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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 27337/2015

DATE: 15 August 2017

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

CAMM TRANSPORT CC                                                                                      Applicant

and

GUMA TRANSPORT (PTY) LTD                                                                1^st Respondent

TRYNOS NKOMO                                                                                      2^nd Respondent

GIJIMA GROUP (PTY) LTD                                                                        3^rd Respondent

GUMA PREPAID SERVICES (PTY) LTD                                                    4^th Respondent

JUDGMENT

SWANEPOEL AJ

1. On or about 16 April 2015 Applicant issued summons against 1^st, 2^nd and 3^rd Respondents seeking damages resulting from a motor vehicle accident which occurred on 21 September 2012.

2. Applicant alleged that 2^nd Respondent was the driver of the vehicle that had caused the accident, that he was acting within the course and scope of his employment with 1^st and/or 3^rd Respondents, and that the latter were therefore vicariously liable for the damages suffered by applicant.

3. In their plea, 1^st and 3^rd Respondents denied that either of them had ever employed 2^nd Respondent. The plea contended that 2^nd Respondent was employed by 4^th Respondent.

4. Applicant now seeks an order joining 4^th Respondent as a party to the action.

5. Before me is also an application by 4^th Respondent to strike paragraphs 10 to 14 of the replying affidavit of the Applicant, on the grounds that it contains new matter that should have been dealt with in the founding affidavit. In the alternative, 4^th Respondent seeks leave to supplement its answering affidavit.

6. In my view it is in the interests of justice that the matter be fully ventilated. I expressed my prima facie view to the parties, and as a result the contents of the replying affidavit and the supplementary affidavit were allowed in evidence.

7. Rule 10 (3) of the Uniform Rules of Court states:

"Several defendants may be sued in one action, either jointly, jointly and severally, severally 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.”

8. A core issue in the action is, by whom 2^nd Respondent was employed at the time of the accident. That question could determine the vicarious liability of one or more of the parties. I do not understand 4^th Respondent to have taken issue with the contention that the identity of the 2^nd Respondent's employer is substantially the same question of fact that, if the Respondents were to be sued separately, would arise in each such action.

9. 4^th Respondent's main contention is that the cause of action arose in 2012, and that any claim that Applicant might have had against 4^th Respondent has prescribed. It contends that it would be unjust to join it as a party to what would no doubt be expensive litigation, if it was clear at this stage already, that the claim had prescribed.

10. There is a substantial dispute of fact surrounding the steps taken by Applicant to determine who was in fact 2^nd Respondent's employer. The 1^st, 2^nd and 4^th Respondents are evidently linked to one another in some manner. The 3^rd Respondent, Gijima Group seems to be a holding company, although the deponent to the answering and the supplementary affidavit, Christiaan Koch denies that 4^th Respondent, the party sought to be joined, is a subsidiary of Gijima. The nature of the relationship between the various Respondent companies is unclear.

11. What is clear is that when Applicant's attorneys issued the summons in May 2015, they were of the view that 2^nd Defendant was employed by 3^rd Respondent. This much is evident from the letter dated 26 May 2015 under cover of which the summons was sent to the Sheriff. In the letter Applicant's attorney states that 2^nd Respondent is employed by Gijima Group (Pty) Ltd, "as confirmed by Meera Anirudh". Not only does 4^th Respondent deny that Anirudh provided the information referred to in the letter, it states that the letter is blatantly false.

12. Section 12 (3) of the Prescription Act, Act 68 of 1969 provides:

"(3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.”

13. This Court cannot determine on the papers before it whether the claim has prescribed or not. That can only be determined by the trial court, after having heard evidence on this issue. If applicant is correct, and it was in fact misled by information given to it by persons involved with, or employed by one or more of the Respondents, then it may well have a case to make out that the claim has not prescribed. If 4^th Respondent is correct that Applicant did not take reasonable steps to determine who was 2^nd Respondent's employer, and that the claim has consequently prescribed, then 4^th Respondent would be entitled to its costs, both in this application and in the action.

14. Should this application be dismissed, Applicant may well be denied its day in court. The balance of convenience clearly favours the granting of the order.

15. In the result I make the following order:

15.1 4^th Respondent is joined as 4^th Defendant in the main action under case number 27337/2015;

15.2 Applicant is ordered to serve 4^th Respondent with all pleadings and notices filed of record in the main action, within 10 (ten) days of this order;

15.3 The costs of the application are reserved for determination in the main action.

J.J.C. SWANEPOEL

Acting Judge of the High Court

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