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[2017] ZAGPPHC 24
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Huyser v Quicksure (Pty) Ltd and Another (73006/2012) [2017] ZAGPPHC 24; [2017] 2 All SA 209 (GP); 2017 (4) SA 546 (GP) (3 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
Reportable:
No
Of
interest to other judges: No
Revised.
CASE
NO: 73006/2012
DATE:
3/2/2017
IN
THE MATTER BETWEEN
P J
HUYSER APPLICANT/PLAINTIFF
AND
QUICKSURE
(PTY)
LTD 1
ST
RESPONDENT/DEFENDANT
NEW
NATIONAL ASSURANCE CO LTD 2
ND
RESPONDENT/DEFENDANT
JUDGMENT
PRINSLOO,
J
[1]
The applicant (plaintiff in the main action, but I will refer to him
as "the applicant" for the sake of brevity) applies
to join
the second respondent as the second defendant in the main action
("the second respondent").
[2]
The second respondent opposes the application on the basis that any
claim which the applicant may have had against it, has become
prescribed, and service of this joinder application on the second
respondent did not serve to interrupt the running of prescription
in
terms of the provisions of section 15(1) of the Prescription Act, Act
68 of 1969 ("the Act").
[3]
The first respondent, presently the only defendant in the main
action, ("the first respondent") did not enter the
fray.
[4] It
seems to me that the essential question for decision is whether, in
this particular case, service of the application to join
the second
respondent as a second defendant interrupted the running of
prescription of the applicant's claim against the second
respondent
as intended by the provisions of section 15(1) of the Act.
[5]
Before me, Ms Granova appeared for the applicant and Mr West appeared
for the second respondent.
Brief
synopsis of the underlying facts and chronological details
[6] On
or about 20 December 2012 the applicant, as plaintiff, instituted
action against the first respondent, as defendant, on the
following
basis:
• The first respondent is a private company which carries on
business as a registered insurance company in terms of Act 27
of 1943
in Brakpan, Gauteng.
• The parties entered into a written agreement of insurance in
terms of which the defendant undertook to insure the plaintiff's
motor vehicle being a 2010 Toyota Landrover Prado 3.0VX with
registration number ZHJ […]GP against the risks mentioned
in the contract, one of them being accidental loss of or damage
caused to the vehicle. A copy of the agreement of
insurance
is attached.
• The defendant undertook to provide cover to the plaintiff in
respect of the said motor vehicle up to the sum insured for
loss or
damage to the insured property by any cause not otherwise excluded.
• On 1 October 2010 on the N4 road close to the Watermeyer
off-ramp, Pretoria, the vehicle of the plaintiff was damaged as
a
result of an accident that occurred.
• The value of the motor vehicle, calculated as on 1 October
2010, is the sum of R630 000,00.
• The policy of insurance was of full force and effect on
1 October 2010.
• The plaintiff gave written notice of the incident and loss to
the defendant and has complied with all other obligations
under the
policy.
• Despite this, the defendant has refused to make any payments
to the plaintiff in respect of the loss of the motor vehicle.
The amount of R630 000,00 is claimed with interest and costs.
[7]
The policy which the applicant attached to the summons is a lengthy
affair in fine print but it is headed, in much bigger bold
letters
"
Quicksure Personal Insurance Policy
".
[8]
Underneath this heading, in fine print, the following is stated:
"Issued and administered by Quicksure (Pty) Ltd, an authorised
Financial Services Provider (FSP number 16902), on behalf of
the
insurance companies named in the schedule which forms part of this
policy. We agree to provide insurance in terms of
this policy
during any period for which a premium has been paid. The
proposal and declaration made by you are the basis of
and form part
of this policy."
There
is no schedule of insurance companies attached to the policy which is
attached to the particulars of claim.
[9] In
fairness, it must be added that under the "definitions" it
is stated that "we/us the insurer"
means the
insurance company named in the schedule.
[10]
Everyone of the 17 finely printed pages contains, at the top left
corner, a logo consisting of a very large Q with underneath
it the
name "Quicksure".
[11]
On 8 February 2013 the defendant (first respondent) entered an
appearance to defend the action and the plea was served on the
plaintiff's attorney on 20 March 2013, which is an important
date for present purposes.
[12]
Equally important is paragraph 3 of the plea, the contents of which
inspired the applicant to launch this application.
It
stipulates:
"The Defendant denies that it entered into a written agreement
with the Plaintiff as alleged or at all.
The Defendant denies that it undertook to insure Plaintiff's motor
vehicle being a 2010 Toyota Landrover Prado 3.0VX with registration
number ZHJ […] GP against the risks mentioned in the
contract, one of them being accidental loss of damages caused
or
damages caused to the vehicle. At all material times hereto the
Defendant and its agents acted as insurance administrators
on behalf
of New National Assurance Co Ltd (registration number
1971/10190/03)."
The
rest of the plea consists, by and large, of bare denials and, in the
final paragraph, the defendant/first respondent admits
that it
refused to make any payment to the plaintiff.
[13]
On or about 17 October 2013 the applicant, as a result of the
revelation made in the plea, launched this application to join
the
second respondent as a defendant to the action. The relevant
prayers in the notice of motion read as follows:
"1. That the second respondent (New National Assurance Co Ltd)
be joined as defendant in the main action under case number
73006/2012.
2. That all pleadings filed on record be served upon the party joined
in terms of prayer 1 within 10 (ten) days of date of this
order.
3. That the costs of the application be reserved."
[14]
According to the return of the Deputy Sheriff, the application was
served on the second respondent at its principal place of
business in
Durban on 27 November 2013.
[15]
In the concise founding affidavit, the applicant, importantly in my
view, states that the purpose of the application "is
to obtain
an order for the joinder of the second respondent as second defendant
in the main action on the grounds that the second
respondent has a
direct and substantial interest in the subject matter of the action
and the determination of the dispute involves
substantially the same
question of law and fact as against the first respondent".
[16]
After summarising the background of the case, as it also appears from
the particulars of claim, the applicant refers to the
first
respondent's (defendant's) plea served on 20 March 2013 and the
applicant says the following:
"6.3 The first respondent in paragraph 3 of its plea indicated
that they, (the first respondent), merely acted as 'insurance
administrators' on behalf of the second respondent. The
relevant part of the first respondent's plea reads
inter alia
as follows:
'
At all material times hereto the defendant and its agents acted
as insurance administrators on behalf of
New National
Assurance Co Ltd
(registration number 1971/10190/03)
.'
6.4 I did not have knowledge of the identity of the second respondent
as debtor until the first respondent's plea was served on
my
attorneys of record on 20 March 2013."
A copy
of the plea is also attached to the founding affidavit.
