Lamont and Another v Rocklands Poultry and Others

• Jurisdiction: South Africa
• Judge: Van der Byl AJ
• Judgment Date: 08 July 2008
• Docket Number: 4109/2005
• Hearing Date: 14 February 2008
• Counsel: JW Eksteen SC for the defendants/applicants. TMG Euijen for the third party.
• Court: South Eastern Cape Local Division

Lamont and Another v Rocklands Poultry and Others
2010 (2) SA 236 (SE) [*]

2010 (2) SA p236

Citation	2010 (2) SA 236 (SE)
Case No	4109/2005
Court	South Eastern Cape Local Division
Judge	Van der Byl AJ
Heard	February 14, 2008
Judgment	July 8, 2008
Counsel	JW Eksteen SC for the defendants/applicants.; TMG Euijen for the third party.

Flynote : Sleutelwoorde G

Practice — Parties — Joinder — Third party — Application for leave to join third party after close of pleadings — Special defences — Third party alleged joint H wrongdoer in action for damages for bodily injuries — Alleged prescription of defendants' claim against third party — Defendants' claim against third party for contribution or indemnification arising on date on which defendants held liable — Claim not having prescribed — Defence dismissed — Leave granted — Uniform Rules of Court, rule 13(3)(b).

I Practice — Parties — Joinder — Third party — Application for leave to join third party after close of pleadings — Special defences — Third party, municipality, alleged joint wrongdoer in action for damages for bodily injuries — Alleged failure to give required notice of intention to institute legal

2010 (2) SA p237

proceedings against State organ — Notice required in respect of legal A proceedings for recovery of 'debt' — Notice requirement not arising since debt in form of possible contribution by third party arising only when defendants held liable — Defence dismissed — Institution of Legal Proceedings against certain Organs of State Act 40 of 2002, s 3(1) read with Uniform Rules of Court, rule 13(3)(b).

Practice — Parties — Joinder — Third party — Application for leave to join third B party after close of pleadings — Special defences — Third party alleged joint wrongdoer in action for damages for bodily injuries — Alleged lack of good cause — Defendants only becoming aware at pre-trial conference that plaintiffs' action against third party having been withdrawn — Third party having no special defence to main action — Good cause shown — Leave C granted — Uniform Rules of Court, rule 13(3)(b).

Headnote : Kopnota

In an action in the High Court for damages for bodily injuries, the defendants sought the court's leave to serve a third party notice on a municipality after close of pleadings. The defendants alleged that employees of the third party, acting within the course and scope of their employment, had been D contributorily negligent in certain respects. The defendants alleged further that they only became aware, at the pre-trial conference held for purposes of the action instituted by the plaintiffs against the defendants, that the action instituted by the plaintiffs against the third party had been withdrawn. The third party resisted the application for leave to serve a third party notice on the ground that it had four special defences, namely: (a) E that, taking into consideration that the incident on which the alleged cause of action in the main action was based occurred on 11 July 2002, the defendants' claim envisaged in the third party notice had become prescribed in terms of s 11(d) of the Prescription Act 68 of 1969, at midnight on 10 July 2005; (b) that the defendants had failed to give notice timeously or at all to the third party as required by the Institution of Legal Proceedings F against certain Organs of State Act 40 of 2002, which was a precondition for the relief which the defendants sought against the third party; (c) that the plaintiffs had indemnified the third party from any action for damages such as was claimed by them against the defendants, which precluded the plaintiffs and hence the defendants from claiming damages from another alleged wrongdoer; (d) that the defendants had failed to show 'good cause' G for their failure to issue the third party notice at least two years earlier, which had caused the third party significant prejudice. The defendants contended that the special defence of prescription could not succeed for two reasons: (i) the relief claimed in the third party notice was not a 'debt' as envisaged in the Prescription Act; and (ii) the provisions of s 11(d) of the Prescription Act were not of application in the present matter since it was, rather, an H issue to be determined solely with reference to s 2(6)(b) of the Apportionment of Damages Act 34 of 1956.

Held, as to (a) and (i), that a defendant's claim against a third party which could, as a matter of logic, only in effect be a claim for a contribution or indemnification, could only arise as from the date on which such defendant was held liable vis-à-vis the plaintiff, which was then, no doubt, a claim I sounding in money and which could then be nothing else than a debt as envisaged in the Prescription Act. (Paragraph [26] at 245C.)

