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[2019] ZAGPJHC 210
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Pikitup Johannesburg SOC Limited v Nair and Others (9524/2017) [2019] ZAGPJHC 210; [2019] 3 All SA 899 (GJ); 2019 (5) SA 540 (GJ) (16 May 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 9524/2017
Reportable
Not
of interest to other judges
Revised.
16/05/2019
In
the matter between:
PIKITUP
JOHANNESBURG SOC
LIMITED
Plaintiff
and
AMANDA
NAIR
Defendant
SUREN
MAHARAJ & EIGHTEEN OTHERS
Third
Parties/Excipients
JUDGMENT
LEECH, AJ:
INTRODUCTION
1
On 16 March 2017 the plaintiff, Pikitup Johannesburg SOC Limited,
caused a combined summons to be issued forth out of this court
in
which it claimed against the defendant, Ms Amanda Nair, payment of
various sums of money together with interest thereon and
costs of
suit.
2
On 7 November 2017 the defendant filed her plea and, some two weeks
later, a third party notice and annexure under Rule 13 of
the Uniform
Rules of Court. In the annexure to the third party notice the
defendant sought orders declaring the third parties to
varying
degrees to be jointly and severally liable together with her to the
plaintiff, for payment by them of a proportionate contribution
or
share of the amounts claimed by the plaintiff, as well as orders for
costs.
3
Fourteen of the third parties, represented by the same attorneys who
represent the plaintiff, have taken exception to the annexure
to the
third party notice. The exception is taken on the basis that the
annexure lacks averments necessary to sustain the relief
claimed by
the defendant against the third parties.
4
The exception was set down for argument, heads of argument exchanged,
and the matter fully argued before me. Having considered
the matter I
am of the view that the exception falls to be dismissed and the
reasons for my so finding follow.
THE
PLAINTIFF'S PLEADED CASE, THE THIRD PARTY CLAIM, AND THE EXCEPTION
5
The plaintiff is an organ of state and a municipal entity as
defined in section 1 of the Local Government: Municipal Systems Act,
32 of 2000
(the Systems Act)
and in section 1(1) of the Local
Government: Municipal Finance Management Act, 56 of 2003
(the
MFMA).
6
The defendant was previously employed by the plaintiff as its
managing director and, in its Particulars of Claim, the plaintiff
alleges that the defendant was as a consequence subject to a number
of constraints and subject to various responsibilities and
obligations under both the Systems Act and the MFMA.
7
In its Particulars of Claim the plaintiff asserts twelve claims as
against the defendant totalling R2 969 489.90 plus interest
and
costs. What is relevant, for purposes of the exception, is that these
claims against the defendant are in part at least founded
on section
176(2) of the MFMA.
8
In the annexure to her third party notice the defendant pleads
inter
alia
the following:
In the event of it being
found that the Defendant is liable under section 176(2) of the MFMA
to pay any amount in respect of loss
or damages suffered by the
Plaintiff, then, and only in that event, the Defendant claims against
the Third Parties on the grounds
set out hereunder.
[1]
9
The defendant thereafter pleads the relevant
facta probanda
on
which she bases her claims against the third parties. In essence, the
basis of these claims are that at all material times the
third
parties
9.1 were officials of the
plaintiff for purposes of the MFMA,
9.2 were also subject to
various responsibilities and obligations under the MFMA and the
Systems Act,
9.3 were party to and/or
aware of and abided by the conduct of the defendant that forms the
basis of the plaintiffs claims against
her,
9.4
can be held
liable in their own names to the plaintiff under section 176(2) of
the MFMA, and are joint wrongdoers together with
the Defendant in
respect of such damages in terms of section 176(2) of the MFMA, and
are jointly and severally liable together
with the Defendant to pay
such damages to the Plaintiff and the Defendant is entitled to a
contribution from the said Third Parties
equivalent to their
proportionate share, namely an amount equivalent to one-sixteenth of
any amount co-paid by the Defendant to
the Plaintiff.
[2]
10
The third parties have filed an exception that is ostensibly founded
on two grounds, both of which are asserted on the basis
that the
annexure to the third party notice does not disclose a legal basis
for the relief claimed by the defendant against the
third parties.
Moreover, both are premised on the proposition that section 176(2) of
the MFMA creates a statutory remedy that entitles
a municipality to
recover from an official any loss or damage caused by that official
when performing a function or office. The
third parties assert
10.1 First, that the
defendant is seeking to assert an entitlement under the Apportionment
of Damages Act, 34 of 1956
(the Apportionment Act),
but that
the third parties are not joint wrongdoers within the meaning of
section 2(1) of the Apportionment Act, the Apportionment
Act applies
only to delictual and not statutory claims, and the Act is of no
application as against the third parties or in respect
of the claim
founded on section 176(2) of the MFMA; and
10.2 Secondly, joint
wrongdoers have no entitlement to claim a contribution at common law,
with the result that a common law claim
is not cognisable as against
the third parties.
11
In the circumstances, the third parties ask that the exception be
upheld, that the annexure to the third party notice be struck
out,
and that the defendant be afforded twenty days within which to file
an amended annexure, failing which her claim against the
third
parties be dismissed with costs.
WHAT
THE CLAIM IS AND WHAT
IT
IS NOT
12
Mr Moultrie, who appeared before me on behalf of the defendant,
indicated that the defendant does not rely for her claim against
the
third parties on any delict committed by them or on the Apportionment
Act as entitling the defendant to a contribution from
the third
parties.
