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South Africa: North Gauteng High Court, Pretoria
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2015
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[2015] ZAGPPHC 923
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Steenkamp v Natcorp Specialised Logistics and Others (36958/12) [2015] ZAGPPHC 923 (17 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 36958/12
17/7/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ANDRé
STEENKAMP
Plaintiff/Applicant
and
NATCORP
SPECIALISED LOGISTICS
SOLUTIONS
(PTY) LTD
tla
NATCORP
Defendant/First
Respondent
MIDBANK
RETAIL CITY (PTY) LTD
Third
Party/Second Respondent
Al
EQUIPMENT
CC
Third
Respondent
JUDGMENT
1.
In the main action the applicant, as plaintiff, issued summons
against the first respondent, as defendant, claiming an amount
of R1
043 580,00 as damages for breach of contract. In a later procedure
the first respondent, as defendant, joined the second
respondent as
co-defendant. The first respondent is thus the first defendant in
the main action and
the second
respondent is the second defendant. For the
sake of clarity I shall refer to the
parties as they are cited in the
main action.
2.
In the present application the plaintiff seeks to join the third
respondent as a second plaintiff to the main action. The first
defendant opposed the application. The second defendant did not
oppose the application and neither did the third respondent.
3.
It is necessary to briefly refer to certain of the salient features
of the main action. The plaintiff based its cause of action
upon an
alleged verbal agreement entered into between the plaintiff and the
first defendant in terms of which the first defendant
would transport
a certain excavator from Gauteng to its destination in Swaziland.
According to the plaintiff the first defendant
breached the terms of
the verbal agreement in that it failed to deliver the excavator to
Swaziland safely and in a proper working
order. What had apparently
happened was that
en route
to its destination the excavator
was involved in a collision and was damaged beyond repair. The
plaintiff s claim was for damages
allegedly suffered by the plaintiff
as a result of its breach of contract. In its plea the first
defendant denied any liability.
4.
Subsequent to the close of pleadings the plaintiff launched the
present application in terms of rules 6(11) and 10(1). In the
founding affidavit, deposed to by the plaintiffs attorney, the reason
for the application was,
inter a/ia,
explained as follows:
"... It appeared that he (a
reference to the applicant/plaintiff) may actually have been acting
on behalf of the close corporation
(a reference to the Third
Respondent)".
5.
The plaintiff is a member of the third respondent, which is a close
corporation. Apparently the plaintiff negotiated the aforesaid
verbal
agreement which resulted in him instituting the claim in his personal
capacity when the agreement was allegedly breached.
If, however, the
plaintiff at the time negotiated and concluded the verbal agreement
on behalf of the third respondent, the claim
might lie for the third
respondent and not for the plaintiff. In these circumstances the
plaintiff applied for the third respondent
to be joined as second
plaintiff in the main action.
6.
It was,
inter alia,
submitted on behalf of the plaintiff that
the plea of the first defendant necessitated the third respondent's
joinder as a plaintiff.
I do not agree. This is, firstly, not an
instance of the obligatory joinder of a plaintiff such as, for
example, where joint owners,
joint contractors or partners institute
action. This is also not an instance where the order of the court may
affect the interests
of the third respondent. The third respondent
does not have 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 any judgement and
order
the court may make.
In casu
the outcome of the main
action would not affect or be binding upon the third respondent and
it may sue separately for the same relief.
7.
Such a decision,
i.e.,
to sue as plaintiff in an action or
not, however, resides with the particular person or entity which is,
in casu,
the third respondent itself. Only in the event of a
co-plaintiff being a necessary plaintiff, such as mentioned above,
can one plaintiff
join such other as co-plaintiff, if such
co-plaintiff is willing, or as defendant or respondent, if unwilling.
8.
I accept for present purposes that the plaintiff and the third
respondent were entitled but not obliged to join as applicants
under
rule 10(1) (read with rule 6(14)) at the outset of the litigation.
Consequently, if the third respondent wanted to join as
co-plaintiff,
it's application would have fallen under rule 12. But, as stated
before, the third respondent's claim, in such an
event, has nothing
to do with a legal interest which may be prejudicially affected by
the judgment of the court in the main action.
It would be an
intervention of desire and not of necessity.
9.
Counsel could not refer me to any decision which allowed one
plaintiff, after close of pleadings, to join another plaintiff in
circumstances such as the present. As stated above, it is my view
that unless a person or entity is obliged to be a co plaintiff,
as mentioned above, the plaintiff cannot join another as
co-plaintiff. After all, there might be very good reason why such a
proposed
co-plaintiff does not want to be part of the litigation.
Furthermore, to join a party as co-plaintiff forces such party to
assume
the role of
dominus litis,
which brings with it certain
obligations and risks. And of course, there is the issue of costs.
Any party to litigation runs the
risk of an adverse order for costs.
No person,
ceteris paribus,
can be forced to institute legal
action and thus to run such a risk.
10.
During argument it was also submitted on behalf of the plaintiff that
it is wrong to say that the third respondent is not a
party to this
application or has made no application for joinder or intervention.
In this regard reference was made to the plaintiffs
attorney who
stated in the founding affidavit that he was duly authorised to
depose to the affidavit "and to act on behalf
of the applicant
and the third respondent herein". The attorney also stated that
he had instructions from the third respondent
"as represented by
the applicant" to effect such joinder.
11.
There is no merit in the aforesaid submission. The simple fact is
that the third respondent did not apply for its own intervention
as a
party to the litigation. The fact that the third respondent may not
have opposed the plaintiffs application or may even have
been
satisfied therewith, does not change the fact that it was not for the
plaintiff to join him, but for himself to do so.
12.
On behalf of the first respondent it was submitted that if the third
respondent wanted to join or intervene as plaintiff in
the existing
action, it was for the first respondent itself to apply to the court
for permission to do so and that such application
would then have to
be decided on its own merits -- it was not possible for the plaintiff
to do so. It was also pointed out that
neither the plaintiff nor the
third respondent offered any reason why the third respondent did not
itself apply for its intervention.
I am in agreement with these
submissions.
13.
In the circumstances I am satisfied that the application cannot
succeed. There is no reason why costs should not follow the
event.
14.
In the result the following order is made:
1. The application is dismissed with
costs.
_________________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT