CHIGUMBA
J:
This
is an application for joinder which seeks to have the first
respondent joined as the fourth defendant in case number HC4965/13.
The consequential relief sought is that the first respondent be given
ten days within which to file her plea in the main matter.
There
is a petition to the court to order punitive costs to be paid in the
event that this application is opposed.
The
question before the court is whether, in considering whether the
requirements of Order 13 Rule 87(2)(b) of the High
Court Rules 1971
have been met, it is necessary to make a finding that a cause of
action is founded in the summons against the applicant for joinder,
or whether all that is required for joinder to be granted is
establishment of a 'direct and substantial' interest in the
matter.
It
is my view that the purpose of Rule 87(2)(b) is to ensure that all
matters in the cause may be effectively and completely determined and
adjudicated upon. It is to prevent unnecessary multiplicity of
litigation by adding anyone and everyone with a real and substantial
interest as a party to the proceedings in order that justice may be
done, and that the dispute may be resolved 'in one fell swoop'.
The
factual background to this matter is that on 24 June 2013, the
applicant instituted an action for special damages for bodily injury
arising out of a motor vehicle accident against the second, third and
fourth respondents. The second respondent opposed the applicant's
claim. The applicant then discovered that the motor vehicle involved
in the accident was registered and insured in the name of the first
respondent and not in the name of the third respondent as stated in
the police report.
That
is the basis on which the applicant avers that the first respondent
is an interested party who ought to be joined to the proceedings. The
rationale behind this is that this will facilitate execution of any
order or judgment which may be given in favor of the applicant.
On
29 April 2014, the first respondent filed opposing papers to the
application for her joinder to the action for accident damages.
She
averred that just because the motor vehicle which was involved in the
accident is registered and insured in her name it is not an
indication that she is an interested party who ought to be joined to
the proceedings. It was contended that in order for the first
respondent to be found to have a direct and substantial interest in
the proceedings, there ought to be a cause of action founded against
her in the declaration to the summons. In the absence of an averment
of vicarious liability in the declaration to the summons, first
respondent contends that she cannot and should not be found to be an
interested party who ought to be joined to the proceedings.
It
is common cause that the motor vehicle which ran over the applicant
was registered and insured in the name of the first respondent at the
material time. Is this sufficient basis on which to order the first
respondent to be joined as a party to the proceedings?
The
requirements of joinder are set out in Rule 87(2)(b) of the rules of
this court as follows;
“87.
Misjoinder or nonjoinder of parties
(1)…
(2) At any stage of the
proceedings in any cause or matter the court may on such terms as it
thinks just and either of its own motion or on application —
(a)…
(b)
order any person who ought to have been joined as a party or whose
presence before the court is necessary to ensure that all matters in
dispute in the cause or matter may be effectually and completely
determined and adjudicated upon, to be added as a party.”
See
Marian
Katsande (nee Mandizvidza) v
Fadzai Katsande & Ors
The
purpose of Rule 87(2)(b) is to prevent unnecessary multiplicity of
litigation and to facilitate the speedy and wholesale resolution of
disputes by ensuring that everyone whose legal interests are likely
to be affected by the outcome of the proceedings is joined as a party
to the proceedings. This ensures that all interested parties are
aware of the proceedings, and advised of the outcome, which gives
them an opportunity to protect their interests and fight for their
rights if they so wish, rather than to wait until judgment is handed
down and execution is imminent, to 'discover' that an interested
party was not even aware of the proceedings.
See
also Macey's
Supermarket & Bottle Store (Greencroft) Ltd
v
Edwards,
Marais & Another v
Pangola Sugar Milling Co. & Ors ,
where
it was stated that in order to qualify to be joined as a party to any
proceedings;
(a)
A party must have a direct and substantial interest in the issues
raised in the proceedings before the court; and that
(b)
His
rights may be affected by the judgment of the court.
The
concept of a 'direct and substantial interest' in the issues
raised was explored in the case of Henri
Viljoen (Pty) Ltd v
Waterbuck Brothers
. It was concluded that a direct and substantial interest is an
“interest in the right which is the subject matter of the
litigation and not merely a financial interest which is only an
indirect interest in such litigation.
