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2023
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[2023] ZAFSHC 346
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Mafuma Consulting (Pty) Ltd v Brandfort Forum and Others (5520/2021) [2023] ZAFSHC 346 (30 August 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
No.:
5520/2021
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO
MAGISTRATES: YES/NO
In
the matter between:
MAFUMA
CONSULTING (PTY) LTD
Applicant
And
BRANDFORT
FORUM
First
Respondent
INA
BEUKES N.O.
Second
Respondent
JOHAN
ENGELBERTUS FOURIE N.O.
Third
Respondent
MASILONYANA
LOCAL MUNICIPALITY
Fourth
Respondent
LEJWELEPUTSWA
DISTRICT MUNICIPALITY
Fifth
Respondent
FRANS
BESTER PROSTHUMUS N.O.
Sixth
Respondent
In
re:
BRANDFORT
FORUM
N.O.
First
Applicant
INA
BEUKES N.O.
Second
Applicant
JOHAN
ENGELBERTUS FOURIE N.O.
Third
Applicant
And
MASILONYANA
LOCAL MUNICIPALITY
First
Respondent
LEJWELEPUTSWA
DISTRICT MUNICIPALITY
Second
Respondent
MAFUMA
CONSULTING (PTY) LTD
Third
Respondent
JUDGMENT
BY:
VAN
RHYN, J
HEARD
ON:
27 JULY 2023
DELIVERED
ON:
30 AUGUST
2023
[1]
The question that arises with this opposed application is whether it
is appropriate for this court
to grant the relief sought by the
applicant in its Notice of Motion which provides as follows:
“
1.
That
FRANS BESTER PROSTHUMUS N.O
.
be joined as the sixth respondent in the rescission application under
case number 5520/2021;
2.
That the headings in this matter henceforth reflect the sixth
respondent as the sixth respondent;
3.
Granting leave to the applicant to amend the headings of all of the
documents filed of record
in the rescission application to reflect
the First Respondent as “Brandfort Forum” in order to
reflect such joinder;
4.
That all documents filed of record be served upon the party joined in
terms of prayer 1,
2 and 3 within 10 (ten) days of the date of this
order;
5.
That the costs of the application shall be costs in the rescission
application and in the
event of any opposition from the parties
intended to be joined or the respondents, that party or parties shall
bear the costs occasioned
by the opposition.”
[2]
The parties to the present application have a long litigious
history. The applicant is Mafuma
Consulting (PTY) Ltd, a
private company with its registered address and principal place of
business at Rivonia, Gauteng.
During September 2021 a service
level agreement was concluded between Masilonyana Local Municipality,
the fourth respondent and
the applicant for the installation of
prepaid electricity meters and the sale of electricity by means of
the prepaid electricity
metering within the area of the Masilonyana
Local Municipality.
[3]
Masilonyana Brandfort Forum (“Brandfort Forum”) is an
association with perpetual succession
which conducts its activities
as the Masilonyana Brandfort Forum Trust with registration number
IT0[…] (T) (the “Trust”).
The trustees of the
Trust, as per the Letter of Authority issued by the Master of the
High Court on 13 August 2021, are Ina Beukes,
Johan Engelbertus
Fourie and Frans Bester Posthumus. The first respondent in this
application is cited as Brandfort Forum. The
second respondent is
cited as Ina Beukes N.O. and the third respondent as Johan
Engelbertus Fourie N.O.
[4]
The fifth respondent is Lejweleputswa District Municipality, a
municipality contemplated in section
2 of the Local Government:
Municipal Systems Act operating under the care of the municipal
manager with its offices situated at
Welkom, Free State Province. The
Sixth respondent, in the heading, is Frans Bester
Prosthumus
and, in paragraph 11 of the founding affidavit, is cited as Frans
Bester Posthumus.
