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2012
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[2012] ZAKZDHC 28
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McNeill v Williams (5643/11) [2012] ZAKZDHC 28 (1 May 2012)
In
the KwaZulu-Natal High Court, Durban
Republic
of South Africa
Case
No : 5643/11
In
the matter between :
Enid
Daphne McNeill
…......................................................................................
Applicant
and
Judith
Enid Williams
…...................................................................................
Respondent
Judgment
Lopes J
[1] The applicant seeks an order
consolidating :-
(a) an action brought by her against
the respondent under case number 5643/2011 on the 16
th
May
2011 (‘the first action’); with
(b) an action brought by her against
the respondent under case number 4216/2012 on the 25
th
April 2012 (‘the second action’).
I shall refer to this application as
‘the consolidation application’.
[2] Save for jurisdiction, the cause
of action is identical in each action, being monies lent and advanced
by the applicant to her
daughter, the respondent. The money has not
been repaid. The respondent has pleaded in the first action, and
denies that the money
was advanced to her as a loan. She claims that
it was a donation made to her by her mother. The respondent has not
yet pleaded
in the second action.
[3] The other point of departure
between them is that, in a plea-in-limine, the respondent avers in
the first action, that at the
time the action was served on her, she
was not resident within the Republic of South Africa. Accordingly
this court has no jurisdiction
to hear the first action against her.
[4] Indeed, in her answering affidavit
in the consolidation application, she maintains that she was also not
resident in the Republic
of South Africa when the second action was
served upon her, nor was she resident here when the consolidation
application was served
upon her. Accordingly, this court has no
jurisdiction to hear either the second action or the consolidation
application.
[5] The only difference between the
two actions as pleaded by the applicant, is that the second one was
instituted
ex abundante cautela
by the applicant because she
feared that the respondent may succeed in avoiding the consequences
of the first action by her plea-in-limine.
In issuing the second
summons the applicant was apparently confident that the respondent
was now residing in the Republic of South
Africa and accordingly
subject to the jurisdiction of this court.
[6] The applicant’s allegations
regarding jurisdiction as set out in the consolidation application
may be summarised as follows
:-
the respondent moved temporarily to
England to assist the applicant’s granddaughter. This occurred
about two years ago;
when she did so, the respondent had a
permanent place of residence at 8 Knightsbridge, 360 Essenwood Road,
Durban;
the respondent is married to John H
Williams who resides at the same address;
the respondent was appointed as an
accounts administrator, manager or clerk in her husband’s
business, William Batwell &
Co, in Musgrave Road in Durban;
the respondent remains a South
African citizen, in possession of a South African passport, resides
permanently with her husband
at the above address and remains
employed by him.
[7] In those circumstances the
applicant submits that the respondent was, and remains, ordinarily
resident within the area of jurisdiction
of this court, and is
therefore subject to this court’s jurisdiction in both actions
and in the consolidation application.
[8] The respondent’s averments
may be summarised as follows :-
she resides permanently in the United
Kingdom and is domiciled there;
she is presently in South Africa only
for the purpose of attending the trial in the first action which was
to have taken place
on the 21
st
and 22
nd
May
2012;
she denies residing permanently with
her husband at 8 Knightsbridge, and further denies that she is
permanently employed by him;
she claims to have resided in England
for some time, although she does not specify precisely when she went
to the United Kingdom,
nor does she disclose when she decided that
that was her permanent place of residence and domicile.
[9] There is thus a stark dispute of
fact on the papers as they stand with regard to the question of
jurisdiction. The remaining
issues in the case are simple ones, and
can be disposed of by hearing the evidence of the applicant and the
respondent respectively.
That evidence has a very narrow ambit, and a
court should be able to dispose of it quickly.
[10] Does the jurisdiction conflict
mean that I am precluded from hearing this application? Mr
Stokes
SC
who appeared for the respondent very properly drew to my
attention the authority in the matter of
Standard General
Insurance Co Ltd v Ever Safe Pty Ltd and others
2000(3) SA 87
(WLD), a judgment by Vorster AJ in which the learned judge considered
a similar problem. In that case the plaintiff
sought condonation, in
terms of rule 27 of the Uniform Rules of Court, for the late filing
of a replication. The defendant took
the view that the court had no
jurisdiction to entertain the application because the jurisdiction of
the court had been denied
in the pleadings. It was suggested that in
those circumstances the proper procedure was to hold the plaintiff’s
application
in abeyance, and to proceed firstly to determine the
issue of the court’s jurisdiction. The learned judge held that
he could
determine the application notwithstanding the jurisdictional
challenge, because rule 27 fell within the court’s inherent
jurisdiction.
