IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE ... · alleged misappropriation of funds belonging...

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IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE - GRAHAMSTOWN) Case No: 1062/2001 Heard on : 19 November 2009 Delivered : 14 December 2009 In the matter between: WILMOT MANDLA CHAGI & 29 OTHERS Plaintiffs and SPECIAL INVESTIGATING UNIT AND 9 OTHERS Defendants JUDGMENT KROON J: [1]This judgment concerns a number of exceptions delivered by the plaintiffs to the pleas filed by the defendants in the proceedings. [2]The plaintiffs initially issued summons in this matter on 14 August 2001. At that stage the parties cited were reflected as follows: Special Investigating Unit 1 st Defendant MEC for Agriculture and Land Affairs (Eastern Cape) 2 nd Defendant Daily Dispatch Media (Pty) Ltd 3 rd Defendant

Transcript of IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE ... · alleged misappropriation of funds belonging...

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IN THE HIGH COURT OF SOUTH AFRICA(EASTERN CAPE - GRAHAMSTOWN)

Case No: 1062/2001

Heard on : 19 November 2009

Delivered : 14 December 2009

In the matter between:

WILMOT MANDLA CHAGI & 29 OTHERS Plaintiffs

and

SPECIAL INVESTIGATING UNIT AND 9 OTHERS Defendants

JUDGMENT

KROON J:

[1]This judgment concerns a number of exceptions delivered by the plaintiffs to the

pleas filed by the defendants in the proceedings.

[2]The plaintiffs initially issued summons in this matter on 14 August 2001. At that

stage the parties cited were reflected as follows:

Special Investigating Unit 1st Defendant

MEC for Agriculture and Land Affairs

(Eastern Cape) 2nd Defendant

Daily Dispatch Media (Pty) Ltd 3rd Defendant

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(In fact, the correct name of the 3rd defendant is Dispatch Media (Pty) Ltd).

[3]Claim A made the following allegations: On 25 August 1998 the 1st and 2nd

defendants, in founding papers filed in proceedings before the Special Tribunal,

made certain defamatory statements concerning the plaintiffs (in essence relating to

alleged misappropriation of funds belonging to the Transkei Agricultural Corporation

Ltd (Tracor)). The statements were published to various persons. In consequence

thereof the plaintiffs had each suffered damage for which the 1st defendant is liable.

(My italics).

[4]Claim B made the following allegations: At a conference held on 24 August 1998

the second defendant made and published certain defamatory statements

concerning the plaintiffs (of a similar ilk as those referred to in paragraph 3 above).

Accordingly, the 2nd defendant is liable to the plaintiffs for damages.

[5]Claim C alleged that on 21 August 1998 the 1st and 2nd defendants maliciously set

in motion certain legal proceedings against the plaintiffs making false allegations

against them. Accordingly, the two defendants were jointly and severally liable to the

plaintiffs for damages.

[6]Claim D alleged that on 25 August 1998 the 3rd defendant published, in a

newspaper owned and published by it, an article which was defamatory of the

plaintiffs. Accordingly, the defendant was liable to the plaintiffs in damages.

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[7]The 1st and 2nd defendants filed their plea on 15 November 2001, which embraced

certain special pleas and a plea over. The plea of the 3rd defendant, on the merits,

was delivered on 27 August 2002.

[8]Various skirmishes took place between the plaintiffs and the 1st and 2nd

defendants concerning the special pleas filed by the latter. The upshot was that

judgments upholding the special pleas and dismissing claims A, B and C were set

aside, and the matter was remitted to this Court for further adjudication.

[9]The plaintiffs thereupon applied for, and were granted, an order joining the 4th to

10th defendants. The plaintiffs’ amended combined summons, embracing the

joinder, was delivered on 8 July 2009. The 4th to 6th defendants, the Government of

the Republic of South Africa, the State President of the Republic of South Africa and

the Minister of Justice and Constitutional Development, were cited as interested

parties (on the basis that they were functionaries of the State and the latter was the

true party that would satisfy any judgment given against the 1st defendant in favour of

the plaintiffs – see Chagi and Others v Special Investigating Unit 2009 (2) SA 1 (CC)

paragraph 42 at 15E). The 7th to 10th defendants, the Premier of the Eastern Cape

Province, the Minister of Agriculture and Land Affairs, the Executive Council of the

Eastern Cape and the Eastern Cape Provincial Government, were also cited as

interested parties “who are implicated in the commission by them of unlawful acts committed

during the purported dissolution of Tracor and its implementation as demonstrated in these particulars

of claim”. Various factual allegations were included in the amended particulars of

claim relating to conduct on the part of these defendants and the 4 th defendant. No

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relief was, however, claimed as against the 4th to 10th defendants. (This is an aspect

to which I will revert later).

