About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 217
|
|
Routledge Modise Inc v Louw N.O. and Others, In Re; Louw N.O. and Others v Van Der Merwe N.o. and Others (4793/2012) [2013] ZAFSHC 217 (19 November 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No : 4793/2012
In
the matter between:
ROUTLEDGE
MODISE INC.
…..........................................................
Applicant
for Intervention
and
ANDRIES
NICOLAAS EVERHARDUS LOUW N.O.
…...................................
1
st
Respondent
RUSTU
GUVEN ATALA N.O.
…..........................................................................
2
nd
Respondent
CARL
BOTHMA N.O.
….......................................................................................
3
rd
Respondent
LEON
WESSELS N.O.
….......................................................................................
4
th
Respondent
DAWID
RYK VAN DER MERWE N.O.
…...........................................................
5
th
Respondent
GAVIN
CECIL GAINSFORD N.O.
…...................................................................
6
th
Respondent
BAREND
PETERSEN N.O.
…...............................................................................
7
th
Respondent
SIVALUTCHMEE
MOODLIAR N.O.
…..............................................................
8
th
Respondent
INVESTEC
BANK LIMITED
…...........................................................................
9
th
Respondent
THE
MASTER OF THE WESTERN
CAPE
......................................................
10
th
Respondent
HIGH
COURT, CAPE TOWN
THE
MASTER OF THE FREE STATE
…........................................................
11
th
Respondent
HIGH
COURT, BLOEMFONTEIN
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
….................................
12
TH
Respondent
PIETER
ADRIAAN GOOSEN
…........................................................................
13
th
Respondent
AUBREY
PHAGO
LEDWABA
............................................................................
14
th
Respondent
In
Re
:
ANDRIES
NICOLAAS EVERHARDUS LOUW N.O.
….....................................
1
st
Applicant
RUSTU
GUVEN ATALA N.O.
…...........................................................................
2
nd
Applicant
CARL
BOTHMA N.O.
…........................................................................................
3
rd
Applicant
LEON
WESSELS N.O.
….......................................................................................
4
th
Applicant
and
DAWID
RYK VAN DER MERWE N.O.
…........................................................
1
st
Respondent
GAVIN
CECIL GAINSFORD N.O.
…................................................................
2
nd
Respondent
BAREND
PETERSEN N.O.
…............................................................................
3
rd
Respondent
SIVALUTCHMEE
MOODLIAR N.O.
…..........................................................
4
th
Respondent
INVESTEC
BANK LIMITED
…........................................................................
5
th
Respondent
THE
MASTER OF THE WESTERN CAPE
…................................................
6
th
Respondent
HIGH
COURT, CAPE TOWN
THE
MASTER OF THE FREE STATE
…........................................................
7
th
Respondent
HIGH
COURT, BLOEMFONTEIN
THE
REGISTRAR OF DEEDS, BLOEMFONTEIN
…..................................
8
th
Respondent
PIETER
ADRIAAN GOOSEN
….......................................................................
9
th
Respondent
AUBREY
PHAGO LEDWABA
….....................................................................
10
th
Respondent
HEARD
ON:
14 NOVEMBER 2013
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
19 NOVEMBER 2013
INTRODUCTION
[1]
This is an interlocutory application for leave to intervene as a
respondent in a main application by the current trustees of
the Eagle
Creek Investments 74 (Pty) Ltd Debenture Trust against various
respondents including the Registrar of Deeds, Bloemfontein,
the
Masters of the Western Cape and Free State High Courts, Investec Bank
Ltd, the previous trustees of the Debenture Trust and
the four joint
liquidators of Eagle Creek Investments 74 (Pty) Ltd (in liquidation).
THE
PARTIES
[2]
The applicant in this application is Routledge Modise Inc
(“Routledge”), a law firm of Sandton, Gauteng,
represented
by Adv GB Rome.
[3]
The first four respondents in the intervention application are the
four applicants in the main application, to wit Messrs Louw,
Atala,
Bothma and Wessels in their representative capacities as the present
trustees of the Eagle Creek Investments 74 (Pty) Ltd
Debenture Trust
(“the trust”). I shall refer to them collectively
as the trustees herein. The trustees
are represented by Adv GP
van Rhyn.
[4]
The next four respondents in this application are the first to fourth
respondents in the main application, to wit Messrs Van
der Merwe,
Gainsford, Petersen and Moodliar in their capacities as the duly
appointed joint liquidators of Eagle Creek Investments
74 (Pty)
Limited (in liquidation) (“the company”).
