Rodrigues and Others v Alves and Others

• Jurisdiction: South Africa
• Judge: Wessels JA, Rabie JA, Hofmeyr JA, Kotzé JA and Viljoen AJA
• Judgment Date: 14 September 1978
• Citation: 1978 (4) SA 834 (A)
• Hearing Date: 25 August 1978
• Court: Appellate Division

Viljoen AJA:

The action in the Court a quo was between two partnerships. On 31 July 1975 the second, third and fourth appellants (second, third and fourth defendants a quo) were members of one partnership and the respondents (plaintiffs a quo) were members of the other partnership. For D the sake of convenience I shall hereinafter refer to the person cited as the first appellant as Rodrigues, to the other appellants as the defendants and to the respondents as the plaintiffs.

In the Court a quo the plaintiffs instituted an action against Rodriques and the defendants for the payment of compensation for damage caused by a E veld fire which occurred on 31 July 1975 which damaged a Lister engine which drove a water pump, in consequence of which damage the pump was rendered unable to supply water for the overhead irrigation system employed by the plaintiffs to water their carrot and beetroot crops. The learned Judge a quo held that Rodrigues started the fire on the property F occupied by the defendants by setting the grass alight and that he negligently allowed the fire to spread to the property occupied by the plaintiffs. He further held that Rodrigues was not on the relevant date a partner of the three defendants but that he was their de facto servant. The learned Judge further held that the plaintiffs were contributorily negligent in not clearing a fire break to prevent veld fires from damaging G the Lister engine and apportioned the negligence as to 10 per cent to the plaintiffs and 90 per cent to the defendant partnership. The Lister engine which was damaged belonged to the lessor of the properties concerned, one De Souza, who ceded his claim in respect of the damage to the engine to H the plaintiffs. The learned Judge a quo found that the damages in respect of the damage to the engine amounted to R3 940,69 and the damages in respect of the damage to the plaintiffs' crops to R3 300 from which, in view of the contributory negligence, he deducted 10 per cent. He accordingly made the following order:

"1.

I make no order against the first defendant in respect of the claims and costs;

2.

I grant judgment in favour of the plaintiffs against the second, third and fourth defendants jointly and severally, the one paying the others to be absolved, in the sum of R6 910,69 (being the sums of R3 940,69 and R2 970);

Viljoen AJA

3.

The second, third and fourth defendants are ordered jointly and severally, the one paying the others to be absolved, to pay the plaintiffs' costs of suit."

Against this order the appellants now appeal.

A In the Court a quo there was, as can be gathered from the summary above of the learned Judge's findings, initially a dispute as to whether Rodrigues was a partner of the other defendants. A further issue was whether there were other people involved as further partners. The latter issue was resolved at the commencement of the proceedings in the Court a quo, as B appears from the following excerpt from the judgment of the learned Judge:

"Although the amended plea states... that there were further partners, counsel representing the parties have informed me that the parties have agreed that, for the purposes of this case, there are only two possibilities which the Court must consider a partnership of all four defendants or a partnership of three defendants, being the second, third C and fourth defendants. In other words, all other possibilities have been excluded by agreement."

On the issue as to whether Rodrigues was a partner, the learned Judge a quo referred to the joinder of Rodrigues as a partner in the following terms:

"The plaintiffs, in an amended summons, allege that, on 31 July 1975, all D four defendants, alternatively the second, third and fourth defendants, were the partners. Only the second, third and fourth defendants entered appearance to defend and they alone contest the plaintiffs' action. Although summons was served (probably defectively,...) on the first defendant, Rodrigues, he is in default and, according to the evidence, he now lives in Madeira."

E The finding that he was not a partner on the relevant date appears from the following passage:

"The first issue to be decided is the identity of the partners of the defendant partnership on 31 July 1975. The defendant, Rodrigues, was admittedly a partner with the other three defendants prior to that date; he is the father-in-law of the second defendant. From the evidence of the second and third defendants it appears that Rodrigues retired from the partnership during 1974 and this evidence is supported by the accountant, F one Vieyra. Counsel for the plaintiffs, in argument, stated that he could not contend that he had proved a partnership of all four defendants and conceded that the other alternative which was agreed upon between the parties (ie the partnership existing between the second, third and fourth defendants) was the partnership which existed on the relevant date and against whom the plaintiffs have a claim. I find on the evidence that this argument is correct and that the second, third and fourth defendants were G the members of the partnership on the relevant date."

Counsel for the appellants concede that Rodrigues has been wrongly cited as an appellant in this appeal. Rodrigues will, therefore, not be treated as such. His only involvement in these proceedings relates to his act of starting the veld fire which caused damage to a certain Lister engine and water pump and which is said to have rendered the other appellants H vicariously liable for payment of damages.

The parties involved in this litigation are all gentlemen of Portuguese nationality. It is common cause that on the relevant date, 31 July 1975, both the plaintiffs and the defendants, as partners in two respective partnerships, were farming two adjoining properties, growing vegetables for sale on the public market and in various vegetable shops in suburbs of Johannesburg in which the partnerships respectively or certain of the individual partners had interests. These vegetable shops were used as

Viljoen AJA

retail outlets not only for selling the vegetables produced on the farm but also vegetables and fruit bought on the market.

A The property where these farming operations were conducted was the farm Misgund which belonged to one Joao Fernandes de Souza (the owner of the pump and engine previously referred to). The three plaintiffs were joint lessees of portion 26 and the remaining extent of portion 28 of this farm. Certain other portions adjoining the portions hired by the plaintiffs were on the relevant date leased by De Souza to Rodrigues and the...