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[2023] ZAECQBHC 50
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MTO Forestry (Pty) Ltd v Eskom Holdings (SOC) Limited and Another (919/2020; 926/2020) [2023] ZAECQBHC 50 (5 September 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
Date
Heard: 25 May 2023
Date
Delivered: 5 September 2023
Case No:
919/2020
In
the matter between:
MTO
FORESTRY (PTY) LTD
Plaintiff
and
ESKOM
HOLDINGS (SOC) LIMITED
First
Defendant
MINISTER
OF ENVIRONMENT,
FORESTRY
AND FISHERIES
Seocnd
Defendant
and
NELSON
MANDELA BAY
METROPOLITAN
MUNICIPALITY
First
Third Party
CYPHERFONTEIN
379 (PTY) LTD
Second
Third Party
Heard
with
Case
No: 926/2020
In
the matter between:
ANDREA
FRANCO PUGGIA N.O.
First
Plaintiff
DAVID
GRAHAM NEZAR N.O.
Second
Plaintiff
GEORGE
YEROLEMOU N.O.
Third
Plaintiff
NEIL
RUSSEL CRAWFORD N.O.
Fourth
Plaintiff
WELLIE
VICTOR MOSS N.O.
Fifth
Plaintiff
(in
their capacities as the trustees for the
time
being of the WOODBRIDGE TRUST)
and
ESKOM
HOLDINGS (SOC) LIMITED
First
Defendant
MINISTER
OF ENVIRONMENT,
FORESTRY
AND FISHERIES
Seocnd
Defendant
and
NELSON
MANDELA BAY
METROPOLITAN
MUNICIPALITY
First
Third Party
CYPHERFONTEIN
379 (PTY) LTD
Second
Third Party
JUDGMENT
RONAASEN AJ:
Introduction
General
[1]
This judgment, in respect of case number
919/2020 (“the MTO action”), concerns an opposed
application for amendment
(“the application”) and in
respect of case number 926/2020 (“the Woodridge action”)
relates to an exception
(“the exception”).
[2]
As will be apparent from my summary of the
litigation history and the facts underlying the litigation, set out
below, it was appropriate
for the application and exception to be
heard at the same time.
The MTO action
[3]
The plaintiff in this action is MTO
Forestry (Pty) Ltd (“MTO”). In April 2020 it
instituted action against the
first defendant, Eskom Holdings SOC Ltd
(“Eskom”), and the second defendant, the Minister of
Environment, Forestry
and Fisheries (“the Minister”),
seeking the payment of damages from Eskom.
[4]
MTO had the right to and benefit of,
alternatively, bore the risk of profit and loss in respect of certain
plantations and a sawmill
situated on immovable property owned by the
Government of the Republic of South Africa (“MTO’s
property”).
[5]
Eskom is a public utility established to
provide electricity to consumers in South Africa, including to MTO’s
property.
[6]
The Government owns another immovable
property situated to the south-west of MTO’s property, the
management and control of
which was delegated by the Government to
the Minister (“the Minister’s property”).
[7]
Eskom has repeatedly attempted to join the
Nelson Mandela Bay Metropolitan Municipality (“the
municipality”) as a third
party to the MTO action in terms of
the provisions of rule 13 of the Uniform Rules (“rule 13”).
The basis, if
any, of the joinder of the municipality as a third
party is the principal issue for determination in the application.
The Woodridge
action
[8]
In this action the plaintiffs are the
trustees for the time being of the Woodridge Trust (the plaintiffs
and the trust will be collectively
referred to as “Woodridge”).
Woodridge is the registered owner of two immovable properties on
which it conducts
business as a private school known as Woodridge
College and Preparatory School.
[9]
In May 2020 Woodridge instituted an action
for damages against Eskom and the Minister. In this action
Eskom joined the municipality
and MTO as the first and second third
parties, respectively, in terms of rule 13. In the exception,
too, the central question
for determination is the basis, if any, for
the municipality’s joinder.
Summary of the
grounds on which MTO and Woodridge claim the payment of damages from
Eskom
[10]
Both MTO and Woodridge’s claims for
damages against Eskom stem from the same factual scenario. The
grounds for the claims
can be summarised as follows:
10.1.