[17]
Of equal importance, in my view, is what the applicant emphasises in
paragraph 7 of the founding affidavit (I quote
the full
paragraph, although it contains matter which is repetitive of what I
have already quoted when referring to what the applicant
described as
the purpose of the application):
"7.1 It is essential to join the second respondent as second
defendant in the main action as the second respondent has a direct
and substantial interest in the subject matter of the action and the
determination of the dispute involves substantially the same
issues
of law and fact as against the first respondent.
7.2 In light of the aforementioned it would be convenient as well as
cost effective, were the second respondent to be joined in
the main
action.
7.3 I respectfully state that to refuse this application would
substantially prejudice the applicant/plaintiff and that to grant
it
could not cause any prejudice to the respondents in any manner.
7.4 I accordingly request the Honourable Court that an order be
granted as set out in the Notice of Motion."
[18]
In February 2014 (the exact date is not mentioned) the manager of the
Legal Department of the second respondent deposed to
its answering
affidavit. It is not clear when this answering affidavit was
filed, but the filing sheet is dated 4 February
2014.
[19]
The deponent states that the application is opposed on the basis that
the applicant's claim against the second respondent "has
already
prescribed and it will serve no purpose to join the second respondent
as second defendant in the action".
[20]
By way of background, it is mentioned that the insurance contract was
already entered into in 2007. Reference is made,
as I did
already, to the fine print message underneath the bold heading of the
Quicksure Personal Insurance Policy
,
to reflect
that the mentioned policy is issued "on behalf of the insurance
companies named in the schedule which forms part
of this policy".
I also mentioned that the schedule was not attached to the policy
which is an annexure to the particulars
of claim neither was it
attached to the copy of the policy which is an annexure to the
opposing affidavit.
[21]
It is mentioned by the deponent that the Toyota Prado of the
applicant was included in the insurance contract in May 2010,
some
months before the accident occurred.
[22]
The allegation is then made that the joinder of the second respondent
as second defendant in the action "will serve no
purpose in that
any claim which the applicant may have had against New National
Assurance Co Ltd in terms of the insurance contract
and arising from
the damage to the motor vehicle on 1 October 2010 has already
prescribed on 30 September 2013 in terms
of
section 11(d)
of the
Prescription Act 68 of 1969
".
It is
alleged that the claim would have become prescribed on the day before
the 1 October 2010 accident when the vehicle was
damaged and
that the applicant had knowledge of the identity of the debtor New
National Assurance Co Ltd as far back as June 2007
and was again
reminded thereof in May 2010 when the policy schedule was amended.
It is also submitted that the claim became
prescribed before the
joinder application was launched in October 2013 (after the
accident).
[23]
The applicant's allegation in his plea,
supra
, that he did not
have knowledge of the identity of the debtor until the plea was
served on his attorney on 20 March 2013 is
rejected as
unfounded. This submission is based on the allegation that the
applicant knew about the identity of the second
respondent much
earlier. It is also alleged that the applicant could have
ascertained the identity of the debtor by making
enquiries to
Quicksure (the first respondent) in view of the reference in the
Quicksure policy to insurance companies listed in
the schedule.
[24]
Importantly, the deponent on behalf of the second respondent also
attaches a letter on the Quicksure letterhead dated June
2007
addressed to the applicant purportedly enclosing the Policy Schedule,
which is also attached to the answering affidavit.
The
letter, bearing the Quicksure logo and containing no reference
whatsoever to the second respondent goes under the heading
"Quicksure
verwelkom u"
and
refers to the attached Policy Schedule. It ends with the phrase
"Ons
vertrou dat u bostaande in orde vind en verseker u van ons beste
dienste te alle tye.
Die
uwe
Letitia
Bekker namens Quicksure".
The
schedule is emblazoned with the heading
"
Quicksure
Platinum Polis
Sertifikaat
van Versekering
".
In
very fine print underneath that one finds the words "onderskryf
deur New National Assurance Co Ltd" There is
no clear
reference elsewhere in this "Quicksure Platinum Polis" to
the second respondent being the insurer. Also
attached as an
annexure to the answering affidavit is the 2010 amendment to the
policy schedule containing wording identical to
the other schedule
under the same heading
"
Quicksure
Platinum Polis
Sertifikaat
van Versekering
".
[25]
The replying affidavit is dated February 2016, two years after the
answering affidavit. This delay is not explained,
neither did I
receive any argument on the issue or hear submissions with regard to
the ostensible late filing of the replying affidavit.
There
were no objections in this regard from the second respondent.
What
does emerge from the papers, however, and from submissions made at
the start of the proceedings by Ms Granova, is that there
was a long
process involving complaints lodged by the applicant to the insurance
Ombudsman against the first respondent, during
which period, so it
was argued, there was no mention of the alleged involvement of the
second respondent as the insurer.
This only emerged when the
plea was filed "years later" in the words of Ms Granova.
[26] I
turn to the replying affidavit.
The
applicant, correctly, points out that the only issue in dispute is
whether the claim against the second respondent has prescribed.
He confirms that the first time he became aware of the "legal
nexus" between him and the second respondent was when the
plea
was received on 20 March 2013. Until that date, he had never
dealt with the second respondent's officials or received
any
correspondence carrying the name or logo of that party or indicating
its connection with the applicant as the insurer.
[27]
The applicant pleads that before he issued summons, he lodged the
complaint with the insurance Ombudsman against the first
respondent.
At no stage during those proceedings did the first respondent allege
that it was not bound by the insurance contract.
At all
relevant times the applicant only dealt with the first respondent.
Importantly, at no stage did he receive any copies
of the policy
schedule/amended policy schedule which indicated the second
respondent as the insurer.
On the
basis that he became aware of the "legal nexus" between him
and the second respondent on or about 20 March
2013, the
applicant insists that this application was launched within the three
year period from the time that he became aware
of the identity of the
particular debtor so that the claim could not have become prescribed.
This
would have been a reference to section 11(d) of the Act which
stipulates that, save where an Act of Parliament provides otherwise,
the period of prescription shall be three years.
At the
same time, it is convenient to mention the provisions of section
12(3) of the Act:
"(3) A debt shall not be deemed to be due until the creditor has
knowledge of the identity of the debtor and of the facts
from which
the debt arises: Provided that a creditor shall be deemed to have
such knowledge if he could have acquired it by exercising
reasonable
care."
[28]
During the hearing before me, counsel for the second respondent,
quite properly in my view, made the following concessions:
• The allegation by the applicant, in the founding affidavit,
that he did not have knowledge of the identity of the second
respondent as a debtor until receipt of the latter's plea on 20 March
2013 was accepted as correct; and
• The argument raised in the answering affidavit that the
applicant could have established the identity of the second
respondent
as a debtor at an earlier stage by making enquiries with
the first respondent was not pursued; and
• It was accepted, on behalf of the second respondent, and for
purposes of this dispute, that the allegations in the replying
affidavit that the applicant never received the documents referred to
in the answering affidavit are correct.
