Shumbairerwa v Chiraramiro & Ors (HC 1321 of 2014; HH 731 of 2015; Ref HC 4963 of 2013) [2015] ZWHHC 731 (17 September 2015)

1 HH 731 -15 HC 1321/14 Ref Case No. HC 4963/13 EUNICE SHUMBAIRERWA versus PRISCILLA CHIRARAMIRO and CLARION INSURANCE COMPANY PRIVATE LIMITED and SILENCE DIRWA and CHIRARAMIRO TRANSPORT HIGH COURT OF ZIMBABWE CHIGUMBA J HARARE, 16 July 2015, 17 September 2015 Opposed Application S. Chako, for applicant N. Kajevhu, for 1st respondent CHIGUMBA J: This is an application for joinder which seeks to have the first respondent joined as the fourth defendant in case number HC4965/13. The consequential relief sought is that the first respondent be given ten days within which to file her plea in the main matter. There is a petition to the court to order punitive costs to be paid in the event that this application is opposed. The question before the court is whether, in considering whether the requirements of Order 13 rr87 (2) (b) of the High Court Rules 1971 have been met, it is necessary to make a finding that a cause of action is founded in the summons against the applicant for joinder, or whether all that is required for joinder to be granted is establishment of a ‘direct and substantial’ interest in the matter. It is my view that the purpose of r 87(2) (b) is to ensure that all matters in the cause may be effectively and completely determined and adjudicated upon. It is to prevent unnecessary multiplicity of litigation by adding anyone and everyone with a real and substantial interest as a party to the proceedings in order that justice may be done, and that the dispute may be resolved ‘in one fell swoop’. HH 731 -15 HC 1321/14 Ref Case No. HC 4963/13 The factual background to this matter is that; on 24 June 2013, the applicant instituted an action for special damages for bodily injury arising out of a motor vehicle accident against the second, third and fourth respondents. The second respondent opposed the applicant’s claim. The applicant then discovered that the motor vehicle involved in the accident was registered and insured in the name of the first respondent and not in the name of the third respondent as stated in the police report. That is the basis on which the applicant avers that the first respondent is an interested party who ought to be joined to the proceedings. The rationale behind this is that this will facilitate execution of any order or judgment which may be given in favor of the applicant. On 29 April 2014, the first respondent filed opposing papers to the application for her joinder to the action for accident damages. She averred that just because the motor vehicle which was involved in the accident is registered and insured in her name it is not an indication that she is an interested party who ought to be joined to the proceedings. It was contended that in order for the first respondent to be found to have a direct and substantial interest in the proceedings, there ought to be a cause of action founded against her in the declaration to the summons. In the absence of an averment of vicarious liability in the declaration to the summons, first respondent contends that she cannot and should not be found to be an interested party who ought to be joined to the proceedings. It is common cause that the motor vehicle which ran over the applicant was registered and insured in the name of the first respondent at the material time. Is this sufficient basis on which to order the first respondent to be joined as a party to the proceedings? The requirements of joinder are set out in rr 87 (2) (b) of the rules of this court as follows; “87. Misjoinder or nonjoinder of parties (1)… (2) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application— (a)… (b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party” See Marian Katsande (nee Mandizvidza) v Fadzai Katsande & Ors1 1 HH249-13 HH 731 -15 HC 1321/14 Ref Case No. HC 4963/13 The purpose of r 87(2)(b) is to prevent unnecessary multiplicity of litigation and to facilitate the speedy and wholesale resolution of disputes by ensuring that everyone whose legal interests are likely to be affected by the outcome of the proceedings is joined as a party to the proceedings. This ensures that all interested parties are aware of the proceedings, and advised of the outcome, which gives them an opportunity to protect their interests and fight for their rights if they so wish, rather than to wait until judgment is handed down and execution is imminent, to ‘discover’ that an interested party was not even aware of the proceedings. See also Macey’s Supermarket & Bottle Store (Greencroft) Ltd v Edwards2, Marais & Another v Pangola Sugar Milling Co. & Ors 3, where it was stated that in order to qualify to be joined as a party to any proceedings; (a) A party must have a direct and substantial interest in the issues raised in the proceedings before the court; and that; (b) His rights may be affected by the judgment of the court. The concept of a ‘direct and substantial interest’ in the issues raised was explored in the case of