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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION     

                                                                                                         

          Case number: 1240/2020[1]

In the matter between:

 

BAREND JACOBUS VAN DEN BERG N.O.                                                   1^st Applicant[2]

LORRAINE MARLENE VAN DEN BERG N.O.                                             2^nd Applicant

HENDRIK STEPHANUS LODEWICUS DU PLESSIS N.O.                          3^rd Applicant

 

and

 

SUIDWES LANDBOU (PTY) LTD                                                                1^st Respondent[3]

THE LAND AND AGRICULTURAL DEVELOPMENT

BANK OF SOUTH AFRICA                                                                           2^nd Respondent

COREEN STEYN t/a STEYN ATTORNEYS                                               3^rd Respondent

 

IN RE:

                                                                                                          Case number: 1955/2016[4]

 

THE LAND AND AGRICULTURAL DEVELOPMENT

BANK OF SOUTH AFRICA                                                                                1^st Plaintiff

SUIDWES LANDBOU (PTY) LTD                                                                      2^nd Plaintiff

 

and

 

BAREND JACOBUS VAN DEN BERG                                                           1st Defendant

LORRAINE MARLENE VAN DEN BERG                                                     2^nd Defendant

BAREND JACOBUS VAN DEN BERG N.O.                                                  3^rd Defendant

LORRAINE MARLENE VAN DEN BERG N.O.                                            4^th Defendant

HENDRIK STEPHANUS LODEWICUS DU PLESSIS N.O.                        5^th Defendant

REGISTRAR OF DEEDS, BLOEMFONTEIN                                               6^th Defendant

 

ET IN RE:

                                                                                                            Case number: 765/2019[5]

 

SUIDWES LANDBOU (PTY) LTD                                                                   1^st Plaintiff

THE LAND AND AGRICULTURAL DEVELOPMENT

BANK OF SOUTH AFRICA                                                                              2^nd Plaintiff

 

and

 

COREEN STEYN t/a STEYN ATTORNEYS                                                  1^st Defendant

BAREND JACOBUS VAN DEN BERG N.O.                                                  2^nd Defendant

LORRAINE MARLENE VAN DEN BERG N.O.                                            3^rd Defendant

HENDRIK STEPHANUS LODEWICUS DU PLESSIS N.O.                         4^th Defendant

                                                                                     

             

Coram:                                   Opperman, J

Date of appearance:              28 January 2021

Delivered:                              The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 10 March 2021. The date and time for hand-down is deemed to be 10 March 2021 at 15h00.

Judgment:                              Opperman, J

Summary:                              Application for consolidation – Rule 11

JUDGMENT

CONSOLIDATION APPLICATION IN TERMS OF RULE 11 OF THE UNIFORM RULES OF THE HIGH COURT OF SOUTH AFRICA[6]

 

INTRODUCTION

[1]                   On 11 March 2020 an interlocutory application (case number 1240/2020) was lodged and the Applicants motioned for an order:[7]

(a)     Consolidating in terms of Rule 11[8] the actions under case numbers 1955/2016 (2016-case) and 765/2019 (2019-case) in order that the matters proceed as one action;

(b)    Costs to be in the cause of the consolidated action; alternatively

(c)     In the event of any of the respondents oppose the application that such opposing respondents be ordered to pay the costs of the application.[9]

 

[2]                   A learned colleague quoted recently in a case akin to this matter: “When people get desperate, they get very creative”.[10] In the case of Belford v Belford 1980 (2) SA 843 (C)[11] at 844 that was relied upon by the Applicants, Van den Heever lamented that:

In the present, a different, context I would stress what I conceive to be the moral duty of lawyers: to dissuade their clients from indulging in petty bickering to the good of no one save the lawyers' finances. One realises of course that clients do not always heed their lawyers' advice in this regard; …

The entire matter should be settled, and should not be difficult to settle if both parties decide not to be greedy and selfish, and bear in mind that the prime aim should never be merely to hurt the opposition.

The case here is an estimated seven-year-old debt of millions of Rands that is outstanding and that the debtor[12] does not honour.

 

[3]                   Apart from the application to consolidate and another to compel there was also a point in limine objection to the validity of a statement by a witness for the Respondents. As was pointed out by this witness in the Answering Affidavit to this application[13] the plea delivered by the Defendants in the 2016-case is packed with special pleas; twenty to be exact, four conditional special pleas and multiple layered lines of defences on merits. In tandem with the Defendants’ plea Van den Berg filed three conditional counterclaims, an unconditional claim for damages and a conditional claim for damages. The Second Defendant filed a conditional counterclaim and the Third to Fifth Defendants; trustees of the Hermanusdam Trust, filed two conditional counterclaims. In addition, the Defendants delivered a third-party notice in terms of Rule 13(1)(b), claiming wide raging relief against the Second Plaintiff or third party. 