[29]
The main thrust of the argument offered by Mr West, if I understood
it correctly, is that the claim against the second respondent
became
prescribed on the following basis: prescription started running on 20
March 2013 when the plea was received. Three
years later, on
19 March 2016, the claim became prescribed as intended by the
provisions of section 11(d) of the Act.
This is so, because the
matter only came before me on 25 July 2016, after the three year
period had expired.
The
fact that the joinder application was served in November 2013
already, does not assist the applicant, because service of the
joinder application did not interrupt the running of prescription as
provided for in section 15(1) of the Act. As authority
for this
proposition, counsel relied heavily on the judgment in the
Peter
Taylor
case, to which I will refer in greater detail in due
course.
Section
15 of the Act
[30]
It is useful to quote the wording of section 15 which goes under the
heading "Judicial interruption of prescription":
"(1) The running of prescription shall, subject to the
provisions of subsection (2), be interrupted by the service on the
debtor of any process whereby the creditor claims payment of the
debt.
(2) Unless the debtor acknowledges liability, the interruption of
prescription in terms of subsection (1) shall lapse, and the
running
of prescription shall not be deemed to have been interrupted, if the
creditor does not successfully prosecute his claim
under the process
in question to final judgment or if he does so prosecute his claim
but abandons the judgment or the judgment
is set aside.
(3) If the running of prescription is interrupted as contemplated in
subsection (1) and the debtor acknowledges liability, and
the
creditor does not prosecute his claim to final judgment, prescription
shall commence to run afresh from the day on which the
debtor
acknowledges liability or, if at the time when the debtor
acknowledges liability or at any time thereafter the parties postpone
the due date of the debt, from the day upon which the debt again
becomes due.
(4) If the running of prescription is interrupted as contemplated in
subsection (1) and the creditor successfully prosecutes his
claim
under the process in question to final judgment and the interruption
does not lapse in terms of subsection (2), prescription
shall
commence to run afresh on the day on which the judgment of the court
becomes executable.
(5) If any person is joined as a defendant on his own application,
the process whereby the creditor claims payment of the debt
shall be
deemed to have been served on such person on the date of such
joinder.
(6) For the purposes of this section, 'process' includes a petition,
a notice of motion, a rule
nisi
, a pleading in reconvention, a
third party notice referred to in any rule of court, and any document
whereby legal proceedings
are commenced."
[31]
On the question of the interruption of prescription, I add, for the
sake of detail, that Ms Granova developed her argument
in terms
of section 12(3) of the Act (a debt shall not be deemed to be
due until the creditor has knowledge of the identity
of the debtor
and of the facts from which the debt arises) to the point where she
argued that, in the spirit of this provision,
the debt only became
due when the answering affidavit was filed in February 2014 because
it is not disputed that all the details,
and documentation, were not
conveyed to the applicant before then. She argued that, if the
issue were to be ventilated before
a court by means of evidence, such
a conclusion may well be arrived at. That would lead to a
finding that the three year
period would only run its course by
February 2017.
In
view of the stance adopted by the applicant in the replying affidavit
to the effect that the proverbial penny dropped on 20 March
2013 when
the plea was filed, and not having been called upon to consider
evidence on this argument (which may be referred to as
"Ms Granova's
12(3) argument"). I find myself unable to pronounce
definitively thereon.
Nevertheless,
and perhaps depending on the final outcome of the present
proceedings, it may be procedurally possible at some future
stage,
for the applicant, if so advised, to have Ms Granova's 12(3)
argument tested in evidence. No doubt, the applicant
will bear
in mind that (4?) February 2017 is fast approaching.
Brief
overview of some authorities relevant to the question whether, in
this particular case, the joinder application interrupted
prescription of the applicant's claim against the second respondent
[32] I
turn to some of the authorities which are relevant to this subject.
(i)
Cape Town Municipality and Another v Allianz Insurance Co Ltd
1990 1 SA 311
(CPD)
.
[33]
This matter does not involve a joinder application but the provisions
of section 15 of the Act and the question of interruption
of
prescription do come into play.
[34]
The two plaintiffs had been jointly insured by the defendant under a
policy in terms of which the defendant had undertaken
to indemnify
them against damage caused to a sewerage pipeline then under
construction. The pipeline was damaged by storms
in May and
June 1984. When the defendant failed to admit liability, the
plaintiffs instituted proceedings against the defendant,
claiming an
order declaring the defendant "to be liable in law to
indemnify the plaintiffs in terms of the policy in
respect of all
loss and damage to the works". Shortly before the hearing
of the action (set down for 20 October
1987), the defendant
filed a special plea, pleading that the plaintiffs' right to an
indemnity, if any, was a debt in terms of
the
Prescription Act; that
by no later than 7 October 1984 the plaintiffs had had knowledge
of the identity of the debtor and of the facts from which
the debt
had arisen; that prescription had therefore commenced running on
7 October 1984 and that, accordingly, by 7 October
1987 the
plaintiffs' right to an indemnity had prescribed. The
plaintiffs, in replication, contended that the institution
of
proceedings for a
declarator
had interrupted the running of
prescription.
The
defendant argued that, for judicial interruption of prescription to
have occurred, the process served upon it by the plaintiffs
would
have to have been one whereby payment of the debt was claimed (
my
note
: this is a reference to the wording of section 15(1) of the
Act to which I have referred). Since the defendant's debt could
only have been discharged by paying money, the claim, in order to
effect interruption of prescription, had to have been one sounding
in
money. The plaintiffs had not claimed money, but had merely
claimed a
declarator
. The summons in question had
therefore not been one for "payment of the debt" within the
meaning of section 15(1)
of the Act, and prescription had not been
interrupted. Moreover, the
declarator
, if granted, would
never become executable as required by section 15(4).
[35]
In dismissing the special pleas with costs the learned Judge said the
following at 334G 335B:
"Bearing in mind that some of the key wording of section 15 must
be given a wide and general meaning, consistent with a legislative
intention to speak broadly rather than to define, and having regard
to the spirit, scope and purpose of the Act, I conclude that
section
15 must be interpreted as follows. 1. It is sufficient for
the purposes of interrupting prescription if the
process to be served
is one whereby the proceedings begun thereunder are instituted as a
step in the enforcement of a claim for
payment of the debt.
2. A creditor prosecutes his claim under that process to final,
executable judgment, not only when the process and the judgment
constitute the beginning and end of the same action, but also where
the process initiates an action, judgment in which finally
disposes
of some elements of the claim, and where the remaining elements are
disposed of in a supplementary action instituted pursuant
to and
dependent upon that judgment.
I am fortified in interpreting thus by what was said in the
Murray
and Roberts
case (
my note
: a reference to
Murray and
Roberts Construction (Cape) (Pty) Ltd v Upington Municipality
1984 1 SA 571
(AD) at 578H):
'Where the creditor takes judicial steps to recover the debt, and
thereby to remove all uncertainty about its existence, prescription
should obviously not continue running while the law takes its
course.'
