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2023
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[2023] ZAECMKHC 28
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Van Zyl and Another v Cloete and Another (3384/2017;2876/2021) [2023] ZAECMKHC 28 (14 February 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
CASE NO.: 3384/2017
Matter heard on:
02 February 2023
Judgement delivered
on: 14 February 2023
In the matter between: -
JOHANNES HENDRIK VAN
ZYL
First Applicant
LOUIS JACOBUS VAN
ZYL
Second Applicant
and
PJ
CLOETE
First Respondent
THE HOLLARD INSURANCE
COMPANY LIMITED
Second Respondent
In re:
CASE NO.: 3384/2017
PJ
CLOETE
Plaintiff
and
JOHANNES HENDRIK VAN
ZYL
First Defendant
LOUIS JACOBUS VAN
ZYL
Second Defendant
And in re:
CASE NO.: 2876/2021
In the matter between: -
JOHANNES HENDRIK VAN
ZYL
First Plaintiff
LOUIS JACOBUS VAN
ZYL
Second Plaintiff
and
THE HOLLARD INSURANCE
COMPANY LIMITED
Defendant
JUDGMENT
SMITH
J:
[1]
The applicants apply for the consolidation of two actions in terms of
Uniform Court
Rule11. In the one matter (case number 3384/2017), the
first respondent instituted action against the applicants for damages
suffered
as a result of a veldfire that originated on their farm,
which is adjacent to his farm. During March 2019, the parties’
respective
attorneys allegedly entered into a settlement agreement in
terms of which, inter alia, the merits were conceded on the basis of
an 80/20 apportionment in favour of the first respondent. When it
subsequently became apparent that the applicants denied that
they
gave instructions to their attorneys to settle the matter, he amended
his particulars of claim to place reliance solely on
the agreement.
He thereafter set the matter down for adjudication of the issue as to
whether the agreement was valid and binding
on the applicants.
[2]
On 12 February 2020, the applicants brought a substantive application
for the matter
to be postponed sine die. The postponement was sought
on the grounds that they intended instituting proceedings against
their insurers,
the Hollard Insurance Company Limited (Hollard), in
Gauteng, and thereafter to apply for the matter to be transferred to
the Eastern
Cape Division and consolidated with case 3384/2017. The
applicants thereafter issued summons against Hollard in the Gauteng
High
Court and successfully applied for the transfer of the case to
the Makhanda High Court, under case number 2876/2021.
[3]
In terms of Rule 11, the court may order the consolidation of
separate actions if
it appears to it convenient to do so. The main
considerations are the convenience to the court and the parties, the
avoidance of
multiple actions and attendant costs, and the
possibility of substantial prejudice to any of the parties. (
New
Zealand Insurance Co Ltd v Stone
1963 (3) SA 63
(C), at 69A-C)
[4]
The applicants’ claim against Hollard is premised on a contact
of insurance.
They aver in their particulars of claim that Hollard is
obliged to render them harmless in the event of fire damage to a
neighbouring
property and Hollard’s repudiation of their claim
pertaining to damages suffered by the first respondent is unlawful.
[5]
Ms
Beard
, who appeared for the applicants, submitted that the
first respondent’s pleaded case in case number 3384/2017 is
that his
claim has been compromised in terms of an agreement reached
by the First Respondent’s attorney and Honey Attorneys, who
acted
for Hollard. If the evidence in case number 2876/21 shows that
Hollard had unlawfully repudiated the applicants’ claim, then
the former will be obliged to indemnify the applicants in respect of
the first defendant’s claim. The settlement agreement,
if
established by the first respondent, will then be enforceable against
Hollard as the subrogated defendant in case number 3384/2017.
[6]
If, however, the evidence establishes that Hollard lawfully
repudiated the applicants’
claim and their version is accepted
that Honey Attorneys did not represent them and were accordingly not
mandated to conclude a
settlement agreement on their behalf, then
subrogation could not have occurred and no valid settlement agreement
could have been
concluded.
