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[2016] ZAGPPHC 930
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Tusk Construction Support Services (Pty) Ltd and Another v Fineni N.O. and Others (8876/2014) [2016] ZAGPPHC 930 (11 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.:8876/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In the
matter between:
TUSK
CONSTRUCTION SUPPORT SERVICES (PTY) LTD
FIRST
PLAINTIFF
NURCHA
MANAGEMENT SERVICES (PTY)
LTD SECOND
PLAINTIFF
NATIONAL
URBAN RECONSTRUCTION AND
HOUSI
N
G
AGENCY TH
I
RD
PLAINTIFF
and
DR
SOMADODA
PARTICK
MAYIBONGWE FINENI N.O.
FIRST
DEFENDANT
DR
GCWALISILE CYNTHIA
KABANYANE
N.O.
SECOND
DEFENDANT
MOROKA
I
SAAC
BUTCHER
MATUTLE
N.O. THIRD
DEFENDANT
MZAMO
M
I
CHAEL
MLENGANA N
.
O.
FOURTH
DEFENDANT
MATSHIPSANA
MERIAM
MOLALA
N.O.
FIFTH
DEFENDANT
TLHOSTE
E
N
OCH
MOTSWALEDIN
.
O.
SIXTH DEFENDANT
NAND
I
SELE
FLAVOUR THOKO
MPUMLWANA
N.O. SEVENTH
DEFENDANT
PHELISA
NKOMO
N.O. EIGHT
DEFENDANT
RASHID
AMOD
SADECK
PATEL
N.O. N
I
NTH
DEFENDANT
ZAKHELE
ALEX TUMMY ZITHA
N.O.
TENTH DEFENDANT
ZANDILE
QUEENETTE LAVINIA MDHLADHLA N.O. ELEVENTH
DEFENDANT
Heard: 11
February 2016
Delivered:
11 October 2016
JUDGMENT
A.A.L
OUW
J
Introduction
[1] This
case was set down for trial on 11 February 2016.
[2] The
defendants have a special plea of lis
alibi pendens
wherein
they ask that the plaintiffs' claim be dismissed. This is of course
incorrect as such a plea cannot lead to dismissal but
nearly a stay
of proceedings of the second action until the first action has been
finalised.
[3] The
plea is that under case number 27188/2012 the parties as well as the
subject matter are the same.
[4] This
was conceded by counsel for the plaintiff. He said that all the
elements of a plea of lis
alibi pendens
exist.
Nevertheless he argued that in the light of considerations of
fairness, convenience and justice I should allow this case
to proceed
to trial and not the 2012-case.
[5]
The
l
aw
is stated
in
Caesarstone
SOOT-YAM
Ltd
v
World of
Marble
and
Granite 2000 CC and
Others
[1]
.
I
quote two passages from this
judgment:
"The
evidential
burden
of establishing
facts justifying the
court in exercising that
discretion
in
favour of
a
plaintiff
against
which
a
plea of
lis
pendens
has properly been
raised, lies with the
plaintiff, in this case
WOMAG.
[2]
"In
exercising
its
discretion
considerations of
fairness
and
convenience
are fundamentally
important. I
agree
with
Coetzee
DJP
in
Kerbel
v
Kerbel
that once the requisites
for
a
plea
of
lis pendens
are
established
the court should be
inclined
to
uphold
it,
because
it
is
undesirable
for
there
to
be
litigation
in two courts over the
same issue.
”
[3]
[6] Thus
I have to exercise a discretion based on considerations of fairness
and convenience. The only factor bearing on this, which
counsel could
argue was that this case is ready to proceed to trial whilst the
first case is not. From the bar he told me that
the first case is
being handled by different attorneys from those in the second case. I
cannot see how this makes it more convenient
for the second case to
proceed. The plaintiffs have to decide who will represent them as
attorneys and see to it that these attorneys
have both files. If it
is so that counsel in the present case have done a lot of
preparation, there is nothing which can stop the
plaintiffs from
using the same counsel in proceeding with the action in the first
case.
[7] I can
find no reasons of convenience or fairness which justify this case to
continue. Why the plaintiffs issued a second action
against the same
parties in respect of the same cause of action is beyond me.
[8] This
action will therefore be stayed until finalisation of the first
action.
[9] I
order as follows:
1.
The special plea of
lis
alibi pendens
is upheld with costs, such costs to include the wasted
cost occasioned by the postponement of the case.
2.
This case, 8876/2014 is stayed pending the final determination
of the action
in this court under case number 27188/2012.
__________________________
A.A.
LOUW
Judge
of the High Court
[1]
2013(6)
SA
499
(SCA)
[2]
paragraph
34
[3]
Paragraph
36