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2021
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[2021] ZAGPPHC 283
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Mbana v Balintulo and Others (79752/2019) [2021] ZAGPPHC 283 (21 April 2021)
IN
THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
Number:
79752/2019
REPOERTABLE
:
NO
OF
INTEREST TO OTHER JUDGES
:
NO
DATE:
21-04-2021
In the matter between:
LINDA
MBANA
Applicant
and
FUZILE BALINTULO
First Respondent
BUTI MESHACK
LESIELA
Second Respondent
HERMANUS KAREL BREEDT
Third Respondent
ABRAHAM JOHANNES
BOSCH
Fourth Respondent
JUDGMENT
KUBUSHI J,
Delivered:
This
judgement is handed down electronically by circulating to the
parties’ representatives by email and by uploading on
Caselines. The
date
and
time
of hand-down is deemed to be 10h00 on 21 April 2021.
INTRODUCTION
[1]
This is an application for consolidation in terms of Uniform Rule 11.
The applicant, Linda Mbana, seeks consolidation of four actions
instituted against her by the four respondents, who are all opposing
the application for consolidation. In essence, the applicant seeks
that four actions in which the four respondents have instituted
action for damages for defamation against her under case numbers
79752/2019, 79753/2019, 79754/2019 and 79755/2019, be consolidated
and proceed with as one action under case number 79752/2019. The
applicant also seeks relief in terms of other ancillary prayers
contained in the notice of application.
[2]
Uniform Rule 11 provides 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.
[3]
In addition to the application for consolidation, a number of other
interlocutory
applications have been filed in the different cases
sought to be consolidated. A directive was issued pursuant to a case
management
meeting held on 9 December 2020 to provide direction
regarding the further conduct of the said interlocutory applications.
It was
decided that the consolidation application be heard before the
other interlocutory applications and that at the hearing of the
consolidation application the parties address court on how the
pending interlocutory applications will be affected by the granting
or refusal of the condonation application. I am in this judgment,
therefore, seized with the application for consolidation and
have
also to give direction as to how the other pending interlocutory
applications are to be dealt with further.
FACTUAL
BACKGROUND
[4]
The facts leading to this application are common cause. In summation
,
each of the four respondents has separately instituted action for
defamation against the applicant. The claims are based on the
same
cause of action that the applicant made defamatory statements against
each of the respondents during a SABC TV interview.
The allegations
contained in the respondents' pleadings are the same other than the
quantum
claimed.
[5]
The applicant has approached court for the consolidation of the four
matters
claiming that it is convenient for the court to consolidate
them and that none of the four respondents will suffer substantial
prejudice if the matters are consolidated.
[6]
The four respondents are each opposing the application for
consolidation
on the basis that it is not convenient for the court to
do so, and that they stand to suffer substantial prejudice should the
consolidation
of the four matters be ordered.
THE
APPLICABLE LAW
[7]
The learned
author,
Erasmus,
[1]
provides the following exposition to the phrase
"it
appears to the court convenient to do so'
,
[2]
which I find apposite in
the circumstances
of the
matter before me:
"The paramount test
in regard to consolidation of actions is convenience. It has been
held
[3]
that the word
'convenient' connotes not
only
facility or expedience or ease, but appropriateness in the sense that
procedure would be convenient if, in all the circumstances
of the
case, it appears to be fitting and fair to the parties concerned. The
overriding consideration is that of convenience of
the parties, of
witnesses and last but
not
least, of
the
court .
[4]
Convenience of actions
will in general be ordered in order to avoid multiplicity of actions
and attendant costs.
[5]
In
Nel
v Silicon Smelters (Edms) Bpk,
convenience
was found,
inter
alia,
in
the fact that (i) the consolidated prosecution of the case would
reduce costs and expedite the proceedings; (ii) there would
be one
finding concerning a factual dispute involving a number of parties
and (iii) the plaintiffs various claims arising from
the same cause
of
action
would be heard in
one act
ion."
[8]
As stated
by the
learned author
Erasmus
,
[6]
consolidation
of actions will not be ordered if there is the possibility of
prejudice being suffered by any party . By prejudice
in this context
is meant 'substantial prejudice sufficient to cause the court to
refuse a consolidation of action, even though
the balance of
convenience would favour it.
