Club Twelve v Rand Water Board; Rand Water Board v Johannes and Another (161/2003) [2005] ZAFSHC 31 (3 March 2005)

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[2005] ZAFSHC 31
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Club Twelve v Rand Water Board; Rand Water Board v Johannes and Another (161/2003) [2005] ZAFSHC 31 (3 March 2005)

IN THE SUPREME
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 161/2004
In
the matter between:
RAND
WATER BOARD
Excipient
and
BURGER
IZAK JOHANNES
Respondent
INRE:
RAND
WATER BOARD
Plaintiff
and
BURGER
IZAK JOHANNES
First
Defendant
CLUB
TWELVE
Second
Defendant
(also
known as KLUB 12)
CORAM:
KRUGER
J
JUDGMENT:
KRUGER
J
HEARD ON:
26
NOVEMBER 2004
DELIVERED ON:
3
MARCH 2005
[1] The plaintiff excepts
to the first defendant’s special plea of non-joinder.
[2] In
the action by the plaintiff against the first defendant, the
plaintiff seeks an order directing the first defendant to demolish
certain buildings and structures erected on his farm, Erfenis,
because they were erected illegally below the 1975 floodline next
to
the Vaal River. The buildings and structures form part of a
recreational resort operated by a tenant of the first defendant,
an
association by the name “Klub 12”. Klub 12 has been joined as
second defendant, but no relief is sought against it and it
is joined
solely for any interest it may have in the matter.
BACKGROUND
[3] In his plea dated 11
March 200, the first defendant raised a special plea of non-joinder
on the basis that all the members of
Klub 12 (the second defendant)
had, in their capacity as members, a direct and material interest in
the outcome of the action and
that they had not been joined.
[4] The
plaintiff excepted to the special plea of non-joinder as being bad in
law on the basis that there is no requirement in law
that, where an
association is cited as a party, the individual members also have to
be cited. Furthermore, Rule 14(2) of the Uniform
Rules sanctions the
suing of an association, without the need to sue individual members
thereof.
[5] The exception was
argued before Van der Merwe J on 7 November 2003. The exception was
upheld with costs. The First Defendant
was granted leave to amend
his plea within 15 days after date of judgment.
[6] The
First Defendant delivered a notice of amendment on 28 November 2003
to which the Plaintiff delivered a notice of objection
in terms of
Rule 28(3) on 12 December 2003.
[7] The objection to the
amendment was argued before Hattingh J on 22 April 2004. The Court
held that the First Defendant could amend
his special plea as of
right and simply had to deliver the amendment, and that the Plaintiff
was not entitled to use the procedures
of Rule 28, but should have
acted in terms of Rule 23.
[8] First Defendant says
that on dates before 6 August 1982 it and the then members of the
second defendant’s club (Klub 12) entered
into oral agreements.
The first defendant gives the names of the persons with whom he
entered into the agreements.
[9] The
most important terms of the oral agreements were the following:
(1) The persons would be
entitled to erect habitable and other structures on that portion of
first defendant’s
property leased from him
by second defendant.
(2) The first defendant
would only give the right to erection to persons who are or become
members of Klub 12.
(3) Such persons with
whom first defendant entered into agreements would be entitled to
transfer all rights and obligations (including
ownership) which they
acquire by virtue of the agreement with the first defendant to other
persons who are or become members of Klub
12.
(4) Such member or
successor in title is and remains owner of the structures erected by
it and is entitled to live in, possess and
occupy the said structures
for as long as the lease between first and second defendant endures.
(5) At
completion of the period (or any extension thereof) such persons will
be entitled to remove the structures.
[9] In terms of the said
agreements the said persons (members of second defendant) erected
habitable and other structures.
[10] In
the premises, first defendant says, the said persons or their
successors in title are owners of the structures and entitled
to live
in them, possess and occupy them.
[11] First
defendant says only two of the twelve initial contracting parties are
still in occupation. He says he is unaware of the
identity of all
the successors in title of the initial parties.
