SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 1066/2023
REPORTABLE: YES / NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED: YES/NO
DATE
SIGNATURE
In the matter between:
JACQUELINE LANGE NHOVEN PLAINTIFF
and
GERHARD POTGIETER MAINTENANCE CLEANING DEFENDANT
SERVICES (WITBANK) LTD
SHOPRITE HOLDINGS LTD THIRD PARTY
JUDGMENT
MONTSHO -MOLOISANE AJ
[1.] Before this Court is an application lodged by the Plaintiff for the joinder of the
Third party as the Second Defendant in the main action she instituted
against the Defendant in this Court.
[2.] The Plaintiff is an adult female who, at the time of the institution of the main
action, was resid ing in Middelburg, Mpumalanga province.
[3.] The Defendant is a private company with limited liability, trading as Mr
Clean, duly incorporated and registered in terms of the company laws of the
Republic of South Africa, with its registered address at Secure Office Park,
B[...] B[...], S[...] Street , Witbank, Mpumalanga province .
[4.] The Third part y, Shoprite Holdings Ltd, is a company duly incorporated and
registered in terms of the company laws of the Republic of South Africa, with
its registered address at Corner William Street and Old Paarl Road ,
Brackenfell, Western Cape province .
[5.] The Third party opposes the joinder application, which opposition culminated
in the current proceedings.
[6.] The Defendant filed a Notice of intention to abide by the decision of the
Court in this application .
SALIENT FACTS
The Pleadings
[7.] It is common cause that the Plaintiff instituted an action against the
Defendant in this Court, on 07 March 2023. The claim is for payment of
damages that the Plaintiff alleges to have suffered when she slipped and fell
in a pool of water that had accumulated in front of a fridge inside Shoprite
store, Crown Centre, Barberton, Mpumalanga (“the premises”) , on 11 April
2020 , causing her to suffer serious injuries and sequelae thereto .
[8.] In her Particulars of claim, the Plaintiff avers that the fall was a s a result of
the breach of the legal duty that the Defendant owed to her to keep the floor
dry and safe , alternatively that the Defendant acted negligently in failing to
do.
[9.] It is further averred that at the time of the incident, the Defendant was
represented by its employees, acting within the course and scope of their
employment with the Defendant.
[10.] The Defendant raised a Special Plea of Non -joinder of Shoprite Holdings Ltd
(“Shoprite” or “ Third party”), and pleaded that at the time of the incident, the
Defendant was an independent contractor appointed by Shoprite, which
controls the premises, to perform general cleaning duties on its premises. I t
is pleaded that th e failure to join Shoprite amount s to a non -joinder of a party
who has a direct and substantial interest in the action.
[11.] In the Plea on the merits , the Defendant denied liability and pleaded that the
breach did not cause nor contribute to the incident, alternatively that the
Plaintiff failed to keep a proper lookout and was therefore solely negligent in
causing the incident , further alternatively, it is her contributory negligence
that caused her to slip and fall . The Plaintiff’s claim should on that basis be
apportioned in accordance with the Apportio nment of Damages Act, 34 of
1956.
[12.] On or about 12 October 2023, the Plaintiff filed her Replication wherein she
pleaded that the Defendant was an independent contractor and was
therefore solely liable for the spillages on the floor of the premises. On 31
October 2023, the Defendant’s attorney provided the Plaintiff ’s attorney with
a copy of a witness ’ statement, on a without prejudice basis, advising that
the pool of water was caused by a blocked fridge drain.
The Joinder application
[13.] Subsequent to obtaining the aforementioned witnes s’ statement on 3 1
October 2023, the Plaintiff lodged the current application for joinder of
Shoprite , the Third party herein, as the second Defendant in the main action .
[14.] In the Founding affidavit, the Plaintiff’s attorney of record , Christian Petrus
Smit, duly authorised by her to depose to the affidavit , avers that the
Defendant was an independent contractor employed by the Third party to
keep the floor of the premises clean and dry, and that at the time of issue of
Summons, the Plaintiff was not aware of the origin of the pool of water that
caused her to fall . She later learnt that the water accumulation was due to
the blocked fridge drain inside the Shoprite store . It is further averred that the
Third party has a direct and substantial interest in the action, notwithstanding
that the Defendant was appointed as an indepe ndent contractor .
[15.] Furthermore, it is pleaded, that the determination of the dispute between the
Plaintiff and the Third party involves substantially the same issues of law and
facts as against the Defendant .
