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[2022] ZALMPPHC 5
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Axton Matrix Construction CC v Roads Agency SOC Limited and Another (HCAA 05/2021) [2022] ZALMPPHC 5 (18 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA;
LIMPOPO
DIVISION, POLOKWANE.
CASE
NO. HCAA 05/2021.
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
DATE:
19/01/2022
DJP
SEMENYA M.V
In
the matter between
AXTON
MATRIX CONSTRUCTION CC
APPELLNAT
And
ROADS
AGENCY LIMPOPO SOC LIMITED
FIRST
RESPONDENT
MATLA
CONSTRUCTION CC
SECOND
RESPONDENT
JUDGMENT
SEMENYA
DJP:
[1]
The first respondent in this appeal (plaintiff in the main action and
first respondent in the interlocutory application) instituted
action
proceedings against the appellant (second defendant in the action
proceedings and applicant in an interlocutory application)
and the
second respondent (first defendant in the main action and second
respondent in the appeal and the interlocutory application).
The
claim for damages in the action proceedings arises out of two
separate contracts entered into between the first respondent
as the
employer, the appellant as the contractor and the second respondent
as the engineer appointed by the first respondent to
design the road
and to supervise the works of the appellant. The contracts were for
the upgrading of the road referred to as Road
D3537 situated within
the Waterberg area in Limpopo Province from gravel to a bitumen
surface. The contract between the appellant
and the first respondent
is governed by the General Conditions of Contract for Construction
Works, 2010 (the GCC) to which the
second respondent is not a party.
[2]
This appeal is against the order granted by Makgoba JP, in which an
application for separation of issues raised in the appellant’s
special plea from other issues as envisaged in Rule 33(4) of the
Uniform Rules of Court, launched by the appellant, was dismissed.
Leave to appeal against the judgment and order was also dismissed.
This appeal comes before us with leave to appeal having been
granted
by the Supreme Court of Appeal.
[3]
The grounds of appeal are that the court a quo did not decide at all
what was presented to it for determination
i.e
whether the
issue sought to be separated, if found in favour of the appellant,
would end the
lis
between the appellant and the first
respondent. That the court
a quo
has instead usurped the
function of the court which would otherwise preside over the trial of
the separated issues had the application
been granted, in finding
that:
i. it will not be
worthwhile to separate the issues in the matter because the second
special plea of waiver (
pactum de non petendo
) is not
sustainable on the basis that the email relied upon by the appellant
was without prejudice. The appellant argues that the
court arrived at
this finding without, firstly, giving the appellant an opportunity to
present more evidence in addition to the
email that it had initially
relied on in the founding affidavit and, secondly that the order as
it stands brings finality to this
issue avails the first respondent
with a plea of res judicata;
ii. with regard to the
special plea of time-bar, that the court a quo declined to grant
separation on the basis that the second
respondent will probably join
the appellant back into the proceedings because it is blaming it for
the defective road. The appellant
argues that this finding is
irregular in that the court made it on the bases of what the
appellant refers to as “the what
ifs”;
iii. The appellant states
that the finding of the court
a quo
that separation of the
issues will be inconvenient and expensive to the first respondent as
it will have to prepare its case against
the appellant and the second
respondent in two separate proceedings is irregular. The appellant
argues that this in itself is an
anticipation on the part of the
court that the appellant was entitled to the order sought in the
application for separation.
[4]
I agree with the first respondent, for the reasons that shall follow
later in this judgment, that this is an oversimplification
of the
test that was to be applied to the issues before the court
a quo
as developed by our courts in earlier decisions.
[5]
It is imperative to state right from the outset that this court finds
itself in an invidious position in that, despite the fact
that the
issues between the parties in this appeal and in the main application
revolve around the pleadings, none of the parties
deemed it necessary
to make same part of their respective papers. Pleadings
therefore do not form part of the appeal record.
This court will have
to accept that the assertions made by each of the parties and the
court
a quo
in relation to the pleadings, in as far as same is
not disputed by either of the parities, is correct.