[7]
She argued that the same evidence regarding the compromise will be
required in both
actions and the same witnesses will be required to
testify. It is thus manifest that the applicants will incur
unnecessary legal
costs if the actions are not consolidated. In
addition, the court will be seized with two separate actions in which
similar issues
fall for adjudication. There will then also be the
real risk of different courts making differing findings in respect of
the same
facts or issues of law. She submitted that it will thus be
convenient for the cases to be consolidated and heard together.
[8]
Mr
Janse van Rensburg
, who appeared for the first respondent,
submitted that after the amendment to the latter’s particulars
of claim, it is the
first respondent’s pleaded case that Honey
Attorneys acted on behalf of the applicants when they concluded the
agreement.
He submitted that the adjudication of the issue regarding
the conclusion of the agreement by the applicants’ attorneys
and
the first respondent’s attorneys will thus only involve two
witnesses, namely the attorneys who represented them when the
settlement agreement was concluded. The issues to be tried between
the applicants and Hollard are thus fundamentally different
to the
very confined issue that will fall for decision in his case against
the applicants. The former action involves the adjudication
of the
insurance agreement, an issue in which he has no interest.
[9]
He submitted, in addition, that the first respondent has already been
substantially
prejudiced by the delays caused by the applicants’
attempts to consolidate the matters and it is inevitable that
consolidation
will result in further delays. The court will be loath
to order consolidation in the face of such manifest and substantial
prejudice
to one of the parties, or so he argued.
[10]
The first respondent, in terms of his amended particulars of claim,
aver that the settlement
agreement was concluded between Mr Buchner
of Honey Attorneys, representing the applicants, and Mr van Biljon,
who represented
him. This is therefore the only issue that will fall
for adjudication at the trial in respect of case number 3384/2017.
[11]
As mentioned earlier, the applicants’ claim against Hollard is
premised on a contact of
insurance. They aver in their particulars of
claim that Hollard’s repudiation of their claim on 25 June
2019, was unlawful.
They consequently did not accept that repudiation
and hold Hollard liable in terms of the contract of insurance to
indemnify them
or pay a contribution in respect of any damages proved
by the first respondent. They therefore seek an order, inter
alia,
that in the event that judgment is granted in favour of the
first respondent, Hollard will be liable to indemnify them,
alternatively
to make a contribution in terms of the contract of
insurance.
[12]
I therefore agree with Mr
Janse Van Rensburg
that the court
will not be required to adjudicate the same disputes when trying the
cases and that different witnesses will most
likely be required to
testify in each case. To my mind, the prejudice to the first
respondent if the matters are consolidated will
be substantial. There
has already been a delay of almost three years, which had been caused
by the applicants’ endeavours
to apply for consolidation. And
it appears unavoidable that there will be further substantial delays.
The first respondent will
therefore effectively be forced to stand
around and ‘kick his heels’ while the applicants’
claim against Hollard
grinds along, waiting for the adjudication of
an issue in which he has no interest.
[13]
There is nothing before me to show that the consolidation of the
cases will be convenient to
the court or the first defendant. There
is no indication that consolidation will serve to expedite
proceedings, reduce costs or
that the court will only be required to
make one finding in respect of the factual disputes or legal issues
involved in both cases.
On the contrary, the cases involve disparate
issues which would best be adjudicated separately. The first
respondent’s claim
against the applicant, after the amendment
of his particulars of claim, hinges on the adjudication of very
confined issue and will
probably only last for a day. There can
therefore be little doubt that consolidation will result in a
substantial increase in legal
costs for him. To my mind, it is
manifest that the prejudice he will suffer cannot not be ameliorated
by a costs order. I am therefore
not convinced that it will be
convenient to order consolidation of the two cases.
[14]
In the result the following order issues:
(a)
The application is dismissed with costs.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicants
Adv.
M Beard
Whitesides
53
African Street
MAKHANDA
(Ref.:
Nunn/sw/C10664)
Counsel
for the 1
st
Respondent:
Adv.
FG Janse Van Rensburg
Neville
Borman & Botha
22
Hill Street
MAKHANDA
(Ref.:
J Powers/Rene)