South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 12480/03

DATE:2004-04-05

In the matter between

HIGGS, NEVILLE............................................................................................................ Plaintiff

and

CARSON HOLDINGS LIMITED..........................................................................First Defendant

L'OREAL SOUTH AFRICA (PTY) LTD...........................................................Second Defendant

JUDGMENT

WILLIS, J: The plaintiff has claimed against a first and second defendant jointly and severally, the one paying the other to be absolved, an order rectifying an agreement by replacing it with the following:

" 1. Carson shall mean Carson Holdings Limited and its wholly owned subsidiaries, Carson Products (SA) (Pty) Ltd and Carson Products West Africa Limited.

2. By deleting "Products West Africa Limited" on page 27 of the agreement." Thereafter the plaintiff claims damages together with interest in varying amounts.

It is common cause that there was an additional party to this agreement who is not a party to the action. The defendants have raised a special plea of non-joinder. The defendant has alleged that this party who was not joined in the action, is an essential party at least for the purposes obtaining rectification of the agreement, if not in regard to the claims for damages.

The defendant has now brought an application in terms of Rule 33(4) for the adjudication of the special plea of non-joinder separately from all the other issues. It is obvious that as a general rule, if not an absolute rule, rectification of an agreement cannot be obtained unless all the parties to that agreement are brought before the court in order that their differing views may be heard and that their differing interests may be protected.

I accept for the purposes of this judgment that there may indeed be situations where the rectification is of such a nature that it cannot possibly concern a party who has not been brought before court and that in such circumstances a rectification shall be granted. Ex facie the particulars of claim in this matter I am certainly unable to conclude that the rectification which is sought in this matter is of such a nature and neither am I certain that the law would permit such rectification. Be that as it may, it is clear that it would be in the interests of the parties that this issue of the special plea of non-joinder be adjudicated separately. If it is dispositive of the issues between the parties, it will save a lot of unnecessary preparation and expense for all the litigants.

Accordingly, I grant an order in terms of prayers 1 and 2 of the notice of motion dated 30 March 2004.

ON BEHALF OF PLAINTIFF: ADV GLOVER

Instructed by:Glover Incorporated

ON BEHALF OF DEFENDANTS:ADV KAPLAN

Instructed by: Huwitz & Pashut

DATE OF JUDGMENT:5 APRIL 2004