Eskom owns and, at all material times,
operated the MKSB005 powerline, which extends over several farms;
10.2.
a veld fire started on the Minister’s
property, in the vicinity of poles with numbers 31 and 33 on the
Eskom powerline, between
15:00 and 16:00, on 7 June 2017;
10.3.
the fire spread rapidly in an easterly
direction until it reached MTO’s property where it caused
extensive damage to certain
of the compartments of the plantation and
to the sawmill and its contents;
10.4.
the fire also spread to the Woodridge
properties where it, equally, caused vast damage to the buildings,
other improvements on the
property and the contents of the buildings;
10.5.
Eskom failed to extinguish or reasonably
contain the fire while it was still in its infancy;
10.6.
the fire was the result of the
malfunctioning of Eskom’s equipment caused by wind and/or poor
maintenance and/or lack of inspection;
arcing currents between
powerlines; sparks from the hot aluminium or steel setting the veld
alight; powerlines clashing with overgrown
vegetation beneath the
Eskom line or by induction or electrolysis from the electricity
transmitted by Eskom; and
10.7.
the sole cause of the damage suffered by
MTO and Woodridge was the wrongful and negligent actions of Eskom
(for purposes of this
judgment it is not required of me to analyse
the legal basis on which MTO and Woodridge contend that Eskom acted
wrongfully and
negligently and is liable to it in damages).
Summary of Eskom’s
defence in the MTO action
[11]
Eskom’s defence in its amended plea
in this action can be summarised as follows:
11.1.
there were two fires on 7 June 2017;
11.2.
the first fire started between 10:00 and
10:30 at or directly adjacent to a municipal power utility pole
structure owned and controlled
by the municipality (“the first
fire”). Eskom attributes the cause of the first fire to
the negligence of the
municipality;
11.3.
the second fire commenced between
approximately 15:00 and 15:30, approximately 15 m south-west of Eskom
pole 31, referred to above
(“the second fire”). MTO
attributes the cause of the second fire to the negligence of Eskom
and it is the second
fire which it alleges caused the fire damage
which is the subject matter of its claim for damages against Eskom;
11.4.
Eskom maintains that the second fire was
not caused in the manner alleged by MTO; the first fire and not the
second caused the damage
allegedly suffered by MTO in respect of
which it now claims damages from Eskom;
11.5.
alternatively, if it is found that the
second fire was caused in the manner alleged by MTO then, says Eskom,
it was not the sole
cause of the fire damage suffered by MTO as the
first fire first entered and spread over the MTO property and only
after that the
second fire entered and spread over the property; and
11.6.
thus, Eskom’s alternative defence is
that the first and second fires resulting from the independent
negligent conduct of two
different parties (i.e., the municipality
and Eskom caused the fire damage in respect of which MTO seeks
payment of damages from
Eskom.
Summary of Eskom’s
defence in the Woodridge action
[12]
Eskom attributes the first fire to the
negligence of the municipality and insists that it is this fire which
caused the fire damage
Woodridge suffered and not the second fire,
which Woodridge attributed to the negligence of Eskom, and which is
the subject matter
of its claim for damages against Eskom.
[13]
Over the period 7 June 2017 to 10 June 2017
the first fire spread onto the Woodridge property and caused the fire
damage Woodridge
suffered.
[14]
According to Eskom the second fire, on 7
June 2017, spread but did not reach or burn across the Woodridge
property and that in the
result it is not liable for the fire damage
suffered by Woodridge.
[15]
In the alternative Eskom seeks to join the
municipality in terms of rule 13(1)(b) should it be found that both
fires caused the
fire damage alleged by Woodridge.
Litigation history:
the MTO action
[16]
On 24 April 2020 MTO instituted action
against Eskom and the Minister.
[17]
MTO delivered amended pages to its
particulars of claim on 29 June 2020.
[18]
Eskom’s plea followed on 9 September
2020.
[19]
On 25 September 2020 Eskom issued a third
party notice and annexure in terms of which it sought to join the
municipality and Cypherfontein
379 (Pty) Ltd as third parties in the
action.
