IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case numb er: 14048/2022
Date of hearing: 29 April 2025
Date delivered: 7 May 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE
SIGNATURE
In the application between :
HAN, FANG Applicant
and
FIRST NATIONAL BANK LTD First Respondent
and 59 others
and
NATIONAL SECURITY & FIRE (PTY) LTD Third Party
__________________________________________________________
JUDGMENT
SWANEPOEL J:
[1] The applicant is the twenty second plaintiff in an action for damages against
the first respondent in which there were originally sixty plaintiffs . The action arises
from a burglary at the first respondent’s Randburg branch on 16 December 2016
when thieves broke into the premises and gained access to the plaintiffs’ safety
deposit boxes. Allegedly goods of the applicant to the value of R 38 million were
stolen.
[2] The applicant seeks an order in terms of Uniform Rule 10 (5), that her action
be separated from the action brought under the above case number. Initially all of
the plaintiffs were represented by Trudie Broekman Attorneys. In the interim a
number of plaintiffs have appointed other attorneys . The claims of four plaintiffs were
separated previously by default. There are now four attorneys on record for the
plaintiffs. Three plaintiffs are not represented.
[3] The applicant says that the matter has been delayed due to the lack of
coordination and cooperation between the various attorneys. The applicant says that
a pre -trial conference was held in May 2024. Weinstein & Associates, who
represent s forty three plaintiffs did not participate in the meeting, and have done
nothing since to bring the matter to a resolution. It is clear that there has been a
substantial delay in the matter, and the fact that the plaintiffs are now represented by
multiple attorneys will inevitably delay the matter even further , says the applicant .
[4] The applicant alleges that the issues between her and the first respondent are
distinguishable from the issues between the first respondent and the other plaintiffs.
Analyses of the applicant’s amended particulars of claim reveals the following:
[4.1] The applicant alleges that she entered into a partly written, partly oral
agreement of depositum with the first respondent. One of the oral/tacit terms
that the applicant alleges is that the safety deposit box would be safeguarded
at the first respondent’s Fourways branch, and would not be moved from
there. Alternatively, if the box were to be moved, it would be moved to a
facility as secure as the Fourways branch.
[4.2] It is evident that the applicant would be required to testify as to the
alleged oral, possibly tacit terms of the agreement.
[4.3] The applicant also alleges that clause 2 of the written part of the
agreement, a non -liability clause, is contrary to the provisions of the
Consumer Protection Act, 68 of 2008 (“the CPA”) , and specifically that it
contravenes section 48 (2) (a), section 49 section 51 (1) (b), section 51 (1) (c)
(i) and (ii). The applicant alleges that clause 2 stands to be severed from the
agreement.
[4.4] In a further alternative, the applicant claims that clause 2 is unfair,
unjust and contrary to public policy.
[5] The applicant claims, firstly, that the first respondent breached the agreement
by moving the safety security box to its Randburg branch. Secondly, the applicant
claims that first respondent breached the agreement by failing to mitigate or prevent
the possibility of theft. Thirdly, the applicant alleges that the first respondent owed
the applicant a duty of care, which it has breached.
[6] The first respondent denies that there were any terms agreed upon other than
those reflected in the written portion of the agreement. That means that the applicant
will have to testify in order to prove her case.
[7] The remaining plaintiffs have pleaded that that they all entered into written
agreements with the first respondent. There are, apparently, two different contracts
pleaded , one of which contained clause 2, the non -liability clause . The remaining
plaintiffs also plead that those agreements that contain clause 2 contravene section
51 (1) (c) (i) and (ii) of the CPA. The remaining plaintiffs also rely upon misleading or
deceptive representations concerning the level of security offered by it. In respect of
the latter issue, each plaintiff would have to testify.
[8] The applicant does not rely on misleading or deceptive misrepresentations.
On this point the applicant’s case diverges from the remaining plaintiffs. She would,
therefore, be obliged to appoint a legal team who would have to sit through the viva
voce evidence of some fifty five plaintiffs. Even if each witness’ evidence took half -a-
day to complete, which is a conservative estimate , that would mean that the
applicant would have to commit to funding some 27 days’ litigation on an issue which
has no bearing on her case.
[9] The remaining plaintiffs also rely on the allegation that the plaintiffs were
supplied with unsafe goods or products, or products that contained a failure, defect
or hazard. The applicant does not rely on this averment, and would be required to
commit a legal team to participating in the trial on evidence that has no relevance to
her claim.
