Jordaan v Bloemfontein Transitional Local Authority and Another (248/2002) [2003] ZASCA 127; [2004] 1 All SA 496 (SCA) (28 November 2003)

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[2003] ZASCA 127
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Jordaan v Bloemfontein Transitional Local Authority and Another (248/2002) [2003] ZASCA 127; [2004] 1 All SA 496 (SCA); 2004 (3) SA 371 (SCA) (28 November 2003)

REPUBLIC OF
SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case
number:
248/2002
Reportable
In the matter between:
H
JORDAAN
APPELLANT
and
THE
BLOEMFONTEIN TRANSITIONAL
LOCAL
AUTHORITY FIRST RESPONDENT
JOHANNES
JACOBUS RAUTENBACH SECOND RESPONDENT
CORAM
: FARLAM,
MTHIYANE JJA et MOTATA AJA
HEARD
: 6
NOVEMBER 2003
DELIVERED
: 28
NOVEMBER 2003
SUMMARY:
Civil
procedure – whether magistrate’s finding that defendants were
liable for plaintiff’s damages appealable when first defendant
concedes by letter and in counsel’s heads that plaintiff’s
allegations re quantum correct – whether
res ipsa loquitur
maxim
applied – whether inference could be drawn against defendants from
common cause facts where no evidence led.
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
[1]
In this matter the appellant instituted an
action in the magistrate’s court Bloemfontein against the first
respondent, the Bloemfontein
Transitional Local Council, as first
defendant, and one Johannes Jacobus Rautenbach as second defendant,
suing them in the alternative
as well as jointly and severally. He
claimed R73 701-56 as damages, following a collision in which his
motor vehicle was extensively
damaged and which resulted, so he
alleged, from an earlier collision which took place between two motor
vehicles, one which was driven
by an employee of the transitional
local authority while the other was driven by the second defendant.
In what follows I shall refer
to the parties as they were in the
magistrate’s court.
[2]
At the commencement of the trial the parties
agreed that there was to be a separation of issues and that the trial
court was to be
asked first to pronounce upon the question as to
whether either or both of the defendants was or were liable for the
damages suffered
by the plaintiff, whereafter, if there was a finding
on this issue in favour of the plaintiff, the issue as to the quantum
of the
plaintiff’s damages was to be considered, both defendants
having put the plaintiff to the proof of the extent of his damages.
[3]
The trial court was informed by the parties
that the following facts were regarded by the parties as being common
cause: viz
that at the time of the collision the plaintiff’s
vehicle was parked in a demarcated parking place in Voortrekker
Street, Bloemfontein;
that Voortrekker Street at that point is divided into
three lanes, which carry traffic in a westerly direction;
that a collision occurred between the first and second
defendants’ respective vehicles and directly thereafter and as a
result
of that collision one or both of the first and second
defendants’ vehicles collided with the plaintiff’s parked
vehicle;
that the driver of the first defendant’s vehicle had
been driving it in the course and scope of his employment with the
first
defendant with the result that if he was negligent the first
defendant would be vicariously liable therefor; and
that the plaintiff did not know which of the first and
second defendants was liable for the damage occasioned to his
vehicle, the
two defendants having been joined in the action
pursuant to the provisions of
section 42(1)
of the
Magistrate’s
Courts Act 32 of 1944
, as amended.
1
In what follows I shall refer to Act 32 of 1944 as ‘the Act’.
[4]
The plaintiff’s attorney thereafter
requested the court to rule on the question as to who had to commence
leading evidence. After
this point was argued the court ordered that
the duty to begin rested on the defendants in the order in which they
were cited in
the summons. The legal representatives for the first
and second defendant thereupon said that they would not lead evidence
at that
stage but that they were placing it on record that this did
not mean that the defendants were closing their cases. After
reference
was made to the decision in
S v Magoda
1984(4) SA
462(C), the magistrate held that he interpreted the actions of the
defendants as amounting for all practical purposes as
if they had
closed their cases. The plaintiff then closed his case without
leading any evidence.
[5]
In his judgment the magistrate held that
although none of the parties had placed
viva voce
evidence
before the court it was clear from the facts which were common cause
that the
maxim res ipsa loquitur
applied and that there was
accordingly a
prima facie
case against the defendants which
was not answered, with the result that he was obliged to find that
the two defendants were jointly
and severally liable for the damage
suffered by the plaintiff.
[6]
The first defendant appealed against the
magistrate’s judgment to the Orange Free State Provincial Division.
Before the appeal was
heard it conceded the quantum of the
plaintiff’s claim by letter and again in its advocate’s heads of
argument.
