Court name
High Court Main Division
Case name
Kandjii v Awaseb and Others
Media neutral citation
[2014] NAHCMD 177
Judge
Ueitele J


















SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
SAFLII
Policy






REPUBLIC OF
NAMIBIA





IN THE HIGH COURT
OF NAMIBIA, MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: I 2696/2012





Case
no: I 2077/2013





DATE:
11 JUNE 2014





In the matter
between





GERSON UAKAERA
KANDJII............................................................APPLICANT





And





ELIFAS
AWASEB.......................................................................1ST
RESPONDENT





ZEGURIN
AWASES.................................................................2ND
RESPONDENT





OBED
TJONGARERO..........................................................3RD
RESPONDENT





KATRINA
TJONGARERO....................................................4TH
RESPONDENT





REGISTRAR OF
DEEDS......................................................5TH
RESPONDENT





FIRST NATIONAL
BANK OF NAMIBIA …......................6TH
RESPONDENT





Neutral
citation:Kandjii v Awaseb (I 2696/2012) [2014] NAHCMD 177 (11 June
2014)





Coram: Ueitele,
J





Heard on: 12
December 2013





Delivered on: 11
June 2014





Flynote: Practice
- Parties - Joinder - Applicant applying for an order directing the
consolidation of actions against it - When to be ordered.





Summary





This is an
application where the applicant seeks an order for consolidation of
two actions (Case No. I 2696/2012 and Case No: I 2077/2013). The
application is opposed by the plaintiffs.





The plaintiffs’
action (in Case No. I 2696/2012), is based on ejectment of the
applicant from a certain immovable property namely Erf 4….,
E…… Street, K……., Windhoek and a claim
for damages allegedly suffered by the plaintiffs as a result of the
occupation of the property by the applicant. The applicant’s
action (in Case No: I 2077/2013) is based on a breach of contract in
that he seeks an order to declare an agreement of sale entered into
by and between the plaintiffs on the one hand and the third and
fourth respondents on the other hand void and of no legal effect





The pleadings in
Case No. I 2696/2012 have closed and the matter is trial ready
whereas in Case No: I 2077/2013 the pleadings are still at the early
stages they have not even closed. At the time of hearing the
application for consolidation the respondents had not yet filed their
plea and the issues between the parties have accordingly not yet been
defined.





The onus is upon
the party applying to Court for a consolidation to satisfy the Court
that such a course (i.e. consolidation of actions) is favoured by the
balance of convenience and that there is no possibility of prejudice
being suffered by any party.





Held the only
facts which are common in the two actions is the immovable property
and the fact that both the plaintiffs and the appellants purchased
the immovable property from the third and fourth respondents. That
does not mean that the questions of law and fact upon which the right
to relief in the two actions depend is 'substantially' the same.





Held that an
order to consolidate the actions will not be convenient if it causes
prejudice to any of the parties.





Held the
applicant failed to make out a case for the consolidation of the two
cases.





The application
for consolidation is dismissed with costs.








ORDER








1. The
application for consolidation is dismissed with costs. Those costs to
include the costs of one instructed and one instructing counsel.





2. Case no. I
2696/2012 is postponed for a pre-trial conference to be held on 11
June 2014 at 08h30.





3. Case no. I
2077/2013 will proceed to case planning conference with the notice
for the date and time of the case planning conference to follow soon.











JUDGMENT








UEITELE, J





INTRODUCTION





[1] The applicant,
in this interlocutory application for the consolidation of two
actions (Case No. I 2696/2012 and Case No: I 2077/2013), is Mr Gerson
Uakaera Kandjii and he is the defendant in case no: I 2696/2012 (I
will in this judgment refer to him by that designation that is, the
applicant). The applicant is the plaintiff in case no: I 2077/2013
and the six respondents in this application are the six defendants in
that case.





[2] The first and
second respondents are the first and second plaintiffs in case no I
2696/2012 (I will in this judgment and for the sake of convenience
refer to the first and second respondents as the plaintiffs) and they
instituted action against the applicant in which action they claim an
order ejecting the applicant from a certain immovable property namely
Erf 4….., E….. Street, K…….., Windhoek (
I will, in this judgment refer to it as the immovable property)
and damages allegedly suffered by the plaintiffs as a result of the
occupation of the property by the applicant.





