Introduction
3.1 Chapter II of the Act deals with joint or several wrongdoers and is much wider in scope than Chapter I for it applies to all delicts whereas Chapter I, as we have seen, applies only to those in which fault is a condition of liability. Chapter II consists of a single section, divided into fourteen subsections. It is a fairly lengthy and complicated section and can best be discussed by dismantling the section.
3.2 Sections 2(1), 2(1A) and 2(14) all deal with the elusive concept 'joint wrongdoer' and are treated together. The respective provisions read as follows:
2. Proceedings against and contributions between joint and several wrongdoers.- (1) Where it is alleged that two or more persons are jointly or severally liable in delict to a third person (hereinafter referred to as the plaintiff) for the same damage, such persons (hereinafter referred to as joint wrongdoers) may be sued in the same action.
(1A) A person shall for the purposes of this section be regarded as a joint wrongdoer if he would have been a joint wrongdoer but for the fact that he is married in community of property to the plaintiff.
(14) A person shall for the purposes of this section be regarded as a joint wrongdoer notwithstanding the fact that another person had an opportunity of avoiding the consequences of his wrongful act and negligently failed to do so.
3.3 Section 2 abolishes(1) the common law distinction between joint and concurrent wrongdoers(2) where the former, according to the generally accepted view, have a right of recourse, the latter not,(3) and provides for the recognition and regulation of a right of contribution between wrongdoers. Although section 2(1) does not purport to contain an extensive or complete definition of a joint wrongdoer, it gives an indication of the nature of the liability of the persons to whom the provisions apply as well as indications of the material characteristics of a joint wrongdoer in terms of the Act.(4)
3.4 With reference to this definition, Millner(5) declares:
This definition fuses into a single category the distinct common law concepts of joint wrongdoers and several concurrent wrongdoers and, by referring to liability 'in delict' brings the whole field of delictual liability within the range of Chapter II (which, incidentally, heightens the anomaly of confining 1 to actions based on negligence, if it is so confined).
3.5 In terms of section 2(1) joint wrongdoers are persons who are alleged to be jointly or severally liable in delict to a third person for the same damage, and therefore not necessarily persons who are in fact so liable.(6)
3.6 Section 2(1A) springs from the 1971 amendments to the Act.(7) Prior to 1971, the rule barring delictual actions between spouses married in community of property was held to prevent a third party, jointly responsible with one of the spouses for injuries to the other spouse from recovering a contribution from the negligent spouse as joint wrongdoer in terms of section 2 of the Act. It was, however, settled law that actions in delict were permitted between spouses who were married out of community of property.(8) Since the amendment of the Act a marriage in community of property does not prevent the spouse partly at fault from being a joint wrongdoer together with the third party vis-à-vis the injured spouse.(9)
3.7 Any definition of 'joint wrongdoer' must take this amendment into account.
3.8 The purpose of section 2(14) of the Act is to abolish the 'last opportunity' rule as a test for determining liability in the case of joint wrongdoers - just as it is the purpose of section 1(1)(b) to abolish the rule as the test for determining liability in the case of negligence by both parties.(10)
3.9 The GCB submits that it would clarify the intention of the legislator
should a short and simple definition of 'joint wrongdoers' be included
in the Act. It further submits that the definition should, in particular,
clarify the question of whether wrongdoers whom are liable in terms of
vicarious liability qualify as joint wrongdoers. It is also submitted that
they should indeed so qualify. This is in accordance with the extensive
interpretation given to the concept 'delict' by Van der Walt,(11)
McKerron(12) and Burchell(13)
for whom 'delict' in section 2(1) includes inter alia wrongs of
absolute or strict liability and the vicarious liability of a master for
the delicts of his or her servant(14) and
even the insurer of a motor vehicle,(15)
but excludes a person who commits a breach of contract.(16)
3.10 On a comparative basis, we could only find one formal definition of
'concurrent wrongdoer'. The Law Commission of New Zealand defines
a concurrent wrongdoer as follows:(17)
concurrent wrongdoer means each of two or more wrongdoers whose acts or omissions give rise, wholly or partly, to the same loss, and includes a person who is vicariously liable for any act or omission of a wrongdoer(18)
3.11 Included in the term are persons such as employers or principals liable vicariously for the acts or omissions of their employees or agents.
3.12 There is considerable merit in the submission of the GCB. We therefore suggest the following formulation:
| Words underlined indicate insertions and words in square brackets in bold type [bold] indicate omissions from the text of the Act. |
2. Proceedings against and contributions between joint and several wrongdoers.- (1) Two or more joint wrongdoers may be sued in the same action.