[10]In response to the amended particulars of claim the 1st, 2nd and 4th to 10th

defendants filed an amended plea, which included various special pleas in limine.

The 3rd defendant did not file an amended plea.

[11]On 14 September 2009 the plaintiffs delivered an exception to the amended plea

of the firstmentioned defendants (relating to the special pleas in limine as well as the

plea on the merits) and to the 3rd defendant’s existing plea on the merits. (At the

same time a replication to the amended plea was filed). Thereafter, on 21

September 2009, the plaintiffs gave notice of their intention to amend the exception

by limiting same to the exceptions to the special pleas in limine of the 1st, 2nd and 4th

to 10th defendants and deleting the exceptions to the pleas on the merits of these

defendants and of the 3rd defendant. That amendment was duly effected and the

amended exception was delivered on 12 October 2009.

[12]At that stage therefore the only exception on the table was the plaintiffs’

amended exception, to the special pleas in limine of the 1st, 2nd and 4th to 10th

defendants. (For convenience this exception will be referred to as the special pleas

exception).

[13]However, on 26 October 2009 the plaintiffs’ attorney filed and delivered a

document styled “PLAINTIFFS EXCEPTION TO THE 1ST, 2ND, 4TH TO 10TH DEFENDANTS’

AMENDED PLEA AND TO THE 3RD DEFENDANT’S PLEA” (and dated 15 October 2009).

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This document purported to constitute an exception to the defendants’ pleas on the

merits. (For convenience this exception will be referred to as the merits pleas

exception).

[14]At the hearing on 19 November 2009 the first issue raised for resolution was

whether the merits pleas exception was properly before me and could be

entertained. I made an order setting aside the exception as an irregular proceeding

and I indicated that my reasons for the order would be furnished in due course. The

reasons follow.

[15]On 17 November 2009 the 1st, 2nd and 4th to 10th defendants filed a notice of

application in terms of rule 30(1). Notice was given therein that at the hearing on 19

November 2009 application would be made for an order setting aside what was

referred to as the plaintiffs’ “amended exception dated 15 October 2009” as being an

irregular proceeding. (The reference was to the merits pleas exception). The 3rd

defendant filed a similar notice. The plaintiffs filed papers in opposition to the

applications.

[16]There is a dispute as to whether the Registrar issued the notice of set down for

19 November 2009 before or after the filing of the merits pleas exception. I will

proceed on the basis that, as stated in the affidavit by Mr Tshiki, who appeared for

the plaintiffs, it was after he had filed that exception on 26 October 2009 that he

requested the Registrar to set the matter down for hearing on 19 November 2009 (a

date which had been agreed upon between the parties), including the merits pleas

exception.

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[17]A point in limine, as it were, taken by Mr Tshiki was that the applications for the

setting aside of the exception were themselves irregular and should not be accepted

by the Court in that the defendants had not, as required by rule 30 (2)(b), given

written notice to the plaintiffs affording them an opportunity of removing the cause of

the complaint. It was in fact the submission of the attorney that however patent and

serious the irregularity was and however substantial the prejudice occasioned

thereby and notwithstanding that the plaintiffs were not in a position to remedy the

matter complained of, the Court is obliged to reject the application for the setting

aside of the irregular step if it had not been preceded by compliance with rule 30 (2)

(b), and to hear the exception.

[18]In fact, however, as will appear below, there was compliance with the prescripts

of rule 30 (2)(b). Mr Pretorius, the attorney acting for the 1st, 2nd and 4th to 10th

defendants, in an affidavit in support of the rule 30 application, stated that in the light

of the history of the matter and prior to receipt of the plaintiffs’ merits pleas exception

on 26 October 2009 the defendants were of the view that the only exception to be

adjudicated on the agreed date of hearing, 19 November 2009, was the special

pleas exception. That statement was no doubt correct. Mr Tshiki records in his

answering affidavit that subsequent to the delivery of the plaintiff’s amended

exception (the special pleas exception) the plaintiffs’ exception to the general pleas

of the defendants was reformulated with a view to delivering same afresh and in a

separate document (the merits pleas exception). He then states that he telephoned

Pretorius to arrange a date of set down of the exceptions and 19 November 2009

was agreed upon. Conspicuous by its absence, however, was any intimation by Mr

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Tshiki to Pretorius that the merits pleas exception was to be included or, indeed,

even that such a document existed.

[19]It may be recorded at this stage that the merits plea exception is contained in a

very voluminous document comprising 77 pages and that it went considerably further

that the portion of the original exception filed that related to the pleas on the merits. I

will return to this aspect later.

[20]Pretorius formed the view that the merits pleas exception was irregular in that:

(a) there had been no compliance with rule 28(1) in that no notice of intention

to amend the exception filed on 12 October 2009 (the special pleas

exception) by the addition thereto of the merits pleas exception had been

given;

(b) no such amendment had been effected as required by the rule;

(c) the defendants had not been afforded an opportunity to exercise their

rights in terms of the rule.

[21]Accordingly, Pretorius addressed a letter to Mr Tshiki dated 30 October 2009

and faxed to him on 4 November 2009. After referring to the history of the earlier

exceptions filed by the plaintiffs Pretorius recorded that it was the defendant’s view

that only the special pleas exception was to be adjudicated on 19 November 2009.

He pointed out that the final document filed, the merits pleas exception, was

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confusing in that it only related to the general pleas and not to the special pleas

which was the content of the amended exception filed on 12 October 2009 and he

requested that the position be clarified.

[22]The response to the letter was dated 9 November 2009. It read in part as

follows:

“Kindly ignore the content of our notice to amend to the effect that only the

exception pertaining to the special plea would be argued. At that stage no date

for argument was arranged and had been set. We had thought that it might take

us some time to reformulate our client’s exception to the merits of your clients’

amended plea and thought that in the meanwhile we could have the exception to

the special pleas heard but did not obtain a date in that regard. However, we

were able to reformulate the exception to the merits of your clients’ amended

plea in no time and realized that it would save costs to have the whole exception

embracing both the special pleas and the merits heard simultaneously and in this

regard decided to set down both exceptions after arranging a dated (sic) with you

as the 19th November is that date the writer obtained from Mr Pretorius.

As manifest from the index we delivered on the 26th October 2009 and the heads

of argument we have delivered in the above matter and indeed the notice of set

down, both the exception to the special pleas and to the merits of your clients’

pleas are to be heard on 19 November 2009.”

[23]The reply, dated 10 November, read as follows:

“We do not agree with your contentions in your letter of 9 November 2009.

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Your clients cannot simply ignore Court Rules and amend as they please.

Defendants will only prepare on and argue Plaintiffs’ Amended Exception to the

1st, 2nd, 4th to 10th Defendants’ Special Pleas in limine, dated 14 September 2009

and served on Defendants on 12 October 2009. Such document consists of 30

pages, as stated in our letter of 30 October 2009, and it only excepts to the

Defendants’ Special Pleas. These are the issues that we regard to be decided on

19 November 2009.

Plaintiffs’ exception to the 1st, 2nd, 4th to 10th Defendants’ Amended Plea and to

the 3rd Defendant’s Plea, dated 15 October 2009 and served on the Defendants

on the 26 of October 2009, is quite clearly irregular proceeding, inter alia in that:

1. As far as we are aware of, no notification of intention to amend was given

as required by Rule 28(1);

2. The amendment was also not effected as required by the said Rule 28;

3. The Defendants have not been given the opportunity to, within 15 days

after the amendment had been effected, make any consequential

adjustments to the documents previously filed by them, as provided for in

Rule 28(8).

Please confirm then that only the Special Pleas will be argued on 19 November

2009, failing which we will bring an application to have the document of 15

October set aside.

Please revert as a matter of urgency.

All our client’s rights are reserved”

[24]In argument Mr Tshiki reiterated the stance adopted in his answering affidavit:

The merits pleas exception was not an amendment of the existing exception but a

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fresh exception following on the amendment of the original exception filed which

effected a withdrawal of part thereof. Accordingly, the plaintiffs were entitled to

deliver the exception and apply for a date for the hearing thereof in terms of rules

23(1) and 6(5)(f). Put differently, the plaintiffs were entitled to reinstate the

withdrawn exception by delivering it again. It was only if the plaintiffs sought to

reintroduce the merits pleas exception by way of an amendment to the existing

special pleas exception that they would have had to follow the procedure laid down

in rule 28.