[7]
[9]
In
New
Zealand Insurance Co Ltd v Stone and Others,
[8]
it
was held
that in
an
application for consolidation the court, it would seem, has a
discretion whether
or
not
to
order
consolidation,
but
in
exercising
that
discretion,
the
court
will not order a consolidation of trials unless satisfied that such a
course
is
favoured by the balance of convenience and that there is no
possibility of prejudice being suffered by any party.
[10] By
prejudice in this context it seems to me is meant substantial
prejudice sufficient to cause the court
to refuse a consolidation of
actions, even though the balance of convenience would favour it. The
authorities also appear to establish
that the
onus
is upon the
party applying to court for a consolidation to satisfy the
court upon these points."
[11]
The party seeking consolidation must, therefore, satisfy the court
that the consolidation
is favoured by the balance of convenience and
that there is no possibility of prejudice being suffered by any party
to the proceedings.
If it can be found that the prejudice is
substantial the court may refuse a consolidation of actions even
though the balance of
convenience favour such consolidation.
[12]
The burden of proof lies on the party requesting consolidation to
show the court that convenience
favours the consolidation and that
such consolidation
will not
cause
substantial
prejudice
to
other
parties.
[9]
THE
ISSUE
[13]
The main issue that requires determination is whether the applicant
satisfied the
requirements of consolidation in terms of Uniform Rule
11. Underlying the said issue is whether the applicant has satisfied
the
court that the jurisdictional factors of consolidation by showing
that the balance of convenience favours the consolidation it seeks;
and that there is no possibility of any party suffering substantial
prejudice as a result of the consolidation.
ARGUMENTS
[14]
The applicant submits that it will be convenient for the actions to
be consolidated as
they concern the determination of substantially
the same issues. The grounds the applicant relies on are that -
14.1. the
consolidation will prevent multiplicity of actions and attendant
costs as the actions are premised on the same cause of action;
14.2.
allowing these matters to proceed separately will defeat
the purpose
of Uniform Rule 11 which is to avoid the multiplicity of actions; and
14.3.
the consolidation will substantially reduce the duration of the
trial
and further delays, in that all these matters will be disposed of in
one hearing and the court will be anticipated to make
one judgment
only.
[15]
As regards prejudice, the applicant alleges that firstly, the
respondents will suffer no
prejudice if the respondents' matters are
consolidated and that she, on the other hand, will be substantially
prejudiced by the
separate hearing of the four matters. Secondly, it
is not in the interest of justice that the four actions proceed
separately as
she is being financially prejudiced in defending each
action.
[16]
To the contrary, the four respondents, relying in the main on the
judgment in
New Zealand,
are opposing the consolidation on the
following grounds:
16.1.
That it is not
convenient that the four actions be consolidated due
to the following reasons:
16.1.1.
that various interlocutory applications
are pending, which have not
been disposed of and which will determine the further conduct in each
action;
16.1.2.
that costs have already been awarded
against the applicant;
16.1.3.
that the consolidation application is premature
since the applicant
has not filed her Plea in any of the actions. As such, the issues
between the parties have not been identified
or limited. The issues
may or may not be the same;
16.1.4.
that the respondents raised a counter-application.
16.1.5.
that of the various notices served condonation
in respect of some of
them is being sought;
16.1.6.
that the applicant previously sought to delay
and frustrate the
proceedings and continues to do so with this consolidation
application ;
16.1.7.
that there is a real possibility that a conflict
may arise going
further should the matters be consolidated;
16.1.8.
the duration of the trial would be considerably
protracted because
the
quantum
of the various respondents differs the respondents
will be substantially hampered in the actual conduct of their cases
at trial;
16.1.9.
if the matters are consolidated the question
might arise as to the
order of precedence as between the different respondents;
16.1.10.
one or more of the respondents are bound to find themselves in a
position where evidence destructive of his case is placed on record
before he has had an opportunity of leading his own evidence;
16.1.11.
unnecessary delays could result by consolidation if one or more of
the respondents cannot or does not attend on the trial date
for some
or other reason which may result in a postponement, effectively
meaning that whoever is able to attend to the trial might
be faced
with a scenario that the matter would be postponed to circumstances
where the specific respondent is able to proceed with
the triaI.
