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[2006] ZASCA 150
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Burger v Rand Water Board and Another (392/05) [2006] ZASCA 150; 2007 (1) SA 30 (SCA) (20 September 2006)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 392/05
REPORTABLE
In the matter between:
IZAK JOHANNES BURGER
APPELLANT
v
RAND WATER BOARD
FIRST RESPONDENT
CLUB TWELVE (aka KLUB
12) SECOND RESPONDENT
Coram: Brand, Mlambo JJA
and Combrinck AJA
Heard: 21 August 2006
Delivered: 20 September
2006
Summary: Procedure – special
plea of non-joinder insisting that individual members of second
respondent be joined – exception
against special plea upheld on
the basis that situation catered for by the provisions of court rule
14.
Neutral citation: This case may be
cited as
Burger v Rand Water Board
[2006] SCA 104 (RSA)
_____________________________________________________
JUDGMENT
_____________________________________________________
BRAND and MLAMBO JJA/
BRAND and MLAMBO JJA
:
[1] First respondent (plaintiff in the
court
a quo
) instituted action in the Free State High Court.
It sought an order directing appellant (first defendant in the court
a quo
) to demolish certain habitable and other structures (the
structures) erected on his land, situated on the banks of the Vaal
River,
on the Free State side, in the district of Heilbron (the
property). First respondent joined second respondent (second
defendant in
the court
a quo
), an association known as Club
Twelve (Club Twelve) in the suit. Though no relief is sought against
Club Twelve, its joinder, purely
for any interest it may have in the
matter, is pivotal in this appeal. The basis of first respondent’s
suit is that after 6
August 1982 the appellant erected the structures
below a flood control line without obtaining its written consent as
required by
a Regional Structure Plan devised in terms of the
Physical Planning Act, Act No 125 of 1991.
[2] The appellant raised a special
plea based on the non joinder
of the members of Club Twelve
alleging that they were the owners of the structures sought to be
demolished and that as such they had
a direct and substantial
interest in the outcome of the action. First respondent belatedly
excepted to the special plea on two bases:
(a) that it lacked
averments necessary to sustain a defence in that the appellant sought
the joinder of persons that he was unable
to identify, whom first
respondent could not identify and whom appellant did not allege first
respondent could identify; and (b)
that having joined Club Twelve
there was no requirement in law to also join its individual members.
[3] The matter came before Kruger J
who condoned the late filing of the exception and went on to uphold
it. The learned Judge then
struck the special plea out with costs
inclusive of the costs of two counsel. His underlying reasoning was
that the members of Club
Twelve derived their rights to the
structures by virtue of their membership of Club Twelve and that as
such they were in no better
category than sub-lessees. He further
found that the interest of the members in the proceedings was not
adverse to that of Club Twelve
thus rendering it unnecessary to join
them. This appeal, with leave from this court, is directed at those
orders.
[4] At the outset consideration must
be given to the special plea, as it stands, it being the pleading
successfully excepted to.
Salzman v Holmes
1914 AD 152
at 156;
Lewis v Oneatte (Pty) Ltd and another
[1992] ZASCA 174
;
1992 (4) SA 811
(AD) at
817F-G;
Wellington Court Shareblock v Johannesburg City Council
;
Agar Properties (Pty) Ltd v Johannesburg City Council
1995 (3)
SA 827
(AD) at 833E and
Minister of Safety and Security and
another v Hamilton
2001 (3) SA 50
(SCA) at 52G-H.
[5] The case made out in the special
plea is that on dates before 6 August 1982 the appellant and
individual members of Club
Twelve at the time, concluded individual
oral agreements with the following material terms:
5.1 Each member acquired the right to
erect, own and occupy a habitable or other structure on that portion
of appellant’s property
leased by the latter to Club Twelve;
5.2 appellant accorded these rights
only to persons who were or became members of Club Twelve;
5.3 any member of Club Twelve who
acquired these rights was entitled to transfer his/her rights to any
person who became a member
of Club Twelve;
5.4 any member or successor in title
held these rights for as long as a lease concluded between appellant
and Club Twelve remained
in force and that on termination of the
lease members were entitled to remove their structures;
5.5 on the basis of their individual
agreements with appellant members of Club Twelve erected the
structures on appellant’s
property.
[6] The names of the original members
with whom appellant concluded individual oral agreements are set out
in the special plea coupled
with an allegation that save for two of
them, appellant is unaware of the identities of the successors in
title of the other members.
The special plea concludes with a
contention that on the strength of the rights acquired by the
original members and their successors
in title to the structures,
current members are the owners of the structures sought to be
demolished and that as such they have a
direct and substantial
interest in the issues to be determined in the action.
[7] The right to demand joinder is
limited to specified categories of parties such as joint owners,
joint contractors and partners
and where the other party(s) has a
direct and substantial interest in the issues involved and the order
which the court might make.
In
Kock & Schmidt v Alma Modehuis
(Edms) Bpk
1959 (3) SA 308
(A) Steyn CJ stated at 318E-F:
‘
So ‘n
verpligting tot voeging is erken by gesamentlike eienaars,
gesamentlike kontrakterende partye en vennote, op grond van
gesamentlike vermoënsbelang (
Morgan and
another v. Salisbury Municipality
,
1935 A.D.
167)
en ook waar die betrokke party ‘n direkte en wesenlike
belang het by die uitslag van die geding (
Collin
v. Toffie
,
1944 A.D. 456
op bl. 464;
Home
Sites (Pty.) Ltd. v. Senekal
,
1948 (3) S.A.
