Segal and Another v Segil

• Jurisdiction: South Africa
• Judge: Munnik JP, Van den Heever J and Howie J
• Judgment Date: 20 December 1990
• Hearing Date: 04 May 1990
• Court: Cape Provincial Division

Howie J:

Arising out of a series of applications brought by appellants and others against respondent and others between 1974 and 1977, respondent obtained an order on 10 September 1982 containing the following provisions (in which she is referred to as 'first respondent'):

'1.1

I Case No M1538/74

Richard Geoffrey Segal and Michael David Segal are to pay first respondent's costs herein jointly and severally.

1.2

Case No M173/75

Richard Geoffrey Segal and Michael David Segal are to pay first J respondent's costs herein jointly and severally.

Howie J

1.3

A Case No M1480/76

Rose Beatrice Katz NO is to pay first respondent's costs herein.

1.4

Case No M1990/77

Richard Geoffrey Segal, Michael David Segal and Rose Beatrice Katz NO are to pay first respondent's costs herein jointly and severally.

1.5

B First respondent's costs of obtaining adjudication on the question of costs are to be paid as in 1.4 above.'

With a view to execution upon that order, which, for convenience, I shall call 'the 1982 order', respondent's attorneys caused bills of costs to be drawn and submitted for taxation. Due to delays, the reasons for which are presently irrelevant, taxation proceedings only commenced on 22 C April 1986. The Taxing Master took the view mero motu that, with the passage of more than three years, the 1982 order had become superannuated by reason of the terms of Rule 66. He accordingly declined to tax. As a result, respondent launched an application for an order set out as follows in the notice of motion:

'1.

D Directing the Taxing Master of the honourable Court to proceed with the taxation of the bill of costs prepared on behalf of Miriam Segil pursuant to the orders granted on 10 September 1982.

Alternatively to 1

2.

Reviving, in terms of Rule of Court 66, the judgment of this E honourable Court delivered on 10 September 1982, in which various costs orders were made in favour of Miriam Segil.

And in either event

3.

Granting such further and/or alternative relief as this honourable Court may deem fit.

4.

Directing that applicants pay the costs of this application.' F

The application was heard by Lategan J who granted relief in terms of paras 1, 2 and 4 of the notice of motion. Hence this appeal, which is brought with the leave of the Appellate Division.

In the papers before the Court a quo appellants opposed the application on various grounds. For present purposes it is necessary to deal with only one, which was this. It was alleged that Rose Beatrice Katz NO had not G been given notice of the application as required by Rule 66, that she had a direct interest in the proceedings and that her non-joinder warranted dismissal of the application. During argument in the Court below respondent's counsel sought to meet this point by saying that, on behalf of his client, he waived her rights against Mrs Katz. Lategan J considered H that this statement by counsel had in effect cured the non-joinder but that in any event, because liability in terms of the 1982 order was joint and several, respondent was entitled in law to proceed with execution against appellants only.

Appellants' counsel advanced five submissions in support of the appeal. I Firstly, he said, although non-joinder was not a complete 'defence', the Court a quo ought to have ordered a stay of the application so that Mrs Katz could be joined. Secondly, it was submitted that the purported waiver expressed by respondent's counsel had been conditional upon revival being ordered; accordingly, until then, Mrs Katz was still entitled to be J joined. Thirdly, it was contended that waiver, being a matter of

Howie J

A contract, required acceptance and that no acceptance by Mrs Katz had been proved. Fourthly, said counsel, if waiver had indeed occurred and was sufficient to overcome the failure to join Mrs Katz, appellants ought to have been awarded costs up till the time of the waiver. The fifth submission was that, in view of the words 'Alternatively to 1' which B preceded para 2 of the notice of motion, it was not competent to make the revival order once relief was granted in terms of para 1.

The matter of joinder relates to the prayer for revival of the 1982 order. As to the need for revival, Rule 66 provides:

'66. Superannuation

C (1) After the expiration of three years from the day whereon a judgment had been pronounced, no writ of execution may be issued unless the debtor consents to the issue of the writ or unless the judgment is revived by the Court on notice to the debtor, but in such case no new proof of the debt shall be required. In the case of judgment for periodic payments the three years shall run, in respect of any payment, from the due date thereof.