See
also United
Watch Diamond Co & Ors v
Disa Hotels & Anor,
and Samuel Mugano
v
Fintrack & Ors,
Nyamweda v
Georgias,
Zimbabwe
Teacher's Association & Ors v
Minister of Education & Culture .
The
court has discretion to determine whether the interest in the issues
raised is 'sufficient'. The discretion must be exercised
judicially on consideration of all the facts and circumstances of the
case, which means a prima
facie consideration
of the evidence.
Joinder
will be refused if it will embarrass the plaintiff or where there are
special circumstances militating against it.
See
Barclays
Bank of Zimbabwe v
Reserve Bank of Zimbabwe & Anor,
Building Electrical & Mechanical Corp (Salisbury) Ltd
v
Johnson.
In
exercising its discretion, the court must be guided by the objectives
of joinder proceedings. See
Lazarus Casita v
Lou Hong Qing & Anor .
In
Building
Electrical & Mechanical Corp (Salisbury) v
Johnson supra
@ 308C-D it was stated that the objective of this procedure;
“…is
to avoid multiplicity of actions dealing with substantially the same
subject matter and involving much the same evidence. Its object is to
combine such actions together in one trial and so save time and
expense particularly to save the defendant from the inconvenience of
proving over and over again the same facts for the purpose of getting
the remedy to which he is entitled…
@309G…I think therefore that
when the same facts have to be conned over in order to ascertain the
liability and to give relief to one or other of the parties in such a
case the rule now provides that it is unnecessary to have separate
actions or separate proceedings but that a third party notice may be
served.”
It
is my view that the fact that the motor vehicle in question is both
registered and insured in the first respondent's name gives rise to
a real and substantial interest on the part of the first respondent
in the manner and outcome of the proceedings for accident damages.
In
my view, the heads of argument submitted on behalf of the first
respondent, reveal a fatal misapprehension of the test set out in the
case of Barclays
Bank of Zimbabwe v
Reserve Bank of Zimbabwe supra.
In
that case, it was stated that the court will generally order joinder
of a third party if a prima
facie case
is shown.
It
was submitted, on behalf of the respondent, that a prima
facie
case must be shown in the main matter, and that because of the lack
of averment of vicarious liability in the declaration to the summons
such a prima
facie
case had not been shown in this case.
It
is my considered view that the reference to a prima
facie
case was in relation to the level of evidence that a court ought to
have regard to in the application for joinder, not the merits of the
summons in the main matter. I say so because all that a court needs
to have regard to is the sufficiency of the interest in the issue on
the part of the person who should be joined as a party to the
proceedings. All that the court is required to do is to determine
whether, on a prima
facie
basis, as opposed to on a balance of probabilities, the party who is
sought to be joined has a legal interest in a thing and not a
person, which is of sufficient importance to persuade the court to
exercise its discretion in ordering joinder in the interests of
justice, the aim being to avoid multiplicity of litigation, to save
costs and time, and to reduce the prejudice to the defendant of
adducing evidence on the same issue over and over again.
It
follows that the heads of argument which were filed on behalf of the
first respondent being premised on a misapprehension of the law, were
largely of no use to the court, in its determination of this
application. Suffice is to say that, there is no requirement, in a
consideration of the requirements of Rule 87, that there be prima
facie
evidence of the cause of action in the main matter being established
against the party who is to be joined to the proceedings.
For
these reasons, the application for joinder be and is hereby granted.
It
is ordered that the first respondent be joined as the fourth
defendant in case number HC4965-13, and that the first respondent be
given ten working days from the date of this order within which to
file her plea.
The
law is clear, and for that reason there ought to have been no
opposition to this application. Accordingly the first respondent
shall pay the costs of this application on a legal practitioner and
client scale as prayed for by the applicant.
Messrs
Mushangwe & Co,
applicant's legal practitioners
Messrs
Muzondo & Chinhema,
respondents' legal practitioners
1.
HH249-13
2.
1964 RLR 13 (SR)
3.
1961 (2) SA 698 (N)
4.
1953 (2) SA 151 (O)
5.
1972 (4) SA 409 ©
6.
HH394-13
7.
SC200-88
8.
1990 (2) ZLR 48 (HC)
9.
HH477-13
10.
1950 (4) SA 303
11.
HH128-04
