Welcome to the sixth edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims.
This week we deal with the interesting issue of joint wrongdoers in an action for damages stemming from delict.
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ABSA BROKERS (PTY) LTD v RMB FINANCIAL SERVICES AND OTHERS 2009 (6) SA 549 (SCA)
This is an appeal against an order upholding an exception. An action was brought against the appellant by a family trust (“the trust”) for the recovery of alleged damages sustained due to negligent investment advice given by the appellant’s employees. After settling the claim, the appellant instituted action against four respondents in proceedings that are the subject of this appeal, alleging that they were joint wrongdoers and seeking to recover a contribution from them under s2(12), read with s2(6), of the Apportionment of
Damages Act 34 of 1956 (“the Act”).
The appellant pleaded that the first and second respondent had devised, designed and developed the product in which the trust had invested and had furthermore utilised the services of the third and fourth respondents to promote and market it to members of the public, including its employees. It was alleged that the respondents actions caused the appellants employee to make false or incorrect statements about the nature of the product. The respondents excepted to the appellants particulars as disclosing no cause of action, in that the appellant did not give them notice of the first action as required by s2(2) of the Act nor had it obtained leave of the court, in terms of s2(4) of the Act before proceedings had been instituted. They therefore contended that the applicant was prevented from instituting the action.
The appellant, relying on Becker v Kellerman 1971 (2) SA 172 (T), argued the meaning of the phrase “where it is alleged” in s2(1) of the Act. The Appeal therefore turned on the interpretation of s2(1), s2(2) and s2(4) of the Act.
I quote the relevant sections hereafter:
“(1) Where it is alleged that two or more persons are jointly and or severally liable in delict to a third person (hereinafter referred to as the plaintiff) for the same damage, such persons (hereinafter referred to as joint wrongdoers) may be sued in the same action.” (my own emphasize)
“(2) Notice of any action may at any time before the close of pleadings in that action be given –
(a) by the plaintiff;
(b) by any joint wrongdoer who is sued in that action, to any joint wrongdoer who is not sued in that action, and such joint wrongdoer may thereupon intervene as a defendant in that action.”
“(4) If a joint wrongdoer is not sued in an action instituted against another joint wrongdoer and no notice is given to him in terms of paragraph (a) of subsection (2), the plaintiff shall not thereafter sue him except with the leave of the court on good cause shown as to why notice was not given as aforesaid”
The appellant contended that the phrase meant it was not obliged to give the respondents notice of the trusts action, nor to have the leave of court, since it had not been alleged in the trust’s action that the respondents were joint wrongdoers.
In Becker v Kellerman the Court held that the phrase “where it is alleged” in s2(1) had to be interpreted as “where it is alleged in an action”, so that the phrase “joint wrongdoers”, as contemplated by the relevant subsections, applied only to persons who had been alleged to be joint wrongdoers in the initial action. In the absence of such an allegation in the initial action, the person who was subsequently sued was not a “joint wrongdoer” and did not fall within the terms of s 2(4)(a) The Court held that the construction of the aforesaid phrase in Becker v Kellerman was inconsistent with the scheme of the Act. The phrase did not mean joint wrongdoers meant
only people who had been alleged at some point to be joint wrongdoers. Becker v Kellerman overruled.
The Court further held that it therefore followed that in the absence of notification to the respondents of the earlier action, as required by s2(2), and without the leave of the Court, s2(4)(b) prevented the appelant from instituting the present action. Appeal dismissed.
Appellant granted leave to amend its particulars of claim.
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