Birdsview House Pty Ltd v Newcity Group Pty Ltd and Others (2018/35937) [2021] ZAGPJHC 50 (12 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO REVISED: YES 12/2/2021

CASE NO: 2018/35937

In the matter between:

BIRDSVIEW HOUSE PTY LTD Applicant

and

NEWCITY GROUP PTY LTD 1st Respondent

COHEN: CHAIM 2nd Respondent

CONCOR CONSTRUCTION PTY LTD 3rd Respondent

K2014128865 PTY LTD

t/a THE EMBASSY TOWERS JOINT VENTURE 4th Respondent

ODOKO CONSTRUCTIONS PTY LTD 5th Respondent

BLAST MANAGEMENT & CONSULTING PTY LTD 6th Respondent

THE BLASTING PROS PTY LTD 7th Respondent

CITY OF JOHANNESBURG MUNICIPALITY 8th Respondent

In re the matter between

BRIDGEVIEW HOUSE PTY LTD Plaintiff

NEWCITY GROUP PTY LTD 1st Defendant

COHEN: CHAIM 2nd Defendant

JUDGMENT

ALLY AJ

INTRODUCTION

[1] This is an application to join Third to Eighth Respondents in an action under the abovementioned case number.

[2] The Third and Fourth respondents have opposed the application and filed Heads of Argument in terms of the Judge President’s Directives.

[3] The Seventh and Eighth Respondents have not opposed the application. The Fifth Respondent entered a notice to oppose and filed an answering affidavit which was late but did not address the Court on the date of the hearing of this application. I will deal with the circumstances of the Fifth Respondent hereunder.

[4] The Applicant has elected not to proceed with the joinder application against the sixth Respondent.

FACTUAL MATRIX

[5] The Applicant is the owner of an immovable property known as the Remaining Extent of Erf 211, Sandhurst, situate at 173 Empire Place, Sandhurst, hereinafter referred to as “the property”.

[6] The Applicant launched an action against First and Second Respondents for damages sustained to “the property” as a result of, so Applicant alleges, the erection of a twelve-storey luxury

apartment tower known as Embassy Towers and situate at 175 Empire Place, Sandhurst, hereinafter referred to as “Embassy Towers”.

[7] First and Second Defendant filed a plea wherein they implicated the Third to Sixth Respondents. This course of action, so it is alleged by the Applicant, prompted the Applicant to launch this joinder application. The Applicant, as indicated above, has chosen not proceed against the Sixth Respondent.

[8] The Applicant set outs the purpose of the present application[1] and the factual basis for joining the Respondents.

LEGAL FRAMEWORK

[9] Applicant has launched this application in terms of Rule 10(3) of the Uniform Rules of Court and provides as follows:

“(3) Several defendants may be sued in one action either jointly, jointly and severally, separately or in the alternative, whenever the question arising between them or any of them and the plaintiff or any of the plaintiffs depends upon the determination of substantially the same question of law or fact which, if such defendants were sued separately, would arise in each separate action.”

ANALYSIS AND EVALUATION

[10] In my view the Applicant needs to fulfil the requirements of Rule 10(3) of the Uniform Rules of Court in order to succeed in this application.

[11] Having regard to the allegations contained in the Founding Affidavit of the Applicant, I am satisfied that a proper case has been made out for the relief claimed in the Notice of Motion as against the First, Second, Third, Fourth, Fifth, Seventh and Eighth Respondents. In this regard I find that the said Respondents have a direct and substantial

interest[2] in the outcome of the action.

[12] I accept for purposes of this judgment the facts as set out in the Applicant’s Founding Affidavit as a means for ultimately finding that the Applicant has satisfied the requirements of Rule 10 (3), as stated above.

[13] The Fifth Respondent’s circumstances need to be dealt with. Having filed its opposing affidavit late it was incumbent on the Fifth Respondent to launch an application for condonation for consideration by the Court and to move such application in Court. The non-appearance of Fifth Respondent at the hearing to move an application for condonation leaves this Court with no option but to place no reliance on the Fifth Respondent’s affidavit. As a result, as stated above, the Fifth Respondent must also be joined as requested by the Applicant on the grounds that it also has a direct and substantial interest in the outcome of the action.

[14] It should be mentioned that I was advised by the Applicant that the Fifth Respondent had withdrawn their opposition but I was unable to find any Notice of Withdrawal on Caselines hence the reason for paragraph 13.

[15] Accordingly and for the reasons set above the Applicant must succeed in this application for joinder.

COSTS

[15] There is no reason why costs should not follow the result but only in respect of the Third and Fourth Respondents. In the circumstances the Third and Fourth Respondents are liable for the costs of this application; the one paying the other to be absolved.

The following Order will issue:

a) The Third, Fourth, Fifth, Seventh and Eighth Respondents are hereby joined as Defendants in the action under case number 2018/35937;

b) The Third and Fourth Respondents are liable to the Applicant for the costs of this application jointly and severally, the one paying the other to be absolved.

G. ALLY

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, JOHANNESBURG

Electronically submitted therefore unsigned

Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 12 February 2021.

Date of hearing: 9 September 2020

Date of judgment: 12 February 2021

Appearances:

Nicqui Galaktiou Inc: Attorneys for the Applicant

3rd Floor, Illovo Muse

198 Oxford Road

Illovo

nicqui@galaktiou.co.za/kameshni@galaktiou.co.za

Counsel for the Applicant: Adv. F. Bezuidenhout

Ian Levitt:

Attorneys for the Third and Fourth Respondents

19th Floor, Office Towers

Sandton City

info@ianlevitt.co.za

Counsel for the Respondent: Adv. JL Kaplan

[1] Caselines: Section 001 – 16 to 19

[2] Snyders & Others v De Jager 2016 CC at paragraph 9