[3] The applicant
filed a notice of intention to defend the plaintiffs’ claims in
that action (i.e. case no: I 2696/2012) and requested further
particulars which were given. The plaintiffs applied for summary
judgment which the applicant opposed. The application for summary
judgment was then abandoned. The pleadings in that case (i.e. case
no: I 2696/2012) closed and the matter was referred to judicial case
management. On 10 July 2013 a case management conference was held
and at the conference, I amongst others ordered that a pretrial
conference be held on 30 October 2013 and the matter proceeds to
trial during the week of 11-15 November 2013. I also ordered that the
parties must file their discovery affidavits on or before 06
September 2013.





[4] The pretrial
conference and the trial did, however, not proceed as envisaged
because on 29 October 2013 the applicant gave notice that he will, at
the pretrial conference scheduled for 30 October 2013, apply for the
consolidation of the two actions. On 30 October 2013 the applicant
indicated that he had not served the application for consolidation on
the respondents, because he was encountering problems with the
plaintiffs’ addresses. I ordered the applicant to serve the
application, at the offices of the plaintiff’s legal
practitioners. That application is before me and is opposed by the
plaintiffs. The third to sixth respondents have not entered the fray
in this consolidation application.





[5] As I have
indicated above the applicant is the plaintiff in case no: I
2077/2013 and in that action he seeks an order to declare an
agreement of sale entered into by and between the plaintiffs on the
one hand and the third and fourth respondents on the other hand void
and of no legal effect. The summons in case no: I 2077/2013 was
issued out of this Court by the Registrar on 08 July 2013, but was by
25 October 2013 not yet served on the plaintiffs or the third to
sixth respondents. At the time of hearing the application for
consolidation the respondents had not yet filed their plea and the
issues between the parties have accordingly not yet been defined.





[6] The applicant in
this application for consolidation, states that both actions arise
out of the same facts and if consolidation is not ordered it will
result in a multiplicity of actions with more than one court being
asked to decide on the same facts and issues. In the launching
affidavit, Mr Siyomunji (the legal practitioner for the applicant)
who deposed to that affidavit, amongst others submitted as follows:





‘8 Applicant’s
(plaintiff’s) action under case no I 2077/2013, is in essence a
defence and a claim in reconvention against First and Second
Respondent’s (First and Second Plaintiffs’) claim against
the Applicant (defendant) under Case No. I 2696/2012.





9 In the light of
the aforesaid it is respectfully submitted that the claims in the two
aforementioned actions, which have been put forward by the Applicant
and the First and Second Respondents in Respect of the immovable
property situated at Erf 4….., E…… Street, K…….,
Windhoek arise out of the same facts and if consolidation is not
ordered it will result in a multiplicity of actions with more than
one court being asked to decide on the same facts and issues.





10 I consequently,
respectfully submit that, in order to avoid a multiplicity of actions
and attendant unnecessary costs, as well as for purposes of
convenience and expedition it is necessary to consolidate the
aforesaid two actions into one action…’





[7] Ms. Visser who
appeared for the applicant submitted that the claims in both the
actions overlap and relate to and are founded on the disputed
ownership of the immovable property. Likewise the claims arise out of
the same facts and evidentiary documents which have already been
discovered by the parties. She further submitted that the convenience
of the Court and that of the parties themselves to have the two
actions consolidated far outweighs any prejudice the plaintiffs may
suffer due to the matter not having proceeded to trial during the
week of 11-15 November 2013.





[8] This application
is however opposed by the plaintiffs. The plaintiffs oppose the
application on three grounds namely:





(a) The applicant
has failed to make out case for the consolidation of the two cases;





(b) The plaintiffs
will suffer substantial prejudice if the application is granted
because the action in case no. I 2696/2012, is trial ready whereas in
case no: I 2077/2013 the pleadings are still at the early stages they
have not even closed;





(c) The applicant’s
application for consolidation is not bona fide it is calculated to
buy the applicant more time.





[9] I will now
proceed to consider the merits and demerits of the application. Rule
11 of the Rules of this Court reads as follows:





'11. 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





(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.’ (Italicized and underlined for
emphasis)





[10] In the matter
of New Zealand Ins Co Ltd v Stone1
Corbett, AJ observed that the onus is upon the party applying to
Court for a consolidation to satisfy the Court that such a course
(i.e. consolidation of actions) is favoured by the balance of
convenience and that there is no possibility of prejudice being
suffered by any party. Although Rule 11 makes no mention of prejudice
I am of the view that if an order to consolidate the actions will
not be convenient if it causes prejudice to any of the parties.