13
The third parties' reliance, in their exception, on the Apportionment
Act is therefore of no moment. It is accordingly not necessary
for me
to consider that Act at all and in this judgment I expressly decline
from expressing any views in relation to it.
14
Mr Moultrie has also confirmed that the defendant's claims are not
founded on any contractual relationship between her and the
third
parties.
15
The narrow issue for decision before me is whether or not the third
parties are correct in contending that there is no common
law right
vesting in the defendant to claim from the third parties a
contribution in the circumstances as pleaded.
16
Having regard to what has been pleaded by the defendant the issue can
be defined more particularly as follows:
Is
the defendant entitled under the common law to recover a contribution
from the third parties in circumstances where the cause
of action is
founded on a statutory entitlement under section 176(2) of the MFMA
and the third parties are joint wrongdoers together
with the
defendant in respect of such damages in terms of section 176(2) of
the MFMA?3
[3]
THE
LEGISLATIVE PROVISIONS
17
Chapter 7 of the Constitution of the Republic of South Africa, 1996
(the Constitution)
makes provision for local government as an
integral part of South Africa's constitutional democracy. Amongst
other things, the Constitution
provides for the objects and basic
characteristics of local government, but the detailed provisions
applicable to and governing
the structures of local government are
required to be stipulated for in legislation to be enacted.
18
The Systems Act and the MFMA form part of the suite of legislation
enacted by the National Assembly that is intended to fulfil
the
legislative mandate contemplated in Chapter 7 of the Constitution.
18.1 The long title of
the MFMA provides that it seeks to secure sound and sustainable
management of the financial affairs of municipalities
and other
institutions in the local sphere of government.
18.2 The objects of the
MFMA are spelled out in section 2 thereof as follows:
The object of this Act is
to secure sound and sustainable management of the fiscal and
financial affairs of municipalities and municipal
entities by
establishing norms and standards and other requirements for-
(a) ensuring
transparency, accountability and appropriate lines of responsibility
in the fiscal and financial affairs of municipalities
and municipal
entities;
(b) the management of
their revenues, expenditures, assets and liabilities and the handling
of their financial dealings;
(c) budgetary and
financial planning processes and the co-ordination of those processes
with the processes of organs of state in
other spheres of government;
(d) borrowing;
(e) the handling of
financial problems in municipalities;
(f) supply chain
management; and
(g) other financial
matters.
18.3 It is clear from a
reading of the Act as a whole that the MFMA promotes accountability
as an overarching principle.
19
The MFMA sets out in some detail the responsibilities of
municipalities as well as of the officials who are employed by and
who are charged with carrying out from day to day these
responsibilities. The net is thrown wide around people who bear these
responsibilities
under the Act, with the definition of officials in
section 1 as follows
'official',
in relation to a municipality or municipal entity, means-
(a) an employee of a
municipality or municipal entity;
(b) a person seconded to
a municipality or municipal entity to work as a member of the staff
of the municipality or municipal entity;
or
(c) a person contracted
by a municipality or municipal entity to work as a member of the
staff of the municipality or municipal
entity otherwise than as an
employee;
20
Section 176 of the MFMA serves a twofold purpose: it affords these
officials immunity from liability for actions in good faith,
but it
also imposes a liability on them in favour of municipalities for harm
caused through negligent or deliberate conduct:
Liability of
functionaries exercising powers and functions in terms of this Act
(1) No municipality
or any of its political structures, political office-bearers or
officials, no municipal entity or its
board of directors or any of
its directors or officials, and no other organ of state or person
exercising a power or performing
a function in terms of this Act, is
liable in respect of any loss or damage resulting from the exercise
of that power or the performance
of that function in good faith.
(2) Without
limiting liability in terms of the common law or other legislation, a
municipality may recover from a political
office-bearer or official
of the municipality, and a municipal entity may recover from a
director or official of the entity, any
loss or damage suffered by it
because of the deliberate or negligent unlawful actions of that
political office-bearer or official
when performing a function of
office.
Section
176(2) creates a statutory remedy independent of any common law or
other statutory remedy-it is a new statutory remedy that
does not
limit (or affect or draw upon) any other liability in terms of the
common law or other legislation.
21
Lastly, it bears express mention that municipalities are organs of
state and are subject to
inter alia
the provisions of the
Constitution and the Promotion of Administrative Justice Act, 3 of
2000
(PAJA).
Municipalities are obliged, in all instances, to
observe and give credence to the spirit and purport of the
Constitution and to
act in a manner that is lawful, reasonable, and
procedurally fair.
22
I turn now to consider the arguments before me.
THE
PARTIES' COMPETING CONTENTIONS
23
Counsel on behalf of both Parties-Messrs Rood SC and CC Bester for
the third parties and Mr Moultrie for the defendant-submitted
detailed written argument, which has made my task immeasurably easier
and for which I am grateful.
24
The argument put forward on behalf of the third parties is that at
common law joint wrongdoers have no entitlement to claim a
contribution from any other joint wrongdoers.
24.1
In his
argument before me Mr Rood expressly confined his argument to "joint
wrongdoers" and did so with reference to the
passages from the
annexure to the third party notice that refer to the liability of the
third parties as arising because they are
joint wrongdoers.
