IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
BOITUMELO LEKALAKALA
and
KRAMER WEIHMANN INC
and
PETRUS JOHANNES JOUBERT Reportable
Case no: 5087/2023
PLAINTIFF
DEFENDANT
THIRD PARTY
Neutral citation: Lekalakala v Kramer Weihmann Inc and PJ Joubert
(5087/2023) [2025) ZAFSHC 187 (20 June 2025)
Coram: Greyling-Coetzer AJ
Heard: 20 March 2025
Delivered: 20 June 2025
Judgment by: Greyling-Coetzer AJ
Civil procedure -Third party -Special pleas -Lis pendens -Non-joinder -
Whether the Defendant's failure to issue third party notices against all potentially
liable co-directors constitutes a material non-joinder -Consideration of the
applicability of section 34(7)(c) of the Legal Practice Act.
2
ORDER
1. The third party's special plea of non-joinder is dismissed.
2. The third party's special plea of !is pendens is upheld.
3. The action under case number 5087/2023 are stayed pending the final
determination of the action under case number 3645/2022.
4. The costs of the stated case are to be paid as follows:
4.1 the third party to pay the cost of the plaintiff; and
4.2 the defendant and third party are to pay their own cost.
5. The cost in respect of the hearing of 28 January 2025 are cost in the cause.
JUDGMENT
GREYLING-COETZER AJ
[1] This stated case arises in the context of a tri-party proceeding involving a
plaintiff, a defendant and a third party. The court is called upon to determine the
merits of two special pleas advanced by the third party. Central to the determination
is whether, in seeking indemnification from a third party who is alleged to be one of
several directors ex lege jointly and severally liable for the debts of the defendant,
the defendant is required to join all such directors to the proceedings .
[2] The plaintiff claims repayment from the defendant of an amount of R175
000.00 paid to the defendant as purchase price in respect of an immovable property
transaction which did not materialise.
[3] The defendant issued third party proceedings against a former shareholder
and director. The defendant seeks an indemnification, alternatively a conditional
order against the third party, directing the third party to pay the defendant any amount
the court orders the defendant to pay to the plaintiff.
(4) In addition to pleading over, the third party raised several special pleas
against both the plaintiff and the defendant.
[5] On 28 January 2025 Nemavhidi AJ, and by agreement between the parties,
ordered that the third party's special pleas of /is pendens and non-joinder be
adjudicated by way of a stated case as contemplated in Uniform Rule 33(1).
Relevant common cause facts per the stated case
[6] At all times relevant and material to the plaintiffs action and the third-party
proceedings, the defendant was a commercial juristic entity conducting a legal
practice as contemplated by and/or subject to s34(7)(c) of the Legal Practice Act, 28
of 2014 ('the LPA'). The defendant initially and/or previously conducted a legal
practice contemplated by s23 of the now repealed Attorneys Act, 53 of 1979 ('the
Attorneys Act').
[7] The defendant conducted a legal practice as a personal liability company as
contemplated in the Companies Act 71 of 2008 ('the 2008 Companies Act').
[8] At the time when the plaintiff deposited the amount of R175 000.00 with the
defendant, the defendant had several shareholders as directors, including the third
party. The remaining shareholders , as directors, as the case may be, of the defendant
are not cited or joined by the plaintiff or defendant as parties in these proceedings
('the non-joined parties').
[9] Prior to the current action and on/or about 29 July 2022, the defendant
instituted action proceedings in this court under case number 3645/2022 against the
third party ('the first action'). In the first action the defendant in casu is the plaintiff
and the third party in casu is the first defendant.
[1 O] In the first action the defendant claims from the third party an amount of R 14
652 787 .28, and in support and computation of the defendant's claim, the defendant
relies on annexure "POC1" which lists the AJS file number, the seller's names, the
purchaser's names, the date of the first irregular transaction, the date of the last
irregular transaction, the total trust deficit and the amo1:,1nt already paid by the
defendant. 3
[11] Included in the claim of the defendant in the first action, is the amount claimed
by the plaintiff in this action for which the defendant now seeks indemnity from the
third party.