[25]The deponent to the affidavit filed in support of the 3rd defendant’s application in

terms of rule 30 for the setting aside of the merits pleas exception as irregular was its

attorney, Mrs Norval. She invoked the same grounds as mentioned by Pretorius for

the contention that delivery of the exception was irregular. She also referred to

correspondence that passed between her and Mr Tshiki. In a letter dated 3

November 2009 she commented that having regard to the fact that the exception

was only delivered on 26 October 2009 it appeared that it was not to be argued on

19 November 2009. By letter dated 4 November 2009 Mr Tshiki stated that both

exceptions had been set down for hearing on 19 November 2009. In a further letter

dated 9 November 2009 Mr Tshiki adopted the attitude that the failure of the

defendant to respond to a notice of bar calling upon it to file an amended plea to the

latest amended particulars of claim, and its instead filing a rule 30 application for the

setting aside of the notice of bar, had paved the way for plaintiffs to file the exception

to the existing plea.

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[26]All the defendants made the point that they had been prejudiced by the delivery

of the merits pleas exception having regard to the complexity of the issues raised in

its voluminous documentation.

[27]In my judgment, the delivery of the merits pleas exception was an irregular step

for the reasons that follow. First, that portion of the exception which relates to the

merits plea of the 1st, 2nd and 4th to 10th defendants would indeed, if allowed, have

constituted an amendment of the existing special pleas exception. The rules provide

for the filing of an exception (itself a pleading) to a pleading filed by an opposing

party. It does not make provision for the filing of a further and separate exception to

the same pleading (even if the lastmentioned document contains discrete sections.)

What the defendants in question did was to file a single, albeit composite, pleading

containing both its pleas in limine and its plea over. Only a single, albeit composite,

exception thereto was permissible. As Mr Tshiki himself stated in his answering

affidavit, what the plaintiffs did was (purportedly) to reinstate that part of the

exception that had been withdrawn earlier (save that the new exception was more

voluminous) and that what the plaintiffs sought to do was to amplify the existing

exception. That could, however, only have been effected by way of an appropriate

amendment to the existing pleading. The provisions of rule 28 were accordingly of

application and the plaintiffs were obliged to follow the procedural steps set out

therein. That they failed to do.

[28]Had the plaintiffs not so failed it would have been open to the defendants to

have filed and delivered a notice of objection to the proposed amendment. Allowing

the plaintiffs to follow the procedure they did adopt would have been wrongfully to

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deprive the defendants of their entitlement to register objections to the proposed

amendment. In fact, an objection which the defendants could have raised, as set out

in the succeeding paragraph, constitutes a further basis on which to find that the

delivery of the exception was an irregular step. It should be recorded that the aspect

in question was raised by me during argument.

[29]Rule 23(3) stipulates that an exception must state the grounds on which it is

founded clearly and concisely. As already recorded, the exception in question

comprises some 77 pages. Sixty pages thereof related to the plea over of the

defendants in question. It need hardly be observed that a document as prolix as that

does not qualify for the epithet of ‘concise’. This is the more clear when regard is had

to the facts that only a limited number of paragraphs in the amended plea over were

the subject of attack, that cognizable portions of the exceptions comprised a recordal

of allegations made by the plaintiffs in the particulars of claim and of admissions

made by the defendants in respect thereof and, more importantly, that much of the

exception, indeed overwhelmingly the greater part thereof, was devoted to argument

why, on the facts alleged by the plaintiffs, or for other reasons, the defences pleaded

ought not to be upheld, as opposed to setting out grounds why the defences

pleaded, even if proved, would not in law constitute defences. That was both a

misuse and abuse of the exception procedure. The material referred to might, to a

greater or lesser extent, have found an appropriate home in a replication. It may

also be mentioned that in addition to a prayer that the exception be upheld, the

exception inappropriately and invalidly sought a finding that the 1st and 2nd

defendants, as the case may be, are liable to the plaintiffs for such damage as may

be proved.

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[30]The extent to which the exception constituted an infraction of the provisions of

rule 23(3) requires it to be stamped an irregular proceeding.

[31]If in fact the plaintiffs were entitled to deliver a fresh and independent exception

in addition to the one already filed there is another reason why the delivery thereof

was an irregular proceeding.

[32]Rule 23(1) provides that an exception must be delivered within the period

allowed for filing any subsequent pleading. In the case of an exception to a plea that

period is the one within which a replication has to be filed, ie 15 days (see rule

25(1)). Save in respect of an exception to a plea an exception to another pleading

may be filed after the stipulated period unless the opposing party had taken steps to

impose a bar to the filing of any further pleading. However, the failure to file a

response to a plea (ie a replication or exception) within the stipulated period brings

into operation an automatic bar against the filing of a response (see rule 26).

