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[2019] ZAFSHC 92
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Knoesen and Another v Huijink-Maritz and Others (5001/2018) [2019] ZAFSHC 92 (31 May 2019)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No:
5001/2018
In
the matter between:
WILLEM
DANIEL
KNOESEN
1
st
Plaintiff
JOHANNA
CORNELIA KNOESEN
2
nd
Plaintiff
[1]
and
IZETTE
HUIJINK-MARITZ
1
st
Defendant
JAN GYSBERT
MARITZ
[2]
2
nd
Defendant
MATJABENG
MUNICIPALITY
3
rd
Defendant
NUMISCENE (PTY)
LTD
4
th
Defendant
ALITE GUESTHOUSE (PTY)
LTD
5
th
Defendant
CORAM
:
OPPERMAN,
J
HEARD
ON
:
26
APRIL 2019
DELIVERED
ON
:
31
MAY 2019
JUDGEMENT
BY
:
OPPERMAN,
J
Summary:
Civil
Procedure – Misjoinder – Misjoinder raised by way of
exception – Procedure is to raise issue by way of plea
in
abatement.
Civil
procedure – Misjoinder – Each case adjudicated on its own
merits – Joinder of second defendant permitted
- Second
Defendant alleged to be cause of contract that is subject of claim
for specific performance – Direct and substantial
interest and
prejudice to second defendant
JUDGEMENT
I
INTRODUCTION
[1] First and second
defendants motioned
[3]
an
exception to the plaintiffs’ particulars of claim on the
basis that it is vague and embarrassing, alternatively
do not contain
sufficient allegations to sustain a cause of action against the
second defendant, alternatively there has been misjoinder
of second
defendant.
[4]
In paragraph 6 of
the Notices of Exception the claim is that the plaintiffs have not
pleaded, specifically:
“…
a
basis disclosing that the second defendant has any substantial
interest in the subject matter of the action in the form of a legal
interest in the subject matter of litigation which may be affected
prejudicially by granting of the relief
[5]
claimed
.”
[2]
Although the first and second defendants lodged the exception, the
matter was not taken any further on behalf of the first defendant
during the hearing.
[6]
The
claims of vague and embarrassing and insufficient allegations to
sustain a cause of action against the second defendant, was
also not
maintained; suitably so.
[7]
[3]
Second defendant, in the end, only averred misjoinder by way of
exception. The application stands opposed to be dismissed with
costs.
The prayer of second defendant is for the following order:
[8]
“
1. The exception
is upheld on the basis of misjoinder of the second defendant.
2.
All
references in the combined summons, which include the particulars of
claim, to the second defendant as a party to the action,
are struck
out.
3.
The
plaintiffs are ordered to amend their combined summons, including
their particulars of claim, accordingly within 15 days from
the date
of this order.
4.
The
plaintiffs are ordered to pay the costs of the exception.”
II
EXCEPTION AND MISJOINDER
[4]
The vehicle used to bring the application, being exception in terms
of Rules 23(1), 23(2) and 23(3)
[9]
was defended by the second defendant to be apt. He maintained that
although the usual procedure to be adopted where the question
of
non-joinder or misjoinder arises, is to raise the question by way of
plea in abatement and it is
fairly
[10]
well settled that non-joinder and misjoinder can be raised by way of
exception. The rationale in
McIndoe
and Others (in their capacities as joint liquidators of G&D Shoes
(Pvt) Ltd and Belmont Leather (Pvt) Ltd v Royce Shoes
(Pty) Ltd
[2000] 3 All SA 19
(W) was cited in support.
[5]
Misjoinder or non-joinder may be raised by way of exception where the
alleged defect appears
ex
facie
the
pleadings and no additional evidence is required to substantiate the
defence.
[11]
Where
additional facts need to be placed before the court to show that
there has been a misjoinder or non-joinder, a special
plea is
generally used.
[12]
[6]
The dilemma in the choice of either Rule 23-exception or Rule
10(3)-misjoinder lies in, amongst others, the tests to be applied
in
adjudication. It is dissimilar.
