1

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no:I 1099/2015

In the matter between:

DELANNA VAN WYK1ST APPLICANT

GAGIANO SCHNEIDER2ND APPLICANT

and

CE WUSTROW1STRESPONDENT

PALACE BAKERY CLOSE SORPORATION2NDRESPONDENT

MICHAEL MGHIILWAMO t/a TUYENI KUMUE3rd RESPONDENT

VOER AND COMMODITY DISTRIBUTERS CC4TH RESPONDENT

ST MICHAEL AUTO SPARES AND GARAGE CC5TH RESPONDENT

Neutral citation:Van Wyk v Wustrow (I 1099-2015) [2016] NAHCMD 185 (27 June 2016)

Coram:Miller AJ

Heard:08 June 2016

Delivered:27 June 2016

Flynote:Interlocutory – Joinder of Parties – Rule 40 of the High Court Rules - A party may be joined in a proceeding where whenever the dispute arising between them or any of them on the one hand and the plaintiff or any of the plaintiffs depends on the determination of substantially the same question of law or fact which - The reason for joinder is usually convenience, time, effort and costs are saved by joining parties or causes in one action instead of brining separate actions.

Summary:This is an application for the second to fourth Respondents to be joined to the proceedings between the Applicants and the First Respondent, pending under case number 1099/2015 in which the Applicants instituted legal proceedings againstthe First Respondent seeking damages arising from injuries caused to the second Applicant when a gate at the First Respondent’s premises fell on his back. The Second to Fourth Respondents are hereby joined to the proceedings between the Applicants and the First Defendant.

ORDER

  1. The Second to Fourth Respondents are hereby joined to the proceedings between the Applicants and the First Respondent.
  1. Costs stand over to be determined at Trial.
  1. The matter is postponed to the 4th of August 2016 at 15h30 for a Status Hearing.

JUDGMENT

Miller AJ

Background

[1]This is an application for the Joinder of parties, in terms of rule 40 of the High Court Rules.

[2]The Applicants ask that the second to fourth Respondents be joined to the proceedings between the Applicants and the First Respondent, pending under case number 1099/2015 in which the Applicants instituted legal proceedings against the First Respondent seeking damages arising from injuries caused to the second Applicant when a gate at the First Respondent’s premises fell on his back.

[3]The case against the first Respondent was in his capacity as owner of the property and by virtue of the fact that he conducts a business on the premises. However, the First Respondent in his plea denied that he conducted a business on the said premises at that time, and instead alleged that the persons conducting a business are persons who rent the property from him.

[4]It is apparent that three lease agreements were sent to the Applicant by the First Respondent after his Plea, where it appeared that the Second to the Fourth Respondents were all in occupation of the premises at the time when the incident occurred.

[5]On the 11 of October 2015, the Applicant filed an application to this Court to join the Second to Fourth Respondents to the proceedings instituted by the Applicants against the First Respondent under case number I 1099/2015.

[6]Subsequently, the second Respondent filed a notice to oppose the application for joinder, and thereafter, filed its answering affidavit on the 17th of March 2016 and subsequently the Applicants filed a replying affidavit.

The Application

[7]In the Applicants Heads of Argument, the Applicants allege that the Second to Fourth Respondents occupy the premises and conduct businesses on the premises in terms of the lease agreements entered into with the First Respondent. Furthermore the Applicant alleged that Second to Fourth Respondents occupy the premises and were in control of such premises at the time of the incident.

[8]In terms of the lease agreement entered between the First and Second to Fourth Respondent respectively, the First Respondent is responsible for maintenance and upkeep of the exterior of the property and to forthwith repair any structural defects which appear in the property.[1]

[9]The Applicants in their Heads of Argument further submitted that the duty owed to them as members of the public by the Respondents conducting a business on the premises is not extinguished by virtue of the contractual terms between the first and second respondents and that the Second to Fourth Respondents owed a general duty of care to the members of the public who entered upon the premises that such premises are safe and also to maintain the premises in a safe condition to prevent injury to such members of the public who enter to purchase goods from them.

[10]The Second Respondent filed a notice to oppose to be joined as a party to the proceedings. In the Second Respondent’s Main Heads of Argument, it alleged that:

‘Thus, for the applicants’ to succeed in obtaining the leave of the court to join the second respondent as a co-defendant they must, as contemplated in Rule 40, demonstrate that the question arising between them and the second respondent depends upon the determination of substantially the same question of law or fact which, if they and the second defendant, were sued separately, would arise in each separate action.’

[11]I must however note that the Third and Fourth Respondents have not opposed the application to be joined.

Issues to be determined

[12]The issue to be determined here is whether it is indeed necessary and convenient to join the Second to Fourth Respondents to the proceedings or not.

The Applicable Law

[13]In terms of Rule 40 of the Rules of the High Court, it states the following:

‘Joinder of parties and causes of action

40. (1) Any number of persons, each of whom has a claim whether jointly, jointly and severally, separately or in the alternative may join as plaintiffs in one action against the same defendant or defendants against whom any one or more of those persons proposing to join as plaintiffs would, if he or she brought a separate action, be entitled to bring that action -

(a) so long as the right to relief of the persons proposing to join as plaintiff depends on whether the court is to determine substantially the same question of law or fact which, if separate actions were instituted, would arise in such action; and

(b) joinder may be allowed by the court on condition that failure of the claim of one plaintiff does not on that very fact extinguish the claims of the other plaintiffs.