Henri Viljoen (Pty) Ltd v Waterbuck Brothers4 . It was concluded that a direct and substantial interest is an “interest in the right which is the subject matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation. See also United Watch Diamond Co & Ors v Disa Hotels & Anor5, and Samuel Mugano v Fintrack & Ors6, Nyamweda v Georgias7, Zimbabwe Teacher’s Association & Ors v Minister of Education & Culture 8. The court has discretion to determine whether the interest in the issues raised is ‘sufficient’. The discretion must be exercised judicially on consideration of all the facts and circumstances of the case, which means a prima facie consideration of the evidence. Joinder will be refused if it will embarrass the plaintiff or where there are special circumstances militating 2 1964 RLR 13 (SR) 3 1961(2) SA 698 (N) 4 1953 (2) SA 151 (O) 5 1972 (4) SA 409(C) 6 HH 394-13 7 SC 200-88 8 1990 (2) ZLR 48 (HC). HH 731 -15 HC 1321/14 Ref Case No. HC 4963/13 against it. See Barclays Bank of Zimbabwe v Reserve Bank of Zimbabwe & Anor9, Building Electrical & Mechanical Corp (Salisbury) Ltd v Johnson10. In exercising its discretion, the court must be guided by the objectives of joinder proceedings. See Lazarus Casita v Lou Hong Qing & Anor 11. In Building Electrical & Mechanical Corp (Salisbury) v Johnson supra @ 308C-D it was stated that the objective of this procedure ; “…is to avoid multiplicity of actions dealing with substantially the same subject matter and involving much the same evidence. Its object is to combine such actions together in one trial and so save time and expense particularly to save the defendant from the inconvenience of proving over and over again the same facts for the purpose of getting the remedy to which he is entitled…@309G…I think therefore that when the same facts have to be conned over in order to ascertain the liability and to give relief to one or other of the parties in such a case the rule now provides that it is unnecessary to have separate actions or separate proceedings but that a third party notice may be served”. It is my view that the fact that the motor vehicle in question is both registered and insured in the first respondent’s name gives rise to a real and substantial interest on the part of the first respondent in the manner and outcome of the proceedings for accident damages. In my view the heads of argument submitted on behalf of the first respondent, reveal a fatal misapprehension of the test set out in the case of Barclays Bank of Zimbabwe v Reserve Bank of Zimbabwe supra. In that case, it was stated that the court will generally order joinder of a third party if a prima facie case is shown. It was submitted on behalf of the respondent respondent that a prima facie case must be shown in the main mater, and that because of the lack of averment of vicarious liability in the declaration to the summons such a prima facie case had not been shown in this case. It is my considered view that the reference to a prima facie case was in relation to the level of evidence that a court ought to have regard to in the application for joinder, not the merits of the summons in the main matter. I say so because all that a court needs to have regard to is the sufficiency of the interest in the issue on the part of the person who should be joined as a party to the proceedings. All that the court is required to do is to determine whether, on a prima facie basis, as opposed to on a balance of probabilities, the party who is sought to be joined has a legal interest in a thing and not a person, which is of sufficient importance to persuade the court to exercise its discretion in ordering joinder in the interests of justice, the aim being to avoid 9 HH477-13 10 1950 (4) SA 303 11 HH128-04 HH 731 -15 HC 1321/14 Ref Case No. HC 4963/13 multiplicity of litigation, to save costs and time, and to reduce the prejudice to the defendant of adducing evidence on the same issue over and over again. If follows that the heads of argument which were filed on behalf of the first respondent being premised on a misapprehension of the law, were largely of no use to the court, in its determination of this application. Suffice is to say that, there is no requirement, in a consideration of the requirements of r 87, that there be prima facie evidence of the cause of action in the main matter being established against the party who is to be joined to the proceedings. For these reasons, the application for joinder be and is hereby granted. It is ordered that the first respondent be joined as the fourth defendant in case number HC4965-13, and that the first respondent be given ten working days from the date of this order within which to file her plea. The law is clear, and for that reason there ought to have been no opposition to this application. Accordingly the first respondent shall pay the costs of this application on a legal practitioner and client scale as prayed for by the applicant. Messrs Mushangwe & Co, applicant’s legal practitioners Messrs Muzondo & Chinhema, respondents’ legal practitioners