[4]
24.2 It was submitted on
behalf of the third parties that if the pleading had referred instead
to "concurrent wrongdoers"
then there would be no
complaint. The third parties accept that a concurrent wrongdoer is
entitled to claim a contribution from
his/her fellow concurrent
wrongdoers.
24.3 The exception is
founded on the proposition that in law a wrongdoer who is sued in
full by a plaintiff cannot claim a contribution
from any other joint
wrongdoers.
25
In the heads of argument filed on behalf of the third parties this
contention is based on the following cases:
25.1
Allen v Allen
1951 (3) SA 320
(A) was concerned with a divorce action in which
the husband claimed forfeiture of benefits. At 327, the passages
referred to on
behalf of the third parties, the court considered the
effect on the marriage and its proprietary rights of malicious
desertion.
As I read it, there is no general principle stated that
wrongdoers are not entitled to claim for a proportionate contribution
from
joint wrongdoers.
25.2
Walker v
Matterson
1936 NPD 495
at 501 is authority for the proposition
that one joint wrongdoer cannot claim a contribution from another
joint wrongdoer where
the wrongful delictual act had been perpetrated
intentionally.
25.3
Hughes v
Transvaal Associated Hide & Skin Merchants (Pty) Ltd
1955 (2)
SA 176
(T) concerned a claim for damages arising from a motor vehicle
accident. The defendant sought to join a third party who was neither
a joint tort-feasor or joint wrongdoer. It follows that the case is
therefore
obiter
in relation to the proposition on which the
third parties seek to rely. Roper J in
Hughes'
case, at 179F,
expressly said 'It is not necessary to attempt to decide whether the
doctrine prohibiting contribution [by a joint
wrongdoer] is part of
our law, and if so what the limits of its application are, because in
my view the rule, if it exists, does
not apply to the present case.'
I should add, however, that in its consideration of the principles
and cases that informed "the
doctrine", the court revealed
how the origins of this doctrine lay in the
ex turpi causa
doctrine and appeared to pertain to intentional wrongdoing.
25.4 Lastly, reference
was made to paragraph 11 of
Nedcor Bank Ltd t/a Nedbank v
Lloyd-Gray Lithographers (Pty) Ltd2000
(4) SA 915 (SCA), where
the following was said by Scott JA:
Counsel
for the appellant conceded that Nedbank and S were concurrent
wrongdoers at common law. The concession was correctly made.
However,
he disputed that they were liable
in solidum,
in other words
that the respondent could sue Nedbank for the full amount of its
loss. The argument, as I understood it, was that
Lee's case was
distinguishable on the ground that in the present case the fault of
the concurrent wrongdoers took different forms.
Accordingly, so it
was contended, the one could not claim a contribution from the other
and this in turn precluded them from being
liable
in solidum.
In
my view, the argument is unsound. Joint wrongdoers are undoubtedly
jointly and severally liable at common law. This has always
been so
even when the one paying was not entitled to recover a contribution
from another. The absence of a right to a contribution
inter
partes
has no effect on their joint and several liability
to the plaintiff.
In the case of concurrent wrongdoers a right to
a contribution has generally been recognised. (See
Hughes v
Transvaal Associated Hide and Skin Merchants (Pty) Ltd and Another
(supra).)
But, even if in a particular case such a right were not
to be afforded, that would not affect the nature of their liability
to the
plaintiff. In any event, it is difficult to appreciate why a
concurrent wrongdoer guilty of
culpa
who pays a plaintiff in
full should be precluded from having recourse against a concurrent
debtor guilty of
do/us.
At common law a defendant guilty of
dolus
could not raise a defence of contributory negligence on
the part of the plaintiff
(Pierce v Hau Mon
1944 AD 175
at 197
- 8) and this rule and the denial of a right of recourse against a
joint wrongdoer were probably founded on the principle
embodied in
maxims such as
ex dolo malo
non oritur actio
and
ex
turpi causa non oritur actio.
(See Broom's
Legal Maxims
10th
ed at 497 - 8;
Hughes' case supra
at 178F - 179F.) Joint
wrongdoers, having committed the delict acting in concert or in
furtherance of a common design, would usually
have acted wilfully.
But, if a concurrent wrongdoer guilty of
culpa
has recourse
against another concurrent wrongdoer similarly guilty of
culpa,
it
follows a
fortiori
that he would have such right against a
concurrent wrongdoer whose fault took the form of
dolus.
The underlining is mine,
because the third parties relied heavily on this passage as authority
for the legal proposition they contended
for. I return to it later in
considering the merits of the arguments.
26
In contradistinction with the position adopted on behalf of the third
parties, Mr Moultrie asserts that the common law allows
a right of
contribution in precisely these circumstances.
27
In particular, the defendant points to the fact that our courts have
recognised an implied or common law contribution in respect
of claims
in a number of cases, including
Shell Auto Care (Pty) Ltd v Laggar
2005 (1) SA 162
(D), where Tshabalala JP considered an exception
brought to a third party notice in similar circumstances to the case
before me.
27.1 The plaintiff had
pursued as against the defendant a statutory claim arising out of the
provisions of the Companies Act, 61
of 1973. The defendant sought to
join his fellow directors as third parties and to claim from them a
contribution on the basis
that they were joint wrongdoers having been
equally remiss in their statutory duties to the plaintiff.