(2) A plaintiff may join several causes of action in the same action.

(3) A plaintiff may sue several defendants in one action either jointly, jointly and severally, separately or in the alternative whenever the dispute arising between them or any of them on the one hand and the plaintiff or any of the plaintiffs depends on the determination of substantially the same question of law or fact which, if such defendants were sued separately, would arise in each separate action.

(4) Where there has been a joinder of causes of action or of parties, the court may on the application of any party at any time order that separate trials be held either in respect of some or all of the causes of action or some or all of the parties and the court may on such application make such order as it considers suitable or appropriate.

(5) Any party who seeks a joinder of parties or causes must apply for such joinder to the managing judge for directions in terms of rule 32(4).

(6) If under this rule the managing judge orders the joinder to be effected he or she must simultaneously give directions as regards the time within which it should be done, service of it and further pleadings or amendment of pleadings.’

[14]Herbstein & Van Winsen in their work; The Civil Practice of the Supreme Court of South Africa[2] opine that:

‘the reason for joinder is usually convenience, “Time, effort and costs are saved by joining parties or causes in one action instead of brining separate actions. Apart from convenience, however, there are circumstances in which it is essential to join a party because of the interest that he has I the matter” ’

[15]InKhumalo v Wilkins and Another[3] Milne J, said:

‘The Court have the power at the instance of the plaintiff to direct the joinder of a defendant, if it appeared that “considerations based on justice, equity and convenience dictated that joinder should be directed or authorised” ’

[16]in the matter of Ex Parte Sudurhavid (Pty) Ltd: In Re Namibia Marine Resources (Pty) Ltd v Ferina (Pty) Ltd, HannahJ said at page 321:

‘… I understand it, the Courts do not apply the Rule in a rigid or literal manner and the test of a direct or substantial in the subject-matter of the litigation is regarded as being the decisive criterion. (See United Watch & Diamond Co Pty Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) at 416.) In my respectful opinion, the principles which apply to an application brought pursuant to Rule12 (Magistrate Court Rules) were aptly summarised in Minister of Local government and Land Tenure and Another v Sizwe Development and Others: In re B Sizwe Development v Flagstaff Municipality 1991 (1) SA 677 (Tk) as follows:

“The application must satisfy the Court that:

(i)He has a direct and substantial interest in the subject matter of the litigation, which could be prejudiced by the judgment of the Court . . .; and

(ii)The application is made seriously and is not frivolous, and that the allegations made by the applicant constitute a prima facie case or defence – it is not necessary for the applicant to satisfy the Court that he will succeed in his case or defence . . .’.

A direct and substantial interest means an ‘interest in the right which is the subject-matter of the litigation and is not merely a financial interest which is only an indirect interest in such litigation’.

[17]The Court under Common Law has a discretion to join a party to proceedings whenever convenienceso requires.[4]

Application of the Law to the Facts

[18]The Third and Fourth Respondents who did not oppose this joinder are joined as Defendants to the main case.

[19]It is trite law that the Applicants should make out a case that there is a reason for the Second to Fourth Respondents to be joined to the proceedings and that it is necessary and convenient. I am satisfied with what was submitted before me to join the Second and Fourth Respondents to the proceedings.

[20]Tenants have a residual duty in law of care and to ensure that such working premises are safe and kept in a good and well maintained condition to prevent any harm to any public member who may enter such premises.

[21]It may well be that, once the Respondents are joined to the proceedings, the Applicants will have to amend its Particulars of Claim to set out grounds on which the Second to Fourth Respondents are liable and on what basis. This does not preclude the Court from joining them at this stage.

[22]The overriding objective of the High Court as mentioned in Rule 1 of the High Court Rulesis to dispose cases in a speedy, effective and costly manner. With this said, it is my view that it is convenient that the Court decides the whole issue in one action, with all relevant parties who have a direct and/or substantial interest in the matter.

Order:

  1. The Second to Fourth Respondents are hereby joined to the proceedings between the Applicants and the First Respondent.
  1. Costs stand over to be determined at Trial.
  1. The matter is postponed to the 4th of August 2016 at 15h30 for a Status Hearing.

______

P J MILLER

Acting Judge

APPEARANCE:

APPLICANT:N BASSINGTHWAIGHTE SC

INSTRUCTED BY:Shikale & Associates, Windhoek

2nd RESPONDENT:C VAN ZYL

INSTRUCTED BY:Francois Erasmus & Partners

[1]Clause 6 of the Lease Agreement between the First and Second to Fourth Defendant.

[2]4th Edition at page 165.

[3]1972 (4) SA 470 (N) at page 474.

[4]Ex Parte Sudurhavid (Pty) Ltd: In Re Namibia Marie Resources (Pty) Ltd v Ferina (Pty) Ltd 1991 NR 316 (HC).