Accordingly, the party guilty of such failure is precluded from filing a response,

including an exception, unless that party has sought and secured an upliftment of the

bar (either by consent of the other party or by order of court).

[33]The purported delivery of the exception in the present matter was effected a

substantial period after the date on which a replication to the plea, if any, was

required to be filed. The plaintiffs were accordingly under automatic bar against the

filing of any further pleading. They could therefore not file and deliver an exception

unless they had sought, and secured, an upliftment of the bar. They did not do so.

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The filing and delivery of the exception was accordingly impermissible and an

irregular step.

[34]I turn now to deal with the portion of the exception delivered on 26 October 2009

that was directed at the 3rd defendant’s plea. Consequent upon the amendment to

their exception effected by the plaintiffs on 12 October 2009 which expunged the

earlier exception taken to the 3rd defendant’s plea there was no existing exception to

the defendant’s plea. The relevant part of the exception in question was accordingly

not intended to be, nor could it be, an amendment of an earlier exception (an earlier

pleading). The comments made above concerning amendments to a pleading are

therefore not of application.

[35]It may be accepted for present purposes (without so deciding):

(a) that in the light of its filing and delivery of its final amended particulars of claim

embracing the joinder of the further defendants and the inclusion of allegations in

respect of them, the plaintiffs were entitled to call upon the 3rd defendant to file an

amended plea on pain of being barred if it failed to do so;

(b) that in the absence of the filing of an amended plea in response to the notice

of bar the plaintiffs were entitled, upon the bar taking effect, to file and deliver an

exception to the 3rd defendant’s plea.

[36]However, the exception was required to be filed within the period allowed for the

filing of a further pleading failing which the plaintiffs were automatically barred. The

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plaintiffs’ notice of bar to the 3rd defendant was served on 20 August 2009. The 3rd

defendant’s response thereto was to file on 21 August 2009 a notice of application in

terms of rule 30 for the setting aside of the plaintiffs’ notice of bar as an irregular

proceeding. (An earlier notice of bar by the plaintiffs, subsequently withdrawn by

them, had elicited a similar response, the 3rd defendant’s attorneys having earlier

written to the plaintiffs’ attorneys contending that the notice of bar was irregular in the

light of the fact the 3rd defendant had already pleaded). At best for the plaintiffs

therefore the exception to the 3rd defendant’s plea should have been filed within 15

days of the 3rd defendant’s notice in terms of rule 30. Having failed to do so they

were under automatic bar and could not file an exception thereafter without

upliftment of the bar. The delivery of the exception to the 3rd defendant’s plea on 26

October 2009 was accordingly an irregular proceeding.

[37]Secondly, that part of the document delivered that related to the plea of the 3rd

defendant (comprising some 15 pages) attracts mutatis mutandis the same criticism

as that recorded in paragraphs 29 and 30 above in respect of the part that related to

the plea over of the other defendants. Again, there was a serious infraction of the

prescript in rule 23(3) that the grounds on which an exception is based are to be

stated clearly and concisely, and the document was accordingly an irregular

proceeding.

[38]The first special plea in limine raised a defence of prescription to claims A and B

on behalf of the 2nd, 7th, 9th and 10th defendants. However, at the hearing the plea

was abandoned and the costs of the exception thereto were tendered.

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[39]The second special plea in limine raised a different defence of prescription to

claims A, B and C on behalf of all the defendants (save the 3rd defendant). It sought

to meet various allegations introduced by the plaintiffs for the first time in the final

amended particulars of claim, which, so it was contended, constituted a separate

and new cause of action. The allegations charged the defendants with unlawful

conduct relating inter alia to the restructuring of Tracor, the issue of the proclamation

in terms of which Tracor was dissolved, the implementation of the liquidation of

Tracor, the retrenchment of Tracor employees, unfair labour practices, non-

compliance with the audi rule and the provisions of the Labour Relations Act, and

failure to consult the plaintiffs. The allegation related to events that occurred more

than three years prior to delivery of the plaintiffs’ amended particulars of claim;

hence, the contention that the new cause of action constituted by the allegations,

and the debt to which they gave rise, had become prescribed.

[40]There are two short answers to the contention. First, as Mr Tshiki sought to

emphasise, no relief was sought as against the 4th to 10th defendants. They were

cited as interested parties. In the circumstances there can be no talk of a “debt”

owing by them having become prescribed.

[41]Second, Mr Tshiki correctly pointed out that on a nice analysis of the particulars

of claim the allegations did not introduce a new cause of action founding a new debt.