[12] The first action is still pending in this court and has not been adjudicated
and/or finalised.
[13] The parties placed the following relevant documents before court in the
stated case: (i) the defendant's amended particulars of claim and annexure "POC1"
as filed under case number 3645/2022; (ii) the plaintiff's particulars of claim; (iii) the
defendant's plea; (iv) the third party notice and statement of claim against the third
party; (v) the third party's special plea and plea over and (vi) the signed Rule 37
minutes.
[14] The issues to be decided as defined by the parties are: (i) whether the plaintiff
and/or the defendant were required to institute an action and/or third-party
proceedings against the non-joined parties; (ii) whether the third party's special plea
relating to non-joinder constitutes a material non-joinder of parties to this action; (iii)
whether the third party's special plea of /is pendens is successful to the effect that
the plaintiffs claim, alternatively the defendant's third party claim, should be
dismissed alternatively stayed pending finalisation of the first action.
The parties' contentions per the stated case
(15] The plaintiff submits that the third party's special plea of non-joinder is not a
competent defence in the present proceedings, as no relief is sought by the plaintiff
against the third party in this action. Furthermore, the plaintiff contends that while the
third party's special plea of /is pendens may be applicable as a defence in the
separate proceedings between the third party and the defendant, it is not a proper
plea in the current matter between the plaintiff and the defendant, given that the
plaintiff asserts no claim against the third party herein.
(16] The defendant submits, in relation to the special plea of non-joinder, that it
was within the plaintiff's discretion to join or not to join the parties who were not cited
in the present action. The defendant further avers that there was no obligation upon
it to institute third-party proceedings against any party other than the third party. 4
[17] In respect of the special plea of /is pendens, the defendant submits that it will
abide by the decision of the court. However, it maintains that the third party is not
entitled to seek the dismissal of the defendant's third-party claim on the basis of the
pending prior action under case number 3645/2022. At most, the defendant
contends, these proceedings may be stayed.
[18] The third party contends, in relation to the special plea of non-joinder, that in
terms of s34(7)(c) of the LPA should the court find (i) that the defendant is liable in
respect of the alleged debt and/or (ii) that the third party is liable in respect of the
alleged third-party debt, then the parties who have not been joined are likewise jointly
and severally liable with the defendant and the third party. Such joint and several
liability, the third party submits, arises automatically and ex Jege.
(19] It is contended further that, consequent to the above, the non-joined parties
have a direct and substantial interest in the subject matter(s) of the plaintiffs action
and/or the third-party proceedings, which interest would be prejudicially affected
should this court grant an order in their absence.
[20] With regard to the plea of /is pendens, the third party contends that there is
currently pending litigation namely, the first action and the present action which
involves: (i) the same parties; (ii) the same cause of action in that both require the
determination of certain common facts and/or points of law; (iii) the same subject
matter and (iv) a claim for overlapping or similar relief.
[21] At the hearing the third party abandoned the relief initially sought against the
plaintiff, while maintaining its view that the special pleas of /is pendens and non
joinder could competently be raised against the plaintiff. As a result the question of
whether the third party was entitled to raise such special pleas against the plaintiff no
longer arises for determination, and I accordingly refrain from making any finding in
that-regard.
Discussion
[22] The first two issues for determinat ion namely, (i) whether it was incumbent
upon the plaintiff and/or the defendant to institute proceedings , either by way of action
or third-party notice, against the non-joined parties; and (ii) the third party's resultant
special plea of non-joinder is interrelated and will accordingly be addressed together. 5
(23) In Judicial Service Commission and Another v Cape Bar Council and
Another1, the court held that: '[12) It has now become settled in law that the joinder of a
party is only required as a matter of necessity -as opposed to a matter of convenience -if
that party has a direct and substantial interest which may be effected prejudicially by the
judgement of the Court in the proceedings concerned (see Bowring N.O v Vrededorp
Properties CC 2007 (5) SA 239 (SCA), para [21].The mere fact that the party may have an
interest in the outcome of the litigation does not warrant a joinder plea. The right of a party
to validly raise the objection that other parties should have been joined to the proceedings,
has thus been held to be a limited one.'