(2) A person shall for the purpose of this section be regarded as a joint wrongdoer
(a) where it is alleged in an action that this person and another
or more persons are jointly or severally liable in delict to a third person
(hereinafter referred to as the plaintiff) for the same damages;(19)
(b) if such person would have been a joint wrongdoer but for the
fact that he or she is married in community of property to the plaintiff;(20)
(c) if such person would have been vicariously liable for any act or
omission of another wrongdoer;(21)
(d) notwithstanding the fact that another person had an opportunity
of avoiding the consequences of his or her wrongful act and negligently
failed to do so.(22)
Death of or injury to the breadwinner
3.13 Section 2(1B) and the second proviso to section 2(6)(a) form a unit and are treated together. Section 2(1B) reads as follows:
(1B) Subject to the provisions of the second proviso to subsection (6) (a), if it is alleged that the plaintiff has suffered damage as a result of any injury to or the death of any person and that such injury or death was caused partly by the fault of such injured or deceased person and partly by the fault of any other person, such injured person or the estate of such deceased person, as the case may be, and such other person shall for purposes of this section be regarded as joint wrongdoers.
3.14 Prior to 1971, the Act did not deal with the situation where the dependants sought to recover damages for loss of support where the deceased breadwinner had been contributory negligent. This situation was remedied by the insertion of a section 2(1B) in the Act which has the effect that dependants can recover in full from the third party responsible for the breadwinner's death or injury(23) and that third party can then recover a contribution from the deceased's estate or the injured person himself or herself who are, for the purposes of section 2 of the Act regarded as joint wrongdoers vis-à-vis the dependants.(24) A proviso was, however, added to section 2(6)(a) of the principal Act:
Provided further that if the court, in determining the full amount of the damage suffered by the plaintiff referred to in sub-section (1B), deducts from the estimated value of the support of which the plaintiff has been deprived by reason of the death of any person, the value of any benefit which the plaintiff has acquired from the estate of such deceased person no contribution which the said joint wrongdoer may so recover from the estate of the said deceased person shall deprive the plaintiff of the said benefit or any portion thereof.
3.15 The effect of this proviso is unsatisfactory in the amount of protection it gives to dependants.(25) In many cases the bulk of a deceased breadwinner's estate consists of insurance monies or pension benefits. Since, in terms of section 1 of the Assessment of Damages Act 9 of 1969, these insurance or pension benefits are not to be taken into account in reduction of the dependant's damages, they are available for the satisfaction of the third party's action for a contribution against the deceased breadwinner's estate. The only possible limit to such a claim is in terms of section 40 of the Insurance Act 27 of 1943 which protects on death the proceeds of life policies against creditors up to a certain amount. Perhaps a practical way of avoiding the unsatisfactory result of the Assessment of Damages Act 9 of 1969 read with the proviso to section 2(6)(a) of the Act is for the breadwinner to stipulate in the insurance policy that the benefit is to be paid to the dependants, i.e. they become the beneficiaries and not the estate of the breadwinner.(26)
3.16 However, the Commission does not recommend any amendments to section 2(1B).
3.17 The question has been raised(27) whether the legislature merely created a right of contribution against the breadwinner or his or her estate, or whether it has now also impliedly endorsed the view of Dr. NJ van der Merwe(28) that the true juridical basis of an action by one person for loss suffered in consequence of injury to or death of another is a wrong against the plaintiff himself or herself, not a wrong against the injured or deceased person, with the corollary that a breadwinner (or his or her estate) is liable to his or her dependant if he or she deprives the latter of support by negligently injuring or killing himself.
3.18 The Commission agrees with Boberg(29) that the intention of the legislature was in all probability to give the defendant a right of contribution as against the estate of the deceased person and not to formulate general principles of Aquilian liability. This leaves the basic question, namely whether the estate of the deceased person is liable ex delicto against the dependants, unanswered.(30) It is submitted that in principle there is no objection to the direct liability of the estate as against the dependants,(31) "mits daar in elke geval vasgestel word of die broodwinner se optrede, in die lig van die boni mores, onregmatig was teenoor sy afhanklikes".(32)
3.19 In a submission received from a member of the Natal Law Society(33) it is argued that the Act does not make adequate provision for effective apportionment against those who 'benefit' from the death of a joint wrongdoer. As prime example it cites the defendant in a MVA case where the deceased breadwinner may have been 95% to blame: the claims of the dependants are not reduced accordingly and there is no recourse unless the deceased left a substantial estate which can effectively be joined as third party.
