IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 5855 /2020
In the matter between:
MG PARKIN First Plaintiff/ Respondent
EXPAN SE CC Second Plaintiff/ Respondent
ANTON WILLIE DU PLESSIS Third Plaintiff/ Respondent
ANITA DU PLESSIS Fourth Plaintiff/ Respondent
GERA KAREN VOSLOO Fifth Plaintiff/ Respondent
WALLACE LOCKWOOD VOSLOO Sixth Plaintiff/ Respondent
FREDERICK RYK LUDOLF EKSTEEN Seventh Plaintiff/ Respondent
ADANNA EKSTEEN Eighth Plaintiff/ Respondent
DANIEL FRANCOIS ANTONIE MYBURGH Ninth Plaintiff/ Respondent
RICHARD GEYER Tenth Plaintiff/ Respondent
ALWYN JOHANNES PAULUS LUBBE Eleventh Plaintiff/ Respondent
SUSANNA JOHANNA MAGRIETA LUBBE Twelfth Plaintif f/ Respondent
TERENCE ATTERBURY Thirteenth Plaintiff/ Respondent
LEON BARNARD Fourteenth Plaintiff/
Respondent
JAN CHRISTIAN BARNARD Fifteenth Plaintiff/ Respondent
HANNO SMIT Sixtee nth Plaintiff/ Respondent
CHAUNCEY HARALD REID Seventeenth Plaintiff/ Respondent
BRIDGIT HODGES Eighteenth Plain tiff/ Respondent
CRAIG HARTUNG Nineteenth Plain tiff/
Respondent
FRANCOIS HENRICO BARNARD Twentieth Plain tiff/ Respondent
and
KNYSNA LOCAL MUNICIPALITY Defendant/ Applicant
GUARD RISK INSURANCE Third Party/ Twenty -First Respondent
COMPANY LIMITED
Date of hearing : 28 January 2025
Date of judgment : 29 April 2025
JUDGMENT
HOLDERNESS J
Introduction
[1] The Knysna Local Municipality, t he applicant in this application and the
defendant in the main action (the defendant ), is seek ing an order for the separation of
issues arising from the two special pleas which it has raised, relating to non -joiner and
misjoinder ( collectively referred to as t he Special Plea ). The order is sought in terms of
Rule 33(4) of the Uniform Rules of Court.
[2] In the main action the plaintiffs claim damages from the defendant in the
amount of R17,231,184 , arising from the alleged failure by it to control a fire which
broke out in the Elandskraal area during June 2017 . The fire subsequently spread to
the plaintiffs’ properties , causing extensive damage (the action).
[3] The questions to be determined in the Special Plea are:
3.1 Firstly, whether the Eden District Municipality ( Eden Municipality) has a
direct and substantial interest in th e matter and ought to be joined as a
defendant in the action (the non -joinder plea) .
3.2 Secondly, whether the defendant bears a statutory or ot her responsibility
for fire -fighting services in genera l or in respect of fires that are the
subject of the plaintiffs’ claim . If not, the defendant pleads that it has
been misjoined in the action (the misjoinder plea) .
[4] The defendant contends that the separate determination of the se legal issues
will result in the convenien t and expeditious dispos al of the litigation. It accordingly
seeks a separation of the issues to be decided in respect of the Special Plea, and an
order staying all other issues until the Special Plea has been disposed of. The
application for a separation of issues is opposed by the plaintiffs.
The pleadings
[5] In terms of the amended particulars of claim the plaintiffs allege inter alia that:
5.1 On 7 June 2017 the Elandskraal fire (the fire) reignited under dry and
windy conditions, spreading from a farm , known as MyForest Farm , to
other properties, including plaintiffs’ immovable and movable property
(the properties) , causing extensive damage.
5.2 The prolonged uncontrolled burning of the fire on MyForest Far m, and
the spread of the fire to the properties , were caused by the wrongful
breach by the defendant and/or its employees acting within the course
and scope of their employment, of its legal and sta tutory duties.