[24) The test whether there has been non-joinder is whether a party has a direct
and substantial interest in the subject matter of the litigation which may prejudice the
party that has not been joined.2 In Gordon v Department of Health, Kwazulu-NataP it
was held that if an order or judgment cannot be sustained without necessarily
prejudicing the interest of third parties that had not been joined, then those third
parties have a legal interest in the matter and must be joined.
[25) The third party relies on s34(7)(c) of the LPA as the basis for his contention
that the non-joined parties are necessary parties who ought to have been joined to
the proceedings. The relevant subsection of s34 provides:
'(7) A commercial juristic entity may be established to conduct a legal practice provided that.
in terms of its founding documents ...
(a) .. .
(b) .. .
(c) all present and past shareholders , partners or members, as the case may be, are liable
fointlv and severally together with the commercial iuristic entity for -
(i) the debts and liabilities of the commercial juristic entity as are or were contracted during
their period of office; and
(ii) in respect of any theft committed during their period of office.' (own underlining)
[26] The repealed Attorneys Act has a similar provision per s23(1 )(a) which
provided that a private company may conduct a practice if such company is
2
3 2013 (1) SA 170 (SCA)
Absa Bank Limited v Naude N.O. and Others (20264/2014) [2015) ZASCA 97; 2016 (6) SA 540
(SCA) (1 June 2015)
2008 (6) SA 522; [2008) ZASCA 99 (SCA) at par 9 6
incorporated and registered as a private company under the Companies Act, 1973,
with share capital, and its memorandum of association provides that all present and
past directors of the company shall be liable jointly and severally with the company
for the debts and liabilities of the company contracted during the periods of office.
[27] The defendant is a personal liability company. Section 19(3) of the 2008
Companies Act, provides that: 'If a company is a personal liability company the directors
and past directors are jointly and severally liable, together with the company, for any debts
and liabilities of the company as are or were contracted during their respective periods of
office.'
[28] Section 53(b) of the Companies Act 61 of 1973 ('the 1973 Companies Act')
likewise provided that: 'The memorandum of a company may, in addition to the
requirements of s 52 ... in the case of a private company, provide that the directors and past
directors shall be liable jointly and severally, together with the company, for such debts and
liabilities of the company as are or were contracted during their periods of office, in which
case the said directors and past directors shall be so liable.'
[29] In Sonnenberg Mcloughlin Inc v Spiro4 the court, dealing with s53(b) of the
1973 Companies Act, held that where a private company includes in its memorandum
of association a provision that the directors and past directors shall be liable jointly
and severally together with the company for debts and liabilities of the company that
were contracted during their periods of office, the effect was two-fold: (a) creditors
would be able to hold the directors liable singu/i et in solidum for company debts and
liabilities, and (b) if a director had paid any of the company debts, he would have a
right of recourse against his fellow directors for their proportionate share.5
[30] The court in its reasoning dealt with the history of s 53(b) of the 1973
Companies Act and referred to Fundstrust (Pty) Ltd (in Liquidation) v Van Deventer6
where the history of s53(b) was traced. It held further that: 'The section had a
predecessor ins 6A of the Companies Act of 1926 -the latter section was inserted into the
1926 Act by the Companies Amendment Act 62 of 1968. The section provided as follows:
The directors and former directors of a private company limited by shares shall be liable
jointly and severally, together with the company, for such debts and liabilities of the company
4
s
6 2004 (1) SA 90 (C)
Sonnenberg Mcloughlin Inc v Spiro 2004 (1) SA 90 (C) at 97D/F
1997 (1) SA 710 (A) 7
as w ere contracted during their period of office, if the memorandum of association of the
company contains a provision to that effect.·
The insertion of s 6A proceeded from a recommendation of the Commission of Enquiry into
the Companies Act (usually referred to as the Van Wyk de Vries Commission) that provision
be made 'for a private company with the concurren t joint and several liability of the directors
for the debts and liabilities of the company'. The intention was not to impose upon directors
a liability equal to the common-law liability of partners, but rather 'to impose on them
[directors] an entirely new statutory liab/Hty and to provide creditors with an entirely new
remedy not hitherto available to them which would enable them to hold the directors liable
singuli et in solidum for company debts and liabilities before the company's liquidation'. 7
A similar intention clearly underlies s 53(b) of the present Companies Act which 'is intended
primarily for the case of certain types of private company, ie incorporated associations of
professional persons (see eg s 23 of the Attorneys Act 53 of 1979)'. (Henochsberg on the
Companies Act 5th ed vol 1 at 106.)