[6]
It appears from the papers filed of record that the first
respondent’s claim is premised on the terms of the contract
entered into between the first respondent and each of the other
parties, alternatively on delict which is based on the allegations
that appellant owed the first respondent a legal duty of care to do
its work properly and not to have ignored the fact that the
second
respondent had provided it with incorrect designs and instructions
(as alleged by the appellant in its plea). The appellant
raised two
special pleas to the first respondent’s particulars of claim.
In the first special plea, the appellant asserts
that the first
respondent’s claim is time-barred as the disputes between the
parties are regulated by clause 10 of the GCC.
It is the appellant’s
averment that clause 10.2 and 10.3 of the GCC requires the parties to
submit a dissatisfaction claim
to the engineer (the second defendant
in the action) within a period of 28 days and to serve the said
engineer with a dispute notice,
after another 28 days, in the event
of an unresolved claim, failing which the aggrieved party shall have
no further right to raise
any further dissatisfaction on such matter.
[7]
It is common cause that the first respondent alleged in its
particulars of claim that it became aware of the fact that there
are
defects in the work done by the appellant on the 30 June 2017. The
first respondent nonetheless instituted action proceedings
on the 22
August 2018, way beyond the required 28-day period. The assertions
that the first respondent failed to comply with clause
10.2 and 10. 3
are therefore not denied.
[8]
In the second special plea, the appellant asserts that the first
respondent is not entitled to pursue any claim it might have
against
it on the basis that the first respondent’s attorney, one Ms
Mangena, addressed an email dated the 17 May 2018 to
its attorneys of
record, in which the attorney for the first respond stated that they
will not be proceedings against it. This
is a plea of waiver (
Pactum
de non Petendo
).
[9]
It was the appellant’s case in the application in terms of Rule
33(4) that should the court find that the first respondent’s
claim
is indeed time-barred, the
litigation between the appellant and the first respondent would be
put to an end. As regards the alternative
delictual claim, the
appellant asserted that the delictual claim arose out of or in
connection with the contract and that it falls
to be determined by
adjudication/arbitration. The appellant asserted that the two special
pleas can be determined without the leading
of evidence and further
that the appellant will be required to participate in a protracted
trial in the merit issues involving
the first and second respondents.
The second respondent elected to abide the decision of the court. The
application for separation
was therefore opposed by the first
respondent only.
[10]
At paragraph [28] of the judgment dismissing the application for
separation of the issues, Makgoba JP stated the following:
“
In my view the
following are compelling reasons why a separation of issues in terms
of Rule 33(4) should not be ordered:
“
28.1 The facts
of the disputes between the Plaintiff and the First Defendant and
Second Defendant are interwoven. The facts of the
disputes are
substantially similar and dependent upon the determination of the
same question of law.
28.2. First Defendant
blames Second Defendant for not performing properly or at all in
terms of the construction contract and the
Second Defendant in turn
blames the First Defendant for providing Second Defendant with an
incorrect design and instructions.
28.3. The Plaintiff is
not sure whether it is the First Defendant alone alternatively Second
Defendant alone alternatively both
Defendants who are to blame for
the damages suffered by the Plaintiff and more in particular for
which part of the damages suffered
by the Plaintiff the First
Defendant is liable and for which is the Second Defendant liable.
28.4 First Defendant
is contractually obliged to participate in any of the dispute
resolution processes between the plaintiff and
the Second Defendant
as envisaged in clause 10 of the GCC.
28.5 It would be
inconvenient and expensive for Plaintiff to prepare and present its
case on two occasions, namely, in the proceedings
against Second
Defendant and then again in separate Court proceedings against the
First Defendant. The two sets of proceedings
will escalate the costs
and duplicate the costs of adjudicators and arbitrators and court
proceedings.
28.6 The issue of
whether or not the Plaintiff’s claims are time-barred (the
first Special Plea) cannot be swiftly and speedily,
in a separate
plea, be adjudicated. The determination of the issues will still
involve extensive evidence to be led in court- and
a shortcut cannot
just be taken.
Defence of Waiver
(Pactum de non Petendo).
[29] Second Defendant
in its special plea alleges that Ms Mangena, the Plaintiff’s
attorney, on behalf of the Plaintiff, on
17 May 2018 in an email
stated: “We hereby confirm that we will not be proceeding with
action against your client, Axton
Matrix.”