27.2 The excipients
contended that the claim against them was unsound in law, because the
defendant could not seek any contribution
from them as joint
wrongdoers. The learned Judge President, at 166A - B of the report,
summarised the issue before him as follows:
At the hearing of the
exception it was common cause between the parties that the only issue
which remained after several amendments
to the third party notice and
the third party's further exception to the annexure to the first
defendant's third party notice,
is whether a breach by the third
parties, or any one of them, of the provisions of s 226(4) of the
Companies Act in the manner
alleged in para 10 of the annexure,
entitles the first defendant (Laggar) to claim an indemnification
from the third parties, as
contemplated in Rule 13, or at all.
27.3 Thereafter the Court
considered the position, both with reference to English cases as well
as decided South African cases and
the common law before concluding
that our courts recognise that the right to contribution does exist,
although there has been no
explicit authority to that effect.
27.4 On that basis the
exception was dismissed.
28
Unsurprisingly, the heads of argument submitted on behalf of the
defendant reference a number of the authorities that were in
turn
referred to in
Laggar's
case, including the old authorities
and English cases. I do not mention of all these in this judgment,
because they have already
been considered in the judgment of
Tshabalala JP.
29
Mr Moultrie has also looked carefully at the judgment of Roper J in
Hughes'
case, in which the learned Judge also traversed a
number of the older English and South African cases as well as
various old authorities.
A number of those cases and authorities find
their way into the heads of argument filed on behalf of the
defendant.
30
In an
impressive act of jurisprudential dedication Mr Moultrie has gone
much further still than the Courts did in
Hughes'
and
Laggar's
cases
and-with reference to Justinian,
[5]
Van Leeuwen,
[6]
Van der
Keessel,
[7]
Grotius,
[8]
Voet,
[9]
Van der Linden,
[10]
and Pothier
[11]
- has revealed
how the common law has more recently followed an approach in terms of
which solidary co-debtors are entitled to
claim contributions
inter
se,
except
where to do so would offend against the clean hands doctrine.
31
These
principles appear to have carried through into South African law,
[12]
except in circumstances where the wrongdoer's conduct was
turpitudinous or in the case of claims under the
actio
iniuriarum.
[13]
32
In the
Kroon
decision referred to in footnote 12 above Wessels
J based his decision on the proposition that the right of a surety to
recover
a contribution is not founded on contract, but is the result
of general equity on the ground of equality of burden and benefit (at
385). A similar conclusion was reached in
Samancor,
where the
SCA said the following:
[16] ... Contribution is
an equitable remedy and although not based upon any contractual
relationship between co-insurers, a court
may nevertheless consult
the relevant insurance contracts in order to determine what
contribution a co-insurer who has paid should
in fairness be allowed
to recover. I agree with the Judge a quo (at para [11] of his
judgment) that precedence provisions and excess-of-loss
clauses
determine relative contribution rights and do not convert the
liability of a co-insurer into a liability that is not equal
and
co-ordinate with that of another co-insurer.
[17] There is therefore
no merit in the contention that there was not double insurance.
Westchester fully indemnified the appellant
in respect of the loss
that it had suffered. The appellant does not contend that Westchester
was not obliged to do so. On the appellant's
own case, the loss was
recoverable from either the respondents or Westchester. It is plain
that as co-insurers, the liability of
Westchester and the respondents
was equal and co-ordinate. In these circumstances, Westchester by its
payment in terms of the assets
policy discharged, not only its
liability to the appellant in terms of that policy, but also the
respondents' liability to the
appellant in terms of the works policy.
Having paid a claim within the respondents' liability range because
the respondents refused
to do so, and being co-ordinate debtors,
Westchester should have brought a claim for contribution and not a
subrogated claim.
33
The general principle, the defendant asserts, therefore is that there
is an entitlement to claim a contribution except in respect
of a
wrongdoer who acted with an intent that attracts the opprobrium of
the court hearing his claim. In those circumstances, the
right to a
contribution is barred principally by the application of the maxims
ex dolo malo non oritur actio
or
ex turpi causa non oritur
actio,
the application of which acknowledged the equitable nature
of the right to claim a contribution.
34
It is for this reason, says the defendant, that there is a right on
the part of concurrent wrongdoers to claim a contribution
from other
wrongdoers. That is, because there can be no turpitude-in the sense
of a defendant having acted with knowledge of the
unlawfulness of
his/her conduct-that taints their right to recover.
35
On the facts of this case Mr Moultrie submits that there is no
evidence of any turpitude on behalf of the defendant and therefore
the exception falls to be dismissed.
ANALYSIS
36
As I have indicated above, it is for the third parties to persuade me
that the exception is well taken on all reasonable interpretations
of
the third party annexure.
37
Shortly after the commencement of his address before me I asked Mr
Rood whether or not there was any authority directly at point.
That
is, is there any case of which he is aware the
ratio decidendi
of
which is that a wrongdoer cannot claim a contribution from a fellow
joint wrongdoer.
38
In answer to my query I was referred to the
Hughes
and
Lloyd-Gray Lithographers
judgments and, at my instance, we
also debated between us the decision in
Randbond Investments (Pty)
Ltd v FPS (Northern Region) (Pty) Ltd
1992 (2) SA 608
(W). I deal
with each of these in tum, starting with
Hughes.
39
Hughes v Transvaal Associated Hide & Skin Merchants (Pty) Ltd
39.1 It should be
apparent from the extract that I quoted at paragraph 25.3 above from
the
Hughes
decision, that it is not authority for the
proposition advanced by the third parties. The decision is plainly
obiter
on the question of the right, if any, of a joint
wrongdoer to claim from a fellow joint wrongdoer.