514
(A.D.) op bl. 521). In die algemeen genome moet die beswaar van
nie-voeging binne die bestek van genoemde kategorieë gebring
kan
word, want die reg om so ‘n beswaar te opper is in ons
regspraktyk ‘n heel beperkte (
Sheshe v.
Vereeniging Municipality
,
1951 (3) S.A. 661
(A.D.) op bl. 666).’
See also
United Watch & Diamond
Co v Disa Hotels
1972 (4) SA 409
(CPD) at 415E-F.
[8] In the present context the
succinct question is thus, whether the individual members of the club
can be said to have ‘ a
direct and substantial interest’
in the outcome of the proceedings. As indicated, the court
a quo’s
conclusion that they had not, was based on the analogy drawn
between their position and that of a sub-tenant. We find ourselves in
agreement with the court
a quo
’s conclusion as to what
the outcome of the matter should be. But we cannot agree with its
underlying reasoning that, on a proper
construction of the special
plea, the position of the individual members of Club Twelve is no
different from that of a sub-tenant
and that, in consequence, the
members have no direct and substantial interest in the outcome of the
proceedings.
[9] From the history of the
proceedings between the parties, one’s distinct impression is
that the purpose of the special plea
is to cause frustration and
delay. Nevertheless, because the first respondent chose to follow the
exception route, we must decide
the matter on the facts set out in
the special plea. According to those facts, the members of Club
Twelve,
inter alia
, became the owners of the structures that
first respondent seeks to demolish. As explained by Corbett J in
United Watch & Diamond Co v Disa Hotels Ltd supra
417B-C,
the reason why a sub-tenant is said not to have the required interest
in ejectment proceedings, is because his right of occupation
is a
derivative one. It is entirely dependent on the tenant’s right
of occupation. We do not think the same can be said of
the members of
Club Twelve. The right of ownership of the structures allegedly held
by the individual members of the club cannot,
in our view, be
described as derivative. What is more, we do not believe that an
owner’s interest in his property can in the
present context be
said to be anything but direct and substantial. Unlike in the case of
a sub-tenant where there is no privity of
contract between him and
the landlord, in this matter the contract to erect and retain
ownership of the structures is alleged to
be directly between the
owner and the members of the club. Broadly stated our view is thus
that, unless the situation is met by the
provisions of rule 14 of the
Uniform Rules of Court, the exception against the special plea should
not have succeeded.
[10] For present purposes the key
provision of rule 14 is that an entity, described as an ‘association’
can be cited as
plaintiff or defendant in its own name. ‘Association’
is then defined in the rule itself as ‘any unincorporated
body
of persons, not being a partnership’. It is common cause on the
pleadings that Club Twelve is indeed an association as
defined.
[11] Prior to the introduction of rule
14, the citation of unincorporated associations of natural persons
presented difficulty. In
essence, each individual member of the
association had to be joined and cited by name. If not, the summons
would fall foul of the
non-joinder rule (see eg
Sliom v Wallach’s
Printing and Publishing Co Ltd
1925 TPD 650
at 655). The purpose
of the rule is therefore to simplify procedure by avoiding technical
defences of non-joinder. After all, as
is the situation in the
present case, on the facts pleaded, the plaintiff may not even know
who the individual members of the association
are. At the same time,
as Harms JA said in
D F Scott (EP)(Pty) Ltd v Golden Valley
Supermarket
2002 (6) SA 297
(SCA) 301H-J, the rule does not turn
an association into a juristic person and it has no impact on
substantive rights at all.
[12] Therefore, if we find that rule
14 applies in this case, we do not suggest that it will make any
inroad into the substantive
rights of the members of Club Twelve. If
for example, the individual members are in fact the owners of the
structures involved, they
will retain those rights. The only effect
of such finding will be that the appellant will be able to avoid the
citation of all the
individual members whose names are to it unknown.
Otherwise stated, the members of Club Twelve will be regarded as if
they had been
cited individually by name which would, of course,
provide a conclusive answer to the appellants’ special plea.
[13] The pivotal question is thus
whether it can be said that rule 14 applies. That depends, in our
view, on whether the members’
rights that may potentially be
affected by the court order sought, including their rights of
ownership over the structures, are held
by virtue of their membership
of the club. On the facts pleaded in the special plea their rights
can, in our view, be so described.
According to these facts (as set
out in para 5 above) members’ rights to the structures are so
intertwined with their membership,
that the two simply cannot have a
separate existence. No-one, so it is said, can erect and own a
structure on the appellant’s
property without being a member of
Club Twelve. If someone acquires a structure from a member, the
purchaser must first become a
member before he can acquire ownership
while, conversely, the seller immediately ceases to be so. In short,
membership of Club Twelve
is the only gateway through which
individual members can attain any rights in the structures.
[14] According to the first
respondent’s particulars of claim, Club Twelve is joined for
any interest it may have in the matter.
On the facts pleaded such
interest can consist of nothing else but the aggregate of the
interests of the individual members of the
club in the outcome of the
case. It follows that, in our view, this is precisely the type of
case for which rule 14 was designed
and that the rule therefore
allowed the first respondent to cite Club Twelve in lieu of its
individual members.
[15] Consequently the appeal is
dismissed with costs, including the costs of two counsel.
..................................................
F D J BRAND and D MLAMBO
JUDGES OF APPEAL
Concur
:
COMBRINCK AJA