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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN
CASE NUMBER : D6418/2022
In the matter between :
LOGASHINI ISAAC APPLICANT
and
PRESHNEE ISAAC FIRST RESPONDENT
NADARAJ NARAIMSN GOVENDER SECOND RESPONDENT
SERENA GOVENDER THIRD RESPONDENT
ORDER
The following order is made:
1. The late filing of the Second and Third Respondent's head s of argument
is condoned . There is no order as to costs in respect of the condonation
applicat ion.
2. The Applicant, Logashini Isaac is given leave to intervene in the main
application under case number D6418/2022 and is granted leave to join as the
Second Applicant in the main application.
3. The founding affidavit of the Applicant in the intervention application ,
Logashini Isaac , dated 19 February 2024 , shall stand as a supplementary
founding affidavit in the main application .
4. The Second and Third Respondents in the intervention application ,
being the First and Second Respondents in the main application , shall be
entitled, within 15 days of the granting of this order, to deliver a supplementary
answering affidavit, dealing with the facts and allegations contained in the
aforesaid supplementary founding affidavit.
5. The Applicant (then being the Second Applicant in the main application)
shall deliver her reply , if any, within 10 days of delivery of the aforesaid
supplementary answering affidavit.
6. The costs of the intervention application shall be costs in the cause of
the main application .
JUDGMENT
BOND AJ
[1] There is an idiom which states 'good walls make for good
neighbours '. What may happen when the good walls become bad, is still to be
seen .
[2] In this application the Applicant seeks leave to intervene in pending
motion proceedings between the First Respondent (as Applicant therein) and
the Second and Third Respondents (as First and Second Respondents
therein) .
[3] Relief is also sought permitting the founding affidavit in this
intervention application to stand as a supplementary founding affidavit in the
main application .
[4] The Second and Third Respondents heads of argument were
delivered out of time and were accompanied by an application for condonation .
Condonation was not opposed and was granted in the interest of having the
matter fully ventilated .
[5] The main application concerns itself with the abatement of nuisance
relating to a common boundary wall , the passage of water and the
accumulation of soil against on the Second and Third Respondent 's side of the
boundary wall. The Applicant in this intervention application is the owner of
immovable property which neighbours the Second and Third Respondent 's
property.
[6] The Applicant avers that she is the registered owner of 3[...] B[...]
Way, Scottsburgh , and her sister , the First Respondent (who is the only
Applicant in the main application) , resides there. There can be no contention
that these facts are not true.
[7] The Applicant goes on to explain the basic terms of an agreement
which is said to exist between herself and the First Respondent relating to the
ownership of their property , which the Applicant states is held in her name ,
partly as nominee for the First Respondent. This also is a fact which cannot
earnestly be contested by the Second and Third Respondents. The First
Respondent , being the Applicant in the main application , unsurprisingly , does
not oppose the matter .
[8] In their answering affidavit , the Second and Third Respondents
oppose the matter on various grounds . Amongst others, they make
assumptions regarding what disclosu res were made to various regulatory
authorities by the Applicant when she purchased the property , they challenge
the commissioning of the Applicant 's affidavit and raise various defences
pertaining to the underlying dispute , which undoubtably w ill be argued at the
hearing of the main application .
[9] A chief complaint by the Second and Third Respondents relates
to the allegation that the present application is an abuse of the court process
and should not be tolerated . Reference to a previous application seeking to refer
issue s in the main application to oral evidence (which was dismissed) is also
made .
[10] The Second and Third Respondents also take issue with both the
introduction of further evidence in the main application as well as the existence
of a pending action which, on face value , seems to seek , at least
in part, similar relief to that of the main application .
[11] In bo th oral argument , and the Second and Third Respondents heads of
argument , criticism is levied against the Applicant for failing to state that she
has a direct and substantial interest in the main application. The Second and
Third Respondents, also suggest that the current application is to cure the point
of law raised by them in the main application, that the First Respondent (as
Applicant in the main application) does not have the necessary locus standi to
institute the main application.
[12] I am not certain that I agree with the latter contention , but that is not a
finding I need to make . What is interesting however , is that the Second and
Third Respondents , in this intervention application, deny that the Applicant
has a direct and substantial interest in the main application. This seems to
contradict the locus standi defence raised in the main application.
[13] During oral argument, I canvased with counsel for the Second and Third
Respondents as to whether her contention was that there was no direct and
substantial interest , or rather that the Applicant had failed to use those words
expressly.
[14] I find no merit whatsoever in the submission that the words 'direct
and substantial interest' must be included in the affidavit. The finding of
whether the Applicant has a direct and substantial interest in the main
application is a legal conclusion which the court must draw from the primary
facts presented . I am fortified in this view as, conversely, if the Applicant had
merely stated that she has a direct and substantial interest without alleging
any material facts in support thereof, her submissions , at best , would be
insufficient. This view is supported by the dicta in Radebe and Others v
Eastern Transvaal Development Board 1988 (2) SA 785 (A) at 793.
[15] On the material facts before me, the Applicant does have a direct
and substantial interest in the main application. I say this for two reasons .