[20]
The municipality responded to the third
party notice and annexure by way of an exception on 3 March 2021,
contending that the third
party notice and annexure thereto were
vague and embarrassing, alternatively, lacked averments necessary to
sustain Eskom’s
claims against the municipality. This exception
was opposed and was argued on 16 September 2021. Judgment was
handed down
on 23 November 2021 in terms of which the municipality’s
exception was upheld with costs, the third party notice and annexure
were set aside and Eskom was given leave to amend the notice and
annexure (“the earlier judgement”).
[21]
On 2 February 2022 Eskom delivered an
amended annexure to its third party notice and an amended plea on 21
February 2022.
[22]
The amended third party annexure attracted
a further exception from the municipality, on 24 February 2022.
This caused Eskom
to produce a notice of its intention to further
amend the annexure to the third party notice on 18 March 2022.
Almost inevitably
the municipality objected to the proposed
amendment, on 31 March 2022.
[23]
Eskom, tirelessly, delivered yet another
notice of its intention to amend the annexure to its third party
notice, on 4 May 2022.
Not surprisingly the municipality again
objected to the proposed amendment. This objection resulted in
the application which
I am required to determine, namely a formal
application by Eskom to amend the annexure to its third party notice.
The principal
objection to the amendment is that it would render
Eskom’s annexure to its third party notice excipiable in that
if amended
as asked by Eskom, it would not contain averments to
sustain Eskom’s claims against the municipality.
Litigation history:
The Woodridge Action
[24]
Woodridge issued summons against Eskom on 6
May 2020. Eskom pleaded to the particulars of claim on 2 July 2020.
It amended its plea
on 21 February 2022.
[25]
On 23 July 2020 Eskom issued its third
party notice and annexure in terms of which it sought to join the
municipality and MTO as
third parties to the action.
[26]
The municipality excepted to Eskom’s
third party annexure on 8 March 2021 on the basis that it was vague
and embarrassing,
alternatively, that it lacked averments necessary
to sustain Eskom’s claims against the municipality.
[27]
The exception was opposed by Eskom and the
exception was argued in this court contemporaneously with the
municipality’s exception
to Eskom’s third party annexure
in the MTO action, on 16 September 2021. As stated, the earlier
judgment was handed down
on 23 November 2021 in terms of which the
exception was upheld, with costs, the third party notice and annexure
thereto were set
aside and Eskom was given leave to amend its third
party annexure.
[28]
On 2 February 2022 Eskom’s second
attempt at a third party annexure was produced. The amendment
attracted another exception
from the municipality, on 24 February
2022, which, in turn, prompted a further notice by Eskom to amend its
annexure and the filing
of a further amended annexure on 17 March
2022 and 12 April 2022, respectively.
[29]
The municipality again excepted to the
further amended annexure, on 25 May 2022. This, third, exception led
to yet another notice
by Eskom to amend its annexure to its third
party notice, on 2 November 2022 with the amendment being perfected
on 18 November
2022.
[30]
The municipality delivered its fourth
exception to the latest iteration of Eskom’s annexure to its
third party notice on 7
December 2022. That exception is the subject
of this judgment. It is confined to the ground that the annexure
lacks averments necessary
to sustain Eskom’s claims against the
municipality.
The MTO action and
the application by Eskom to amend its third party annexure
[31]
Central to the application is Eskom’s
reliance on the provisions of the Apportionment of Damages Act, 34 of
1956 (“the
Act”) and in particular section 2(1) thereof,
which is in the following terms:
“
Where
it is alleged that two or more persons are jointly and severally
liable in delict to a third person (hereinafter referred
to as the
plaintiff) for the same damage, such persons (hereinafter referred to
as joint wrongdoers) may be sued in the same action.”
[32]
Given Eskom’s contention that this
provision applies in the circumstances, it contends further that it
is accordingly entitled
to rely on the provisions of rule 13(1)(b) to
obtain the joinder of the municipality as a third party to the MTO
action. This rule
provides that where a party in any action claims
that:
“
any
question or issue in the action is substantially the same as a
question or issue which has arisen or will arise between such
party
and the third party, and should properly be determined not only as
between any party to the action but also as between such
parties and
the third party or between any of them, such party may issue a
notice, hereinafter referred to as a third party notice,
as near as
may be in accordance with Form 7 of the First Schedule, which notice
shall be served by the sheriff.”