[5]
The ninth respondent in this application is cited as the fifth
respondent in the main application, to wit Investec Bank Ltd
(“Investec”).
[6]
The following three respondents are the Master of the Western Cape
High Court, Cape Town, the Master of the Free State High
Court,
Bloemfontein and the Registrar of Deeds, Bloemfontein. Messrs
Goosen and Ledwaba cited herein as the thirteenth and
fourteenth
respondents respectively are the ninth and tenth respondents in the
main application. They are the previous trustees
of the trust
and I shall refer to them as Goosen and Justice Ledwaba
respectively. (Fourteenth respondent has been appointed
as a
judge of the High Court of South Africa in the meantime.)
THE
RELIEF SOUGHT
[7]
The applicant for intervention seeks an order that leave be granted
to it to intervene in the main application as eleventh respondent.
No order as to costs is sought in the notice of motion. The
trustees oppose the relief sought by Routledge. None of
the
other parties oppose the intervention application. It is
apparent why no costs order is sought in the notice of motion.
The trustees initially indicated through their attorneys that they
would not oppose the intervention application. Now that
it is
opposed, Routledge seeks an order in terms whereof the trustees be
ordered to pay the costs of the application.
THE
DRAMATIS PERSONAE
AND FACTUAL MATRIX
[8]
The company was the owner of certain immovable properties situated in
the district of Heilbron, Free State Province. It
intended to
develop the properties into the Lizard Point Golf Residential Leisure
Estate.
[9]
In 2005 the company granted a first mortgage bond, a Debenture Bond,
over the immovable properties in favour of the trust, which
bond was
registered with the Registrar of Deeds in Bloemfontein.
[10]
During 2006 the company applied for finance from Investec, which was
granted on condition that a first mortgage bond be registered
over
the immovable properties of the company. For purposes of
registration of a first mortgage bond in favour of Investec,
Goosen
in his capacity as trustee of the trust, signed a waiver in terms
whereof the trust waived its preference as a first mortgage
bond
holder in favour of Investec, the effect being that the Debenture
Bond would in future rank as a second bond and that Investec
would be
the holder of the first mortgage bond. A certain Mr Henk Auret
of Auret Goosen and Ledwaba, an attorney and partner
of Goosen at the
time, prepared the written waiver, but neglected to sign the
preparation clause on the relevant document as conveyancer.
This document like any other document to be lodged with the Registrar
of Deeds for registration purposes had to be prepared and
signed by a
conveyancer. The written waiver, together with other documents,
was sent to Routledge who held instructions from
Investec to register
the bond in favour of Investec. Mr Smith, a partner of
Routledge at the time, then signed the preparation
clause whereupon
the documents were forwarded to correspondents in Bloemfontein for
registration of the trust’s waiver and
the new first mortgage
bond of Investec.
[11]
The company was finally liquidated whereupon the encumbered immovable
properties were sold at the total price of R5 million
only. The
Debenture Bond was registered for R33 million and the amount owing to
Investec at present is in excess of R43 million.
[12]
The trustees assumed office on 13 August 2012. On 14 November
2012 they launched the main application, seeking firstly,
a
declarator that Goosen and/or Justice Ledwaba acted
ultra
vires
in executing the waiver and
secondly, a declaration that the Debenture Bond retained its status
as a first ranking mortgage bond
in preference of Investec’s
mortgage bond. The trustees, after receipt of Justice Ledwaba’s
affidavit, no longer
seek any declaration that he acted
ultra
vires
.
[13]
Investec opposed the main application on the restricted grounds that
the Debenture Bond was invalid for want of compliance
with the
provisions of section 118(3) of the 1973 Companies Act and that
Goosen was not authorised to execute the waiver.
[14]
On 12 February 2013 Investec informed Routledge in writing that it
had been informed that the purported waiver by the former
trustee
consenting to the back ranking of the Debenture Bond was null and
void and that it appeared as if Mr Smith (of Routledge)
failed to
ensure that the waiver was properly procured. Furthermore if
Investec had been aware of the true facts it would
not have advanced
the sum of money which it did and consequently it had sustained a
loss in excess of R43 million as at 11 February
2013. There is
no indication in this letter that Investec will institute legal
action against Routledge if it is found liable
towards the trustees,
but this appears to be an inevitable consequence. There is no
reason why Investec would not try to
retrieve its damages from its
former attorneys.
