PNM Short Hauliers (Pty) Ltd v Izusa Carriers CC and Another

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BA Mashile J
• Judgment Date: 11 July 2022
• Court: Mpumalanga Division, Mbombela
• Hearing Date: 11 July 2022
• Docket Number: 269/2019

Mashile J:

INTRODUCTION:

[1]

This is an application brought in terms of Uniform Rules of Court 11 read with Section 173 of the Constitution of the Republic of South Africa ("the Constitution"). Reference to rule or rules shall mean Uniform Rules of Court and Section 173 shall mean Section 173 of the Constitution. The Applicant ("PMN Short Hauliers") seeks to consolidate two Court actions, one issued out of this Court on 25 January 2019 under Case No. 269/2019 and the other, initiated on 27 March 2019 in the Magistrate's Court for the Magisterial District of Mkhondo bearing Case No. 65/19.

[2]

The upshot of the consolidation, if granted, will be that the action shall henceforth proceed as one before this Court under Case No. 269/2019. The case sued out in this Court involves the Second Respondent ("Nhubunga") as Plaintiff and PNM Short Haulers as Defendant. The Magistrate's Court case, on the other hand, concerns the First Respondent (lzusa Carriers") as Plaintiff and PNM Short Haulers as Defendant.

[3]

The application has been inspired by essentially three factors. Firstly, that both actions concern the same collision. Secondly, that the probabilities are that the same witnesses, including expert witnesses, will be required to give testimony and be cross-examined. Thirdly, other than the Nhubunga, the parties are exactly the same. Additionally, the same legal representatives are involved in both actions and effectually, aside from the involvement of Nhubunga in this Court action, who may well be required to provide witnesses in the Magistrate's Court action, the two trials are virtually indistinguishable.

[4]

The application is opposed by lzusa Carriers. Nhubunga has delivered a notice to abide the decision of this Court on the application. lzusa Carriers opposes the application on the grounds that it will suffer great prejudice as it has had to abandon part of its claim to bring the action within the financial jurisdiction of the District Court. If PNM Short Haulers Succeeds in the relief it seeks, lzusa Carriers will be required to litigate in a Court

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Mashile J

whose financial jurisdiction threshold is far higher than that of the district Court where it has chosen to conduct this litigation. lzusa Carriers asserts further that it will be harshly prejudiced were this matter to be removed from the district Court to this Court as it will incur even more gratuitous costs because litigating in the High Court is a costly and a protracted process.

FACTUAL MATRIX:

[5]

Following a motor vehicle collision, on 21 April 2018 on the road Travelling from Lydenburg to Sabie, between Nhubunga's motor vehicle, DL 50 KR GP, and motor vehicle belonging to lzusa Carriers, FXD 416 MP, Nhubunga issued summons out of this Court on 25 January 2019 against lzusa Carriers claiming payment of damages in the amount of R685 892.45, costs and interest occasioned by the negligent driving of the driver of lzusa Carriers ("the High Court Action"). lzusa Carriers defended the High Court action and proceeded to issue a third party notice against PNM Short Haulers wherein it holds the driver of the latter to have been the sole cause of the damages of Nhubunga arising from the collision.

[6]

lzusa Carriers claimed in the third party notice that it has a right of recourse against PNM Short Haulers for any amount that may be awarded against it. On 27 March 2019, lzuza Carriers followed on the third party notice by instituting an action against PNM Short Haulers in the Magistrate's Court for the Magisterial District of Mkhondo held at Mkhondo under case number 65/2019 ("the Magistrate's Court action").

[7]

In the Magistrate's Court action, lzusa Carriers contends that it was the negligent driving of the driver of the vehicle belonging to PNM Short Haulers' that caused its damages in the amount of R227 377.54. To bring the claim within the financial jurisdiction of the Magistrate's Court, lzusa Carriers alleges that it had to abandon an amount of R27 377.54. Litigating in the High Court will as such, argues lzusa Carriers, prejudice it as it will be compelled to conduct the litigation in a Court whose monetary jurisdiction is higher but for a lower amount that could easily have been run in the Magistrate's Court.

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Mashile J

ISSUES:

[8]

The matter raised in this application is purely legal in nature and it concerns consolidation of cases envisaged in Rule 11 and whether or not this Court can invoke Section 173 pertaining to this Court's inherent power to protect and regulate its own process, and to develop the common law, taking into account the interests of justice. I note that PNM Short Haulers has also mentioned as part of the issues for determination the question of convenience, avoidance of multiplicity of actions, attendant costs and the prejudice that lzusa Carriers claims will suffer if the case were to be removed from the Magistrate's Court. The approach that I take is that a determination of whether or not to invoke Section 173 may, depending on the Court's finding, be dispositive of the whole case. For that reason, it has to be sensible to attend to it before entertainment of any other issues.

LEGAL FRAMEWORK:

LEGISLATIVE PROVISIONS:

[9]

Rule 11 and Section 173 of the Constitution are central to the controversy between the parties. As such, it is practical that the starting point be a citation of the provisions of the Rule and the Section. Firstly, the provisions of Rule 11 state that:

"Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party thereto and after notice to all interested parties, make an order consolidating such actions, whereupon -

(a)

the said actions shall proceed as one action;

(b)

the provisions of rule 10 shall mutatis mutandis apply with regard to the action so consolidated; and

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(c)

the court may make any order which to it seems meet with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the said actions."

[10]

Secondly, Section 173 of the Constitution is headed: Inherent power, and it provides that:

"The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice."

[11]

Also significant are the provisions of Section 169(1) of the Constitution, which deal with matters that can be heard by the High Court. The section provides that:

"(1)

The High Court of South Africa may decide—

any constitutional matter except a matter that—

(I) the Constitutional Court has agreed to hear directly in terms of section 167(6)(a); or

(II) is assigned by an Act of Parliament to another court of a status similar to the High Court of South Africa; and

(b)

any other matter not assigned to another court by an Act of Parliament."

Section 170 of the Constitution stipulates that a Magistrates' Court may decide any matter determined by a statute.

[12]

In relation to 'court procedures', Section 171 of the Constitution provides that: "All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation". The national...