Section 53(b) is an empowering section .. .'8
[31] The court in Sonnenberg supra further found that s53(b) does not provide a
right of recourse to a company against its directors where the company has paid its
debts.9 In Molose NO and Others v Nonxuba and a Similar Matter10 the court held
that s19(3) of the 2008 Companies Act provides in similar tenms for personal liability
of directors as its predecessor s53(b) of the 1973 Companies Act.
[32] The Supreme Court of Appeal in Maritz and Another v Maritz & Pieterse Inc
(In Liquidation)11 cited Sonnenberg McLoughlin supra with approval. The court in
Maritz supra was concerned with the rights of liquidators of a professional company
to rely on the statutory liability per s23(1 )(a) of the Attorneys Act of joint and several
co-debtors as ground for claiming from those directors claim amounts proved by
creditors in the liquidation of the company. The court further remarked that fr was not
necessary to decide whether Erasmus J was correct in finding that s53(b) of the 1973
Companies Act does not provide a right of recourse to a company against its directors
where the company has paid its debts, as no such averment was made by the
9
10
11 Fundstrust (Pty) Ltd (in Liquidation) v Van Deventer1997 (1) SA 710 (A) at 731G
Sonnenberg McLoughlin Inc v Spiro 2004 (1) SA 90 (C) at 96H to 970
Sonnenberg McLoughlin Inc v Spiro 2004 (1) SA 90 (C) at 97O/F
2024 (3) SA 145 (EGEL)
2006 (3) SA 481 (SCA) 8
liquidators. Their case was simply reliant on a direct right flowing from s23(1)(a} of
the Attorneys Act. To interpret s23(1 )(a) as such would bring about consequences
directly opposed to the legislative intention.12
[33] Having regard to the similar worded s53(b) of the 1973 Companies Act,
s19(3) of the 2008 Companies Act, s23(1) of the Attorneys Act and s34(7)(c) of the
LPA, and employing parity of reasoning, the effect s34(7}(c) is similar and thus two
fold, as in relation to s53(b}, (a) creditors would be able to hold the directors liable
singuli et in solidum for company debts and liabilities and (b) if a director had paid
any of the company debts, he would have a right of recourse against his fellow
directors for their proportionate share, yet it does not provide recourse to a company
against its directors where the company has paid its debts.
[34] In addition to what has been stated above, a plaintiff is entitled to choose
whom to cite as a defendant, even in circumstances where multiple debtors or co
debtors may exist. If the liability is joint and several, the plaintiff may either join all the
debtors or choose a specific one.13 I see no reason why the same principle should
not apply, on an equal footing, to the defendant in the third-party proceedings
[35] In Mo/ose NO supra, the court criticised the applicant for pursuing a claim
against the directors rather than the firm of attorneys, be it for the reason that the firm
would have been in a better position to satisfy the claim than the individual directors.
