HJT Transport CC v Cape Finance Corporation (Pty) Ltd (4293/2023) [2024] ZAECGHC 75 (30 July 2024)

Editorial note: Certain information has been redacted from this judgment in compliance with the law.

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, MAKHANDA)

CASE NO.: 4293/2023

Reportable

NO

In the matter between:

HJT TRANSPORT CC Applicant

and

CAPE FINANCE CORPORATION (PTY) LTD First Respondent

MILLENNIUM TRANSPORTERS t/a Second Respondent

MILLTRANS

THE SHERRIF FOR THE HIGH COURT,

EAST LONDON Third Respondent

JUDGMENT

Cengani-Mbakaza AJ

Introduction

[1] The first respondent (Cape Finance) owns three motor vehicles which are described as (i) A 2015 Volvo FH 610 Truck Tractor with registration letter and number[…]; (ii) A 2016 Trailered SA Tri-axle Low Bed Trailer with registration letters and number[…]; and (iii) A 2016 DAF XF 105 460 Truck Tractor with registration letters and number […] (the three vehicles). These three vehicles were in possession of HJT Transport CC (the applicant) under a lease agreement with identical terms and conditions for each vehicle. Cape Finance claimed that the applicant breached the terms of the lease agreement leading to its cancellation. As a result, Cape Finance demanded the return of the three vehicles citing the applicant’s failure to meet the obligation under the lease.

[2] On 10 July 2023, Cape Finance filed an urgent application with the Bellville Magistrate’s court, requesting the return of the three vehicles. The court granted an order in the form of a rule nisi which required the applicant to show cause why the order should not be made final.

[3] On 23 July 2023, Cape Finance enforced the court order by instructing the sheriff of the court to seize and remove the three vehicles in accordance with the order granted by the court. The rule nisi was discharged, and subsequently Cape Finance sought to appeal the court’s order.

[4] On 23 November 2023, the applicant filed a court application under case number 4293/23 that consisted of two parts: Part A: requested the return of the three vehicles pending the hearing of Part B, essentially asking the court to ensure that the three vehicles are not sold, damaged or disposed of until the main issue is resolved. Part B sought a mandament van spolie, specifically seeking the return of the three vehicles and any losses incurred due to their removal.

[5] The court granted the order for the preservation of the three vehicles (Part A) without opposition from Cape Finance. The main application (Part B) was scheduled for hearing on 16 May 2024 to determine the merits of the applicant’s claim for mandament van spolie and the return of the three vehicles which are currently being kept within the jurisdiction of this court, specifically in East London.

[6] On 04 April 2024, Cape Finance delivered an answering affidavit in respect of Part B. On the same date, it launched a new application under case number: 1368/2024 seeking the return of other twelve vehicles, in addition to the three vehicles already in dispute. This new application appears to be separate from the original case but related to the same dispute, the alleged breach of the lease agreement.

[7] On 23 April 2024, Cape Finance’s attorney sent an email to the applicant’s attorney, proposing that the two related applications (case numbers 4293/2023 and 1368/2024) be consolidated into a single case. However, after exchanging emails, the applicant’s attorney did not agree to the consolidation effectively rejecting the request.

[8] Cape Finance approached this court seeking an order in terms of Uniform Rule 11 of the Uniform Rules of Court which allows the court to consolidate separate but related legal applications if it is deemed convenient.

[9] Although Cape Finance is the applicant for consolidation, HJT Transport CC will for convenience, remain as it is in the main application (the applicant). The application for consolidation of the two applications is opposed.

The legal principles

[10] There is a plethora of cases that outline the key principles of Uniform Rule 11. These principles guide the court’s decision-making process when considering consolidation requests, ensuring that the legal process is efficient, cost-effective and fair to all the parties involved. The key principles are paraphrased thus:

(a) Prejudice: The primary concern is to avoid prejudice to any party.¹

(b) Multiple applications: The rule aims to prevent multiple trials or applications based on the same facts from proceeding independently.²

(c) Convenience: Convenience is a crucial consideration in consolidation proceedings.³ The term ‘convenient’ implies not just ease or practicality, but also suitability and fairness in a given situation. A procedure is deemed appropriate, reasonable and just for all parties involved, including witnesses and the court itself, taking into account all the circumstances of the case.⁴

(d) The Duplication: Consolidation helps to avoid duplicate applications and associated costs.

(e) The Onus on the Applicant: The party requesting consolidation bears onus to show that it will not cause substantial prejudice to the other parties.

