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[2018] ZAGPJHC 616
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Grace and Others v DPI Plastics (Pty) Limited and Another; In Re BNOP Agriculture Services Limited v Agri-Challenge SA (Pty) Limited and Others (43466/2014) [2018] ZAGPJHC 616 (22 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 43466/2014
In the
matter between:
GRACE,
WAYNE
ALLEN
First
Applicant
AGRI-CHALLENGE
SA (PTY)
LIMITED
Second
Applicant
TIDHAR,
RAMY
Third
Applicant
and
DPI
PLASTICS (PTY)
LIMITED
First
Respondent
BNOP
AGRICULTURE SERVICES
LIMITED
Second
Respondent
and
PIMA,
JANANT DAJI
N.O.
First
Interested Party
STANDER,
MONIQUE
N.O.
Second
Interested Party
BOTHA,
MARTIN, DEON
N.O.
Third
Interested Party
VAN
DEN HEEVER, THEODORE WILHELM N.O.
Fourth
Interested Party
DAVID,
GAIRONESA
N.O.
Fifth
Interested Party
In
re:
BNOP
AGRICULTURE SERVICES
LIMITED
Plaintiff
and
AGRI-CHALLENGE
SA (PTY)
LIMITED
First
Defendant
TIDHAR,
RAMY
Second
Defendant
GRACE,
WAYNE
ALLEN
T
hird
Defendant
RONNIE
DENNISON AGENCIES (PTY) LIMITED
t/a WATER AFRICA SA
(In Liquidation)
Registration
2002/012139/07)
Fourth
Defendant
DPI
PLASTICS (PTY)
LIMITED
Third
Party
SUMMARY:
Civil
Procedure-Actions pending in two divisions of High Court- Transfer of
actions- Rule 11 of Uniform Rules of Court, and
section 27
of the
Superior Courts Act 10 of 2013
- when transfer of actions for
consolidation may be granted- overriding considerations of
convenience, and interests of the parties
and costs- the discretion
of court-application for transfer and/consolidation granted.
J U D G M E N T
MOSHIDI,
J
:
INTRODUCTION
[1] In this opposed matter, the
applicants seek an order for the transfer of this matter, Case Number
43466/2014 (“
the Johannesburg matter
”), to the
High Court of South Africa, Gauteng Division, Pretoria (“
the
Pretoria High Court
”).
[2] The Notice of Motion cited as
interested parties the following: the first interested party is
Janant Daji Pima NO, a major
male liquidator, practising as such for
Matatis Trustees (Pty) Limited, and his capacity as the duly
appointed joint liquidator
of Water Africa Systems (Pty) Ltd (“
Water
Africa
”); the second interested party is Monique Standard
NO in her capacity as the duly appointed joint liquidator of Water
Africa;
the third interested party is Deon Martin Botha NO, also a
joint liquidator of Water Africa; the fourth interested party is
Theodore
Wilhelm van den Heever NO, and the fifth interested party is
Gaironesa NO, both as joint liquidators also of Water Africa.
Water Africa was previously called Ronnie Dennison Agencies (Pty) Ltd
(“
Dennison
”).
THE
ISSUES
[3] In essence, the applicants seek
the consolidation of the Johannesburg matter and the Pretoria matter
to be heard together in
the Pretoria High Court. Rule 11 of the
Uniform Rules of Court provides as follows:
“
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.
”
THE
BACKGROUND
[4] The following background is
necessary: DPI Plastics (Pty) Ltd (“
DPI Plastics
”)
was joined as a third party in the main action (“
the first
respondent
”), whilst BNOP Agriculture Services (Pty) Ltd
(“
BNOP
”) is a company registered and domiciled in
Zambia, but locally represented, is the plaintiff in the main action
(“
the second respondent
”). The second
respondent in the Johannesburg matter (Case Number 43466/2014) has
instituted action against various
defendants, namely the second
applicant, the third applicant, the first Dennison, (In Liquidation),
and the first applicant (Grace
Wayne Allen) as the third defendant
(“
the main action
”). The plaintiff also
issued a third party notice to DPI Plastics (Pty) Ltd (“
DPI
Plastics
”). The cause of action is for damages
allegedly suffered by the second respondent (plaintiff) as a result
of the alleged
supply of defective of PVC pipes and ancillary piping
products (“
the piping
”). In the main action,
the plaintiff sued the second applicant for certain amounts, and as
against the first applicant,
also certain amounts therein specified.
