Brief Summary

Apportionment of Damages — Notice to joint wrongdoer — Plaintiff injured by falling mirror ball during a theatre production instituted two actions against different sets of alleged joint wrongdoers — Plaintiff failed to give notice to one set of defendants before instituting second action — Legal issue arose whether leave of court could be sought under section 2(4)(a) of the Apportionment of Damages Act after the action had been instituted — Court held that leave can be sought post-institution of action, but plaintiff must demonstrate good cause for the failure to provide notice.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an interlocutory application for leave brought in terms of section 2(4)(a) of the Apportionment of Damages Act 34 of 1956. The application arose because the plaintiff instituted a second delictual action against an alleged joint wrongdoer without having given the statutory notice contemplated in section 2(2), and therefore required the court’s leave to persist with that action.

The parties were Gavin Anton Broadhurst (plaintiff/applicant) and Gearhouse Splitbeam (Pty) Limited together with D P Hussey (defendants/respondents). The second defendant, Mr Hussey, opposed the application. The first defendant did not oppose.

The procedural history was central to the dispute. The plaintiff first instituted an action in January 2020 against three defendants arising from a single incident. During the exchange of pleadings in March 2020, two additional parties (including Mr Hussey) were brought into that first action by the original defendants via third-party notices. Instead of giving the statutory notice to Mr Hussey (or pursuing procedural joinder mechanisms within the first action), the plaintiff instituted a second action against the present defendants on 24 March 2020, thereby creating parallel litigation concerning the same loss-causing event and the same damages. Mr Hussey raised a special plea in June 2020 based on non-compliance with the Act. After subsequent steps (including a consolidation application launched in November 2021), the plaintiff only launched the present section 2(4)(a) leave application in September 2022.

The subject-matter of the dispute was not the merits of delictual liability for the injury itself, but rather a procedural statutory bar: whether the plaintiff could maintain the second action despite failing to give notice under section 2(2), and whether the court could grant leave under section 2(4)(a) after the second action had already been instituted.

2. Material Facts

It was common cause that the plaintiff was injured at a theatre production when a mirror ball suspended from the ceiling fell and struck him on the head, allegedly causing brain injuries. It was further common cause that the plaintiff instituted delictual proceedings seeking damages arising from that incident.

It was also not in dispute that the plaintiff’s claims in the two actions related to the same damage allegedly caused by multiple potentially jointly liable wrongdoers, bringing the matter within the ambit of section 2(1) of the Apportionment of Damages Act 34 of 1956.

Chronologically, the plaintiff instituted the first action in January 2020 against three defendants connected with the theatre, the production, and rigging. During March 2020, in the exchange of pleadings in the first action, the original defendants joined two further entities/persons by third-party notices, namely a theatre equipment specialist company and Mr Hussey, described as a civil and structural consulting engineer involved in the erection of the mirror ball. The plaintiff accepted that he only learned of Mr Hussey as a potential joint wrongdoer during this stage of the first action.

A further undisputed fact was that, once the plaintiff became aware of Mr Hussey’s identity, the pleadings in the first action had not yet closed, meaning that section 2(2) notice could still have been given “before the close of pleadings” as contemplated by the Act. Despite that, the plaintiff did not give notice to Mr Hussey in terms of section 2(2), and instead issued a second summons commencing the second action on 24 March 2020.

It was also common cause that Mr Hussey, as a defendant in the second action who had not received notice under section 2(2), raised the failure to comply with section 2(2) and section 2(4)(a) by way of a special plea delivered on 8 June 2020.

On the plaintiff’s version, his failure to give notice was attributed to his erstwhile attorneys’ lack of familiarity with the relevant statutory provisions. The plaintiff further explained the delay in bringing the section 2(4)(a) application on the basis that his previous attorneys had advised that the relevant statutory provisions had been abrogated by disuse, and that only after new attorneys were appointed and Mr Hussey persisted with the objection did the plaintiff bring the application.

No material disputes of fact were identified by the court as requiring resolution on motion; the issues were determined on the accepted procedural chronology and the explanations advanced for non-compliance and delay.

3. Legal Issues

The court was required to determine two central legal questions.

The first was a question of statutory interpretation (a question of law): whether the leave contemplated in section 2(4)(a) of the Apportionment of Damages Act 34 of 1956 must be obtained before instituting an action against a joint wrongdoer who was not notified under section 2(2), or whether such leave may be sought and granted after the further action has already been instituted. This issue was treated as novel on the authorities presented to the court.

The second issue concerned the exercise of a statutory discretion (application of law to fact, involving evaluative judgment): if leave may be sought after institution of the action, whether the plaintiff had shown “good cause” as to why notice under section 2(2) was not given, as required by section 2(4)(a), and whether leave should be granted in the circumstances.