The Second Defendant
states that by doing that, Ms Mangena, while being fully aware of the
Plaintiff’s rights in terms of
the construction agreement,
undertook not to institute action against the Second Defendant.
[30] Whether the
contents of the said email constitute waiver/pactum de non petend is
a matter of law. In my view the special plea
of waiver is not
sustainable.
The contents of the
email does not, in my view, constitute an unequivocal waiver of
Plaintiff’s rights to institute court
proceedings against the
Second Defendant. It will not be worthwhile to separate issues in
this matter in order to deal with the
special plea of waiver- in a
separate trial...”
[11]
The first respondent contends that the order of the court
a
quo
is
not appealable as it is nothing more than a ruling in an
interlocutory application which is not of a final effect or
definitive
of the matter. In response, the appellant argued that the
court
a
quo
decided to deal with the merits of the issues it was not called upon
to decide instead of deciding whether the issues should be
separated.
The appellant further contends that should the order be left as the
it stands, the first respondent may successfully
raise a defence of
res
judicata
in the subsequent trial. Reliance in this regard was placed on the
decision in
Marsay
v Dilley
[1]
where Corbett CJ stated that:
“
The law
relating to the appealability of decisions of a court of provincial
or local division was re-examined relatively recently
in the case of
Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Division
1987 (4) SA 569
(A). As this judgment shows, this Court has over the
years adopted an increasingly flexible approach to the question of
appealability.
The general principle which, I think, may be extracted
from the judgement is the following: where a trial Court has under
some
competent procedure (such as an application under Rule 33(4)
made an order which has the effect of being a final decision (ie one
which cannot be corrected or altered or set aside by the trial judge
at a later stage of the trial) and the decision is definitive
of the
rights of the parties and has the effect of disposing of a
substantial portion of the relief claimed by the plaintiff in
the
main action, then this order is a judgment (as understood in sec 20
of the Supreme Court Act 59 of 1959) and is appealable,
despite the
fact that the main action has not been concluded. (See also in this
connection a recent and as yet unreported judgment
of this Court in
the matter of SA Eagle Versekeringsmaatskappy Beperk v Harford,
27.3.92.”
[12]
At paragraph 5 of the Court
a quo’
s judgment, the Court
agreed with the appellant’s contention that the issue that was
to be determined in the application was
not whether or not the second
defendant’s defences are good, but that it is whether, if the
two special pleas are determined
in favour of the second defendant,
that the
lis
between the plaintiff and the second defendant
would come to an end. The appellant contends that the court
a quo
acted irregularly in finding that the email addressed to the
appellant by the first respondent’s attorney does not
constitute
an unequivocal waiver of the plaintiff’s rights to
institute court proceedings against the appellant and it is therefore
not worthwhile to separate the issues in that the second special plea
is unsustainable. The appellant has in my view, and with due
respect
to Makgoba JP, correctly contended that the finding goes against the
principle as stated in paragraph 5 of the judgment
as it is can only
be arrived at after the hearing of argument in support of the special
plea. It is again correct that the appellant
was denied the
opportunity to present more evidence to prove the special plea. It is
on this basis, and on the decision in Marsay
(above), that this court
finds that the order of the court
a quo
is appealable on this
ground alone. In the same breath, I agree with the appellant that the
court
a quo
acted irregularly in finding that there is a
possibility that the second respondent will join the appellant back
into the proceedings
if the application for separation is granted.
The second respondent elected not to participate in the separation
proceedings. There
was therefore nothing before the court
a quo
that supported this finding.
[13]
The issues between the appellant and the first respondent is not
confined to the issues that I have dealt with in paragraph
[12] above
alone. Therefore, despite the fact that I have agreed with the
submissions made by the appellant, this court still has
to determine
whether the order prayed for by the appellant in the main application
ought to have been granted.