[7]
The issues argued before the court
a quo
were: (1) whether the magistrate’s judgment was appealable; and
(2) whether the magistrate was correct in holding, on the basis
of
the
maxim res ipsa loquitur,
in the absence of any evidence
from any of the parties that the first defendant’s employee was
negligent.
[8]
The judgment of the court
a quo
was
delivered by Danzfuss, AJ with whom Hancke J concurred. On the
appealability point Danzfuss AJ referred to section 87(d) of the
Act,
which deals with the powers of the High Court sitting on appeal from
a judgment of a magistrate’s court in a civil matter
and which (as
far as is material) provides:
‘
The court of appeal may –
…
take any other course which may lead to the just,
speedy and as much as may be inexpensive settlement of the case ….’
He pointed out that the courses referred to in the Act
are not limited to courses which ensure the speedy disposal of the
appeal but
include those which may lead to the speedy disposal of the
case.
He referred,
inter alia,
to the decision of the
Natal Provincial Division in
Durban City Council v Kistan
1972(4)
SA 465(N) and said that it had been held in that case that the
abandonment of an order for costs by letter, and not in terms
of the
rules, had brought the
lis
between the parties to an end, so
that an appeal against the cost order could no longer proceed as
there was no longer a dispute between
the parties.
[9]
The court
a quo
held that section
87(d) of the Act empowered the court of appeal to amend the order of
the magistrate on appeal so as to bring it
in line with the present
state of affairs, to wit that there were no longer any disputes
between the plaintiff and the first defendant,
but expressed the view
that it was not necessary for the court to do so and that it could
merely proceed to hear the appeal without
altering the order. The
appealability point was accordingly decided in favour of the first
defendant.
[10]
Turning to the merits, Danzfuss AJ held that
the magistrate had erred in holding that the maxim
res ipsa
loquitur
(the occurrence speaks for itself) applied. He referred
to the decision of this Court in
Madyosi and Another v SA Eagle
Insurance Co Ltd
1990(3) SA 442(A), where Milne JA said that he
had some doubt whether in a case where a bus left the road and
overturned and it was
known that one of the bus’s tyres had burst
the maxim applied. Applying the reasoning in that case to the
present, Danzfuss AJ
pointed out that it is known that one or both of
the first and second defendants’ vehicles collided with the
plaintiff’s vehicle,
where it was stationary in a demarcated
parking area. The cause of this collision is also known: it was an
earlier collision between
the first and second defendants’
vehicles. He said that no evidence was led which indicated that
either of the two drivers involved
in that earlier collision was
negligent with regard to that collision and that the occurrence
itself did not justify such an inference.
[11] Danzfuss AJ acknowledged that the facts relating
to the first collision are within the exclusive knowledge of the
defendants
and that the plaintiff clearly has no personal knowledge
about them, with the result that much less evidence is necessary to
make
out a
prima facie
case, but there must be sufficient
evidence. He referred to the decision of this Court in
Mazibuko v
Santam Insurance Co Ltd and Another
1982(3) SA 125(A), on which
the magistrate had strongly relied in his judgment. In
Mazibuko
’s
case the plaintiff sued two defendants, as was done in this case,
in the alternative and also in the further alternative, (under Rule
10(3) of the Uniform Rules of Court, which are similarly worded to
section 42(1) of the Act) jointly and severally, for damages
sustained
by her as a result of a collision between two vehicles.
Each of them denied liability (as was the case here) and said that
the driver
in respect of whom the other defendant was liable had been
negligent (an averment made here by the second defendant and, in the
alternative
to a general denial, also by the first defendant). At the
end of the plaintiff’s case there was no evidence as to exactly
where
or how the collision took place and the plaintiff had not
established a
prima facie
case that her injuries were
sustained as a result of the first defendant’s driver. She also had
not established that her injuries
were caused by the negligence of
the second defendant’s driver. She had led evidence, however, which
established
prima facie
that either the first defendant’s
driver or the second defendant’s driver or both had been negligent
and that such negligence
had caused her injuries. The trial court
thereupon granted absolution from the instance as against both
defendants.
[12]
An appeal to this Court was allowed. Corbett
JA, with whom Jansen, Kotze, Diemont and Trengove JJA concurred, held
that where there
was evidence upon which a court applying its mind
reasonably could hold that it had been established that either the
first defendant
or the second defendant or both of them were legally
liable (even though it was uncertain as to which of the alternatives
was the
correct one) the court hearing the matter should not grant
absolution. Corbett JA said (at 135 E-G):
‘
In such a case, which is in effect a tripartite suit
between three adversaries, it is, in my opinion, in the interests of
justice
that the case should be decided on the evidence which all the
parties might choose to place before the Court, provided, as I say,
that the plaintiff, when presenting his case, has laid the necessary
foundation of showing,
prima facie,
that one or other or both
of the defendants are legally liable. To hold otherwise would, in
many instances, defeat the object of the
Rule which permits a
plaintiff who is uncertain as to the legal responsibility of two
defendants to sue them both in the alternative
and, in the further
alternative, jointly and severally.’