[33]
It was held in
Absa
Brokers (Pty) Ltd v RMB Financial Services and Others
2009 (6) SA 549
(SCA) at [15] that the clear purpose of the Act is to
avoid a multiplicity of actions arising “
from
a single loss-causing event
”.
[34]
Eskom proceeds from a flawed premise where
it submits in its heads of argument that the material issues in the
dispute between all
the parties are the same namely whether the fire
damage alleged by MTO was caused by the first or second fires and/or
the converged
fires. There are no such issues in dispute arising from
MTO’s claim. The single loss-causing event on which MTO relies
in
its action is the second fire. It has not averred in its
particulars of claim that it suffered any damage as a result of the
first
fire. It is only Eskom which has introduced the first fire into
the proceeddings.
[35]
Eskom fixates on the words “
the
same damage
” appearing in section
2(1) of the Act to support its contentions. It argues that the first
fire caused MTO’s damage
and that this is the same damage
relied upon by MTO to sustain its claim for damages against Eskom,
which it alleges arose from
the second fire. Kruger AJ, in the
earlier judgment, correctly, in my view, disposed of Eskom’s
argument in this regard,
with reference to sound authority, by
finding in paragraphs [38]-[42] that:
35.1.
the two fires were separate loss-causing
events with separate instances of negligence by separate wrongdoers,
causing separate damage;
and
35.2.
Eskom and the municipality are therefore
not joint wrongdoers for purposes of the Act and the Act does not
find application in this
case.
[36]
In confirmation of the correctness of
Kruger AJ’s approach in the earlier judgment it is apposite to
refer to two further
passages from the judgment in
Minister
of Communications v Renown Food Products
1988 (4) SA 151
(C) in respect of the meaning of the words “
the
same damages
”, at:
36.1.
153J:
“
I
do not agree that the words are ambiguous and there is accordingly no
warrant for ascribing to them any meaning other than the
plain
ordinary meaning, i.e., the very damage or one and the same damage.”
36.2.
154C-D:
“
To
interpret s 2(1) of the Act so as to widen the scope of the words
‘the same damage’ which are unambiguous is not
justified.
The Act specifically defined joint wrongdoers with reference to the
damage that they cause, i.e., the same damage. There
is nothing in
the Act to indicate that the Legislature intended when it used these
words ‘the same damage’, to include
in that phrase both
damage which was clearly not the same damage but caused within an
unspecified period of time after previous
damage, but which was
incapable of being attributed to one cause or the other”.
[37]
As Kruger AJ stated the above-mentioned
judgment was cited with approval by the Supreme Court of Appeal in
Minister of Safety and Security v Rudman
2005 (2) SA 16
(SCA) at [79], where the court stated that:
“
As
was held in
Mkwanazi v Van der
Merwe and Another
1970 (1) SA 609
(A) at 622B - D and
Minister
of Communications and Public Works v Renown Food Products
1988
(4) SA 151
(C), to fall within the Act the two defendants must have
caused 'the same damage' and, where two separate acts of
negligence
have caused different damage and resultant loss to a
plaintiff, each defendant is liable only for such damage as he or she
has
personally caused. There is nothing in the Act which detracts
from this position. See also
Rahman
v Arearose Ltd and Another
[2001]
QB 351
(CA), a judgment of the English Court of Appeal, to which
counsel for the appellants referred, which concerned the meaning of
the
expression 'same damage' in s 1(1) of the United Kingdom Civil
Liability (Contribution) Act 1978 (c 47).”
[38]
The proposed amendment by Eskom to its
third party annexure does not in any meaningful way address the
findings in the earlier judgment
and thus those findings remain of
application. The proposed amendment does not establish any new
factual or legal basis for me
to revisit or distinguish those
findings. In the circumstances the Act is still not applicable.