[36] Although the non-joined parties may be ex Jege personally liable, the
judgment or order against the defendant will not be enforceable against them without
more. The non-joined parties are not at risk of suffering prejudice.
[37] It remains open to the third party to seek joinder or a claim for indemnification
within the framework of the third-party proceedings.
[38) For these reasons, I find that the non-joined parties do not possess a direct
and substantial interest in the subject matter of either the plaintiffs action or the third
party proceedings, such that their rights would be prejudicially affected by the
outcome.
12
13 Maritz and Another v Maritz & Pleterse Inc (In Liquidation) 2006 (3) SA 481 (SCA) par (13] and
[14]
Parekh v Shah Jehan Cinemas 1982 (3) SA 618 (D) 623 9
[39] In respect of the special plea of /is pendens. It is trite that here are three
requirements for a successful reliance on a plea of lis pendens. They are: (1) that the
litigation is between the same parties; (2) that the cause of action is the same; and
(3) that the same relief is sought in both. In Nestle (South Africa) (Pty) Ltd v Mars
lncorporated14, it was held as follows: -'[17] There is room for the application of that
principle only where the same dispute, between the same parties, is sought to be placed
before the same tribunal (or two tribunals with equal competence to end the dispute
authoritatively). In the absence of any of those elements there is no potential for a duplication
of actions.'
[40] Should the requirements of a plea of lis pendens be satisfied, it will not
automatically serve as a bar to hear the second matter. The court retains a discretion
whether or not to stay the proceedings or to hear the matter, depending on what is
just and equitable to do in the circumstances, including considerations of balance of
convenience.15 Once the requirements have been established, a factual presumption
arises that the current application is prima facie vexatious. It is then for the applicant
to satisfy the court that, despite the element being present, the balance of
convenience and equity requires the application to proceed. As the court retains an
overriding discretion to order the second proceeding to continue, notwithstanding the
establishment of the requirements, it also retains the discretion to order a stay, even
if all the elements are not present. 16
[41] A plea of lis pendens, shares similar features to the defense of res judicata,
because the underlying consideration is to ensure finality in litigation. Therefore once
a suit has been instituted, it should be finalised before another can be instituted by
the same parties, relating to the same cause of action.17 The underlying principle of
a plea of lis alibi pendens is that the dispute between the parties is already pending
before another court, rendering it inappropriate for the same dispute to be adjudicated
in the court where the plea is raised. This serves to prevent a situation in which
multiple courts may be called upon to determine the same issue, potentially resulting
in conflicting judgments.
14
15
16
17 Nestle South Africa (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) par [17]
Ferreira v Minister of Safety and Security and Another 2015 ZANCHC 14 at par {8]
Ceazer Stone S-Yam Ltd v The World of Marble and Granite 2000 CC and Others 2013 (6) SA
499 (SCA)
Nestle South Africa (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA)
[42) Although the special plea of lis pendens as raised by the third party is not
opposed in the true sense the defendant intimated that it will abode by the court
decision, therefore the merits of the special plea still warrants consideration and
determination. Before doing so it is fitting to restate the general considerations
applicable to third-party proceedings. In terms of Uniform Rule 13(5) 'The third party
shall, after service upon him of a third party notice, be a party to the action .. .'.(own underline)
[43] The third party does not become a defendant vis-a-vis the plaintiff, as there
is no /is between the plaintiff and the third party.18
[44] Uniform Rule 13(6) provides: 'The third party may plead or except to the third
party notice as if he were a defendant to the action. He may also, by filing a plea or other
proper pleading contest the liability of the oarty issuing the notice on any ground
notwithstanding that such ground has not been raised in the action by such latter party .. .'
(45] The defendant herein is the plaintiff in the first action and the third party
herein is one of the defendants in the first action.