[15]
On 26 July 2013 Routledge launched the application to intervene in
the main application. By then, as is the case at
the present
moment, the main application has not been set down for hearing.
Bearing in mind the timeframes applicable to
application proceedings,
it remains a mystery why the trustees did not ensure that those
parties that gave notice of intention
to oppose the application, file
their answering affidavits within the timeframes set out in Rule 6.
As a direct consequence
of this delay for which the trustees must
accept the blame, the main application has not been set down for
hearing notwithstanding
the fact that a year has now lapsed since the
launching of the application. Routledge’s application was
brought on the basis
that it would be unopposed as is apparent from
paragraph 50 of the founding affidavit, read with the letter of the
trustees’
attorney dated 19 July 2013 annexed as annexure
“JJ15”. The trustees thought it fit to oppose the
application,
notwithstanding their earlier attitude and filed
answering affidavits as late as 2 September 2013 to which Routledge
replied whereupon
the matter was set down for hearing before me on 14
November 2013.
INTERVENTION
OF PERSONS
[16]
Intervention of persons as plaintiffs or defendants is dealt with in
Rule 12. Rule 6(14) stipulates that Rule 12 shall
mutatis
mutandis
apply to applications as
well. Rule 12 reads as follows:
“
Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at
any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application
make such order,
including any order as to costs, and give such directions as to
further procedure in the action as to it may seem
need.”
[17]
Although accepting that their viewpoint may give rise to difficulties
in constitutional litigation, Cilliers
et
al
, Herbstein and Van Winsten,
The
Civil Practice of the High Courts of South Africa
,
5
th
ed, vol 1 at 226 - 228, state the following with reference to
relevant authories:
“
A
person who has a legal interest must be joined, and is therefore
generally ‘entitled to join’ or ‘liable to
be
joined‘ within the meaning of the subrule. The court must
allow such a party to intervene, for once a direct and
substantial
interest becomes apparent the court should not proceed in the absence
of a party who has such an interest. This
would mean that the
court has no discretion when the applicant for intervention
demonstrates a direct and substantial interest.”
The
authors go further and state that:
“
It
has been held that the court has a wide discretion in applications
for leave to intervene. If the rule does not help an
applicant,
it is entitled to invite the court to decide the application on
common-law principles.
It
is not sufficient for a third party seeking to intervene to merely
allege an interest in the action, but such party must give
prima
facie
proof of the interest and right
to intervene. It is not necessary to satisfy the court of
success in the litigation in which
leave is sought to intervene.
It will be sufficient to make such allegation as would show a
prima
facie
case (allegations which, if they
can be proved in the main action, would entitle success) and that the
application is made seriously
and is not frivolous. Provided
that such
prima facie
proof is given, however, the intervening party need not show a use
in
rem
in the subject-matter of the suit.”
[18]
Farlam
et al
confirm
the views of Herbstein & Van Winsen in commenting that at the
stage of adjudicating the application for leave to intervene
the
court need not be over-concerned with the intrinsic merits of the
dispute which can be fully canvassed in the main proceedings:
It is
sufficient for the party seeking leave to intervene to rely on
allegations which, if they can be proved in the main action,
would
entitle him or her to succeed.
See:
Farlam
et al
:
Erasmus, Superior Court Practice
,
B1-103 with reference to
Ex Parte
Sudurhavid (Pty) Ltd: In Re Namibia Marine Resources (Pty) Ltd v
Ferina (Pty) Ltd
1993 (2) SA 737
(NM) at 742G – H.
[19]
In
Henri Viljoen (Pty) Ltd v Awerbuch Brothers
1953 (2)
SA 151
(O), a judgment which has been quoted frequently over the
decades, Horwitz AJP, with whom Van Blerk J concurred, analysed the
concept
of “direct and substantial interest” and
concluded that it refers to an interest in the right which is the
subject
matter of the litigation and not merely a financial
interest.
See also:
Aquatur
(Pty) Ltd v Sacks and Others
1989 (1) SA 56
(A) at 61J –
62G;
Burger
v Rand Water Board and Another
2007
(1) SA 30
(SCA) paras [7] – [9].