 

[4]                   A strange twist in casu is that Mr. Du Plessis as the 5^th Defendant in the 2016-case in his capacity as trustee of the Hermanusdam Trust has took it upon himself to represent all the Defendants but for the Registrar of Deeds. He carries the mandate of the other Defendants in their personal capacity and as trustees. The case went awry when Counsel for the Plaintiffs commented that Mr. Du Plessis, being so close to the case, testifies from the bar during argument. This conflated the duty and identity of the legal representative, the party to the dispute and the possible witness that is situated in the one person that is Mr. Du Plessis. It was argued that if he does not testify unfavourable inferences might be drawn when the evidence is evaluated. One wonders who is going to lead his evidence in chief and what will happen to the mammoth and eons of hours of address by him if the court makes a finding against his credibility. The issue of a fair trial comes into play; will the rest of the Defendants have had a fair trial if there were conflicts in interest and how will it affect the case for the Plaintiffs? Millions of Rands are at stake and the costs must have culminated into hundreds of thousands of Rands by now. A counterclaim of 17 million Rands was mentioned by Advocate van der Walt; Counsel for the Plaintiffs.[14]

 

[5]                   I called a halt to the proceedings and implored Mr. Du Plessis to reconsider his position. Mr. Du Plessis obtained opinion from a “Senior Counsel in Johannesburg” that could not fault his appearance on behalf of the 1^st to 4^th Defendants and himself as 5^th Defendant in his capacity as trustee of the Hermanusdam Trust. I do not have the authority to force choice of Counsel but must ensure a fair trial and proper conduct of Legal Practitioners and will do so as far as possible. The Applicants know their rights and the consequences of their choice. They will not be allowed to cry foul in future on this aspect.

 

[6]          Steyn did not join the litigation. I will deal with her involvement later in the judgment.

 

BASIS FOR OPPOSITION

[7]          The basis on which the First and Second Respondent oppose the application is:[15]

1.                       The factual and legal basis required for Suidwes and the Land Bank to be successful in the trial of the separated issues and the 2019-action are fundamentally different;

2.                       The Applicants advance no compelling reason why Suidwes and the Land Bank should be forced and put through the trouble and expense of prosecuting the 2019-trial in circumstances that would not only lead to a substantial delay in the finalisation of the trial on the separated issues, but where such a course of action may well turn out to have been an exercise in futility.

3.                       There can be no conceivable advantages to consolidate the trial of the separated issues and the 2019-action.

4.                       The questions of law and fact that arise in terms of the separated issues in the 2016-action and those that arise in the 2019-action are fundamentally different and do not concern the determination of substantially the same question of law or fact.

 

THE PARTIES

[8]          It is imperative to introduce the parties.

1.                      The First Applicant is Barend Jacobus van den Berg a major male residing at the farm Hermanusdam, district Edenville, Free State Province acting in his capacity as a trustee of the Hermanusdam Trust (The Trust). The Second Applicant is Lorraine Marlene van den Berg, a major female residing at De Bruyn Park, Kroonstad, Free State Province acting in her capacity as trustee of the Trust. She is also the mother of the First Applicant. The Third Applicant is Hendrik Stephanus Lodewicus Du Plessis a major male attorney practising as such at 103 Murray Street, Kroonstad, Free State Province in his capacity as trustee of the Trust. The First to Third Applicants are the First to Fifth Defendants in the 2016-case and the Second to Fourth Defendants in the 2019-case.

2.                      The First Respondent is the Land and Agricultural Development Bank of South Africa; a statutory body and Bank established in terms of the Land and Agricultural Development Bank Act 15 of 2002 with its principal place of business at Block D, 2 Eco Glades, Witch-hazel Road Pretoria, Gauteng and locally represented by Symington De Kok Attorneys, Bloemfontein. The Second Respondent is Suidwes Landbou (Pty) Ltd, a company duly registered in terms of the Laws of the Republic of South Africa with registered address at Voortrekker Street, Leeuwdoringstad, North West Province and locally represented by Symington and De Kok Attorneys, Bloemfontein.

3.                      The Third Respondent is Coreen Steyn practising as Steyn Attorneys, a major female practising attorney, with her place of business situated at 62 President Street, Klippenhout Centre, Bothaville, Free State Province.