[13]
Danzfuss AJ distinguished the
Mazibuko
case on the basis that it was concerned with the situation at the
end of the plaintiff’s case, when the test was whether there was
sufficient evidence on which a reasonable man could decide in favour
of the plaintiff, while the test to be applied at the end of
the
defendant’s case was whether a reasonable man should find for the
plaintiff. He found that there was no evidence placed before
the
court on the strength of which a reasonable man should find in favour
of the plaintiff. He said that it was clear that one of
the two
drivers (the first defendant’s driver and the second defendant) or
both of them was or were negligent but the plaintiff
had not
succeeded in showing which one was negligent or that both were
negligent. He stated that it was very possible that only one
of the
two was negligent and it was not clear which one. In the
circumstances the appeal was allowed with costs and the finding of
the magistrate was set aside and replaced by an order of absolution
from the instance.
[14]
Mr Colditz, who appeared before us for the
plaintiff, contended that the court
a quo
had erred in two
respects. It should have found that the magistrate’s finding was
not appealable and alternatively, that the magistrate’s
finding on
the merits should have been confirmed.
[15]
On the appealability point he referred to
the decision of this Court in
Steenkamp v South African
Broadcasting Corporation
2002(1) SA 625 (SCA), in which it was
held that a magistrate’s order on the issue of liability only,
where that issue has been separated
from the issue of quantum in
terms of rule 29(4) of the Magistrates’ Courts Rules, was not
appealable. He submitted that the principle
laid down in that case
still applies in this matter, despite the first defendant’s
concession by letter and in its counsel’s
heads of argument before
the court
a quo,
and that the first defendant should have
waited until the magistrate gave judgment against it before
appealing.
[16]
In my view this contention is correct.
Section 83(b), the provisions of which were considered by this Court
in
Steenkamp v South African Broadcasting Corporation,
supra,
provides that a party to any civil suit or proceeding in a
magistrate’s court may appeal to the provincial or local division
of
the High Court having jurisdiction against ‘any rule or order
made in such suit or proceedings and having the effect of a final
judgment’. The finding made by the magistrate in this case was, on
the authority of the
Steenkamp
decision, not a rule or order
having the effect of a final judgment and the first defendant’s
concession regarding the quantum of
the plaintiff’s claim did not
convert it into such a rule or order. The court
a quo
’s
reliance on the decision in
Durban City Council v Kistan,
supra,
was misplaced. In my view it misread the judgment in that
case because the abandonment of the costs order under consideration
there
was by notice and was held at (469 H) to be one made under
section 83 of the Act. Reference was made (at 469 D-G) to
Scrooby
v Engelbrecht
1940 TPD 100
where it was pointed out that
abandonments can take place under section 83 as well as outside the
section. Where an abandonment of
a judgment takes place outside the
section and the party so abandoning undertakes not to take the
objection of
res judicata
in further proceedings on the same
cause of action it was envisaged that an appeal against the judgment
so abandoned could proceed
but it was said (at 105) that the court in
the exercise of its discretion would probably refuse the appellant
his costs of appeal.
In other words an abandonment of a judgment
‘outside the section’ does not render the judgment non-appealable
as the court
a quo
appears to have thought. I also do not
think that the power conferred on the court of appeal by section
87(d) of the Act ‘to take
any other course which may lead to the
just, speedy and as much as may be inexpensive settlement of the
case’ extends to doing
something to a non-appealable order to make
it appealable. In the circumstances I am of the view that the court
a
quo
’s
decision that the magistrate’s finding in this
case was appealable was incorrect and that it should have made no
order in the case
save for an order that the first defendant should
pay the costs.
[17]
The legal representatives of the parties
requested us, if we were to hold that in favour of the plaintiff on
the appealability point,
to express our views on the merits of the
case in view of the fact that the matter was fully argued. They
pointed out that this Court
expressed its views on the magistrate’s
ruling on liability in
Steenkamp’s
case,
supra.
In my
view this is an appropriate case for this request to be granted. I
accordingly now turn to consider the question as to whether
the
magistrate’s finding was correct.
[18]
Mr
Reinders,
who appeared on behalf
of the first defendant, contended that the court
a quo
correctly
distinguished this Court’s decision in
Mazibuko v Santam
Insurance Co Ltd and Another, supra.
