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[2006] ZAFSHC 14
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Imperial Cargo (Pty) Ltd v Supagroup (Pty) Ltd (1680/2004) [2006] ZAFSHC 14 (6 June 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 1680/2004
In
the matter between:
IMPERIAL
CARGO (PTY) LTD
Plaintiff
versus
SUPAGROUP
(PTY) LTD
Defendant
_____________________________________________________
HEARD
ON:
6 JUNE 2006
_____________________________________________________
JUDGEMENT
BY:
MILTON AJ
_____________________________________________________
DELIVERED
ON:
6 JUNE
2006
_____________________________________________________
[1] Mr. van der Walt, on
behalf of the plaintiff, has brought an application in terms of Rule
33(4) to request separation of two issues.
To separate merits in
quantum which has by agreement been decided by the parties in their
Rule 37 conference.
To have the issue
regarding the plaintiffâs
locus standi
to stand over to be
decided at a later stage.
[2] His contention is
that this issue can easily be separated and the trial may be
continued on the issue of negligence which is the
other issue in
contention and which he avers there will be no damage suffered.
[3] Mr. van der Walt has
sketched a lengthy history of the plaintiffâs various stages of
rationalisation, detail of which I do not
deem necessary to expand in
detail. The long and the short of it is that the plaintiffâs
company has gone through various stages
of rationalisation whereby
their transport business was extensively enlarged and for which
substantial documents were required.
This applied to all the
vehicles then acquired by the company and which would be registered
in their various companies and/or subsidiaries.
[4] Mr. van der Walt has
indicated that there are documents in the rationalisation chain, for
want of a better word, that are not
available and which will
definitely be able to be produced at a later stage. The documents
are crucial to proving the
locus standi
of the plaintiff. He
indicated that a key witness, a director of the plaintiff, will also
be giving evidence to the procedure of
rationalisation and therefore
also
locus standi
, but that he is not available today, hence
the request to continue on the negligence issue only.
[5] Mr den Hartog, on
behalf of the defendant, has opposed the application, indicating that
he only received knowledge of the application
five minutes before the
trial was to begin and secondly that he was under the impression that
Mr. Rudman would be here today to give
evidence as was indicated to
his attorneys in a letter from plaintiff dated 26 May 2006. He also
indicated that Mr. Rudmanâs evidence,
without the necessary
documentary evidence, would also be futile.
[6] It is clear from the
pleadings that the
locus standi
of the plaintiff has been in
dispute as far back as 2004, when so pleaded. Mr. van der Walt
indicated the difficulties that the
plaintiff has as a big company to
orchestrate proper instructions and a further problem is that his
attorneyâs instructions are
forthcoming from an insurance firm who
has panel attorneys not always geographically situated in the same
city as themselves. This
hampers the proper and timeous
instructions.
[7] Mr. den Hartog has
indicated that it would appear that the plaintiff is not prepared for
trial and is looking for an escape by
bringing this application
today. I am inclined to agree with him.
[8] The application in
terms of Rule 33(4) was only allowed for issues of law but has
transformed to include facts and law. This
rule has specifically
been applicable to motor vehicle cases like the present where quantum
and merits can easily be decided separately.
This has an added
advantage of shortening the trial since the defendant usually
concedes if the merits are proven, to settle on
the amount claimed or
other amount agreed upon without having to enter the court again.
This saves substantive court time and costs.
[9] The Rule has now been
extended to such an extent that the separation made by any party must
be ordered unless it appears that
the question cannot conveniently be
decided separately. Convenience means here appropriate not easy and
must be fitting and fair
to the parties concerned. There are several
quoted cases in this regard all appearing in Harms (loose leaf)
Civil
Procedure in the Supreme Court
on pp. B-228 and are referred
to in
DENEL (PTY) LTD v VORSTER
2004 (4) SA 481
(SCA)
p. 483 where the following was said:
âIn
conclusion:
âRule 33(4) of the Uniform Rules â
which entitles a court so try issues separately in appropriate
circumstances â is aimed
at facilitating the convenient and
expeditious disposal of litigation. It should not be assumed that
that result is always achieved
by separating the issues. In many
cases, once properly considered, the issues will be found to be
inextricably linked even though
at first sight they might appear to
be discrete. And even where the issues are discrete the expeditious
disposal of the litigation
is often best served by ventilating all
the issues at one hearing, particularly where there is more than one
issue that might be
readily dispositive of the matter. It is only
after careful thought has been given to the anticipated course of the
litigation as
a whole that it will be possible properly to determine
whether it is convenient to try an issue separately. But where the
trial
court is satisfied it is proper to make such an order â and
in all cases it must be so satisfied before it does circumscribed in
its order so as to avoid confusion ... [A]nd when issuing its orders
a trial court should ensure that the issues are circumscribed
with
clarity and precision.ââ
[10] I am of opinion that
the issue regarding
locus standi
cannot be separated from the
rest of the case as this is a real issue and should plaintiff not be
able to prove
locus standi
for whatever reason, it would mean
that the time spent in court to lead evidence on negligence, would be
wasted. A separation is
usually to shorten the proceedings. The
issue of
locus standi
is extricably linked to the facts of the
matter, an issue that plaintiff has the onus of proving. This matter
is not ripe for hearing.
It transpired that documents were
discovered late; that not all documents have been discovered and that
the request for separation
might be a tactical manoeuvre to escape a
request for postponement.
[11] The plaintiff is a
party who initiated the court proceedings and he placed the matter
for trial. He therefore has the responsibility
to see to it the
matter is ready for trial. It would appear that the plaintiff has
failed to carry out his obligations in this regard
and by ordering a
separation it would not be convenient in this matter.
[12] The application is
therefore dismissed with costs.
_____________
D. MILTON, AJ
On behalf of
plaintiff: Adv. C.G. van der Walt
Instructed by:
Honey &
Partners
BLOEMFONTEIN
On behalf of
defendant: Adv. A.P. den Hartog
Instructed by:
Lovius Block
BLOEMFONTEIN
/sp