In short, the allegations went in support of the claims that the defamatory statements

and the proceedings complained about were unlawful and had been made and

instituted animo iniuriandi on the basis, in addition to the allegations already

contained in the particulars of claim, that the 1st and 2nd defendants were aware of

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the unlawful conduct referred to in the further allegations when they made the

statements and instituted the proceedings. The cause of action and the debt

invoked remained the same.

[42]The plea accordingly did not disclose a defence and the exception thereto was

validly taken.

[43]The third special plea in limine, directed at claims A, B and C on behalf of all the

defendants, sought to raise the defence of the lack of jurisdiction of this Court to

adjudicate certain issues. These related to the alleged unfair labour practices, the

retrenchment of Tracor employees, non-compliance with the audi rule and the

provisions of the Labour Relations Act, and the failure to consult with the plaintiffs. It

was again contended that the allegations constituted a new cause of action, but it is

one which is justiciable only in the Labour Court.

[44]The comments in paragraphs 40 to 42 above, however, apply mutatis mutandis.

Moreover, as Mr Tshiki pointed out, the relief sought by the plaintiffs did not a rise

out of an employment relationship.

[45]The fourth special plea in limine raised the defence of res iudicata as against the

1st, 2nd, 3rd, 8th, 12th and 19th plaintiffs. These plaintiffs, together with other persons,

were plaintiffs in certain earlier proceedings instituted against the 2nd and 7th

defendants (Twani and Others v The Premier for the Eastern Cape and Others Case

no. 460/99, Transkei Division). I presided over those proceedings. Included in the

findings I made were findings that the audi rule was complied with, that proper

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consultations were held with Tracor employees and that Tracor was lawfully

dissolved. Accordingly, so it was contended, the separate and new cause of action

constituted by the allegations on those scores by the plaintiffs in question was res

iudicata.

[46]It requires to be repeated that no new cause of action founding a new debt was

introduced and that no relief is being claimed as against the 7th defendant. Further, it

will suffice to point to the fact that the parties in the Twani matter and the present

matter are not identical, that the causes of action and grounds relied upon are not

the same and the relief claimed in the instant case is not the same relief as was

claimed in Twani. On the basis of the reasoning set out in paragraphs 110 to 118 of

the first judgment I delivered in Twani and in the Sorghum Brewery case referred to

therein, the issues referred to in the special plea are not res iudicata a defence was

not disclosed and the exception thereto was validly taken.

[47]Mr De Bruyn (who with Mr Pienaar) appeared for the defendants sought during

argument to refer to an exception (consisting of two parts) to the replication filed on

behalf of the plaintiffs and submitted that his clients were entitled to certain relief in

respect thereof. As pointed out by Mr Tshiki, however, that exception had not been

set down for hearing. It is assumed that the parties’ attitude to that exception will be

informed by the contents of this judgment.

[48]It may be mentioned that the conclusions recorded above do not bear on the

rights of the defendants to object at the trial to the admissibility of evidence on the

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factual issues raised in the special pleas in limine with reference to the relevance

thereof.

[49]The following orders will accordingly issue:

(a) The applications of the defendants in terms of rule 30 are upheld and the

exception delivered by the plaintiffs on 26 October 2009 is set aside as an

irregular proceeding, with costs, such costs to include the costs of two

counsel, and to be paid jointly and severally, the one plaintiff paying, the

others to be absolved.

(b) The defendants (excluding the 3rd defendant) will pay the plaintiffs’ costs of

the exception to the first special plea in limine of the defendants jointly and

severally the one paying the others to be absolved.

(c) The plaintiffs’ exceptions to the second, third and fourth special pleas in

limine of the defendants (excluding the third defendant) are upheld and the

special pleas in limine are struck out, with costs, jointly and severally, the

one defendant paying, the others to be absolved.

___________________F KROONJudge of the High Court

Page 20: IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE ... · alleged misappropriation of funds belonging to the Transkei Agricultural Corporation Ltd (Tracor)). The statements were published

14 December 2009

Appearances:

For Plaintiff: Mr Tshiki c/o Whitesides Attorneys53 African StreetGrahamstown (Mr Barrow/Louise)Instructed by:

Tshiki and Sons Incorporated

For 1st,2nd, 4th – 10th Defendants: Adv de Bruyn & Adv Pienaar instructed by: The State Attorneyc/o G M Yeko

3F Anglo African StreetGrahamstown

For 3rd Defendant: Adv de Bruyn & Adv Pienaar instructed by: Netteltons Attorneys

118A High StreetGrahamstown