Those are admittedly general remarks, but they point, in my view, to
the sense and purpose which section 15 must have in the whole
context
of prescription law.
Applying the interpretation set out above, it follows that the
prescription was interrupted in terms of
section 15
of the
Prescription Act by
the service of plaintiffs' summonses and as of
now remains interrupted."
[36]
When considering the proper approach to adopt when interpreting the
Act, including section 15, the learned Judge, dealing with
various
authorities, at 330C-J, pointed out that there is also "a
discernible looseness of language" when compared to
the
predecessor of the Act, the 1943
Prescription Act. At
330I, the
learned Judge concludes:
"Accordingly, one's starting point is that the language to be
interpreted has an inherent elasticity. To be taken together
with that is the consideration already mentioned that the legislative
draftsman has not attempted in this particular statute to
legislate
exhaustively for all eventualities."
[37] I
will later revisit certain features of this judgment.
(ii)
Naidoo and Another v Lane and Another
1997 2 SA 913
(D&CLD)
.
[38]
The plaintiffs instituted action against the first defendant, Mr C A
Lane, who was at that stage the only defendant, in April
1993 for
damages allegedly suffered by them and their minor children as a
result of alleged breach of contract by the first defendant
Mr Lane.
On 24 January 1995 the plaintiffs served a notice of motion by
means of which they commenced an application
for the joinder of the
Minister of Safety and Security as second defendant, the existing
defendant to become the first defendant.
The application sought
leave to amend the summons and particulars of claim by substituting,
for the existing summons and particulars,
the summons and particulars
which were annexed. In December 1995, an order was made in
respect of the application for joinder
in the terms in which the
notice of motion was crafted. On 30 January 1996 the
amended summons and particulars
of claim were served on the second
defendant. The second defendant raised a special plea to the
effect that the claim of
the parents (the two plaintiffs) had become
prescribed. Understandably, prescription was not raised in
respect of the representative
claims for the children which were
minors at all relevant times.
[39]
It was common cause that in the case of each of the plaintiffs
(parents) the debt, for purposes of the Act, became due at the
latest
on 23 July 1992 and that unless the running of prescription was
interrupted, such "debt" prescribed at midnight
on 22 July
1995.
The
plaintiffs relied for such interruption exclusively on the service on
24 January 1995 of the application. The issue
was
therefore whether the application was a "process whereby"
the plaintiffs claimed "payment of" each "debt"
within the meaning of section 15(1) of the Act.
[40]
Before listing, and briefly commenting upon, the findings of the
learned Judge, by drawing from the summary contained in the
headnote,
it is useful to quote the relevant portions of the notice of motion
which, in my view, distinguishes
Naidoo
from the case now
under consideration. The wording of the notice of motion
appears in
Naidoo
at 916E J. The notice of motion
stated that the plaintiffs –
"intend to make application to this Court for an order in the
following terms:
1. that the applicants are given leave to join the Minister of Law
and Order as a second defendant in the action instituted by
the
applicants (as first and second plaintiffs) against Charles Anthony
Lane under case number ...;
2. that the plaintiffs are given leave to amend the summons and
particulars of claim in the action under case number ... by
substituting,
for the existing summons and particulars of claim, the
summons and particulars of claim annexed to the founding affidavit of
the
first plaintiff (first applicant) marked "B" and "C";
3. that this order is to be served together with the summons and
particulars of claim on the Minister of Law and Order;
4. that in so far as it may be necessary:
(a) the existing notice of intention to defend by Charles Anthony
Lane stands and he need not file any further notice of intention
to
defend in response to the amended summons;
(b) Charles Anthony Lane as the first defendant is given leave to
amend his plea in so far as it may be necessary;
(c) the provisions of the Uniform Rules of Court will apply to the
further proceedings in this action.
5. (a) That, in the event of this application not being opposed, the
costs of the application are to be costs in the cause of the action,
alternatively are reserved for decision of the court hearing
the
trial of the action.
(b) That, in the event of the application being opposed, the party so
opposing the application pay the costs arising out of such
opposition."
Annexed
to the notice of motion was an amended summons and amended
particulars of claim. The latter contain allegations of
alleged
unlawful conduct on the part of certain police officers acting within
the scope of their employment with the second defendant,
resulting in
vicarious liability on the part of the latter. It seems clear
that the cause of action against first defendant
Lane (breach of
contract) was different from the cause of action against the second
defendant Minister.
The
application was initially opposed, but the opposition was abandoned,
and on 22 December 1995 the matter came before another
Judge who
granted the order along the lines of what was applied for in the
notice of motion.
On 30
January 1996 the amended summons and amended particulars of claim
were served on the second defendant. This led to the
filing of
the special plea of prescription to which I have referred.
[41] I
turn to listing some of the findings of the learned Judge, as
summarised in the headnote, and I also offer some brief comments
in
comparison with the present case under consideration:
• The legislature intended, by its reference to "debt"
in the Act, to refer to the obligation co relative to
the
particular right of the creditor concerned, whether such obligation
be one to pay money or to perform some act. This
is a reference
to the wording of section 15(1) of the Act stipulating that the
running of prescription shall, subject to the provisions
of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt.
I am
in respectful agreement with this observation, which also seems to be
in line with what was decided in
Allianz
.
• By its reference to a process whereby the creditor "claims
payment of the debt" in section 15(1) of the Act, the
legislature therefore intended to refer to a process by which the
creditor claimed performance of the particular obligation owed
to
him, ie a process by which the creditor purported to enforce the
right co relative to such obligation.
Importantly in my view, the learned Judge, at 918F I, appeared
to endorse a submission by counsel for the applicant (not disputed
by
counsel for the respondent) that the application (perhaps best
described as one preliminary to a joinder) was a "process"
within the meaning of section 15(1) read with section 15(6) of the
Act. At the risk of unnecessary repetition, I nevertheless
revisit the provisions of section 15(6) to the effect that for
purposes of section 15, "process" includes a petition,
a
notice of motion, a
rule nisi
, a pleading in reconvention, a
third party notice referred to in any rule of court and any document
whereby legal proceedings are
commenced.
It seems that in
Naidoo
, counsel for the Minister, after
conceding that the application was a "process" falling
inside the ambit of these subsections,
argued that although it was a
"process", it was not one "whereby payment of"
such "debt" was "claimed"
within the meaning of
those subsections. It was argued that the second defendant
could not become a party to the action,
and no claim against him for
payment of such "debt" would exist, for purposes of section
15(1), until the amended summons
and amended particulars of claim
were served on him as envisaged by the order of 22 December
1995. It appears that
he submitted that, on the
application as it stood, there could be no prosecution of any claim
under the application
per se
in view of the provisions of
subsections (2) and (4) of section 15, the wording of which I have
quoted.