A related legal characterisation issue also arose within the first question: whether non-compliance with section 2(4)(a) rendered the subsequently instituted action a nullity incapable of later cure by an order granting leave.

4. Court’s Reasoning

The court approached the first issue through orthodox principles of statutory interpretation, expressly adopting the interpretive methodology articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), with the starting point being the language of the provision read in context and in light of its purpose. The court accepted that the wording of section 2(4)(a) was ambiguous on the timing of when leave must be sought: it could linguistically sustain either the construction that leave must precede institution, or that leave could be sought after institution.

The court analysed the structure and purpose of section 2 of the Act, drawing on the Supreme Court of Appeal’s explanation in ABSA Brokers (Pty) Limited v RMB Financial Services and Others 2009 (6) SA 549 (SCA). The purpose identified was the avoidance of a multiplicity of proceedings arising from a single loss-causing event by encouraging a unitary determination of liability amongst multiple wrongdoers in a single set of proceedings. Section 2(1) permits joinder of joint wrongdoers in one action; section 2(2) ensures that a joint wrongdoer not sued is at least notified so that they may intervene; and section 2(4) enforces compliance by barring later proceedings unless leave is granted on good cause shown.

While the court accepted that requiring leave before instituting the further action would advance the unitary-action objective more forcefully, it regarded such an interpretation as an unduly blunt mechanism. It reasoned that the statute’s purpose could still be meaningfully advanced if leave could be sought after institution, because the plaintiff would remain obliged to show good cause explaining both the absence of notice and why leave was not sought earlier.

In addition, the court considered practical consequences, including the risk that a plaintiff might need to institute proceedings urgently (for example due to looming prescription), while recognising that giving notice under section 2(2) would not interrupt prescription because it is not the service of process (with reference to section 15 of the Prescription Act 68 of 1969). The court further preferred an interpretation that advanced the constitutional right of access to courts in section 34 of the Constitution, relying on the interpretive approach endorsed in Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors and Others [2000] ZACC 12; 2001 (1) SA 545 (CC).

On the question of nullity, the court considered submissions that proceedings instituted without prior leave should be void. The court found it unnecessary to give effect to the purpose of section 2 by imposing nullity, and considered that section 2(4)(a) itself contemplates the possibility of a court granting leave upon good cause shown, which was inconsistent with treating non-compliance as inevitably fatal. It also reasoned that the statutory language, including the interplay between permissive and peremptory verbs in the subsections, supported the conclusion that the legislature did not intend automatic nullity. The court’s conclusion that consent or authorisation can in appropriate cases be granted ex post facto was reinforced by the principle stated in Neugarten and Others v Standard Bank of South Africa Ltd 1989 (1) SA 797 (AD).

Having concluded that leave could be sought after institution and that the second action was not a nullity, the court turned to whether “good cause” had been shown. It noted that this aspect had received judicial attention, including in Lincoln v Ramsaran and Others 1962 (3) SA 374 (N) and Wapnick and Another v Durban City Garage and Others 1984 (2) SA 414 (D). The court accepted that section 2(4)(a) confers a discretion and that the applicant must provide a satisfactory explanation for the failure to give section 2(2) notice, while at least establishing that the person sought to be sued is prima facie a joint wrongdoer.

On the facts, the court found that it was readily established that Mr Hussey was prima facie a joint wrongdoer, including because he had been joined by third-party notice in the first action and was alleged to have had responsibilities relevant to the safe erection of the mirror ball. The central difficulty lay in the plaintiff’s explanation for failing to give notice and for delaying the leave application. The plaintiff’s explanation was essentially that his former attorneys were ignorant of the requirement and later advised that the provisions had fallen into disuse. The court found these explanations unpersuasive, noting in particular that the statutory provisions had been applied by the Supreme Court of Appeal in ABSA Brokers (Pty) Limited v RMB Financial Services and Others 2009 (6) SA 549 (SCA).

Despite the weakness in explanation, the court exercised its discretion to grant leave. In doing so, it weighed countervailing considerations. Mr Hussey had been involved in the broader litigation from early on by virtue of third-party joinder in the first action, and therefore the incremental prejudice of facing the plaintiff directly in the second action was viewed as less acute than in cases where the joint wrongdoer is drawn in much later. The court also considered that refusing leave would leave the plaintiff without a direct lis against Mr Hussey, and regarded the prospect of a litigant being left remediless against a joint wrongdoer as a strong factor favouring leave, citing Padongelukkesfonds v Van den Berg en ’n ander 1999 (2) SA 876 (O).

The court further took into account that, notwithstanding the time lapse, relatively little had occurred in the litigation since the special plea was delivered, and that granting leave would facilitate an expeditious determination of liability amongst all potentially responsible parties, particularly given the existence of an application to consolidate the two actions. The court adopted an approach of flexibility akin to that used in certain procedural indulgence contexts, accepting that weakness on one requirement may be counter-balanced by strength on others, an approach consistent with the authorities referred to on procedural discretions.

