Umyezo Leisure Investments (Pty) Ltd v Litheko and Others (3288/2019) [2020] ZAFSHC 19 (4 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No. 3288/2019

In the matter between:

UMYEZO LEISURE INVESTMENTS (PTY) LTD APPLICANT

and

MOLEFI LITHEKO IST RESPONDENT

NEDBANK LIMITED 2ND RESPONDENT

LETELE CEDRIC LIONEL MAKHETHA 3RD RESPONDENT

NNTSINDENI ESROM MATAMBUYE 4TH RESPONDENT

LINKIE VIVIAN MOROBI 5TH RESPONDENT

TIISETSO LORAINNE MORRISON 6TH RESPONDENT

MOTLALEPULE SARAH CHAO 7TH RESPONDENT

MOLEFI LITHEKO N.O. 8TH RESPONDENT

SENUNU MARTINA MOKHELE N.O. 9TH RESPONDENT

UMYEZO LEISURE INVESTMENTS (PTY) LTD 10TH RESPONDENT

HEARD ON: 30 JANUARY 2020

JUDGMENT BY: I VAN RHYN, AJ

DELIVERED: 4 FEBRUARY 2020

[1] The question that arises with this opposed application is whether it is appropriate for this court to grant the relief claimed for, namely that the Third to Tenth Respondents be joined as such in appeal case number 181/2016, in circumstances where the parties sought to be joined had already been joined during the proceedings in the Magistrates Court held in Thaba Nchu, which matter is now the subject of an appeal.

[2] The Applicant, a company with registered address in Welkom, Free State Province (“Welkom Company”) has been involved in litigation with the First Respondent, Mr. M Litheko and Nedbank Ltd, the Second Respondent under case number 304/2012 in the Magistrates Court, Thaba Nchu. The nature of the proceedings is not clear, but during August 2014 an urgent application was launched, citing the same company but situated at Thaba Nchu (“Thaba Nchu Company”) as first applicant, in conjunction with the Third to Seventh Respondents in the present matter, as applicants for the joinder of the said parties as respondents. The application also included and cited as Set Pace Marketing Trust, the eight applicant, to be joined as the eight respondent.

[3] Included in the Notices Bundle, which formed part of this application, is a copy of the “Interim Court Order” dated

5 August 2014, ostensibly signed and stamped by the Magistrate of Thaba Nchu. From paragraph 2 of Part A of the “Interim Court Order” it is evident that the urgent application for the joinder of the parties as respondents was to be heard on 11 August 2014. Prayer 2.2 of the “Interim Court Order” contains a prayer for leave to be granted to the Thaba Nchu Company, (the first applicant) and the second to eighth applicants (the present Third to Eighth Respondents) to oppose the application in case no 304/2012 and the costs of the joinder application to be reserved for adjudication in the hearing of the main application.

[4] Part B of the urgent application, also to be heard on 11 August 2014, immediately after the hearing of Part A, concerns an interim order and further relief which is of no consequence to the present matter. From page 37 of the record of proceedings of 11 August 2014 in case number 304/2012 it is evident that, by agreement between the parties, the joinder of the applicants as respondents in the Magistrates Court case was not opposed and was in fact granted. The record reads as follows concerning the joinder application:

“COURT: Before we can adjourn this matter it is agreed between both of you that you agreed for joinder of the other parties and also the costs to be, the application being borne by the applicant in part A?

MR MHLOKONYE: That is correct.

MR MHLAMBE: That is correct”.

[5] The Magistrate then proceeded to order that Part B of the application is postponed to a later date with further orders as to costs. On 2 October 2014 the Magistrate handed down the judgment in the main application and on 5 January 2015 the Applicant served and delivered its Notice of Appeal against the order. The parties cited in the Notice of Appeal however only refer to the Applicant as the “Appellant” and Mr Molefi Litheko as the “Respondent”. Neither Nedbank Limited, the second respondent in Case 304 /2012, nor any of the other respondents who had been, by agreement, joined as parties were cited as parties. The Notice of Appeal was served upon Nedbank Limited on 8 January 2015.

