Trustees for the Time Being of the Deon and Elna Smith Trust and Others v South African Securitisation Programme (RF) Ltd and Others (30728/2021) [2025] ZAGPPHC 1360 (12 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1360 | Noteup | LawCite sino index ## Trustees for the Time Being of the Deon and Elna Smith Trust and Others v South African Securitisation Programme (RF) Ltd and Others (30728/2021) [2025] ZAGPPHC 1360 (12 December 2025) Trustees for the Time Being of the Deon and Elna Smith Trust and Others v South African Securitisation Programme (RF) Ltd and Others (30728/2021) [2025] ZAGPPHC 1360 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1360.html sino date 12 December 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case number: 30728/2021 In the matter between: THE TRUSTEES FOR THE TIME BEING OF THE DEON AND ELNA SMITH TRUST First Applicant DEON SMITH Second Applicant ELLEN LOUISE SMITH Third Applicant SULETTE TALITA SMITH Fourth Applicant and SOUTH AFRICAN SECURITISATION PROGRAMME (RF) LTD First Respondent SASFIN BANK LTD Second Respondent FINTECH UNDERWRITING (PTY) LIMITED Third Respondent SUNLYN (PTY) LIMITED Fourth Respondent In re the application in terms of Rule 13 for the joinder of: TREND OFFICE SOLUTIONS t/a DYNAMIC TECHNOLOGIES Third Party Neutral citation: Coram: E Botha AJ Heard: 8 September 2025 Decided: 12 December 2025 Summary: ORDER The application is dismissed with costs, including the costs consequent upon the employment of counsel on Scale B. JUDGMENT E BOTHA AJ: # Introduction Introduction [1] This judgment addresses the test for granting leave to serve a third party notice after the close of pleadings. It outlines and discusses the relevant legal principles arising from the authorities, including a number of judgments that have taken slightly different approaches in determining whether there is just cause for the granting of the relief. The relevant principles are then applied to the facts of the case, particularly those placed before the court by the applicants in support of the application. [2]             The respondents in this application are the plaintiffs in the main action. I will continue to refer to them as the plaintiffs. The applicants in this application are the defendants in the main action. I will continue to refer to them as the applicants. The third party is not a party to the main action. It is the respondent in this application and it is not a third party yet, but for the sake of clarity will refer to it as the third party. [3]             The applicants are the trustees for the time being of the Deon and Elna Smith trust. They were sued by the plaintiff on the basis of a number of agreements. The plaintiffs and the applicants are at odds on a number of disputes, including the true nature of the agreements. The applicants allege that the third party played some role in the applicants being dragged into the agreements that, they say, they would not have concluded had it not been for the third party. [4]             The applicants allege that they are entitled to an indemnification or a contribution from the third party. The applicants blame their previous attorney for not having advised them properly, saying that is the reason why they did not serve the third party notice on time. They realise that they are seeking an indulgence, arguing that they have shown good cause for the court to grant it leave, and asks the court to exercise its wide discretion in its favour. The third party opposes the application. The plaintiffs have not participated in this application. # Rule 13 Rule 13 [5]             The relevant paragraphs of Rule 13(1) provide: ‘ (1) Where a party in any action claims — (a) as against any other person not a party to the action (in this rule called a ‘third party’) that such party is entitled, in respect of any relief claimed against him, to a contribution or indemnification from such third party, or (b) any question or issue in the action is substantially the same as a question or issue which has arisen or will arise between such party and the third party, and should properly be determined not only as between any parties to the action but also as between such parties and the third party or between any of them, such party may issue a notice, hereinafter referred to as a third party notice, as near as may be in accordance with Form 7 of the First Schedule, which notice shall be served by the sheriff. [6]             Subrule (2) provides: (2) Such notice shall state the nature  and grounds of the claim of the party issuing the same, the question or issue to be determined, and any relief or remedy claimed. In so far as the statement of the claim and the question or issue are concerned, the rules with regard to pleadings and to summonses shall mutatis mutandis apply.’ # # The basis upon which the applicants seek to join the third party The basis upon which the applicants seek to join the third party [7]             The applicants seek to join the third party on the basis of Rule 13(1)(a). This appears from a number of allegations contained in the founding affidavit, including the following: ‘ ... the applicants must be indemnified by third party or receive a contribution from the third party in the event that an adverse order is made against the applicants in the main proceedings.’ [8]             The relief the applicant will seek if they are granted leave says the same: ‘ 1.   