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[2014] ZAGPPHC 350
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Telkom SA Soc Limited and Another v Blue Label Telecoms Limited and Others (30004/2013) [2014] ZAGPPHC 350 (13 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 30004/2013
DATE: 13/6/2014
REPORTABLE
OF INTEREST TO OTHER
JUDGES
In
the matter between:
TELKOM
SA SOC LIMITED
…..........................................................................
FIRST
PLAINTIFF
MULTI-LINKS
TELECOMMUNICATIONS LIMITED
..............................
SECOND
PLAINTIFF
And
BLUE
LABEL TELECOMS
LIMITED
............................................................
FIRST
DEFENDANT
AFRICA
PREPAID SERVICES (PTY) LTD
…
..........................................
SECOND
DEFENDANT
AFRICA
PREPAID SERVICES
LIMITED
.....................................................
THIRD
DEFENDANT
MARK
PAMENSKY
.......................................................................................
FOURTH
DEFENDANT
PERRY-MASON
MTHUNZI
MDWABA
..........................................................
FIFTH
DEFENDANT
THAMSANQA
(THAMI) GOODENOUGH MSIMANGO
............................
SIXTH
DEFENDANT
JUDGMENT
Fabricius
J,
1.
In
my capacity as case manager I was required to rule on an application
in terms of
Rule 33 (4).
Most
of the interesting facts are reported from a previous preliminary
hearing between the same parties in
2014
(3) SA 265
GP
.
2.
Plaintiffs
seek to separate certain issues for a Round 1 and a Round 2 hearing.
It is not seriously disputed that if Round 1 commences
in 2015, Round
2 may proceed in 2018. Summons was issued in May 2013.
3.
The
First to Fifth Defendants filed a substantial answering affidavit
which in turn elicited a long reply.
4.
Both
parties say in many instances, that the one does not understand the
pleadings of the other. I was given a booklet that contains
the
pleadings and in A5 format it comprises some 300 pages. The pleadings
require careful and critical analysis. The Heads of Argument
made my
task somewhat easier, but it is clear that both Senior Counsel see
them in a different light or from a different angle.
This again
became apparent on the second day of the hearing when a number of
alternative formulations to the prayers were discussed.
5.
I
do not intend to analyse the pleadings and the argument in any great
detail. No trial judge has yet been appointed and it would
not be
wise if I had to give a definitive view in this context and at this
stage. Suffice it to say that I considered the causes
of action
carefully, and of course the pleadings as a whole.
6.
I
need to say something about the approach in law though. Mr Badenhorst
SC referred to
Denel (Edms) Bpk v Venter
2004 (4) SA 481
par. 3
initially, but then also relied on
Absa Bank v Botha
1997 (3)
SA 510
(O) at 513 C – J, Braaf v Fedgen Insurance Ltd
1995 (3)
SA 938
(K) at 939 G – H, Edward L. Bateman Ltd v C A Brand
Projects (Pty) Ltd
1995 (4) SA 128
T at 132 C – E
and
Lappemann Diamond Cutting Works (Pty) Ltd v MIB Group (Pty) Ltd
(No. 2)
1997 (4)
SA 925
(W) at 927 H – I.
He
therefore submitted that an application for separation of certain
issues should ordinarily be granted unless the opposing party
can
satisfy the Court that the application should be refused. Mr
Trengrove SC called this the “separate when in doubt”
approach, and submitted that it is wrong in law. He relied on a
number of dicta of the SCA of more recent times. As a starting
point
he referred to
S v Malinde
1990 (1)
SA 57
AD at 67 and 68 C – D,
although
this was a criminal appeal. What is important however is that it was
said (at 67 F) that the Appellate Division is in principle
strongly
opposed to the hearing of appeals in piecemeal fashion. It did
however also refer to the old
Rule
33(4)
which applied to trial
actions in the Supreme Court. In
Denel
supra
Nugent JA pointed out that
(at 485 B) once properly considered, issues will be found to be
inextricably linked, even though at first
sight they might appear to
be discrete. For instance, in the present case it would in my view
not be wise, prudent or practical,
let alone convenient, to separate
the question of legal causation from factual causation, having regard
to the formulation of Plaintiffs’
claims. Also, the delictual
claims cannot be suitably divorced from the so-called “avoidance”
claim. Plaintiffs say
that a “Super Dealer Agreement”
(“SDA”) concluded on 1 December 2008 between Second
Plaintiff and Second
Defendant, which was later ceded by Second
Defendant to Third Defendant, can be “avoided” on a
number of grounds.
7.
In
Minister of Health v New Clicks SA
(Pty) Ltd and Others 2006 (2) 311 at 355
the
Constitutional Court also referred to
S
v Malinde
restating the view of the
SCA that it was in principle strongly opposed to piecemeal hearings,
whether in appeals or in applications.
Substantial grounds should
exist for the exercise of this power taking into account the
convenience of the parties and of the Court.
8.
In
CNA v MTN
2010 (3) SA 382
AT 408
the Court said the
following, after having been referred to
Denel supra
:
Par.
89…”Piecemeal litigation is not to be encouraged.
Sometimes it is desirable to have a single issue decided separately,
either by way of a stated case or otherwise. If a decision on a
discrete issue disposes of a major part of a case, or will in some
way lead to expedition, it might well be desirable to have issue
decided first.
