Jordaan v Bloemfontein Transitional Local Authority and Another

• Jurisdiction: South Africa
• Judge: Farlam JA, Mthiyane JA and Motata AJA
• Judgment Date: 28 November 2003
• Citation: 2004 (3) SA 371 (SCA)
• Docket Number: 248/02
• Hearing Date: 06 November 2003
• Counsel: P H T Colditz (attorney) for the appellant. S J Reinders for the first respondent.
• Court: Supreme Court of Appeal

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 D 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 E 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 F 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 G 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 H 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 I 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 J

Farlam JA

in the action pursuant to the provisions of s 42(1) of the Magistrates' Courts Act A 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 B 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), C the magistrate held that he interpreted the actions of the defendants as amounting, for all practical purposes, to their having 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 D 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. E

[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. F

[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. G

[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 s 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: H

'The Court of appeal may -

. . .

Farlam JA

take any other course which may lead to the just, speedy and as much as may be inexpensive settlement of the case; . . .'. A

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 B 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. C

[9] The...