Finally, on costs, the court treated the application as an indulgence sought by the plaintiff. It regarded Mr Hussey’s opposition as reasonable, particularly given that the timing question was treated as novel and the discretionary decision was not straightforward. The court therefore ordered the plaintiff to pay the costs of the application, including Mr Hussey’s costs, while making no adverse costs order concerning the non-opposing first defendant.

5. Outcome and Relief

The court granted the plaintiff leave in terms of section 2(4)(a) of the Apportionment of Damages Act 34 of 1956 to persist with the action under case number 9915/2020 against the first and second defendants.

The court ordered that the plaintiff/applicant pay the costs of the application, including the costs of the second defendant (Mr Hussey). No costs order was made against the first defendant, which did not oppose the application.

Cases Cited

ABSA Brokers (Pty) Limited v RMB Financial Services and Others 2009 (6) SA 549 (SCA).

Becker v Kellerman 1971 (2) SA 172.

Lincoln v Ramsaran and Others 1962 (3) SA 374 (N).

Wapnick and Another v Durban City Garage and Others 1984 (2) SA 414 (D).

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

Tshwane City v Blair Atholl Homeowners Association 2019 (3) SA 398 (SCA).

Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A).

Neugarten and Others v Standard Bank of South Africa Ltd 1989 (1) SA 797 (AD).

Incorporated Law Society of Natal v Van Aardt 1930 NPD 69.

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors and Others [2000] ZACC 12; 2001 (1) SA 545 (CC).

Pitsiladi and Others v ABSA Bank and others 2007 (4) SA 478 (SE).

Mercantile Bank Limited v Carlisle and Another 2002 (4) SA 886 (W).

Padongelukkesfonds v Van den Berg en ’n ander 1999 (2) SA 876 (O).

Zealand v Milborough 1991 (4) SA 836 (SE).

Carolus and another v Saambou Bank Ltd 2002 (6) SA 346 (SE).

Legislation Cited

Apportionment of Damages Act 34 of 1956, sections 2(1), 2(2), and 2(4)(a).

Prescription Act 68 of 1969, section 15(1) read with section 15(6).

Constitution of the Republic of South Africa, 1996, section 34.

Rules of Court Cited

Uniform Rule 13(1).

Uniform Rule 13(3)(b).

Held

The court held that leave under section 2(4)(a) of the Apportionment of Damages Act 34 of 1956 may be sought and granted after a plaintiff has already instituted a further action against a joint wrongdoer without having given notice under section 2(2). The court further held that non-compliance with the notice/leave mechanism in section 2(4)(a) did not render the further action an incurable nullity.

On the facts, the court held that the plaintiff had shown good cause sufficient to justify granting leave, notwithstanding an unpersuasive explanation for the failure to give notice and the delay in bringing the leave application, because Mr Hussey was clearly a prima facie joint wrongdoer, had been involved in the litigation since early through third-party joinder, and refusal of leave would leave the plaintiff without a direct claim against him, while granting leave would facilitate a more comprehensive and efficient determination of liability (including in the context of a pending consolidation application).

LEGAL PRINCIPLES

Section 2 of the Apportionment of Damages Act 34 of 1956 is directed at encouraging the resolution of all claims arising from a single loss-causing event in unitary proceedings, and at reducing prejudice to joint wrongdoers by ensuring notice and an opportunity to intervene where they are not sued initially.

Where the language of a statutory provision is ambiguous, interpretation requires an objective assessment of the text read in context and in light of purpose, preferring a sensible meaning that does not undermine the statute’s aims, consistent with the interpretive approach in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

The bar in section 2(4)(a) against later proceedings where section 2(2) notice was not given is not necessarily visited with nullity. The statutory scheme contemplates the possibility of curative leave being granted on good cause shown, and leave may be capable of being granted ex post facto where the statute does not clearly require prior authorisation.

“Good cause” for purposes of section 2(4)(a) primarily requires a satisfactory explanation for why notice under section 2(2) was not given timeously, assessed within a discretionary framework. In exercising that discretion, the court may consider factors including whether the person is prima facie a joint wrongdoer, prejudice to the joint wrongdoer, the broader administration of justice, and whether refusal of leave would leave the plaintiff remediless against that wrongdoer.

Where a litigant seeks a procedural indulgence, and where opposition is reasonable (particularly on novel questions), an adverse costs order against the applicant may be warranted even if the indulgence is ultimately granted.

Broadhurst v Gearhouse Splitbeam (Pty) Limited and Another (9915/2020) [2023] ZAGPJHC 782; [2023] 3 All SA 682 (GJ); 2023 (6) SA 232 (GJ) (6 July 2023)