[20]
In
Home Sites (Pty) Ltd v Senekal
1948 (3) SA 514
(A) at 520 – 521 it was found that where a
person claimed to have a servitute in land, the validity of which
might become
an issue in litigation between third parties, such
person had a clear right to be joined as a party to the proceedings
between
those third parties. The court found as follows:
“
It is true that if she (the
servitude holder) remains outside the litigation a decision to the
effect that no valid servitude had
been granted would be
res
inter alios acta
as far as she is
concerned and it would not be binding by way of
res
iudicata
upon her. But if such a
decision were giv
en
by
this Court it would be an authority on the legal issues which would
be directly in point and calculated to operate with decisive
effect
upon her claim to be entitled to the servitude. Accordingly it
seems to me that she has, in the language used in
Collin
v Toffie
(1944 AD 456
at p.464), a
direct and substantial interest in the results of the decision of
this issue, which cannot properly be decided without
her being joined
as a party.”
[21]
In
Standard Bank of South Africa Ltd
v Swartland Municipality and Others
2011 (5) SA 257
(SCA) at para [9] p 259E Lewis JA, writing for the
Full Bench of the SCA, stated that although it was trite law that a
mere financial
interest in the outcome of litigation did not give a
party the right to be joined in the legal proceedings, a mortgagee as
the
holder of a real right in property, which includes the
improvements thereon, erected lawfully or otherwise, clearly had more
than
a financial interest in the outcome of proceedings for the
demolition of those buildings.
[22]
Having considered the authorities it appears that what is required
for intervention by a defendant/respondent is a legal interest
in the
subject matter of the action, which could be prejudicially affected
by the judgment of the court.
EVALUATION
OF THE EVIDENCE AND SUBMISSIONS BY THE PARTIES
[23]
Investec and the trustees indicated in writing prior to the launching
of the application to intervene that they did not have
objection to
such intervention. The letter of Investec is attached as
annexure “JJ14” to the founding affidavit
and the letter
of the trustees’ attorney dated 19 July 2013 as annexure
“JJ15”. The trustees explain their
change of heart
as follows in paragraph 13 of their answering affidavit:
‘
The
trustees’ attorney of record, Otto John Brebner Krause (Krause)
is indeed the author of annexure “JJ15” to
the founding
affidavit. However, the consent therein contained was based on
telephonic discussions between Krause and Mr
Alex Eliott (Eliott) of
Routledge. After the invention application was delivered and
considered by the trustees and by Krause,
it became quite clear that
the allegations contained in the application went much further than
anticipated when the consent was
given.”
[24]
No explanation has been given as to what was meant by the phrase
“(T)he application went much further than anticipated
when the
consent was given”. Surely Routledge was fully entitled
to make all the necessary averments in order to show
its direct and
substantial interest and the defences it intended to raise once
joined as a party to the main application.
It is Mr Smith, a
Routledge attorney and conveyancer at the time, who signed the
preparation clause of the written waiver as conveyancer.
Such
conveyancer accepts responsibility for
inter
alia
the fact that the document signed
by any person in a representative capacity is duly authorised
thereto. Furthermore the
conveyancer is obliged to ensure that
the transaction (in this case the waiver) was authorised by and in
accordance with the trust
deed.
In
casu
it is alleged that there was no
meeting of Debenture holders and that no special resolution was
adopted by them to authorise Goosen
to execute the waiver.
Therefore it appears as if Smith failed to ensure that the waiver was
properly procured in circumstances
where Investec would not have
advanced any monies to the company, unless such advances were secured
by a first mortgage bond.
Although Routledge has disputed the
accuracy of the facts alleged by the trustess and/or Investec, there
appears to be sufficient
reason for Routledge, not to be a mere
spectator and watching the game played by the others from the
side-line, but to participate
actively as a player in order to
safeguard its own interests.
[25]
Although Routledge never acted as conveyancers for the previous
trustees, i.e. Goosen and/or Justice Ledwaba, the mere fact
that one
of its directors, Smith, signed the preparation clause of the waiver
as conveyancer without establishing whether Goosen
was duly
authorised, does not mean that Routledge can be held liable by the
trustees based on breach of contract , but surely and
as conceded by
Mr Van Rhyn, the trustees might have joined Routledge as a party to
the main application, alternatively instituted
separate action
against it, claiming damages based on delict. At this stage the
trustees are seeking declaratory orders only,
but there can be no
doubt that once orders are granted in their favour, further action
will follow.