[16.] In its opposition to the Joinder application, the Third party filed an affidavit,
deposed to by its attorney of record, Lekwalo Jones Ditsela . The essence of
the said affidavit is that :
16.1. the Plaintiff’s claim in the main action constitutes a “ debt” as
envisaged in the Prescription Act, 68 of 1969 (as amended) (“the
Prescription Act”), which is subject to the 3(three) years period of
prescription;
16.2. the Plaintiff acquired knowledge of the identity of the debtor (Third
party), wh en the debt arose, being t he date of the alleged slip and
fall on 11 April 2020;
16.3. in the premises, the Plaintiff’s claim prescribed on 10 April 202 3;
16.4. consequently, there would be no purpose to join the Third party to
the main action, under circumstances where the claim of the Plaintiff
has, in terms of Sections 10,11 and 12 of the Prescription Act,
already become prescribed.
[17.] The essence of the facts pleaded in the Replying affidavit is that:
17.1. she was not aware that the pool of water was caused by a blocked
fridge drain until 31 October 2023;
17.2. the Defendant’s Special Plea and Plea on the merits did not specify
that the pool of water was caused by a blocked fridge drain;
17.3. it was further pleaded in the Special Plea that Shoprite has a direct
and substantial interest in the action as it was in control of the
premises at the time, and had appointed the Defendant as an
independent contractor to perform general cleaning services at the
premises;
17.4. that considering the knowledge that the Plaintiff had at the time of
issue of Summons, and after service of the Defendant’s Special Plea
and Plea on the merits, no grounds existed for the Third party to
have been cited as the Second Defendant in the action;
17.5. furthermore, without being advised that the pool of water had been
caused by a blocked fridge drain, the Plaintiff would have had no
reason to issue summons against the Third party; and
17.6. the period of prescription against the Third party commenced on 31
October 202 3 after the Plaintiff became aware of the minimum facts
which establish an action against the Third party.
Submissions of the parties
[18.] It is important to highlight the submissions made by the parties , in addition to
the averments made in the affidavit s of the Plaintiff and the Third party in
order to consider whether the Plaintiff has made out a case as envisaged in
the provisions of Rule 10(3) of the Uniform Rules of Court .
The Plaintiff
[19.] Counsel for the Plaintiff, Mr A.J. d u Toit, limited his submissions to the legal
principles applicable in determining the liability of a principal in instances
where the former had appointed an independent contractor to execute duties
on behalf of the principal, on his premises, and the circumstances which
would render the principal, in this case the Third party , liable. In this regard ,
he relied on the case of Chartaprops 16 (Pty) Ltd and Another v Silberman1,
where Nugent JA held that a Defendant is liable for harm that arises from the
negligent conduct on the part of an independent contractor from the breach
of the Defendant’s own duty, in circumstances where a reasonable
possibility of harm occurring ought to be foreseen in accordance with the
classic test for negligence .
[20.] It was further contended on behalf of the Plaintiff that the Plaintiff’s claim
against the Third party has not prescribed as she only became aware that
she had a claim against the Third party on 31 October 2023 , when the
Defendant’s attorney provided her attorney with a copy of a witness’
statement, on a without prejudice basis, advising that the pool of water in
which the Plaintiff slipped and fell , was actually caused by a blocked fridge
drain, which caused the water to flow onto the floor of the premises.
[21.] Furthermore, Mr du Toit contended that the Plaintiff was not aware that the
pool of water had been caused by the said blocked fridge drain, for which the
Third party would have been responsible. On this basis, he relied on the
provisions of Section 12(3) of the Prescription Act, which stipulates that:
“a debt shall not be deemed to be due until the creditor has knowledge of
the identity of the debt or 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 ”.
[22.] On this basis, he further contended that at no point in time before 31 October
2023, was the Plaintiff advised that it was the blocked fridge drain, for which
1 Chartaprops 16 (Pty) ltd and Another v Sillberman 2009 (1) SA 265 (SCA) at para [7]
the Third party was responsible, that had caused the water to accumulate
and pool on the floor of the premises.
The Third party
[23.] It was contended on behalf of the Third party by Mr L.I. Ditsela that the
notice of joinder issued by the Plaintiff in terms of Rule 10(3) is not a process
as intended in Section 15(1) of the Prescription Act, which provides that:
“15. Judicial inter ruption of prescription
(1) The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt ”.
