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[2022] ZAMPMBHC 52
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PNM Short Hauliers (Pty) Ltd v Izusa Carriers CC and Another (269/2019) [2022] ZAMPMBHC 52 (11 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
CASE
NO: 269/2019
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES: YES
REVISED:
YES
In
the matter between:
PNM
SHORT HAULIERS (PTY) LTD
Applicant
and
IZUSA
CARRIERS CC
First Respondent
MUSA
NHUBUNGA
Second Respondent
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
This is an
application brought in terms of Uniform Rules of Court 11 read with
Section 173 of the Constitution of the Republic of
South Africa (“the
Constitution”). Reference to rule or rules shall mean Uniform
Rules of Court and Section 173 shall
mean Section 173 of the
Constitution. The Applicant (“PMN Short Hauliers”) seeks
to consolidate two Court actions,
one issued out of this Court on 25
January 2019 under Case No. 269/2019 and the other, initiated on 27
March 2019 in the Magistrate’s
Court for the Magisterial
District of Mkhondo bearing Case No. 65/19.
[2]
The upshot of the consolidation, if granted, will be that the action
shall henceforth
proceed as one before this Court under Case No.
269/2019. The case sued out in this Court involves the Second
Respondent (“Nhubunga”)
as Plaintiff and PNM Short
Haulers as Defendant. The Magistrate’s Court case, on the other
hand, concerns the First Respondent
(Izusa Carriers”) as
Plaintiff and PNM Short Haulers as Defendant.
[3]
The application has been inspired by essentially three factors.
Firstly, that both
actions concern the same collision. Secondly, that
the probabilities are that the same witnesses, including expert
witnesses, will
be required to give testimony and be cross-examined.
Thirdly, other than the Nhubunga, the parties are exactly the same.
Additionally,
the same legal representatives are involved in both
actions and effectually, aside from the involvement of Nhubunga in
this Court
action, who may well be required to provide witnesses in
the Magistrate’s Court action, the two trials are virtually
indistinguishable.
[4]
The application is opposed by Izusa Carriers. Nhubunga has delivered
a notice to abide
the decision of this Court on the application.
Izusa Carriers opposes the application on the grounds that it will
suffer great
prejudice as it has had to abandon part of its claim to
bring the action within the financial jurisdiction of the District
Court.
If PNM Short Haulers Succeeds in the relief it seeks, Izusa
Carriers will be required to litigate in a Court whose financial
jurisdiction
threshold is far higher than that of the district Court
where it has chosen to conduct this litigation. Izusa Carriers
asserts
further that it will be harshly prejudiced were this matter
to be removed from the district Court to this Court as it will incur
even more gratuitous costs because litigating in the High Court is a
costly and a protracted process.
FACTUAL
MATRIX
[5]
Following a motor vehicle collision, on 21 April 2018 on the road
Travelling from
Lydenburg to Sabie, between Nhubunga’s motor
vehicle, DL 50 KR GP, and motor vehicle belonging to Izusa Carriers,
FXD 416
MP, Nhubunga issued summons out of this Court on 25 January
2019 against Izusa Carriers claiming payment of damages in the amount
of R685 892.45, costs and interest occasioned by the negligent
driving of the driver of Izusa Carriers (“the High Court
Action”). Izusa Carriers defended the High Court action and
proceeded to issue a third party notice against PNM Short Haulers
wherein it holds the driver of the latter to have been the sole cause
of the damages of Nhubunga arising from the collision.
[6]
Izusa Carriers claimed in the third party notice that it has a right
of recourse against
PNM Short Haulers for any amount that may be
awarded against it. On 27 March 2019, Izuza Carriers followed on the
third party notice
by instituting an action against PNM Short Haulers
in the Magistrate’s Court for the Magisterial District of
Mkhondo held
at Mkhondo under case number 65/2019 (“
the
Magistrate’s Court action
”).
[7]
In the Magistrate’s Court action, Izusa Carriers contends that
it was the negligent
driving of the driver of the vehicle belonging
to PNM Short Haulers’ that caused its damages in the amount of
R227 377.54
. To bring the claim within the financial
jurisdiction of the Magistrate’s Court, Izusa Carriers alleges
that it had to abandon
an amount of
R27 377.54
.
Litigating in the High Court will as such, argues Izusa Carriers,
prejudice it as it will be compelled to conduct the litigation
in a
Court whose monetary jurisdiction is higher but for a lower amount
that could easily have been run in the Magistrate’s
Court.
