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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Case Numbers: 17095/2020;

42437/2021

1. REPORTABLE: NO

2. OF INTEREST TO OTHER JUDGES: NO

3. REVISED: NO

24 May 2024

 

In the matter between:

 

SABELO MACINGWANE                                                    First Plaintiff

 

TURQUOISE MOON PROPRIETARY LIMITED                  Second Plaintiff

 

And

 

BOSASA YOUTH  DEVELOPMENT CENTRES                 First Defendant

PROPRIETARY LIMITED (in liquidation)

 

RALPH FARREL LUTCHMAN N.O.                                    Second Defendant

 

CLOETE MURRAY N.O.                                                      Third Defendant

 

TANIA OOSTHUIZEN N.O.                                                  Fourth Defendant

 

JARED MICHAEL WATSON                                                Fifth Defendant

(in his capacity as the Executor for the Estate Late Gavin Joseph Watson)

 

NTSIMBINTLE HOLDINGS PTY LTD                                 Sixth Defendant

 

TSHEPO HARRY NONYANE N.O.                                      Seventh Defendant

 

OFENTSE ANDREW NONG N.O.                                       Eighth Defendant

 

[the second to fourth, seventh and eighth defendants are cited in their capacity as the duly appointed provisional liquidators of the first defendant]

 

AFRICAN GLOBAL OPERATIONS PROPRIETARY         Ninth Defendant

LIMITED (in liquidation)

 

CLOETE MURRAY N.O.                                                     Tenth Defendant

 

RALPH FARREL LUTCHMAN N.O.                                   Eleventh Defendant

 

TANIA OOSTHUIZEN N.O.                                                 Twelfth Defendant

 

MILANI BECKER N.O.                                                       Thirteenth Defendant

 

[the tenth to thirteenth defendants are cited in their capacity as the duly appointed provisional liquidators of the ninth defendant]

 

AFRICAN GLOBAL HOLDINGS                                 Fourteenth Defendant

PROPRIETARY LIMITED

 

MELA WOMENS INVESTMENT                                  Fifteenth Defendant

PROPRIETARY LIMITED

 

NZUZO INVESTMENTS PROPRIETARY LIMITED     Sixteenth Defendant

 

MPAKO INVESTMENTS PROPRIETARY LIMITED    Seventeenth Defendant

 

JOHANNES GUMEDE N.O.                                      Eighteenth Defendant

 

THEMBA ISHMAEL MNCWABA N.O.                       Nineteenth Defendant

 

CAROL FELICITY MKELE N.O.                                Twentieth Defendant

 

TERENCE ANTHONY PERRY N.O.                           Twenty-first Defendant

 

[the eighteenth to twenty-first defendants are cited in their capacity as trustees of the Bosasa Employees Trust (IT3305/02)]

 

LULAMA SMUTS NGONYAMA                                 Twenty-second Defendant

 

THUNDERCATS INVESTMENTS 92                         Twenty-third Defendant

PROPRIETARY LIMITED

 

JUDGMENT

 

FISHER J

 

Introduction

 

[1]  These two associated actions instituted under case numbers 17095/2020 and 42437/2021 were consolidated by consent between the parties. They remain under their original case numbers but on are consolidated on the basis that they will be considered together[1].

 

[2]  The plaintiffs in each instance are Messrs Ngonyama and Macingwane and a company in each instance conducted by each of them. I will refer to them respectively as the Ngonyama action and the Macingwane action.

 

[3]  This judgment is in respect of an exception purportedly brought under rule 23 to the amended particulars of claim in the Macingwane action ( by the nineth and eleventh to thirteenth defendants.

 

Factual background to the actions

 

[4]  Both actions are founded on similar causes of action and seek substantially the same relief against the same set of defendants, the Liquidators of Bosasa Youth Development Centres (Pty) Ltd (BYDC). The relief sought in both actions is the return of shares in the seventh respondent, Ntsimbintle Holdings (Pty) Ltd on the basis that they were fraudulently obtained.