APPLICATION
OF
THE
LAW
TO
FACTS
The
Balance of Convenience
[17]
From the aforementioned arguments it is manifest that the balance of
convenience favours
the consolidation. Firstly, it is common cause
that the claims of the respondents against the applicant stems
substantially from
the same cause of action. Except for the names of
the claimants and the amount of
quantum
claimed, the
allegations contained in the respondents' particulars of claim are
exactly the same.
[18]
Secondly,
the consolidation will prevent the multiplicity of actions and
attendant costs which is precisely the objective of consolidation
.
It is said
that the purpose of consolidation of actions under this Rule is to
have issues which
are
substantially similar , like in this instance, tried at a single
hearing so as to
avoid the
disadvantages
attendant
upon a multiplicity of
trials.
[10]
[19]
Thirdly, the consolidation will substantially reduce the duration of
the trial and further
delays, in that all these matters will be
disposed of in one hearing and the court will be anticipated to make
one judgment only.
The respondents are also represented by the same
attorneys and counsel; same evidence will be led in respect of all
four matters.
It will make it easy to arrange the order of precedence
as between the different respondents.
[20]
In this sense the consolidation favours the convenience of the court
and of the parties.
Prejudice
[21]
As already stated, a court will not order consolidation where there
is a possibility of
substantial prejudice against any party. The
respondents contend that they will be substantially prejudiced by the
consolidation
. I am, however, convinced by the applicant's argument
that all the instances of prejudice raised by the respondents are not
real
or substantial and are speculative at best.
[22]
The applicant has further conceded in the heads of argument that the
cost orders against
the applicant will remain unaffected by the
consolidation. I am, also, of the view that the consolidation will
not affect the interlocutory
applications as any interlocutory
application can still be proceeded with depending on the need to do
so by any of the parties.
CONCLUSION
[23]
The applicant, in my view, has satisfied the requirements of Uniform
Rule 11 and the four
actions should be consolidated as per the order
granted hereunder.
[24]
All the interlocutory applications that will be required to be
proceeded with after the
consolidation of the four actions must be
set down to be heard simultaneously on the same date.
COSTS
[25]
Costs should follow the result.
ORDER
[26]
Consequently, I make the following order:
1.
The four actions under case numbers
79752/2019, 79753/2019,
79754/2019 and 79755/2019 are consolidated and shall proceed as one
action under case number 79752/2019.
2.
The provisions of Uniform Rule 10 pertaining
to the joinder of
defendants shall
mutatis mutandis
apply to the consolidated
action.
3.
All the interlocutory applications
that will be required to be
proceeded with after the consolidation of the four actions to be
heard simultaneously on the same date.
4.
The respondents to pay the costs
of this application jointly and
severally, the one paying the other to be resolved.
E.M
KUBUSHI
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
Appearance:
Applicant's
Counsel
: Adv. E. Labuschagne SC
Adv. J Hlongwane
Applicant's
Attorneys
:
Lucky Thekisho Inc. Attorneys
First to Fourth
Respondent's Counsel
: Adv. W.F Wannenburg
First to Fourth
Respondents
:
Brits Muller Attorneys.
Date of
hearing
: 23 March 2021
Date
of judgment
: 21 April 2021
[1]
Erasmus: Superior
Court
Practice Vol 2 p
age
D1-133.
[2]
As appears in Uniform Rule 11.
[3]
Qwelane v Minister of Justice
and
Constitutional Development
2015 (2)
SA 493
(GJ) at
497D -F.
[4]
Rail Commuters'
Action
Group v Transnet Ltd
2006 (6) SA 68
(C) at
68B .
[5]
1981(4) SA 792 (A) at 801D and 802B.
[6]
Erasmus : Superior Court Practice Vol 2 page D1-134.
[7]
See New Zealand Insurance Co Ltd v Stone
1963 (3) SA 63
(C) at
71 D-H.
[8]
1963 (3) SA 63
(C) at
69
.
[9]
See Mpontsha v Road Accident Fund and Another
2000 (4) SA 696
(CPD)
at
699E
-F and
701C-D.
[10]
See Erasmus: superior Court Practice Vol
2 page
D1-133.