ISSUES
[8]
The matter raised in this application is purely legal in nature and
it concerns consolidation
of cases envisaged in Rule 11 and whether
or not this Court can invoke Section 173 pertaining to this Court’s
inherent power
to protect and regulate its own process, and to
develop the common law, taking into account the interests of justice.
I note that
PNM Short Haulers has also mentioned as part of the
issues for determination the question of convenience, avoidance of
multiplicity
of actions, attendant costs and the prejudice that Izusa
Carriers claims will suffer if the case were to be removed from the
Magistrate’s
Court. The approach that I take is that a
determination of whether or not to invoke Section 173 may, depending
on the Court’s
finding, be dispositive of the whole case. For
that reason, it has to be sensible to attend to it before
entertainment of any other
issues.
LEGAL
FRAMEWORK
LEGISLATIVE
PROVISIONS
[9]
Rule 11 and Section 173 of the Constitution are central to the
controversy between
the parties. As such, it is practical that the
starting point be a citation of the provisions of the Rule and the
Section. Firstly,
the provisions of Rule 11 state that:
“
Where
separate actions have been instituted and it appears to the court
convenient to do so, it may upon the application of any
party thereto
and after notice to all interested parties, make an order
consolidating such actions, whereupon –
(a)
the
said actions shall proceed as one action;
(b)
the
provisions of rule 10 shall mutatis mutandis apply with regard to the
action so consolidated; and
(c)
the
court may make any order which to it seems meet with regard to the
further procedure, and may give one judgment disposing of
all matters
in dispute in the said actions.”
[10]
Secondly, Section 173 of the Constitution is headed:
Inherent power, and
it provides that:
“
The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to protect
and regulate
their own process, and to develop the common law, taking into account
the interests of justice.”
[11]
Also significant are the provisions of Section 169(1) of the
Constitution, which deal with matters
that can be heard by the High
Court. The section provides that:
“
(1)
The High Court of South Africa may decide—
any
constitutional matter except a matter that—
(I)
the
Constitutional Court has agreed to hear directly in terms of section
167(6)(a); or
(II)
is
assigned by an Act of Parliament to another court of a status similar
to the High Court of South Africa; and
(b)
any other matter not assigned to
another court by an Act of Parliament.”
Section
170 of the Constitution stipulates that a Magistrates’ Court
may decide any matter determined by a statute.
[12]
In relation to ‘
court procedures’
,
Section 171 of the Constitution provides that: “
All
courts function in terms of national legislation, and their rules and
procedures must be provided for in terms of national legislation”.
The national legislation referenced in the Constitution relevant to
these proceedings is the
Superior Courts Act, 10 of 2013
and the
Magistrates’ Court Act, 34 of 1944.
[13]
Section 21 of the Superior Courts Act provides:
“
(1)
A Division [of the High Court] has jurisdiction over all persons
residing or being in, and in
relation to all causes arising and all
offences triable within, its area of jurisdiction and all other
matters of which it may
according to law take cognisance, and has the
power—
(a)
to hear
and determine appeals from all Magistrates' Courts within its area of
jurisdiction;
(b)
to
review the proceedings of all such courts;
(c)
in its
discretion, and at the instance of any interested person, to enquire
into and determine any existing, future or contingent
right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination.
(2)
A Division also has jurisdiction over any person residing or being
outside its area of
jurisdiction who is joined as a party to any
cause in relation to which such court has jurisdiction or who in
terms of a third
party notice, becomes a party to such a cause, if
the said person resides or is within the area of jurisdiction of any
other Division.”
[14]
The applicable
S
ections
in the Magistrates’ Court Act are 29(1) and 50(1). Section
29(1) is headed ‘
Jurisdiction
in respect of causes of action
’.
It provides:
“
(1)
Subject to the provisions of this Act and the National Credit Act,
2005 (Act 34 of 2005),
a court in respect of causes of action,
shall have jurisdiction in-
(a)
actions
in which is claimed the delivery or transfer of any property, movable
or immovable, not exceeding in value the amount determined
by the
Minister from time to time by notice in the Gazette;
(b)
actions
of ejectment against the occupier of any premises or land within the
district or regional division: Provided that, where
the right of
occupation of any such premises or land is in dispute between the
parties, such right does not exceed the amount determined
by the
Minister from time to time by notice in the Gazette in clear value to
the occupier;
(c)
actions
for the determination of a right of way, notwithstanding the
provisions of section 46;
(d)
actions
on or arising out of a liquid document or a mortgage bond, where the
claim does not exceed the amount determined by the
Minister from time
to time by notice in the Gazette;
(e)
actions
on or arising out of any credit agreement as defined in section 1 of
the National Credit Act, 2005 (Act 34 of 2005);
(f)
actions
in terms of section 16 (1) of the Matrimonial Property Act, 1984 (Act
88 of 1984), where the claim or the value of the property
in dispute
does not exceed the amount determined by the Minister from time to
time by notice in the Gazette;
(fA)
actions, including an application for liquidation, in terms of the
Close Corporations Act, 1984
(Act 69 of 1984);
(g)
actions other than those already
mentioned in this section, where the claim or the value of the
matter
in dispute does not exceed the amount determined by the Minister from
time to time by notice in the Gazette.”