[7]
The issues of misjoinder are regulated in Rule 10
[13]
and the common law specifically. The test for misjoinder of a
defendant was coined in Rule 10(3):
“
(3) Several
defendants may be sued in one action either jointly, jointly and
severally, separately or in the alternative,
whenever
the question arising between them or any of them and the plaintiff or
any of the plaintiffs depends upon the determination
of substantially
the same question of law or fact which, if such defendants were sued
separately, would arise in each separate
action.”
(Accentuation
added)
[8]
Harms
[14]
dealt with the law in detail and with reference to case law. I align
myself with the findings.
“
a) If a party has
a direct and substantial interest in any order the court might make
in proceedings, or if such order cannot be
sustained or carried into
effect without prejudicing that party, he is a necessary party and
should be joined in the proceedings
unless the court is satisfied
that he has waived his right to be joined.
b)
The mere
fact that a party may have an interest in the outcome of the
litigation does not warrant a non-joinder objection.
c)
The term
"direct and substantial interest" means an interest in the
right, which is the subject-matter of the litigation,
and not merely
an indirect financial interest in the litigation.
d)
An academic
interest is not sufficient. On the other hand, the joinder of joint
wrongdoers as defendants is not necessary, although
advisable.
e)
Likewise,
if parties have a liability, which is joint and several, the
plaintiff is not obliged to join them as co-defendants in
the same
action but is entitled to choose his target.
f)
A mere
interest is also insufficient. A litigation funder may be directly
liable for costs and may be joined as a co-litigant in
the funded
litigation. This would be the case where the funder exercises a level
of control over the litigation or stands to benefit
from the
litigation.”
[9]
Erasmus
[15]
elaborated:
g)
Subrule (3): Several defendants may be sued in one action.
“
Under
the common law a number of defendants may be joined on grounds of
convenience, equity, the saving of costs and the avoidance
of
multiplicity of actions. In
Rabinowitz
and Another NNO v Ned-Equity Insurance Co Ltd
it
was held that as regards the joinder of defendants, the common law
has been preserved notwithstanding the provisions of
this
subrule. The subrule permits the joinder of parties in the same
proceedings but it does not direct the hearing of evidence
as between
all defendants, so that the extent of liability is determined between
the parties.”
h)
Substantially
the same question of law or fact.
“
This
means that the questions of law and fact must ‘in the main’
or in their ‘principal essentials’ be ‘essentially’
the same.”
[10]
Again, Harms:
[16]
“
i) The
rule is not intended to be exhaustive of the cases in which a
plaintiff may join different defendants in one action.
j)
Under
the common law, a number of defendants may be joined whenever
convenience so requires, subject to the power of the court to
order
separation of the actions.
k)
Where
a plaintiff sues two or more defendants in the alternative and, in
the further alternative, jointly and severally for damages
suffered,
and the defendants deny liability and reciprocally point to one
another as the party responsible for the plaintiff’s
loss, a
court should not grant absolution from the instance at the end of the
plaintiff’s case if there is evidence which
establishes that
one or the other (or both) is liable even if it is uncertain which
alternative is the correct one.
l)
That
does not mean that the defendants must be put on their defence where
there is no evidence of negligence.”
[11]
An exception is a legal objection to the opponent’s pleading.
It complains of a defect inherent in the pleading; admitting
for the
moment that all the allegations in a summons or plea are true, it
asserts that even with such admission the pleading does
not disclose
either a cause of action or a defence, as the case may be.
[17]
[12]
The formal requirements for an exception to succeed are either to
proof that a pleading is vague and embarrassing
[18]
or a pleading lacks the averments necessary to sustain a cause of
action or a defence (i.e. when it is bad in law).
[19]
[13]
I will allow misjoinder to be challenged by way of exception in this
instance because the parties received adequate notification
of the
misjoinder-objection. The excipient did not step outside the
particulars of claim. The adjudication, in fact and law, to
turn on:
a)
Direct and
substantial interest and legal interest,
b)
in the
subject matter of the action and litigation,
c)
which may
cause the second defendant to be affected prejudicially by the
judgement of the court.
III
THE DISPUTE
[14] The relief claimed
in the main action is for an order against the first defendant only.