D (2) Writs of execution of a judgment once issued remain in force, and may, subject to the provisions of subpara (ii) of para (e) of ss (2) of s 3 of the Prescription Act 18 of 1943, at any time be executed without being renewed until judgment has been satisfied in full.'

In the present case what was sought to be revived was an order for costs E and not a judgment as such. However, insofar as the Rule refers to a 'judgment', it obviously uses that word in its technical sense. In that sense it is the equivalent of 'order', the former being the term used to describe a Court's decision in an action and the latter to denote the decision in motion proceedings. Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 714J-715C.

F As regards the point of non-joinder, the argument on appellants' behalf was developed along these lines. The 1982 order having become superannuated, appellants and Mrs Katz were not liable to execution proceedings; upon revival of the order each would become liable to execution in respect of the whole judgment debt; if either appellant paid G the debt in full he could recover a pro rata share from Mrs Katz; accordingly, on the authority of Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A), Mrs Katz had a direct and substantial interest in the revival application and should have been joined. I take counsel for appellants to have meant that appellants had a right to demand H joinder and not merely that this was an appropriate case for the Court below to have ordered joinder in the exercise of its discretion.

The right to demand joinder is very limited. Sheshe v Vereeniging Municipality 1951 (3) SA 661 (A) at 666 in fine. It is confined to situations where the non-joined party (for convenience I shall call him I the 'third party') either has a joint proprietary interest with one or the other of the existing parties, or may have a direct and substantial interest in the Court's order. Kock & Schmidt v Alma Modehuis (Edms) Bpk 1959 (3) SA 308 (A) at 318F.

Liability under the 1982 order was joint and several, not joint, and no question of a joint proprietary interest arises. The question, then, is J whether Mrs Katz had a direct and substantial interest.

Howie J

A The headnote in the Amalgamated Engineering Union case supra appears to indicate that the Court held joinder to be necessary where such interest existed or where the Court's order would not be capable of being sustained or carried into effect without prejudicing the third party. On analysis of the judgment, however, it seems to me, with respect, that the existence of a direct and substantial interest was considered to be dependent upon the B extent to which the order might affect the third party (see at 657, 659 and 661). At the last-mentioned page the judgment reads:

'. . . (T)he Council is directly and substantially interested, and . . . a judgment as prayed . . . "cannot be sustained and carried into effect without necessarily prejudicing the interest of" the Council'.

C It would seem therefore, that the prejudicial potential of the order vis-à-vis the third party is the criterion by which to test whether he has a direct and substantial interest.

The meaning of the phrase 'direct and substantial interest' was analysed, in the context of a full review of the authorities, in Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O). At 167H it was D pointed out that the need for joinder was dependent upon 'a legal interest in the subject-matter of the action . . . which could be prejudicially affected by the judgment'. This, it was held at 169H, was

'an interest in the right which is the subject-matter of the litigation and it is not merely a financial interest which is only an indirect interest in such litigation'. E

This view has been adopted in this Division. United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another 1972 (4) SA 409 (C) at 415H.

Application of those considerations to the instant case involves an F examination of the nature of a revival application and the possible implications for Mrs Katz consequent upon the grant of such application.

Prescription has always constituted a permanent bar to the recoverability of a debt, including, of course, a judgment debt. However, in Holland, alongside prescription, there had, by the 16th century, developed a rule of practice whereby the executability of a judgment debt G lapsed after a certain period. According to that rule the judgment became superannuated and execution could only be carried into effect if the judgment was revived. In his Commentary Voet 42.1.47 (Gane's translation vol 6 at 349) put the position thus:

'(iv)

Superannuation - Finally it is true that the action on a judicial H decision lasts for 30 years, as though it were a personal action. Hence it was also said of old to be permanent, and thus would entirely lose its strength only by prescription of very long term. Nevertheless by the customs of today the rule has grown up that it is superannuated in a shorter scope of time, with the result that is to say that...