5.3 A reasonable person or entity in the position of the defendant and under
the given circumstances would have anticipated or foreseen that their
conduct could cause damage to the properties, and would have
implemented appropriate measu res to guard against such an
occurrence .
5.4 The defendant failed to take any, alternatively adequate, or reasonable
steps to take control of the fire, and acted with gross negligence,
alternatively negligently, alternatively negligently failed to act.
5.5 The fire which spread to the plaintiffs’ properties caused extensive
damage thereto , causing the plaintiffs to suffer damages in the total
amount of R17 ,231,184.
[6] The plaintiffs’ claim is founded on the alleged wrongful and negligent breach of
a legal duty that the defendant allegedly owed to them, resulting in the damages
suffered by the plaintiffs.
The Special Plea
[7] The defendant ’s plea of non -joinder arises from the plaintiffs ’ failure to join
Eden Municipality .
[8] The defendant avers that, by virtue of s 84(1)( j) read with s 84(2) of the Local
Government Municipal Structures Act, No 117 of 1998 (the Structures Act), Eden
Municipality, the municipality in whose district the plaintiffs’ properties are situated, has
a direct and substantial interest in the matter .
[9] The defendant contends that as it does not bear any statutory or other
obligation in terms of the provisions of s 84(1)(j) read with s 84(2) of the Structures Act
to provide fire -fighting services in response to the fires that are the subject of the
plaintiffs’ claim , it has been misjoined in the action.
[10] Ms Pillay SC, who appeared on behalf of the defendant , together with Ms
Sarkas , contend ed that these are discrete questions of law that are readily capable of
separate determination with reference to the legislative framework governing the
provision of fire -fighting services.
The Structures Act
[11] In terms of section 83 (1) of the Structures Act , a municipality possesses the
functions and powers assigned to it in terms of sections 156 and 229 of the
Constitutio n of the Republic of South Africa, 1996 (the Constitution).
[12] Section 84 of the Structures Act delineates the division and distribution of
functions and powers between district and local municipalities . In terms of s 84(j), a
district municipality’s functions and powers include :
12.1 Fire-fighting services serving the area of the district municipality as a
whole , which includes -
(i) planning, co -ordination and regulation of fire services.
(ii) specialised fire -fighting services such as mountain, veld and
chemical fire services.
(iii) co-ordination of the standardisation of infrastructure, vehicles,
equipment and procedures .
(iv) training of fire officers.
[13] Section 84(2) of the Structures Act specifically provides that a local municipality
possesses the functions and powers referred to in section 83(1), excluding those
functions and powers vested in terms of subsection (1) of this section in the district
muni cipality in whose area it falls.
[14] The defendant emphasised that fire -fighting services fall under the purview of
local government, which shares concurrent legislative authority at the provincial and
national levels as outlined in Schedule 4 Part B of the Constitution. Furthermore, the
Structures Act provides for the division of powers between Category C (District
Municipalities) and Category B (Local Municipalities) on fire services matters. The
defendant asserts that their obligations should be unders tood within the framework of
the two -tier local government system.
[15] The defendant, on the other hand contends that as evidence in respect of the
special pleas would be limited only to issues of legal and constitutional competence,
such evidence may be adduced by affidavit.
[16] The plaintiffs contend that extensive viva voce evidence will need to be led on:
16.1 Witnesses’ historical dealings with the Knysna Fire Brigade and the
fighting of veldfires in the Elandskraal Area .
16.2 Witnesses’ dealings with the respective fire chiefs of the Knysna and
Sedgefield fire stations during April, May and June of 2017 .
16.3 The Fire Services Mutual Aid Memorandum of Agreement (the Mutual
Aid Agreement).
[17] On the merits , the defendant pleaded inter alia as follows:
17.1. That the fire did not fall within its area of jurisdiction and the defendant
therefore did not bear any obligation to provide fire -fighting services in
respect thereof.
17.2. That the defendant had neither the capacity nor the resources to provide
fire-fighting services on the scale required for the fire .