[12] First
defendant pleads that all those persons, the two initial ones and the
other successors in title, are at present owners
of some of the
structures mentioned in paragraph 14 and prayer 1 of the particulars
of claim and that they have a direct and substantial
interest in the
adjudication of this action. None of them have been joined and, says
the first defendent, in the premises the relief
sought in the prayers
cannot be granted.
[13] The
plaintiff excepted to the special plea on the basis that it lacks
averments which are necessary to sustain a defence on the
following
grounds:
“
1. 1.1 Save for the names of Messrs
Bill Phillips and Brian David Kay, the First Defendant demands the
joinder of persons that he
is unable to identify, whom the Plaintiff
cannot identify and whom the First Defendant does not allege the
Plaintiff can identify.
The Plaintiff is unable to give effect to
this demand of joinder, even if it wanted to do so, and accordingly
the special plea of
non-joinder amounts to a demand which is
impossible of performance by the Plaintiff.
1.2 It is not competent in law to
defeat a Plaintiff’s claim with a plea of non-joinder where the
person required to be joined
cannot be identified and therefore
cannot be effectively joined by the Plaintiff.
2. 2.1 Furthermore,
the First Defendant pleads that the oral agreements were concluded
with members of the Second Defendant only and
that such members could
only transfer their rights to other members of the Second Defendant
for the duration of the lease agreement
between the First Defendant
and the Second Defendant.
2.2 The
rights that the individuals acquired as pleaded by the First
Defendant are therefore wholly dependant on their membership
of the
Second Defendant, and such individuals are by definition the current
members of the Second Defendant.
2.3 There
is no requirement in law that, where an association is cited as a
party, the individual members also have to be cited.
Indeed, Rule
14(2) sanctions the suing of an association without the need to sue
individual members thereof.
3. The special plea of non-joinder is
therefore bad in law and should be struck out.”
CONDONATION
[14] The exception was
filed out of time and the excipient had to apply for condonation.
That application was opposed. I do not
intend to go into detail of
the delays. The crux of Mr. Gautschi’s submissions in argument was
that the reason for the late noting
of the exception was that it was
precipitated by the filing of the second defendant’s exception to
the plaintiff’s particulars
of claim. Plaintiff deemed it
expedient to have both exceptions dealt with at this stage. That
argument appears sound to me and
I believe that the plaintiff’s
exception to first defendant’s special plea should be decided now.
There is no reason to delay
that until the hearing of the matter or
have it specially set down at a later stage if the plaintiff wishes
to have it dealt with
by means of an exception. That, in my view, is
an expedient manner of dealing with it. Mr. Danzfuss, for excipient,
said that if
condonation is granted, plaintiff should be ordered to
pay the costs thereof. In my view, taking the exception was an
expeditious
decision, which could result in a saving of costs. No
costs order should be made in respect of the condonation application.
MERITS OF EXCEPTION
[15] Plaintiff says that
the special plea of non-joinder amounts to a demand which is
impossible of performance by the plaintiff.
Plaintiff’s counsel
says that it is not competent in law to defeat a plaintiff’s claim
with a plea of non-joinder where the
person required to be joined
cannot be identified and therefore cannot be effectively joined by
the plaintiff.
[16] It
is highly improbable that the First Defendant is not aware of the
full list of the members of Klub 12 in that he is the owner
of the
farm and he stays on the farm. Even if he is not aware of the
identity of the members, it cannot be expected of the Plaintiff
to
join persons that it is not able to identify.
[17] Furthermore, Mr.
Gautschi says, the first defendant pleads that the oral agreements
were concluded with members of Klub 12 only
and that such members
could only transfer their rights to other members of Klub 12 for the
duration of the lease agreement between
the first defendant and Klub
12.
[18] The rights that the
individuals acquired as pleaded by the first defendant are therefore
wholly dependent on their membership
of Klub 12, and such individuals
are by definition the current members of the second defendant.
Therefore, Mr. Gautschi says the
joinder of Klub 12 is sufficient to
protect all its members and its own interests.
[19] In opposing the
exception, Mnr. Danzfuss pointed out that for purposes of the
exception plaintiff cannot rely on allegations
or circumstances which
do not appear
ex
facie
the plea. Plaintiff is limited to the allegations within the four
corners of the plea –
VILJOEN
v FEDERATED TRUST LTD
1971 (1) SA 750
(O) at 754 F – G. For purposes of an exception the
facts stated in the pleadings must be accepted –
EDWARDS
v WOODNUTT N.O.