Counsel for the applicant countered these submissions by arguing that
the application itself was a process by which payment was
claimed of
each "debt", notwithstanding that the successful
prosecution of the claim for such "debt" necessarily
would
involve the taking of further procedural steps, including the service
of the amended summons and amended particulars of claim.
Of course, in the case before me, the applicant launches a
straightforward application to join the second respondent as a second
defendant right away. There is no question of a preliminary
type of joinder such as the one presented in
Naidoo
.
At this point it is convenient to record that such a distinction is
also recognised by the learned Judge in
Waverley Blankets Ltd v
Shoprite Checkers (Pty) Ltd and Another
2002 4 SA 166
(CPD) where
it was held that a joinder application, indeed, interrupted
prescription. This is the next case which must come
up for
consideration, but it is appropriate to now quote what the learned
Judge said at 174E I:
"In
Naidoo and Another v Lane and Another
1997 2 SA 913
(D) it was held that service of an application for joinder did not
interrupt prescription. Meskin J held that it was
not
'process whereby the creditor claims payment of the debt' in terms of
section 15.
I respectfully disagree. In that case
the applicant sought leave to join. Leave was granted and
directions were
given for implementing the joinder. In the
present matter the plaintiff sought joinder, and the order of the
court,
granted by consent, was that the second defendant be joined in
the action. No directions were given. On this narrow
and
technical basis it is possible to distinguish
Naidoo
's
case
. But my disagreement is more fundamental than that.
The notice of motion seeking joinder was undoubtedly 'process',
see
section 15(6). It can also be regarded as a 'document
whereby legal proceedings [were] commenced' against the second
defendant. It seems to me, with respect to Meskin J, that
the application for joinder was the first step whereby the
plaintiff
(as creditor) claimed payment of the debts from the second defendant,
or as Howie J put it in
Cape Town Municipality and Another v
Allianz Insurance Co Ltd
1990 1 SA 311
(C) at 334H:
'1. It is sufficient for the purposes of interrupting prescription if
the process to be served is one whereby the proceedings begun
thereunder are instituted as a step in the enforcement of a claim for
payment of the debt.'" (Emphasis added.)
It is noteworthy that Meskin J himself, in
Naidoo
, as did
Comrie J in
Waverley Blankets
(I quoted the passage)
agrees with the same conclusion of Howie J in
Allianz
at
334 that it is sufficient for the purposes of interrupting
prescription if the process to be served is one whereby the
proceedings
begun thereunder are instituted as a step in the
enforcement of a claim for payment of the debt –
Naidoo
at 919F H.
• The proceedings begun under the application were proceedings
to join the proposed second defendant as a party: by means
of the
application
per se
, neither plaintiff purported to
enforce the right co relative to the obligation to pay damages
allegedly owed to such plaintiff
by the proposed second defendant.
Each plaintiff clearly intended that enforcement of the right
co relative to such
obligation was to be effected by the
substitution of the amended summons and particulars of claim, the
service thereof on the proposed
second defendant and the successful
prosecution of the action under such amended summons and
particulars. A process which
was merely informative, and which
was not one by which
per se
the creditor purported at all
to enforce the right co relative to the relevant obligation, was
not a process for purposes
of such section.
My first respectful observation, in commenting on these findings, is
that they appear to fly in the face of the learned Judge's
own
endorsement of the observation by Howie J that it was sufficient
for purposes of interrupting prescription if the process
to be served
was one whereby the proceedings begun thereunder were instituted as a
step in the enforcement of the claim.
Secondly, of course, the present application for joinder before me is
not "merely informative" but a straightforward
application
for joinder of the second respondent as a second defendant in the
action.
The relief sought in prayer 2 of the notice of motion that the
pleadings be served on the party after the joinder is simply
procedural
in nature. It does not affect the nature of the main
relief sought, neither will it affect the consequences if the joinder
were granted. Any other procedure or developments which may
follow upon the joinder, will be nothing more than that, and
taken
care of by the provisions of the Uniform Rules of Court. The
following is stated by the learned author Harms
Civil Procedure in
the Superior Courts
at B 102:
"Joinder and non-joinder are matters of substance rather than
form. The common law rules relating to the obligatory
joinder of parties remain unaltered. The principal rule in this
regard is that anyone with a direct and substantial interest
in a
matter must be joined. That person may be joined either as
plaintiff or as defendant or as applicant or respondent."
This is exactly in line with the purpose of the application before me
as described by the plaintiff in the founding affidavit and,
more
particularly, in paragraphs 4 and 7 thereof, the contents of which I
have quoted – see also the observation in
Bowring NO v
Vrededorp Properties CC and Another
2007 5 SA 391
(SCA) at 398F H
where it is observed that "the enquiry relating to non joinder
remains one of substance rather than
the form of the claim" and
authorities there mentioned.
Of course, there is also clear authority for the joinder of a number
of defendants either jointly, jointly and severally, separately
or in
the alternative under appropriate circumstances, in Uniform Rule
10(3).
• I find it useful to refer to some extracts from the judgment
of Roper J in this Court in
S.A. Steel Equipment Co
(Pty) Ltd v Lurelk (Pty) Ltd
1951 4 SA 167
(TPD) where the
plaintiff, like in the present case, also became uncertain as to
which party ought to be held liable for the damages
caused. The
uncertainty only arose during preparation for trial. Joinder of
a number of further defendants was granted
by the Witwatersrand Local
Division and the Full Court of this Division dismissed an appeal
against such an order. I take
the liberty to quote
extracts from what the learned Judge said at 172 and 173:
"They may have considered it unnecessary to make that provision
in view of the fact that the Courts of South Africa have always
claimed a Common Law power or inherent jurisdiction to add defendants
either on the application of a party or on its own motion
or at least
to suggest the addition of further defendants who must at least
receive notice of the proceedings."
At 172E F.
And:
"The power of the Supreme Court to order the joinder of further
defendants in an action which has already begun is undoubted
and, as
I have said, it has been exercised in many cases. The reason
for the existence of such power is that the Court is
enabled to
ensure that persons interested in the subject matter of the
dispute and whose rights may be affected by the judgment
of the Court
shall be before the Court,
and it also enables the Court to avoid
multiplication of actions and to avoid waste of costs
."
(Emphasis added.)
At 172H-173A.
And:
"If the plaintiff had been uncertain as to which of the
respondents was liable to him before he instituted his action he
could have made use of the Rule
ab initio
and,
though
it is suggested that his proper course in the present case is to
abandon the present proceedings, pay the defendant's costs
and start
afresh, in my view the same result will be achieved if the Court
allows him to join the other respondents as defendants
in the action
now. Such a course will result in the avoidance of multiplicity
of actions and waste of costs which the Court
has always aimed at in
the exercise of its power to join
. I see no reason why the
Court should not allow the plaintiff to do now what he could have
done after the issue of summons
had he been in any uncertainty as to
who was the employer ... In my view the Court has the power to
amend which was exercised
by the Court below." (Emphasis
added.)