[5] In the Pretoria matter, (Case
Number 14216/2014), DPI Plastics sued the first applicant (Grace
Wayne Allen) as the first defendant
and Dennison as the second
defendant, respectively, for payment of the sum of R6 848 337,35
(six million eight hundred
and forty eight thousand three hundred and
thirty seven rand and thirty five cents) with interest and costs.
There, the cause of
action arose from suretyship signed by the first
applicant and Dennison in favour of the third respondent (DPI
Plastics).
In that action both the first and second defendants
dispute both the quantum of the plaintiffs’ (first respondent’s
here) claims and that they are liable to make any payment of any sums
to the respondents.
[6] In support of the present
application, the applicants contended that the issues to be
determined presently (the Johannesburg
matter) and the issues to be
determined in the Pretoria matter, have significant commonality and
overlap greatly. For this
contention, the applicants argued
that: central to the present dispute is the manufacture of a
batch of irrigation piping
ordered by Water Africa from the first
respondent; the order for piping was received by Water Africa from
the second applicant
and the first defendant in the Johannesburg
matter, and represented by the third applicant who is the second
defendant in the Johannesburg
matter; the piping was ultimately
ordered by and intended for delivery to the second respondent (BNOP)
in Zambia. Further
that (according to the applicants)
thereafter, and after the receipt of the order from the second
respondent (BNOP), and second
applicant, Water Africa ordered the
piping from the first respondent (DPI Plastics). The order was
destined for delivery
to a Zambian entity known as Green 2000 (“
Green
2000
”), for installation at various farms in Zambia.
However, the consignment during both transportation en route to
Zambia,
and installation, failed. This was common cause between the
parties. However, the cause(s) of the above failure must be
determined
by a trial court, probably with the assistance of various
experts. As a result, the first respondent (DPI Plastics) has
instituted
action against the first applicant, the deponent to the
founding affidavit here (Grace Wayne Allen); Water Africa; the second
applicant;
and the third applicant, in Johannesburg matter, for the
relief described above.
[7] Based on the above, the applicants
contended that central to the various claims and defences raised, the
following issues have
to be proved by the first respondent (DPI
Plastics) as plaintiff, in the Pretoria matter and the third party in
the Johannesburg
matter: the nature, specification and quality of the
piping that was ordered and which Water Africa instructed the first
respondent
to manufacture; whether or not the first respondent
performed its obligations in the manufacture of the piping according
to the
instructions of Water Africa, which would involve expert
testimony; the pricing and rates charged by the third party;
and
that the core issue in dispute between the parties will
essentially require expert testimony. It was further contended
by
the applicants that, the issues in both the Johannesburg matter
and the Pretoria matter overlap extents rely, and to pursue two
(2)
separate trials in two (2) different courts will be a duplication of
evidence at unnecessary costs to all parties as well as
the courts in
question, and that this matter must therefore be transferred to the
Pretoria Division, and thereafter be consolidated
with the Pretoria
matter.
THE
OPPOSITION
[8] The first respondent (DPI
Plastics), in opposing the present application, filed an answering
affidavit deposed to by its attorney
of record (Corlia van
Veijeren). The first respondent is also the third party. In the
answering affidavit, the first respondent
also raised a point
in
limine
, which I deal with immediately below.
[9] The point
in limine
came to
this: that the issue raised by the applicants in the present
matter, namely the transfer of the Johannesburg matter
to the
Pretoria High Court, is
res judicata
. That prior to the
previous set down of the trial of the Pretoria matter on 15 August
2016, the first applicant (Grace Wayne
Allen) and his co-defendants
in the Pretoria matter applied for a transfer of the Pretoria matter
to the Johannesburg High Court.
