise. The aforesaid was not
disputed on behalf of the applicants,
following the aforesaid having
been raised by the respondent’s counsel in argument during the
application for leave to appeal.
[27]
Whilst
the applicants placed reliance on the judgment in
Berman
v Teiman
[7]
to advance their third ground of appeal, such judgment, whilst citing
the difficulties that the courts have had in the past with
the
expression “
and/or
”,
utilised predominantly in a contractual context and not in the
context of pleadings, is not an authority for the conclusion/s
which
the applicants seek to draw. The court in
Berman
was
of the view that meaning ought to be given to the said words and that
they must be read both disjunctively, as well as conjunctively.
[28]
The
aforesaid approach was endorsed by Ponnan JA, writing the unanimous
judgment of the Supreme Court of Appeal in
Brink
v Premier of the Free State
,
[8]
who succinctly stated at paragraphs [11] and [12] as follows:
“
[11]
The matter is essentially one of interpretation. According
to the 'golden rule' of interpretation the language in a document is
to be given its grammatical and ordinary meaning, unless this would
result in some absurdity, or some repugnancy or inconsistency
with
the rest of the instrument
.
[12]
The first difficulty in the interpretation of the relevant words in
clause 2 is created by the use of the expression 'and/or'.
Those
words must in the context of the clause be read disjunctively as well
as conjunctively. If that is done, then it is clear
that what the
clause envisages is a second option to renew on either:
(a)
the same conditions; or
(b)
new conditions; or
(c)
a combination of (a) and (b).
It
is not in dispute that the qualifier, 'as will be mutually agreed',
which is couched in the future tense, is applicable to a
renewal in
terms of either (b) or (c). The sole issue for determination
therefore is whether it applies as well to a renewal under
(a). Upon
a natural construction of the words of clause 2 they do not signify,
I think, that the qualifier is rendered inapplicable
to (a).
There
appears to be no reason for the limitation of the ordinary
grammatical meaning of the phrase. It has not been shown why such
a
limitation of the ordinary meaning of the phrase is either necessary
or desirable or what absurdity or repugnancy would arise
should the
phrase be given its ordinary grammatical meaning
.”
[29]
The aforesaid comments are apposite herein.
Accordingly, if the language utilised in paragraph 6 of the
respondent’s particulars
of claim are given their ordinary
grammatical meaning, negligence on behalf of the first applicant’s
cleaning contractor,
Sky Ground
,
is not the only negligence upon which the respondent relies in his
pleadings, this being consistent with what I have stated in
paragraph
10 of my judgment.
[30]
Further and in any event, had the
applicants been of the view that the manner in which the respondent
had formulated his pleadings
was vague and embarrassing, it was open
to the applicants to make use of their remedies in accordance with
Uniform Rule 23. The
fact that they did not opt to do so, speaks for
itself.
[31]
For the said reasons, any argument on
behalf of the applicants that (i) I erred in the interpretation of
the respondent’s
pleaded case; or (ii) that the applicants were
prejudiced; embarrassed; or subject to a trial by ambush, cannot be
sustained. I
am accordingly of the view that there are no reasonable
prospects that another court will come to a different conclusion in
respect
of the applicants’ third ground of appeal.
The
applicants’ fourth ground of appeal
[32]
The applicants’ fourth ground of
appeal, particularised in paragraphs 11 to 20 of the notice of
application for leave to appeal,
broadly takes issue with the manner
in which I applied the prevailing legal principles to the facts of
the matter.
[33]
Having said that, the applicants do not
state in what respects they contend that I erred in applying the, now
settled, legal principles
to the facts at hand.
[34]
In paragraphs [39] to [62] of my judgment,
I dealt extensively with the legal principles insofar as they are
applicable to the facts
of the present matter and same need not be
repeated herein.
[35]
The
applicants accept that insofar as the enquiry under (a) and (b) of
the test as set out in
Langley
Fox Building Partnership (Pty) Ltd v De Valence
[9]
is concerned, same had been established. This was in any event
apparent from the evidence at trial. There can accordingly be no
doubt that the reasonable possibility of a person slipping and
falling in the passages of the court building, as a consequence
of a
wet floor, was foreseeable. The applicants do not take issue with my
finding in paragraph [52] of my judgment, in that the
legal duty as
pleaded, was established by the respondent in respect of both
applicants.