At 173C-F.
What the applicant seeks to do with the present joinder application,
is exactly what thousands of plaintiffs before him had been
allowed
to do and, indeed, had been encouraged to do when uncertain about
which party to hold liable: join the defendants rather
than to
institute action afresh against other parties and, for example,
thereafter to consolidate the actions. Doing so,
avoids
multiplication of actions and a waste of costs. This was spelt
out in eloquent terms by the learned Judge in
S.A. Steel
.
As pointed out, it is generally accepted that the joinder application
is a "process" in the spirit of section 15(6) of
the Act.
This process was served on the second respondent only months after
the commencement of the running of the three
year prescription period
in March 2013. It is a process aimed at joining the second
respondent as a co defendant in
the trial in terms of the well
recognised and encouraged procedure illustrated in
S.A. Steel
.
If a joinder is granted and the trial then takes its course, final
judgment can be expected (unless, for example, there
is a settlement)
as foreshadowed in Rules 15(2) and 15(4), for example. The
claim will then be prosecuted against the second
respondent "under
the process in question" as intended by the provisions of the
subsections mentioned. At the very
least, the proceedings
against the second defendant, begun under this process, were
instituted as a step in the enforcement of
the claim for payment of
the debt which would have led to interruption of prescription
according to the finding of the learned
Judge in
Allianz
.
In a word, to reject this approach which I have attempted to
formulate, would be to argue that a fresh summons issued and served
on the second defendant at the time when the joinder application was
issued and served, would serve to interrupt prescription but
the
joinder application, which is the preferred procedure, would not.
For the reasons mentioned, such a conclusion, in my
respectful view,
cannot be correct.
• Each of the plaintiffs relied for purposes of the application
on a right which clearly was not the same, or even substantially
the
same, as the rights sought to be enforced in the action against the
first defendant.
I respectfully agree fully with this observation. As mentioned,
the cause of action against first defendant Lane was patently
different from that against the Minister.
(iii)
Waverley Blankets Ltd v Shoprite Checkers (Pty) Ltd and Another
2002 4 SA 166
(CPD).
[42] I
have already referred to this case when dealing with the judgment in
Naidoo
and I quoted the passage, at 174E H, where
the learned Judge distinguished a straightforward application for
joinder
from what happened in
Naidoo
, where the applicant
sought leave to join. I also pointed out that the learned
Judge in
Waverley Blankets
concluded that the notice of motion
seeking joinder was undoubtedly "process" as intended by
section 15(6). This,
as I mentioned, was a conclusion supported
by the learned Judge in
Naidoo
. From the passage already
quoted, it appears that Comrie J, in
Waverley Blankets
,
also held that the notice of application for joinder "can also
be regarded as a "document whereby legal proceedings
[were]
commenced". It was "a step in the enforcement of a
claim for payment of the debt" as held by Howie J
in
Allianz
, although in a different context.
[43]
The rather complicated set of facts in
Waverley Blankets
would
be difficult to summarise succinctly, but it appears that the
applicant had sold and delivered goods to the "old"
OK Bazaars during a lengthy period. Presumably this would
have been blankets. Later the old OK Bazaars was
taken
over by Shoprite Checkers so that the latter was joined, by
agreement, as a second defendant, and the former released.
The
issue appears to have been whether the joinder served to interrupt
the running of prescription in respect of some of the earlier
transactions.
At
174I 175E the learned Judge, in
Waverley Blankets
,
considered the question whether the joinder could eventually lead to
final judgment in the trial in which the respondent had been
joined
as a defendant. The learned Judge did so by dealing with what
Howie J said on the subject (from 327I onwards)
although, of
course, in
Allianz
there was no question of a joinder but the
issue was whether the preliminary action for declarators could serve
to interrupt the
running of prescription in respect of the later
action for payment of the debt.
From
174I, Comrie J then continues:
"One of the defendant's contentions was summarised by Howie J
as follows at 327I:
'The crux of defendant's contention is that for such interruption to
have occurred in the present case, the process had to have
been one
whereby payment of the debt was claimed; as defendant's debt could
only be discharged by paying money, the claim, in order
to effect
interruption of prescription, had to be sounding in money; plaintiffs
had not claimed money but merely sued for
declarators
;
therefore, the summonses in question were not for 'payment of the
debt' within the meaning of section 15(1) of the Act,
and
prescription had not been interrupted. Moreover, said
defendant's counsel, it is clear that the
declarators
could
never 'become executable' as required by section 15(4).'
The learned Judge rejected this contention and his reasoning led him
to formulate the second proposition at 334I:
'2. A creditor prosecutes his claim under that process to final,
executable judgment, not only when the process and the judgment
constitute the beginning and end of the same action, but also where
the process initiates an action, judgment in which finally
disposes
of some elements of the claim, and where the remaining elements are
disposed of in a supplementary action instituted pursuant
to and
dependent upon that judgment.'
The present case is not on all fours with this proposition in that
here the joinder order did not resolve any issues of liability.
It appears to me, however, that there is still a sufficiently close
link between the joinder application and a final judgment sounding
in
money in the plaintiff's favour, if such should be granted on the
merits. Thus the joinder application led to the joinder
order,
which in turn led to further pleadings and eventually to trial.
But for prescription, it is open to the plaintiff
to prove its case
on the merits and to secure a final judgment. Compare sections
15(2) to (4). If prescription was
not interrupted by the
joinder application then, as will appear, it has not been interrupted
at all, which strikes me as an artificial
and unjust outcome tending
to defeat the purpose of the statute."
[44] I
find myself in respectful agreement with these observations of the
learned Judge with regard to the effect of the joinder.
Of
course, as I pointed out, the learned Judge himself distinguished a
joinder of this nature from the "provisional"
type of
application for leave to join which was applicable in
Naidoo
.
As to
the effect of a joinder, it is, in any event, difficult to conceive
of any situation where the joinder by itself resolves
any issues of
liability. It is not designed to do so. Neither would the
institution of an action for later consolidation
(as an alternative
procedure, and as discussed when dealing with
S.A. Steel, supra
).
As pointed out by Comrie J, the joinder application leads to the
joinder order, which in turn leads to further pleadings
and
eventually the trial where the applicant has the opportunity to prove
its case on the merits and to secure a final judgment
in the spirit
of, for example, sections 15(2) and 15(4). The same applies to
the alternative procedure of instituting a fresh
action. That
also leads to pleadings and finally a trial followed by judgment.
In
this regard, it is of particular importance, in my view, to bear in
mind that Howie J, on careful consideration of his words,
said
exactly the same:
"... but also where the process initiates an action,
judgment
in which
finally disposes of some elements of the claim ..."
(Emphasis added.)