3.20 The GCB submits that the apportionment of liability between the plaintiff and defendants be kept separate from apportionment of contribution between the different defendants.(34) This submission is based on the decision of the House of Lords in Fitzgerald v Lane,(35) as well as on a similar recommendation contained in the New Zealand Law Commission's preliminary paper on the apportionment of civil liability.(36)
3.21 The Commission supports this submission of the GCB.
3.22 Section 2(2) of the Act reads as follows:
(2) Notice of any action may at any time before the close of pleadings in that action be given-
to any joint wrongdoer who is not sued in that action, and such joint wrongdoer may thereupon intervene as a defendant in that action.
3.23 Section 2(4), in turn, reads as follows:
(4) (a) If a joint wrongdoer is not sued in an action instituted against another joint wrongdoer and no notice is given to him in terms of paragraph (a) of sub-section (2), the plaintiff shall not thereafter sue him except with the leave of the court on good cause shown as to why notice was not given as aforesaid.
(b) If no notice is under paragraph (a) or (b) of sub-section (2) given to a joint wrongdoer who is not sued by the plaintiff, no proceedings for a contribution shall be instituted against him under sub-section (6) or (7) by any joint wrongdoer except with the leave of the court on good cause shown as to why notice was not given to him under paragraph (b) of sub-section (2).
3.24 Oral notice is sufficient, though no doubt in practice notice is almost invariably given in writing. The importance of giving notice appears from section 2(4) of the Act.(37) The effect of notice is not to make the joint wrongdoer to whom it is given a party to the action, but merely to entitle him or her to become a party.(38)
3.25 The Commission does not recommend any major amendments to these sections.
3.26 Sections 2(2), 2(4)(b) and 2(6)(a) of the Act will generally be used where the alleged wrongdoer is not before the Court in that capacity. For example, a father drives a motor vehicle, accompanied by his son. A collision occurs with another motor vehicle and the son is injured. The cause of the collision was the joint negligence of the two drivers. The father institutes a claim in his representative capacity only in respect of the general damages sustained by his son.
3.27 In such a case, the defendant has the following options:
3.28 Were the father to in such an instance institute action in his personal capacity (for example for the medical expenditure related to the son's injuries) and in his representative capacity (e.g. in respect of general damages), the defendant could directly raise apportionment as against the father in respect of his claim in his personal capacity. That much is obvious. But what about the claim in his representative capacity?
3.29 The defendant has the alternative of simply giving notice in terms of section 2(2) of the Act or to institute a conditional counter-claim against the father in his personal capacity.(40) There was previously doubt as to whether such a conditional counter-claim could be brought in the Magistrate's Court.(41) Joinder would in such an event be unnecessary and indeed improper, because the plaintiff in his or her personal capacity is in such an event already before the Court.
3.30 Section 2(3) deals with separation of trials and reads as follows:
(3) The court may on the application of the plaintiff or any joint wrongdoer in any action order that separate trials be held, or make such other order in this regard as it may consider just and expedient.
3.31 The Commission finds no fault with the principle embodied in this subsection. We do, however, agree with Kotzé(42) that the concept 'any joint wrongdoer' refers to a 'aangespreekte mededader'. To clearly convey this intention, we suggest that the word 'sued' be inserted after the phrase 'any joint wrongdoer'.
3.32 It should, however, be noted that Rules 10(5)(43) and 13(9) of the Supreme Court Rules contain similar provisions. McKerron(44) submits that the only ground upon which the court would be justified in acceding to the application would be to prevent embarrassment to the applicant at the trial. Since it is desirable that, wherever practicable, joint wrongdoers should be sued in the same action, the onus of proving embarrassment would be a heavy one.
3.33 Several subsections deal with matters related to costs and can be treated together. The first is section 2(5), which reads as follows:
(5) In any subsequent action against another joint wrongdoer, any amount recovered from any joint wrongdoer in a former action shall be deemed to have been applied towards the payment of the costs awarded in the former action in priority to the liquidation of the damages awarded in that action.
3.34 McKerron(45) illustrates the effect of this subsection by considering its application to the following example. Plaintiff (P) sues First Defendant (D1) and obtains judgement against her for R4000 and costs. P's taxed costs amounts to R500. Assuming that P obtains from D1 only R1000 in satisfaction of the judgement, he can subsequently claim R3 500 from Second Defendant (D2), being as to R500 his taxed costs and as to R3000 the balance of his unpaid damages.