[5]
On 5 November 2021 the applicant was restrained from continuing to
install any further prepaid
meters in said area subsequent to an
interim interdict granted by this court on application by Brandfort
Forum and the trustees
of the Trust. On 21 November 2021
Brandfort Forum and the trustees of the Trust issued a review
application under the above
case number which served before court on
an unopposed basis on 20 February 2023. On 10 March 2023
judgment in the review
application was handed down. It is
against the judgment on review, that the applicant issued its
rescission application.
The review judgment granted the relief
sought by Brandfort Forum and the trustees of the Trust, including
Frans Bester Posthumus
N.O.
[6]
In its rescission application, applicant cited Ina Beukes N.O. as the
first respondent and Johan
Engelbertus Fourie N.O. as the second
respondent. Due to an error the applicant failed to cite Frans Bester
Posthumus N.O., the
remaining trustee of the Trust, as a party to the
application for rescission. The respondents filed their answering
affidavit and
raised a point of non -joinder of Frans Bester
Posthumus and the fact that Brandfort Forum was not cited correctly.
[7]
The opposition to the rescission application resulted in the present
application for the joinder
of Frans Bester
Prosthumus
N.O. as
the sixth respondent and the amendment of description of the first
respondent from Brandfort Forum N.O. to Brandfort Forum.
[8]
The application for joinder is opposed by the first and second
respondents on the basis that the
trustees of the Trust were clearly
and lucidly reflected in the review application, the court order in
the review application as
well as in the answering affidavit deposed
to in opposition of the rescission application. Furthermore, the
applicant already reflects
the sixth respondent in the heading even
though the sixth respondent has not been joined to the rescission
application. The joinder
of the third trustee of the Trust is opposed
on the basis that no person by the name of Frans Bester
Prosthumus
,
as indicated in prayer 1 of the applicant’s Notice of Motion,
is a trustee of the Trust.
[9]
In paragraph 5.3 of the respondents answering affidavit it is
contended that the applicant is
solely responsible for the
non-joinder of the third trustee of the Trust as well as the
incorrect citation of the first respondent.
Notwithstanding the
applicant’s contention that the reason for the non-joinder of
Frans Bester Posthumus N.O. and the misnomer
in respect of the
Brandfort Forum are purely as a result of a clerical error, it in the
replying affidavit, deny the contents of
paragraph 5.3 made by the
first and second respondents that the applicant is responsible for
the errors which it now seeks to rectify.
[10] At
the hearing of this application Ms Matome, on behalf of the
applicant, and after being questioned whether
an application for
amendment of the notice of motion are moved for, replied that no such
application will be made during the hearing
of the matter. The
applicant will proceed with an application for an amendment of the
third trustee’s surname at a
later stage.
[11]
Mr. Snellenburg SC, counsel on behalf of the first and second
respondents, replied that in light of the applicant’s
failure
to request an amendment of the notice of motion, the application for
joinder of Frans Bester
PROSTHUMUS
N.
O.
remains opposed
on the basis that joinder can therefore not succeed vis-à-vis
the sixth respondent as it will merely constitute
a misjoinder and
the non-joinder will remain. I agree.
[12]
Subsequent to the hearing of the matter Ms Matome submitted, via
email, case law regarding the amendment
of an incorrectly cited
party. I have perused the judgment in
Foxlake
Investment (Pty) Ltd v Ultimate Raft Foundation Design
[1]
which deals with an application to amend the citation of one of the
parties and whether such amendment would amount to a substitution
of
a defendant or the correction of a misnomer and furthermore, whether
the service of the original summons served to interrupted
prescription. However, the issue in the application at hand
remains the failure to amend the misnomer of the party to be
joined
by the applicant.
[13]
Mistakes in pleadings and applications are a common phenomenon and
where there is an error in the citation
of a party, as in this matter
regarding the failure to cite Frans Bester Posthumus N.O and the
incorrect citation of Brandfort
Forum, the solution is to apply for
the joinder of the correct party coupled by an appropriate amendment.
Frans Bester Posthumus
N.O. is already represented and has been
a party in the litigation preceding this application. It is common
cause that the
uncited trustee of the Trust should be joined,
alternatively, that the heading should be amended to correctly
reflect Frans Bester
Posthumus N.O as a party in the rescission
application.
