Elkana Body Corporate v City of Johannesburg and Others (2023/115700) [2025] ZAGPJHC 520 (30 May 2025)

IN THE HIGH COURT OF
SOUTH AFRICA

GAUTENG DIVISION,
JOHANNESBURG

Case Number: 2023-115700

(1) 
REPORTABLE: YES/NO

(2) 
OF INTEREST TO OTHER JUDGES: YES/NO

(3) 
REVISED.

30
MAY 2025

In the matter between:

ELKANA
BODY CORPORATE                                                 

Plaintiff

and

CITY
OF JOHANNESBURG                                                      

First Defendant

JOHANNESBURG
ROADS AGENCY                                       

Second Defendant

PAPERBARK
BODY CORPORATE                                          

Third Defendant

NORTHUMBERLAND
PARK BODY CORPORATE                  

Fourth Defendant

KLUNENE
CONSULTING ENGINEERS (PTY) LTD                  

Fifth Defendant

In
re:

JOHANNESBURG
ROADS AGENCY                                       

First Third Party

PAPERBARK
BODY CORPORATE                                          

Second Third Party

NORTHUMBERLAND PARK
BODY CORPORATE                  

Third Third Party

JUDGMENT

WINDELL,
J:

Introduction

[1] 
This judgment concerns an exception
raised by the first third party, the Johannesburg Roads Agency (JRA),
to a third-party notice
issued by the fifth defendant in the main
action, Klunene Consulting Engineers (Pty) Ltd (Klunene). The JRA is
also cited as the
second defendant in the main action.

[2] 
The plaintiff, Elkana Body
Corporate, instituted action against the defendants, seeking the
relief set out in the particulars of
claim. Klunene filed a plea and,
on 5 April 2024, served a third-party notice on the JRA, setting out
the basis upon which it seeks
a contribution. The JRA, in turn,
delivered its notice of exception on 6 May 2024.

[3] 
The exception is founded on six
grounds, three primary and three alternatives. The primary grounds
are: (a) Klunene seeks to join
the JRA to an action in which it is
already a party; (b) the plaintiff has already sued both Klunene and
the JRA on a joint and
several basis; and (c) the JRA has already
pleaded to the issues raised in the third-party notice. The
alternative grounds are:
(a) non-compliance with Rule 13(2) of the
Uniform Rules of Court; (b) irregular filing without leave after
close of pleadings;
and (c) that the third-party notice is vague,
embarrassing, and discloses no cause of action.

Conduct
of attorney

[4] 
Klunene
filed its heads of argument on 31 July 2024. Despite receiving the
heads and the notice of set down in the opposed motion
court, Mr
Tshabalala of TP Khoza Attorneys Inc., acting for the JRA, failed to
file any opposing heads of argument. He appeared
in court wholly
unprepared and admitted, during the hearing, that he had not even
read Klunene’s submissions. The
matter was stood down to afford him an opportunity to advance
argument. In doing so, he was specifically alerted to the decision
in
Pikitup
Johannesburg SOC Ltd v Nair and Others
(“Pikitup”),
[1]
which directly addresses the applicable principles governing
third-party procedure. Despite
this opportunity, Mr Tshabalala was unable to offer any meaningful
submissions.

[5] 
In view of this conduct, I reported
the matter to Mr Tyron Khoza, the principal at TP Khoza Attorneys
Inc.. Mr Khoza has undertaken
to take appropriate disciplinary steps
against Mr Tshabalala and to report to the court on the measures
taken and those to be implemented
to avoid any recurrence thereof.

The
Exception

First
Ground: JRA Already a Party

[6] 
The
JRA contends that it cannot be joined as a third party as it is
already a party to the main action. This complaint falls under
Rule
30, but is, in any event, unfounded. Rule 13(8) expressly provides
for such joinder where a party seeks a contribution or

indemnification from another party, even if both are already parties
to the main action. As noted in Soundprops
1160 CC v Karlshavn Farm Partnership and Others,[2]
this subrule fills an important procedural gap and avoids unnecessary
litigation. The exception is thus legally unsustainable.[3]

Second
Ground: Joint and Several Claim

[7] 
The
JRA argues that because the plaintiff’s claim against it and
Klunene is joint and several, a third-party notice is impermissible.

This too is without merit. The SCA in Pikitup
rejected
this argument, affirming that a defendant may claim a contribution
from a fellow joint wrongdoer. The Court relied on Randbond
Investments (Pty) Ltd v FPS (Northern Region) (Pty) Ltd,[4]
where Mahomed J confirmed that the Apportionment of Damages Act[5]
does not bar such contribution.

Third
Ground: Same Issues Already Pleaded

[8] 
The third ground asserts that the
issues raised in the third-party notice are the same as those already
pleaded by the JRA in the
main action. It is unclear how this amounts
to a basis for exception, and no authority or argument was presented
in support thereof.
This is not a valid ground under either Rule 23
or Rule 30 and appears to be a repetition of the earlier grounds.

Fourth
and Sixth Grounds: Rule 13(2) and No Cause of Action

[9] 
The JRA contends that the
third-party notice does not comply with Rule 13(2) and is vague,
embarrassing, and discloses no cause
of action. No particularity is
provided as to why the notice is deficient. Rule 13(2) requires the
notice to state the nature and
grounds of the claim and the issue to
be determined. These requirements are met: the claim for contribution
is clearly pleaded
in paragraphs 12 to 15 of the notice.

[10] 
The
JRA has failed to demonstrate that the third-party notice is
excipiable on any reasonable interpretation. In Living
Hands (Pty) Ltd v Ditz,[6]
it was emphasised that exceptions must raise a substantive point of
law that may dispose of the matter, and the excipient must
establish
that no cause of action can be sustained on any interpretation.[7]
That threshold has not been met.

Fifth
Ground: Late Filing

[11] 
The fifth ground—that the
third-party notice was delivered late—is a procedural complaint
properly dealt with under
Rule 30, not Rule 23. In any event, it is
factually incorrect. The pleadings were still open at the time of
service. The plaintiff’s
reply to the third defendant’s
plea was served on 13 May 2024, while the third-party notice was
served on 27 March 2024 and
filed on 9 May 2024. These dates are
borne out by the correspondence attached to the practice note.

[12] 
Klunene’s attorneys requested
the JRA to reconsider this ground in light of these facts. The JRA
responded on 13 May 2024,
stating: “Please be advised our
client’s exception stands as it is.” That response is
also annexed to the practice
note.

Costs

[13] 
The
exception is without legal merit and has caused unnecessary delay and
expense. In Nel
v Waterberg Landbouers Ko-operatiewe Vereeniging,[8]
Tindall JA explained that an award of attorney and client costs may
be justified to ensure that the successful party is fully indemnified

in light of the conduct of the losing party.

[14] 
In the present case, the exception
was misconceived, improperly formulated, and pursued without proper
preparation. There is no
reason why Klunene should be left out of
pocket. A punitive costs order is warranted.

[15] 
In the result, the following order
is made:

15.1   
The exception is dismissed with costs on an attorney and client
scale.

L.
WINDELL

JUDGE
OF THE HIGH COURT

GAUTENG
LOCAL DIVISION, JOHANNESBURG

Delivered: 
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines.  The date for
hand-down is deemed to be 30 May 2025.

APPEARANCES

For
the excipient:                                          

Mr Tshabalala

Instructed
by:                                                

TP Khoza Attorneys Inc

For
the fifth respondent:                               

Mr L.J. Choate

Instructed
by:                                                

Hiepner & Associates

Date
of hearing:                                            

6 May 2025

Date
of judgment:                                         

30 May 2025