Origin of this investigation
1.1 The inclusion of the investigation in the Commission's programme in 1994 resulted from a recommendation by the erstwhile project committee for the law of delict. The committee was of the opinion that the Apportionment of Damages Act, 34 of 1956 (hereinafter "the Act") should be reviewed in its entirety as the Act causes several problems in practice. The committee found that there is uncertainty about the meaning of fault as defined in the Act and that problems are experienced with regard to the joinder of parties, to name only two aspects. On 29 April 1994 the former Minister of Justice confirmed the inclusion of the investigation in the Commission's programme.
Working methodology
1.2 In order to conduct the investigation in a thorough and systematic manner and to promote community involvement in its work, the Commission invited(1) various role players to bring to its attention any problems experienced with the Act in practice, and to suggest solutions to such problems. Eight submissions were received.(2) The Commission sincerely thanks the various contributors for their submissions, and especially Advocates J J Gauntlett, SC and T J Nel who submitted a most comprehensive submission on behalf of the Parliamentary Committee of the General Council of the Bar of South Africa (hereinafter "the GCB").
This discussion paper takes these submissions into account.
1.3 It must be emphasised that this discussion paper serves only as a basis for discussion and should not be regarded as the Commission's final point of view. It is published for general information and specifically to elicit comment. After the closing date for submissions a final report will be prepared for submission to the Minister of Justice who may then take appropriate action.
Historical overview
1.4 When the Act was promulgated on 1 June 1956, it was heralded(3) as 'the most important piece of law reform that has been carried out in the field of private law since Union.'(4) It is easy to see why as in Roman and Roman-Dutch law contributory negligence on the part of a plaintiff was a complete defence to a claim for damages on the ground of the defendant's negligent conduct.(5) This same 'all or nothing' rule applied in English law. (6) The harsh and inequitable results produced by the application of the doctrine led the English courts to evolve and introduce the so-called 'last opportunity' rule. According to this rule the party who had the last opportunity of avoiding the harmful event by the exercise of reasonable care was held to be solely responsible for the damage. South African law took over the rule from the English law, and although the rule has sometimes been criticized,(7) there is no authoritative case in which it has not been applied.(8) In fact, our courts have gone further than the English courts in their acceptance of the rule, for they have applied it not only in cases involving negligence by the plaintiff, but also in cases involving negligence by the plaintiff, but also in cases involving negligence by a third person.(9)
1.5 The Act is divided into three chapters, headed respectively 'Contributory Negligence', 'Joint or Several Wrongdoers' and 'General'. It contains seven sections and its essential provisions are embodied in sections 1 and 2. Section 1 is a comparative short section, divided into three subsections. Section 2 is a lengthy section, divided into fourteen subsections.
1.6 The purpose of section 1 of the Act is to abolish the common law doctrine of contributory negligence and introduced the principle of apportionment of liability.(10) The last opportunity rule was expressly abolished,(11) and was replaced by the more flexible and equitable principle of apportionment of damages in accordance with the respective degrees of fault of the parties in relation to the damage.(12) The purpose of section 2 is to regulate proceedings against joint wrongdoers and to provide for a right of contribution between joint wrongdoers.(13)
1.7 With its introduction, the Act brought about dramatic chances to our common law relating to contributory negligence. However, for the past forty years the Act has been working fairly well especially if its frequency of use in our courts is considered. The Act has only been amended twice: once in 1971 by the Apportionment of Damages Amendment Act, 58 of 1971(14) and again in 1984 by the Matrimonial Property Act, 88 of 1984.
Making the Act more understandable and accessible
1.8 After observing that the apportionment principle had reached the South African statute book only eleven years after its introduction in England, Holmes J (as he then was), in one of the first cases(15) on the Act, continued:
'No matter,' one thought with Voltaire, 'perfection walks slowly - she requires the hand of time.' And so it is a little disappointing to find that after all the lawgiver, with two and possibly three official languages at its disposal, has not expressed itself in words so simple and clear that he who runs may read.
Unfortunately it seems that this comment, both as to tardiness in coming and obscurity upon arrival, may also apply to the first amendments to the Act.(16)
1.9 In the submission of the GCB it is submitted that the Act would be greatly enhanced by redrafting it in plain and simple language. It was felt that the provisions of sections 2(10) and 7(a) in particular, in certain respects, should be rephrased in clearer terms.
1.10 The Commission supports the call for plain language in legal drafting and will attempt to encompass it in our draft bill.
The need for reform
1.11 From the submissions received and from a review of the literature, it appears that the Act as a whole needs to be revised.
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Footnotes:
1. See July 1994 De Rebus 499.
2. See Annexure A for a list of the contributors.
4. McKerron The Apportionment of Damages Act 1.
5. D 9 2 9 4, 9 2 II pr, 9 2 28 pr-29, 9 2 30 4, 9 2 52 3; Voet Commentaries 9 2 17.
6. Butterfield v Forrester (1809) II East 60; 103 ER 926.
7. See Visser and Potgieter Skadevergoedingsreg 127 for a discussion of the criticism.
8. McKerron The Apportionment of Damages Act 2. See also Moore v Minister of Posts & Telegraphs 1949 1 SA 815 (AD) at 827, per Schreiner, J.A.; Coetzee v Van Rensburg 1954 4 SA 616 (AD).
9. McKerron The Apportionment of Damages Act 2.
12. The provisions of section 1 are modelled on those of section 1 of the English law Reform (Contributory Negligence) Act, 1945. There are, however, noteworthy differences between our Act and the English Act: McKerron The Apportionment of Damages Act 5.
13. The provisions of section 2 are more elaborate than the corresponding provisions of the English Law Reform (Married Women and Tortfeasors) Act, 1935. In addition, there are important differences between these two Acts: McKerron The Apportionment of Damages Act 9.
14. For a discussion of events leading to the 1971-Amendments, see Buchanan Liability in Motor Cases 1 et seq.
15. Taylor v SAR&H (1) 1958 1 SA 139 (D) at 142.