It
stands to reason that the joinder procedure in itself cannot resolve
any issues of liability. That happens in the trial
following
upon the joinder.
It is
useful to quote the following passage from
Allianz
where
Howie J appears to deal with elements of this subject in the
following terms at 329H J:
"With specific reference to the interruption of prescription,
the common law position was that the running of prescription
was
interrupted by the debtor's acknowledgement of the debt, or by
judicial interpellation. The latter involved serving a
summons
so as to institute action:
Kleynhans v Yorkshire Insurance Co Ltd
1957 3 SA 544
(A) at 551C.
Wessels (op cit
para 2804 at
755) conveys that such action would be for the recovery of the debt.
The purpose of serving as opposed just
to issuing the summons was to
effect an
in ius vocatio
so that the debtor would
not be condemned without the opportunity of being heard. See
the
Kleynhans
case
supra
at 551E-G:
'In common law the first thing to be done in a judicial proceeding
was to call one's opponent before the judicial authority under
whose
jurisdiction he was
in order to have the dispute ended by
judgment
.'" (Emphasis added.)
The
same, of course, applies to a joinder procedure as opposed to the
(less preferred!) procedure of instituting a fresh action.
Essentially
on the same subject, and considering the 1943 Act, Howie J said
the following at 331C E:
"The 1943 Act required that for the interruption of prescription
the process served had to be one whereby proceedings were
instituted
for the enforcement of a right. Construing that requirement in
Santam Insurance Co Ltd v Vilakasi
1967 1 SA 246
(A) at 253H,
the majority of the Court held that the process envisaged was one
whereby action was instituted 'as a step in the
enforcement of a
claim or right' whereby the creditor 'formally involves the debtor in
Court proceedings for the enforcement of
his claim'.
In my view, it would be in keeping with the purposes of prescription
and its operation in common law, and it would in no way defeat
or
impede the aim of the present
Prescription Act, applying
the same
elasticity of language referred to earlier, to interpret
section
15(1)
along the same lines as set out in
Vilakasi
's case."
[45]
The learned Judge, Comrie J, in
Waverley Blankets
, then went
on to find that the running of prescription
vis-à vis
the second defendant was interrupted on a particular date by service
of the plaintiff's application for joinder.
(iv)
Peter Taylor and Associates v Bell Estates (Pty) Ltd and
Another
2014 2 SA 312
(SCA).
[46] I
take the liberty to summarise the essence of this judgment by
paraphrasing from the headnote. The case concerns an
appeal
against a High Court order granting the first respondent's (Bell
Estates') application for the appellant's (Taylor's) joinder
as
co defendant in an action that Bell Estates had instituted
against their insurer (the second respondent) for breach of
contract
arising from the insurer's repudiation of Bell Estates' insurance
claim. The judgment of the Court
a quo
, which was
reversed by the Supreme Court of Appeal in this matter, is reported
as
Bell Estates v Renasa Insurance Co Ltd and Another
2012 3
SA 296
(KZD). The joinder was sought on the basis that Taylor,
as Bell Estates' insurance broker, had been privy to the requirement
that the insurer cited non compliance which warranted their
repudiation, and that Taylor therefore owed Bell Estates a duty
to
convey the requirement but had failed to do so. Taylor's
contention was that any claim which Bell Estates may have had
against
them had prescribed. The High Court, relying on the judgment in
Waverley Blankets
, held that the notice of joinder constituted
a "process whereby the creditor claims payment of the debt"
for purposes
of section 15(1) of the Act, and that, consequently,
service thereof had interrupted the running of prescription of the
claim of
Bell Estates against Taylor.
It was
held on appeal that
Waverley
was wrongly decided, based on a
misreading of the judgment in
Allianz
. The conclusion in
Allianz
, that for the purpose of interrupting prescription it
was sufficient if the process to be served was one whereby the
proceedings
begun thereunder were instituted as a step in the
enforcement of a claim for payment of the debt, as applied in
Naidoo
had to be accepted.
When
the joinder application was analysed in the context of
Allianz
,
it would be stretching the interpretation of the Act too far to say
that the application in the present matter (
Peter Taylor
)
constituted a "process whereby the creditor claims payment of
the debt" and that its service therefore interrupted
prescription. First, it could not be said that judgment in the
joinder application (assuming it to be in favour of the applicant)
would finally dispose of some elements of the claim – indeed,
it would not dispose of any. Second, the causes of action
in
the joinder application and the claim for damages had nothing in
common – it certainly could not be said that the two
processes
involved the self same, or substantially the same, cause of
action. The appeal was accordingly upheld with
costs.
[47] I
am bound by this judgment, unless there is room for a conclusion that
it is distinguishable from the present case.
[48]
The reasoning of the learned Judge of Appeal as to why the appeal had
to fail, appears to be based on two legs – at 319B D,
where the learned Judge of Appeal states:
"First, it cannot be said that judgment in the joinder
application (assuming it to be in favour of the applicant) 'finally
disposes of some elements of the claim'. Indeed, it would
finally dispose of no elements of the claim, but would merely make
it
possible, from a procedural perspective,
for the plaintiff to
institute a claim against the defendant who had been joined
.
Second, the causes of action in the joinder application and the claim
for damages have nothing in common. It certainly
cannot be said
that the two processes involve the self same, or substantially
the same, cause of action." (Emphasis
added.)
[49]
It is not clear whether the judgment is to be interpreted as meaning
that the two "legs" exist independently from
one another,
in the sense that non compliance with either would be
dispositive of the appeal, leading to its failure.
For present
purposes, I must assume this to be the case, so that, if the present
case is not distinguishable from
Peter Taylor
on both "legs",
I am duty bound to dismiss the application for joinder before me.
[50] I
find it convenient to first turn to the second "leg".
In
Peter Taylor
the causes of action against the two proposed
defendants were clearly quite different: the cause of action against
the insurer
was for indemnification in terms of an insurance contract
between the insured and the first defendant and the claim against the
broker (Peter Taylor) was for damages on the grounds that the broker
failed to properly advise his client. The same, of course,
was
the case in
Naidoo
.
In the
present case, the causes of action are identical: in both cases the
applicant claims indemnification on the basis of exactly
the same
contract of insurance. The only question is who the real
insurer is. This issue has to be resolved by means
of evidence.
As an
example of a case where the causes of action were different, the
learned Judge of Appeal, at 319D, referred to
Neon and Cold
Cathode Illuminations v Ephron
1978 1 SA 463
(AD) where it was
held that the signing of a lease as surety and co principal
debtor in respect of the due payment of rentals
flowing from a lease
agreement, does not transform the accessory obligation of the surety
into a joint principal obligation as
co lessee with the lessee.
In the
result, I have come to the conclusion, and I find, that, on the
second "leg", the present case is distinguishable
from
Peter Taylor
.
[51] I
turn to the first "leg".