 

[5]  This judgment is in respect of a purported exception brought to the amended particulars of claim in the Macingwane action by the nineth and the eleventh to thirteenth defendants.

 

[6]  The ninth defendant is African Global Operations(Pty)(Ltd)(AGO) in liquidation and the other excipient defendants are its liquidators. AGO was previously known as Bosasa Operations (Pty) Ltd. AGO. The excipient defendants are referred to as the AGO parties.

 

[7]  The procedural history which led to the AGO parties becoming defendants is relevant.

 

Procedural history

 

[8]  The plaintiffs in the Macingwane action brought an application to join the AGO parties as defendants in that action.

 

[9]  The application for joinder was brought pursuant to a Supreme Court of Appeal judgment in a matter related to the now consolidated actions in issue in these proceedings, Watson NO v Ngonyama [2021] 3 All SA 412 (SCA) (the SCA case).

 

[10]  In the SCA judgment certain remarks or findings were made in relation to the factual complex which overlaps with the facts in the two actions and specifically the possible interest of the AGO parties in relation thereto.

 

[11]  In the joinder application, it was alleged by the plaintiffs in the Macingwane action that these overlaps as mentioned in the SCA judgment were such that it was necessary to cite the AGO parties for a possible interest which may exist or emerge in due course in the actions (now consolidated by agreement).

 

[12]  The joinder application was not opposed by the AGO parties and the joinder was granted.

 

[13]  Pursuant to the joinder, the particulars of claim in the Macingwane action were duly amended to include the citation of the AGO parties as defendants. The amendment was effected without objection on the part of the AGO parties.

 

The exception

 

[14]  The joined AGO parties now seek to except to the particulars of claim as amended on the basis that they disclose no cause of action against them.

 

[15]  This approach taken by the AGO defendants seeks to confuse the principles of joinder and the rules pertaining to pleading.

 

[16]  It is trite that a party may be cited in proceedings for the sake of convenience or on the basis that they are cited for possible interest although no case is pleaded against them.[2] That this is the case in the relation to the AGO parties is not seriously in contention.

 

[17]  Axiomatically, this type of joinder is one in which there is no pleading of a cause of action.

 

[18]  The AGO parties argue that when a person is joined for convenience or interest there must, notwithstanding this type of joinder still be an indication in the pleading of the basis of the convenience or interest.

 

[19]  There may be circumstances where this would be required, but I make no determination of this point in that it is not a matter before me and neither is it a matter of pleading.

 

[20]  In the normal course of procedural rights, if someone is joined and they object to their joinder, their remedy would be to bring an application on the basis that they have been mis-joined.

 

[21]  In the same vein if an application is made to join a party and such party objects to being part of the proceedings, that party has the right to oppose the joinder on whatever grounds it sees fit.

 

[22]  The AGO parties did not avail themselves of this procedure. The application to join the AGO parties as defendants was deliberately not opposed.

 

Costs

 

[23]  The plaintiffs seek costs on a punitive scale on the basis that these proceedings constitute an abuse of this courts process.

 

[24]  I am inclined to agree. The approach taken is patently anomalous with reference to the requirements of section 23 and the trite common law right to join for interest or convenience as opposed to cause of action.

 

Order

 

[25]  I thus make the following order:

The exception is dismissed with costs such costs to be on the scale as between attorney and client and to include the costs of two counsel where employed.

 

 FISHER J

JUDGE OF THE HIGH COURT

JOHANNESBURG

 

This Judgment was handed down electronically by circulation to the parties/their legal representatives by email and by uploading to the electronic file on Case Lines. The date for hand-down is deemed to be .

 

Heard:                                                            29 April 2024                   

Delivered:                                                      24 May 2024 -----

 

APPEARANCES:

 

Plaintiff’s (Respondent’s) counsel:           Adv. N Maenetje S.C

                                                                 Adv. N Luthuli

Instructing Attorneys:                               Edward Nathan Sonnenbergs Inc.

Defendant’s (Excipients) Counsel:           Adv. D M Leathern S.C

                                                                 Adv A A R Marques

Instructing Attorneys:                                VFV Attorneys

 

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