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[2000] ZASCA 166
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Nedcor Bank Limited v Lloyd-Gray Lithographers (Pty) Limited (257/98) [2000] ZASCA 166; [2000] 4 All SA 393 (A); 2000 (4) SA 915 (SCA) (8 September 2000)
REPORTABLE
CASE NO 257/98
IN
THE SUPREME COURT
OF
APPEAL OF SOUTH AFRICA
In
the matter between:
NEDCOR
BANK LTD t/a NEDBANK APPELLANT
v
LLOYD-GRAY
LITHOGRAPHERS (PTY) LTD RESPONDENT
CORAM : SMALBERGER, VIVIER,
HARMS, SCOTT
et
ZULMAN
JJA
HEARD : 24
AUGUST 2000
DELIVERED: 8
SEPTEMBER 2000
Delictual
action for damages against collecting bank - computation of damages -
bank and thief for whom amount of cheque collected
concurrent
wrongdoers at common law - full amount of loss recoverable from bank.
J
U D G M E N T
SCOTT
JA
/.....
SCOTT JA
:
[1] The respondent instituted
action for damages in the Witwatersrand Local Division against the
appellant (“Nedbank”).
In its particulars of claim the
respondent alleged that it was the true owner of four crossed and
restrictively marked cheques
drawn in its favour for which payment
had been collected by Nedbank for the benefit of the latter’s
client, one S, notwithstanding
the absence of any endorsement. The
action was founded in delict and based on Nedbank’s alleged
wrongful and negligent
conduct in collecting payment for the account
of S in such circumstances. (
Cf
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd
1992(1) SA 783 (A).) The parties reached agreement on certain facts
which were recorded in a written statement. The question
which in
terms of Rule 33(4) the Court
a
quo
was called
upon to decide was in essence whether the respondent’s claim
against Nedbank fell to be reduced by the amount
which the
respondent could recover from S. Boruchowitz J held that the
existence of the claim against S did not preclude the
respondent
from proceeding against Nedbank for the full amount. The judgment is
reported
sub nom
Lloyd-Gray
Lithographers (Pty) Ltd v Nedcor Bank Ltd t/a Nedbank
1998(2) SA 667 (W). The present appeal is with the leave of the
Court
a quo.
[2]
Although
the statement of agreed facts is quoted in the judgment of the Court
a quo
,
it is convenient to quote it again.
“1. 1.1 A company, Ogilvy-Mather Direct (Pty)
Limited, and the First National Bank of SA Limited, were indebted to
pay
certain amounts to the [respondent].
1.2 In settlement of these debts they drew cheques
which were delivered to the [respondent].
1.3 The particulars of these cheques are as follows:
1.3.1 They were all made out in favour of the
[respondent] as payee.
1.3.2 They were all crossed and marked
restrictively.
1.3.3 They were not endorsed.
1.4 The [respondent] thus became the true owner of
the cheques and no-one but the [respondent] had the right to claim
payment
of the cheques.
1.5 One S obtained possession of the cheques and
unlawfully caused them to be deposited into his account with
[Nedbank].
1.6 [Nedbank], as collecting bank, owed the
[respondent], as true owner of the cheques, a duty to take care that
it, [Nedbank],
did not collect payment of the cheques for the
benefit of anyone but the [respondent].
1.7 [Nedbank], however, collected payment thereof for
S in circumstances which render [Nedbank] liable in
delict to the [respondent].
1.8 The banks on which they were drawn honoured the
cheques in circumstances which do not render these banks liable [to]
the
[respondent] and consequently the cheques and the underlying
debts which they represented, were discharged.
1.9 The aforesaid depositing for collection of the
cheques by or
on behalf of S and the unlawful appropriation by him
of the
proceeds thereof were delicts committed by S.
1.10 The [respondent] thus has claims in delict
against both
S and [Nedbank].
1.11 Both S and [Nedbank] have the financial means to
satisfy the claims aforesaid.
1.12 The
prima
facie
quantum of
the [respondent’s] loss suffered as a result of the
aforementioned delicts, is the aggregate total of the face
value of
the cheques.
1.13 The [respondent] has instituted action against
[Nedbank], S is not a party to these proceedings.”
[3] The questions of law were formulated by the
parties as follows:
“2.1 Is the [respondent’s] claim against
S, at this point, a relevant asset in the [respondent’s]
estate?
2.2 If so, should the [respondent’s] claim
against [Nedbank] be reduced by the value of its claim against S?