It is the following:
“
Ordering the first
defendant to take all necessary steps and sign all documents to
effect transfer of the property known as Erf
4187, Welkom, into the
names of the plaintiffs against payment by plaintiffs of the full
purchase price and ancillary costs, on
demand, to the first
defendant’s transferring attorneys by the plaintiffs.”
[20]
[15]
There lies no claim for any relief against second, third, fourth and
fifth defendants but the facts alleged by the plaintiffs
show that
they are implicated and may be prejudiced by the judgement of the
court in the main action.
[16]
The relief is for specific performance in terms of the subject matter
which is an alleged oral contract that allegedly came
about as result
of misrepresentation and underhanded conduct
[21]
by the first and second defendants and the terms of which were not
complied with by the first defendant in collusion with the second
defendant. The alleged oral contract was between the first defendant
and the plaintiffs to buy their property on an auction but
to
transfer it back into their names after they reimbursed the purchase
sum paid at the auction to the first defendant. The first
defendant,
so was the understanding of the plaintiffs, would be reimbursed under
the guise of a lease agreement. The first defendant,
with the
assistance of the second defendant, sold the property without their
knowledge to a third party in alleged contravention
of the contract
and the situation snowballed into a sale to the fourth and fifth
defendants.
[17]
The argument of the plaintiffs is that although there is not a claim
for relief against the second defendant, he dynamically
and
substantially so, partook in the actions that lead to the contract
and the breach thereof. His collusion with the first defendant
caused
the contract and subsequent breach thereof.
[18] The main contention
on behalf of the second defendant is that the reference to the second
defendant is primarily “part
of the facts as background to the
conclusion”
[22]
of the
agreement between the plaintiffs and the first defendant to the
extent that the second defendant from time to time acted
as agent or
representative of the first defendant. The contract was not with the
second defendant and there cannot be and is not
any relief claimed
against him. This basis, according to second defendant, for joining
the second defendant is not sufficient to
show that he has “a
direct and substantial interest in the subject matter of the action,
that is, a legal interest in the
subject matter of the litigation
which may be affected prejudicially by the judgement of the Court.”
He relied on the matter
of
Nyumba
Mobile Homes and Offices (Pty) Ltd v Member of the Executive Council:
Department of Health, Free State Province and Another
(1719/2015)
[2016] ZAFSHC 79
(6 May 2016).
[23]
[19]
Many terms/words are used in the assessments to be applied for
misjoinder; both in the legislation and common law. It is imperative
to emphasise that there is a difference between the “relief”
sought, the “cause of action” and “the
judgement of
the court”. The “subject matter” of the litigation
referred to in the misjoinder-test is not necessarily
the “relief”.
The “judgement” is not only the relief ordered. Joint
wrongdoers are also not necessarily
at the receiving end of the
relief claimed.
[20]
Detailed depiction of the facts is imperative to the judgement. I am
bound by the facts as alleged in the particulars of claim
in this
instance. Each case must be adjudicated on its own merits. The facts
of this case differ from the facts in the
Nyumba Mobile Homes and
Offices (Pty) Ltd-
case referred to above.
IV
THE FACTS
[21]
The first defendant is an attorney at Legal Aid South Africa and
married out of community of property to the second defendant.
At the
time of the alleged oral contract between herself and the plaintiffs,
depicted hereunder, first and second defendant were
engaged to be
married. The second defendant is also an attorney and in private
practise; the second defendant from time to time
acted as agent or
representative of the first defendant and served as attorney of
record for the plaintiffs during the contract
and events that caused
the dilemma that has now culminated into the litigation
in
casu
.
[22]
The plaintiffs were the registered owners of the Erf 4187, Welkom
which they utilised as a pre-primary school for 30 years
before the
events material to the case, ensued. The school was known as the
Academy School of Development.
[23]
The case got underway during 2011 when the property was attached by
First Rand Bank Limited t/a First National Bank under case
number
6257/2009 in respect of the outstanding balance and arrears due to
First National Bank by plaintiffs. An auction was scheduled
for 28
September 2011 by the Sheriff, Welkom.