(f) The Explanation/ change of heart required: The applicant must explain why separate applications were initially instituted and now sought to be consolidated.⁵

(g) The Court’s discretion: The court has broad discretion to grant or refuse consolidation application.⁶

Issues

[11] The primary concern is whether Cape Finance has satisfied the jurisdictional requirements of consolidation proceedings. Specifically, the court needs to be convinced that consolidating the cases would be more convenient overall (the balance of convenience favours consolidation) and that no party would suffer substantial prejudice as a result of the consolidation of the two applications.

The parties’ legal submissions and analysis by the court

[12] Cape Finance’s counsel argued that if consolidation application is not granted it may result in two judges adjudicating the same overlapping issues, potentially resulting in conflicting judgments. The failure to consolidate the two matters may lead to wastage of judicial court time and resources and unnecessary legal fees as the same issues would be adjudicated in multiple proceedings. Since Part B was not brought on an urgent basis, no prejudice would be caused by consolidating the two applications, he argued. Counsel further emphasized that the appeal, which was filed subsequent to the discharge of the rule nisi, was no longer being pursued by the appellants, indicating that they had abandoned their appeal.

[13] The applicant’s counsel, on the other hand, argued that the consolidation application is an abuse of the court process, as it is being used to delay or avoid the main action. He contended that the consolidation application is a disguised postponement application, essentially not the intended purpose of consolidation. In amplification, counsel submitted that Cape Finance missed a critical deadline or procedural step to file the answering affidavit in respect of Part B.

[14] The applicant’s counsel further raised a lot of other procedural issues claiming that the application that Cape Finance seeks to launch under case number: 1368/2024 is a counter-application that was improperly brought on an urgent basis without adhering to the formal procedures governing urgent matters as outlined in the Uniform Rules of Court. I agree with the applicant’s counsel’s position that in this instance, the application for consolidation of cases cannot be deemed urgent, as there is no legal basis to support such a designation.

[15] Upon careful consideration of the submissions presented by both counsel and a thorough application of the principles governing consolidation, I have reached a conclusion that consolidating the two applications would serve the interests of efficiency and convenience. The fact that both applications stem from the same core issues which are the alleged breach of the lease agreement and mandament van spolie is uncontested. Although an application for mandament van spolie is aimed at retaining the status quo before all else, in the matter under consideration, the issues in both applications are indeed overlapping. In my opinion, consolidating them would prevent unnecessary delays and duplication of proceedings, thereby aligning with the underlying purpose of consolidation. It is anticipated that a single judgment will be handed down, disposing of all the issues in one application.

[16] Furthermore, the exchange of emails between the parties reveals that the parties are represented by the same legal representatives and that favours a balance of convenience for both the court and the parties. These are not action proceedings, therefore there is no risk of witnesses travelling from different parts of the country, thereby wasting the expenditure of financial resources. I therefore hold that the issue of prejudice raised by the applicant’s counsel is not substantial in nature. The appeal proceedings were abandoned, the outstanding disputes between the parties are the two applications that are being considered for consolidation. Any delay caused by the late filing of the court papers can easily be compensated for by the cost order when the main consolidated application is adjudicated upon. In the result, the application for consolidation stands to succeed.

Order:

[17] The following order shall issue:

1. The two applications under case numbers: 4293/2023 and 1368/2024 are consolidated and shall proceed as one application under case number: 4293/2023

2. The provisions of the Uniform Rule 10 pertaining to the joinder of the parties cited under case number 1368/2024 shall mutatis mutandis apply to the consolidation application.

3. The applicant is ordered to pay the costs of consolidation application on scale ‘A’ as contemplated in terms of Uniform Rule 67A read with Uniform Rule 69 of the Uniform Rules of Court.

_______

N CENGANI-MBAKAZA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

APPEARANCES:

Counsel for the Applicant : Adv S H Cole SC

Instructed by : JA Le Roux Attorneys Attorneys

Mthatha

E-Mail: johan@jalerouxatt.co.za

C/o Wheedon Rushmere&Cole Inc

Makhanda

Counsel for the 1^st Respondent : Adv JP Steenkamp

Instructed by : BDP Attorneys Inc.

Tygervalley

E-Mail: robyn@bdplaw.co.za

C/o Nettleton’s Attorneys

Makhanda

E-Mail: daisy@netteltons.co.za

Heard on : 22 May 2024

Judgment Delivered on : 30 July 2024