[46] In the first action it is inter alia alleged by the defendant that: (i) the third party
breached his duties as a legal practitioner and conveyancer, including without being
exhaustive, receiving deposits in connection with conveyanc ing transactions and
acquiescing in unauthorised and unlawful payments of trust monies; (ii) the third party·
failed to comply with the principles of the common law and the standard of the
common law regarding the management , control and use of trust monies; (iii) the
third party failed to comply with the fiduciary duties and/or duty to exercise reasonable
care, skill and diligence; (iv) the third party failed to conduct the necessary due
diligence on files before authorising payments ; and (v) the third party received
deposits in connection with conveyancing transactions but failing to make any
investment. The defendant places reliance on inter alia s76 and 77 of the 2008,
Companies Act.
[47] In the first action the defendant claims payment of the amount of R14 652
787 .28. which amount includes at item 67 of "POC1" to the first action the amount of
R175 000,00 herein claimed by the plaintiff.
18 Shield Insurance Co Ltd v ZeNoudakis 1967 (4) SA 735 (E) at 739B; Swart v Scottish Union &
National Insurance Co Ltd 1971 (1) SA 384 (W) at 395H; Geduld Lands Ltd v Uys 1980 (3) SA
335 (T) at 340G-341C 11
.1
[48) In the third party claim it is inter alia alleged that the express, alternatively
tacit, further alternatively implied terms of the agreement between the plaintiff and
third party were: (i) that the third party would hold the deposit of the plaintiff in the
defendant 's trust account on behalf of the plaintiff pending the transfer of the
property;(ii) that the third party would exercise the highest possible degree of good
faith towards the plaintiff in doing so, and (iii) that the third party was expected to
exercise the degree of skill and diligence that may be expected or required from a
senior conveyancing attorney while representing the defendant in the performance
of the above-mentioned mandate.
(49] It is further alleged that the third party failed to act with the degree of skill and
diligence required of a conveyancing attorney and perform in his mandate, and more
specifically: (i) by failing to ensure that no unauthorised payments are made by his
secretary/personal assistant under his direct control as head of the conveyancing
department and appointed conveyancing attorney; (ii) by failing to property inspect
the applicable file and digest statement in order to control payments made from said
file; and (iii) by failing to ensure that the deposits be paid in an interest-bearing
account pending further instructions .
[50] The defendant seeks the third party to be held personally liable in terms of
s77(3)(B) read with s424 of the 1973 Companies Act, and in terms of a contravention
of s76 to s79 of the 2008 Companies Act.
[51) The defendant seeks an order declaring the third party personally liable in
terms of s424 of 1973 Companies Act, alternatively repayment of any amount the
court orders the defendant to be liable for, which per the plaintiffs claim is the amount
of R175 000.00.
[52] The requirement of a plea of lis pendens has been established . This brings
one to the consideration of whether, notwithstand ing the satisfaction of the
requirements for tis alibi pendens, considerations of fairness and convenience
nonetheless justify allowing the liquidation application to proceed. In Van As v
Appolos and Andere19 the court held that exercising its discretion to order the second
proceeding to proceed, the considerat ion of fairness and convenience is
fundamentally important. In Kerbel v Kerbe/2° it was held that once the requirements
19
20 1993 (1) SA 606 (C)
1987 (1) SA 562 (W) 12
for a plea of lis pendens are established, the court should be inclined to uphold it,
because it is undesirable for there to be litigation in two courts over the same issue.
[53] Having found that the requirements have been established it would have
befallen the defendant to satisfy this court that, despite the element being present,
the balance of convenience and equity requires the application to proceed. For the
reasons that the defendant abides by the court decision not such facts has been
placed before court.
[54] Notwithstanding aforesaid, the circumstances of this matter is somewhat
novel in that, although the special pleas is not raised against the action of the plaintiff,
the unavoidable consequence, from a practical perspective, is that in upholding the
special plea of lis pendens in the third party proceedings, it will stay the plaintiffs
action. This is so because there is only a single action before the court, namely the
action instituted by the Plaintiff.