 

THE 2016-TRIAL IN PROCESS

[9]          The 1955/2016 matter served before me for the first time on trial. The matter was set down for 26, 27 and 29 November 2019. In light of the extraordinary broad scope of the issues that would have had to be dealt with and determined in the 2016-trial, the parties at a supplementary pre-trial conference held on 22 November 2019, agreed to request the Court to separate a number of issues in terms of Rule 33(4) to be adjudicated first and separately before the remaining issues. The order was granted and the separated issues are:

“By agreement the plaintiffs and First to Fifth defendants request the Honourable Court to:

1.                       Order that the issues referred to herein below be separated and that they be tried first and separate from all the other issues in terms of the provisions of Rule 33(4):

4cm; text-indent: -1cm; margin-bottom: 0cm; line-height: 150%"> 1.1           Whether the second plaintiff and the first defendant concluded the written loan agreement, a copy of which is appended as Annexure “BV3” to the amended particulars of claim, (Paragraphs 8.1, 8.3 and 8.4 of the amended particulars of claim read with paragraphs 23 and 24 of the amended plea).

1.2           Whether the second plaintiff and the first defendant concluded a written contract-financing agreement, a copy of which is appended as Annexure “BV7” to the particulars of claim.  (Paragraphs 9.2, 9.3 and 9.4 of the amended particulars of claim read with paragraph 25 of the amended plea).

1.3           Whether the second defendant bound herself as surety and co-principal debtor, jointly and severally in terms of a deed of suretyship, a copy of which is appended as Annexure “BV8” to the amended particulars of claim (and which the second defendant admits to having signed), for due performance of all obligations for which the Hermanusdam Trust might be liable to the second plaintiff (Paragraphs 10.1 and 10.2, as they stand to be amended by referring to the Hermanusdam Trust instead of the first defendant as principal debtor, of amended particulars of claim read with paragraph 26 of the amended plea).

1.4           Whether the third defendant was duly authorised by the trustees of the Hermanusdam Trust (the third to fifth defendants) to sign the deed of suretyship Annexure “BV9” on behalf of the trustees of the Hermanusdam Trust.  Alternatively, whether the trustees of the Hermanusdam Trust delegated the authority of the trustees to sign deeds of suretyship on behalf of the Hermanusdam Trust to the third defendant (Paragraphs 10.3.2 to 10.3.4 of the amended particulars of claim read with paragraphs 10 and 26 of the amended plea).

1.5           Whether the Hermanusdam Trust bound itself as surety and co-principal debtor, jointly and severally, for the due performance of all obligations for which the first defendant might become liable to the second plaintiff, in terms of the deed of suretyship, a copy of which is attached as Annexure “BV9” to the amended particulars of claim and which is attached as Annexure “BV9” to the amended particulars of claim and which the third defendant admits to having signed (Paragraphs 10.1 and 10.3.1 of the amended particulars of claim read with paragraph 26 of the amended plea).

1.6           Whether the trustees of the Hermanusdam Trust (the third to fifth defendants) authorised the registration of mortgage bond number B2152/2014, a copy of which is annexed as Annexure “BV10” to the amended particulars of claim and whether registration of such mortgage bond is permitted by the trust deed.  (Paragraphs 11.1 to 11.3.5 of the amended particulars of claim read with paragraphs 11, 12 and 27 of the amended plea).

1.7           Whether the trustees of the Hermanusdam Trust (the third to fifth defendants), and as a result the Hermanusdam Trust, is estopped from denying that the third defendant was duly authorised to sign the suretyship (“BV9”) and to register the mortgage bond (“BV10”) on behalf of the trustees of the Hermanusdam Trust in the event that it is found that the third defendant was not duly authorised to sign the deed of suretyship (“BV9”) on behalf of the trustees of the Hermanusdam Trust and that he was not authorised to take the necessary steps to register the bond (“BV10”) in favour of the second plaintiff.  (Paragraphs 11.1 to 11.6.2 of the amended plea read with paragraphs 19.1 to 19.7 of the replication).

1.8           Whether the second plaintiff ceded and transferred to the first defendant its right, title and interest in the relevant personal rights that the second defendant contends it obtained as against the first defendant on account of advances that the second plaintiff contends it had had made to the first defendant in terms of the written loan agreement (Annexure “BV3” to the amended particulars of claim) and the contract-financing agreement (Annexure “BV7” to the amended particulars of claim), including the rights which the second plaintiff contends it had acquired in terms of the abovementioned deeds of suretyship (Annexures “BV8” and BV9”).  (Paragraph 6 of the particulars of claim read with paragraph 21 of the amended plea).

1.9           Whether the second plaintiff ceded the right, title and interest in and to the mortgage bond “BV10.1” to the amended particulars of claim to the first plaintiff and whether the sixth defendant registered such session in its records and endorsed the mortgage bond B2152/2014 (“BV10”) accordingly.  (Paragraphs 11.3.6 and 11.3.7 of the amended particulars of claim read with paragraph 27 of the amended plea).

