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2017
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[2017] ZAFSHC 136
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Smith v Schoeman and Another (1802/2017) [2017] ZAFSHC 136 (25 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1802/2017
In
the matter between:
MATTHYS
ABRAHAM SMITH
Applicant
and
HERMAN HECTOR
SCHOEMAN
First
Respondent
ROAD ACCIDENT
FUND
Second Respondent
HEARD
ON:
22 June 2017
DELIVERED
ON:
25
August 2017
MHLAMBI,
J
[1]
The applicant seeks the joinder of the second respondent as the
second defendant to the main action instituted under case number
1802/2015 between the applicant (as Plaintiff) and the first
respondent (as first defendant). The claim stems from the
under-settlement
of the applicant’s (Lehlohonolo Le-Roy
Mashoba) claim against the Road Accident Fund (or its predecessor,
the Multilateral
Motor Vehicle Accidents Fund) for injuries sustained
in a collision that occurred on 27 February 1995 at or near
Wolmaransstad.
[2]
The second respondent, the Road Accident Fund opposed the application
for joinder.
[3]
The applicant’s counsel submitted that it is trite law that the
only test to be applied in joinder applications is whether
the claim
against the party sought to be joined depended on the determination
of substantially the same questions of law or fact.
Relying
on
Dreyer
v Tuckers Land & Development Corporation (Pty)Ltd
1981 (1) SA
1219
(T)
,
she contended that any special defences raised by the second
respondent to the plaintiff’s claim are not a bar to the
granting
of the order for the joinder. The purported defences raised
are not relevant to the current application and can be raised by the
second respondent in its plea, once it has been joined as a party.
[4]
It was submitted on behalf of the second respondent that reliance on
Dreyer
above
was misplaced as the said case was distinguishable from the present
matter and it was certainly not authority for the proposition
that
defences raised by a respondent in an application for joinder, should
be left over to the main proceedings to which the joinder
is aimed. I
was urged to follow the dictum by Gautschi, AJ in
Mercantile
Bank Ltd v Carlisle and Another
2002 (4) SA 886
(W) at 889C-F and 889
E-H
which reads as follows:
“
It
is difficult to see why it should not be a sine qua non to the
success of such an application that the applicant should make
out a
prima facie case on the merits, in the sense of alleging facts which,
if established at the trial, would entitle it to succeed.
An
applicant in this situation ought normally (I am prepared to say
always) to attach a draft third party notice and annexure in
which
his cause of action against the third party is set out, and to
confirm or adopt those allegations under oath. If no prima
facie case
is made out in those allegations (ie the claim as set out in the
notice and annexure is excipiable in that it does not
disclose a
cause of action), it is inconceivable that a court would permit the
third party joinder. Accordingly, I would, at the
very least, expect
an applicant to set out a prima facie case in the sense
described above, whether in his founding affidavit
or in the draft
third party notice and annexure.
The prima
facie case, or absence of excipiability, must of course be weighed in
the light of the totality of the available facts.”
[5]
It was contended that the applicant’s claim against the first
respondent was based on the allegations that the latter
breached the
duty of care that he owed the claimant, alternatively the agreement
of mandate, and that the claim was not pursued
in a proper and
professional manner, with the required skill, knowledge and diligence
and without negligence. The claim was
therefore one in delict,
with an alternative basis of misrepresentation and breach of the
agreement of mandate. It was submitted
that no duty of care existed
which could support delictual liability against the second respondent
or its predecessor in title
in the light of the mandate given to the
first respondent. Any claim the applicant may have in law which had
not prescribed, lay
against the first respondent on the grounds as
pleaded in the existing particulars of claim.
[6]
Rule 10(3) of the Uniform Rules of Court stipulates that:”
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.” The Rule
requires that the questions of law and fact upon which
the
applicants’ right to relief depend must be substantially the
same. The word “substantial” was equivalent
to words or
phrases such as “in the main”, “in its principal
essentials”, “essentially” and
“intrinsically”:
Dreyer,
supra
1224G-H.
[7]
In the
Mercantile Bank Ltd case,
supra
,
G-H, it was stated that the purpose of the Rule is to prevent a
multiplicity of actions. The court is given a wide discretion
and a
lenient approach is called for. If a case against the third party is
totally unfounded, the joinder would be refused. It
must be a clear
case, for it is the function of the trial court to decide disputes,
and joinders should not be refused save in
the clearest cases.
[8]
In the light of the above, it is clear that the test to be applied is
whether the claim against the party sought to be joined
depended on
the determination of substantially the same questions of law or fact;
which, in my view, is the case in the given circumstances.
Consequently, I make the following order:
ORDER
Prayers
1,2,3,4 and 5 of the notice of motion are granted with costs which
shall include all reserved costs.
_____________
JJ
MHLAMBI, J
Counsel
for Applicant:
A Viljoen
Instructed
by:
ES Els
McIntyre Van Der Post
12 Barnes Street
BLOEMFONTEIN
Counsel
for second respondent: LW De Beer
Instructed
by:
Maduba Attorneys
2
nd
Floor, 77 Kellner Street,
Westdene
BLOEMFONTIEN