3.35 Section 2(8)(a)(iv) is quoted below(46) and deals with the various forms in which an order as to costs may be made where the court gives judgement against one or more joint wrongdoers and is almost identical to rule 10(4) of the Supreme Court rules. Section 2(9)(47) is likewise almost a replica of the same Supreme Court rule and reads as follows:
(9) If judgment is given in favour of any joint wrongdoer or if any joint wrongdoer is absolved from the instance, the court may make such order as to costs as it may consider just, including an order-
3.36 Section 2(11)(b) is quoted below.(48) It provides that any costs incurred by a joint wrongdoer in an unsuccessful attempt to recover a contribution from another joint wrongdoer shall be added to the amount of that contribution.
3.37 The Commission recommends a rearrangement of the various subsections dealing with costs. These provisions can further be simplified as the present Supreme Court rules regarding costs given for or against joint wrongdoers are adequate. If the Act, for example, simply empowers the court to make an appropriate order as to costs then sections 2(8)(a)(iv) and 2(9) can be amended accordingly.
3.38 The Commission therefore recommends the following section:
| Words underlined indicate insertions and words in square brackets in bold type [bold] indicate omissions from the text of the Act. |
(1) The Court may make such order as to costs as shall to it seem to be just: Provided that in any subsequent action against another joint wrongdoer, any amount recovered from any joint wrongdoer in a former action shall be deemed to have been applied towards the payment of the costs awarded in the former action in priority to the liquidation of the damages awarded in that action.(49)
Contribution between joint wrongdoers
3.39 Section 2(6) reads as follows:
(6) (a) If judgment is in any action given against any joint wrongdoer for the full amount of the damage suffered by the plaintiff, the said joint wrongdoer may, if the judgment debt has been paid in full, subject to the provisions of paragraph (b) of sub-section (4), recover from any other joint wrongdoer a contribution in respect of his responsibility for such damage of such an amount as the court may deem just and equitable having regard to the degree in which that other joint wrongdoer was at fault in relation to the damage suffered by the plaintiff, and to the damages awarded: Provided further that if the court, in determining the full amount of the damage suffered by the plaintiff referred to in sub-section (1B), deducts from the estimated value of the support of which the plaintiff has been deprived by reason of the death of any person, the value of any benefit which the plaintiff has acquired from the estate of such deceased person no contribution which the said joint wrongdoer may so recover from the estate of the said deceased person shall deprive the plaintiff of the said benefit or any portion thereof.
(b) The period of extinctive prescription in respect of a claim for a contribution shall be twelve months calculated from the date of the judgment in respect of which a contribution is claimed or, where an appeal is made against such judgment, the date of the final judgment on appeal: Provided that if, in the case of any joint wrongdoer, the period of extinctive prescription in relation to any action which may be instituted against him by the plaintiff, is governed by a law which prescribes a period of less than twelve months as the period within which legal proceedings shall be instituted against him or within which notice shall be given that proceedings will be instituted against him, the provisions of such law shall apply mutatis mutandis in relation to any action for a contribution by a joint wrongdoer, the period or periods concerned being calculated from the date of the judgment as aforesaid instead of from the date of the original cause of action.
(c) Any joint wrongdoer from whom a contribution is claimed may raise against the joint wrongdoer who claims the contribution any defence which the latter could have raised against the plaintiff.
3.40 Paragraph (a) only applies where a judgment has been given against (a) a single joint wrongdoer, or (b) two or more joint wrongdoers jointly and severally liable and the damages have not been apportioned between them in terms of section 2(8)(a)(iii) of the Act.(50)
3.41 The joint wrongdoer against whom judgement has been given can obtain a declaratory order from the court determining the contribution which the other joint wrongdoer will have to make even where the debt has not been satisfied in full.(51) The contribution from the other joint wrongdoer will, therefore, have to be recovered in a subsequent separate action but the proceedings will be simplified by the existing declaratory order.(52)
3.42 Notice to a joint wrongdoer of intention to join him or her in a action can be given either under section 2(2) of the Act or under Rule 13 of the Supreme Court Rules. The consequences of these two ways of joining parties as joint wrongdoers differ and are discussed elsewhere.(53) Suffice it to say that the effect of a section 2(2) notice is not to make the joint wrongdoer to whom the notice is given a party to the action, but merely to entitle him or her to become a party. However, if the joint wrongdoer does become a party to the action then a judgement sounding in money can be made in his or her favour. On service of a notice to a joint wrongdoer in terms of Rule 13 of the Supreme Court Rules the joint wrongdoer automatically becomes a party to the action and will be bound by the judgement whether he or she intervenes or not. However, it is important to note that under Rule 13 all that can be sought by one alleged wrongdoer against another is an apportionment of fault in the form of a declaratory order. The rule makes no provision for a judgement sounding in money in favour of one joint wrongdoer against another.(54)
3.43 It is to be observed that paragraph (a) provides that in determining the amount of the contribution, regard must be had to the damages awarded.(55) This is clearly so where the wrongdoer from whom contribution is sought was a party to the action or where the damages awarded are equal to or less than the damages suffered. McKerron(56) argues that it would be unjust to have regard to the damages awarded where the wrongdoer was not a party to the action and the damages exceed the damage suffered. He submits(57) that in such a case, since the court must decide the matter in accordance with what it considers just and equitable, it would be open to the court, notwithstanding the wording of the paragraph, to have regard only to the amount of the damage actually suffered by the plaintiff. McKerron continues:
If this interpretation of the paragraph is not permissible, it is submitted that the paragraph should be amended by the deletion of the words 'and to the damages awarded'. If these words were deleted, it is conceived that the court, where it was right and proper to do so, could still have regard to the damages awarded, since it is required to have regard to what is just and equitable in determining the amount of the contribution.