1.10        Whether the loan agreement (“BV3”) and the contract- financing agreement (“BV7”), both of which constitute credit agreements in terms of the Credit Act, were preceded by a pre-agreement statement and quotation that satisfied the requirements of section 92(2)(a)(i) and Section 93 of the National Credit Act, 24 of 2005 (“the Credit Act”), Regulation 29(1)(c) and (d) and form 20.1.  (Paragraphs 1.1, 1.2, 1.3 and 1.5 of the amended pleas read with paragraph 9.2 of the replication).

1.11        Whether the credit agreements (“BV3”) of  (“BV7”), are void or voidable if it is found that they were not preceded by a pre-agreement statement and a quotation as contemplated in paragraph 1.10 (Paragraph 1.6 of the amended plea read with paragraph 9.4 of the replication).

1.12        Whether the court is entitled and empowered to declare the credit agreements (“BV3”) or (“BV7”) unlawful without the same time making an order in terms of section 90(4)(b) of the Credit Act which is just and reasonable.  (prayer 37.2.1 of the counterclaim read with paragraph 2.2.4 of the amended plea to the counterclaim).

1.13        Whether the second defendant conducted an assessment, as contemplated in section 81(2) and as required in terms of section 80(1)(a) of the Credit Act in relation to the loan agreement (“BV3”) or the contract- financing agreement (“BV7”).

1.13.1        Should it be found that the second defendant did not conduct such an assessment in respect of the credit agreement “BV3”; whether the relevant credit agreement constitutes reckless credit as contemplated in section 80 of the Credit Act.

1.13.2        Should the court find that the second plaintiff did not conduct said assessment in respect of the credit agreement “BV7”; whether said credit agreement constitutes reckless credit as contemplated in section 80 of the Credit Act.

1.13.3        Should the court find that second plaintiff indeed conducted the assessment referred to in paragraph 1.13 above in respect of the credit agreement “BV3”, whether the second plaintiff entered into the credit agreement “BV3” despite the fact that the preponderance of information available to the second plaintiff indicated that first defendant did not generally understand or appreciate his risks, costs or obligations under the proposed credit agreement as contemplated in Section 80(2)(b)(i) and/or entering into said credit agreement would make the first defendant over indebted as contemplated in section 80(1)(b)(ii), and/or whether the credit agreement is void in such circumstances.

1.13.4        Should the court find that the second plaintiff conducted the required assessment referred to in paragraph 1.13 above in respect of the credit agreement “BV7”; whether the second plaintiff entered into the credit agreement with the first defendant despite the fact that the preponderance of information available to the second plaintiff indicated that the first defendant did not generally understand or appreciate his risks, costs or obligations under the proposed credit agreement as contemplated by section 80(1)(b)(i), and/or entering into the credit agreement would make the first defendant over indebted as contemplated by section 80(1)(b)(ii) and/or whether the credit agreement is void in such circumstances.  (Paragraphs 3.2 to 3.3 of the amended plea read with paragraphs 11 to 11.4 of the replication).

1.14     Should it be found that the credit agreements (“BV3”) or (“BV7”) constitute reckless credit agreements as contemplated in section 80 of the Credit Act but that it is not void:

1.14.1        Whether the agreements (“BV3”) or (“BV7”) in such circumstances, are of no force and effect in view of section 81(3) of the Credit Act.  (prayer 37.2.2.2 of the counterclaim read with paragraph 2.2.3 of the amended plea to the counterclaim);

1.14.2        Whether the court is empowered, in terms of the provisions of section 83(2)(a) of the Credit Act to set aside the first defendant’s rights and obligations in terms of either or both of the credit agreements without the court at the same time making an order that is just and equitable in the circumstances (prayers 37.2.2.3 of the counterclaim read with paragraphs 2.2.6 and 2.2.6.1 of the amended pleas to the counterclaim);

1.14.3        Whether the court is entitled and empowered in terms of the provisions of section 83(2)(b) of the Credit Act to suspend the force and effect the credit agreements indefinitely and without determining a date for their resumption, (prayers 37.2.2.4 of the counterclaim read with the applicable prayer in terms of the amended plea to the counterclaim);

1.14.4        Whether the court is empowered and entitled to declare void or alter the alleged unlawful provisions of the relevant credit agreements in terms of section 90(4) of the Credit Act, without the court at the same time making an order which is just and equitable in the circumstances.  (prayer 37.2.2.5 of the counterclaim read with paragraphs 2.2.4 and 2.2.4.1 of the amended pleas to the counterclaim).