17.3. That a s Eden Municipality bore the duty to provide fire -fighting services,
the defendant informed Eden Municipality of the fi re and requested that it
respond to the fire .
17.4. That n otwithstanding the absence of a legal obligation to respond to the
fire and the lack of capacity to do so, the defendant:
17.4.1 Responded to the calls that were made to it in the period between
April 2017 to June 2017 about the existence of an uncontrolled fire
in the MyForest Farm area.
17.4.2 Reported the fires to Eden Municipality.
17.4.3 Reported the fires to the Western Cape Provincial Government
which declared it a Type 1 incident.
17.4.4 Put in place a Type 1 incident teams to provide assistance.
17.4.5 Reported the fires to Eden Municipality to assist in providing fire -
fighting serv ices.
17.4.5 Advised those persons reporting t he fire to report same to the
Southern Cape Fire Protection Association (S CFPA ) and provided
contact details in respect thereof and informed them to make a fire
break around the property.
Grounds upon which a separation order is sought
[18] The defendant, in support of its argument that a separation of issues will ensure
a fair, just, convenient and expeditious resolution of the action, contends as follows:
18.1 Firstly, that the plain tiffs’ allegations of wron gfulness, negligence,
breach, the existence of a legal duty, causation and damages have all
been placed in dispute .
18.2 Secondly, the pleaded case of the plaintiffs, in terms of which it alleges
that by virtue of various statutes, by -laws, and regulations, the defendant
was inter alia responsible for the co -ordinating and managing of local
disasters, including fires in that area, the rendering firefighting services
within the municipal area under its jurisdiction, and the protection of all
sectors of the community against fire. This gives rise to a distinct
question of law regarding which organ of state, specifically which
municipality bears the specific legal duties contended for in the
particulars of claim.
18.3 Thirdly, the factual matrix of the matter encompasses not only the
defendant’s legal and statutory duties, which the defendant claims are
clearly separable , but al so the origin, cause and spread of the fire, the
fire-fighting efforts that were undertaken, the extent of the damages
suffered and the cause thereof. The evidence regarding the merits will
likely involve the testimony of numerous witnesses, including expe rts in
the field.
18.4 Fourthly, all of the issues in respect of the merits of the claim may
ultimately prove to be irrelevant if the defendant succeeds on the special
pleas, as it will be dispositive of the plaintiffs’ claim against the
defendant.
The plaintiffs’ grounds of opposition
[19] Mr Baguley, who appeared on behalf of the plaintiffs, highlighted at the outset
that whereas pleas of non -joinder and misjoinder are ordinarily dilatory pleas, in this
matter , due to the issue of prescription in respect of the party not joined, namely Eden
Municipality, the Special Plea, if upheld , will be fi nal in effect.
[20] Whilst this may be correct in the circumstances of this case, in respect only of
the non -joinder plea (as misjoinder is not a dilatory plea ) it is not a factor which in my
view falls to be considered in determining whether the Special Plea should be
separated. The ordinary principles applicable to the determination of whether an issue
should be adjudicated separately fall to be applied, irrespective of whether due to
prescription such determination may be final in effect.
[21] The plaintiffs’ stance is that the determination of the Special Plea will not bring
the litigation against the defendant to an end , nor will it facilitate the expeditious
disposal of the litigation .
[22] The plaintiffs conten d that their case is not sole ly reliant upon the relevant
provisions of the Structures Act, but on other statutory and common law duties which
the defendant bore at the relevant time, and which the plaintiffs allege it wrongfully
and negligently breached. Arising from the foregoing, the plaintiffs aver that the
misjoinder plea constitutes final relief, which cannot be decided on motion.
[23] The plaintiffs additionally contend that legal and factual questions in the Special
Plea overlap and are interwoven with the issues to be determined and resolved in the
action. Consequently, the issues arising in the Special Plea cannot be conveniently
decided separately without extensive evidence being led in the action, which will result
in the bulk of the evidence i n the proposed separated hearing needing to be repeated
at the hearing in the action.