[26]
Mr Van Rhyn submitted with vigour that the requirements to intervene
as a party to the main application have not been met.
According
to him Routledge has not shown that it has a legal interest in the
right which is the subject matter of the litigation
in the main
application, which legal interest could be prejudicially affected by
the judgment of the court. He argued that
Routledge’s
only interest in the main application, should it be successful, is
dependent on several uncertain events that
may not be consequences
thereof, such as:
(i)
Investec must have suffered damages;
(ii) Investec must
resolve to recover those damages from Routledge;
(iii)
Instructions must be given to Investec’s legal representatives
in order to draft pleadings and to advise Investec about
the
prospects of success and such advice may even be not to proceed with
action against Routledge.
Res
iudicata
[27]
Mr Rome submitted that if Routledge is not allowed to intervene in
the main application, it would be precluded through the
principle of
res judicata
from contesting the validity of the 2006 waiver when Investec
institutes action for some R43 million against it for damages based
on Routledge’s alleged negligence. In such action to be
instituted Routledge would not be entitled to raise defences
pertinent to the validity of the 2006 waiver and the ranking of
Investec’s bond as a first mortgage bond, the reason being
that
these issues would have definitely disposed of by the judgment of the
court in the main application. He submitted that
if Routledge
is not granted leave to intervene, the factual foundation of
Investec’s anticipated claim against it, namely
that the waiver
was invalid and that Investec’s mortgage bond ranked as a
second bond will be an undisturbable fact in the
subsequent
litigation. It is apparent that the issue in the anticipated
Investec action would be the same as that in the
main application,
namely whether the waiver was validly executed and hence which of the
two bonds is in fact the first charge over
the properties.
[28]
Mr Rome’s submission that the rights and obligations of the
various parties to the dispute will be forever determined
in the main
application was not attacked by Mr Van Rhyn who did not try to show
that there will not be a final adjudication which
may directly and
negatively affect the rights of Routledge. He merely relied on
the uncertainty as to whether action might
be instituted against
Routledge. I am not convinced that
res
iudicata
is applicable
in
casu,
but the principles set out in the
authorities quoted and in particular
Homes
Sites (PTY) LTD v Senekal
supra,
are applicable. Mr Van Rhyn argued that
the trustees’ right to reinstatement of the Debenture bond as a
bond of first preference
is the right which is the subject matter of
the litigation. This might be so but the validity of the waiver
signed by Goosen
and prepared by Smith, a director of Routledge, will
have to be considered in particular and this is indeed the crucial
aspect
of the dispute in the main application. I am satisfied
that these aspects are so interwoven that Routledge has clearly
indicated
that it has a direct and substantial interest and therefore
a legal interest in the subject matter of the litigation in the main
application. The validity of the waiver will be forever
determined in the main application. Therefore Routledge should
be given an opportunity to participate in that application.
Prescription
[29]
I have indicated above that the authorities are to the effect that
the party seeking to intervene needs to make sufficient
allegations
to show a
prima facie
case and that the application is made seriously and not frivolous.
I do not have to make a finding at this stage that the
defences to be
relied upon by Routledge would entitle it to success in the main
application. The trust, on the trustees’
own allegations,
has a right to set aside the execution of the 2006 waiver. Such
right is a “debt” for purposes
of the
Prescription Act,
68 of 1969
. See also
Duet and
Magnum Financial Services CC (In liquidation) v Koster
2010 (4) SA 499
(SCA) para [27] at 507H – 508C.
[30]
Section 12
of the
Prescription Act, 68 of 1969
, reads as follows:
“
12
When Prescription begins to run
1.
Subject to the provisions of subsections
(2), (3) and (4), prescription shall commence to run
as
soon as the debt is due
.”
2.
…
..
3.
A debt shall not be deemed to be due until
the creditor has knowledge of the identity of the debtor and of the
facts from which
the debt arises: provided that a creditor shall be
deemed to have such knowledge if he could have acquired it by
exercising reasonable
care.”
[31]
It is possible that a court may find that the right to claim the
setting aside of the waiver and its subsequent registration
came into
being already in 2006 and if that is the case, prescription has taken
place. It is also possible that evidence may reveal
that the
Debenture holders, and in particular those that now act as trustees,
became aware of the waiver in the middle of 2009
as suggested in a
letter of attorney Groenewald who at a stage acted for Debenture
holders in which case it might be found that
they could not and
should not have waited until 2012 to arrange for the appointment of
new trustees and to take the required action.