Held, further, that the special plea of prescription could accordingly not succeed. (Paragraph [28] at 245F.)

Held, further, as to (a) and (ii), that s 2 of the Apportionment of Damages Act envisaged, inter alia, the situation where the alleged joint wrongdoer had J

2010 (2) SA p238

A not been sued and no notice had been given to him or her in terms of s 2(2) of the Act, judgment had been given against a defendant, the defendant had paid the judgment debt in full, and the defendant wished to institute proceedings against the joint wrongdoer for a contribution. In that situation the defendant could, under s 2(6) of the Apportionment of Damages Act, institute proceedings within 12 months of the date of final judgment for a B contribution from the joint wrongdoer with the leave of the court granted in terms of s 2(4)(b) of the Act, on good cause shown as to why no notice had been given in terms of s 2(2) of the Act. (Paragraph [14] at 243B - F.)

Held, further, that if the third party were joined in the action by way of a third party notice, the third party would be part and parcel of the proceedings in the action, albeit in a position vis-à-vis the defendants, so that the relevant C situation envisaged by s 2 of the Act and, therefore, the application of the provisions of s 2(6) of the Act, could not arise. It followed that the defendants' reliance on s 2(6)(b) of the Apportionment of Damages Act to defeat the third party's special defence was unfounded. (Paragraphs [23] - [24] at 244J - 245B.)

Held, further, as to (b), that s 3(1) of the Institution of Legal Proceedings against D certain Organs of State Act required notice in respect of legal proceedings for 'the recovery of a debt'. The court had already held that the debt in the form of a possible contribution would only arise after the defendants had been held liable for the damages claimed by the plaintiffs. It followed that the provisions of s 3 of the Institution of Legal Proceedings against certain Organs of State Act could not find any application in the present matter E where the defendants wished to join the third party by way of a third party notice. (Paragraphs [29] and [34] - [35] at 245G - I and 246C - D.)

Held, further, that the second special defence could accordingly not succeed. (Paragraph [37] at 246E/F.)

Held, further, as to (c), that there was insufficient evidence to make any finding F on the tenability of the third special defence. (Paragraph [48] at 247D/E.)

Held, further, as to (d), that it was trite that 'good cause' required a consideration of the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. (Paragraph [49] at 247F.)

Held, further, that, on the facts of the present case, the defendants could not be blamed for not having launched the present application at any time before litis contestatio. (Paragraph [53] at 248A/B.)

G Held, accordingly, that the defendants had to be granted leave to serve a third party notice on the municipality. (Paragraph [56] at 248C - D.)

Cases Considered

Annotations:

Reported cases

Dwyer v Goldseller 1906 TS 126: referred to H

Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A): dictum at 532C applied

Prinsloo v Du Preez NO 1965 (4) SA 300 (W): referred to.

Statutes Considered

Statutes

I The Apportionment of Damages Act 34 of 1956, ss 2, 2(4)(b), 2(6) and 2(6)(b): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-745 and 2-746

The Institution of Legal Proceedings against certain Organs of State Act 40 of 2002, ss 3 and 3(1): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-750

The Prescription Act 68 of 1969, s 11(d): see Juta's Statutes of South Africa 2008/9 vol 1 at 2-873. J

2010 (2) SA p239

Rules Considered

Rules of Court A

Uniform Rules of Court, rule 13(3)(b) : see The Supreme Court Act and the Magistrates' Courts Act and Rules (Juta 2007) at 42.

Case Information

Action for leave to serve a third-party notice after close of pleadings. The facts appear from the judgment of Van der Byl AJ. B

JW Eksteen SC for the defendants/applicants.

TMG Euijen for the third party.

Cur adv vult. C

Postea (July 8).

Judgment

Van der Byl AJ:

Introduction

[1] In this matter the first, second and fourth to sixth defendants (to D whom I will, unless the context indicates otherwise, for the sake of convenience collectively refer as 'the defendants') seek, in effect, in terms of rule 13(3)(b), this court's leave to serve, as envisaged in rule 13(1), a third party notice on the Nelson Mandela Metropolitan Municipality (conveniently referred to as 'the third party'), in an action instituted by E the plaintiffs against the nine defendants, being an action in which the pleadings had already been closed.

[2] In that action the plaintiffs claim damages from the nine defendants on an allegation -

(a)

that they caused a private electrical generating plant to be installed F and operated on an electrical grid within the jurisdiction of the third party;

(b)

that...