[55] In MCC Contracts (Pty) Ltd v Goertzen and Others21 the Supreme Court of
Appeal dealing with a joinder in terms of Rule 13 of the Uniform Rules of Court, it
stated that 'the rule was designed to avoid a multiplicity of actions and to consolidate, in
specific circumstances, a multiplicity of issues between a number of litigants, all in a single
action' .22 The court further held that 'whether or not a /is does arise between the plaintiff
and the third party (and conceivably one could, if regard be had to subrules 7 and 8) and
even if a separation of issues occurs pursuant to subrule 9, the rule provides for only one
action, and that action is necessarily the one begun by the plaintiff. All this is plain from the
first line of subrule (1) in which the action referred to cannot be any other action than that
instituted by the plaintiff, and the fact that the references to the action or action in the latter
subrules are clearly to the action referred to in subrule (1).'23
(56] Having regard to the practical implications, the underlying principles
applicable to the plea of /is pendens, the balance of convenience, and the need to
fairly balance the rights of all three parties, I remain of the view that it is just and
equitable, in the circumstances , to stay the current action pending the final
determination of the first action.
21
22
23 1998 (4) SA 1046 (SCA)
At 1049J -1050B
At 10508/C 13
Cost of hearing of 28 January 2025
[57) Per the order of Nemavhidi AJ, the cost of the postponement stood over for
later adjudication. As such the parties were invited to address the court in this respect.
[58] For this purpose, the parties compiled a bundle of correspondences which
was submitted by agreement for this court to consider in adjudicating this issue.
[59] From the submissions by the parties and aforesaid bundle it appears that the
trial was enrolled for one day and for the purpose of adjudicating the special pleas
only. Leading up to the hearing the parties conducted a pre-trial meeting on 7 August
2024. The draft pre-trial minute was circulated, and various comments ensued
thereupon during the month of August 2024.
[60] In the signed pretrial minute of 24 August 2024, the parties agreed that the
special pleas of non-joinder and /is pendens should be adjudicated upon first. It was
further recorded that the third party himself may be called as a witness and reserves
his right whereas the plaintiff and defendant did not envisage calling any witnesses
also reserving their respective rights.
[61] A week before the trial was to commence on 28 January 2025, the plaintiff's
attorneys of record directed correspondence to the remaining parties, seeking clarity
in respect of the manner in which the third party intends to present his case. Specific
clarity was sought as to whether the third party intends to lead oral evidence. Various
written and telephonic exchanges then took place on the issue and in order to
establish a suitable date and time for the respective counsel to engage one another.
It appears, due to the parties' counsel's various schedules , that such an engagement
never took place.
[62) On 27 January 2025, the third party's attorneys of record suggested that a
stated case be prepared and that the matter be postponed to the opposed motion
roll. In response the plaintiff's attorneys indicated that the proposal and request for a
postponement were belated and that the plaintiff does not agree thereto. On the day
of the hearing all parties were ready proceed, and the third party again proposed that
the special please be determined by stated case.
[63] At the hearing the parties agreed that a stated case should be prepared. The
matter initially stood down for two hours with the intention to prepare the stated case, 14
but the defendant was of the view that said time was not sufficient to fully prepare
same. By agreement the matter was postponed for the preparation of the state case,
and filing of heads of argument. The costs of the postponement as reserved
[64] It bears mention that although the parties agreed as far back as August 2024
that the special pleas would be adjudicated upon separately, there was no suggestion
at that stage of a stated case and as to how the special pleas would be dealt with. All
parties reserved their rights in terms of paragraph 14 of the signed pre-trial minute to
call witnesses.
[65] In summation, the parties' respective arguments in relation to the costs of the
postponement were as follows.
[66] The plaintiff contended that the third party was dominus litis and should have
actively ensure the effective hearing of the special please. Further that the suggestion
of a stated case should have been made timeously. The plaintiff sought the cost to
be borne by the third party on scale B.
