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[2016] ZAFSHC 122
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Buys v Dr PA Minaar and Associate 99 Ing and Others (1272/2015) [2016] ZAFSHC 122 (11 August 2016)
INTHE
FREE STATE HIGH COURT BLOEMFONTEIN
Not
reportable
Case
No. : 1272/2015
In
the matter between:-
M
BUYS
Applicant
and
DR
PA MINNAAR & ASSOCIATE 99
ING
1
st
Respondent
LEON
VAN
ASWEGEN
2
nd
Respondent
GEORGINA
MARY-ANN
3
rd
Respondent
ELIZABETH
HALLIDAY
4
th
Respondent
WILLIAM
NTHONY
ORROC
5
th
Respondent
ELANA
VAN DER
MERWE
6
th
Respondent
GEORGINA
MARY-ANN ELIZABETH HALLIDAY N.O.
7
th
Respondent
WILLIAM
ANTHONY ORROCK
N.O.
8
th
Respondent
ELANA
VAN DER MERWE
N.O.
9
th
Respondent
HEARD
:
28 JULY 2016
DELIVERED
:
11 AUGUST 2016
CORAM:
CJ MUSI
MUSI
J
[1]
This is an application to join the first respondent as a defendant in
case number 1272/2015 of this court.
[2]
The first respondent is a company with limited liability incorporated
in terms of the laws of South Africa, trading as Quintamed
at 2 Wag
‘n Bietjiebos street, Pellissier, Bloemfontein (the company).
[3]
The second to the fifth respondents are all medical practitioners who
practise at Quintamed Building 2 Wag ‘n Bietjiebos
street
Pellissier Bloemfontein.
[4]
The sixth to the ninth respondents are the second to fifth
respondents in their capacities as trustees of the Quinta Trust (IT
1392/99).
[5]
The second to fifth respondents are the sole directors of the
company.
[6]
On 22 July 2013 the applicant visited the Quintamed building to
consult with her physiotherapist, Ms Amanda Delport, who practiced
at
the Quintamed Building.
[7]
She slipped and fell at the foyer of the Quintamed Building after
stepping on a wet mat that was left or put on the tiles. She
sustained serious injuries.
[8]
On 13 March 2015 she sued the second to the ninth respondents in
their personal and representative capacities for damages. She
alleges
that the second to the ninth respondents employed a person or people
to clean and maintain the Quintamed Building and that
they are
vicariously liable for the negligence of their employee/s.
[9]
On 10 July 2015 the first to the fourth and the 5
th
to
the ninth respondents filed their pleas. They all:
9.1
denied that they were negligent.
9.2
pleaded that in the event that the court finds that there was
negligence that such negligence is not casually
linked or did not
contribute to the fall of the applicant.
9.3
pleaded that the applicant was contributory negligent. They did not
mention the first respondent at
all.
[10]
On 3 May 2016 the sixth to the ninth respondent delivered a notice of
amendment of their plea. In the amended plea the sixth
to the ninth
respondents allege that the Quinta Trust leased the Quinta Building
to the first respondent at all relevant times
and that the first
respondent indemnified the Quinta Trust against any claims arising
out of injuries sustained
by anyone
at the Quintamed Building. They further allege that the
occupier of the building (first respondent)
had a legal duty of care
and not them. The amendment has not yet been effected.
[11]
On 17 June 2016 the sixth to the ninth respondents‟ insurers
filed an application for leave to serve a Third Party notice
on the
first respondent, in terms of Rule 13(3)(b) of the Uniform Rules.
[12]
The
applicant alleges that it would not be possible to get an order
against
the first respondent for the payment of any damages and
that
a separate claim would have to be instituted against the first
respondent.
This is so because Rule 13 only makes provision for
the
third
party
to
contribute
or
indemnify
the
sixth
to
the
ninth
respondents
whereas
the
applicant
wants
an
order
of
full
liability
against
the first respondent.
[1]
[13]
The
applicant is correct in
her
contention
that
the
third
party
procedure
would
assist
the
sixth
to
the
ninth
respondents
in
that
the
third
party
would
either
have
to
indemnify
them
against
or
assist
them
by
contributing
towards
the
claim
of
the
plaintiff,
if
successful.
All
that
the
sixth
to
the
ninth
respondents
have
to
prove
is that they have a right against the third party arising from
contract
or by statute or from the law to an indemnity in respect of
or
a contribution towards the claim of the plaintiff.
[2]
[14]
The
parties
were
ad
idem
that
joinder
at
this
stage
of
the
proceedings
is
not
governed
by
Rule
10(3).
[3]
They
both
requested
me
to
decide
the
matter
on
common
principles.