[24]
The plaintiffs were in financial distress and they approached the
second defendant, “their attorney of record at the
time”
[24]
for assistance to prevent them from losing the property by way of
public auction.
[25]
During September 2011 the plaintiffs and the first and second
defendants allegedly entered into an oral agreement that succinctly
entailed that the first defendant would buy the property at the
auction on behalf of the plaintiffs. The plaintiffs would repay
the
first and second defendants in instalments of R5000-00 per month.
Once the full amount contracted to were paid, the property
would be
transferred back to the plaintiffs. The plaintiffs will remain in
occupation of the property and continue to run the school.
It was
implied, alternatively tacitly agreed, that the first defendant would
not be entitled to sell or otherwise alienate the
property.
[26]
No interest was payable and accordingly was the National Credit Act,
Act 34 of 2005, not applicable.
[27]
First defendant bought the property. First defendant, and or second
defendant on behalf of first defendant, alternatively both
the first
and second defendants paid the purchase price to the transferring
attorneys on behalf of the plaintiffs.
[28]
The first defendant took transfer of the property during February
2012.
[29]
On 4 October 2011 the first defendant entered into a lease agreement
with the Academy School of Development represented by
the plaintiffs.
The lease agreement was facilitated by the second defendant. The
material terms were that the property be rented
for the purposes of
conducting a school. The period of rental to be 9 years and 11 months
and the rent payable was R5000-00 per
month payable into the account
of the first defendant.
[30]
The lease was a simulated agreement which was proposed by the second
defendant on behalf of the first defendant to create the
impression
that the property was leased to the Academy School for Development to
justify the payment of “rental” to
the first defendant.
Another purpose of the lease agreement was to allegedly assist the
first defendant to obtain a loan from a
financial institution to pay
the purchase price of the property.
[31]
According to the particulars of claim this representation was false
in that the first defendant did not use the said lease
agreement to
obtain a loan from a financial institution and never obtained finance
from a financial institution to purchase property.
[32]
The plaintiffs were allegedly induced by the first and second
defendants to enter into the lease agreement in the honest believe
that the payments toward the “rental” was in fact
repayment towards the settlement of the outstanding balance of the
purchase price and peripheral costs of the property.
[33]
The plaintiffs performed in terms of the oral agreement but during
February 2012 the first defendant required the plaintiffs
to enter
into an addendum to the lease agreement wherein the term of repayment
was changed to 1 year. All payments were now to
be made to the second
defendant in cash and the second defendant accepted the payments on
behalf of the first defendant.
[34]
During June 2012 an employee of the third defendant informed that the
property was sold to it in May 2012. The first defendant
sold the
property to the third defendant and transferred simultaneously into
the name of the third defendant when first defendant
took transfer of
the property from the plaintiffs.
[35]
Third defendant sold the property to the fourth defendant and fourth
defendant received transfer of the property on 15 August
2012. As
mentioned, fourth defendant sold to fifth defendant in 2018.
[36]
It is alleged that the first defendant’s conduct to immediately
sell the property to the third defendant constitutes
repudiation of
an oral agreement between the parties in that the first defendant
could no longer effect transfer of the property
to the plaintiffs
once the plaintiffs have made payment of the full purchase price of
the property.
[37]
Third defendant is the Matjhabeng Municipality, a local municipality
doing business in Welkom. Fourth defendant, is a company
with limited
liability and with registered business address in Gauteng. The fifth
defendant is a company with limited liability
with registered
business address in Welkom.
[38]
The plaintiffs do not accept the first defendant’s repudiation
of the oral agreement and tenders the full outstanding
balance of the
purchase price and costs due to the first defendant in respect of the
property against transfer of the property
into the names of the
plaintiffs. Plaintiffs demand specific performance.
