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[2014] ZAFSHC 75
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Smits v Member of the Executive Council: Police, Roads and Transport, FS (1657/2012) [2014] ZAFSHC 75 (12 June 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 1657/2012
In
the matter between:-
MAGDALENA
SMITS
…........................................................................................
Plaintiff/Respondent
and
MEMBER
OF THE EXECUTIVE COUNCIL:
POLICE,
ROADS AND TRANSPORT, FS
…......................................................
Defendant/Applicant
TEFO
EPHRAIM GOPANE
….............................................................................................
Third
Party
HEARD
ON:
5 JUNE 2014
JUDGMENT
BY:
KRUGER, J
DELIVERED
ON:
12 JUNE 2014
[1]
This case concerns the interpretation of Uniform Rule 13. The
defendant has brought an application for default judgment
against the
third party and the defendant wants this court to declare that the
third party is solely liable to the plaintiff.
The plaintiff
opposes the form of the relief sought.
[2]
The plaintiff, Magdalena Smits sued the defendant, the Member of the
Executive Council for Police, Roads and Transport, Free
State
Province (the MEC) for R612 000 being damages she suffered as a
result of the death of her husband (the deceased) who
died when he
was involved in a motor collision on 29 April 2009 on the
Bothaville/Viljoenskroon road. Plaintiff alleged that
the
collision was caused by a hole which was made on the driving surface
of the road by employees of the MEC.
[3]
In the plea the defendant (MEC) alleged that the repair work was
carried out by an independent contractor, Phahamang Construction
CC
(Phahamang) in terms of its contract with defendant. Defendant also
pleaded that the collision was caused by the sole negligence
of the
driver of the vehicle with which the deceased collided, being Tefo
Ephraim Gopane (Gopane).
[4]
The defendant served two third party notices. One on Phahamang,
citing it as the first third party, and the other on Gopane,
citing
him as the second third party. Gopane filed no papers.
In
the third party notice against Gopane defendant alleges:
“
7.
In the premises, the Defendant is entitled to an order declaring
that:
7.1 The Third
Party’s negligent driving is the sole cause of the collision
and therefore the Third Party is liable to the
plaintiff.
7.2 Alternatively
the Third Party’s negligent driving contributed to the
collision.”
The
relief sought by defendant against Gopane in the third party notice
was the following:
“
WHEREFORE
the Defendant claims against the Third Party:
An order that the
Third Party is liable to the Plaintiff; alternatively that the amount
of damages to be awarded to the Plaintiff
as against the Defendant be
reduced in terms of section 1 of Act 34 of 1956 to such an extent as
may seem just and equitable, having
regard to the Third Party’s
degree of negligence.”
[5]
The matter was on the trial roll for hearing on 19, 20 and 22
November 2013. On 19 November 2013 Gopane was at court and
by
agreement between the parties the matter was postponed
sine die
and Gopane was ordered to place himself on record within 20 days.
Gopane filed no papers, and on 29 January 2014 defendant
gave
notice to the registrar and the plaintiff that it intended to apply
for judgment by default against the third party, Gopane,
in the
following terms:
“
1.
Declaring that the Third Party’s negligent driving is the sole
cause of the collision [and therefore the Third Party is
liable to
the Plaintiff].
2. No order as to
costs.”
[6]
At the hearing before me Mr Moerane, for the defendant, said he was
not seeking the relief in the square brackets in prayer
1.
[7]
The plaintiff lodged a notice to oppose the relief sought by the
defendant, and filed an answering affidavit wherein she stated
that
she opposes the form of the orders sought by the defendant. The
plaintiff’s attitude is set out as follows in
her affidavit
opposing the relief sought by the defendant:
“
9.1
the Second Third Party is not a co-defendant;
9.2
the
lis
is
only between the party issuing the notice (the Defendant) and the
Third Party. There is no
lis
between the Third Party and the Plaintiff;
9.3
Rule 13 is complimentary to, but does not supersede the provisions
laid down in Section 2 of the Apportionment of Damages Act
34 of
1956. The difference being
inter
alia
in the form of relief which can be
sought. Under section 2(6)(a) of the said Act, a wrongdoer sued
in an action can seek
relief from a wrongdoer not so sued in the form
of a judgment for the payment of an amount of money determined by
Court.
Under the rule all that can be sought by the Defendant
against the said Third Party is an apportionment of fault in the form
of
a declaratory order.
9.4
The Defendant
vis-à-vis
the Third Party is therefore entitled to a contribution or an
indemnification.