[11] I have
indicated above that the plaintiffs oppose the application for
consolidation and that one of the grounds on which they oppose the
application is the ground that the applicant has not established in
his papers that it is convenient to the court and to both the parties
to consolidate the two actions. It is correct that to enable me to
exercise my discretion in determining whether it would be convenient
to consolidate these matters, I would need to have some understanding
or appreciation as to the ambit and extent of the evidence which
would be avoided in duplication.





[12] The only
information which the applicant has placed before me is the fact that
the plaintiffs’ action (in case no. I 2696/2012), is based on
ejectment of the applicant from the immovable property and a claim
for damages and that that the applicant’s action (in case no: I
2077/2013) is based on a breach of contract, not by the applicant but
by the third and fourth respondents to this application. The
applicant does not in the affidavit supporting the application
elucidated (when he clearly had the onus to do so) the facts which he
alleges make it convenient for the two separate and distinct actions
to be heard together. The applicant furthermore does not elaborate on
the nature of the prejudice he will suffer if the actions are not
consolidated.





[13] Ms. Visser in
her submission alluded to an overlap of the action because of the
disputed ownership of the immovable property. Although there may be
some overlap of evidence, the applicant bears the onus of
establishing that overlap. But she has not been able to do so
properly. I therefore agree with Mr Khama who appeared for the
plaintiffs that the applicant simply made conclusions without laying
the basis for the conclusions when he submitted (I have quoted above
from Mr Siyomunji’s affidavit) that it is convenient for the
court to consolidated the two actions. In my view the only facts
which are common in the two actions is the immovable property and the
fact that both the plaintiffs and the appellants purchased the
immovable property from the third and fourth respondents. That in my
view does not mean that the questions of law and fact upon which the
right to relief in the two actions depend is 'substantially' the
same.





[14] In the matter
of Licences and General Insurance Co. Ltd v Van Zyl and Others.2
Wessels, J made the following observation:





‘In so far as
the Court may be entitled to consider an application for a joint
trial of the separate actions, I am of the opinion that such an
application could normally only be considered when the various cases
are ready to go to trial. In this matter the pleadings have not yet
been closed and the issues have accordingly not yet been defined. In
the circumstances it would appear to be quite impossible to consider
whether there should be a joint trial or not.’





[15] In find myself
in a similar situation, apart from the fact that the applicant has
not placed sufficient information before me for me to assess the
convenience of consolidating the actions, the pleadings in case no: I
2077/2013 have not yet been closed and the issues have accordingly
not yet been defined. In the circumstances it would appear to be
quite impossible to consider whether there should be a joint trial or
not. It would seem to me that it is not, in the exercise of my
discretion, convenient as is contemplated by Rule 11, to consolidate
these actions. In the exercise of my discretion, I refuse the
application for consolidation with costs.





[16] It follows that
case no. I 2696/2012 must proceed to a pre-trial conference and as
regards case no: I 2077/2013 that case must, in terms of the newly
promulgated rules of court proceed to case planning conference. The
parties in case no. I 2077/2013 will be given notice as to the date
of the case planning conference in due course. I am not in a
position to do that today because of the fact that the third to sixth
respondents have-not participated in these proceedings and that case
was not docket allocated.





[17] The order I
accordingly make in this application is as follows:





1 The application
for consolidation is dismissed with costs. Those costs to include the
costs of one instructed and one instructing counsel.





2 Case no. I
2696/2012 is postponed for a pre-trial conference to be held on 11
June 2014 at 08h30.





3 Case no. I
2077/2013 will proceed to case planning conference with the notice
for the date and time of the case planning conference to follow soon
.









Ueitele S F I





Judge




APPEARANCES





APPLICANT/DEFENDANT: Ms
I Visser


Instructed
by: Nambahu & Associates











1st & 2nd
RESPONDENTS/1st & 2nd PLAINTIFFS: D Khama


Instructed
by: Sisa Namandje & Co. Inc






11963
(3) SA 63 (C).




21961
(3) SA 105 (D).