[24.] In the premises, Mr Ditsela contended, the Joinder application does not , and
has not interrupted the running of prescription. The numerous judgments the
Court was referred to, focused on whether the service of the Joinder
application interrupted prescription or not , and do not deal with the
provisions of Rule 10(3) .
[25.] It was further contended on behalf of the Third party that as the service of
the Joinder application on the Third party did not interrupt prescription, the
Plaintiff’s claim prescribed on 10 April 2023.
[26.] Consequently, the joinder of the Third party as the second Defendant in the
main action would serve no purpose.
The issues
[27.] The key issues that arise herein regarding the joinder sought, are the
following:
27.1. does the determination of the dispute between the Plaintiff and
the Defendant, involve the same questions of law and fact that
would arise in the dispute between the Plaintiff and the Third party
and?; if so
27.2. does the Third party have a direct and substantial interest that is a
legal interest which may be affected prejudicially by the judgment
of the Court ?.
Applicable legal principles
[28.] In the locus classicus case of Amalgamated Engineering Union v Minister
of Labour2, the Appellate Division (as it then was) , emphasised the
importance of joinder of parties in promoting efficiency and fairness in legal
proceedings , while also recognising the need to balance this with
considerations of practicality and prejudice . It was held that:
“… the Court has consistently refrained from dealing with issues in which a
third party may have a direct and substantial interest , without either having
that party joined in the suit or, if the circumstances of the case admit of such
course , taking other adequate steps to ensure that its judgment will not
prejudicially affect that party’s interest s”.
[29.] In Herbstein and Van Winsen’s The Civil Practice of the High Courts the
Supreme Court of Appeal South Africa , by Van Winsen, Cilliers and Loots,
the learned authors supply a useful summary of the approach of th e court in
the Amalgamated Engineering case supra , in determining, by way of two
tests, whether a third party has a direct and substantial interest in the
outcome of litigation. The learned authors stated as follows3:
“The first was to consider whether the third party would have locus standi to
claim relief concerning the same subject matter. The second was to examine
whether a situation could arise in which, because the third party had not
been joined, any order the Court might make would not be re s judicata
against him, entitling him to approach the court again concerning the same
2 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 7 (A) at 659
3 Cilliers et al Herbstein and Van Winsen : The Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa 5th ed (2009) at 218
subject matter and possibly obtain an order irreconcilable with the order
made in the first instance”.
[30.] Navsa JA, in a unanimous judgment of the Supreme Court of Appeal, in the
case of Transvaal Agricultural Union v Minister of Agriculture and Land
Affairs and Others4, reaffirmed the legal exposition regarding joinder of
parties enunciated in the Amalgamated Engineering case supra , and the
elaboration thereof by the aforementioned learned authors.
[31.] This Common law principle has been codified in Rule 10(3) , which provides
that:
“several defendants may be sued in one action either jointly , jointly and
severally, separately or in the alternative, whenever the question
arising between them or any of them and the Plaintiff, or any of the
Plaintiffs , depends upon the determination of substantially the same
question of law or fact which, if such defendants were sued separately,
would arise in each separate action ”.
[32.] In the case of Matjhabeng Local Municipality v Eskom Holdings Ltd5, the
Constitutional Court confirmed the correctness of the aforestated legal
position as follows:
“The law on joinder is well settled. No Court can make findings adverse
to any person’s interests, without that person first being a party to the
proceedings before it ”
[33.] The case of Watson NO v Ngonyama and Another6, echoed the legal
principle enunciated in the Amalgamated Engineering and Matjhabeng
judgment s supra as follows :
4 Transvaal Agricultural Union v Minister of Agriculture and Land Affairs and Others 2005 (4) SA 212
(SCA) at paras 64 to 67
5 2018 (1) SA 1 (CC) at para [92]
6 Watson NO v Ngonyama and Another 2021 (5) SA 559 (SCA) at [51] to [53]
“This Court has consistently insisted from as far back as 1949 , that it
would not deal with matter s where a third party that may have a direct
and substantial interest in the litigation was not joined in the suit, or
where adequate steps could not be taken to ensure that its judgment
will not prejudicially affect that party’s interests. It is clear that an order
without the involvement of such a party will not be res judicata against
it”7.
Evaluation
[34.] It is important to point out that the Plaintiff’s affidavit in support of the Joinder
application does aver that the Third party does have a direct and substantial
interest in the pending litigation between the Plaintiff and the Defendant .
