RMB Unit Trust Ltd v Madikiza (10998/2011) [2012] ZAWCHC 260 (26 April 2012)

RMB Unit Trust Ltd v Madikiza (10998/2011) [2012] ZAWCHC 260 (26 April 2012)

The court found that the applicant provided a satisfactory explanation for the delay in filing the Rule 30 notice, and that the filing and withdrawal of an exception did not amount to a further step in the proceedings, thus not precluding the applicant from seeking relief under Rule 30. The respondent's claim against the third party was based on alleged fraud and was delictual in nature, not arising from contract or statute, and therefore did not qualify for indemnity or contribution under Rule 13. The claims between the applicant and respondent, and between the respondent and third party, did not overlap in law or fact, and convenience alone is not a valid basis for invoking third party...

Citation
[2012] ZAWCHC 260
Parties
Applicant: RMB Unit Trusts Limited; Respondent: Dr C F Madikiza; Defendant: Firstrand Bank Limited t/a First National Bank
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 April 2012
Case Number
10998/2011
Procedural Posture
Urgent Application / Application for Condonation and Setting Aside of Third Party Notice Under Rule 30
Outcome
Application granted; respondent's third party notice and annexure set aside; condonation for late filing of Rule 30 notice granted; costs awarded as prayed.
Judges
N Saba
Legal Topics
Rule 30 Irregular Step, Third Party Procedure, Condonation, Joinder, Indemnity and Contribution
Civil Procedure Rule 30 Irregular Step Third Party Procedure Condonation Joinder Indemnity and Contribution

Case Brief

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Parties

RMB Unit Trusts Limited

Applicant

Dr C F Madikiza

Respondent

Firstrand Bank Limited t/a First National Bank

Defendant

Procedural Posture

Urgent Application / Application for Condonation and Setting Aside of Third Party Notice Under Rule 30

Legal Issues

  1. 1 Whether the applicant has shown good cause for the delay in filing the Rule 30 notice.
  2. 2 Whether the respondent's third party notice and annexure constitute an irregular step under Rule 30.
  3. 3 Whether the respondent is entitled to invoke Rule 13 for a claim based on damages and alleged fraud.

Ratio Decidendi

The court found that the applicant provided a satisfactory explanation for the delay in filing the Rule 30 notice, and that the filing and withdrawal of an exception did not amount to a further step in the proceedings, thus not precluding the applicant from seeking relief under Rule 30. The respondent's claim against the third party was based on alleged fraud and was delictual in nature, not arising from contract or statute, and therefore did not qualify for indemnity or contribution under Rule 13. The claims between the applicant and respondent, and between the respondent and third party, did not overlap in law or fact, and convenience alone is not a valid basis for invoking third party...

Court Disposition

Application granted; respondent's third party notice and annexure set aside; condonation for late filing of Rule 30 notice granted; costs awarded as prayed.

Orders

  • Condonation for the late delivery of the applicant's notice in terms of Rule 30 is granted.
  • The respondent's third party notice and third party annexure are set aside.