[11] Vorster AJ relied on the
judgement of Flemming J in
Chunguete v Minister of Home Affairs
and others
1990 (2) SA 836
(W) where the learned judge
analyzed what he referred to as the ‘innate jurisdiction’
of the high court to decide matters
which fall within the ‘procedural
field’ of the court’s function.
[12] The present applicant seeks
orders which in my view fall directly within the ambit of the
procedural functions of this court.
In the circumstances the fact
that there is a dispute of fact on the question of this court’s
jurisdiction, does not prevent
me from considering the consolidation
application.
[13] The applicant seeks to
consolidate the two actions in terms of rule 11 of the Uniform Rules
of this court which provides:-
‘
Where
separate actions have been instituted and it appears to the court
convenient to do so, it may upon the application of any
party thereto
and after notice to all interested parties, make an order
consolidating such actions, whereupon -
the said actions shall proceed as one
action;
the provisions of rule 10 shall
mutatis mutandis
apply with regard to the action so
consolidated; and
the court may make any order which to
it seems meet with regard to the further procedure, and may give one
judgment disposing
of all matters in dispute in the said actions.’
[14]
Mr Marais SC
, who appears
for the applicant, seeks an order for directions regarding the
completion of the pleadings in the second action, together
with an
order consolidating the two actions for hearing simultaneously. He
submits that if I consolidate the actions, the effect
would be to
preclude the respondent from raising a plea of
lis pendens
in
the second action, something I am in any event able to decide now,
because there can be no merit in following a procedure which
may lead
to a duplication of evidence. If I decline to consolidate the
actions, the respondent may seek the postponement of the
second
action until after the first action is determined. This would
inevitably lead to the undesirable situation where witnesses
testify
twice on the same issues, a duplication of costs and undue delay.
[15] The subject of undue delay is
raised in the papers on the basis that the applicant is now 91 years
old. She wishes to have
the issue between her and her daughter
resolved and, given her inevitably greatly limited life expectancy,
wishes to do so as soon
as possible. That she should wish to do so is
not unremarkable, particularly given the fact that the resolution of
the dispute
between them may have some effect on her relationship
with her daughter.
[16]
Mr Stokes
SC on the other
hand submitted that I should not consolidate the actions, and I
should not decide the question of
lis pendens
because the
respondent has not yet pleaded to the second action. It was her
intention to raise the defence of
lis pendens
in the second
action, and the respondent should not be prevented from doing so. He
submitted that were I to do so, it would be conflating
the perception
of delay with a genuine desire by the respondent to raise whatever
defence she can to the actions by the applicant.
[17] If I grant the order sought by
Mr
Marais
and deny the respondent the ability to raise the
defence of
lis pendens,
what prejudice have I caused to the
respondent? A similar situation existed in
International
Tobacco Company of South Africa Ltd v United Tobacco Companies
(South) Ltd
1953 (1) SA 241
(WLD) where the applicant had
instituted an action claiming damages suffered as a result of false
statements made by an employee
of the respondent. Later, more
detailed information became available of additional instances of
false and malicious statements,
and the applicant instituted a second
claim in a similar amount of damages, basing its second claim on the
later statements. The
applicant sought to consolidate the actions, or
alternatively, to incorporate by amendment the one action in the
other and to have
a date fixed for hearing.
[18] As is claimed by the applicant in
this case, Clayden J in
International Tobacco
was of
the view that it was highly desirable that the two actions be heard
at the same time, given that the evidence would largely
be the same
in each case. The two actions involved the same questions of law
between the same parties. The respondent suggested
that it would be
incorrect to consolidate the two actions because, essentially, the
evidence of the false and malicious statements
in the second action
would colour the allegations in the first action. The respondent
submitted that the two actions should be
combined as one by
amendment, with the one action to be withdrawn.
[19] Clayden J declined to allow the
actions to be heard together by amending the pleadings, on the basis
that the respondent had
proposed an alternative course of conduct
which would nullify the possibility of prejudice to the respondent.