[14]
Rule 33)4) provides as follows:
“
If, in any
pending action, it appears to the court mero motu that there is a
question of law or fact which may conveniently be decided
either
before any evidence is led or separately from any other question, the
court may make an order directing the disposal of
such question in
such a manner as it may deem fit and may order that all further
proceedings be stayed until such question has
been disposed of, and
the court shall on the application of any party make such order
unless it appears that the question cannot
conveniently be decided
separately.”
[15]
First respondent alleges that it received a report from an
independent engineer that the vertical alignment of the road was
incorrect, causing the road to flood at numerous spots during rainy
seasons. In addition to this, the second respondent identified
17
defects in its snag list. From the limited facts at the disposal of
this court with regard to pleadings, it appears that the
second
respondent’s plea to the plaintiff’s particulars of claim
is that the appellant failed to adhere to the specifications
of the
construction agreement by failing to comply with the designs and
instructions it had given to it. The appellant on the other
hand
pleads that the second respondent has provided it with wrong
specifications and designs. The delictual claim is based on the
allegation that the appellant owed the first respondent a legal duty/
duty of care to have done its work properly and not to have
ignored
the alleged defective designs.
[16]
It was stated in the minority judgment in
Consolidated
News Agency v Mobile Telephone Networks
[2]
that separation of the issues should be avoided where certain issues
will remain unresolved after the granting of the separation
order On
the basis of this delictual claim this court finds that, contrary to
the submissions made by the appellant, the determination
of the
special pleas in favour of the appellant will not bring the
lis
between the appellant and the first respondent to an end. The
delictual claim, which according to the first respondent do not
expire, will still remain to be determined. It is further correct
that the issues raised in the delictual claim cannot be conveniently
determined in two separate actions
i.e
an
action against the appellant and another against the second
respondent. The court
a
quo
’s
finding in that the defences raised by the appellant and the second
respondent cannot be heard separately, even though
based on different
reasoning, is found to be correct. It is in any event not for this
court to determine whether the claim based
on delict will succeed or
not.
[17]
In its determination as to whether the decision to separate the
issues will be convenient to all parties, inclusive of the
court,
would be appropriate and fair and in the interest of justice, the
court
a
quo
considered the principle laid down in
Minister
of Agriculture v Tongaat Group Ltd
[3]
,
cited with approval by various Divisions of the High Courts in
[4]
,
where it was stated that the word convenience within the context of
the subrule conveys not only the notion of facility or ease
or
expedience, but also the notion of appropriateness and fairness. It
was stated further that it is not the convenience of any
of the
parties or of the court, but the convenience of all concerned that
must be taken into consideration. This principle was
restated by the
Supreme Court of Appeal in
City
of Tshwane Metropolitan Municipality v Blair Athol Homeowners
Association
-
see footnote 4.
[18]
I have indicated above that I will provide reasons why I agree with
the first respondent’s contention that the appellant
has
oversimplified the issues before the court. I intend to deal with
those reasons in the following paragraphs. The court
a
quo
referred
to the court cases in
The
City of Tshwane Metropolitan Municipality v Blair Athol Homeowners
Association
[5]
; Denel (Edms) Bpk
v Voster
[6]
; Vermuelen v Phoenix
Assurance Co Ltd
[7]
; African
Bank v Soodhoo
[8]
and concluded that the general principle laid down in these cases can
be summarized as follows:
“
The court has a
wide discretion to grant or refuse an application in terms of Rule
33(4); The overriding consideration in such applications
is
convenience, in a wide sense, that is to say, the separation must not
only be convenient to the person applying for such separation,
but
must also be convenient to all parties in the matter inclusive of the
court. The determination of such an application requires
a value
judgment in weighing up the advantages and the disadvantages in
granting such separation. If the advantages outweigh the
disadvantages, invariably, the Court should grant the application for
separation. The notion of appropriateness and fairness to
the parties
also comes into the question.”
See paragraph 22 of the
judgment of the court
a quo
.
The following may be
added to the above conclusion:
ii. It is ordinarily
advisable, in the interest of expedition and finality of litigation,
notwithstanding the wide powers given
to the court in rule 33(4), to
have one hearing only in which all issues are canvassed so that the
court, at the conclusion of
the case, may dispose of the entire
matter-
Tongaat
;
iii. The purpose of the
rule is to test the alleged lacuna in the plaintiff’ case and
the determination of the facts of the
case without the leading of
evidence and to avoid costs and delay in finalization of the case.