The application was argued before
Fabricius J on 8 August 2016. It is common cause that on the
latter date, the application
was dismissed. The respondents
argued that the issues in that application (Pretoria application)
were exactly the same as
in the present application, decided upon,
and therefore
res judicata
here. The respondents, at
least the first respondent, sought an order that the present
application be dismissed with costs
on attorney and own client scale,
and that the first applicant’s attorney of record, Mr R C
Christie, be ordered to pay those
costs jointly and severally
de
bonis propriis
, for his conduct in these proceedings, in
particular, for failing to bring to this court’s attention that
the same
application had already been resolved and dismissed in the
Pretoria High Court, as well as the failure of the first applicant to
inform this court that the Pretoria matter had previously been set
down for trial on 8 February 2017.
SOME
COMMON CAUSE FACTS
[10] From the answering papers, it was
common cause that: the second respondent (BNOP Agriculture
Services Limited) is the
plaintiff in the main action in the
Johannesburg matter; the first respondent (DPI Plastics) was
joined as a third party
by the second and third applicants; the first
respondent had taken an exception to both the third party notice and
annexure thereto;
the second respondent had also taken exception to
the first applicant’s plea; these exceptions are being
opposed and
still have to be argued in the Johannesburg matter; the
liquidators of the fourth defendant/interested party, had not been
joined
in this matter in terms of the Insolvency Act; in the Pretoria
matter, the first respondent sued the first applicant and Dennison,
inter alia
, as sureties for the debts of Water Africa (In
Liquidation), and as stated elsewhere, in the present matter, the
applicants are
sued as sureties by the respondent (BNOP) for payment
of the sum of R6 848 337,35 (six million eight hundred and
forty
eight thousand three hundred and thirty seven rand and thirty
five cents) together with interest and costs. The applicants in the
pleadings, disputed both the quantum of the respondents’ claim,
and that they are liable to make payment of any sum to the
respondent. In short, it appeared that central to the various
claims, counterclaims, and defences raised, and to be proved
by the
respondent, as plaintiff in the present matter and third party, in
the Johannesburg matter, included the following:
the nature,
specification and quality of the piping that Water Africa instructed
the respondent to manufacture; whether or not
the respondent
performed its obligations in the manufacture of the piping as per the
instructions of Water Africa. In discharging
the
onus
,
the respondent will be obliged to deal with the above issues, and in
respect of which expert evidence may be required in order
to
adjudicate properly what appeared to be the core dispute. In
closing argument, the applicants submitted that: the
issues in
both matters overlap greatly, and pursuing two (2) separate trials in
two (2) different courts/divisions will be a duplication
of evidence
at unnecessary costs to all parties as well as the courts involved;
and that the present matter must be transferred
to the High Court of
South Africa, Gauteng Division, Pretoria, and thereafter be
consolidated with the Johannesburg matter in order
that overlapping
evidence will not be duplicated. The respondent argued
otherwise, as shown immediately below.
[11] The respondent argued that,
Dennison (trading as Water Africa) was subsequently liquidated, and
that the revival of an appeal
against the liquidation enrolled for
September 2018, will not help matters. In addition, that, in the
interim, Water Africa proceeded
into business rescue, and book into
liquidation, both the business practitioner and the liquidator
accepted the first respondent’s
(DPI Plastics’s) claim
against Water Africa; that the liquidators of Water Africa were
joined by the applicants as interested
parties, namely the first to
the fifth interested parties here; that the applicants also attempted
to joint DPI Plastics as a third
party, but DPI Plastics launched an
exception; that the second respondent, as plaintiff (BNOP) also
delivered an exception
against the defendant’s plea.
These are pending and the matter was subjected to case management
since April this year.
[12] In the heads of argument, the
respondent repeated its opposition that: the Johannesburg
matter was not nearly ready for
trial as there are still two
exceptions to be argued; that the present application was an
abuse of the process of the court,
and it is employed as a time
wasting tactic by the first applicant, who is a defendant in both the
Johannesburg matter and Pretoria
actions; that the Johannesburg
matter and the Pretoria matter do not deal with the same issues, and
therefore it will not
be convenient to join these actions on a future
date.