In those circumstances
the suggestion of the respondent was followed
because it could not be suggested that it was a method of trial which
was prejudicial
to the applicant. Clayden J ordered that the
applicant be given leave to amend its summons and declaration in the
second action,
and stayed the first action pending the decision of
the second action.
[20] Whilst the course of conduct
followed by Clayden J in
International Tobacco
was
workable in that case, it does not appear to be workable in this
case, especially if the defendant’s allegations of prescription
are correct. In her answering affidavit the respondent has expressed
her clear intention to plead prescription in the second action.
[21] I agree with Mr
Marais
that the prejudice which will be occasioned to the respondent as a
result of consolidation will be that she will be precluded from
raising the plea of
lis pendens
in the second action. That
must follow as a logical consequence of an order for consolidation
because,
inter alia,
rule 11(a) provides that upon
consolidation “the said actions shall proceed as one action”.
If there is only one action
before the Court there can be no question
of
lis pendens
arising. In any event, the respondent has had
every opportunity to deal with the allegations of
lis pendens
in
her answering affidavit. The prejudice occasioned to the respondent
as a result of the consolidation must bow to the benefits
which will
accrue if only one trial is heard. In any event, there would seem to
be no basis for a defence of
lis pendens
because one of the
central issues in the trial – i.e. jurisdiction – is
different in each action, and the respondent
will not be precluded
from raising whatever defences are available to her. Insofar as it is
necessary for me to consider the balance
of convenience (See
Mpotsha
v Road Accident Fund and Another
2000 (4) SA 696
(CPD)), it
clearly favours consolidation for the reasons set forth above. The
same logic will apply to any suggestion of a possible
plea of
res
judicata
.
[22] As I understand rule 11, it
enables me to consolidate actions where it could be convenient for
the court to do so. What I have
to bear in mind is whether the
proposed procedure would be prejudicial to the respondent.
[23] There is no doubt that there
would be considerable savings in preparation, costs and the time used
in court proceedings were
the two actions to be consolidated. The
main issue to be decided in the two actions is the agreement
concluded between the applicant
and the respondent with regard to the
monies advanced by the applicant to the respondent. The question of
jurisdiction as it arises
in each of the two actions may well be
similar, although not identical, in that the apparent basis for the
respondent’s contention
that she does not reside within the
Republic, as set out in her answering affidavit, uses an historical
starting point two years
ago. In my view it would be most undesirable
and a waste of time and resources were the same witnesses to testify
in two different
trials about the jurisdictional issues which existed
at the time of the commencement of each of the two actions. That can
all be
done conveniently and expeditiously in one hearing.
[24] Insofar as it may be suggested
that the consolidation order should not be granted because the
respondent has not pleaded in
the second case, and the pleadings are
not closed, in my view this will make no difference. I say this
because, in her answering
affidavit, the respondent had every
opportunity to canvas whatever additional defences may be raised by
her. The fact that her
answering affidavit may have been prepared
under some time constraints does not detract from the position. The
two particulars
of claim are identically pleaded by the applicant.
The respondent has already pleaded to the first action and although
prescription
may be relied upon by the respondent in the second
action, there is no reason why that cannot be pleaded and dealt with
by her
in the consolidated action. The view of Wessels J in
Licences
and General Insurance Co. Ltd. v Van Zyl and others
1961 (3)
SA 105
(D) insofar as his findings in that matter may constitute
authority for the proposition that one cannot order consolidation
where
the pleadings are not closed in both matters, seems
distinguishable. The plea in the second action in that matter may
have entailed
different pleas and different witnesses. Rule 11 does
not require that pleadings be closed, and where affidavits have been
filed
entitling the parties fully to ventilate the issues between
them, as has been done in this case, there can be no prejudice to the
respondent. (See also Standard General Insurance Co Ltd).
[25] I accordingly make the following
order: -
(a) the respondent is directed to
deliver her plea to the applicant’s particulars of claim in the
action instituted under
case number 4216/2012 on or before the 8th
June 2012;
(b) the applicant is directed to
deliver any replication which she may be advised to do, within five
(5) days of the receipt of
the respondents plea in case number
4216/2012;
(c) The action instituted by the
applicant under case number 5643/2011 is consolidated with the action
instituted by the applicant
under case number 4216/2012 for hearing
simultaneously;
(d) The Registrar is directed to
afford the applicant whatever preference she may be able to, with
regard to the setting down of
the consolidated action for trial;
(e) Costs of this application are to
be costs in the cause of the consolidated action.