[24] Mr Baguley further contended that the Special Plea has no prospect of
succeeding, as a non -joinder plea may and can only be raised when the joinder of a
party is essential, and not merely permissible, at the instance of the plaintiff.
[25] The plaintiffs aver that the defe ndant ought to have joined Eden Municipality as
a third party . They contend th at the general rule is that a n ind ividual i s a necessary
party and should be joined only if such person has a direct and substantial interest in
any order a court might make, or if such order cannot be sustained or carried into
effect without prejudicing that party.1
[26] It is not necessary to set out all of the facts relied upon by the plaintiffs. It
should suffice to highlight the following:
26.1 The defendant served as the initial and primary government entity
responsible with delivering firefighting services throughout its municipal
area, which encompassed the plaintiffs’ properties and MyForest Farm.
26.2 Local authorities typically refrained from taking actions or neglecting to
act or fail to take actions which could allow a fire which had been burning
in its municipal area to burn or to re -ignite or spread during dry
conditions.
26.3 The defendant acted wrongfully by failing to take any or adequate steps
to contr ol and / or extinguish the fire when they were able to do so .
26.4 The defendant failed to seek timely assistance from other entities,
including Eden Municipality, the National Government or aerial
firefighting resources, or did so too late.
26.5. A reasonable person or entity in the circumstances and in the
defendant’s position would have foreseen that the described conduct
could cause damage to the properties and would have taken reasonable
measures to guard against such occurrence.
[27] The plaintiffs delivered a replication to the defendant’s plea, which included
allegations pertaining to events t hat transpired in the vicinity where the fire spread
1 Erasmus, Superior Court Practice, Volume 2, Second Ed, pages D1 , Rule 10 -2 to D1 Rule 10 -6 and
the cases referred to.
during the period from April to June 2017 . This included calls made by concerned
residents and additional facts arising from which the plaintiffs contend that the
defendant by its word and / or conduct unequivocally represented to th e plaintiffs that
it was the authority responsible for firefighting in the Elandskraal area .
[28] The plaintiffs allege that , acting on the belief of the correctness of these
representations , they were persuaded to their detriment not to report the fire to or
engage with the Eden Municipality (the estoppel defence).
[29] According to the defendant , by raising the doctrine of estoppel in their
replication, the plaintiffs have impermissibly sought to introduce an entirely new cause
of action almost six years after the incident giving rise to the claim . The defendant
contends that reliance on estoppel is not permitted where its effect would be to give
indirect validity to conduct by an organ of state wh ich is beyond the body’s power to
perform.
[30] Put differently, t he defendant contends that estoppel cannot serve as a basis
for imposing a duty on an organ of state, which is not vested with such duty under the
law. The plaintiffs’ counter to this is that none of the actions which the plaintiffs
pleaded the defendant should have taken in terms of the aforementioned statutes and
regulations would have resulted in an illegality or illegal act on the part of the
defenda nt.
[31] The plaintiffs’ stance is that :
31.1 It is trite that wrongfulness can manifest itself in different ways, not only
by the breach of a specific statutory duty. In this case, the defendant
alleges that it did not bear with reference to the Structures Act only, but
also in relation to common law right, other statutory duties beyond those
imposed by the Structures Act, and a duty of care.2
2 In this regard the plaintiffs refer to Amler’s Preced ents of Pleading, 7th ed, p 258.
31.2 A duty of care may indeed arise from the unique relationship between
the parties, the provisions of the Bill of Rights, or other relevant
legislation.
31.3 The defendant’s obligation to provide such services arose not solely in
terms of the Structures Act, but also inter alia in terms of sections 152
and 156 of the Constitution of the Republic of South Africa , the relevant
Knysna Municipality By -laws, the Disaster Management Act, No 57 of
2002, the Fire Brigade Services Act 99 of 1987 (the FBSA) and the
National Veld and Forest Fire Act, 101 of 1998.
31.4 The defendant as a member of the SCFPA was obliged to abide by the
Rules, Code of Conduct and Management Plan which inter alia entailed
that it was obliged to report sighted fires and adhere to the fire reporting
structure and actions as prescribed.