Submissions were further made in relation to the following:
34.1. the determination of the liability of the principal, being the Third
party, particularly where the principal appears to be at fault; and
34.2. the provisions of Section 12(3) of the Prescription Act as to
whether the Plaintiff’s claim against the Third party ha s prescribed
or not .
[35.] The Third party’s Opposing affidavit and submissions made, on the other
hand, focused on the issue of prescription, particularly the following :
35.1. when did the prescription period start running in respect of the
Plaintiff’s claim against the Third party, and whether it was ever
interrupted;
35.2. did the Plaintiff’s knowledge that the incident occurred at the
Shoprite store, Crown Centre, Barberton , constitute minimum
facts of the identity of the Third party, and knowledge as
contemplated in Section 12(3) of the Prescription Act.
[36.] The submissions made by the parties no doubt dealt with substantive issues
which are relevant for the determination of the dispute in the main action .
7 See also: Old Mutual Assurance Company (SA) Ltd and Another v Swemmer 2004 (5) SA 373 at
para [12]
[37.] It is apposite to state that this Court has the inherent power to mero motu
consider, on the totality of the facts before it, whether the Third party has a
direct and substantial interest, that is a legal interest in the subject matter of
the litigation , or not, for the relief sought by the Plaintiff to be granted. The
pertinent facts considered are :
37.1. the Defendant was appointed by the Third party as an
independent contractor, to keep the floors of the premises clean
and safe;
37.2. the pool of water that accumulated in front of the fridge, that the
Plaintiff alleges, caused her to slip and fall, resulting in injuries,
was as a result of a blocked fridge drain, for which the Third party
was allegedly responsible; and
37.3. the Plaintiff lodged the application for joinder of the Third party in
the main action, after she acquired knowledge regarding the
cause of the pool of water, when her attorney was provided with
the witness’ statement by the Defendant’s attorney.
[38.] It is appropriate to state that the argument advanced on behalf of the Third
party regarding the issue of prescription of the Plaintiff’s claim is clearly
indicative that , the former does have a direct and substantial interest in the
subject matter of the litigation between the Plaintiff and the Defendant .
[39.] The first issue for consideration by the Court should therefore be, whether
the dispute between the Plaintiff and the Defendant, and that between the
Plaintiff and the Third party, involve s the determination of the same
questions of law ; and secondly, whether a situation could arise in which,
because the Third party had not been joined, any order the Court might
make would not be res judicata against him /her, entitling him /her to
approach the Court concerning the same subject matter .
[40.] I therefore have no reason to depart from the legal principle applied in the
Amalgamated Engineering case supra , as it is now trite that the law
regarding joinder of parties is settled.
[41.] This Court further finds that the argument of prescription of the Plaintiff’s
claim against the Third party, presented on the latter’s behalf, constitutes a
defence which may be raised by way of a Special Plea or otherwise, in the
pending litigation , and is not a factor to be considered in an application
contemplated in Rule 10(3) .
[42.] In light of the foregoing facts and the authorities cited , I am satisfied that the
Plaintiff has succeeded in satisfying the requirements for joinder as set out in
Rule 10(3).
[43.] In the result, the following order is made :
1. the Third party is hereby joined as the second Defendant in the main
action ;
2. the complete set of Pleadings and amended Particulars of claim in
the main action are to be served on the Third party within 10(ten)
days of the date of this order;
3. the Third party is hereby directed to serve its Notice of intention to
defend, within 10 (ten) days of service upon it, of the set of
Pleadings and Particulars of claim, on the Plaintiff’s attorneys of
record;
4. thereafter, and within 20 (twenty) days after filing and serving its
Notice of intention to defend as aforesaid, the Third party is directed
to file with the Registrar of this Court, and serve upon the Plaintiff’s
attorney a Plea or Exception, with or without a Counterclaim;
5. the costs of this application be paid by the Third party on a party and
party scale.
L.M. MONTSHO -MOLOISANE
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Date heard: 13 February 2025
Judgment delivered: 11 March 2025
Appearances
For the Applicant: Adv A.J. du Toit
instructed by: DSC Attorneys
CAPE TOWN
C/O Pieter Swanepoel Attorneys
NELSPRUIT
For the Third party : L.J. Ditsela
instructed by: Ditsela Inc. Attorneys
CENTURION PRETORIA
C/O Marule Attorneys
NELSPRUIT