That the third party indemnifies the defendants for any liability found against the defendants under case number 30728/2021 and to hold the defendants harmless; 2.    Alternatively that the third party contributes to any liability the Court may find the defendants liable for under case number 30728/2021.’ # The requirements for leave The requirements for leave [9]             Subrule (3)(a) requires that the notice be served before the close of pleadings. If this does not occur, a party such as the applicants who want to issue a third party notice must obtain the court’s leave: ‘ (b) After the close of pleadings, such notice may be served only with the leave of the court.’ [10]         The applicants accept this. They also accept that for them to obtain the court’s leave, they have to provide a satisfactory explanation for failing to serve the notice before the close of pleadings, and they have to demonstrate that they have a prima facie case against the third party. Hence this application. [11] In Pitsiladi [1] van Zyl J (as he then was) provided the following outline of the approach to be taken with reference to a number of authorities: [2] ‘ The applicant must accordingly show good cause for the relief sought. The Court has a wide discretion, to be exercised judicially upon a consideration of all the facts. These facts are usually the explanation advanced by the applicant for his failure to give notice before the close of proceedings and whether the applicant has made out a prima facie case on the merits against the third party. To these may be added the prejudice which any of the parties may suffer by the grant or refusal of the application and the administration of justice, ie the purpose of the Rule, namely the avoidance of a multiplicity of actions and to consolidate, in specified circumstances, a multiplicity of issues between a number of litigants all in a single action. The list is not intended to be a numerus clausus.’ [12] The learned Judge also placed his finger on an important consideration appearing from the jurisprudence. Different courts have held differing views as to whether it is a sine qua non to the granting of an application in terms of Rule 13(3)(b) that the applicant should make out a prima facie case on the merits. Some have held it is not, [3] why others have held that it is. [4] In Mercantile Bank, [5] Gautschi AJ held it was a sine qua non . He seems to have taken it a step further when he held: [6] ‘ It is difficult to see why it should not be a sine qua non to the success of such an application that the applicant should make out a prima facie case on the merits, in the sense of alleging facts which, if established at the trial, would entitle it to succeed. An applicant in this situation ought normally (I am prepared to say always) to attach a draft third party notice and annexure in which his cause of action against the third party is set out, and to confirm or adopt those allegations under oath. If no prima facie case is made out in those allegations (ie the claim as set out in the notice and annexure is excipiable in that it does not disclose a cause of action), it is inconceivable that a Court would permit the third party joinder. Accordingly, I would, at the very least, expect an applicant to set out a prima facie case in the sense described above, whether in his founding affidavit or in the draft third party notice and annexure.’ He also held: [7] ‘ The prima facie case, or absence of excipiability, must of course be weighed in the light of the totality of the available facts. The applicant may, for instance, present a technically correct pleading, whereas the common cause facts as they emerge from the affidavits may make it clear that the case against the third party, if pleaded according to those facts, could never succeed. To that extent, the prima facie case, or absence of excipiability, must be qualified by having regard to the totality of the facts. In this exercise, it must be borne in mind that the purpose of the Rule is to prevent a multiplicity of actions. The Court is given a wide discretion, and a lenient approach is called for. Accordingly, if on the totality of the facts, the case against the third party is totally unfounded, the joinder would be refused. It must be a clear case, for it is the function of the trial Court to decide disputes, and joinders should in my view not be refused save in the clearest of cases.’ [13] Van Zyl J agreed with the latter, [8] but not the former, particularly where Gautschi AJ, held that the application must fail if the applicant's third party notice is excipiable. [9] I respectfully find myself unable to be persuaded by the four reasons given by Van Zyl J on why he differs with Gautschi AJ. [10] However, it also seems to me to be a distinction without a material difference. [14] Van Zyl J held that ‘ [t]o establish a prima facie case for purposes of Rule 13(3)(b) means that the applicant’s case on the merits must not be totally unfounded, and should be based on facts mentioned in outline, which, if proved, would constitute a claim.’ [11] In support of this, the learned Judge relies on Wapnick. [12] There, Booysen J used phraseology such as that the applicant ‘ should make the necessary allegations’ ; ‘ allegations which show that the person is ... liable’ ; and ‘ has to “set out averments which, if established at trial, would entitle him to the relief asked for”’. [13] Booysen J  went on to hold that: [14] ‘ I can see no reason why the general rule as to the making out of a prima facie case should not apply in this case and I propose to apply it. In order to do so it is necessary to decide what averments are necessary to sustain the defendant's claim ...’ [15]         It seems to me that the inquiry that the court has to embark upon in determining whether the applicant has made out a prima facie case, is similar to the approach when deciding an exception on the basis that a particulars of claim or declaration lacks sufficient averments to sustain a cause of action. The question is whether the application demonstrates that the notice will contain sufficient averments to enable him to the relief asked for, whether an indemnification or a contribution. The court should for the moment presume that the averments will be proven at trial and, on that basis, determine if the applicant will be entitled to the relief sought. If not, it cannot be said that the applicant has made out a prima facie case. [16] Where an application is refused on the aforesaid basis, it cannot without more be said that the court has ‘ lightly refused the application.’ It is, of course, correct that the court must take care in not undermining the effective administration of justice and the purpose of the rule to avoid a multiplicity of actions. However, it is also important to consider the effect of joinder on a third party. In Wapnick , Booysen J said: [15] ‘ On the other hand the granting of such leave should not be a mere formality. It is important to bear in mind that the consequences of such leave being granted are serious.’ [17]          I respectfully agree with the aforesaid dicta by Booysen J for the same reason, and more. In my view, it does not favour the effective administration of justice, or the avoidance of a multiplication of proceedings to allow a party to be joined where the third party will be faced with a notice to which he has to take an exception, or in respect of which he must expect an amendment. Granting leave whilst knowing that the amendment of the claim or the hearing of an exception is inevitable goes against the effective administration of justice. It is likely to cause a number of interlocutory skirmishes, and it does not give due consideration to the serious consequences of a joinder on a third party. The applicant is seeking an indulgence. Where an applicant is unable to properly formulate a claim, he only has himself or his lawyers to blame. [18] If the applicant’s claim as set out in the application contains all the necessary averments, it also does not mean that the application must succeed. If the averments, as complete as they may be, are contradicted by the evidence on oath, it will also not serve the effective administration of justice to grant leave. In this regard, Van Zyl J agrees with Gautschi AJ. [16] I, in turn, respectfully agree with both of them. Here, however, there has to be some caution because, to my mind, this is where the real danger lies in deciding whether to grant leave. It is clear from both those judgments that neither of the learned Judges meant that there has to be any weighing of evidence, or determining of disputes of the evidence in the affidavits. Both the learned Judges were careful to point out that it is for the trial court to decide disputes of fact, and that refusing leave on this basis should only happen in clear cases. [17] It is only in those clear cases where the common cause facts, or those allegations made by the applicant in support of the application do not support the averments in the notice, that it may lead to a refusal of leave. [19] I am also unable to hold that an applicant must always attach a draft third party notice and annexure in which his cause of action against the third party is set out. There are practical reasons why it is advisable, and a failure to do so may be detrimental, but not necessarily fatal. First, a court should not be expected to wade through affidavits and evidentiary material in an effort to find a discernible cause of action and string it together. The applicant seeks an indulgence and, whatever course he takes, he must always keep in mind that he must demonstrate good cause. Second, it is a matter of fairness to the third party, who has to be able to effectively answer to the application. Third, there are at least two reasons why it is to the applicant’s own benefit that he formulates the claim in the form of a draft notice and annexure. Every drafter of pleadings knows that it is only once one has gone through the entire exercise of analysing the evidence, considering the law and formulating the cause of action and relief sought with precision, that one knows with reasonable certainty whether a claim has a reasonable prospect of success or not. In this sense, it is a litmus test for an applicant who intends to join a third party. Also, a third party faced with an application that contains a clear, well-formulated draft notice, annexure and application has more risk in resisting the joinder, and is less likely to put the applicant (and the court) through the trouble of an opposed application. In all of this, it will serve an applicant well to keep in mind the words of Hiemstra J and Botha J in Duncan [18] that a ‘ litigant who asks for an indulgence must be scrupulously accurate in his statement to the court.’ [20]         The overarching enquiry remains that the applicant must show good cause for the relief sought, and the various considerations should not be approached in an inflexible or tick-box fashion. The court has a wide discretion, to be exercised judicially upon a consideration of all the facts. The most important factual considerations will be whether there is a satisfactory explanation for the failure to serve the notice before the close of pleadings, and whether the notice, duly supported by the evidence on oath, will contain sufficient averments to enable the applicant to obtain the relief. # Whether the applicants set out sufficient averments Whether the applicants set out sufficient averments [21] The averments upon which the applicants say it is entitled to either an indemnification or contribution are set out in the founding affidavit. They are: [19] ‘ 1. RULE 13 OF THE UNIFORM RULES OF COURT: 1.1.            The defendants claim an indemnification and/or contribution from the third party ... ... 1.3.      The indemnification and/or contribution is claimed in the event that an order or judgment is made against the defendants under case number 30728/2021 and it is found that the defendants are liable to the plaintiffs as alleged or at all. 2. INDEMNIFICATION/CONTRIBUTION: 2.1.      The first defendant was desirous of obtaining re-finance for equipment owned by the first defendant in order to raise business capital. 2.2.      At all material times the first defendant was the owner of the property identified as: [various items listed] 2.3.      The first defendant was also the owner of the equipment appearing in Annexure “B7” to the particulars of claim being: [various items listed] 2.4.      The first defendant was at all material times also the owner of the equipment appearing in Annexure “K” to the particulars of claim being: [various items listed]. 2.5.      Collectively all the aforementioned items are hereinafter referred to as “the equipment”. 2.6.      The first defendant is desirous to obtain re-financing of already existing equipment and was at all material times assisted by the third party represented by Lourens Klopper who acted within the course and scope of his employment. 2.7.      The third party represented to the first defendant (and the remaining defendants) that the agreements concluded as envisaged and encapsulated in the annexures to the particulars of claim constitute a refinancing and loan agreement. 2.8       In the event that the plaintiffs’ claim succeeds, the representations were false and the transactions constitute simulated transactions. 2.9.      The representations were made by the third party, represented by Lourens Klopper. 2.10     The representations were material and influenced the first defendant (and also the other defendants) to conclude the transactions and agreements in which the plaintiffs base their claim. 2.11.    It was foreseeable that the representations would induce the first defendant (and also the other defendants) to enter into the transactions. 2.12     The representations factually induced the conclusion of the transaction and the subsequent agreements that the plaintiffs rely on and which are attached to their particulars of claim. 2.13.    The plaintiffs’ claims against the defendants for which the defendants’ claim a contribution and/or indemnification from the third party is: [the various claims are set out] 2.14.    In respect of all four the aforesaid amount claimed the interest payment is to date of final payment of the cost of suit is costs on an attorney and client scale. 2.15.    Resultant upon the conduct of the third party and the representations made by the third party as set out and described supra, the third party is liable to indemnify or contribute to any liability the Court attributes to the defendants in the action proceedings under case number 30728/2021. WHEREFOR the following order is sought: 1.      That the third party indemnifies the defendants for any liability found against the defendants under case number 30728/2021 and to hold the defendants harmless; 2.      Alternatively that the third party contributes to any liability the Court may find the defendants liable for under case number 30728/2021.’ [22]         The claim for a contribution is claimed in the alternative to that for indemnification. In the heads of argument filed on behalf of the applicants primary reliance was placed on the applicants’ case for an indemnification. In argument, the applicants also primarily aimed to rely on the indemnification, but there was still some reliance placed on the alternative for a contribution. I accordingly address both. [23]         There are no averments in respect of the nature of the third party’s involvement in the transaction or his legal relationship with either the plaintiffs or the applicants. Presumably, it could have been an agent or other representative of the plaintiffs, or the applicants may have engaged the third party on some or other basis. One does not know, because the applicants do not say. The closest the applicant gets to such an averment is that ‘ first defendant ... was at all material times assisted by the third party represented by Lourens Klopper who acted within the course and scope of his employment’. One knows that the third party was represented by Klopper, but one still does not know if and on what basis the third party was engaged. The word ‘ assisted’ does not take one further in understanding the legal nature of the relationship. Depending on that legal relationship, it might be a claim in contract, or in delict. This