1.15     Whether the credit agreements (“BV3”) or (“BV7”) comply with the provisions of section 93(3) of the Credit Act and to the requirements of regulation 31. (Paragraphs 2.1 to 2.3 of the amended plea red with paragraphs 10.1 to 10.5.3 of the replication).

1.16     Should it be found that the credit agreements (“BV3”) or (“BV7”) do not comply with the requirements referred to in paragraph 1.15 above, whether (“BV3”) or (“BV7”) are void or voidable.  (Paragraph 2.3 of the amended plea read with paragraph 10.4 of the replication).

1.17     Whether the Credit Act applies to the deed of suretyship (“BV8”) and as a result to the second defendant.

1.18     Whether the Credit Act applies to the Hermanusdam Trust, and as a result to the deed of suretyship (“BV9”) as well as the mortgage bond (“BV10”).

2.                       To order that the remainder of the issues stand over for later determination.

3.                       To specifically order that the issues that stand over for later adjudication include the issues which relate to the nature of the further orders, if any, that the court ought to grant in the event that the court declares either or both of the credit agreements (“BV3”) and (“BV7”) or any of their terms unlawful or void in terms of the provisions of section 90(4) of the Credit Act or set such agreements or terms thereof aside in terms of the provisions of section 83(2)(a) of the Credit Act or to suspend such agreement or terms thereof in terms of the provisions of section 83(2)(b) of the Credit Act.

4.                       To note that the wording employed in the agreement to separate the issues will not be taken to supplement or amend the content of the pleadings.

5.                       To order that the parties shall be entitled at the trial of the remainder of the issues, if applicable, to present the evidence of witnesses that had already testified in relation to the aforementioned issues (that will be determined first) and to further request that any such witness who is not called by the plaintiffs or the defendants as a witness, be recalled for purposes of cross-examination in relation to the remainder of the issues that form the subject matter of the trial.

6.                       The parties shall, at the trial of the issues that must be determined first, be constrained to present evidence in relation to the issues identified in paragraphs 1.1 to 1.18 above, but evidence which was presented during the trial on the issues identified in 1.1. to 1.18 above, and which maybe relevant to the remainder of the issues which stand over for the later determination, shall remain binding on the adjudication of the remainder of the issues.”

 

[10]        The trial in the main matter, 1955/2016, on the separated issues commenced on 27 November 2019 and the evidence of Coreen Steyn, the Third Respondent, was finalised. Steyn was cross examined by the attorney, Mr. Du Plessis, on behalf of the Defendants in the 2016-case. Imperative to note is that the same witness that testified in the 1955/2016 case is a litigant in the 765/2019 case that the Applicants seek to join at this late stage. She testified without being forewarned of the consolidation application and this might be regarded as an ambush that screams for constitutional protection. The potential prejudice is severe.

 

[11]        That said; the trial could not be finalised on the 29^th of  November 2019 and the matter was postponed to 14, 15, 17, 21, 22 and 24 April 2020. Due to the Covid pandemic the matter had to be postponed to 17 to 27 November 2020.

 

[12]        Unexpectedly the application for consolidation was filed on 11 March 2020. The application is bizarre. The application for the consolidation wants to force Suidwes and Land Bank to litigate against their witness, Steyn, in the same case. Steyn will now be a witness in the 1955/2016 case and a litigant in the 765/2019 case simultaneously. To add insult to injury it must be reminded that the trial is on the separated issues that are issues on law. It is not clear and there is no explanation why the interlocutory applications were not finalised before the matter went on trial on the separated issues and why the application for the consolidation of the cases were only filed on 11 March 2020. The words of Mr. Du Plessis on 10 December 2020 leave food for thought and is telling of the manner in which this case is conducted by the Applicants:

              M’lady, and then the problem case, M’lady, if I must be honest with myself, I think we did not consider the separation of issues agreement properly before we concluded it. I am talking about the Respondents and myself.

 

[13]        The trial has been postponed provisionally to 3, 4, 6, 10 and 13 August 2021. The delay is obvious; almost two years. I will now turn to the substantive content of the 2016 and 2019-cases.

 

THE CASES: 2016 & 2019

[14]        In the 2016-case –

1.                      Barend Jacobus van den Berg (BJ van den Berg) is cited as the First Defendant.  It is alleged that he entered into a long-term loan agreement (the “long term loan”) and a short-term loan agreement (the “short term loan”) with the Second Plaintiff (Suidwes) on 18 March 2014 and 7 November 2014 respectively.

2.                      Lorraine Marlene van den Berg (LM van den Berg) is cited as the Second Defendant. It is alleged that on 18 March 2018 she executed a deed of suretyship whereby she bound herself with the Hermanusdam Trust for the due performance of all obligations for which the Hermanusdam Trust might be liable to Suidwes.