[67] On behalf of the defendant it was submitted that the proposal of a stated case
was only made on 27 January 2025, and as in the case of the plaintiff, the defendant
was of the view that clear guidance ought to have been provided earlier as to how
the special pleas would be presented to court. The defendant sought the third party
to pay the cost.
[68] On behalf of the third party it was contended that he ought not to be held
liable for the cost, as the parties actively engage pursuant to the correspondence on
20 January 2025 and attempted to ensure that the parties' counsel meet to clarify the
way forward. When the engagement between counsel did not materialise, the third
party suggest that a stated case be prepared, which suggestion was acceptable to
all the parties and which method the parties agreed to adopt.
(69) It was further contended that as all the parties were ready to proceed on the
28th of January 2025, the matter could have proceeded but for the agreement to
prepare a stated case. Up until the agreement in respect of the stated case, the
position was governed by the signed pre-trial minute, which made it clear that all the
parties reserved their right to adduce oral evidence and that the third party himself
could be a witness. The third party sought that each party pay their own cost. 15
[70] The circumstances relevant to this issue of costs do not reveal that any
particular party can be regarded as the sole cause of the necessity for the matter to
be postponed. As much as the suggestion that a stated case be utilised was made
by the third party, which consequentially led to the postponement, it remained open
to the other parties to insist on proceeding on the day set down for hearing, in which
event the postponement would not have ensued, and no cost would have been
incurred. However, the plaintiff, and later the defendant, considered the proposal and
agreed thereto. In agreeing to present the special pleas on a stated case the
defendant and plaintiff had to formed the view that it was the most suitable manner
to cause the adjudication of the special pleas. To give effect to the agreement the
matter had to be postponed.
[71] A belated proposal to curtail, alternatively attend to the issues in an expedient
manner as envisaged in Rule 33(1 ), in itself does justify a cost order against the third
party. For as far as the argument was made that said proposal should have been
forthcoming at an earlier stage, it would have been more apposite yet it was accepted
by the defendant and plaintiff. In the absence of their acceptance the matter could
have proceed and the parties would have been guided by that agreed to in the pre
trial minute, being that there may be a possibility that the third party would testify.
[72] The correspondence exchanged during January 2025 demonstrates that all
parties appear to have attempted to ensure that counsel meet, but same could plainly
not happen. For these reason, it would be appropriate that the wasted cost of the
postponement be cost in the cause.
Costs of stated case
[73] The general rule in civil litigation is that the successful party should be
awarded costs in its favour, unless there is just cause to depart therefrom.24
[74] In light of the partial success of the third party and taking into consideration
that the third party did not persist with the special pleas vis-a-vis the plaintiff, it would
be just in the circumstances that the third party pays the cost of the plaintiff, and the
defendant and third party each pay their own costs. 16
24 Mota/av Master, North Gauteng High Court [2019] ZASCA 60; 2019 (6) SA 68 (SCA) at 102G-
104C
17
[75] Given the complexity of the matter and the nature of the arguments
presented, I am of the view that it would be appropriate that counsel's fees be taxed
at scale B.
[76] Consequently, the following order is made:
1. The third party's special plea of non-joinder is dismissed.
2. The third party's special plea of tis pendens is upheld.
3. The action under case number 5087/2023 are stayed pending the final
determination of the action under case number 3645/2022.
4. The costs of the stated case are to be paid as follows:
4.1 the third party to pay the cost of the plaintiff; and
4.2 the defendant and third party are to pay their own cost.
5. The cost in respect of the hearing of 28 January 2025 are cost in the cause.
Acting Judge of the High Court
Appearances:
For the plaintiff: JS Rautenbach
Instructed by: Symmington de Kock Attorneys
For the defendant: EG Lubbe
Instructed by: Kramer Weihmann Inc
For the third party:
Instructed by: GC Steenkamp
Peyper Attorneys 18