THE
SUPERIOR COURTS ACT
[13
] I have already at the
commencement quoted the provisions of Rule 11 of the Uniform Rules.
Section 27
of the
Superior Courts Act 10 of 2013
, provides as
follows:
“
(1) If any proceedings have
been instituted in a Division or at a seat of a Division, and it
appears to the court that such proceedings
–
(a)
should have been
instituted in another Division or at another seat of that Division;
or
(b)
would be
more
conveniently heard or determined
–
(i)
at another seat of
that Division; or
(ii)
by another
Division,
that court may, upon application by
any party thereto and after hearing all other parties thereto, order
such proceedings to be
removed to that other Division or seat, as the
case may be.
(2)
An order for removal under subsection (1) must be transmitted to the
registrar of the court to which the removal is ordered,
and upon the
receipt of such order that court may hear and determine the
proceedings in question.
”
THE
RULE OF CONVENIENCE
[14] A careful reading of the above
provisions, together with those of
Rule 11
, in my view, seems to
suggest persuasively that, the main consideration in applications of
this nature, is that of the general
rule of convenience, or balance
of convenience and/or equity. For example, in
Nel v Silicon
Smelters (Edms) Bpk en ‘n Ander
1984 (1) SA 792
(A), it was
held,
inter alia
, that on the facts of that case, and for
various reasons, it was convenient for the parties if the two actions
were heard as one,
and that no party would be prejudiced thereby.
See also
International Tobacco Co of SA Ltd v United Companies
(South) Ltd
1953 (1) SA 241
(W). The matter in
Rail
Commuters’ Action Group v Transnet Ltd
2006 (6) SA 68
(C)
concerned a class action by numerous plaintiffs, and others who had
each instituted separate action for damages. The
question for
determination was whether or not the separate trials of each one of
the plaintiffs should be heard separately, or
whether they should all
be heard together as part of a single composite trial. In
finally granting the consolidation of the
actions, the Court said:
“
The Court has a discretion
to permit the joinder of parties or causes of action under
Rule 10
,
or the consolidation of actions in terms of
Rule 11
, on grounds of
convenience, especially in order to save costs or to avoid a
multiplicity of actions: see Anderson v Gordick
Organisation
1962 (2) SA 68
(D) at 72H, Khumalo v Wilkins and Another
1972 (4) SA
470
(N) at 475F-H and Erasmus (op cit) at B1-100. The overriding
consideration, I think, at least for the purposes of this case, is
that of convenience: of the parties, of witnesses, and, last
but not least, of the Court.
” (at p 88A-B).
At page 89I-J of the judgment; the
Court said:
“
The convenience which would
follow if there were no separation of trials must also be
considered. First, as I have said, each
witness would have to
give evidence only once, as opposed to possibly several or even many
times. The undesirability of different
courts making
conflicting findings of fact or credibility would be excluded. The
defendants would not have to be in several different
courts at the
same time, opposing the claims of various plaintiffs: all of their
resources and manpower could be concentrated in
one place, viz the
court in which the single trial was being conducted.
”
(
Cf International Tobacco Co of SA
Ltd v United Tobacco Companies (South) Ltd, supra
.) See
also
Mpotsha v Road Accident Fund and Others
2000 (4) SA 696
(C) at p 699D-F. The cases of
Road Accident Fund v Rampukar
2008 (2) SA 534
(SCA), and
Ngqula v South Africa Airways (Pty) Ltd
2013 (1) SA 155
(SCA), dealt with, the removal of a trial from the
Johannesburg High Court to the Pretoria High Court as envisaged in
the Interim
Rationalisation of Jurisdiction of High Courts Act 41 of
2004.
[15] From the above, it is plain that
considerations such as the convenience of the parties, witnesses, the
courts, and the saving
of costs are weighty ones. These must
apply in the present case, to a very large extent, in my view.