3.                      BJ van den Berg, LM van den Berg and Hendrik Stephanus Lodewicus Du Plessis are cited, in their capacities as the trustees of the Hermanusdam Trust (the “trustees”), as the Third to Fifth Defendants.  It is alleged that on 18 March 2018 the Hermanusdam Trust executed a written suretyship in favour of Suidwes whereby it bound itself with Van den Berg for the due and punctual payment by Van den Berg of all the amounts, present or future, payable to Suidwes.

4.                      It is alleged that the conveyancing attorney, Jan-Bruwer Hugo, executed and registered a mortgage bond (“the mortgage bond”) in favour of Suidwes on 7 April 2014 over certain farms, the property of the Hermanusdam Trust, to secure the indebtedness, present or future, of the Hermanusdam Trust to Suidwes up to the maximum amount of R10 000 000.00.

5.                      It is alleged that Suidwes ceded its right, title and interest in the long- and short-term loans as well as the suretyship executed by LM van den Berg and the Hermanusdam Trust and mortgage the bond to the First Plaintiff (Land Bank).

In terms of the 2019 action –

1.                      Suidwes is the First Plaintiff and the Land Bank the Second Plaintiff.

2.                      Coreen Steyn is cited as the First Defendant.  She was the conveyancing attorney mandated by Suidwes to register the mortgage bond.

3.                      Suidwes conditionally claims damages against Steyn based on an alleged negligent and unlawful breach of her mandate to ensure that the mortgage bond was validly registered to serve as enforceable real security.

4.                      In the alternative to Suidwes’ claim, the Land Bank conditionally claims damages against Steyn based on a negligent and unlawful breach of her asserted legal duty to ensure that the mortgage bond was validly registered in terms of the Deed Registries’ Act 47 of 1937, in terms of the provisions of the Trust Property Control Act 57 of 1988, in accordance with the principles of the Law of Trust’s and in terms of the provisions of the trust deed of the Hermanusdam Trust.

5.                      The trustees are cited as the Second to Fifth Defendants, but only to the extent that they may have an interest in the relief claimed against Steyn. Suidwes and the Land Bank claim no substantial order against the trustees.

 

THE CASE FOR THE APPLICANT

[15]        Mr. Du Plessis took great care to set out his arguments and the facts in the Founding Affidavit, Replying Affidavit, Heads of Argument and Supplementary Heads of Argument.  He bases the case for the Applicants on the following:

SUMMATION:

2.1             It is therefore contended that two separate actions will entail:

2.1.1          a multiplicity of actions;

2.1.2          the evidence to be given will in many respects be duplicated; and

2.1.3          the costs to be incurred will in many respects be duplicated;

2.1.4          inconvenience to the Court, the witnesses and the parties concerned;

2.1.5          a resultant increase of expense to one or more or all of the persons concerned with this action.

2.2             It is accordingly submitted that:

2.2.1          the convenience of the Court and of all persons concerned dictates that the trials ought to be consolidated, or alternatively;

2.2.2          the balance of convenience favours such consolidation.

2.3             In regard to plaintiff’s submission in regard to a lack of a lis applicants repeat their testimony pertaining to this aspect in their replying affidavit and reiterate that at the time when the application was lodged a lis most certainly existed.

2.4             Lastly it must be noted that, to date hereof, the 3rd respondent being the party that might experience inconvenience by this application did not oppose the application on the basis of inconvenience or prejudice.

 

SUMMATION:

4.1          For the reasons below it is submitted that the convenience of not only the parties but also the court favours an order of consolidation on such terms as that the court may deem fit taking cognisance of the particular tendencies of the case:

4.1.1          Similar issues to be adjudicated before the same judge;

4.1.2          No repetitive examination and cross-examination pertaining to the same issues;

4.1.3          Costs, energy and time to be duplicated – to be saved by single trial;

4.1.4          Costs in respect of summons and service to be saved;

4.1.5          Costs for applicants joining 1st and 2nd respondents to summons to be saved;

4.1.6          Flexible – court can make any order as to the implementation of the consolidation order;

4.1.7          No substantial prejudice to respondents;

4.1.8          Respondents themselves intended to consolidate the actions instituted by them; their failure to explain their sudden change of heart is to be held against them;

4.1.9          In the event of the court finding that Steyn did not bind the 2nd respondent the exact same issues about which she has already testified will be have to be repeated;

4.1.10       Should the court decide the issue of the lawful existence of the bond in favour of the plaintiffs, the defendants will have to address exactly the same issues that the court has decided before another forum in an action against one or more of the same respondents;

4.1.11       A further application will have to be brought in terms of Rule 24(2) in order to proceed against Steyn if no consolidation;

4.1.12       Should the court decide that Steyn did not act within the scope of her mandate with respondents, the exact same factual and legal issues will have to be repeated;

4.1.13       The running of prescription against the applicants in regard to the new issues is halted at the least costs and effort;

4.1.14       It is not required by the judge to consider another judge’s finding in regard to facts, law and credibility of witnesses;

4.1.15       The applicant’s precarious financial position is served to their convenience.

4.2             Contrary to the above: the only reasonable prejudice claimed by the respondents pertains to the alleged time factor; in this regard they however fail to explain firstly what will cause the delay and secondly the time span of the purported delay – compared to the amount of time that will be spent in separate trials this lamentation is clearly made tongue in the cheek.

 

THE LAW[16]

[16]        I now turn to the law applicable to consolidation applications.

1.                      The critical elements of a Rule 11- application are convenience and no substantial prejudice to the other party.

2.                      The object of the rule is to prevent multiple trials or applications based on the same facts proceeding independently of each other. (Nel v Silicon Smelters (Edms) Bpk 1981 (4) SA 792 (A) at 801)

3.                      The rule does not make provision for the consolidation of issues, only of trials. (Jacobs v Deetlefs Transport BK 1994 (2) SA 313 (O) at 317)

4.                      Convenience is a paramount consideration in applications of this nature. The avoidance of a multiplicity of actions and attendant costs are considerations. (Mpotsha v Road Accident Fund 2000 (4) SA 696 (C) at 699E-F)

5.                      The party requesting the consolidation bears the onus of showing that the consolidation will not cause substantial prejudice to other parties. (Mpotsha supra at 701C-D, Belford v Belford 1980 (2) SA 843 (C) at 846)

6.                      The provisions of Rule 10 apply mutatis mutandis to Rule 11(b).

7.                      This is an interlocutory application brought on motion. Notice to all the other parties must be given. The Applicant must explain why separate actions were instituted that he now desires to have consolidated. (International Tobacco Company of South Africa Ltd v United Tobacco Companies (South) Ltd 1953 (1) SA 241 (W) at 243)

8.                      Joffe[17] and Harms[18] pointed out that the Applicant must set out, among others, why separate actions were instituted, why there has been a change of heart, the balance of convenience, that there is no substantial prejudice to other parties (London & Lancashire Insurance Co Ltd v Dennis NO 1962 (4) SA 640 (N) at 644) and whether there are issues common to the actions that may be decided by an order in terms of Rule 33(4). (Jacobs v Deetlefs Transport BK supra at 317)

9.                      The Court has a wide discretion to grant or refuse the application. (Beier v Thornycraft Cartridge Company; Beier v Boere Saamwerk Bpk 1961 (4) SA 187 (N) at 191)

10.                  A Court may refuse the application even though the balance of convenience would favour it if the prejudice to the other party is "substantial". (New Zealand Insurance Co Ltd v Stone 1963 (3) SA 63 (C) at 69)

 

CONCLUSION

[17]        Applying the facts and the arguments in the case on the law the application stands to be dismissed and these are the reasons:

1.                      The current trial is on the separated issues. In their Application the Applicants have neglected to state this vital point that certain issues in the 2016-case were separated and ordered to be adjudicated separately and that the trial had already commenced on the issues;

2.                      A perusal of the separated issues ordered and that had to be determined first and foremost, reveals that whether Steyn had negligently and unlawfully breached her mandate (the subject matter of the 2019-case) has no relevance whatsoever to the 2016-case;

3.                      The separated issues do not relate to the alternative delictual claims which were instituted against Steyn. The 2016-case differs materially from the 2019-case;

4.                      During the 2016-trial Du Plessis endeavoured to cross examine Steyn on the Plaintiffs’ 2019-claim and the court ruled it to be irrelevant;

5.                      In view of the fact that the separated issues must first be determined, the contemplated consolidation of the 2016 and 2019-cases will not lead to substantially the same facts or points of law being adjudicated upon, nor will it expedite the trial of the separated issues or avoid duplication or save costs. It will have the opposite effect as has already occurred and that is a delay in the finalisation of the case and the separated issues may become academic;

6.                      The court forewarned the parties not to burden the court with issues that do not fall within the ambit of the separated issues;

7.                      There is not any lis between the Third to Fifth Defendants and Steyn and there are no points of law or facts to be adjudicated upon in the trial of the separated issues that are substantially similar to the 2019-action;

8.                      It is not, has never been and will not be law that Defendants may usurp the dominis litis function of the Plaintiffs and prescribe to them against whom, how and when to litigate. This is absurd. A consolidation of the 2016 and the 2019-cases will ignore the Respondents rights as dominus litis;