[39]
Thus, the application stands to be
dismissed, as the proposed amendment would render the annexure
excipiable – it would not
contain sufficient facts to sustain
Eskom’s claims against the municipality. On the facts relied
upon by Eskom there is no
triable issue as between Eskom and the
municipality.
[40]
On those facts the Act and rule 13 do not
apply and thus do not afford Eskom any legal basis for the joinder of
the municipality
as a party to the MTO action. On Eskom’s facts
it is not able to amend its annexure to allow for the Act or rule 13
to be
applicable. I deal with the inapplicability of rule 13 in
more detail, below in the context of the Woodridge action. My
conclusions expressed below apply equally here.
The Woodridge
action and the municipality’s exception to Eskom’s latest
third party annexure
[41]
The only basis for the joinder of the
municipality as a third party to this action relied upon by Eskom is
rule 13(1)(b).
[42]
In terms of its third party annexure Eskom
seeks an order:
42.1.
declaring the degree of negligence of each
party in relation to the fire damage suffered by Woodridge;
42.2.
declaring and determining the amount of
compensation that each party is liable to pay to Woodridge for the
fire damage suffered
by it;
42.3.
declaring that in the event that Eskom is
ordered to pay and paying to Woodridge compensation for all the fire
damage suffered by
it, the municipality and MTO are ordered to make a
contribution to Eskom in respect of the amount paid to Woodridge, and
in accordance
with their respective degrees of negligence;
42.4.
in the alternative, apportioning the amount
of damages awarded in favour of Woodridge against Eskom and the
municipality and MTO
in such proportions as the court may deem just
and equitable having regard to the degrees in which Eskom, the
municipality and
MTO are at fault in relation to Woodridge’s
fire damage, and that the court give judgment separately against
Eskom, the municipality
and MTO for the amount so apportioned.
[43]
This court in
Hart
and Another v Santam Insurance Co. Ltd
1975 (4) SA 275
(ECD) at 277F-G held that under rule 13 all that can
be sought by one alleged wrongdoer against another is an
apportionment of
fault in the form of a declaratory order. The rule
makes no provision for a court granting a judgment sounding in money
in favour
of one alleged wrongdoer against another. The court, in
Hart
, was
also dealing with an exception to an annexure to a third party
notice. In terms of this judgment (by which I am bound) the
relief
envisaged in sub-paragraphs 42.2-42.4 above, contemplates a judgment
sounding in money being granted against the municipality,
which
cannot competently be granted in terms of rule 13. See 277H of the
judgment.
[44]
The relief envisaged by Eskom in
sub-paragraph 42.1 above is untenable, on the facts relied on by
Eskom, where there were clearly
two loss-causing events in the form
of two different fires and two distinct instances of negligence. On
Eskom’s version only
the municipality featured and could be
negligent in relation to the first fire and only Eskom featured and
could be negligent in
respect of the second fire. As between Eskom
and the municipality it is therefore impossible to determine degrees
of negligence
in respect of either the first fire or the second fire.
[45]
Thus, the latest annexure to Eskom’s
third party notice does not disclose the facts necessary to sustain
its claims in terms
thereof. Here too it is clear to me, on the facts
postulated by Eskom, that rule 13 does not apply as it does not give
Eskom a
legal basis for joining the municipality as party to the
Woodridge action.
[46]
The exception must therefore be upheld.
Should Eskom be
afforded a further opportunity to amend the annexure to its third
party notice in the Woodridge action
[47]
My detailed exposition of the litigation
history in respect of both actions has as its purpose to demonstrate
how the litigation
which commenced in April and May 2020 has been
bogged down by Eskom’s numerous unsuccessful attempts to
produce annexures
to its third party notices which were not vague and
embarrassing and which contained averments which were sufficient to
sustain
the claims made in the annexures. As this judgment
demonstrates it is still not able to do so.
[48]
Eskom’s first third party annexures
resulted in the municipality’s exceptions being upheld in the
earlier judgment.
Its further attempts at producing non-excipiable
annexures have been similarly unsuccessful. In summary, the
facts Eskom
relies on do not give it a legal basis for the relief.
It seeks against the municipality. All this has motivated the
municipality to request that, if I uphold the exception, I not afford
Eskom the opportunity to deliver a further amendment in an
to attempt
to make its third party annexure non-excipiable.
