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[2016] ZAECMHC 3
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Ngcame v KSD Municipality and Others (1924/14) [2016] ZAECMHC 3 (3 March 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE
LOCAL
DIVISION:
MTHATHA
CASE NO: 1924/14
THOBILE
NGCAME
Applicant
And
KSD
MUNICIPALITY
1
st
Respondent
SITHEMBISO
MADELA
2
nd
Respondent
ECO
CAR HIRE
CC
3
rd
Respondent
JUDGMENT
BROOKS
AJ
[1]
This is an interlocutory application bought by the applicant in
accordance with the provisions of Rule 10 of the Uniform Rules
of
Court. The applicant seeks an order joining the third
respondent as a co-defendant in the action and in the following
terms:
“
1.
That the Eco Car Hire CC, which is a company registered as such under
the company laws of
the Republic of South Africa be joined in these
proceedings as the Third Defendant in that;
1.1
As at 30
th
March 2014 it was registered owner of the motor vehicle bearing the
registration letters and numbers [.....] as per the attached
copy of
motor vehicle particulars marked as “Annexure A”.
1.2
On the same date, the said motor vehicle
collided with the Plaintiff’s motor vehicle bearing the
registration letters and
numbers [.....] causing it to sustain
damages as more fully described in the Particulars of Claim, which
are annexed herewith and
marked as “Annexure B”.
1.3
At the time of the said collision the motor
vehicle bearing the registration letters and numbers [.....] was
being driven by one
Sithembiso Madela, who was an employee of either
the First Defendant or Eco Car Hire CC.”
[2]
It is apposite to state immediately that in the event of this
application succeeding it would be necessary only to direct the
joinder of the third respondent as a co-defendant in the action.
To accede to the applicant’s invitation to make orders
in terms
of prayers 1.1, 1.2 and 1.3 of the notice of motion would be to make
superfluous orders, which constitute findings on
certain of the
elements of the main action in terms which are occasionally
ambiguous. To do so at the stage of proceedings
where an
interlocutory application has been brought and no evidence has been
led would be irregular and inappropriate.
[3]
The background to the application can be stated briefly. The
applicant issued a combined summons against the first and
second
respondents in which the applicant advances a claim for damages which
he alleges arises from the negligent driving of the
motor vehicle
with registration letters and number [.....] by the second respondent
whilst acting within course and scope of his
employment with the
first respondent. The particulars of claim set out the grounds
upon which the applicant relies for the
allegation that the second
respondent was negligent. The first and second respondents have
filed a plea in which the allegations
contained in the particulars of
claim are denied.
[4]
In order to obtain the joinder of the third respondent in this action
the applicant must demonstrate in his founding affidavit
that the
third respondent has a direct and substantial interest in the
action. In an attempt to comply with this requirement,
the
applicant states in the founding affidavit that the third respondent
is to be sued in its capacity as the owner of the motor
vehicle
concerned. The affidavit continues by alleging that the second
respondent committed “wrongful and unlawful
acts” against
the applicant within the course and scope of his employment by the
first respondent. This, says the applicant
is the reason why he
has sued the first and second applicants. The closing portions
of the founding affidavit state unequivocally
the reasons for the
application for joinder. They are:
·
in its plea, the
first respondent does not admit ownership of the motor vehicle
concerned; and
·
it is for this
reason that the third respondent is sought to be joined as it is the
party reflected as the owner of the motor vehicle
concerned in the
registration particulars obtained by the applicant.
[5]
What is lacking in the applicants founding affidavit, and indeed even
in the replying affidavit, are allegations which establish
any basis
upon which the applicant claims that the third respondent may be
liable for the payment of the applicant’s damages.
No
vinculum iuris
is established which would demonstrate that the third respondent has
a direct and substantial interest in the present action.
Liability for the payment of the applicant’s damages on the
basis that the third respondent is the owner of the motor vehicle
concerned forms no part of the
lex
acquilia
upon which
the applicant’s claim is based. Were the applicant to
issue a separate combined summons against the third
respondent in
which he claimed that the third respondent was liable for the payment
of his damages on the basis that third respondent
was the owner of
the motor vehicle concerned, such summons would be excipiable on the
basis that the allegations contained therein
were insufficient to
sustain a cause of action.
[6]
At best for the applicant, the founding affidavit demonstrates that
the third respondent has a mere financial interest in the
outcome of
the litigation. This is an indirect interest which may not
require the joinder of the third respondent.
[1]
[7]
In the circumstances, I am of the view that the application cannot
succeed. The following order will issue:
“
The
application for the joinder of the third respondent as a co-defendant
is dismissed with costs.”
RWN
BROOKS
JUDGE
OF THE HIGH COURT (ACTING)
For
the applicant:
Adv
MM Matyumza
Instructed
by
Mafungo Tshaka Inc.
MTHATHA
For
the respondent:
Adv JL Hobbs
Instructed
by
JA Le Roux Attorneys
MTHATHA
Matter
heard on:
18 February 2016
Judgment
delivered on: 03 March
2016
[1]
HARTLAND IMPLEMENTE (EDMS)BPK v ENAL EIENDOMME BK
EN ANDERE 2002(3) SA 653 (NC) 663 E-H.