31.5 In view of the above and given the circumstances, there is no basis for
the defendant to contend that it did not owe a legal duty of care to the
plaintiffs in respect of firefighting and prevention ‘simply because of its
reliance on the Structures Act.’
Legislative framework
[32] Section 152 and 156 of the Constitution provide as follows:
‘152 O bjects of local government
(1) The objects of local government are -
(a) to provide democratic and accountable government for local
communities;
(b) to ensure the provision of services to communities in a sustainable
manner;
(c) to promote social and economic development;
(d) to promote a safe and he althy environment; and
(e) to encourage the involvement of communities and community
organisations in the matters of local government.
(2) A municipality must strive, within its financial and administrative capacity, to
achieve the objects set out in subsection (1).
156 Powers and functions of municipalities
(1) A municipality has executive authority in respect of, and has the right to
administer -
(a) the local government matters listed in Part B of Schedule 4 and Part
B of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
(2) A municipality may make and administer by -laws for the effective
administration of the matte rs which it has the right to administer.
(3) Subject to section 151 (4), a by -law that conflicts with national or provincial
legislation is invalid. If there is a conflict between a by -law and national or
provincial legislation that is inoperative because of a conflict referred to in
section 149, the by -law must be regarded as valid for as long as that
legislation is inoperative.
(4) The national government and provincial governments must assign to a
municipality, by agreement and subject to an y conditions, the administration
of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which
necessarily relates to local government, if -
(a) that matter would most effectively be administered locally; and
(b) the municipality has the capacity to administer it.
(5) A municipality has the right to exercise any power concerning a matter
reasonably necessary for, or incidental to, the effective performance of its
functions. ’
Separation of issues - Legal principles
[33] Rule 33(4) of the Uniform Rules of Court which provides for the separation of
issues provides that :
'If, in any pending action, it appears to the court mero motu that there is a
question of law or fact which may conveniently be decided either before a ny
evidence is led or separately from any other question, the court may make an
order directing the disposal of such question in such manner as it may deem fit
and may order that all further proceedings be stayed until such question has
been disposed of, a nd the court shall on the application of any party make such
order unless it appears that the question cannot conveniently be decided
separately.'
[34] The purpose of Rule 33(4) is to determine the fate of a plaintiff's claim (or one
of the claims) without the costs of a full trial :
'An important consideration will be whether or not a preliminary hearing for the
separation decision of specified issues will materially shorten the proceedings.
The convenience must be demonstrated, and sufficient information must be
placed before the Cou rt to enable it to exercise its discretion in a proper and
meaningful way.'3
[35] A court granting a separation order must direct the disposal or resolution of that
issue which it decides can conveniently be decided separately, in a manner it deems
appro priate, and is enjoined to issue a corresponding order to stay further issues until
the separated issue has been decided or resolved.4
[36] In considering whether to grant a separation order, a court will have regard and
take into account its convenience, as well as the convenience of the parties and the
potential prejudice that either party may experience if separation is granted. The court
3 CC v CM 2014 (2) SA 430 (GJ) at para [27].
4 First National Bank LTD v Clear Creek Trading 12 (Pty) Ltd and Another 2018 (5) SA 300 (SCA) at
para 8.
is obliged to order separation unless it determines that the issues cannot be
conveniently separated.5
[37] Nugent JA in Denel v Vorster6 (Denel) described the process to be undertaken
when faced with a separation application, as follows:
‘Rule 33(4) of the Uniform Rules – which entitles a court to try issues separately
in appropriate circumstances – 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 litigati on 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 litigati on 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 that it is proper to make such an
order – and in all cases it must be so satisfied before it does so – it is the duty
of that court to ensure that the issues to be tried are clearly circumscribed in its
order so as to avoid confusion. The ambit of terms like the ‘merits’ and the
‘quantum’ is often thought by all the parties to be self -evident at the outset of a
trial but in my experience, it is only in the simplest of cases that the initial
consensus survives. Both when making rulings in terms of Rule 33(4) and when
issuing its orders a trial court should ensure that the issues are circumscribed
with clarity and precision. ’
[38] It is the refore incumbent on this court at the outset to determine not only
whether a separation is convenient for the court and the parties involved, but also
whether issues which appear ex facie to be distinct are, in fact, significantly
interwoven. Furthermore, it must be considered whether it is preferable to address all
disputes in a single hearing, even if some appear to be separate.