[36]
Whilst
it is not clear from the wording of the applicants’ notice of
application for leave to appeal, nor in the applicants
written
submissions, it was argued that I failed to properly apply the legal
principles set out in
Chartaprops
16 (Pty) Ltd and Another v Silberman
[10]
to the facts of the matter. The argument advanced was that
Chartaprops
16 (Pty) Ltd
is authority for the proposition that the legal duty, as established,
was discharged by the mere appointment of
Sky
Ground
,
which the applicants, in their plea, contend to be a “
competent
and professional independent contractor
”.
In other words, it was argued on behalf of the applicants that in
addition to the aforesaid, they need not do more to discharge
the
legal duty on them. I disagree.
[37]
Leaving aside my finding that the
applicants had failed to establish on the evidence that
Sky
Ground
was a competent and professional
independent contractor, the court, in
Chartaprops
16 (Pty) Ltd
, in declining to hold
Chartaprops 16 (Pty) Ltd
liable,
pertinently found that the latter did not merely content itself with
contracting the cleaning contractor to perform the
cleaning services
in the shopping mall, but that it did more, as per paragraph [46] of
the judgment of Ponnan JA. It goes without
saying that this court is
bound by the findings of the Supreme Court of Appeal.
[38]
In paragraphs [56] to [61] of my judgment,
I dealt with the question as to whether or not the steps taken by the
applicants in the
circumstances of this matter were reasonable. For
the reasons stated therein, and in the exercise of my value judgment,
the answer
to such question was in the negative. The applicants have
cited no grounds upon which my value judgment was exercised
improperly.
[39]
Accordingly, I do not think that there are
reasonable prospects that another court will come to a different
conclusion.
The
applicants’ fifth ground of appeal
[40]
In light of what I have stated above, it
follows that the applicants’ fifth ground of appeal in respect
of the costs of the
matter, must fail.
[41]
The broader argument advanced on behalf of
the applicants in terms of section 17(1)(a)(ii) of the Act, in that
there is some other
compelling reason why the appeal should be heard,
is that (i) the matter is of public importance; (ii) is of importance
to the
applicants; and (iii) there are now conflicting judgments on
the matter under consideration, is without merit.
[42]
This matter is no different to, and of no
greater importance than, any other “spillage” case or any
other case involving
the legal principles pertaining to the liability
(or lack thereof) of an employee for an independent contractor. The
findings in
such cases are inextricably linked to the peculiar facts
of each matter.
[43]
It is not so that there are conflicting
judgments on the matter under consideration, this court having
followed the findings of
the Supreme Court of Appeal, and the
applicants having failed to establish any basis for challenging such
findings. In this regard,
I note that the proposed appeal is to the
Full Bench of the Provincial Division, which in any event is bound by
the Supreme Court
of Appeal.
[44]
Accordingly, I am of the view that there
exists no reasonable prospect of success in the contemplated appeal.
I am further of the
view that there exists no compelling reason why
such appeal should be heard.
[45]
In the result, the following order shall
issue:
1.
The applicants’ application for leave
to appeal is dismissed with costs.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Applicants
Adv Dala
Instructed
by:
State Attorney, 29 Western Road, Central
For
the Respondent
Adv Niekerk
Instructed
by:
Boqwana Burns Inc. 84 – 6
th
Avenue, Newton Park
[1]
S
v Smith
2012
(1) SACR 567
(SCA)
para 7.
Maphana
and Another v S
(174/2017)
[2018] ZASCA 8 (1 March 2018).
[2]
Songono
v Minister of Law and Order 1996 (4) SA 384 (E).
[3]
Aquatur
(Pty)
Ltd v Sacks
1989
(1) SA 56
(A)
at 62A-F;
Bowring
N.O. v Vrededorp Properties CC
2007 (5) SA 391
(SCA) at paragraph 21;
Transvaal
Agricultural Union v Minister of Agriculture and Land Affairs
2005
(4) SA 212
(SCA)
paras 64-66).
[4]
Record
of proceedings p 105 at line 25 and p 106 at lines 1 to 16.
[5]
Record
of proceedings p 107 at lines 1 to 11; read with p 116
[6]
Alberts
and Others v The Minister of Justice and Correctional Services
(Case no 404/2021)
[2022] ZASCA 25
(9 March 2022) at paragraph [13].
[7]
1975
(1) SA 756
(W).
[8]
2009
(4) SA 420 (SCA).
[9]
1991
(1) SA 1 (A).
[10]
[2008] ZASCA 115
;
2009
(1) SA 265
(SCA).