He submitted also that what
was described in the passage from Corbett JA’s judgment which I
have quoted above as the ‘tripartite
suit between three
adversaries’ had at the end of the case to be decided ‘on the
evidence which all the parties might choose
to place before the
Court’. In this case there was, he contended, no evidence placed
before the trial court, pleadings not being
evidence. He submitted
further that, as the court
a quo
had found, section 42(1) of
the Act did not create liability for a defendant which did not
otherwise exist; it merely created a procedure
for the joinder of
several defendants. He also contended that the court
a quo’s
finding that the
res ipsa loquitur
maxim
did not
apply was correct.
[19]
In my opinion the court
a quo
was
correct in holding that the
res ipsa loquitur
maxim
did
not apply. It overlooked, however, the fact that both defendants,
each of whom had exclusive knowledge as to what happened (as
opposed
to the plaintiff who did not know how the two collisions occurred),
had both decided to place no evidence before the trial
court and
were, correctly in my view, regarded as having closed their cases.
The plaintiff had succeeded in showing that one or both
of the
drivers concerned were negligent. It is true that the plaintiff led
no evidence but certain facts, summarized in para [3]
above, were
common cause. The plaintiff presumably had no other evidence to put
before the court but the common cause facts gave
rise, in my view, to
four possible inferences, viz: (a) neither driver was negligent; (b)
the first defendant’s driver was negligent;
(c) the second
defendant was negligent; (d) both drivers were negligent.
[20]
The failure by both defendants to lead
evidence brings into play the
Galante
rule, which was
formulated by this Court in the decision of
Galante v Dickinson
1950(2) SA 460(A) at 465, as follows:
‘
[W]here the defendant was himself the driver of the
vehicle the driving of which the plaintiff alleges was negligent and
caused the
accident, the court is entitled, in the absence of
evidence from the defendant, to select out of two alternative
explanations of
the cause of the accident which are more or less
equally open on the evidence, that one which favours the plaintiff as
opposed to
the defendant.’
In considering which of the possible inferences is to be
preferred in this case it is trite law that the court may ‘by
balancing
probabilities select a conclusion which seems to be the
more natural, or plausible, conclusion from amongst several
conceivable ones,
even though that conclusion be not the only
reasonable one’ (
Govan v Skidmore
1952(1) SA 732 (N) at 734
C-D, approved by this Court in
Ocean Accident and Guarantee
Corporation Ltd v Koch
1963(4) SA 147(A), in which it was pointed
out (at 159 C) that by ‘plausible’ is meant ‘acceptable,
credible, suitable’).
The application of the
Galante
rule in
this case means, in my judgment, that the more natural or plausible
inference was that both drivers were negligent.
[22]
A situation similar to the present was
considered by Denning LJ in
Baker v Market Harborough Industrial
Co-operative Society Ltd
[1953] 1 WLR 1472
(CA). This was a case
where there was a collision in the centre of a straight road at
night. Both drivers were killed. It was held
that, in the absence of
evidence enabling the Court to draw a distinction between the two
drivers, the inference to be drawn was
that both were equally to
blame. At 1476 Denning LJ said:
‘
It is pertinent to ask, what would have been the
position if there had been a passenger in the back of one of the
vehicles who was
injured in the collision? He could have brought an
action against both vehicles. On proof of the collision in the centre
of the road,
the natural inference would be that one or other or both
were to blame. If there was no other evidence given in the case,
because
both drivers were killed, would the court, simply because it
could not say whether it was only one vehicle that was to blame or
both
of them, refuse to give the passenger any compensation? The
practice of the courts is to the contrary. Every day, proof of the
collision
is held to be sufficient to call on the two defendants for
an answer. Never do they both escape liability. One or other is held
to
blame, and sometimes both. If each of the drivers were alive and
neither chose to give evidence, the court would unhesitatingly hold
that both were to blame. They would not escape simply because the
court had nothing by which to draw any distinction between them.’
[23]
In my opinion the magistrate correctly held
on the common cause facts before him, read with the failure of both
defendants to lead
evidence, that both defendants were jointly and
severally liable for the plaintiff’s damages.
[24]
The following order is made:
The appeal succeeds with costs.
The judgment of the court
a quo
is set aside and
replaced by the following:
‘
Geen bevel word ten opsigte van hierdie verrigtinge
gemaak nie behalwe dat die appellant die koste daarvan moet betaal.’
……………
..
IG FARLAM
JUDGE OF APPEAL
CONCURRING
MTHIYANE JA
MOTATA AJA
1
Section 42(1)
of the
Magistrates’ Courts Act 32
of 1944
reads as follows:
‘
Several
defendants may be sued in the alternative or both in the alternative
and jointly in one action, whenever it is alleged by
the plaintiff
that he has suffered damages and that it is uncertain which of the
defendants is in law responsible for such damages:
Provided that on
the application of any of the defendants the court may in its
discretion order that separate trials be held, or
make such other
order as it may deem just and expedient.’