5 CC v CM supra at para [25]
6 2004(4) SA 481 (SCA) at para 3.
[39] The duty imposed upon the court hearing a separation application was
described as follows by the Supreme Court of Appeal in Molotlegi and Another v
Mokwalase7:
‘A court hearing an application for a separation of issues in terms of rule 33(4)
has a duty to satisfy itself that the issues to be tried are clearly circumscribed to
avoid any confusion. It follows that a court seized with such an application has
a duty t o carefully consider the application to determine whether it will facilitate
the proper, convenient and expeditious disposal of litigation. The notion of
convenience is much broader than mere facility or ease or expedience. Such a
court should also take du e cognisance of whether separation is appropriate and
fair to all the parties. In addition, the court considering an application for
separation is also obliged, in the interests of fairness, to consider the
advantages and disadvantages which might flow fro m such separation. Where
there is a likelihood that such separation might cause the other party some
prejudice, the court may, in the exercise of its discretion, refuse to order
separation. Crucially in deciding whether to grant the order or not the court has
a discretion which must be exercised judiciously. ’
[40] In exercising my discretion regarding whether or not to grant the separation, I
therefore need to consider not only whether it is convenient and will facilitate the
expeditious disposal of the pending litigation, but also whether it is fair to both parties,
and the possibility of prejudice to the plaintiffs , who oppose such an order.
[41] It is trite that a court should try and avoid a duplication of evidence by pre -
empting that witnesses testify twice in the same proceedings because of the ever-
present risk of different courts arriving at different and conflicting findings of fact and
credibility.
7 [2010] 4 All SA 258 (SCA) at para 20.
[42] In NK v KM l8 the Supreme Court of Appeal cautioned against the assumption
that the ‘convenient and expeditious disposal of litigation’ would always be achieved
by a separation of issues :
‘Even though at a glance it may appear that the issues are discrete, they may
ultimately be found to be inextricably linked. The Court found that the
expeditious disposal of litigation is best [achieved] by ventilating all the issues
at one hearing.’
[43] In NK v KM9 the Court observed that in determining whether there should be a
separation, the Court should bear in mind that the ‘ expeditious disposal of issues
cannot outweigh the principle of fairness. The principle of fairness requires the
balancing of the interest of both parties.’
[44] A cautionary note was sounded by the court in Tshwane City v Blair Atholl
Homeowners Association supra , where it stated as follows :10
‘Careful thought should be given to a separation of issues and the issues to be
tried separately have to be clearly circumscribed in order to avoid confusion. A
decision on a separate issue should be dispositive of a portion of the relief
claimed and essentially should serve expedition rather than cause delay in the
resolution of the principal issue.’
[45] In Hollard Insurance Company Ltd v Coetzee and Others11 the court
summarised the factors one may have regard to in determining whether a separation
is convenient , which included the following:
’15.1. Whether the hearing on the separated issues will materially shorten the
proceedings: if not, this obviously militates against a separation.
8 2019 (3) SA 571 (GJ) para 12
9 NK v MK ibid para [13] .
10 2019 (3) SA 398 (SCA) para [2] .
11 (24120/2011) [2015] ZAWCHC 212 (6 May 2015) at para 15 , and the authorities there cited.
15.2. Whether the separation may result in a significant delay in the ultimate
finalisation of the matter: such a delay is a strong indication that
the separation ought to be refused.
15.3. Whether there are prospects of an appeal on the separated issues ,
particularly if the issue sought to be separated out, is highly controversial
and appears to be one of importance: if so, a n appeal will only
exacerbate any delay and negate the rationale for a separation .