If so, the present
application must succeed, for several reasons as
demonstrated immediately below.
[16] For starters, and briefly, as
argued by the applicants: the matters in Pretoria and
Johannesburg are inextricably intertwined
and relate to the failure
of the pipes, consequential damages, the non-payments and other
claims. The slight difference is
that the Pretoria matter is
solely as between the two (2) sureties and DPI Plastics. The
liability of the sureties would depend
entirely on the liability of
Water Africa. In turn, Water Africa’s liability will
depend on the alleged defective manufacture
by DPI Plastics and proof
of the claims by the second respondent. On a proper scrutiny of
the pleadings, there was a probability
that the potential liability
of the sureties in the Pretoria matter may well be extinguished as a
consequence of the claim of the
interested parties (the liquidators).
For this reason too, and based on the equity rule, the present matter
must be transferred
and consolidated with the Pretoria matter. In
addition, the same enquiry, or substantially similar one, in the
Johannesburg matter
will overlap with that in the Pretoria matter.
The respondents cannot be prejudiced by the consolidation sought,
which is plainly
a discretionary matter in the hands of the court.
Both the respondents’ claims have an interest component which
will compensate
them for any delay occasioned. The motive of the
deponent in the answering affidavit in opposing the instant
application on behalf
of the first respondent only, was unclear in
the circumstances. Significantly, the second respondent had not
filed any opposing
papers despite filing a notice of intention to
oppose.
[17] The opposition proffered to the
present application on the basis that the matter of transfer or
consolidation is
res judicata
had no merit at all, in my
considered view. The previous application to
transfer/consolidate the actions was interlocutory.
The
application for transfer/consolidation previously launched in
Pretoria did not involve the same parties as in the present matter.
For example, in the Johannesburg matter, the plaintiff (BNOP) is
Zambian based. In the Pretoria matter, the plaintiff is DPI against
two (2) sureties. The third party corresponded with the plaintiff in
the Pretoria matter and the first applicant here, and cited
as a
director whereas in the Pretoria matter, he is cited as a surety.
COSTS
DE BONIS PROPRIIS
ISSUE
[18] As regards the issue of costs
de
bonis propriis
order now sought by the respondent, against the
applicants’ attorney, again, no persuasive basis was made for
such a drastic/punitive
order. In such a complex matter,
accompanied by prolix papers, involving many parties, it was not
readily easy to discern
and apportion blame in the circumstances of
prolonged litigation. The attorney targeted by such costs order was
not present in
court to defend himself, even though prior notice was
given. I conclude therefore on this aspect that, no credible
reasons
have been advanced for the grant of such costs order. If I
did so, I would offend the
audi alteram partem
rule. In any
event, it was a discretionary matter.
FINAL
CONCLUSION
[19] In the end, on the main issue in
dispute in the present matter, the overriding considerations of
convenience, and balance of
convenience prevailed. In short,
the considerations were aimed at avoiding the overlapping of actions
in different jurisdictions,
avoiding witnesses giving evidence in
different divisions, at different times, as well as, obviously, the
sheer costs of oral evidence,
attorneys’ costs, counsel and
expert witnesses. The multiplicity of actions must be avoided.
See
Standard Bank of SA v Fire Equipment
1984 (2) SA 693
(C)
at page 699A-C. The costs of the application now under discussion,
must follow the result.
ORDER
[20] The following order is made:
1.
The present action issued
under Case Number 43466/2014 in the Gauteng Local Division,
Johannesburg, is hereby transferred to the
Gauteng Division,
Pretoria, and to be consolidated with the action under Case Number
14216/2014 in that Division.
2.
The opposing respondent(s)
shall pay the costs of this application.
________________________________________
D S S MOSHIDI
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel for the Applicants:
C D Roux
Instructed
by:
R C Christie Inc
Counsel for the Respondents:
P van der Berg SC
Instructed
by:
Van Veijeren Inc
Date of
hearing:
30 May 2018
Date of
judgment:
22 November 2018