[15]
Section 50(1) is headed ‘
Removal
of actions from court to provincial or local division
’.
It provides:
“
(1)
Any action in which the amount of the claim exceeds the amount
determined by the Minister from time to time by notice in the
Gazette, exclusive of interest and costs, may, upon application to
the court by the defendant, or if there is more than one defendant,
by any defendant, be removed to the provincial or local division
having jurisdiction where the court is held, subject to the following
provisions-
(a)
notice
of intention to make such application shall be given to the
plaintiff, and to other defendants (if any) before the date on
which
the action is set down for hearing;
(b)
the
notice shall state that the applicant objects to the action being
tried by the court or any magistrate's court;
Upon
compliance by the applicant with those provisions, all proceedings in
the action in the court shall be stayed, and the action
and all
proceedings therein, shall, if the plaintiff so requires, be as to
the defendant or defendants, forthwith removed from
the court into
the provincial or local division aforesaid having jurisdiction. Upon
the removal, the summons in the court shall,
as to the defendant or
defendants, stand as the summons in the division to which the action
is removed, the return date thereof
being the date of the order of
removal in an action other than one founded on a liquid document,
and, in an action founded on a
liquid document, being such convenient
day on which the said division sits for the hearing of provisional
sentence cases, as the
court may order: Provided that the plaintiff
in the action may, instead of requiring the action to be so removed,
issue a fresh
summons against the defendant or defendants in any
competent court and the costs already incurred by the parties to the
action
shall be costs in the cause.”
[16]
Rule 39(22) provides that:
“
By
consent the parties to a trial shall be entitled, at any time, before
trial, on written application to a judge through the registrar,
to
have the cause transferred to the magistrate’s court; Provided
that the matter is one within the jurisdiction of the latter
court
whether by way of consent or otherwise.”
CASE
AUTHORITY
[17]
If an Applicant has exercised his right to choose a forum where to
litigate, it ought to be axiomatic
that his or her consent should be
sought where the case is to be transferred from the High Court to the
Magistrate’s Court
as provided in Rule 39(22). This was
recognised in the case of
Marth
v Collier
[1]
at
509 where the Court said:
“
The
granting of an order for the transfer of legal proceedings from the
Supreme Court to the Magistrates’ Court, in the absence
of a
Plaintiff ’s consent, would clearly infringe upon the latter’s
substantive right to choose the forum in which
he or she wishes to
institute proceedings. As little as our courts have the inherent
power to create substantive law do they have
the power, in the
absence of statutory - or common law authorisation or legal
precedent. . . to make orders which infringe upon
the substantive
rights of litigants or others, such as the right of a Plaintiff, as
dominus litis, to decide in which of concurrent
fora he or she wishes
to enforce his or her rights.
[2]
[18]
The Constitutional Court in
South
African Broadcasting Corp Ltd v National Director of Public
Prosecution and others
[3]
warned
that the inherent power of the Superior Courts in Section 173 of the
Constitution is not to be invoked at whim and stated:
“
The
power conferred on the High Court, Supreme Court of Appeal and this
court in Section 173 is not an unbounded additional instrument
to
limit or deny vested or retrenched rights. The power in Section 173
vests in the judiciary the authority to uphold, to protect
and to
fulfil the judicial function of administering justice in a regular,
or orderly an effective manner. Said otherwise it is
the authority to
prevent any possible abuse process and to allow a court to act
effectively within its jurisdiction.
[51]
As under the common law, this court’s power to regulate its own
process under Section 173 must be exercised sparingly
having taken
into account interest of justice in a manner consistent with the
constitution. Departing from our ordinary procedures,
and
entertaining a matter that was not properly brought before this Court
but with whose issues we are nevertheless seized, should
be done
sparingly and only in exceptional circumstances.”