9.                      The Plaintiffs, if they succeed in proving that the Third to Fifth Defendants are liable to the First Defendant, cannot prosecute a claim against Steyn. It was, according to the Respondents agreed that it was not necessary for Steyn to deliver her plea in the 2019-case as yet and she has not;

10.                  The pleadings in the 2019-case have not yet closed. Steyn must still deliver a plea and if necessary, the Plaintiffs a replication. This will take months to finalise. Then after close of pleadings would follow discovery, the request for further particulars and further procedural steps to get the 2019-case to fruition;

11.                  It stands beyond any doubt that time and money will be wasted with the 2019-case before finalising the separated issues in the 2016-case; 

12.                  The Applicants failed to proof convenience. To add insult to injury the prejudice that the application will cause is severe;

13.                  An application for consolidation may be at any time but the stage that this application has been initiated causes curious results and the prejudice is grave. Research of case law for a similar example and law on this scenario resulted in naught. The reason is obvious; it is not convenient and it is prejudicial. Steyn has concluded her evidence, the pleadings in the 2019-case have not yet closed, the delay is extensive, the claims against Steyn are conditional, if Land Bank and Suidwes succeed in proving that Van den Berg indeed had the authority to authorise the registration of the mortgage bond, the 2019-case may not be litigated;

14.                  The prejudice to Steyn is severe as was already pointed out above;

15.                  What is telling is an abuse of the Rules of Court by the Applicants in that its Replying Affidavit is filled with new matter to which the Respondents could not reply. The Applicants are not allowed to make a new case in reply;

16.                  The opening address by the Respondents in the 2016-case is not evidence and may not be used as basis for the application to consolidate. In the same breath, Heads of Argument may not adduce evidence but be just what it is; arguments;

17.                  The fact that Steyn did not join in the litigation does not take the case for the Applicants any further. Where a party does not resist an application, it does not equate to an acceptance of the Applicants’ version;

18.                  Then there is also the Order on the Separated Issues in terms of Rule 33(4) that is self-explanatory:

5                         To order that the parties shall be entitled at the trial of the remainder of the issues, if applicable, to present the evidence of witnesses that had already testified in relation to the aforementioned issues (that will be determined first) and to further request that any such witness who is not called by the plaintiffs or the defendants as a witness, be recalled for purposes of cross-examination in relation to the remainder of the issues that form the subject matter of the trial.

6                         The parties shall, at the trial of the issues that must be determined first, be constrained to present evidence in relation to the issues identified in paragraphs 1.1 to 1.18 above, but evidence which was presented during the trial on the issues identified in 1.1. to 1.18 above, and which may be relevant to the remainder of the issues which stand over for the later determination, shall remain binding on the adjudication of the remainder of the issues.

 

COSTS

[18]        Mr. Du Plessis requested for any costs orders to be made on the scale of the Magistrate’s Court when it is made against the Applicants but on High Court scale when against the Respondents.[19] The reason being that it was the contractual forum agreed upon by the parties and that the Respondents “dragged them to the High Court”. This cannot be the correct approach for the Court to follow in light of the mammoth proportions the case has evolved into in both complexity and volume due to the interlocutory applications and the value of the claims. The suggestion on costs by Advocate van der Walt in their Supplementary Heads of Argument seems to be the most appropriate.

 

ORDER

[19]        In the circumstances of the present case I neither regard it as convenient nor am I prepared to exercise the discretion afforded to the Court by Rule 11 in order to consolidate the two actions. The prejudice will be too severe to some parties and the administration of justice. The following orders are thus made:

1.                      The application in terms of Rule 11 of the Uniform Rules to consolidate the actions under case number 1955/2016 and 765/2019 in order for the matters to proceed as one action, is denied.

2.                      The Applicants to pay the costs on an attorney and client scale in the High Court; including the costs of two Counsel.

 

 

 

                                                                                                           

                                                                                                            M OPPERMAN, J

 

 

 

 

 

 

 

APPEARANCES

On behalf of the Applicants                                                              MR. HSL DU PLESSIS

                                                                                                    HSL Du Plessis Attorneys

c/o Lovius Block Attorneys

First Avenue 31

Westdene Bloemfontein

Email: lorinda@loviusblock.co.za

Ref: OJ van Schalkwyk

 

On behalf of the Respondents                              ADVOCATE D.J. VAN DER WALT SC

                                                                        ADVOCATE WILLEM VAN ASWEGEN

L Strating

Symington & De Kok Attorneys

169B Nelson Mandela Drive

Bloemfontein

                                                                          Ref: MKH0637                        

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