(a) The first of which is deduced from the Second and Third
Respondents ' version in relation to the First Respondent (as Applicant in
the main application) not having locus standi therein . At paragraph 3.2 of
the Second and Third Respondents' answering affidavit in the main
application (them being the First and Second Respondents respectively in
the main application) , it is expressly averred that the Applicant therein (the
First Respondent herein) is not the owner of the property and therefore does
not have the requisite locus standi . Therefore, the Applicant , as registered
owner of the property , must have a direct and substantial interest in the
matter .
(b) Secondly, and as a matter of common cause fact, the Applicant is the
owner of the property which shares the boundary wall with the Second and
Third Respondents. It can be noted that much is made , by the Second and
Third Respondents, of the arrangement between the Applicant and the First
Respondent, but I do not believe that anything turns on this.
[16] The Applicant has conceded that, at least in part, the present
application has the effect of obviating any issue arising in relation to the
Applicant not being a party to the main application. The Second and Third
Respondents object to this and submit that the Applicant (and Second
Applicant to be) in the main application should not be permitted to correct the
technical issue raised by the Second and Third Respondents in the main
application.
[17] I disagree . The prejudice which the Second and Third Respondents
may suffer is not a consideration which falls into the equation for intervention .
Even if the Second and Third Respondents are correct in their submissions
relating to locus standi, there can be no argument to suggest that a party must
be deprived of intervening in proceedings where that party has shown a direct
and substantial interest, merely because it will defeat a technical defence
raised by the other party .
[18] In regard to the loss of any technical defence raised by the Second
and Third Respondents in the main application, a parallel can be drawn to the
considerations of prejudice in amendment applications, where it has been
held in South British Insurance Co Ltd v Glisson 1963 (1) SA 289 (D) at 294B -
C that:
' ... the fact that the amendment may cause the respondent to
lose his case against the applicant is not of itself "prejudice " of the sort
which will dissuade the Court from granting it'.
[19] I have considered the existence of the pending action proceedings
as well as the judgment of Sipunzi AJ (dealing with the application brought
to refer the main application to a hearing of oral evidence) and find that the
existence of both has no bearing on the current application. A defence of lis
alibi pendens , whether raised in the main application or in the action , does not
find application in the curren t matter and is best debated at either or both of
those proceedings.
[20] Overall , I hold the view that it is ultimately in the interests of just ice
that the parties be entitled to ventilate their case at the hearing of the main
application . While there may be a time and place for technical objections,
surely , the court hearing the main application must consider the case on its
merits , and rule on the t rue material disputes between the parties to see that
justice is done .
[21] Accordingly, the Applicant is given leave to intervene in the main
application .
[22] It therefore follows that the Applicant , being the new party in the main
application be permitted to have her version placed before the court. While I
do acknowledge that the delivery of further affidavits does disrupt the flow of
proceedings in the main application and carries with it the likelihood to create
an unwieldly set of papers at the eventual hearing , on balance the interests of
justice are best served by perm itting a proper ventilation of the issues at the cost
of additional pages in an already voluminous application.
[23] As to costs, I am of the view that the application ought to have never
been opposed . The grounds for opposition set out in the answering affidavit
are not convincing , to say the least. This being said however , the Applicant
(who is represented by the same attorneys as the Applicant in the main
application) is seem ingly, at least in part , attempting to guard against that as
a possible technical ruling in the future .
[24] In the circumstances , the costs of the intervention application shall be
costs in the cause of the main application .
Order
[25] In the result , the order which I make is as follows :
1. The late filing of the Second and Third Respondent's heads of argument is
condoned . There is no order as to costs in respect of the condonation application .
2. The Applicant, Logashini Isaac is given leave to intervene in the main
application under case number 06418/2022 and is granted leave to join as the
Second Applicant in the main application .
3. The founding affidavit of the Applicant in the intervention application ,
Logashini Isaac, dated 19 February 2024 , shall stand as a supplementary
founding affidavit in the main application.
4. The Second and Third Respondents in the intervention application,
being the First and Second Respondents in the main application , shall be
entitled, within 15 days of the granting of this order, to deliver a
supplementary answering affidavit , dealing with the facts and allegations
contained in the aforesaid supplementary founding affidavit.
5. The Applicant (then being the Second Applicant in the main application)
shall deliver her reply , if any, within 10 days of delivery of the aforesaid
supplementary answering affidavit.
6. The costs of the intervention application shall be costs in the cause of
the main application .
BOND AJ
HEARD ON :10 DECEMBER 2024
DELIVERED ON: 14 JAUNUARY 2025
PARTIES :
APPLICANT: Mr E Mizrachi
Instructed by Henwood Britter &Caney
2nd Floor .Clifton Place
19 Hurst Grove ,Musgrave
Durban
1ST RESPONDENT: No Appearance
2ND AND 3RD RESPONDENT : Ms D Deodhutt
Instructed by : Singh & Gharbaharan
130 Scott Street
Scottburgh
c/o S Ramrachia Singh & Associates
6 Stanhope Crescent
Westville