39.2 That said, even if
regard is to be had to the
Hughes
judgment, it is not
supportive of the third parties' case. In the first place, the
relevant passages are concerned principally with
the question of
whether or not a joint wrongdoer who is guilty of turpidinous conduct
can claim at all, or ifs/he is precluded
from doing so because of
his/her moral turpitude. This is so both in relation to English law
and South African law. Secondly, Roper
J never finally decided this
question, as the quotation at paragraph 25.3 above makes clear: he
expressly left the issue open and
the rest of the judgment suggests
that the reason he did so is precisely because he was unsure of the
answer.
39.3 I was urged to
consider the passage in the judgment at l 78H-which reads 'Whether
the doctrine forms part of our law appears
to be open to some doubt'
as referring to the right of a joint wrongdoer to recover a
contribution being in doubt. But read
in context with the judgment as
a whole, this is not so because "the doctrine" that Roper J
refers to is the English
law doctrine that a wrongdoer is prevented
from recovering a contribution where his/her claim is morally wrong.
It is this restriction
on the right of a joint wrongdoer to recover
that Roper J doubts applies in South African law, as the following
somewhat lengthy
extract reveals:
Street
Foundations of
Legal Liability,
1906, vol. 1 ch. 23, p. 490, regards the
[English law] doctrine as a necessary consequence of the principle
embodied in the maxim
ex turpi causa non oritur actio,
and
states that modern decision has limited it to situations where the
person who claims contribution must be presumed to have known
that he
was doing an unlawful act. Cf.
Restatement of the Law,
Restitution,
pp. 385 et seq.
Whether the doctrine
forms part of our law appears to be open to some doubt. The following
authorities are in the affirmative: M.
de Villiers Law of Injuries,
p. 45; Maasdorp
Institutes,
vol. 4, 6th ed., p. 15; Lee
Introduction,
5th ed., p. 339; Lee and Honore S.A.
Law of
Obligations,
p. 205;
East London Municipality and Another v
Ellis,
1907 E.D.C. 308
;
Gray v Poutsma and Others,
1914
T.P.D. 203
(dictum of GREGOROWSKI, J., at p. 215);
Toerien v
Duncan,
1932 OPD 180
at p. 203;
Walker v Matterson,
1936
NPD 495
at p. 501
In
Toerien v Duncan
the statement of FISCHER, J., as to the rule against contribution
appears to be
obiter dictum,
and it was repeated without
discussion by MATTHEWS, A.J.P., in
Walkerv Matterson.
The foundation in the
Roman-Dutch authorities for these views appears to be decidedly
slender. They all derive from a passage in
Voet,
9.2.20, in
which after discussing the position which arises when an action
de
dejectis et effusis
is brought against one of several occupiers
of premises, he remarks that a different rule applies if a number of
persons have committed
a true delict
(si plures vere deliquerint),
'for in that case what
one has paid in consequence of the joint delict he cannot recover
from the others either in full or in part,
but the others must rather
also be punished, since there is no partnership or community in
respect of a delict'.
It appears to be open to
question whether in this passage
Voet
purported to set out the
law of Holland, or was merely stating his view of the Roman Law (see
Kotze
Aanspreeklikheid van Mededaders en Afsonderlike Daders,
p.
69).
Pothier
Obligations,
para. 282, after stating that in Roman Law a joint wrong
doer who had paid the whole damages could not recover from his fellow
wrong doers by the action
pro socio,
says that in French
practice recovery of contribution is allowed by a sort of
actio
utilis negotiorium gestorum
on the ground of equity. In a note to
his translation of this passage van der Linden states that he shares
the view of Pothier as
to the equity of this practice; but
unfortunately he says nothing to indicate what the practice was in
Holland.
In an article in 43
S.A.L.J., p. 251, the view is expressed that in Roman Dutch Law the
rule prohibiting contribution applies as
between intentional
wrong-doers - those joined
dolo
- but not as between those
only joined
culpa,
as in cases of negligence causing damage.
Professor McKerron
Delict,
4th ed. p. 144, takes the view that the rule
prohibiting contribution has fallen away, and that whether the wrong
committed is a
true delict or a quasi-delict, the rule which should
be applied to-day is that contribution is recoverable except in the
case of
intentional wrong-doing.
It is not necessary to
attempt to decide whether the doctrine prohibiting contribution is
part of our law, and if so what the limits
of its application are,
because in my view the rule, if it exists, does not apply to the
present case.
39.4
Hughes'
case
is therefore not authority for the proposition contended for on
behalf of the third parties; indeed, on the contrary, it seems
to me
to at best be neutral vis-a-vis the third parties' exception, but
more likely is authority for the opposite conclusion.
40
Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd
40.1
Lloyd-Gray
dealt
with concurrent wrongdoers, not joint wrongdoers, and was also a
claim arising in delict. Like
Hughes
it is on its face
distinguishable from the case before me and any remarks made on the
position in relation to joint wrongdoers are
obiter.
40.2 That said, despite
what was argued before me the contents of the case are also not
helpful to the third parties. Indeed, as
with
Hughes,
the
Lloyd-Gray
decision asserts the very opposite of what the
third parties contend for.