[49]
The starting point in considering the
municipality’s request is the judgment in
Group
Five Building Ltd v Government of the Republic of South Africa
(Minister of Public Works and Land Affairs)
[1993] ZASCA 4
;
1993 (2) SA 593
(A) where it was held at 602D-E that in cases where
an exception has successfully been taken to a pleading, of whatever
nature,
the invariable practice of our courts has been to order that
the pleading be set aside and that the pleader be given leave, if so
advised, to file an amended pleading within a certain period of time.
[50]
In
Rowe v Rowe
[1997] ZASCA 54
;
1997 (4) SA 160
(SCA) at 167G-I it was remarked, albeit
obiter
,
that it is doubtful whether the established practice in exception
proceedings of setting aside the pleading excepted to with leave
to
the pleader to amend, if so advised, brooks of any departure and
that, in the rare cases in which a departure from an order
in that
form may perhaps be permissible, one expects to find the reasons for
such departure in the court’s judgment.
[51]
The current state of our law on this issue,
in my view, is effectively summarised in the following passage from
Ocean Echo Properties 327 CC and Another
v Old Mutual Life Assurance Company (South Africa) Ltd
2018
(3) SA 405
(SCA) at [8]:
“
The
upholding of an exception disposes of the pleading against which the
exception was taken, not the action or defence. An unsuccessful
pleader is given the opportunity to amend the plea, even when the
plea has been set aside because it does not disclose a defence.
The
rationale for this seems to be that, although the defence containing
the pleading may be bad, the pleading as such continues
to exist.
Ordinarily therefore the court should grant leave to amend and not
dispose of the matter. Leave to amend is not a matter
of an
indulgence; it is a matter of course
unless
there is a good reason that the pleading cannot be amended
.”
[footnote references omitted] [emphasis supplied]
[52]
I have found, in respect of the Woodridge
action, on the facts put up by Eskom, that rule 13 has no application
and therefore does
not provide Eskom with a basis for joining the
municipality as a party to the action. Throughout the course of this
action and
Eskom’s various attempts to produce a non-excipiable
annexure to its third party notice the underlying facts have always
remained the same and are premised on the occurrence of two fires
commencing at different times of the day at different locations
and
which were separate and distinct loss-causing events. Eskom denies
any involvement in the first fire and does not attribute
any
involvement to the municipality in respect of the second fire. It is
difficult, if not impossible, to conceive that in yet
a further
attempt to amend its annexure, Eskom would be able to postulate a
different set of facts, which would allow for rule
13 to apply. Any
number of attempts by Eskom on the same underlying facts have not
succeeded in making rule 13 applicable.
[53]
Thus, in my view, this matter falls within
the scope of the highlighted qualification in the above-quoted
passage from the
Ocean Echo
judgment as there is good reason why the annexure cannot be amended.
I will therefore not make the usual order which is made when
an
exception to a pleading is upheld and the pleading set aside as a
consequence.
Order
[54]
In view of the conclusions I have reached I
make the following order:
1.
In respect of case number 919/2020
(the MTO action) Eskom’s application, brought on 7 July 2022,
for leave to amend the annexure
to its third party notice is
dismissed with costs, such costs to include the costs attendant on
the employment of two counsel.
2.
In respect of case number 926/2020
(the Woodridge action):
2.1
the Nelson Mandela Bay
Municipality’s exception to Eskom’s amended annexure to
its third party notice, which amended
annexure was filed of record on
18 November 2022, is upheld;
2.2
Eskom’s third party notice and
the above-mentioned annexure thereto are set aside; and
2.3
Eskom is directed to pay the costs
of the Nelson Mandela Bay Municipality, including the costs attendant
on the employment of two
counsel.
O H RONAASEN
ACTING JUDGE OF THE
HIGH COURT
The
Municipality’s representatives:
EAS
Ford SC and L Ntsepe
Instructed
by BNI Attorneys
Eskom’s
representatives:
TJ
Bruinders SC and N Lewis
Instructed
by Norton Rose Fullbright Inc.
c/o
Boqwana Burns Inc.