15.4. Whether the number of court days saved by the separation weighs up
favourably against the delay that may arise between the finali sation of
the separated issues and the continuation and the remainder of the
proceedings: if as a result of a separation , the delay of the separation
may render the saving in court time less significant, the separation will
not likely be granted.
15.5. Whether t he evidence required to prove any of the separated issues on
the merits may also be required to be led when it comes to proving the
non-separated issues (i.e. witnesses leading evidence twice on the
same facts: if so, a court will not grant a separation because it will result
in the lengthening of the trial, the wasting of costs, potential conflicting
findings on facts and on credibility of witnesses, and it wi ll also hinder
the opposing party in cross -examination. ’
[46] In determining whether or not to grant a separation, I am accordingly enjoined
to carefully weigh t he advantages which may accrue to the party seeking the
separation against the disadvantages which may result therefrom.
Analysis
[47] Non-joinder is a dilatory plea. It cannot dispose of an action, but rather merely
stays it pending the joinder of necessary additional party. As a general (and trite)
principle , non-joinder is an issue that should be determined before the merits are
entered into beca use the court should not make an order affecting a necessary party’s
legal interests without notice to the affected party that enables it to participate in the
proceedings if it wishes.
[48] Misjoinder, on the other hand, is not a dilatory plea. It is a finally determinative
matter between the plaintiff and the misjoined party.
[49] In the current matter it would appear that non -joinder is being raised by the
Knysna Municipality in the alternative to its plea of misjoinder, for if it was misjoined that
is the end of its interest in the matte r.
[50] It is uncontentious that the issues which the defendant wishes to separate in this
matter are issues which arise from the pleadings.
[51] The trial on the merits will include the determination of issues of wrongfulness,
negligence, the existence and breach of legal and statutory duties, all of which are
issues which have been placed in dispute.
[52] Extensive evidence will have to be led on the merits of the matter , for the
determ ination not only of the legal and statutory duties of the defendant (and of Eden
Municipality if it is joined as a defenda nt), but also the origin, cause and spread of the
fire, the firefighting efforts undertaken and the cause and extent of the damages
suffered by the plaintiffs.
[53] A central issue which bears relevance t o both the non -joinder and the misjoinder
pleas, is which organ of state, and more particularly which specific municipality, bears
the legal duties relied upon by the plaintiffs.
[54] I agree with counsel for the defendant that this is an issue which is plainly
separable from the other issues which the court will be called upon to determine. If the
defendant is ultimately successful with its plea of misjoinder, this will be dispositive of
the plaintiffs ’ claim against it.
[55] The issue of whether Eden Municipality should properly have been joined as a
defendant should be dete rmined before th e matter proceeds on the merits.
Conclusion
[56] In the circumstances I am satisfied that the issues raised in the special plea
are not inextricably interming led with the remaining issues for determination, a
proper case has been made out for a separation adjudication of the discrete issues
raised special plea of non -joinder and misjoinder , and that it would be both fair and
convenient for these issues to be de cided first and at a separated hearing.
[57] The defendant was successful in its application and is entitled to its costs.
Counsel for both parties agreed that costs on Scale C in terms of Rule 67A(3)
would be appropriate.
[58] The following order shall issue:
1. The Defendant’s First Special Plea and Second Special Plea shall be
determined first and separately from any other questions for decision in
this action .
2. All other questions for decision in this action shall be stayed until the
Defendant’s First and Second Special Pleas have been disposed of .
3. The costs of this application shall be paid by the
defendants /respondents, jointly and severally, on Scale C, the one
paying the other/s to be absolved .
__________________
HOLDERNESS J
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
APPEARANCES
For the Applicant: Adv D Baguley
Instructed by: Cliffe Dekker Hofmeyer Inc
For the Respondent(s): Adv K Pillay
Instructed by: Klagsbrun Edelstein Bosman Du Plessis Inc
Date of Hearing : 28 January 2025
Judgment delivered on : 29 April 2025