9.5
Accordingly, it is respectfully submitted that the Defendant can only
seek an order against the Second Third Party that in the
event of
Plaintiff succeeding against Defendant, the Third Party will
indemnify the Defendant in such amount as Defendant is ordered
to pay
(together with costs), alternatively an order declaring the degree
and/or apportionment of fault
vis-à-vis
the Defendant and the Second Third Party.
10.
The Defendant, however, does not seek such an order. The order
that is seeks, is a final declaratory order that the Third
Party’s
negligent driving is the sole cause of collision and that the Third
Party is liable to the Plaintiff.
11.
I respectfully submit that the Plaintiff cannot allow the Defendant
to obtain such an order. Should such an order be granted,
a
final order would already have been granted declaring that the Third
Party is liable to the Plaintiff. Such could have
the effect
that when Plaintiff wishes to pursue its action against the
Defendant, the Defendant might have the view that there
is already a
declaratory order declaring the Third Party liable to the Plaintiff.
In any event, even if Plaintiff should
proceed with the matter
against Defendant, same might have the effect that there might be two
conflicting orders in the same Court
wherein the Court might declare
that the Defendant is liable to Plaintiff whilst there is another
order declaring that the Third
Party is liable to the Plaintiff.
12. I accordingly
respectfully submit that Defendant is not entitled to the order as
prayed for and that the granting thereof might
prejudice the
Plaintiff in its action as aforesaid.”
[8]
Mr Moerane commenced his argument by saying this is an application
for default judgment under Rule 31(2)(a) which he quoted:
“
Whenever
in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or liquidated demand and
a defendant is
in default of delivery of notice of intention to defend or of a plea,
the plaintiff may set the action down as provided
in subrule (4) for
default judgment and the court may, after hearing evidence, grant
judgment against the defendant or make such
order as to it seems
meet.”
[9]
Rule 13(1) provides:
“
13(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.”
[10]
In
Eimco (SA) (Pty) Ltd v P
Mattioda’s Construction Co (SA) (Pty) Ltd
1967 (1) SA 326
(N) Caney J dealt with an exception taken to a rule
13 notice. The learned judge analysed the origin and meaning of
rule
13 and referred to the English rule on which Rule 13 was based.
Rule 13(1)(a) relates to a claim to a contribution or an
indemnity. The finding in the judgment is based on paragraph
(a) of Rule 13(1), and the exception was upheld. But Mr
Moerane
disavows reliance on Rule 13(1)(a); he bases defendant’s case
on Rule 13(1)(b).
[11]
In
Shield Insurance Co Ltd v
Zervoudakis
1967 (4) SA 735
(E) an
exception was taken to a third party notice. In the third party
notice the defendant said that, in the event of the
court finding
that the plaintiff suffered injuries as a result of the negligence of
the defendant, then the defendant says that
the third party is a
joint wrongdoer for purposes of section 2 of the Apportionment of
Damages Act 34 of 1956. Accordingly
the defendant claimed a
contribution from the third party. Prescription of plaintiff’s
claim against the third party
was raised. The exception was
dismissed. The court held that the third party is not a
defendant
vis-à-vis
the plaintiff (739C-D)
[12]
Mr Reinders relies on the decision in
Hart and Another v Santam
Insurance Co Ltd
1975 (4) SA 275
(ECD) where the court held
that under Rule 13 all that can be sought by one alleged wrongdoer
against another is an apportionment
of fault in the form of a
declaratory order (at 277F-G) with reference to
Shield
Insurance Co Ltd v Zervoudakis
(
supra
) at 739C. In
the
Hart
case the defendant sought an order that the
third party be ordered to pay to the defendant a contribution,
meaning judgment in
its favour in a specified sum of money (277H).
Smalberger AJ (as he then was) held that the defendant is only
entitled to
judgment if it proceeds in terms of the Apportionment of
Damages Act 34 of 1956 and alleges and proves the necessary
prerequisites
for such judgment. He held that the defendant
misconceived its remedy against the third party and upheld the
exception of
the third party to defendant’s third party notice
which contained the prayer:
“
That
the third party be ordered to pay to the defendant a contribution, in
a proportion to be determined by the above Honourable
Court, towards
any damages …”
[13]
Mr Moerane stresses that defendant’s claim is based on Rule
13(1)(b), not (a). In terms of (b) the third party is joined
because
the issue between the plaintiff and the defendant in the action are
substantially the same as the issue between the defendant
and the
third party. He says there is no
lis
between the
plaintiff and the third party.