[52]
In
Peter Taylor
, the learned Judge, at 318H 319B, adopted
the reasoning of Meskin J in
Naidoo
at 921B D to the
effect that "if such a judgment were to be obtained, the
application itself in no way would have grounded
such judgment: it
would exist simply as a preliminary process by means of which the
plaintiffs had placed themselves in a position
by means of the
subsequent service of the process constituted by the amended summons
and the amended particulars of claim to claim
payment of the damages
suffered by them".
The
joinder relief sought in
Peter Taylor
appears to be comparable
with, although not identical to, the relief sought in
Naidoo
in respect of which Meskin J appears to have formulated his
views, which were adopted by the learned Judge of Appeal.
[53] I
make a few further remarks:
• I have pointed out that in
Waverley Blankets
, Comrie J,
at 174E H, distinguished the relief sought in
Naidoo
from
the joinder order granted in
Waverley Blankets
where he said -
"... in that case the applicant sought leave to join.
Leave was granted and directions were given for implementing the
joinder. In the present matter the plaintiff sought joinder,
and the order of the Court, granted by consent, was that the
second
defendant be joined in the action. No directions were
given. On this narrow and technical basis it is possible
to
distinguish
Naidoo
's case ..."
I already expressed the view that the relief sought in the matter
before me is comparable to that in
Waverley Blankets
, so that,
to that extent, the present case is distinguishable from
Peter
Taylor
.
As far as I can gather, this distinction was not debated before the
learned Judge of Appeal so that it appears to be appropriate
to rely
thereon for present purposes.
• At the risk of unnecessary repetition, I nevertheless revisit
the words of Comrie J following upon his conclusion that
the two
matters are distinguishable:
"But my disagreement is more fundamental than that. The
notice of motion was undoubtedly 'process', see section 15(6).
It can also be regarded as a 'document whereby legal proceedings
[were] commenced' against the second defendant. It seems
to me,
with respect to Meskin J, that the application for joinder was the
first step whereby the plaintiff (as creditor) claimed
payment of the
debts from the second defendant, or as Howie J put it in
('
Allianz
'):
'1. It is sufficient for the purposes of interrupting
prescription if the process to be served is one whereby the
proceedings
begun thereunder are instituted as a step in the
enforcement of a claim for payment of the debt.'"
I have dealt with this subject at some length. It does not
appear, on my reading of
Peter Taylor
, that this particular
point (the fact that it is generally accepted, also by Meskin J,
that the joinder application was a
"process" as intended by
section 15(6) and that it was sufficient, according to Howie J,
for the purpose of interrupting
prescription if the process is one
whereby the proceedings begun thereunder are instituted as a step in
the enforcement of a claim
for payment of the debt). I have
already dealt with this subject at some length, and expressed the
view, respectfully, that,
in the present case, this is unquestionably
the situation: the joinder was recognised over time (see
S.A. Steel
)
as the preferred alternative to the institution of action. The
process leads to the trial which leads to the judgment enforcing
the
claim – see also
Waverley Blankets
at 175D E.
This particular angle to the rather complex question does not appear
to have been argued before the learned
Judge of Appeal, nor dealt
with in terms.
Moreover, there appears to be a clear distinction between the
Naidoo
type of provisional joinder which, according to Meskin J, does not
finally dispose of some elements of the claim "but would
merely
make it possible, from a procedural perspective, for the plaintiff to
institute a claim against the defendant who had been
joined" –
in the words of the learned Judge of Appeal at 319C-D, and the
present case where, if the relief now sought
were to be granted,
there would be no question of or need for a further claim to be
instituted. To this extent, as well,
it seems to me that the
present case is distinguishable from
Peter Taylor
.
• I add that the learned Judge of Appeal, at 315A-B and 315I-J,
pointed out that it was not in dispute in
Peter Taylor
that
the Rule 10(3) notice was served before the three year prescription
period had expired but, by 31 May 2010, when Taylor
raised a
plea of prescription in his affidavit, three years had already
expired. I cannot quite make out what the significance
of this
is, with respect, but a further distinguishing aspect between the two
cases is the fact that in the present matter, when
the prescription
plea was raised in February 2014, the three year period, which
started running in March 2013, had not yet expired.
• Another distinguishing aspect which does not appear to have
been argued before the learned Judge of Appeal, as I read his
judgment, is that the learned Judge, after adopting the reasoning of
Meskin J, and analysing the joinder application in the
context
of
Allianz
, came to the conclusion that it cannot be said that
judgment in the joinder application "finally disposes of some
elements
of the claim". It appears, with the greatest
respect, that this approach may overlook the distinction between
Allianz
and a joinder application. There was no joinder
application in
Allianz
. Howie J referred to the
preliminary action for
declarators
judgment in which
finally disposes of some elements of the claim (emphasis added).
This is the culmination of the actions for
declarators
when
the judgment is finally obtained. Similarly, in my respectful
view, and as I have attempted to illustrate repeatedly,
the judgment
is finally obtained in the trial which flows from the joinder.
Only at that stage are elements of the claim
disposed of (if not all
the elements) and not at the earlier stage of the process, namely
when the joinder is granted. As
Howie J puts it at 331D E
when referring to
Vilakasi
, "the process envisaged (also
to do with the interruption of prescription) was one whereby action
was instituted 'as a step
in the enforcement of a claim or right'
whereby the creditor 'formally involves his debtor in court
proceedings for the enforcement
of his claim'". There was
also the reference by Howie J, at 335A-B to
Murray and Roberts
at 578 where it is stated:
"Where the creditor takes judicial steps to recover the debt,
and thereby to remove all uncertainty about its existence,
prescription should obviously not continue running while the law
takes its course."
[54]
In all the circumstances, I have come to the conclusion that the
present case is distinguishable from
Peter Taylor
for the
reasons mentioned.
I
also, with respect, endorse the remark by Howie J, at 334G, that
"some of the key wording of section 15 must be given a wide
and
general meaning, consistent with a legislative intention to speak
broadly rather than to define, and having regard to the spirit,
scope
and purpose of the Act".
Against
this background, and for the reasons mentioned, I have come to the
conclusion that it would be appropriate, and in the interests
of
justice, to grant the joinder application in the present matter.
Costs
[55]
Given the complex nature of this issue, it seems to me that it would
be appropriate to order that the costs of this application
should be
costs in the cause.
The
order
[56] I
make the following order:
1. The second respondent is joined as a second defendant in the main
action.
2. All pleadings filed on record are to be served on the second
respondent/defendant within ten days from the date of this order.
3. The costs of this application will be costs in the cause.
W R C
PRINSLOO
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
HEARD
ON: 25 JULY 2016
FOR
THE APPLICANT: A GRANOVA
INSTRUCTED
BY: T C HITGE INCORPORATED
FOR
THE 2
ND
RESPONDENT: H P WEST
INSTRUCTED
BY: LOUWRENS COETZER & PARTNERS