[14]
Regarding the costs of this application I take into account that
subsequent to delivery of the joinder application
the attorney acting
on behalf of the respondents, Mr T O’Reilly of Symington De Kok
Attorneys, addressed a letter to the
attorneys acting on behalf of
the applicant on the 18
th
of May 2023 indicating the
following:
“
However,
in an attempt to curtail further unnecessary litigation costs, we
hold instructions not to object to your client’s
proposed
amendment or to your client’s proposed application for joinder,
subject thereto that your client tenders the costs
occasioned by the
proposed amendment as well as the proposed joinder application.
We note that your client does not tender
the costs occasioned by the
proposed amendment.”
And further.
“
In
your client’s founding affidavit to the joinder application it
is confirmed that your client agrees with the point in law
of non-
joinder. The aforesaid amendment as well as the joinder
application is thus necessitated by your client’s failure
to
properly join all the relevant parties. Our clients had to
properly consider the aforesaid notice to amend as well as
the
joinder application and insist that your client tenders the cost
occasioned thereby.
We urgently await your
written confirmation in this regard, failing which we hold
instructions to formally oppose the application
for joinder on this
basis.
We confirm that this
letter shall be made available to the Honourable Court in support of
our clients’ position if necessary.
However, we trust
that this shall not be necessary.”
[15]
The applicant did not tender costs where after the first and second
respondents filed a notice to oppose
as well as an answering
affidavit. On behalf of the applicant it was argued that the
provisions of Rule 10(4) (b) of the Uniform
Rules of Court do not
provide that an applicant should tender costs. Furthermore, the first
and second respondents are, as contended
in the replying affidavit,
“… attempting to set an unprincipled precedent for any
litigant to extort payment from
the other party in order for the case
to proceed unopposed”.
[16]
Mr Snellenburg SC, with reference to
The
Minister of Home Affairs v Ahmed and Others
[2]
took issue with the insults directed at the first and second
respondents and their legal team. Examples of the accusations
and
insults contained in the papers ranged from “attempts to
solicit money”, costs of perusal of the application are
as a
result of the “
mala
fides
opposition” of the application, and the respondents to have
“…opted to apply a pungent and unprofessional tactic
in
this application”.
I agree with the
submissions made by Mr Snellenburg SC. There is no room for abuse or
insults in court proceedings.
[17] I
am of the view that had the joinder application sought to join the
correct person and to alleviate the
non-joinder, the applicant would
still have been constrained to tender the first and second
respondents’ costs for perusal
and consideration of the joinder
application. There is simply no justification for the cost of
the joinder to be cost in
the rescission application. In any event,
the prayer for the joinder of Frans Bester
Prosthumus
N.O. has
not been amended to reflect the joinder of Frans Bester Posthumus
N.O. and as a result the application stands to fail.
[18]
The relief prayed for in prayer 3 of the Notice of Motion regarding
the amendment of the citation of the
first respondent to read
Brandfort Forum and not Brandfort Forum N.O is not opposed.
[19]
ORDER:
Accordingly, it is
ordered that:
1.
The applicant is granted leave to amend the
heading of all the documents filed of record in the rescission
application under case
number 5520/2021 to reflect the First
Respondent as “Brandfort Forum”.
2.
The application for the joinder of Frans
Bester Prosthumus N.O., to be joined as the Sixth Respondent in the
rescission application
under case number 5520/2021 is dismissed.
3.
The applicant shall pay the costs of the
application.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Applicant:
ADV.
M MATOME
Instructed
by:
WEBBERS
ATTORNEYS
BLOEMFONTEIN
On
behalf of the
1
ST
2
ND
Respondents:
ADV.
N SNELLENBURG SC
Instructed
by:
SYMINGTON
DE KOK ATTORNEYS
BLOEMFONTEIN
[1]
(144/15)
[2016] ZASCZ 54 (1 April 2016).
[2]
(A102/17)
[2019] ZAGPHC 19
(14 February 2019) at [39].