1968 (4) SA 184
(R,S) at 186 E – F.
[20] The excipient for
purpose of the exception is bound by the pleading to which it excepts
and is taken to admit those facts –
Beck’s
Theory and Practice of Pleading in Civil Actions
6
th
edition (2002) 129. The exception may not introduce fresh matter
(
VILJOEN,
supra,
loc.cit).
As
stated in Beck p. 152:
“
It
will be remembered that the test of a valid exception is that the
truth of the pleading excepted to is assumed and that no fresh
matter
of any sort is introduced. Pleas in bar, dilatory pleas and pleas in
abatement differ from exceptions precisely in this,
that they do
always introduce fresh matter which must be proven by evidence.”
[21] No fresh matter of
any sort may be introduced. For purposes of the exception the facts
pleaded must be accepted as correct -
MARNEY v WATSON AND ANOTHER
1978 (4) SA 140
(C) at 144 F – G.
[22] The rule is that for
purposes of interpretation the pleading must be taken as it stands.
No evidence can be introduced - that
is done via a special plea, not
an exception. The pleading must be assessed in the light of all the
pleadings. The exception is
restricted to pure matters of law –
Beck
p. 129.
[23] Two
main issues arise for determination:
Can a party compel
another to join persons he does not identify?
Is the interest of a
member of the second defendant sufficient to qualify for joinder in
the light of the fact that the second defendant
is before the court?
(i) IDENTITY OF
PARTIES
[24] Mr. Gautschi says
the first defendant does not name the parties he says should be
joined. First defendant does not say that
plaintiff knows who they
are. Mr. Gautschi says it is asking too much to demand that people
that he cannot identify, be joined.
He says if anyone is likely to
know their identity it is the first defendant.
[25] It is of course
possible that parties can be joined without being named. Especially
in eviction cases one often sees that persons
are cited as
“occupiers” of certain premises. That is what Mr. Danzfuss says
should be done in this case. The occupiers of
the various houses
should simply be cited as “occupiers”. However that creates
several problems in this case. We know from
the special plea that a
member of the second defendant who is then also an occupier of a
particular house is entitled to transfer
the ownership which he or
she has in the structures in question to any other person by simply
transferring membership. That is done
without any formalities and it
appears without informing the first defendent about it. Apparently
the first defendant does not know
who they are, and there have been
several transfers since the second defendant’s club came into
existence. Therefore it is possible
that during the course of this
litigation such property may also change hands. A person who was for
instance the occupier of house
no. 3 as at today would no longer be
the owner or occupier of house no. 3 within a year or two when the
trial is heard and judgment
is given. That appears to me to create a
serious hurdle and apart form the fact that one does not know who
would be bound by whatever
is ordered in the judgment it could also
have a bearing on costs. If such party would be ordered to pay costs
it would not be possible
to determine who was intended. Was it the
person who occupied for the first six months, as from today (before
the judgment), or
was it the person who occupied at the date of
judgment who did not even know that he had been joined? That creates
a serious problem
in this matter. This problem becomes clearer in
dealing with the second point.
(ii) IS THE INTEREST
OF A MEMBER OF THE SECOND DEFENDANT SUFFICIENT TO QUALIFY FOR
JOINDER?
[26] Mr. Gautschi says
there is a complete identity of interest between the second defendant
and its members. With reference to
WHOLESALE
PROVISION SUPPLIES CC v EXIM INTERNATIONAL CC AND ANOTHER
1995 (1) SA 150
(T) at 158 D – E he says that the rule which seeks
to avoid orders which might affect third parties in proceedings
between other
parties is not simply a mechanical or technical rule
which must ritualistically be applied, regardless of the
circumstances of the
case. He says that there is no suggestion that
the members have an interest adverse to the interest of the first and
second defendants
(158H-I). In this case it is clear that both
defendants are opposing the order sought by the plaintiff which is a
demolition order.
It seems to me obvious that if the members of the
club also had a demand that would simply also be to oppose the
demolition orders.
