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[2009] ZAGPPHC 133
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Van Zyl v Goedehoop Laerskool and Another (15426/2006) [2009] ZAGPPHC 133 (2 October 2009)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
CASE NO: 15426/2006
In the matter between:
RENIER CHRISTIAAN VAN ZYL
…………………………………….
PLAINTIFF
and
GOEDEHOOP
LAERSKOOL
………………………………
………………………….
1st DEFENDANT
MEC DEPARTMENT OF EDUCATION, MPUMALANGA
……………………….
2nd DEFENDANT
JUDGMENT
SHONGWE DJP
1. This matter concerns the question of costs The plaintiff sued
the first and second defendants for damages as a result of injuries
sustained by the plaintiff. The parties have now agreed that
absolution from the instance should be ordered in favour of the first
defendant , however , the matter will proceed against the second
defendant The nub of what is before me is to determine who should
pay
the first defendant's costs. Is it the plaintiff or the second
defendant or the plaintiff and the second defendant jointly
and
severally? the one paying and the other to be absolved.
2. When the action was commenced with in 2006, the plaintiff sued the
first defendant only. The cause of action being that the
plaintiff
sustained injuries as a result of an activity which was not an
educational activity as envisaged in section 60 (1) of
the South
African School's Act 84 of 1996 ("The Act"). At a later
stage the plaintiff amended the particulars of claim
wherein the
second defendant was joined The plaintiff pleaded in the alternative
that in the event it is found that the incident
which led to the
plaintiff sustaining injuries did in deed take place as a result of
an activity which was an educational activity,
the second defendant
is liable for the damages in terms of the provisions of section 60
(3) of the Act.
3. The second defendant denied liability on the basis that the
activity that led to the plaintiff's injuries was not an educational
activity as envisaged in section 60 (1) of the Act; alternatively
that if it is found that the activity was an educational activity
as
envisaged in section 60 (1) and that the second defendant was liable
to the plaintiff, the second defendant pleaded that the
plaintiff was
already ten years old and therefore culpae capax , she contributed to
her injuries by continuing to play on the movable
steal pavilion
which was being moved notwithstanding warnings by a certain Mr
Bulford and others to desist from doing so.
4. After the pre-trial was held and questions and answers were
exchanged between the parties, the second defendant conceded that
the
incident that led to the plaintiff's injury was indeed an educational
activity as envisaged in section 60 (1) of the Act. It
became clear
that the first defendant should be absolved. To me this concession
does not necessarily mean that the second defendant
admits liability
The plaintiff still has to prove liability of the second defendant.
All it says is that in law the defendant is
the party to be cited and
prosecuted.
5. Section 60 (1) provides that: " The state is liable for any
damages or loss caused as a result of any act or omission in
connection with any educational activity conducted by a public school
and for which such public school would have been liable but
for the
provision of this section "
There can be no doubt that the plaintiff sued the wrong party in the
first summons. Notwithstanding the fact that the first defendant
brought it to the attention of the plaintiff that section 60 (1) is
against the plaintiff's move , the plaintiff persisted , in
the
amended particulars of claim , to allege that the first defendant is
liable and also allege that the incident occurred as a
result of a
non educational activity and that consequently the second defendant
is not liable. It is only in the alternative that
the plaintiff
points at the second defendant. That is if it is found that the first
defendant is not liable then and only then
is the second defendant
liable.
6. In my view, up to the stage when the plaintiff accepted that the
first defendant should be absolved, the plaintiff must be held
liable
for the costs of the first defendant even if the second defendant
resisted liability for all along until at a later stage.
The lis was
between the plaintiff and both defendants but there was no lis
between the first and second defendant. At no stage
did the second
defendant make common cause with the plaintiff to pin liability on
the first defendant, therefore the second defendant
cannot be
associated with the success or otherwise of the first defendant. It
is significant to note that it was not the second
defendant's case
that it was not liable and that the first defendant was infact liable
(See Rabinowitz and another NNO vs Ned-Equality
Insurance 1980 (3) SA
(WLD) (See Body Corporation of Dumberton Oakes vs Faiga
[1998] ZASCA 101
;
1999 (1) SA
975
(SCA) of 981 E - Fialso Parity Insurance Co Ltd vs Van Den Bergh
1966 (4) SA 463
(A) at 483 B-E)
7. Rule 10(4) reads as follows: "In any action in which any
causes of action or parties have been joined in accordance with
this
rule, the court at the conclusion of the trial shall give such
judgment in favour of such of the parties as shall be entitled
to
relief or grant absolution from the instance , and shall make such
order as to costs as shall to it seem to be just , provided
that
without limiting the discretion of the court in any way -
(a) any court may order that any plaintiff who. is unsuccessful shall
be liable to any other party, whether plaintiff or defendant,
for any
costs occasioned by his joining in the action as plaintiff;
(b) if the judgment is given in favour of any defendant or if any
defendant is absolved from the instance, the court may order
:
(i) the plaintiff to pay such defendants costs, or
(ii) the unsuccessful defendants to pay the costs to the successful
defendant jointly and severally, the one paying the other to
be
absolved , and that if one of the unsuccessful defendants pays more
than his pro rata share of the costs of the successful defendant,
he
shall be entitled to recover from the other unsuccessful defendants
pro rata share of such excess, and the court may further
order that ,
if the successful defendant in unable to recover the whole or any
part of his costs from the unsuccessful defendants
, he shall be
entitled to recover from the plaintiff such part of his costs as he
cannot recover from the unsuccessful defendants
".
Subrule (b) (i) above is clear and unambiguous that the court may
order the plaintiff to pay the absolved defendant's costs or
the
unsuccessful defendant to pay the costs of the successful defendant
jointly and severally The question arises immediately whether
or not
the second defendant could be referred to as the unsuccessful party .
I do not think that at this stage, the second defendant
can be
referred to as the unsuccessful party . I believe that the
proceedings should be allowed to come to finality , only then
,
depending on the outcome , can there be a successful and unsuccessful
party .
8. It is trite that where a question of costs arises, the court has
a discretion to exercise , which discretion has to be exercised
judicially. I find that there is no lis between the first and second
defendant, however ,there is a lis between the plaintiff and
the
second defendant and that there was a lis between the plaintiff and
the first defendant which has been resolved by absolution.
The first
defendant is the successful party and therefore the plaintiff must be
ordered to pay the costs of the first defendant.
The circumstances of
this case do not justify that it is reasonable for the second
defendant to bear the costs of the first defendant
.(See Orphanides
and Others vs Straton and Others 1953 (1) SA (SR) 152)
9. In the result the following order is made
(a) Second defendant conceded that the damages caused to the
plaintiff was as a result of an act or mission in connection with
an
educational activity , wherefore plaintiff's claim lies against the
second defendant.
(b) Absolution from the instance is ordered in favour of the first
defendant;
(c) Costs of the first defendant will be paid by the plaintiff
(d) Costs of the plaintiff and second defendant be reserved
(e) The remainder of the trial is postponed sine die
J B SHONGWE
DEPUTY JUDGE PRESIDENT
NORTH GAUTENG HIGH COURT
DATE OF HEARING : 28 /08/2009
DATE OF JUDGMENT: 2 /10/2009
PLAINTIFF'S ATTORNEYS : STEYN STRYDOM & VILJOEN INC
C/O B C BEHRENS
PLAINTIFF'S ADVOCATE :
1st DEFENDANT'S ATT : SAVAGE JOOSTE & ADAMS 1st DEFENDANT'S ADV
2nd DEFENDANT'S ATT : THE STATE ATTORNEY 2ND DEFENDANT'S ADV