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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

 

CASE NO: 64/2021

 

Reportable:                                            NO

Circulate to Judges:                             NO

Circulate to Magistrates:                      NO

Circulate to Regional Magistrates:      NO

 

In the matter between:

 

LERUO TRAVEL                                                     PLAINTIFF

 

And

 

MEC FOR THE NORTH WEST DEPARTMENT     DEFENDANT

OF SOCIAL DEVELOPMENT

 

DATE OF HEARING:        15 MARCH 2023

 

DATE OF JUDGMENT:     06 APRIL 2023

 

 

JUDGMENT

 

 

REDDY AJ

Introduction

 

[1]    The plaintiff, Leruo Travel is a company, duly registered as such in terms of the peremptory company laws and regulations of the Republic of South Africa giving birth to its legal existence. The defendant is cited as the Member of Executive Council (MEC) for North West Department of Social Development

 

[2]    The action was certified trial ready on 26 October 2022, resultantly it was ordered that the matter proceed to trial on 15 March 2023. On 15 March 2023, the defendant pursued with two special pleas. Counsel for both parties, were agreeable to the special pleas being first argued before the merits of the action are ventilated. This ruling therefore is confined to the special pleas that have been raised.

 

Background facts

 

[3]    On or about 19 October 2019, at Mafikeng, both parties duly represented entered into a partly written, partly oral contract. The essence of the contract was that the plaintiff had to secure and pay for accommodation for fifty officials of the defendant at the Road Lodge, Port Elizabeth, Gqeberbha. The reserved accommodation would be inclusive of dinner and breakfast. An amount of R343 750-00, would be paid to the plaintiff within thirty (30) days of submission of the invoice.

 

[4]    The accommodation, with its ancillary specifications, was duly reserved and paid for by the plaintiff. On 31 October 2019, an invoice for payment was submitted to the defendant. The defendant, notwithstanding demand, has failed to tender payment.

 

[5]    The defendant, raised two special pleas. I cite these in full here under:

 

“FIRST PLEA IN LIMINE

 

AD NON-JOINDER OF DIAOPELA TRADING ENTERPRISE AND PROJECTS (PTY) LTD (HEREIN LATER REFERRED TO AS DIAOPELA TRADING)

 

1.1       The Defendant pleads that DIAOPELA TRADING, holds a direct and substantive interest in the matter, as according to the Defendant’s records, it was the service provider in the cause of action upon which the Plaintiff bases its claim

 

1.2       DIAOPELA TRADING, issued summons against the Defendant in the Regional Court, held at Mmabatho, under case no. NW/MMB/RC/17/2020 on or about 28^th January 2020, on the same cause of action as in casu. A copy of the summons is attached hereto as annexure “A”

 

1.3       The aforesaid action had been settled on 3 August 2020 between the Defendant and DIAOPELA TRADING as per the settlement agreement attached here as annexure “B”. Same was made an order of Court, and the Defendant fully complied to the terms of the settlement agreement.

 

1.4       The plaintiff now issue summons on the same cause of action which had been settled between the Defendant and DIAOPELA TRADING previously.

 

1.5       Consequently, DIAOPELA TRADING has a direct and substantive interest in the action, as DIAOPELA TRADING alleged in its action that it rendered the services, which the Plaintiff now bases its claim on.

 

WHEREFORE THE ACTION SHOULD BE STAYED PENDING THE JOINDER OF DIAOPELA TRADNG TO THE PROCEEDINGS SECOND PLEA IN LIMINE

 

AD NON-JOINDER OF THE ROAD LODGE PORT ELIZABETH (GQEBERBHA)

 

2.1   The Defendants plead that THE ROAD LODGE PORT ELIZABETH (GQEBERBHA) has a direct and substantive interest in the matter as the aforesaid entity issue an invoice for the services rendered directly to DIAOPELA TRADING, and not the Plaintiff. A copy of the invoice addressed to DIAOPELA TRADING is attached hereto as annexure “C”

 

2.2   Consequently, the Defendant pleads that THE ROAD LODGE IN PORT ELIZABETH (GQEBERHA) holds a direct and substantive interest in the action, as it was the entity who conducted affairs with DIAOPELA TRADING.

 

WHEREFORE THE ACTION SHOULD BE STAYED PENDING THE JOINDER OF THE ROAD LODGE PORT ELIZABETH (GQEBERBHA)”

 

Submissions by Counsel

 

[6]    The submissions by both counsel were succinct and as such can be deposed of, conjunctively. Advocate Scholtz contended that a judgment in this cause of action may effect, Diaopela Trading and The Road Lodge Port Elizabeth. As such, both these entities have a direct and substantial interest in these proceedings and therefore should be joined. Advocate Selaka argued the opposite, that the threshold for non-joinder had not been met, accordingly both special pleas fall to be dismissed with costs.

 

The Law

 

[7]    The test for non- joinder is set out by the Supreme Court of Appeal in Absa Bank Ltd v Naude NO (20264/2014) [2015] ZASCA 97 (1 June 2015) in the following terms:

 

[10] 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. In Gordon v Department of Health, Kwazulu-Natal 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.” (My underlining)

 

[8]    In Judicial Service Commission and Another v Cape Bar Council and another 2013 (1) SA 170 (SCA) at par [12] the Court held that:

 

[12] It has by now become settled 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 affected prejudicially by the judgment of the court in the proceedings concerned (see e.g. Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para 21). The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-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.” (My underlining)

 

[9]    Put differently, the defendant contends that Diaopela Trading and The Road Lodge Port Elizabeth, should be joined to these proceedings, but do these two parties have a direct and substantial interest in these proceedings? Diaopela Trading has already had its action settled by way of a settlement agreement, with the defendant. The Road Lodge Port Elizabeth has no direct and substantial interest. Neither of the latter parties will be prejudicially effected by a judgment is this action.

 

[10]  On due consideration, I must find that the defendant’s special pleas have no merit. I cannot find that Diaopela Trading and/or City Lodge Port Elizabeth have a direct and substantial interest. What constitutes a direct and substantial interest is a legal interest in the subject-matter of the action, which could be prejudicially affected by the judgment of the court. (See United Watch and Diamond Co v Disa Hotels 1972(4) SA 409 (CPD) at 415).

 

[11]  In the premises, both special pleas, must be dismissed with costs.

 

Costs

 

[12]  The general rule is that costs follow the result. There is no basis to deviate from the usual order as far as costs are concerned.\

 

 Order

 

[13]  Consequently, the following order is made:

 

The defendant’s special pleas are dismissed with costs.

 

 

A REDDY

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

 

For the Plaintiff                           Adv G Seleka

 

Instructed by                              Motshabi & Associates Inc

12 Havenga Street

Mahikeng

(018) 381 8187

 

 

For the Defendant:                    Adv H Scholtz        

Instructed by:                             Office of State Attorney

Sekame Drive & James Moroka

Mmabatho

(018) 381 0629                          

 

 

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