40.3
In
paragraph 10 of the judgment
[14]
Scott JA clearly and succinctly sets out the distinction between
concurrent and joint wrongdoers and the relevance of that distinction
in relation to what a plaintiff may claim from either. These passages
do not trench on the question before me and, as the learned
judge
pointed out, the distinction has by and large become irrelevant in
the context of delictual claims, because of the passing
of the
Apportionment Act. Nonetheless, the passages have some relevance
because they place in context the paragraph that follows
on which the
third parties place reliance.
40.4 There then followed
the paragraph I have quoted above at 25.4, where Scott JA records the
concessions correctly made by counsel
that the antagonists in that
case were concurrent wrongdoers. But, there was no concession that a
concurrent wrongdoer can be sued
in solidum
and it is this
question that Scott JA goes on to consider. In the course of doing so
he remarks
obiter
on the right of a wrongdoer to seek a
contribution and these are the three lines that the third parties in
this case have seized
upon:
Joint wrongdoers are
undoubtedly jointly and severally liable at common law. This has
always been so even when the one paying was
not entitled to recover a
contribution from another. The absence of a right to a contribution
inter partes
has no effect on their joint and several
liability to the plaintiff.
40.5 Mr Rood wants me to
read and keep reading these three sentences until I come to the
conclusion that they mean that a joint
wrongdoer cannot recover a
contribution from his/her fellow joint wrongdoer. He would like the
words "even when" to mean
"even though" and for
the second sentence to mean "This has always been so
even
when
despite the fact that
the one paying was not
entitled to recover a contribution from another."
40.6 Any such reading
would do an injustice to the carefully chosen words of Scott JA,
whose meaning is abundantly clear. The passage
that follows the words
"even when" stand in contradistinction with the usual
position; they are the exception rather
than the rule. Rendered
differently but retaining the meaning the sentence can be transcribed
as "Even in circumstances when
the wrongdoer paying was not
entitled to recover a contribution from any other wrongdoer, the
former is still jointly and severally
liable in full to the
plaintiff."
40.7 The necessary
implication is that, because this is an exception to the general
position, joint wrongdoers are ordinarily entitled
to recover a
contribution from their fellow joint wrongdoers.
40.8 Even if I err and
take the implication too far, by no stretch of the imagination can
these passages be construed as meaning
that a joint wrongdoer can
never recover from a fellow joint wrongdoer, which is what I am asked
to interpret it to mean.
40.9 In the
circumstances,
Lloyd-Gray
does not assist the third parties.
41
Randbond Investments (Pty) Ltdv FPS (Northern Region) (Pty) Ltd
41.1 In
Randbond
Mahomed J, as he then was, considered whether or not there was
anything in section 2 of the Apportionment Act that limited the
contribution
a joint wrongdoer may claim from another wrongdoer to
delictual acts performed negligently but not intentionally. Finding
that
there was no such limitation, the court rejected an objection
from third parties to their joinder to the action.
41.2 At 6191 - 6208, the
Court said the following:
The first ground for this
submission was that the statute had to be read in the light of the
common law and that at common law one
joint wrongdoer could not make
a claim for a contribution from another joint wrongdoer if the
wrongful delictual act concerned
was an intentional act of
wrongdoing. There is undoubtedly considerable authority which
supports the view that one joint wrongdoer
cannot claim a
contribution from another joint wrongdoer where the wrongful
delictual act had been perpetrated intentionally. (McKerron
Law of
Delict in South Africa
1st ed at 73; I van Zyl Steyn
'Contribution Between Joint Tortfeasors'
1926 (43)
SALJ
251
at
254, 256 and 267;
Digest
27.3.1 para 13;
Voet
9.2.12;
Digest
27.8.7; M de Villiers
The Roman-Dutch Law of
Injuries
at 45;
Walker v Matterson
1936 NPD 495
at 501;
Toerien v Duncan
1932 OPD 180
at 203.)
Whatever the position may
be at common law, it seems clear that the Apportionment of Damages
Act was intended to constitute a major
departure from certain basic
common law rules.
41.3 Once again, the
thrust of the passage lies in the words that recovery of a
contribution was not permitted if the wrongful act
was intentional.
The necessary implication of the passage is that recovery by joint
wrongdoers was otherwise permissible. There
is no other way of
reading these
dicta
either, but again they are plainly
obiter.
41.4 Whichever way it is
to be understood, the quoted passages do not stand in favour of the
third parties' exception.
42
In the circumstances, there has been no authority put before me in
support of the third parties' contention that a joint wrongdoer
sued
by a plaintiff for the full amount of the plaintiffs loss may not
recover a contribution from his/her fellow joint wrongdoers.
Indeed,
on the contrary, the cases I have been referred to on behalf of the
third parties point to the opposite conclusion.
43
I inquired after any other authorities and there are none. Mr
Moultrie stridently asserted that the third parties could not adduce
any such case because there is no such case. He was not contradicted
in reply.
44
What I am left with then are the old authorities to which I have been
referred by Mr Moultrie, some of which are referenced in
Laggar
and
Hughes.
These point towards later Roman-Dutch Law as
having recognised a right of contribution between joint wrongdoers,
except in certain
circumstances. In some instances this right of
contribution appears to have been present even in Roman Law. Hence,
the common law
supports the claim advanced by the defendant against
the third parties.