ANALYSIS
[19]
PNM Short Haulers argument is centered around the provisions of Rule
11. It has contended that
the purpose of the Rule is to avoid
multiplicity of actions and payment of resultant legal costs. Thus,
where it appears to a Court
that it will be convenient to all the
parties involved, the Court and witnesses, consolidation of cases
will be favourably considered.
Where one of the parties is likely to
be prejudiced by the consolidation, a Court will in all probabilities
refuse it.
[20]
PNM Haulers states that both actions involve the same collision, in
all likelihood, the same
witnesses, other than the Plaintiff in the
High Court action, the parties are exactly the same, the same legal
representatives
are involved in both actions and the two trials are,
with a few exceptions, virtually identical. It does not assist to
discuss
the requirements of consolidation in circumstances where it
is sought to merge two cases emanating from two different Courts
within
the same jurisdiction. The issue of consolidation should, in
my opinion, be foreshadowed by a determination of the appropriateness
of the invocation of Section 173 of the Constitution.
[21]
According to the South African Broadcasting Corporation case
supra
,
it is manifest that Section 173 finds application only in specific
instances. These are:
21.1
It must be used with due regard to the observance of existing rules
and procedures;
21.2
It must not be employed to limit or deny existing rights; and
21.3
It is used by Superior Courts to dispense justice effectively.
[22]
The first issue to determine is as such, whether or not there are
existing rules and procedures,
legislative or at common law, designed
to take care of this situation that ought to be respected. PNM Short
Haulers argues that
legislation clearly provides for transfer of a
case from the High Court to the Magistrate’s Court but no
similar legislative
provisions have been provided for the reverse to
occur. Understood in this manner, continues PNM Short Haulers, there
is a lacuna
justifying this Court to invoke Section 173 of the
Constitution to develop the law to close the
lacuna
.
[23]
At first glance the argument of PNM Short Haulers appears valid
because Section 50(1) of the
Magistrate’s Court Act 34 of 1944
refers to a situation where the financial jurisdiction exceeds that
of the Magistrate’s
Court. It is evident that Section 50(1) of
the Magistrate’s Court Act is not relevant in these
circumstances and cannot assist
PNM Short Haulers. Secondly, Rule
39(22) concerns a transfer from the High Court to the Magistrate’s
Court and therefore
bears no pertinence to these proceedings.
[24]
However, while Rule 39(22) may not be of any help to PNM Short
Haulers, it is clear that no case
can be transferred from the High
Court to the Magistrate’s Court or vice versa without the
consent of an Applicant, Izusa
Carriers in this instance. The right
of an Applicant to choose the forum in which he or she wants to
litigate takes preeminence,
is guaranteed and cannot be taken at
whim. This application seems to be nothing less than an attempt by
PNM Short Haulers to appropriate
that right from Izusa Carriers. See
the Moosa case
supra
even though it applies to a transfer from
the High Court to the Magistrate’s Court.
[25]
Is there a
lacuna
warranting the invocation of Section 173 as
PNM Short Haulers would have this Court believe? Izusa Carriers has
argued that there
exists no
lacuna
to be addressed by the
invocation of Section 173. This is so because PNM Short Haulers could
have filed a plea of
lis pendens
alleging that there is
already a High Court action pending that stems from the same cause of
action dealing with the same subject
matter between the same parties.
[26]
PNM Short Haulers therefore could have sought an order for the
transference alternatively
,
stay of proceedings in the
Magistrate’s Court action pending the adjudication of the
matter in the High Court. I am mindful
that the High Court case
involves PNM Short Haulers and Nhubunga while the Magistrate’s
Court case concerns Izusa Carriers
and PNM Short Haulers. As such,
the parties are not exactly the same.
[27]
The above said,
lis
pendens
still
finds application because the cause of actions is similar and the
subject matter is the same. Besides, all three parties could
have
found themselves before the High Court albeit without flouting the
rules and procedures about which the South African Broadcasting
Corporation case warns us
[4]
.
The
inappropriateness of Section 173 notwithstanding, PNM Short Haulers
raised the Section 173 argument belatedly in its replying
affidavit
when it is in fact trite that it should have been brought up in its
founding papers.
[28]
I agree that applying basic principles of motion proceedings, neither
the founding or replying
affidavit contains a factual foundation
establishing exceptional circumstances why this Court should invoke
Section 173 to fill
in a non-existing
lacuna
.
The availability of
lis
pendens
to
PNM Short Hauliers means that there are adequate rules and procedures
that cover the
lacuna
[5]
.