[6] During the beginning of 2016, the Applicant launched an urgent interdict under case number 1084/2016 in the Free State Division,

Bloemfontein of the High Court. Seven of the applicants in the urgent interdict application, so it seems, are the same as the Third to Ninth Respondents in the present application. The 9th applicant, Econ Initiate is not a party in the present application. The respondents in the interdict application were cited as the Welkom Company as first respondent, Standard Bank of SA Ltd as the second respondent and The Sherriff of Thaba Nchu as the third respondent. The Applicant contends that the urgent application was sought to interdict execution following the default judgement pending the hearing of a condonation application for the reinstatement of the appeal and late prosecution of the appeal. The interdict application was opposed by the Welkom Company (cited as First Respondent) and a counter application was brought by the Third to Tenth Respondents to be joined in those proceedings.

[7] The application for joinder in the interdict application was opposed and on the return day the respondents, (the applicants in the joinder application) failed to attend the hearing. The Thaba Nchu Company then moved for an order that the application be removed from the roll with costs. A copy of the court order issued in case number 1084/2016, granted by Phalatsi AJ on 15 April 2016, is appended to the opposing papers deposed to by Mr M Litheko. The first page of the court order granted by Phalatsi AJ on 15 April 2016 corresponds with the normal format used for court orders issued by this division. The first page contains the citation of all the parties including the three respondents. The second page of the purported court order however does not contain the usual page format and again contain the citation of the three respondents namely Mr Molefi Litheko cited as first respondent, Standard Bank of SA limited as second respondent and The Sheriff, Thaba Nchu as third respondent as contained on the first page of the court order. Under the heading “Draft Order”, the following appears on the second page:

“After considering the papers and hearing counsel on behalf of the first respondent it is ordered that:

1. The application is dismissed with costs.”

[8] When the appeal was argued on 13 March 2017 the issue of non-joinder of the Third to Tenth Respondents as well as further issues relating to the incompleteness of the appeal record were raised on behalf of the respondents. Due to these issues, the appellant (Applicant) moved for a postponement of the appeal, consented to by the first respondent subject to the provision that the wasted costs is to be paid for by the Applicant (the appellant in the appeal). It was agreed that an investigation pertaining to the contents of the Magistrate’s Court file will be conducted by the legal representatives of the parties involved. No court order granting the joinder of further parties could be traced in the court file.

[9] In essence the purpose of the present application is to obtain leave to amend the court papers, more specifically the heading so as to accurately reflect the parties already joined in the subsequent papers filed in the matter under case number 3014/2012. No opposition to the application was anticipated due to the fact that the record clearly indicates that the joinder of the said parties had been agreed to and was in fact granted by Magistrate Maphumane, who presided in the matter in the Magistrates Court, Thaba Nchu.

[10] On 26 September 2019 the Respondents filed their Notice to Oppose. In the opposing affidavit, deposed to by Mr M S Litheko, it is contended that “… with this application the intention of the applicant is to force a joinder on the respondents. Mr G T Mayekiso (Mayekiso) falsely states under oath that the joinder application was removed from the roll and not heard. The truth is that the application was entertained by this Honourable Court and finalized when the court dismissed the joinder application on the 15th April 2016 as in the annexure hereto”.

[11] Opposition to this application is thus based on the legal principle of res judicata. Secondly it is contended on behalf of the Respondents that the authority of the deponent to bring the application and to appoint an attorney to represent the Welkom Company are disputed. On 26 August 2019 the Respondents delivered a Notice in terms of Rule 7(1) in support of the contention in the opposing affidavit. The necessary Power of Attorney to litigate as well as a resolution by the directors were subsequently delivered. During his address, Mr Litheko, who indicated that he only appears on behalf of the First, Eighth and Ninth Respondents informed the court that the second leg of the opposition is abandoned.

[12] In the Heads of Argument filed on behalf of the Respondents it is contended that the grounds whereupon the Applicant seeks the joinder of the Respondents cannot be determined as the Applicant failed to state that the Respondents sought to be joined have any direct and substantial interest in the relief sought in the appeal that the Applicant has noted. It is furthermore contended that the Applicant brought a similar application before this court under case number 397/2018 which matter has not been adjudicated upon as yet.

[13] In his address, Mr Litheko however conceded that, as is evident from the record in case no 304/2012, the application for the joinder of the further Respondents was granted by the Magistrate on the basis that it was agreed to between the legal representatives. In response to the court’s question why this application is then opposed, his response was that it was not necessary for the Applicant to apply for the joinder of the parties as they had in fact already been joined in 2014.