is a relevant consideration. [24] If it is a claim in contract, the applicants would have to plead that it was a term of the agreement that the third party would indemnify the applicants in particular circumstances. There are no such averments. On the face of it, the applicants do not appear to rely on a contract or a contractual term of indemnity. In Eimco [20] Caney J held as follows concerning indemnity: ‘ The principles to be extracted from these cases, so far as relevant to the present case, appear to me to be that a right of indemnity arises only from contract, express or implied, or by statute or where it is implied by law. Examples of these last may be found in the obligation of a principal debtor to indemnify his surety by re­imbursement, and a like obligation on the part of a principal to re­imburse his agent; likewise the obligation of cestui que trust towards a trustee and, in the same relation, a contribution within the meaning of the Rule arises from the liability partly to indemnify another, as in the instance of co­sureties and codebtors where one has paid more than his share of the debt.’ [25] Eimco found approval in the judgment of the full bench in Dodd. [21] Here, the applicants’ case is devoid of a basis upon which one can find that the applicants have any right to be indemnified by the third party, least of which a right arising from contract. If one accepts, as one should at this point of the enquiry, that every averment made by the applicants will be proven at trial, there is no basis upon which it can be found that the applicant would be entitled to an indemnification from the third party. [26] On a more generous reading of the applicants’ case, they rely on a claim against the third party based on a negligent misrepresentation. It is simple enough to detect the averments that point to a misrepresentation, and the averments concerning foreseeability in paragraph 2.11 identifies it as a negligent misrepresentation. In such a case, the legal relationship between the applicants and the third party still plays a critical role, particularly for the sake of determining wrongfulness. Wrongfulness cannot be presumed. The applicants must plead facts relied upon to support the essential allegation of a legal duty. [22] The test for wrongfulness is whether the third party had a legal duty not to make a misrepresentation or misstatement to the applicants . [23] [27]         There is no averment providing the basis upon which the applicant avers the third party had any legal duty, and this includes that there is no averment that the legal relationship between the applicants and the third party was such that it gave rise to a legal duty. If one accepts that every averment made by the applicants will be proven at trial, there is still no basis upon which it can be found that the applicant would be entitled to an indemnification from the third party. The same goes for the question whether, on the basis of the averments, a right to a contribution would arise. There are no such averments. Notionally, had the plaintiffs’ case been that the applicants were wrongdoers and had it been the applicants’ case that the applicants and the third party were joint wrongdoers, it could have given rise to a right to claim a contribution, but this is not their case. [28]         Even if one were to presume the existence of some agreement or other legal relationship between the applicants and the third party from which one can infer  wrongfulness, there is still no right to indemnification or to a contribution. Ordinarily, such a claim based on a negligent misrepresentation will be one for damages, and that is clearly what the applicants are averring. However, in this case, instead of claiming damages from the third party, the applicants claim an indemnification or contribution. This is not permissible. In Eimco , Caney J held: ‘ A right to damages arising from breach of contract or from breach of a warranty contained in a contract is not a right to an indemnity, and the fact that the damages amount, or might amount, to the same sum as that for which the party entitled to those damages is in turn liable does not make the case one of indemnity; nor is the fact that the evidence to establish each claim is the same, or virtually the same, relevant to the question of whether there is an indemnity. There must be a right, arising from contract or by statute or from the law, to an indemnity in respect of, or a contribution towards, the claim of the plaintiff .’ [29] The same happened in Dodd, [24] where the full bench held: ‘ The case sought to be made by the respondents in the third party notice depends upon allegations of unauthorised conduct and a failure of duty. It is not alleged that the building contract creates in favour of the respondents a right to indemnification. Unauthorised conduct or failure of duty of an agent normally gives rise to an action for damages. ... My conclusion therefore is that, if the respondents have any claim against the excipient at all, their claim is for the payment of damages. Such a right cannot be equated to a right to claim indemnity. It is the converse of such right.’ [30] I must point out that in Soar [25] the then Appellate Division allowed the claim of an evicted purchaser for repayment of the purchase price and payment of damages against the seller who had been joined as a third party. However, there, the question whether or not the evicted purchaser was entitled to an indemnification under the subrule was not raised by any of the parties in the stated case before the court of first instance, and it was found that the parties were probably agreed that there was a right to indemnification. [26] This case is obviously different. [31] Something similar happened in Mercantile Bank . Gautschi AJ expressed his doubts whether the claim as formulated there was a true indemnification as envisaged by the Rule. However, he declined to decide the issue, because the point had not been taken, and he was not addressed on it in argument. [27] In this case, Mr van der Westhuizen on behalf of the third party took these points and, in my view, correctly so. Mr Sullivan for the applicants took considerable time and effort to convince me that there were reasons on which it had to be concluded that the applicants’ claims gave rise to a right to indemnification or contribution. Had it not been for the authorities I referred to earlier, I might have been persuaded. The questions were thoroughly debated and, for all these reasons, this court was in a different position to the one in Mercantile Bank. [32]         For all the aforesaid reasons I must conclude that the applicants have not demonstrated that it has a prima facie case against the third party. The applicants’ claim does not contain sufficient averments to enable it to obtain the relief asked for, whether as an indemnification or a contribution. # Explanation for the failure to file the notice before close of pleadings Explanation for the failure to file the notice before close of pleadings [33]         The applicants provide an explanation for not filing the third party before the close of pleadings. They were represented by an attorney who did not advise them to file a third party notice, and who conducted the case in such a manner that the plaintiffs were allowed an opportunity to take judgment against the applicants. This gave rise to an application for rescission of judgment and an amendment of the applicants’ plea. [34]         The explanation is full and satisfactory until about the end of August 2023 when the amended plea was delivered. However, that does not mean the explanation must stop there. From there, the applicants say: ‘ It was only thereafter that the applicants, when carefully considering the applicants’ position and the applicants’ defence appearing from their amended plea decided that the applicants must be indemnified by the third party or receive a contribution from the third party in the event that an adverse order is made against the applicants in the main proceedings.’ [35] This application was eventually launched about seven months later, in March 2024. There is no full and satisfactory explanation for the delay from September 2023 to March 2024. In cases that call for an explanation of a delay, there are normally a few factors that play a role in the exercise of the court’s discretion. This includes the extent of the delay, the explanation for it, and the prospects of success. [28] Questions of prejudice normally only arise once good cause has been shown. Normally, the stronger the prospect of success, the more inclined a court will be to overlook a delay or any deficiency in the explanation for the delay. [29] [36] An applicant who has a good explanation for not filing a notice before the close of pleadings cannot, thereafter, take as long as he wants to bring an application. It must be reminded that he seeks an indulgence from the court and that he must therefor also explain any subsequent delay, between the close of pleadings and the bringing of the application. To hold otherwise would run contrary to the principles in applications of this genus. [30] [37]         In this case, there is no explanation for the period of seven months. In my view, that is the kind of unexplained delay that may have been overlooked if the applicants had good prospects of success. In view of the conclusion I reached earlier, the applicants’ prospects are poor. In all the circumstances I find that the applicants have not complied with the requirement to provide a satisfactory explanation for their failure. # The affidavits The affidavits [38]         In view of the conclusions I reached thus far, it should also not be necessary to resort to the affidavits and other documents in an attempt to see whether the shortcomings in demonstrating a prima facie case can be cured. However, in an abundance of caution, keeping in mind the principles I referred to earlier, I do so regardless. There is nothing there that changes the conclusions I have reached. # Other aspects considered Other aspects considered [39]         There are other aspects that I had to consider, but which I do not regard as being meritorious of detailed discussion. For one, the allegations concerning who the applicants to this application are as it appears from the heading of the papers differs from the allegations in the founding affidavit. In his heads of argument, Mr Sullivan took the approach that the applicants are as they appear in the heading. Mr van der Westhuizen did not make anything else of it. I therefor approached the case on the basis that it was argued by Mr Sullivan. [40] I considered the possibility of prejudice to either of the parties bearing in mind the possible effect of extinctive prescription. On the one hand, there is a possibility that any claim that the applicants may institute against the third party may attract a