45
The most significant qualification to this is that there could be no
claim for a contribution by a wrongdoer as against his fellow
wrongdoers where there was deliberate malfeasance. This seems to be
due in the main to the application of one or the other of the
ex
dolo malo
or
ex turpi causa
maxims. Whether such an
exception applies on the facts of this case is, however, not a
question before me and I expressly refrain
from expressing any views
on it.
46
The decisions of
Kroon
and
Samancor
are further common
law authority for the proposition that the right in law to claim a
contribution resides generally in equity.
In so finding, these
decisions followed the English law, which is to the same effect.
There doesn't appear to be any reason why
a joint wrongdoer in the
position of the defendant should not similarly be afforded recourse
to these equitable considerations.
If there is doubt, therefore, the
residual equitable nature of the remedy of contribution should tilt
the balance in favour of
the defendant in this case.
47
Laggar
accepts that a right to claim a contribution exists in
the context of a statutory claim in circumstances that closely
parallel the
circumstances of this case. I was asked to find that the
case is obviously wrong and therefore not to follow it. Whilst I do
not
necessarily follow or adopt all of the reasoning of
Laggar
and
do not consider it to be binding on me, I am not inclined to find
that it is obviously wrong.
48
The common law therefore is in favour of the defendant and against
the third parties. There is, however, a further question to
be
considered, which is whether or not there is any reason arising from
the statute or from the statutory regime applicable to
the MFMA that
requires that section 176(2) of the MFMA be more restrictively
interpreted so as to preclude a right of contribution.
I think not.
49
I am of the
view that permitting a defendant to claim a contribution from joint
wrongdoers rather than allowing those joint wrongdoers
to be shielded
from a claim would better serve those objects and purposes of the
MFMA that I have identified above.
[15]
50
Furthermore, if a municipality were to be allowed to single out one
individual for prosecution under section 176(2) of the MFMA
to the
exclusion thereafter of all others who may have been involved, this
might not only be reviewable under PAJA and offensive
to that
municipalities Constitutional obligations, but could also lead to an
improper preferring of some and a disproportionate
punishment of
other officials. Either way, if a defendant has no right of recourse
against other officials then there may arise
a multiplicity of
actions, including review proceedings that are surely not desirable.
Recognising the right to claim a contribution
cuts through a whole
host of these potential problems; restricting that right can only
lead municipalities down a road to litigation
perdition.
51
Having regard to the fact that municipalities are organs of state and
that the origins of the MFMA lie in the Constitution, there
also does
not seem to be any good reason why they should be allowed to choose a
single official, with the result that other officials
can escape
scot-free as a consequence. This does not seem to me to serve the
interests of an open and transparent democracy based
on the
constitutional principles of equality, dignity, and freedom.
52
In other words, having regard to the provisions of the MFMA, its
purpose and its statutory context I can find no good reasons
that
militate in favour of the curtailment of a common law right of
contribution.
53
There therefore would not be any good reason to displace what I
understand to be the common law position, which is that in
circumstances
such as these a defendant can look to a contribution
from his/her joint wrongdoers in respect of any claim advanced by a
plaintiff.
CONCLUSION
54
It follows from what I have said above that the third parties have
failed to put any authority before me in support of the proposition
that in cases such as these our law precludes the defendant, as one
joint wrongdoer, from claiming a contribution from the third
parties
as other joint wrongdoers.
55
Indeed, as should be apparent from what I have set out above, I am of
the view that the common law and the preponderance of authority
stands for the opposite conclusion and that the defendant is in law
entitled to claim precisely such a contribution.
56
Either way, the exception must fail.
57
Accordingly, I make the following order:
1. The exception is
dismissed;
2. The third parties are
to file such pleadings as they may consider appropriate as provided
for in Rule 13(6) of the Uniform Rules
of Court;
3. Those of the third
parties who were party to the exception-being all but the fourth,
fifth, seventh, and sixteenth third parties-are
ordered to pay the
defendant's costs arising therefrom.
Signed
at Johannesburg on this the 16
th
day of May 2019
_________________
BE
LEECH AJ
ACTING
JUDGE OF THE HIGH COURT,
JOHANNESBURG
APPEARANCES
DATE
OF HEARING:
13
th
MAY 2019
DATE
OF JUDGMENT:
17
th
MAY 2019
EXCIPIENTS'
COUNSEL:
ADV P ROOD SC
ADV
C BESTER
DEFENDANTS'
ATTORNEYS:
CHEADLE THOMPSON & HAYSOM INC
JOHANNESBURG
TEL:
(011) 403-2765
RESPONDENT'S
COUNSEL:
ADV R MOULTRIE
RESPONDENT'S
ATTORNEYS:
FASKEN MARTINEAU
TEL:
(011) 586-6031
[1]
All quotations are rendered verbatim, except to the extent that
square brackets or ellipses are used to indicate an omission
or
insertion. Furthermore, footnotes have been omitted from quotations.
[2]
I have quoted this extract from the postscript to paragraph 43 of
the annexure to the third party notice. There may be some
differences in the formulation of this allegation in various places
and it may not be that in every instance (or even in the instance
to
which this allegation specifically relates) the defendant is
entitled to a one-sixteenth share. That said, the allegation
conveys
the gravamen of the defendant's claims against the third parties and
it is for that reason I have quoted it. I do not
thereby express any
views on the pleading per se.