V
THE INVOLVEMENT OF THE SECOND DEFENDANT
[39]
The involvement of the second defendant, in specific summary, is
stated in the particulars of claim to be as follows:
a)
Paragraph
10:
“
Due
to the fact that the plaintiffs were in financial distress, the
plaintiffs approached the second defendant, as their attorney
of
record at the time, for assistance to prevent the plaintiffs from
losing the property by way of public auction.”
b)
Paragraph
11:
“
During
September 2011 and at Welkom, the plaintiffs personally, and the
first defendant, duly represented by the second defendant,
entered
into an oral agreement…”
c)
Paragraph
12:
“
On
28 September 2011, on the day of the auction, the second defendant
requested plaintiffs to make payment of the required cash
registration fee to the auctioneer in the amount of R10 000.00
on behalf of first defendant, to enable the first defendant
to take
part in the auction on behalf of the plaintiffs.”
d)
Paragraph
16:
“
The
first defendant, and or the second defendant on behalf of the first
defendant, alternatively both the first and second defendants,
paid
the balance of the purchase price to the transferring attorneys on
behalf of the plaintiffs.”
e)
Paragraph
20.1:
“
The
lease agreement was a simulated agreement which was proposed by the
second defendant on behalf of the first defendant, to create
the
impression that the property was leased to the Academy School of
Development to justify the payment of “rental”
to the
first defendant and allegedly to assist the first defendant to obtain
a loan from a financial institution to pay the purchase
price of the
property.”
f)
Paragraph
20.2 read with paragraph 21 states
“
that
the representation was false in that the first defendant did not use
the lease agreement to obtain a loan and never obtained
a loan and
that the plaintiffs were deceptively induced by the second defendant
to belief that the lease agreement was for the
settlement of the
outstanding balance of the purchase price and ancillary costs of the
property.”
g)
Paragraph
25: Although the contract demanded that the instalments be paid into
the account of the first defendant:
“
During
February 2012 the second defendant requested the plaintiff to make
payment of the instalment in respect of the oral agreement
in cash at
his office…”
h)
Paragraph
26:
“
In
June 2012 an employee of the third defendant claimed that he/she is
entitled to commission in the amount of R50 000.00 in
respect of
the sale of the property from second defendant which second defendant
refuses to pay.”
[40]
Connection between the defendant’s actions and the relief
claimed to prove interest and consequent prejudice to the party
joined, is not the only test and factor to be regarded. It may be
situated in the cause for the litigation. His legal interest,
in
casu
for instance, lies in the serious allegations of misrepresentations
and fraudulent transactions. He, amongst others, allegedly
partook in
the funding of the purchase and there is the alleged commission
payable by him to the employee of the third defendant.
If the trial
court judges in favour of the plaintiffs and accepts the version of
the plaintiffs, he will suffer severe prejudice.
Financially he could
lose the monies he invested in the transactions. His integrity;
personally and professionally is at stake.
[41]
The actions of the second defendant that caused the litigation and
“cause of action” is synthesised in the following
definitions:
“
Cause
of action: “was defined
[25]
by Lord ESHER, MR in
Read
v Brown
22
QBD 131
to be “every fact which it would be necessary for the
plaintiff to prove if traversed, in order to support his right to the
judgment of the court. It does not comprise every piece of evidence
which is necessary to prove each fact, but every fact which
is
necessary to be proved”. See also
Cooke
v Gill
,
LR 8 CP 116.
S
64(1)
of
Act
22
of 1916
:
means “every fact which is material to be proved to entitle a
plaintiff to succeed in his claim” (
Lyon
v SAR&H
1930
CPD 276)
; but it can mean “that particular act on the part of
the defendant which gives the plaintiff his cause of complaint”.
“A
cause
of action
accrues,
when there is in existence a person who can sue and another who can
be sued, and when all the facts have happened which
are material to
be proved to entitle the plaintiff to succeed” (per GARDINER,
JP, adopting s 64 of
Halsbury
,
xix, in
Coetzee
v SAR&H
1933
CPD 570).
See
G
North & Son v Brewer & Son
1941
NPD 74
;
Beaven
v Carelse
1939
CPD 323
;
Abrahamse
& Sons v SAR&H
1933
CPD 626
;
McKenzie
v Farmers’ Co-op Meat Industries Ltd
1922
AD 16
;
Huletts
v SAR&H
1945
NPD 413.