Vis-à-vis
the
third party, defendant is a plaintiff. He says defendant has
made out a case for the relief sought. Mr Moerane
relies on
IFP
Nominees (Pty) Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd, Third
Party)
2002 (5) SA 101
(W), where the third party was ordered
to pay a sum of money to the defendant.
CONCLUSIONS
[14]
Under Rule 13(1)(a) where the third party is alleged to be a joint
wrongdoer, no judgment sounding in money may be sought against
such
third party (
IPF Nominees
case 116C-D). In the
IPF
Nominees
case defendant’s
claim against the third party was not based on allegations that the
defendant and the third party are joint
wrongdoers against the
plaintiff. There were common issues in the claims of the
plaintiff against the defendant and the claim
of the defendant
against the third party (116G-H).
[15]
In the present case the defendant does not go as far as asking the
court to order the third party to pay a contribution, but
Mr Moerane
does seek an order that the third party is solely to blame, meaning
that the defendant is not to blame at all. Mr
Moerane confirmed
in argument that if the court grants an order as sought in the
present application, namely that the third party
is solely to blame,
in the main trial the defendant will raise that order as a type of
res judicata
to avoid liability. The defendant is seeking an order that it
is not liable.
[16]
It is undesirable to deal with cases on a piecemeal basis. The
third party, for reasons of his own, is not before court.
The
merits of plaintiff’s claim have not been addressed at all.
This matter proceeded on a default basis against
the third
party. Defendant is seeking an order against the third party by
default. It is undesirable to make a finding
as defendant seeks
relating to exclusive liability on a default basis without having
regard to any evidence.
[17]
IFP Nominees (Pty) Ltd v Nedcor Bank
Ltd (Basfour 130 (Pty) Ltd, Third Party)
(
supra
)
concerned a cheque.
Ex facie
the cheque the payee was “Basfour 130 T/A IPF Nominees (Pty)
Ltd”. In the
IPF Nominees
case there was a trial, and all three parties, the plaintiff,
defendant and third party, were represented by counsel. All
the
issues were ventilated. All the parties were before the court.
In those circumstances Claasen J deemed it appropriate
to order
the defendant to pay the plaintiff R1 109 351,84 (the amount
written on the cheque), and at the same time to order
the third party
to pay that same amount to the defendant. The third party
indemnified the defendant.
[18]
There is no
lis
between the plaintiff and the third party. No
order can be made against the third party in favour of the plaintiff
at the
behest of the defendant in these proceedings. All that
the plaintiff is possibly entitled to is an order as suggested in Mr
Reinders’s heads of argument namely that in the event of the
plaintiff succeeding against the defendant, the third party
will
indemnify the defendant. This is what happened in the
IPF
Nominees
case. The court found that the party who was
liable, was the third party. Yet the court did not give
judgment for the
plaintiff against the third party. The court
gave judgment for the plaintiff against the defendant, and judgment
for the
defendant against the third party, thereby indemnifying the
defendant. That is not what the defendant is seeking here. The
defendant wants the court at this stage, by virtue of the
non-appearance and non-opposition of the third party, to direct that
the third party is liable to the plaintiff. That cannot be
done. It is undesirable to limit the trial court at this
stage,
when no evidence has been heard. The relief sought against the
third party should be assessed
pari passu
with the plaintiff’s
claim against the defendant. The judgment against the third
party and that in respect of the defendant
covers the same incident.
The interests of justice demand that those two finding be made
together (see
IPF Nominees
case at 118J – 119A).
It may well be that the third party does not attend the trial.
Then the trial court should
be free to make an order which is
just and equitable in the circumstances as they appear at the end of
the trial. The defendant
is not entitled to any relief at this
stage.
[19]
As to costs, the plaintiff was entitled to come to court to protect
its interests which it did successfully. Points raised
by the
plaintiff in her affidavit and during argument assisted the court in
coming to a conclusion. The plaintiff is entitled
to the costs
of this application.
ORDER
1.
The application is dismissed.
2.
The defendant is ordered to pay the plaintiff’s costs of this
application.
_____________
A. KRUGER, J
On
behalf of plaintiff/respondent: Adv S.J. Reinders
Instructed
by:
Rosendorff
Reitz Barry
BLOEMFONTEIN
On
behalf of defendant/applicant: Adv M.T.K. Moerane SC
With
B.S. Mene
Instructed
by:
State
Attorney
BLOEMFONTEIN