[4]
In
Rabomwitz
and Another NND v Wed-Equity Insurance
[5]
it
was
said:
“
I
do not think, however, that the question whether the joinder was
competent
in
terms
of
Rule
10
(3)
is
decisive
in
regard
to
the
proper
order as to costs. The Rule is not and was not intended to
be
exhaustive
of
the
cases
in
which
a
plaintiff
may
join
separate
defendants
in one action.”
[6]
[15]
In
Lewis
N.O. v Schoeman, N.O. and Others
[7]
it
was said:
“
In
many cases, claims are advanced against defendants jointly and
severally and these claims necessarily import claims against the
defendants in the alternative, although based upon the same cause of
action.
In
this Court, therefore, there does not seem to be any ground for
taking the view suggested by Mr Fannin that in no case other
than
those indicated by Rule 12(1) … is the joinder of defendants
in the alternative permitted. The matter seems to me to
be one
entirely in the discretion of the Court and to be determined in
accordance with convenience and common sense …”
[16]
It
is
therefore
clear
that
the
court
has
a
discretion
on
whether
to
allow
a party to join another party.
In
Marais
& Others v
Pangola
Sugar Milling Co & Others
[8]
:
“
It
I also clear from the above-mentioned cases that a plaintiff has a
wider right than a defendant in regard to the joinder of parties
as
defendants and may join a third party as defendant notwithstanding
the fact that a plea of non-joinder could not have succeeded
if the
plaintiff had elected not to join such third party in the action.
I
do,
however,
gather
from
the
various
judgments
that
I
have
consulted
that
even
in
those
cases
where
the
Court
has
a
discretion
where the matter of joinder of a party is raised, it must
at
least be shown that that party is a necessary party in the sense
that
he is directly and substantially interested in the issues raised
in
the
proceedings
before
the
Court
and
that
his
rights
may
be
affected
by
the
judgment
of
the
Court.
When
this
is
once
established
the Court will then proceed to determine the matter of
joinder
in
accordance
with
the
requirements
of
commence
and
common
sense.”
[9]
[17]
The applicant has set out why it did not sue the company in the first
place. She did not know about the lease agreement between
the Trust
and the company. It is only when the amended plea was filed that the
existence of such contract and the fact that the
company undertook
to indemnify the Trust in the
event that someone sustains injuries
on the premises and
institutes a claim against the Trust.
[18]
The applicant is of the view that she may recover all her damages
from the company in light of the lease agreement. The insurers
of the
Trust were also of the view that the company should be joined as a
third party to the proceedings. The application to join
the company
as a third party has not yet been granted. In my view the company is
indeed a necessary party in these proceedings.
In my judgment the
company is directly and substantially interested in the issues raised
during the trial because it has taken
it upon itself to indemnify the
owners of the building against an eventuality such as the one under
consideration.
[19]
It goes without saying that it could be an unnecessary
duplication of resources – human and financial – to
proceed to trial against the present defendants and at a later stage
to deal with the same issues in a trial between the applicant
and the
company. It seems to me that convenience and common sense favours the
granting of this application.
[20]
Should the joinder ultimately be shown to have been unnecessary; the
company would in any event be entitled to its costs. Therefore
any
prejudice suffered by it can still be cured by an appropriate costs
order.
[21]
The applicant has requested that I order the costs to be costs in the
action. The respondents did not put up an argument
against such
request. I find it a sensible and suitable manner of dealing
with the costs of this application.
[22]
In the result I make the following order.
Paragraphs
1 and 2 of the notice of motion are granted.
__________________
C
J MUSI, J
APPEARANCES
For
the applicant:
Adv. Hefer
Instructed
by:
McIntyre and Van der Post
BLOEMFONTEIN
First
to the fifth respondents: Adv.Benade
Instructed
by:
Symington & De Kok
BLOEMFONTEIN
[1]
Rule 13(1)(a) (1) Where a party in any action claims -
(a)
as
against any other person not a party to the
action
(in this rule called a ‘third party’) that such party is
entitled, in respect of any relief claimed against
him,
to
a contribution or indemnification from such third party, or
[2]
See Eimco (SA) (Pty) (T) v P Mattoida’s Construction Co
1967
(1) SA 326
(N) at 332F to 333A.
[3]
Rule 10(3) Several defendants may be sued in one action either
jointly, jointly and severally, separately or in
the
alternative, whenever the question arising between them or any of
them and the plaintiff or any of the
plaintiffs
depends upon the determination of substantially the same question of
law or fact which, if such
defendants
were sued separately, would arise in each separate action.
[4]
See Ex Parte Sudurhavid & In Re Namibia Marine Resources v
Ferina 1993 (2) SA 737 (NMHC)
[5]
1980 (3) SA 415 (WLD)
[6]
At 419 D - E
[7]
1951 (4) SA 133
(NPD) at 136 H- 137A
[8]
1961 (2) SA 698 (N.P.D)
[9]
At 702 E to G.