-See
Erasmus, Superior Court practice (2016) 2
nd
Edition D1-436; Denel.
iv. Courts should
carefully consider their decisions when considering an application of
this nature, more so when the issue appear
to be inextricably linked
rather than discrete and that disputes which may at first sight
appear to be discrete may later prove
otherwise during trial. –
Denel;
Consolidate News Agencies (Pty) Ltd (In Liquidation) v Mobile
Telephone Networks (Pty) Ltd & another
[9]
.
[19]
My understanding of the appellant’s argument is that the court
should have restricted itself to the questions whether
the first
respondent was time-barred from instituting proceedings against it,
having regard to clause 10.1 and 10.3 of the GCC
and whether the
email addressed to the appellant constituted a desire not to proceed
with litigation against the appellant should
be decided separately.
This contention has merit. However, the authorities referred to
earlier dictate that there are other considerations
that are to be
made, such as the pleadings as a whole, which shall include the
defences raised by other parties involved, the issue
of
appropriateness and fairness to all parties, the interest of justice
and whether the facts, in their totality are interwoven
or not. The
finding of the court a quo that the facts in this case are interwoven
is correct. It will therefore not be in the interest
of justice,
especially in a case where public funds are involved, to separate the
issues. The appellant must answer to all allegations
in one trial
where the evidence will be fully ventilated after each party is given
the opportunity to present evidence in support
of its case.
[20]
The court
a quo
dealt with the matter on the basis of what was
stated in the founding affidavit. It is evident from the said
affidavit that the
appellant relied on the email addressed to its
attorney of record by the Ms Mangena. The appellant admitted that
more evidence
was required to establish this claim. The first
respondent also claimed that further correspondence between the
parties will indicate
that that the intention was not to waive its
right to institute legal proceedings. As already found that the
determination of the
special pleas will not bring the
lis
between the appellant and the first respondent, I find that it would
be appropriate, in the interest of fairness and justice, that
each
party’s evidence in this regard should be ventilated in the
same trial as the other issues.
[21]
With regard to costs, I am of the view that same should be reserved
for determination in the main trial.
[22]
In the result the following order is made:
22.1 The appeal is
dismissed;
22.2. The order of the
court a quo is confirmed;
24.3 Costs are to be
costs in the main trial.
M
V SEMENYA
DEPUTY
JUDGE PRESIDENT;
LIMPOPO
DIVISION; POLOKWANE.
G
C MULLER;
JUDGE
OF THE HIGH COURT;
LIMPOPO
DIVISION; POLOKWANE.
M
F KGANYAGO
JUDGE
OF XTHE HIGH COURT;
LIMPOPO
DIVISION; POLOKWANE.
APPEARANCES:
For
the appellant
:
ADV
S TSHIKILA
Instructed
by:
:ORELOWITZ
INCORPORATED.
For
the first respondent
:ADV
MILLS SC.
Instructed
by
:MACHABA
INCORPORATED.
For
the second respondent
:CLYDE
AND COMPANY ATTORNEYS.
Date
of hearing:
:5
October 2021
Date
of handing down
:18
01.2022
[1]
[
1992]
2 All SA 327
(A) at 332
[2]
2010
(3) SA 382
(SCA) at 91
[3]
1976
(2) SA 357
(D) at 363D
[4]
Mota v Moloantoa 1984(4) SA 761 (O) at 786D; S v Malinde
1990 (1) SA
57
(A) at 67J-68E; Braaf v Fedgen Insurance
1995 (3) SA 938
(C)
(Erasmus
Superior Court Practice second edition Volume 2 D1-437 footnote 8)
[5]
2019
(3) SA 398 (SCA);
[6]
2004 (4) SA 481
(SCA) at par 3
[7]
1967
(2) SA 694 (O)
[8]
2008
(6) SA 46
(D) at 51B-D
[9]
[2009]
ZASCA 130
;
2010 (3) SA 382
(SCA) par 90-91 (abbreviated as CNA v
MTN)