[3]
For purposes of the MPMA deciding the exception the following
principles, summarised by JA in Ocean Echo Properties 327 CC v
Old
Mutual Life Assurance Company (South Africa) Ltd
2018 (3) SA 405
(SCA), apply:
[9]
Since these are proceedings on exception, Old Mutual has the duty as
excipient to persuade the court that upon every interpretation
which
the plea can reasonably bear, no defence is disclosed. The main
purpose of an exception is to avoid the leading of unnecessary
evidence. By the nature of exception proceedings the correctness of
the facts averred in the plea must be assumed. Because Old
Mutual
chose the exception procedure - instead of having the matter decided
after the hearing of evidence at the trial - it had
to show that the
plea is (not may be) bad in law.
[4]
That is, in accordance with the passage from paragraph 43 of the
third party annexure quoted by me at 9.4 above.paragraph
[5]
C 4.65.13, C 8.39.1.1, C 8.40.11 and Novel 99 pr and I & 2
(Blume Annotated Justinian Code and Novels translation available
at
www.uwyo.edu/lawlib/blume-justinian/ajc-edition-2/books/)and D
3.5.29 (3), D 16.3.1.43, D 27.3.1, D 27.3.1.13-15, D 46.1.17,
D
46.1.36, and D 46.1.39 (Watson Digest of Justinian University of
Pennsylvania, Philadelphia, 1985). D 27.3.1 and 27.3.1.13
point to
this contribution arising in respect of co-tutors or co-curators; D
3.5.29 (30) points to it in the context of public
officials.
[6]
Van Leeuwen Commentaries on Roman Dutch Law (1780) (Kotze's
translation, Steven & Haynes, London, 1886) at 4.4.1 pp 36 note
(c).
[7]
Van der Keessel Voorlesinge oor die Hedendaagse Reg (Van Warmelo's
translation, Balkema, Amsterdam, 1966) at 1063 p 75, 1064
p 77.
[8]
Grotius The Introduction to Dutch Jurisprudence (Maasdorp's
Translation, Juta, Cape Town, 1909) at 3.3.8, fn 13.
[9]
Voet Commentary on the Pandects (Gane's translation, Butterworth,
Durban, 1955) at 45.2.1, 45.2.7, and 46.1.30.
[10]
Van der Linden Institutes of Holland {Koopman's Handboek) (Juta,
Cape Town, 1906) at 1.14.10.
[11]
Pothier A Treatise on the Law of Obligations (Evans translation,
Small, Philadelphia, 1853) at 2.6.7.4.
[12]
In the context of sureties (Kroon v Enschede
1909 TS 374
, Gerber v
Walson
1955 (1) SA 158
(A) at 183A, Nelson v Hodgetts Timbers (East
London) (Pty) Ltd
1973 (3) SA 37
(A) at 44H - 45A); co-insurers
(Samancor Ltd v Mutual & Federal Insurance Co Ltd
2005 (4) SA 40
(SCA) at [5], where the court followed a number of English cases to
the same effect).
[13]
Claims under the actio iniuriarum are, of course, distinguishable
from contractual, Aquilian, or for that matter statutory claims
in
that intention is a necessary requirement of claims under the actio,
the defendant's solatium is not necessarily compensatory,
and there
remains a punitive element in the approach to defendants.
[14]
[10] At common law a distinction is drawn between joint wrongdoers
and concurrent wrongdoers. (The latter are sometimes referred
to as
'several' wrongdoers; see, for example, Glanville Williams Joint
Torts and Contributory Negligence at 1.) Joint wrongdoers
are
persons who, acting in concert or in furtherance of a common design,
jointly commit a delict. They are jointly and severally
liable.
Concurrent wrongdoers, on the other hand, are persons whose
independent or 'several' delictual acts (or omissions) combine
to
produce the same damage. (See generally Van der Walt Delict para 60;
McKerron The Law of Delict 7th ed at 107 - 8.) It was
accepted by
this Court in Union Government (Minister of Railways) v Lee
1927 AD
202
that, subject always to there being an intact chain of
causation, one concurrent wrongdoer may be sued for the full amount
of
the plaintiffs loss, ie that concurrent wrongdoers are liable in
solidum. (See also Botes v Hartogh
1946 WLD 157
at 160; Hughes v
Transvaal Associated Hide and Skin Merchants (Pty) Ltd and Another
1955 (2) SA 176
(T) at 180F - H; Windrum v Neunbom
1968 (4) SA 286
(T) at 287H - 288A.) A contrary view, viz that each concurrent
wrongdoer should be answerable to the plaintiff in proportion
to the
degree at which the former was at fault, is advanced by Kotze in his
doctoral thesis Die Aanspreeklikheid van Mededaders
en Afsonderlike
Daders (1953) at 124 et seq. Such an approach would require a
plaintiff to sue each and every concurrent wrongdoer
in order to
recoup his loss. This strikes me as being likely to cause undue
hardship for a plaintiff. The correctness of Lee's
case was,
however, not challenged in argument and despite Kotze's criticism I
am unpersuaded that it was wrongly decided. The
distinction between
joint and concurrent wrongdoers is, of course, now largely academic
in view of the provisions of the Act
which recognise and regulate a
right of contribution between 'joint wrongdoers' who are so defined
as to include both joint and
concurrent wrongdoers at common law.
[15]
I am not thereby casting any aspersions on these third parties; I
express no views in relation to their conduct or whether or
not a
claim should be pursued against them or what the prospects of
success are of any such claim. I approach the issue from
a purely
conceptual perspective.