2.3 On the premise that the value of the
[respondent’s] claim against S is equal to the amount of the
[respondent’s]
claim against
[Nedbank] and, if it be held that
(a) The [respondent’s] claim against S is an
asset in the
[respondent’s] estate; and
(b) the [respondent’s] claim against [Nedbank]
should be reduced by the value of its claim against S.
does the [respondent’s] claim against
[Nedbank] fall to be
dismissed?
2.4 What should the appropriate costs order be in
respect of the adjudication of the aforesaid questions of law?”
[4] In answer to these questions
the Court
a quo
ruled:
“(1) The [respondent’s] claim against S is
not, at this point, a relevant asset in the [respondent’s]
estate.
(2) The [respondent’s] claim against [Nedbank]
does not fall to be reduced by the value of the claim against S.
(3) The [respondent’s] claim against [Nedbank]
does not fall to be dismissed.
(4) The costs in respect of the adjudication of the
aforesaid questions of law should be paid by [Nedbank].”
[5] Before dealing with counsels’
submissions it is necessary to make certain preliminary observations
regarding the agreed
facts. First, although S is not expressly
stated to have been guilty of intentional wrongdoing,
viz
to have stolen the cheques, this was accepted by both counsel in the
Court below which decided the matter on that basis. I
shall do the
same. Second, it is accepted that the damage suffered by the
respondent was the loss of its rights against the drawers
of the
cheques. Those rights would be in respect of the cheques themselves
as well as the underlying debts for which they were
given. (See
Volkskas Bank Bpk v
Bonitas Medical Aid Fund
1993(3) SA 779 (A) at 794 C - F.) The
prima
facie
quantum of
the loss so suffered by the respondent is in turn accepted as being
the aggregate of the face value of the cheques.
Third, it is
accepted that the loss was caused by the independent wrongful acts
of S and Nedbank; in other words, the independent
wrongful conduct
of each caused the same indivisible damage. Furthermore, there was
clearly an intact causal chain between
the loss and Nedbank’s
negligence. It is perhaps also worth recording at this stage that
whatever differences may have
existed previously between the
acto
furti
and the
actio legis
Aquiliae
with
regard to what was recoverable, by the time De Groot wrote his
Inleidinge
there
was no difference of any consequence between them; they were both
actions for damages. (
Smit
v Saipem
1974(4)
SA 918 (A) at 929 H.)
[6] The argument advanced on behalf
of Nedbank was in essence the following. In determining the loss
suffered by the respondent
in consequence of Nedbank’s
wrongful conduct, the right of the respondent to recover damages
from S was an asset in the
respondent’s estate. Accordingly,
so it was contended, the respondent’s claim against Nedbank
fell to be reduced
by the value of that right and as it was accepted
that S had the financial means to satisfy the claim in full, Nedbank
was not
indebted to the respondent. This seemingly ingenious
argument was based on the judgment of Van Dijkhorst J in
Holscher
v Absa Bank en ‘n Ander
1994(2) SA 667 (T). The facts of that case relevant to the issue of
damages may be stated shortly. The plaintiff was the true
owner of a
cheque which was stolen by the managing director (“H”)
of the plaintiff’s brokers (“Duerka”)
who
deposited it in Duerka’s account with the defendant bank.
Although the cheque was crossed and marked “not transferable”
the defendant bank nonetheless collected the amount from the drawee
bank and credited the account of Duerka which thereafter
went into
liquidation. The defendant bank was held to be liable, but in
determining the plaintiff’s damages the Court
deducted from
the amount claimed, being the face value of the cheque, the sum
which the plaintiff would have received as a dividend
had he proved
a claim against Duerka in liquidation. The Court’s reasoning
in short was the following. (a) When determining
the difference
in the value of the
universitas
of the plaintiff before and after the delict in question, being the
true measure of his damage, any right of action which the
plaintiff
acquired against any other person was an asset in the former’s
estate and had to be taken into account (673 H
- J). (b) While
the onus was on the plaintiff to prove its damage, proof of the
theft and the amount stolen would constitute
prima
facie
proof of the
amount by which the plaintiff’s estate had been reduced.
Accordingly, it was up to the defendant to put
facts before the
Court to rebut this inference (675 F - H). (c) No evidence was
adduced to indicate what had become of H
or whether the plaintiff’s
right of action against him had any value (675H). (d) There was,
however, evidence as to
the value of the plaintiff’s right to
recover from Duerka and this had to be deducted when determining the
extent of the
plaintiff’s loss (675 I - J).