The existence of a lacuna argument is therefore illusory and is
rejected.
[29]
Will the invocation of Section 173 result in the denial or limitation
of existing rights of Izusa
Carriers? The answer is indubitably in
the affirmative. I have already discussed and mentioned the cases of
Marth and Moosa
supra
where the substantive right of an
Applicant to choose a forum to litigate was recognised. entertaining
the imploration of PNM Short
Haulers to invoke Section 173 in these
circumstances will amount to the divestment of the substantive rights
of Izusa Carriers.
I am not persuaded to invoke Section 173 in a
situation where doing so will go against several legislative
provisions.
[30]
Section 173 itself makes it manifest that ‘the Constitutional
Court, Supreme Court of Appeal
and the High Court have the inherent
power to protect and regulate their own process, and to develop a
common law, taking into
account interest of justice.’ It
follows that the inherent power that the High Court possesses cannot
be used to protect
and regulate the processes of another Court. The
Constitution in Sections 169 and 170 clearly set out matters that can
be decided
by the High Court and Magistrate’s Court
respectively. The High Court operates within the precincts defined by
the
Superior Courts Act in
particular,
Section 21
while the
Magistrate’s Court within the Magistrate’s Court Act.
See, Paragraphs 12 and 13
supra
.
[31]
PNM Short Hauliers has strongly contended that the decision of
Qwelane
v Minister of Justice and Constitutional Development
[6]
is ‘on all fours’ with the facts in this matter. That
statement could not be further from the truth. Without even
discussing the intricacies of that case, it should suffice to state
that the transfer from the Equality Court to the High Court
was with
the permission of the Applicant in that matter. Accordingly, there
were no rules and procedures that were not observed
in the process.
It is also notable that it happened within the provisions of Rule
39(22) and the Marth case
supra
.
In the circumstances, it cannot be authority for PNM Short Hauliers’s
proposition that it is permissible to consolidate
two matters
emanating from two different courts within the same jurisdiction
without observance of applicable rules and procedures.
CONCLUSION
[32]
From the aforegoing, the following is discernable:
32.1
Consolidation in terms of Rule 11 applies to cases already before the
High Court and not of matters
between the Magistrate’s Court
and the High court within the same jurisdiction;
32.2
If a case from the Magistrate’s Court is to be consolidated
with a High Court case, it must be
preceded by proper observance of
rules and procedures. In this instance, Izusa Carriers was supposed
to have given consent for
the matter to be transferred to the High
Court where consolidation was expected to occur;
32.3
The substantive right of Isuza Carriers to elect the forum in which
to litigate is paramount and cannot
be usurped willy nilly;
32.4
PNM Short Hauliers has failed to demonstrate that a
lacuna
exists
warranting this Court’s intervention by the invocation of
Section 173; and
32.5
A Court can only intervene if the existing rules and procedures are
not adequate to cover a particular
situation. In this respect, it is
plain that
lis pendens
was available to PNM Short Hauliers.
COSTS
[33]
There is no doubt that PNM Short Haulers must pay the cost of Izusa
Carriers. The question is
really whether or not such costs should be
at the scale as between attorney and client. I note Izusa Carriers’
assertion
that the application was defective from the onset and that
it was consequently stillborn. The issue concerning absence of a
lacuna
was not an obvious one. As such, it cannot be said that
PNM Short Haulers should or ought to have known that this application
was
a non-starter. For that reason, I do not believe that punitive
costs are warranted.
ORDER
[34]
In the result I make the following order:
The
application is dismissed with costs.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 11July 2022 at 10:00.
APPEARANCES:
Counsel
for the Applicant: Adv
JP Pretorius
Instructed
by: Tatham
Wilkens Inc
C/O
Kruger & Partners
Counsel
for the Respondent:
Adv Herman Fourie
Instructed
by:
Bothas Attorneys
Date
of Judgment:
11 July 2022
[1]
[1996]
3 All SA 506 (C)
[2]
See
also
Moosa
v Moosa
2014
JDR 2194 (GP) para 19
[3]
2007
(2) BCLR 167 (CC)
[4]
,
See also
State
v Thunzi
CCT
81/09
[2010] ZACC 12
at Paragraph 49
and
Mlonzi v Minister for Justice and Constitutional Development
[5]
2015
(2) SACR 341
(CC) para 33,
See,
Molaudzi v The State 2015 (8) BCLR (CC)
[6]
2015
(2) SA 493
(GJ)