Par
90: This Court has warned in many cases, once properly considered,
issues thought initially to be discrete are found to be inextricably
linked. And even where the issues are discrete, the expeditious
disposal of the litigation is best served by ventilating all the
issues at one hearing. A trial Court
must
be satisfied
(I underline) that it is
convenient and proper to try an issue separately. In this specific
context therefore I respectfully disagree
with the
Lappemann
decision
supra.
9.
The
same line of thought underlies the dictum by Navsa JA in
SATAWU
v Garvis
2011 (6) SA 382
SCA at 392 par. 45.
10.
See
also:
Nick Christelis N. O. and
Others v V. L. Meyer N. O. and Others, (916/)
[2014] ZASCA 53
of 16
April 2014
where the same thought
was expressed in par. 8
11.
In
my view the correct approach was set out in
Molotlegi v
Mokwalase 2010 JDR 0360 (SCA)
a judgment of 1 April 2010. At
par. 20 the following appears:
“
A
Court hearing an application for separation of issues in terms of
Rule 33(4) has a duty to
satisfy
itself
(I
underline) that the issues to be tried are clearly circumscribed to
avoid any confusion. It follows that a Court seized with
such an
application has a duty to carefully consider the application to
determine whether it will facilitate the proper, convenient
and
expeditious disposal of litigation. The notion of convenience is much
broader than mere facility or ease or expedience. Such
a Court should
also take due cognisance of whether separation is appropriate and
fair to all the parties. In addition the Court
… is also
obliged, in the interests of fairness, to consider the advantages and
disadvantages which might flow from such
separation. Where there is a
likelihood that such separation might cause the other party some
prejudice, the Court may, in the
exercise of its discretion, refuse
to order separation. Crucially in deciding whether to grant the order
or not the Court has a
discretion which must be exercised
judiciously. The Court cannot simply grant such an application
because it is unopposed.”
12.
In
its Heads of Argument, Senior Counsel for Plaintiff said that the
“avoidance question” of the relevant SDA should
be and
could be decided separately. He annexed three Tables which dealt with
the issues in the pleadings, and in Table C summarized
these issues
again in convenient form, pointing out which issue would be heard in
Round 1 and which in Round 2. The issue number
29 was however
amended. The last part thereof would be dealt with in Round 2.
It
is clear from this analysis and proposal that the evidence required
for this “avoidance” issue would only be up to
December
2008. However, from the Particulars of Claim it is also clear that
material issues would be relevant up to 2012 at least,
if not up to
2018.
Furthermore,
the relevant SDA in the context of delictual claims runs like a
golden thread throughout the Plaintiffs’ Particulars
of Claim.
13.
I
agree that Annexures A, B and especially C are more precise than the
rather obscure formulation of prayers 1 and 2 of the Notice
of Motion
, but the parties differ on the interpretation of the pleadings, the
relief sought in the context of the “avoidance”
question,
and the inter-relationships of the causes of action and the fifth
counter claim. I agree with Mr Trengrove SC that to
limit the
questions around the SDA up to 2008 would be wrong and impractical in
any event. Much of that evidence would again be
relevant in Round 2,
maybe in four years’ time. In my view the facts leading up to
the conclusion of the SDA, its conclusion,
and its effect or role
thereafter should conveniently be decided in one hearing. It
underlies the crux of all of Plaintiffs’
claim and the fifth
counter claim. I must also add that the only parties to the
“avoidance” question are the second
Plaintiff and the
third Defendant. The pleadings are complicated. Quantum should be a
matter of calculation. Factual and legal
causation should not be
separated in the present case. One must also ask what would the
status of the evidence in Round 1 be in
Round 2? Would there be two
self-contained trials? How would the other parties be bound by
findings of fact that one might make
between only two parties?
See:
International Shipping Company (Pty) Ltd v Bentley
1990 (1) SA
650
AD at 700.
Overlapping
considerations would make this undesirable and – and therefore
prejudicial.
14.
I
have referred to some of the most important considerations. It is my
view that I would invite a vulture to sit on my left shoulder
should
I grant the application. The mere formulation of the issue or issues
to be separated is fraught with difficulties. Overlapping
issues are
inevitable considering the three causes of action and the fifth
counter claim. Factual findings made in Round 1 could
be doubted in
Round 2. Long delays would be inevitable. The role of the sixth
Defendant at any given stage would be uncertain.
Witnesses would have
to be re-called. In other words, I am not satisfied that the order
sought can properly and justifiably be
made. It would be severely
prejudicial to the Respondents and the Court, given all the
uncertainties.
The
application is accordingly dismissed with costs including the costs
of two Counsel.
____________________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Case
no.:
30004/2013
Counsel
for the Plaintiffs: Adv C. H. J. Badenhorst SC
Adv C. E.
Watt-Pringle SC
Adv P. M. P. Ngcongo
Instructed
by: Hogan Lovells (SA) (Mr B. Biebuyck)
Counsel
for the 1
ST
to 5
TH
Defendants: Adv W. Trengrove
SC
Adv C. Steinberg
Instructed by:
Knowles Husain Lindsay Inc (Mr E. Knowles)
Counsel
for the 6
TH
Defendant: Adv C. M. Eloff SC
Adv F. Ismail
Instructed by:
Fluxmans Inc (Mr C. Strime)
Heard
on: 11/06/2014
Date
of Judgment: 13/06/2014 at 10:00