[7]
Holscher
’s
case has been the subject of trenchant criticism. (See for
eg
Dendy
1994
Annual Survey of South African Law
264 - 266; Van der Linde
“The
Liability of a Collecting Bank for Negligence”
1995 Juta’s Business Law 10.) Assuming the bank and the
thief to have been jointly and severally liable, the plaintiff
would have been entitled to sue either wrongdoer for the full
amount. On this assumption the obvious flaw in the learned judge’s
reasoning would have been that if for the purpose of determining the
plaintiff’s loss his right of recovery against the
other
wrongdoer had to be taken into account, it would follow that if both
had financial means, each when sued could point to
the plaintiff’s
right to recover from the other so that the plaintiff could recover
from neither. Quite clearly, once it
is accepted that the full
amount is recoverable from any one wrongdoer the plaintiff’s
right to sue any other wrongdoer
must be disregarded when
determining his loss. Although not entirely clear from the
judgment, Van Dijkhorst
J appears to have
proceeded on the basis that the bank and the thief were not liable
in solidum
by reason of what was said to be a distinction between the
actio
furti
against the
thief and the
actio
legis Aquiliae
against the bank with regard to what was recoverable (at 673 G - H).
As pointed out above, however, there is today no real difference
between them; they are both actions for damages.
[8] Counsel for the appellant
acknowledged that if S and Nedbank were “joint wrongdoers”
within the meaning of the
Apportionment of Damages Act 34 of 1956
(“the Act”) his argument could not be upheld. He
submitted that they were
not “joint wrongdoers” as
defined, as the Act had no application in a situation where damage
was caused by two or
more wrongdoers acting wilfully or by one
wrongdoer’s negligence and the other’s wilfulness. In
support of this contention
he pointed to the use of the word “fault”
in sections 1 and 2 of the Act and strongly criticised decisions
such as
Randbond
Investments (Pty) Ltd v F P S (Northern Region) (Pty) Ltd
1992(2) SA 608 (W) and
Greater Johannesburg Transitional Metropolitan Council v Absa Bank
Ltd t/a Volkskas Bank
1997(2) SA 591 (W) in which respectively a contribution and an
apportionment of damages between wilful wrongdoers causing the
same
damage had been awarded in terms of the Act. Academic writers
commenting on the judgment of the Court
a
quo
are divided on
the issue. Dendy (“
The
Negligent Collection of Cheques: Is Anything Claimable from the
Collecting Banker
?
1998 (61) THRHR 512)
and Neethling (“
Deliktuele
Mededaderskap: Toepaslikheid op Persone wat Opsetlik of Nalatig
Dieselfde Skade Veroorsaak
”
1998 (61) THRHR 518)
support the view that the Act is applicable.
Potgieter (“
Is
‘n Dief van Tjeks en die Nalatige Invorderingsbank Mededaders
ingevolge Die Wet op Verdeling van Skadevergoeding
34
van 1956?”
1998 (61) THRHR 731)
takes the opposite view.
[9] I find it, however, unnecessary to decide
whether the Act is applicable in a case such as the present,
although I must
confess to baulking at the notion of a thief such as
S being entitled to recover a contribution from a collecting bank
for negligently
failing to prevent him from achieving his objective,
which according to some of the views expressed would be the
consequence
of the Act being applicable. Nonetheless, I shall assume
without deciding that the Act is not applicable.
[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
eg
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
7ed
at 107 - 108.) 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 plaintiff’s 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 180 F - H;
Windrum
v Neunborn
1968
(4) SA 286
(T) at 287 H - 288 A.) 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 Kotzé 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 Kotzé’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.
[11] 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
dolus
.
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 - 198) 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
10 ed at
497 - 498;
Hughes
’s
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.
[12]
It
follows that even if the Act is not applicable, Nedbank would be
liable to the respondent
in
solidum
at common
law. The respondent is therefore entitled to recover the full amount
of its loss from Nedbank and for the purpose of
calculating that
loss the respondent’s right of action against S must be
disregarded. It follows, too, that in my
view
Holscher
’s
case in so far as the calculation of damages is concerned was
wrongly decided.
The ruling of the Court
a
quo
was therefore
correct and the appeal is dismissed with costs.
D
G SCOTT
Concur
:
SMALBERGER
JA
VIVIER JA
HARMS JA
ZULMAN JA