[14] Contained in the Notice in terms of the provisions of Rule 7(1) dated 9 September 2019 and signed by Mr Litheko, is the concession that the Respondents had already been joined. The relevant sentence contained in Rule 7(1) notice reads as follows: “The joinder was in any event finalized in the Magistrate’s Court on the 11th August 2014 as in annexures J1, J2 and J3 in his presence in court. Godfrey’s joinder application serves no purpose. The joinder happened.” The deponent to Applicant’s founding affidavit, Tamsanqa Godfrey Mayekiso, is referred to as “Godfrey”

in the above quotation.

[15] Due to Mr Litheko’s concession that the joinder has in fact already been granted on 11 August 2014 it is not necessary to adjudicate upon the opposition of this application on the basis that a similar application was heard and dismissed by Phalatsi AJ, save to say that the second page of the court order appended to the opposing affidavit is obviously not part of the official court order granted on the 15th of April 2016. Furthermore the parties cited in case number 1084/2016 are obviously not the same parties as cited in the present application. Standard Bank of SA LTD, The Sheriff of Thaba Nchu as well as the ninth applicant, Econ Initiate, were cited as parties in in case number 1084/2016, the application on the roll of 15 April 2016. None of these parties are parties in the present application.

[16] In my view it is also not necessary to adjudicate upon the issue raised by Mr Litheko during his address that he only appears on behalf of the First, Eighth and Ninth Respondents due to the fact that, not only the opposition to the application was entered into on behalf of all the Respondents, but the Rule 7(1) notice as well as the Heads of Argument were delivered on behalf of all the Respondents without reference to certain Respondents in particular. An attorney who wishes to withdraw from acting on behalf of his client or certain parties whom he represents, is obliged to do so timeously and to notify the Registrar and all the other parties of his withdrawal. There is no indication that a notice of withdrawal to act on behalf of some of the Respondents in this application was delivered in terms of the provisions of Rules of Court 16 (4).

[17] The issues regarding the death of G L Pitso, the Seventh Respondent was raised in the founding affidavit but in my view it is not necessary to adjudicate upon the question of whether the Seventh Respondent and/or his estate should be joined due to the outcome of this matter. The fact of the matter is that the Seventh Respondent had been joined as a respondent in this matter in 2014 and if the Applicant no longer wishes to proceed with the appeal against the estate of the late G L Pitso or is obliged to introduce a further person as a party to the appeal proceedings, the required notices in this regard may be served and delivered to effect the required result.

[18] Joinder of the parties referred to as the Third to Tenth Respondents was granted in 2014 and therefore they already are the Respondents in appeal Case Number 181/2016. Even though the Eighth, Ninth and Tenth Respondents’ citation is not exactly the same as the original citation, namely Set Pace Marketing Trust, it is evident that the Eighth to Tenth Respondents are the trustees of the said trust and the citation now reflects same. In my view the matter could have been settled and the court papers amended to accurately reflect the inclusion of all the parties to the appeal. Mr Litheko’s response that the opposition to the application was done on the grounds that the application was unnecessary, is without any foundation.

[19] The only aspect remaining is the question of costs. Due to the objection regarding the failure to join the Third to Tenth Respondents raised during the hearing of the appeal, the Applicant was obliged to launch this application for joinder. It was correctly

assumed that the application would not be opposed. Not only did the Respondents oppose the application, causing the matter to be enrolled on the opposed roll, it was furthermore decided to deliver a Rule 7(1) Notice. The Respondents persevered with their opposition of the application despite stating in the Rule 7 Notice that joinder of the proposed Respondents occurred in 2014. The Applicant moved for an order of costs in the event of the Respondents opposing the application. Even though prayer 1 of the Notice of Motion, namely the joinder of the proposed respondents is not per se granted, the opposition to the application is without merit. The Respondents should therefore be ordered to pay the costs of the

application.

[20] Accordingly, IT IS ORDERED THAT:

1. The Applicant is granted leave to file supplemented papers in Appeal No 181/2016 to reflect the parties cited as Third to Tenth Respondents, joined as respondents in Case number 304/2012 on 11 August 2014.

2. The Respondents are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.

.

_______________________

I VAN RHYN AJ

On behalf of the Applicant: Adv. S Tsangarakis

Instructed by: ROSSOUWS ATTORNEYS

On behalf of Respondents: Mr. Motsomi Litheko

Instructed by: MPHAFI KHANG INC