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[2016] ZAFSHC 79
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Nyumba Mobile Homes and Office (Pty) Ltd v MEC of the Department of Health, Free State Province and Others (1719/2015) [2016] ZAFSHC 79 (6 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No. 1719/2015
In
the matter between:
NYUMBA
MOBILE
HOMES
& OFFICE
(PTY)
LTD
Plaintiff
and
MEC
OF THE DEPARTMENT OF HEALTH,
FREE
STATE
PROVINCE
1
st
Defendant
FEZILE
DABI
DISTRICT
MUNICIPALITY
2
nd
Defendant
MAZIBUKO
WESSELS
ARCHITECTS
3
rd
Defendant
RAMALEPHATSO
INDUSTRIES
CC
4
th
Defendant
SIZAMPILO
PROJECTS
CC
5
th
Defendant
GRAHAM
TAKATSO
LEHETLA
6
th
D
efendant
CARLTON
PULE
SHAKWANE
7
th
Defendant
JUDGMENT
BY:
VAN ZYL, J
DELIVERED
ON:
6 MAY 2016
[1]
This is an exception raised by the first defendant to the plaintiff s
particulars of claim, which is being opposed by the plaintiff.
The
exception is founded on the following grounds:
"1.
Rule 20(2) ...requires a declaration to set forth the nature of claim
and the conclusions of law which the Plaintiff shall
be entitled from
the facts stated therein.
(
sic)
2.
The declaration of the Plaintiff does not comply with the above
provision as stated in paragraph 1 above and therefore lacks
averments to sustain a cause of action against the First Defendant.
3.
The First Defendant has been joined in the action as a party having
an interest in the action as alleged in paragraph 1.2 of
the
Plaintiff s particulars of claim. The First Defendant does not have
any interests in the action and should not have been a
party to the
action."
(sic)
[2]
Paragraph 1.2 of the plaintiff s particulars of claim reads as
follows:
"The
first defendant is the MEC of the FREE STATE DEPARTMENT OF HEALTH....
No relief is sought against the first defendant
and same is merely
cited for any interest it might have in the proceedings."
[3]
In this matter the plaintiff issued a combined summons together with
its particulars of claim. No declaration was filed. The
reference by
the first defendant to the provisions of Rule 20(2) and to a
declaration in paragraphs 1 and 2 of the grounds of the
exception as
recorded above, is therefore completely misplaced. As a party is
bound by the way in which its case is made out in
an exception, the
exception cannot be upheld on those grounds. See
Jowell
v
Bramwell-Jones
and
Others
1998 (1) SA 836
(W) at 898 E - F.
[4]
With regards to the alleged misjoinder of the first defendant as
relied upon by the first defendant in paragraph 3 of the grounds
of
the exception, Mr Mene, appearing on behalf of the first defendant,
correctly submitted that such an objection may be taken
by way of an
exception where the misjoinder is apparent
ex facie
the
pleadings. See
Herbstein
and
Van
Winsen:
The
Civil Practice of the
High Courts
of South Africa,
5th
Edition, p. 633.
[5]
The test to determine whether there is a misjoinder is whether or not
a party has a direct and substantial interest in the subject
matter
of the action, that is, a legal interest in the subject-matter of the
litigation which may be affected prejudicially by
the judgment of the
Court. See
Henri
Vi
l
joen (Pty)
LTD
v
Awerbuch
Brothers
1953 (2) SA 151
(0) at 168 - 170.
[6]
Mr Bruwer, appearing on behalf of the first defendant, submitted that
the first defendant indeed has a substantial interest
in this matter.
In this regard he relied on the following:
1.
He referred to paragraph 2.1of the particulars of claim and contended
that the first defendant was the initiator
of the entire project from
which the cause of action ensues.
2.
He also referred to paragraph 2.2.4 of the particulars of claim and
submitted that the fact that the
plaintiff reserved ownership of
the materials supplied, is another reason
why the
first defendant has a substantial
interest in the outcome of this action.
3.
Mr Bruwer also pointed out that in paragraph 4.3 of the particulars
of claim it is alleged that when the cession
agreement was made an
order of Court, the first defendant was also a party to the
proceedings and in terms of paragraph 6.1.3 of
the particulars of
claim an interdict against payment was obtained also against the
first defendant.
[7]
I have given careful consideration to the arguments presented by Mr
Bruwer. However, I cannot agree with his submissions. The
actual
cause of action is this matter is the cession agreement concluded
between the fourth and fifth defendants, on the one hand,
and the
plaintiff, on the other hand, pertaining to "rights, title and
interest" against the second defendant. As correctly
contended
by Mr Mene, the first defendant was not a party to this cession
agreement. The mentioning of the first defendant in the
particulars
of claim of claim merely forms part of facts pleaded as background to
the conclusion of the cession agreement.
[8]
In my view the joinder of the first defendant therefore indeed
constitutes misjoinder and the exception should be upheld on
this
basis.
[9]
The first defendant was substantially successful with his exception
and therefore I can find no reason why costs should not
follow the
success.
[10]
The following orders are consequently made:
1.
The exception is upheld only on the basis of the misjoinder of the
first
defendant.
2.
All references in the combined summons, which includes the
particulars
of claim, to the first defendant as a party to the
action, are struck out.
3.
The plaintiff is ordered to amend its combined summons, including its
particulars
of claim, accordingly within 15 days from the date of
this order.
4.
The plaintiff is ordered to pay the costs of the exception.
_________________
C.
VAN ZYL, J
On
behalf of the plaintiff:
Mr M. Bruwer
Instructed by:
Hugo & Bruwer
Attorneys
BLOEMFONTEIN
On
behalf of the first
defendant:
Adv. B.S. Mene
Assisted by:
Adv. D. Thompson
Instructed by: State
Attorney
BLOEMFONTEIN