”
VI
CONCLUSION
[42]
According to the particulars of claim the facts show that the second
defendant has a direct and substantial interest in that
he actively
partook in the events that caused the basis and subject matter of the
action and litigation. He was, accordingly, not
an incidental
secondary party and participant to the acts. He might be prejudiced
by a judgement in favour of the plaintiffs. His
legal interest in the
outcome is material.
[43]
The case revolves around the same question of law and fact. One trial
should serve
convenience,
equity, the saving of costs and the avoidance of multiplicity of
actions.
[44]
The joinder of the second defendant is appropriate in law.
VII
ORDER
The
exception is dismissed with costs.
________________
M.
OPPERMAN, J
On
behalf of the second defendant/excipient: Adv. M.C. Louw
Instructed
by:
Hill,
McHardy & Herbst Inc
BLOEMFONTEIN
On
behalf of the plaintiffs: Adv. F.G. Janse van Rensburg
Instructed
by:
Bezuidenhouts
Inc
BLOEMFONTEIN
[1]
Hereafter referred to as
“plaintiffs”.
[2]
Excipient hereafter referred to as
“second defendant”.
[3]
Notice in terms of Rule 23(1), (2) &
(3) dated 15 November 2018 and served on 16 November 2018 &
Notice in terms of Rule
23(1), (2) & (3) dated 13 December 2018
and served on 14 December 2018.
[4]
Excipient/Second Defendant’s
Heads of Argument at paragraph 1 and Notices in terms of Rule 23(1),
(2) & (3).
[5]
Note that there is a difference
between the “relief” sought and the “judgement of
the court” for purposes
of the adjudication of this case. In
paragraph 12 of the Excipient/Second Defendant’s Heads of
Argument the word “judgement”
was correctly used.
[6]
Excipient/Second Defendant’s
Heads of Argument.
[7]
Excipient/Second Defendant’s
Heads of Argument paragraphs 7 to 12.
[8]
Notice in terms of Rule 23(1), (2) &
(3) dated 13 December 2018.
[9]
Rule 23(1):
Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the case
may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto and
may set it
down for hearing in terms of paragraph (f) of sub-rule (5) of rule
6: Provided that where a party intends to take
an exception that a
pleading is vague and embarrassing he shall within the period
allowed as aforesaid by notice afford his opponent
an opportunity of
removing the cause of complaint within 15 days: Provided further
that the party excepting shall within 10 days
from the date on which
a reply to such notice is received or from the date on which such
reply is due, deliver his exception.
Rule
23(2): Where any pleading contains averments which are scandalous,
vexatious, or irrelevant, the opposite party may, within
the period
allowed for filing any subsequent pleading, apply for the striking
out of the matter aforesaid, and may set such application
down for
hearing in terms of paragraph (f) of sub-rule (5) of rule 6, but the
court shall not grant the same unless it is satisfied
that the
applicant will be prejudiced in the conduct of his claim or defence
if it be not granted.
Rule
23(3): Wherever an exception is taken to any pleading the grounds
upon which the exception is founded shall be clearly and
concisely
stated.
[10]
Accentuation added.
[11]
McIndoe and Others (in their
capacities as joint liquidators of G&D Shoes (Pvt) Ltd and
Belmont Leather (Pvt) Ltd) v Royce
Shoes (Pty) Ltd
[2000] 3 All SA 19
(W),
Sanan
v Eskom Holdings Ltd
2010 (6) SA 638 (GSJ)
paragraph 20.
[12]
Herbstein and Van Winsen,
Civil
Practice of the High Courts and the Supreme Court of Appeal of South
Afric,
(5th Edition),
Internet: ISSN 2224-7319, Jutastat e-publications at V Procedure
for raising the objection of non-joinder
or misjoinder at
5th Ed, 2009 ch6-p238
to p241 with reference to
Skyline
Hotel v Nickloes
1973
(4) SA 170
(W)
at
171F–172A.
[13]
10 Joinder of parties and causes
of action
(1) Any number of persons, each of
whom has a claim, whether jointly, jointly and severally,
separately or in the alternative,
may join as plaintiffs in
one action against the same defendant or defendants against whom any
one or more of such persons proposing
to join as plaintiffs would,
if he brought a separate action, be entitled to bring such action,
provided that the right to relief
of the persons proposing to join
as plaintiffs depends upon the determination of substantially the
same question of law or fact
which, if separate actions were
instituted, would arise on such action, and provided that there may
be a joinder conditionally
upon the claim of any other plaintiff
failing.