Prescription
might be found to have commenced in the middle of 2009. In
essence a court may find that the trust, through
its trustees or
Debenture holders shall be deemed to have knowledge of the invalid
waiver as they could have obtained that knowledge
by exercising
reasonable care already in the middle of 2009 in which case three
years has also lapsed prior to the institution
of the main
application.
[32]
Although Mr Van Rhyn indicated in his heads of argument that insofar
as a mortgage bond is involved
in casu
,
the prescription period is thirty years and not the general period of
three years, he conceded in oral argument that the applicable
period
is three years
in casu
.
He also relied on
Barnett and Others
v Minister of Land Affairs and Others
2007 (6) SA 313
(SCA) at paras [20] – [22] for the submission
that a “continuous wrong” is being conducted
in
casu
and therefore the debt is not
susceptible to prescription. The judgment referred to is
totally distinguishable from the facts
in
casu
insofar as the unlawful occupation
by the occupants of the relevant sites on the Wild Coast was regarded
as a continuous wrong,
neutralising the issue of prescription.
Mr Van Rhyn conceded this.
Ratification
[33]
It appears from the record in the main application that the trustees
do not complain that the previous trustees did not act
jointly in
executing the waiver. Mr Rome submitted that the complaint is
rather that Goosen did not consult with and obtained
the approval of
the Debenture holders prior to executing the waiver. It is also
apparent that Justice Ledwaba resigned as
trustee prior to execution
of the waiver and that Goosen was the sole trustee at the time.
Goosen purportedly acted as agent
of the Debenture holders and there
is nothing in the trust deed which stipulates that unless prior
consent had been given, his
conduct would be void
ad
initio
. Therefore, as Mr Rome
argued, Goosen’s act in executing the waiver could be
subsequently ratified by the Debenture
holders. It appears that
by 2009 the Debenture holders were aware of Goosen’s conduct in
executing the waiver and agreed
thereto. If such evidence is
accepted by the court who will be called upon to adjudicate the main
application, the defence
of ratification may well be found to be good
in law. Again as indicated above, it is not necessary for me to
make any finding
in this regard.
Conclusion
[34]
Consequently I am of the view that Routledge has made out a proper
case for the relief claimed in the notice of motion.
Mr Rome
has indicated that should I find in Routledge’s favour, it
would be in a position to file an answering affidavit
in the main
application within two weeks from the date of judgment. It
appears that the trustees might not be in a position
to file replying
affidavits thereto before the Christmas holidays, but they would
surely be in a position to do that in mid-January
2014 for this
matter to be enrolled during February 2014.
[35]
It is possible that the intervention of Routledge may cause factual
disputes to such an extent that the main application might
be
referred to oral evidence, which may cause further delay and extra
costs. Even if this might be so, such factor should
not be a
barricade to granting the leave
in
casu
. It is possible, even
without the intervention of Routledge, that the main application
could not be adjudicated on the papers
and that the matter might in
any case be referred to oral evidence. Furthermore, the
possible referral to oral evidence in
the event of Routledge being
joined as a party is preferable to a situation where the main
application is finalised and further
action then instituted by
Investec against Routledge with consequences such as that witnesses
that testified in the first matter
might be called to testify again
and be subjected to cross-examination in the second matter. It
is thus also in the interest
of justice and convenience that
Routledge be given leave to intervene. Furthermore the
determination of Routledge’s
dispute depends upon substantially
the same question of law or fact that will arise in the main
application.
[36]
The general rule is that the successful party is entitled to its
costs. During oral argument the matter was raised with
both
counsel and both submitted that the proper order to be made
in
casu,
if the application is granted,
would be to reserve the costs for later adjudication. This is
the order that I shall make.
ORDER
[37]
Therefore the following orders are made:
1. Routledge Modise
Inc is granted leave to intervene as eleventh respondent in the main
application, application no 4793/2012.
2. Routledge is
directed to file its answering affidavit in the main application on
or before 3 December 2013.
3.
The costs of the intervention application are reserved for later
adjudication.
_____________
J.P.
DAFFUE, J
On
behalf of applicant: Adv. G. B. Rome
Instructed
by:
Lovius Block
BLOEMFONTEIN
On
behalf of first to fourth
respondents
(first to fourth
applicants
in main application: Adv. G. P. van Rhyn
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN