South African Municipal Workers Union National Provident Fund v Dihlabeng Local Municipality and Others (A270/2018) [2020] ZAFSHC 84 (30 April 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: A270/2018

3463/2013

In the matter between:

THE SOUTH AFRICAN MUNICIPAL Appellant

WORKERS UNION NATIONAL

PROVIDENT FUND

(Applicant in the Main Application and First Third Party

in the Third Party Application)

and

DIHLABENG LOCAL MUNICIPALITY First

Respondent

(First Respondent in the Court a quo)

MUNICIPAL EMPLOYEES PENSION FUND Second

Respondent

(Second Respondent in the Main Application and Second

Third Party in the Third Party Application)

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL Fifth Third Party

(In the Third Party Application)

JUDGMENT

CORAM: NAIDOO J, CHESIWE J et MOLITSOANE J

JUDGMENT BY: NAIDOO J

HEARD ON: 2 MARCH 2020

DELIVERED ON: 30 APRIL 2020

[1] This is an appeal against an order made by the court a quo (the now late Mthembu AJ). The appellant comes before us, with the leave of the court a quo (Mathebula J).

[2] The order of the court a quo related to the joinder of interested parties to an application launched by the appellant in August 2013. The order, per Mthembu AJ, (the Mthembu order) reads as follows:

“1. The period to join any interested parties in this matter is extended by 14 days from the date of this order.

2. Should the applicant fail to join such parties as per order (1) above the matter will be dismissed.

3. The applicant is ordered to pay the costs of the respondents and the costs consequent upon the employment of two counsel in respect of the first respondent.”

Adv P Van der Berg SC, with Adv H Drake, appeared for the appellant, Adv SJ Reinders for the first respondent and Adv LM Spiller for the second respondent.

BACKGROUND

[3] As indicated the applicant, The South African Municipal Workers Union National Provident Fund (SAMWU), a pension fund registered in terms of the Pension Funds Act 24 of 1956 (PFA) launched an application in August 2013 (the main application), initially, against the first respondent, Dihlabeng Local Municipality (the municipality). The second respondent, Municipal Employees Pension Fund (MEPF), subsequently made application to intervene as second respondent and leave was accordingly granted for it to do so. SAMWU alleged that the municipality was the employer of certain people who were members of SAMWU, and that it had failed to pay to it outstanding contributions due by the municipality to it, in terms section 13A(1) of the PFA. It is perhaps useful to sketch briefly the background to the relationship of parties. The municipality had dismissed certain of its employees who participated in an unprotected strike. It subsequently re-employed these employees, after concluding settlement agreements with them.

[4] SAMWU sought wide-ranging relief against the municipality in the main application for, inter alia, information relating to municipality’s employees, reconciliation of payments received by the municipality and payment of arrear (pension fund) contributions. After MEPF was granted leave to intervene as a party to the main application in November 2013, it filed its Answering Affidavit, in which it raised, in limine, the non-joinder of employees who have an interest in the proceedings. The municipality, in its Answering Affidavit, referred to three categories of employees, and proffered a defence in respect of each. The first category was alleged to be employees who were never members of SAMWU. The municipality identified only one employee, a Mr Molibeli in the first category. I mention that SAMWU denied this, alleging that Mr Molibeli was and still is one of its members, hence the municipality’s contention that he should be joined as a party to the proceedings. The second category consisted of employees who were members of SAMWU prior to their dismissal and continued to be members of SAMWU after their re-employment. The third category of employees seemed to include members of MEPF. This category allegedly consisted of employees who were members of SAMWU but had elected to join another pension fund (one of whom was MEPF). It seems they made such an election following their dismissal and re-employment by the municipality. The municipality successfully brought an application in March 2014 to join the Category 3 employees as third parties in the main application.

[5] The matter was set down for hearing on 11 August 2016 before Ebrahim J. The issue of the non-joinder, amongst others, was dealt with at that hearing and the court consequently made an order without delivering a judgment indicating the reasons for such an order. The following is the order made by the court (the Ebrahim order):

“1. The matter is stayed for a period of three months calculated from the date of this order to enable the applicant to join interested parties in the main application whose rights may be affected by the orders claimed by the applicant.

2. The costs of the joinder application is (sic) reserved.

3. In the event of the joinder referred to in 1 above not taking place, the application is dismissed with costs.”

[6] Subsequent to the Ebrahim order, SAMWU served, in September 2016, Notices of Joinder on several of the employees mentioned in lists which were filed with the papers herein and whom it considered to be interested parties. These were served on the various employees by the Sheriff of this court. SAMWU did not make an application to court, in terms of the Uniform Rules of Court, for joinder of these parties as respondents. Almost a year later, SAMWU applied to court (in August 2017) for an amendment to its Notice of Motion, to reflect, inter alia, the municipality as the first respondent, MEPF as the second respondent and the employees who were served with Notices of Joinder as further respondents. The application was not opposed by the municipality, MEPF or the employees served with joinder notices,

and the order was accordingly granted. Thereafter the matter was re-enrolled for hearing of the merits on 23 November 2017, and was heard by Mthembu AJ.

[7] SAMWU advised the court that it had complied with the Ebrahim order by serving Notices of Joinder, together with copies of the

application, on the employees who had an interest in the matter, and alleged that they have been properly joined. The municipality argued that the merits could not be dealt with, as the Ebrahim order had not been complied with. SAMWU’s failure to bring an application in terms of Uniform Rule 10(3) amounted to non-compliance with the Ebrahim order. Such non-compliance was sanctioned by the dismissal of the application. Therefore, the proceedings before Mthembu AJ were moot and he could make no further order in the face of an application that was already dismissed. MEPF agreed with the arguments presented by the municipality. Mthembu AJ entertained extensive further arguments and it became apparent that the interpretation of the Ebrahim order was in issue.

[8] SAMWU contended that the Ebrahim order had granted it leave to join the employees whose interests may be affected by the application,

hence there was no need to make an application to court for such joinder. It, therefore, served the joinder notices on the employees

concerned and did nothing further as it was of the view that it had complied with the Ebrahim. Before us, Mr Van der Berg contended that the joinder of the employees was in terms of the common law, and that neither the Uniform Rules nor the common law prescribed any formal procedure for the joinder of parties to an action (or an application). Therefore, it should be accepted that SAMWU had

properly joined all interested parties.

[9] In amplification of this argument, Mr Van der Berg indicated that there were no further interested parties to be joined. With regard to Category 1, there was only one person, a Mr Molibeli, on whom SAMWU had already served the joinder notice. With regard to Category 2, after the Ebrahim order, and on investigating the municipality’s defence that it had paid in full the contributions due to SAMWU in respect of those members, SAMWU found that indeed such contributions were paid to it. Mr Van der Berg submitted that it was no longer pursuing any claim in respect of Category 2 employees, and it was therefore not necessary to join them. Category 3 employees are on a different footing and are those who were members of SAMWU before their dismissal by the first respondent and who, upon their re-employment elected to join another pension fund. The municipality served third party notices on each of those members, joining them as third parties to the proceedings.

[10] The third party notice called upon each of them, if they disputed SAMWU’s claim in the main application against the municipality,

to give notice of his/her intention to oppose the application and to deliver his/her Answering Affidavit to SAMWU’s Founding

Affidavit. Mr Van der Berg argued that the Category 3 members were already joined to the proceedings and need not be formally

joined by SAMWU. Out of an abundance of caution, SAMWU had, in any event, also served its joinder notice on Category 3 employees in September 2016. The legal representatives of the municipality and MEPF who appeared before Mthembu AJ, confirmed the position with regard to Category 3 employees. Mthembu AJ reserved his judgment and delivered the order I referred to above on 4 December

2017. Like the Ebrahim order, the Mthembu order was not accompanied by a judgment setting out the reasons for such an order.

GROUNDS OF APPEAL

[11] The Mthembu order was assailed on a number of grounds, a summary of which is that:

11.1 the court erred in ordering the appellant (SAMWU) to join any interested parties, as there are no parties, except those who have been joined, who have a sufficient interest in the matter requiring them to be joined;

11.2 the order is too vague to be given effect to, as it is unclear

who the court refers to as “interested parties”, as there are no other parties who can be joined;

11.3 the court committed a serious misdirection in dealing with the joinder issue, as it did not arise in the papers, the respondents did not give notice of their intention to raise the issue of non-joinder, they did not make application to deal with that issue as a separate issue or as a point in limine, and the court made no order to deal with the non-joinder issue as a separate issue or as a point in limine;

11.4 the court committed a serious misdirection in making a final order which determined the whole application, without hearing argument on the merits;

11.5 the court committed a serious misdirection by allowing the municipality’s counsel to interrupt the argument by SAMWU’s counsel, thereby preventing any further argument on the merits;

11.6 the order dismissing the application did not resolve important questions regarding the status of the membership of the affected members, and would lead to further litigation in the future;

11.7 Even if the court was correct in finding that further parties had to be joined, the court erred in making an order which had the effect of dismissing the whole application. The correct order where there is a non-joinder would have been to stay the application.

ISSUES

[12] In view of the above, the issues for this court to decide are as follows:

12.1 The interpretation of the Ebrahim order;

12.2 Whether there was compliance with the Ebrahim order;

12.3 Whether the Mthembu order was properly made;

12.4 What the effect of the Mthembu order is.

THE LAW

[13] Uniform Rule 10(3) provides for the joining of multiple defendants 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.”

It is well settled in our law that this Rule does not provide for or affect the common-law rules relating to the obligatory joinder of parties and, in this regard, non-joinder and misjoinder.

[14] The common law allows a defendant to be joined on grounds of convenience, equity, the saving of costs and the avoidance of multiplicity of actions. Under the common law the court has the inherent power to order the joinder of further parties in an action which has already begun in order to ensure that persons interested in the subject matter of the dispute and whose rights may be affected by the judgment are before the court. A court, including a court of appeal, is entitled mero motu to raise the question of non-joinder to safeguard the interests of third parties. [See Erasmus, Superior Court Practice, Vol 2, D1-126A, and the cases cited therein].

[15] In Matjhabeng Local Municipality v Eskom Holdings Ltd 2018 (1) SA 1 (CC) the Constitutional Court stated at 33D–E:

‘At common law courts have an inherent power to order joinder of parties where it is necessary to do so even when there is no substantive

application for joinder. A court could, mero motu, raise a question of joinder to safeguard the interest of a necessary party and decline to hear a matter until joinder has been effected. This is consistent with the Constitution.’

[16] Guiding principles and rules with regard to joinder of a party to proceedings have been well established through our case law over the years. The test is whether or not a party has a 'direct and substantial interest' in the subject matter of the action, that is, a legal

interest in the subject matter of the litigation which interest may be prejudicially affected by the judgment of the court. [Henri Viljoen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O)]. This was reiterated in a long line of cases, including GORDON v DEPARTMENT OF HEALTH, KWAZULU-NATAL [2008] ZASCA 99; 2008 (6) SA 522 (SCA) where the court held that the rule is that any person is a necessary party and should be joined if such person has a direct and

substantial interest in any order the court might make, or if such an order cannot be sustained or carried into effect without prejudicing that party. [See also Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A)].

[17] If, however, the court is satisfied that a person has waived his right to be joined, then he need not be joined. A mere financial interest is an indirect interest and may not require joinder of a person having such interest. In STANDARD BANK OF SOUTH AFRICA LTD v SWARTLAND MUNICIPALITY AND OTHERS 2010 (5) SA 479 (WCC), the court held that a bank who holds a mortgage bond over a property does not have a direct and substantial interest in proceedings by a municipality to demolish unauthorised structures on the property. The bank has an indirect financial interest, which does not entitle it to be joined in those proceedings. The mere fact that a party may have an interest in the outcome of the litigation does not warrant a non-joinder plea. [Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA) at 176I–177A]. The failure to join a necessary party may also be cured if an informal notice asking such party whether it wished to intervene is met by an unequivocal response that it would abide by the decision of the court. (See also Erasmus D1-125 and D1-126)

EVALUATION

[18] In the absence of a reasoned judgment, some attention should, perhaps be given to the arguments before Ebrahim J, in order to understand what the court could have had in mind when making the order and to consider the effect of the order. There were a number of issues argued at that hearing, but for present purposes, I will deal only with the issues relating to the three categories of employees identified by the municipality and the joinder issue in relation to those employees. These were the only issues which, in essence, this appeal seeks to address. The municipality raised the issue of the three categories of employees I mentioned earlier. With regard to Mr Molibeli, the only employee in Category 1 relevant for these proceedings, the municipality alleged in its papers that before and after his dismissal and re-employment, he had requested his pension fund contributions to be paid to MEPF (which SAMWU denied), and in respect of the 14 employees in Category 2, the municipality argued that their contributions had been paid in full to SAMWU. The municipality had conceded that the Category 3 employees were, by the time the matter came before Ebrahim J, already joined by way of the third party notices that it had served on these employees. I will deal with this later in this judgment.

[19] The municipality raised the non-joinder of the first and second category of employees for the first time in its heads of argument.

The municipality’s legal representative argued extensively on the issue of non-joinder. MEPF, on the other hand abandoned its issue with non-joinder, in view of the fact that Category 3 employees (some of whom were its members) were already joined to the proceedings. At the court’s request, a draft order was prepared by the municipality’s legal representative, and it appears that this was the basis for the order made by Ebrahim J. The draft order does not form part of the papers, nor does it appear from the record that there was any discussion regarding the terms thereof. It has to be assumed therefore that Ebrahim J considered that she was unable to hear the matter until joinder of the interested parties had taken place. I have set out above the Ebrahim order.

[20] In interpreting a court order, or any other document, the words used must be given their ordinary, grammatical meaning. The rules of interpretation of a document apply equally to a court order. The order must be considered as a whole to ascertain the court’s intention. [FINISHING TOUCH 163 (PTY) LTD v BHP BILLITON ENERGY COAL SOUTH AFRICA LTD AND OTHERS 2013 (2) SA 204 (SCA) at para 13; Also Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)]. The context or circumstances under which the order came to be made must also be considered in ascertaining the court’s intention.

The municipality and MEPF contend that the Ebrahim order envisaged an application for joinder of interested parties being brought. They argue that paragraph 2 of the order directs that the costs of the joinder application are to be reserved, and that the joinder

application referred to, was the one foreshadowed in paragraph 1 of the order. Although Mr Van der Berg, for SAMWU, argued that paragraph 2 was a reference to a joinder application moved by the first respondent (the municipality) during the hearing before Ebrahim J, this argument is misplaced, as no such application was made. Reasons why the relevant employees should be joined were, in fact, argued extensively by the municipality.

[21] SAMWU’s interpretation of the Ebrahim order is that it had already authorised SAMWU to join all interested parties, so it would have been “self-defeating” to bring an application for joinder. Hence it proceeded, in terms of the common law, to bring the application to the attention of the relevant employees by serving on them Notices of Joinder and having such service effected by the Sheriff of the court. The joinder notice calls upon the recipients to indicate their intention to oppose the main application and sets out the procedure and time frames to do so. Although this interpretation was rejected by the municipality and MEPF, neither proffered any argument against SAMWU’s contention that the common law is also applicable to joinder of parties to proceedings before court. It was also not disputed that copies of the returns of service were served on the legal representatives of both respondents. MEPF merely remarked that the Notices of Joinder were not received by them. I pause to mention that the notices were not filed as part of the papers. A Notice of Joinder, which was undated and unsigned was filed, together with a list of the employees on whom the notice was served, and the Sheriff’s Returns of Service. It was not disputed that the Notices of Joinder were served on the employees listed in the annexure to the Notice.

[22] While noting the interpretation that the Ebrahim order envisaged that a joinder application (presumably in terms of Uniform Rule 10(3)) be brought, a consideration of the subsequent conduct of the parties, especially the municipality and MEPF, is instructive. As indicated, SAMWU brought an application in August 2017 (one year after the Ebrahim order was granted), in which it sought, inter alia, an order to amend its Notice of Motion as I have indicated above. The application was served on the municipality and MEPF, but

neither of them opposed this application. None of the employees on whom the Notice of Joinder was served reacted to the Joinder Notice or opposed the application to cite them as respondents. SAMWU also sought to amend the relief it initially claimed, in that only information in respect of Mr Molibeli was now sought from the Municipality and the amount it claimed was also amended. The orders sought by SAMWU were granted on 3 August 2017.

[23] SAMWU then set the matter down for hearing on the merits and in preparation for the hearing, which was scheduled for 23 November 2017 (the November hearing), compiled its Heads of Argument on the merits. Neither the municipality nor MEPF filed Heads of Argument for the November hearing. A few days before the hearing, the municipality filed a “Conditional Application for Postponement”, in which it sought an order postponing the application sine die. In the Founding Affidavit by the Municipal Manager of the municipality, he alleges that he is not sure if SAMWU has joined interested parties in accordance with the Ebrahim order. He asserts that if SAMWU had failed to join interested parties as directed by the Ebrahim order, then SAMWU should comply with the Ebrahim order before the application could be heard. The municipality did not proceed with this application for postponement. I point out that SAMWU’s joinder notices were addressed to each of the employees, “C/O The Municipal Manager, Dihlabeng Local Municipality, 9 Muller Street, Bethlehem, 9701”. The Sheriff’s returns of service indicate that some of those notices were served on the person in charge of the municipality’s Records Department.

No allegation is made in the papers that such notices did not come to the attention of the Municipal Manager.

[24] It appears that in the time between the Ebrahim order and the hearing before Mthembu AJ, neither the municipality nor MEPF believed that SAMWU had not properly joined the interested parties, as directed by the Ebrahim order. If they did not so believe, the perfect opportunity to have made that known would surely have been to oppose the application that SAMWU brought in August 2017 for the amendment of its Notice of Motion and for citing the municipality’s employees as additional respondents. If they were unsure whether such joinder had taken place, it would similarly have been expected of them to oppose the application. They failed to do so, and the only conclusion that can be drawn from their inaction is that they agreed that, due to proper joinder, the employees could be cited as co-respondents. Their failure to give any notice to SAMWU prior to the November hearing that they intended to raise the issue of non-joinder further fortifies my view that they did believe that joinder of the employees was no longer an issue. The fact that it was raised and argued at the hearing appears to be an afterthought and amounts, in my view, to litigation by ambush. This is particularly so as the conditional application for postponement by the municipality clearly signified its intention to apply for the postponement of the application and not for the dismissal thereof, as so vigorously argued at the November hearing

[25] There are two interpretations of the Ebrahim order. The task of this court has been made all the more difficult by the failure of Ebrahim J to deliver a judgment indicating the reasons for the order that was made. After the extensive argument by the municipality’s legal representative, it was clear that there were two categories of employees that SAMWU was required to join to the proceedings, namely Category 1 and Category 2. The employees were identifiable, as indicated by the municipality’s Heads of Argument and the oral argument in court. The municipality even narrowed down the number of employees in Category 2 to fourteen (14), from the thirty three (33) employees in respect of whom SAMWU’s original claim was based.

[26] The court was specifically referred to the list marked Annexure A attached to the municipality’s Heads of Argument, which listed the employees by name and indicated which category they fell into. SAMWU served the joinder notice on 20 of the Category 3 employees and the one Category 1 employee (Mr Molibeli) listed by the municipality. In the absence of a judgment, it is unknown if the court did in fact consider this aspect, and therefore had in mind the defined number of employees as identified by the municipality.

[27] At face value, it is easy to be swayed into believing that the more probable interpretation of the order is that the court envisaged an application for joinder in terms of Rule 10(3), especially if paragraph 2 of the order is taken into consideration, and when the rules of interpretation, mentioned earlier in this judgment, are taken into account, but as I indicated a draft order was prepared, with no indication on record of what discussions were held regarding the terms of the order. Paragraph 3 is particularly mystifying. The municipality’s stance was clearly that the proceedings should be stayed until the applicant joined the Category 1 and Category 2 employees as respondents in the main action.

[28] This was brought to the court’s attention firstly by Mr Steyn representing the municipality, when he repeated that submission,

which he had made in his Heads of Argument (Record p679, lines 1-4) and then by Mr Van der Berg in the interaction I detail below,

between the court and Mr Van der Berg in relation to the municipality’s claim for costs of the postponement. From line 17 on page 701 of the record, the transcript reads as follows

“EBRAHIM [J]:……Yes they are claiming costs

ADV P VAN DER BERG: Yes, they say the matter must be stayed for a period of about 2 months, and then they must get the wasted costs of today, which is the normal order, the claim does not get dismissed, it gets stayed.

EBRAHIM [J]: Yes, obviously for a period of time”

It is therefore impossible to determine how or why the court would order dismissal of the application if the joinder it ordered in paragraph 1 did not take place. It was Mr Steyn who was asked to prepare the draft order, and it is expected that he would have drafted that part of the order to reflect that the application would be stayed pending the joinder by the applicant, as directed in paragraph 1. It is also not clear if Mr Van der Berg consented to this order or had sight of it prior to the court making it an order of the court.

[29] In considering SAMWU’s interpretation of the Ebrahim order, it is not improbable or far-fetched that it interpreted “interested

parties” in paragraph 1 of the order to refer to those employees already identified by the municipality in the list attached

to its Heads of Argument, and that its task was simply to give notice to those employees that they have been joined as parties to the application. This is especially so as the court, under common law has the inherent power to order the joinder of further parties in an action that has already begun, in order to safeguard the interests of third parties who may be prejudiced or adversely affected by any order the court may make. In view of the legal position that Rule 10 did not replace the common law, I cannot find that SAMWU’s serving of the joinder notices on the employees, identified by the municipality, was incorrect or irregular. In my view, joinder took place in terms of the common law. There was no need for an application in terms of the Rules of Court; all that had to be done was for notice to be given to the joined parties, which was properly done by SAMWU.

[30] The effect of the Ebrahim order would have been the dismissal of the application in the event of SAMWU’s failure to join the interested parties as directed. That order in itself was unusual. Where a plea of non-joinder is successfully raised, it usually

results in an order for the joining of the further or additional respondents. It is not usual for a plea of non-joinder to result in an order for the dismissal of the action or application. The fact that SAMWU reacted and served the joinder notices within a month after the court’s order is an indication that it acted in accordance with its interpretation of the order, and that it appreciated the consequences of non-joinder. It is also apparent that SAMWU’s interpretation of the order resulted in its choosing to engage the mechanism of the common law in order to comply with the Ebrahim order, instead of bringing an application for joinder in terms of Rule 10(3), which was not necessary.

[31] I deem it necessary to deal with some aspects raised by Mr Spiller, MEPF’s counsel, in his Heads of Argument and in his oral argument before us. The first aspect relates to the joinder of Category 3 employees as third parties to the main application by the municipality. He correctly pointed out that the third party joinder created a lis between the municipality and the third parties so joined, and does not create a lis between SAMWU and such third parties. I do not agree with his submission that the Ebrahim order envisaged that SAMWU was required to join Categories 1, 2 and 3 as respondents.

[32] The joinder of Category 3 employees as third parties was to avoid a multiplicity of actions, with resultant conflicting decisions on the same issues. They were called upon in the third party notice to indicate whether they disputed SAMWU’s claim against the municipality and, if they did, to file a notice of intention to oppose and thereafter to deliver their Answering Affidavits to the Founding Affidavit in the main application. In this way, the decision of the court in the main application will be res judicata against the Category 3 employees, preventing them from approaching the court again for a decision on the same facts. In this regard the remarks of Claasen J in IPF Nominees (Pty) Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd, Third Party) 2002 (5) SA 101 (W) at p118 A are apposite: “The purpose of joining a third party is in broad terms the same as that of a consolidation of actions under Rule 11, ie to have issues which are substantially similar tried at a single hearing so as to avoid the disadvantages attendant upon a multiplicity of actions and the danger of the same questions tried twice with possibly different results”.

[33] This then obviated the need for SAMWU to join them as respondents in the main action. This in effect was the reason that the municipality and MEPF agreed, at the time of the hearing before Ebrahim J, that it was not necessary for SAMWU to join the Category 3 employees. I appreciate that Mr Spiller was not involved in the hearing before Ebrahim J, but from the record of proceedings before that court, the position relating to Category 3 employees is clear. MEPF’s position was that it was abandoning its arguments in relation to non-joinder of the Category 3 employees as they were already joined to the proceedings. The submission that the agreement amongst the parties that Category 3 employees need not be joined is of no force or effect appears to arise from a misunderstanding of the

legal basis on which such a concession was made by the municipality and MEPF.

[34] Mr Spiller argued that Category 2 employees were included in the Ebrahim order and that SAMWU was obliged to join them as respondents.

While it may be that Category 2 employees were included in the category of interested parties, this argument suggests that category

2 employees should be joined whether they were interested parties or not, and simply because the court so ordered. SAMWU indicated that after receipt of the municipality’s Answering Affidavit, in which it alleged that the amounts owing in respect of this category of employees had been paid in full to SAMWU, the latter began investigating the matter and found that such amounts were indeed paid to it. It is unclear whether this discovery was made before or after the matter came before Ebrahim J. Logic, however, dictates that it must have been after the Ebrahim order was made, otherwise SAMWU would have indicated as much to the court if it had this knowledge at the time of the hearing, and especially as the municipality specifically identified category 2 employees for joinder.

[35] SAMWU argues that it was for this reason that it did not join the Category 2 employees. They no longer had an interest in the

application, nor would any of their rights have been prejudicially affected by any order of the court. It was also for this reason that it sought and was granted leave to amend its Notice of Motion. By the time the matter came before Mthembu J, this was made clear in the papers filed by SAMWU, and it ought to have been a matter of common sense that there was no need to join these employees as respondents. The amended Notice of Motion, consequently sought orders only in relation to Mr Molibeli, the Category 1 employee.

[36] A further point raised by Mr Spiller is that the joinder notices served by SAMWU on the Category 1 and Category 3 employees do not constitute compliance with paragraph 1 of the Ebrahim order, which required SAMWU to bring an application for joinder in terms of Uniform Rule 6(11), seeking and obtaining a court order to join the employees as additional respondents. If the interpretation accorded to the order by the municipality and MEPF is relied on, this would in all probability be a valid argument. It is however, important not to lose sight of the arguments put forward by SAMWU. Mr Van der Berg indicated that SAMWU proceed to join the relevant employees via the common law (in accordance with its interpretation of the Ebrahim order), and that neither the Rules of Court nor the common law prescribe the procedure by which a joinder in terms of the common law should be effected.

[37] Mr Spiller referred to the matter of Peter Taylor and Associates v Bell Estates (Pty) Ltd 2014(2) SA 312 (SCA), as authority for the proposition that after proceedings have been instituted a party may only be joined upon formal application to court and obtaining an order to this effect. A perusal of this case reveals that there was indeed a joinder of the appellant after proceedings had begun. The issue dealt with in this case was whether service of the application for joinder interrupted prescription. The court did not deal with the issue of joinder or make any finding to the effect that joinder after institution of proceedings may only be effected pursuant to a court order. Neither Mr Spiller nor Mr Reinders, for the municipality, dealt with the provisions of the common law in respect of joinder, or took issue with Mr Van der Berg’s submission that there is no formal procedure formulated for joinder effected in terms of the common law.

[38] As indicated earlier, the content of SAMWU’s notice of joinder informed the recipients that they have been joined in the application and set out the procedure to be followed if they wished to oppose the application. Service was effected on 19 employees (2 were deceased and no service was effected in respect of those two), all of whom, bar one, were Category 3 employees. The one was Mr Molibeli, the sole Category 1 employee. The majority of these employees were served personally.

[39] In the absence of any cogent argument or authority indicating that the manner of the joinder (under common law) effected by the SAMWU is incorrect or irregular, there is no reason not to accept that the employees’ interests were protected by bringing the application to their attention and calling upon them to oppose it if they so chose. I have dealt with the fact that the Category 3 employees were joined to the proceedings by way of the municipality’s third party notices, making it unnecessary for them to be joined by SAMWU. I have also dealt with the fact that the need for joinder of the Category 2 employees fell away. That effectively left the sole Category 1 employee whom SAMWU was required to join as a respondent. He was personally served with a joinder notice by SAMWU. In my view, the arguments raised against the validity and/or correctness of the joinder notice favour form over content, even if that entails taking steps that are illogical or unnecessary, for example MEPF’s insistence that Category 2 and 3 employees should have been formally joined by SAMWU, in spite of it being unnecessary to do so. There was, furthermore, no argument that the municipality or MEPF would be prejudiced by the form of joinder adopted by SAMWU.

[40] I turn now to deal with the Mthembu order. SAMWU argued that the Mthembu order was incorrectly granted and cited two main grounds for this contention. Firstly it was contended that, in the absence of a judgment it was assumed that the court was of the view that SAMWU has not complied with the Ebrahim order. SAMWU, for the reasons alluded to earlier in this judgment, contended that it had complied with the Ebrahim order. Secondly the argument was that the Mthembu order was too vague to be given effect to. SAMWU contended that the Mthembu order had the effect of a final order and was therefore appealable. The municipality contended that the order was correct, on the basis that there was no compliance with the Ebrahim order, SAMWU had not appealed that order and therefore, Mthemu AJ was entitled to make the order he did, extending the time period for complying with the Ebrahim order. The argument regarding an appeal against the Ebrahim order is misplaced, considering the steps taken by SAMWU to comply therewith.

[41] MEPF contended that the Mthembu order was not final but an interlocutory order and therefore, not appealable. It was also argued

that the order was correct because SAMWU had failed to comply with the Ebrahim order in that it did not join parties to the application

whose interests might be affected by an order made by the court. The third party notice of the municipality, so it was argued, created a lis only between the municipality and Category 3 employees and not between SAMWU, and Category 3 employees. It was therefore required of SAMWU to join these employees as parties to the application.

[42] In my view, Mthembu AJ misdirected himself in a number of ways, the most important of which is that he failed to apply his mind to the facts before him, and therefore made an order that was incorrect. The court did not properly consider the effect of the municipality’s third party notices in joining Category 3 employees to the application, and also seemingly failed to take into account SAMWU’s explanation that Category 2 employees no longer had any interest in the outcome of the matter and that it was therefore unnecessary to join them. Had the court properly assessed the evidence before it, it would have found that only the Category 1 employee remained to be joined.

[43] The court further misdirected itself in not properly assessing the interpretation of the Ebrahim order contended for by the parties. It overlooked the fact, in spite of this argument being raised, that joinder of parties after commencement of an action or application was also regulated by the common law. If it had undertaken that exercise, it would have been apparent to it that it was not open to the court to simply extend the Ebrahim order, as there was compliance with that order. Even if the court held the view that there was non-compliance with the Ebrahim order, it failed to grapple with the effect of paragraph 3 thereof, namely that the application was dismissed approximately a year before it heard the matter, and that it was not entitled to hear the matter. However, the absence of a judgment with reasons for the order made renders it impossible to know exactly what the basis for the order is. As with the Ebrahim order, the arguments before the court were examined, and in spite of the many aspects I have pointed out being canvassed by the parties, it appears that the court failed to properly evaluate the evidence before it.

[44] In my view, it is not necessary to consider the appealability of the order, as the order was patently wrong, made as a result of misdirections on the part of the court and falls to be set aside. The court ought to have found that it was only necessary for SAMWU to have joined the Category 1 employee, and that in fact SAMWU had done so. The matter was set down for hearing of the merits before that court. This aspect was not dealt with at all, in spite of the Notice of Motion having been amended and the joinder of additional respondents having been effected pursuant to an application for and obtaining of such a court order, which application was not opposed by either the municipality or MEPF. In my view, it was not open to the municipality or MEPF to have raised non-joinder at the Mthembu hearing. It was therefore expected of the court to have made a ruling to this effect and proceeded to hear the merits of the matter.

[45] This court is, in the final analysis, faced with two possible interpretations of the Ebrahim order. The court is obliged, in my view, to give effect to the interpretation which will best serve the interests of justice. In F v Minister Safety and Security and Another (Institute for Security Studies and Others as Amici Curiae) 2012 (3) BCLR 244 (CC), the Constitutional Court held at para [34] that:

“It is trite that the interests of justice require that all issues pertaining to a matter be ventilated fully and for all parties to be given the opportunity to state their case as comprehensively as possible..” I align myself with these remarks.

[46] As I indicated earlier, it is not usual for a court to order dismissal of an action or application where a plea of non-joinder

succeeds. The order is usually that the action/application is stayed until the joinder takes place. In this matter the prejudice to SAMWU will be that its application would be dismissed without the merits having been heard. It was argued that if the Mthembu order stands, the applicant (SAMWU) will be able to re-institute the application. Given the age of the matter, the issue of prescription may well arise, preventing the applicant from taking his matter any further. If effect is given to SAMWU’s interpretation of the Ebrahim order, the only prejudice the municipality and MEPF would suffer is to continue with the litigation until the merits have been decided. In my view, the interpretation that would best advance the interests of justice, where the parties would be given the opportunity to fully ventilate their respective cases, is that of SAMWU.

[47] There is one other matter that I must mention. SAMWU in its Heads of Argument, requested this court, sitting as a court of appeal, to hear the merits of the application. I agree with Mr Spiller’s submission that it is settled in our law that, in the absence of exceptional circumstances, an appellate court should not hear the merits of a matter for the first time. This was raised at the commencement of the hearing before us, and it was communicated to the parties that this court would not entertain the merits of the matter.

[48] In the final analysis, it is my view that there was substantial compliance by SAMWU with the Ebrahim order, and as such the Mthembu order was not properly made and falls to be set aside. It is also my view that by the time Mthembu AJ heard the matter, the only possible interested party that could be joined was Mr Molibeli, the Category 1 employee. In view of what has been said above in this regard, I consider that Mr Molibeli was properly joined.

[49] In the circumstances, the following order is made:

49.1 The appeal is upheld with costs, such costs to be paid by the first and second respondents, jointly and severally;

49.2 The order of the court a quo, per Mthembu AJ, is set aside and substituted with the following:

“1. The order of Ebrahim J, dated 11 August 2016, has been complied with, and all interested parties have been joined and/or are before court;

2. The application is postponed sine die for hearing on the merits;

3. The first and second respondents are ordered to pay the applicant’s costs, jointly and severally.”

__________________

S NAIDOO J

I concur

__________________

CHESIWE J

___________________

MOLITSOANE J

On behalf of Appellant: Adv. P Van der Berg SC

Instructed by: Shepstone & Wylie

Rosebank

c/o McIntyre Van Der Post

(MCV Gerdener)

12 Barnes Street

Westdene

Bloemfontein

(Ref: AAS660/Elene)

On behalf of 1st Respondent: Adv. SJ Reinders

Instructed by: Niemann Grobbelaar

Bethlehem

c/o Phatshoane Henney

Markgraaff Street

(Ref: M Volschenk/SJ/Nie15/0024)

On behalf of 2nd Respondent: Adv L Spiller

Instructed by: Webber Wentzel

Sandton

c/o Symington De Kok Attorneys

169B Nelson Mandela Drive

(Ref: V Movshovic/D Rafferty/M Kruger)