(2) A plaintiff may join several
causes of action in the same action.
(3) Several defendants may be
sued
in one action either jointly, jointly and severally, separately or
in the alternative, whenever the question arising between
them or
any of them and the plaintiff or any of the plaintiffs depends upon
the determination of substantially the same question
of law or fact
which, if such defendants were sued separately, would arise in each
separate action.
(4) In any action in which any causes
of action or parties have been joined in accordance with this rule,
the court at the conclusion
of the trial shall give such judgment in
favour of such of the parties as shall be entitled to relief or
grant absolution from
the instance, and shall make such order as to
costs as shall to it seem to be just, provided that without limiting
the discretion
of the court in any way—
(a)
the
court may order that any plaintiff who is unsuccessful shall be
liable to any other party, whether plaintiff or defendant,
for any
costs occasioned by his joining in the action as plaintiff;
(b)
if
judgment is given in favour of any defendant or if any defendant is
absolved from the instance, the court may order:
(I) the plaintiff to pay such
defendant's costs, or
(ii) the unsuccessful defendants to
pay the costs of the successful defendant jointly and severally, the
one paying the other
to be absolved, and that if one of the
unsuccessful defendants pays more than his
pro
rata
share of the
costs of the successful defendant, he shall be entitled to recover
from the other unsuccessful defendants their
pro
rata
share of such
excess, and the court may further order that, if the successful
defendant is unable to recover the whole or
any part of his costs
from the unsuccessful defendants, he shall be entitled to recover
from the plaintiff such part of his costs
as he cannot recover from
the unsuccessful defendants;
c)
if
judgment is given in favour of the plaintiff against more than one
of the defendants, the court may order those defendants
against whom
it gives judgment to pay the plaintiff's costs jointly and
severally, the one paying the other to be absolved, and
that if one
of the unsuccessful defendants pays more than his
pro
rata
share of the
costs of the plaintiff he shall be entitled to recover from the
other unsuccessful defendants their
pro
rata
share of such
excess.
(5) Where there has been a joinder of
causes of action or of parties, the court may on the application of
any party at any time
order that separate trials be held either in
respect of some or all of the causes of action or some or all of the
parties; and
the court may on such application make such order as to
it seems meet.
[14]
Civil Procedure in the Superior
Courts
, Last
Updated: February 2019 - SI 64 at B10.2 Direct and
Substantial Interest.
[15]
Superior Court Practice,
CD-Rom
& Intranet: ISSN 1561-7467, Internet: ISSN 1561-7475, Jutastat
e-publications at RS 5, 2017, D1-124 to D1-129.
[16]
At B10.8 Joinder as Defendants.
[17]
Erasmus at Exceptions and
applications to strike out,
https://jutastat.juta.co.za/nxt/gateway.dll?f=templates&fn=default.htm&vid=Publish:10.1048/Enu
on 17 May 2019.
[18]
Nasionale Aartappel Koöperasie
Bpk v Price Waterhouse Coopers Ing
[2001]
2 All SA 319
(T), 2001 (2) SA 790 (T).
[19]
Trope v SA Reserve Bank
[1993]
2 All SA 278
(A), 1993 (3) SA 264 (A).
[20]
Amended Index:
Pleadings at page 14.
[21]
Amended Index:
Pleadings page 18 at paragraphs 20, 21 and 26.2.
[22]
Nyumba Mobile Homes and Offices
(Pty) Ltd v Member of the Executive Council: Department of Health,
Free State Province and Another
(1719/2015)
[2016] ZAFSHC 79
(6 May 2016) at paragraph 7.
[23]
Henri Viljoen (PTY) LTD v Awerbuch
Brothers
[1953] 2 ALL SA
40 (O).
[24]
Amended Index; Pleadings at paragraph
10.
[25]
Cause of action,
https://www.mylexisnexis.co.za/Index.aspx
on
26 May 2019.