[10] Finally, each plaintiff would have to lead evidence relating to the items that
they stored in their safety box and the value thereof. That could, result in evidence
being led, potentially at length, on aspects relating to one plaintiff, in which the other
plaintiffs have no interest, but are forced to be represented at court.
[11] The first respondent opposes the application on the basis that a separation
would result in a multiplicity of trials. Different cases would require different judges to
hear the matters, with the resulting strain on scarce judicial resources. The applicant
argues that whether one judge is committed to a months’ long trial, or different
judges are committed to shorter trials is irrelevant. In my view there is some merit to
this argument.
[12] The first respondent also says that multiple trials would result in additional
legal costs being incurred. That may be so, but it is an unfortunate consequence of
multiple plaintiffs seeking damages against it.
[13] The first respondent also contends that multiple trials ran the risk of different
findings being made on the issues. As far as factual findings are concerned, each
case will be decided on its own facts. As far as the legal issues relating to the CPA is
concerned, if a finding is made by a court, that finding would be taken into
consideration by a court hearing a later matter. It is unlikely that multiple
contradictory judgments would result.
[14] In De Polo v Dreyer 1990 (2) SA 290 (W) the court set out a number of factors
that may be considered in a separation application, although, it seems to me, each
case must be decided on its own merits. The court said, at 295 H:
“The factors relevant to the exercise of a discretion must, in my view, vary
from case to case and depend in large measure, if not entirely, on the
circumstances of the case and the matter in respect of which a discretion is to
be judicially exercised. In the present case, there being no guidance in regard
to rule 10 (5), I would suggest, not necessarily in order of importance, that the
following are the relevant factors:
(1) prejudice to the opposite party if a separation of trials is ordered;
(2) the interests of the applicant in seeking to enforce his remedy;
(3) the question of possible lengthy delay if the separation is refused, as
compared with the probable minimal delay if a separation is ordered;
(4) question of costs, including , particularly, the salvage of costs already
incurred in the matter;
(5) additional costs, if any, which will be occasioned by a separation of trials;
(6) the bona fides of the applicant;
(7) the circumstances that have given rise to the application, including any
fault on the part of [the applicant] or any other conduct or omission which
has led to the necessity for an application;
(8) the balance of convenience, although this may well be covered by items in
the preceding catalogue.”
[15] In my view, the factors that weigh heavily in favour of the applicant are the
following:
[15.1] The case of the applicant is somewhat distinguishable from the
cases of the other plaintiffs .
[15.2] If the plaintiffs were to remain consolidated in one trial it would have
the result that at different stages of the trial the court would be concerned with
evidence relating to one plaintiff, whilst the remaining plaintiffs are forced to
participate in the trial.
[15.3] The trial has already been delayed for some years, and it seems at
present that there is little interest of the attorneys representing the majority of
the plaintiffs to bring the case to trial. It is all good and well to argue that there
are court procedures available to force a party to trial, but there can be no
doubt that if a party is recalcitrant it would inevitably lead to long delays.
[15.4] The fi rst respondent has the resources to fund extensive litigation. In
contrast, the applicant is a private person who may not be able to fund
months’ long litigation.
[16] In my view, whilst I attempt to balance the interests of both the applicant and
the first respondent, I find that it would be in the interests of justice to grant the order.
[17] Both parties were represented by senior and junior counsel. In my view a
separation application is not complicated, and does not warrant the attention of two
counsel. This application, especially, although no doubt of importance to both
parties, was not especially voluminous. I have been asked to grant a costs order on
Scale C, which is what I will do, but only in respect of one counsel.
[18] I make the following order:
[18.1] The applicant’s action under case number 33511/2018 is separated
from the action of the first to eighth, tenth to thirty -eighth, fortieth to forty -
seventh, forty -ninth, fiftieth and fifty -second to sixtieth plaintiffs, under a new
case number to be issued by the Registrar.
[18.2] The first respondent shall pay the costs of the application on Scale
C.
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Counsel for the applicant: Adv. A Rafik Bhana SC
Adv S Sephton
Instructed by: Knowles Husain Lindsay Inc.
Counsel for the first respondent: Adv A.E. Bham SC
Adv L Sisilana
Adv. L Makhabela
Instructed by: Edward Nathan Sonnenburg
Heard on: 29 April 2025
Judgment on: 7 May 2025