special plea of prescription. Whether that will happen and what the result of it will be is indeterminable. On the other hand, allowing for the third party to be joined may deprive him from raising or a reasonable prospect of being successful with a special plea of prescription. [31] In the end, I do not think that the possibility of one or the other party’s prejudice is greater than the other. I consider prejudice being a neutral factor. [41]         The same goes for the fact that the applicants may have to institute a separate action and any other possible prejudice that may arise from that. That, to my mind, is balanced out by any other possible prejudice that may be suffered by the third party if he is dragged into a joinder, and where there may first have to be some interlocutory skirmishes that may bring an end to the case, or before there is clarity on what the case is that he will have to meet. [42]         I also considered the effect of Rule 13(1)(b), and whether it may have provided a basis for the third party to be joined. In the end, it is not a question that is open to be decided, because it is not an issue on the papers, and the applicants nailed its colours to the mast on Rule 13(1)(a). # Conclusion Conclusion [43]         The applicants have not provided a full and satisfactory explanation for the failure to serve the notice before the close of pleadings.  More importantly, it  has not made out a prima facie case on the merits against the third party. In particular, it has failed to set out sufficient averments upon which it can be concluded that, should those averments be proven at trial, the applicants will be entitled to the relief it seeks. This applies to both alternatives, whether indemnification or a contribution. This is considered to be the primary considerations in this case. [44]         The weighing of any possible prejudice to the parties, considerations pertaining to the effective administration of justice, including the avoidance of a multiplicity of actions, are fairly balanced and, to my mind, do not have a material bearing on the effect of the two other considerations. [45]         Having considered everything reasonably open to me to consider, including the width of the discretion that a court has in an application such as this one, I find that the applicants have not demonstrated good cause for the relief that it seeks. # Costs Costs [46]         There is no reason why the costs should not follow the result. Having considered all the relevant factors applicable in the circumstances of the case, the costs consequent upon the employment of counsel should be allowed on Scale B. # Order Order [47]         The following order is made: The application is dismissed with costs, including the costs consequent upon the employment of counsel on Scale B. E BOTHA ACTING JUDGE OF THE HIGH COURT For the Applicants:                                         Mr J H Sullivan on instruction of Waldick Inc For the Third Party:                                        Mr A van der Westhuizen on instruction of Dyason Inc [1] Pitsiladi v Absa Bank 2007 (4) SA 478 (SE) (‘ Pitsiladi’ ) para 9. [2] Pitsiladi para 9. I omit the authorities cited from this quote, but will return to some of them below. [3] Wapnick v Durban City Garage 1984 (2) SA 414 (D) (‘ Wapnick’ ) at 423D–424D; Niemand v SA Eiendomsbestuur SWD (Edms) Bpk 1985 (2) SA 710 (C) at 712F–713A; Highpoint Manufacturing (Pty) Limited v Emerson Assets Holdings (Pty) Ltd (unreported, FB case no 3963/2021 dated 6 February 2023) at paragraph [11]. [4] Mercantile Bank Ltd v Carlisle and Another 2002 (4) SA 886 (W) (‘ Mercantile Bank’ ) at 889C-E. [5] Ibid. [6] Ibid 889C-E. [7] Ibid 889D-H. [8] Pitsiladi para 11. [9] Ibid para 12. [10] Ibid para 12 to 14. [11] Ibid para 15. [12] Ibid, with reference to Wapnick 424A where, in turn, reliance was placed on Du Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (O) at 217A. [13] Wapnick 423A-B. [14] Ibid 424D-E. [15] Wapnick 423G-H. [16] Compare Mercantile Bank 889D-H with Pitsiladi para 12. [17] Compare Mercantile Bank 889G-H with Pitsiladi para 15. [18] Duncan T/A San Sales V Herbor Investments (Pty) Ltd 1974 (2) SA 214 (T) 216F-H. [19] It is not necessary to consider the allegations such as the setting out of the parties’ particulars and so on, and they are therefor omitted from this quote. Irrelevant details such as interest and costs claimed, the listing of particular items and so forth are omitted for the same reasons. [20] Eimco (SA) (Pty) Ltd v P Mattioda’s Construction Co (SA) (Pty) Ltd 1967 (1) SA 326 (N) (‘ Eimco’ ) 332H–333A. [21] Dodd v Estate Cloete 1971 (1) SA 376 (E) 379C. [22] South African Han and Paragliding Association and another v Bewick 2015 (3) SA 449 (SCA). [23] Ehlers NO v Graphorn NO; Graphorn v KZN Natuurbewaringraad [2005] 4 All SA 601 (SCA); Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA); Brouze Wenneni Investments [2015] 4 All SA 543 (SCA) para 110-115. [24] Dodd 379D-H . [25] Soar h/a Rebuilds for Africa v J C Motors 1992 (4) SA 127 (A) (‘ Soar’ ). [26] Soar 133J. [27] Mercantile Bank 888F-H. [28] Ferris and another v Firstrand Bank Ltd 2014 (3) SA 39 (CC) para 10. [29] Valor IT v Premier, North West Province and Others 2021 (1) SA 42 (SCA) para 38. [30] Compare Pitsiladi para 9 and the examples referred to there. [31] See, for instance, Lamont And Another V Rocklands Poultry And Others 2010 (2) SA 236 (SE). sino noindex make_database footer start