I cannot see that they would have any other
interest adverse to that if they wished to oppose this litigation.
If they did not
wish to oppose they can stay away and not be involved
at all.
[27] Mr. Gautschi says
the demand for joinder is just a ritualistic demand for joinder of
people whose interests are entirely overlapping
with those of the
second defendant. He says the rights of the club members are to take
away the structures. He says the plaintiff
will be only too pleased
if those members take away their structures. That right need not be
protected separately from Klub 12,
the second defendant. Secondly he
says they have the right to use and occupation of the property. That
right arises from the lease
between the first defendant and the
second defendant. Sub-lessees do not need to be joined. That is
settled law. The members of
Klub 12 are in the position of
sub-lessees and have no right to be joined. See
NTAI
AND OTHERS v VEREENIGING TOWN COUNCIL AND ANOTHER
1953 (4) SA 579
(A) at 591 – 592;
SHESHE v VEREENIGING MUNICIPALITY
1951 (3) SA 661
(A) at 666F – 667C referred to in a judgment which
I gave in the matter of
RAND
WATER BOARD AND ANOTHER v BURGER
,
OPD Case No.: 2805/2001 on 5 September 2002, par. 16 thereof.
[28] Mr. Danzfuss says
that the
WHOLESALE
PROVISIONS SUPPLIES
-case
is to be distinguished from the present case. There the person in
question took part in the proceedings and signed on behalf
of the
legal person and was actually before the Court. Here, Mr. Danzfuss
says, the order sought is that the first defendant abolishes
the
structures of which other persons are the owners. Thus they have to
be before Court. Mr. Danzfuss says that the new members
of the
second defendant are owners of the structures and entitled to be
cited in their own right. Mr. Danzfuss also says that this
being an
exception the question is whether the defence raised can be a good
defence. He says that is the point of law which I have
to decide.
See
MINISTER
OF LAW AND ORDER v KADIR
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at 318 D – E. He says the test is whether the
conclusion for which the plaintiff contends cannot be supported upon
every interpretation
which the particulars of claim can reasonably
bear. See
LEWIS
v ONEANATE (PTY) LTD AND ANOTHER
[1992] ZASCA 174
;
1992 (4) SA 811
(A) at 817 F – G.
[30] The facts pleaded
represent the high water mark of the factual basis on which the Court
will be required to decide the question.
Therefore if those facts do
not
prima
facie
support the defence of non joinder contented for there is no reason
why the exception should not succeed (
KADIR
-case
at 318 I - J). The fact that the persons sought to be joined are
owners of the structures does not put them in a better category
than
sub-lessees. They derive their rights from being members of the
second defendant. The right to ownership which they have is
simply a
right in the structures erected which they are entitled to remove
when they depart. That they are entitled to do and I
cannot see how
this court order would adversely affect that right.
[31] An important aspect
of this case, not applying the test for joinder ritualistically, is
to assess whether the parties to be joined
have an interest adverse
to that of the second defendant. By virtue of the membership of the
second defendant they have ownership
of those structures. The
members of the second defendant must be funding this litigation. At
least, they must be aware thereof.
If not, the management of second
defendant would be acting in a grossly irresponsible manner. No one
prevents them from intervening
if they believe their interests are
not being protected. It would in no way advance the interests of
justice to allow the special
plea to stand. It is simply a delaying
tactic contrived by the defendants.
[32] Novel points of law
were raised in the exception and the special plea, and it was a wise
precaution of excipient to employ two
counsel.
[33] The
following orders are made:
(i) The condonation
application is granted but no order for costs is made in respect
thereof .
(ii) The exception is
upheld and the special plea is struck out with costs such costs to
include the costs consequent upon the employment
of two counsel.
____________
A. KRUGER, J
On
behalf of Excipient/Plaintiff: Adv. A. Gautschi and
Adv.
I. Lindeque
Instructed
by
Hill
McHardy & Herbst
BLOEMFONTEIN
On
behalf of Respondent/First Defendant: Adv. F.W.A. Danzfuss S.C.
Instructed
by
Honey
Attorneys
BLOEMFONTEIN
On
behalf on Second Defendant: No appearance
/ec
/sp