3.44 As is shown by Kotzé(58) the use of the word 'responsibility' in paragraph (a) of this subsection is unfortunate. The better word is 'liability'.(59) We would support such a change.
3.45 The Commission therefore recommends the following amendments:
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(6) (a) If judgment is in any action given against any joint wrongdoer for the full amount of the damage suffered by the plaintiff, the said joint wrongdoer may, if the judgment debt has been paid in full, subject to the provisions of paragraph (b) of sub-section (4), recover from any other joint wrongdoer a contribution in respect of his or her liability [responsibility] for such damage (including the reasonable costs incurred in defending the action) of such an amount as the court may deem just and equitable having regard to the degree in which that other joint wrongdoer was at fault in relation to the damage suffered by the plaintiff[, and to the damages awarded]: Provided further that if the court, in determining the full amount of the damage suffered by the plaintiff referred to in [sub-]section 2(1B), deducts from the estimated value of the support of which the plaintiff has been deprived by reason of the death of any person, the value of any benefit which the plaintiff has acquired from the estate of such deceased person no contribution which the said joint wrongdoer may so recover from the estate of the said deceased person shall deprive the plaintiff of the said benefit or any portion thereof.
3.46 Literally interpreted, the paragraph would entitle even an intentional wrongdoer to claim contribution. Whether this is in fact possible, remains unclear.(60) On the one hand, there is no attempt in the Act 'to limit the class of joint wrongdoers who may be joined to such persons whose joint wrongdoing consists of negligent acts as distinct from acts of intentional wrongdoing'.(61) On the other hand, there is the common law rule that there can never be any question of contribution between intentional wrongdoers.(62)
3.47 Two other aspects deserve attention. The first relates to costs. In Abrahamse v Danek(63) Herbstein J held that contribution can be claimed not only in respect of the damages, but also in respect of the costs, which the joint wrongdoer was obliged to pay to the injured party. The Full Bench of the Eastern Cape Division, however, took a different view in Commercial Union Assurance Co Ltd v Pearl Assurance Co Ltd.(64) McKerron(65) supports the latter view as it accords better with the wording of the paragraph and is supported by the provisions of subsection (12). He suggests that the position can be rectified by simply inserting in brackets after the words 'his responsibility for such damage' the words 'including the costs incurred in defending the action'.
3.48 The Commission also supports the Commercial Union Assurance Co Ltd-decision and believes that a contribution can be claimed not only in respect of the damages, but also in respect of the costs.
3.49 The second aspect concerns breach of a strict or absolute duty. In applying this paragraph of the Act, the court may be faced with a difficulty which does not arise under section 1(1), namely the apportionment of liability between a wrongdoer, D1, whose liability is based on fault and a wrongdoer, D2, whose liability springs from the breach of a strict or absolute duty. It is not easy to see how this difficulty can be got around, since ex hypothesi apportionment on the basis of comparative culpability is ruled out.(66) As a solution, McKerron(67) suggests that the court, contrary to the general rule, to have regard solely to the extent of D1's departure from the norm of the reasonable man and apportion the liability between D1 and D2 on that basis.
3.50 Section 2(7) reads as follows:
(7) (a) If judgment is in any action given against one or more joint wrongdoers in respect of the damage suffered by the plaintiff, any joint wrongdoer who in pursuance of such judgment pays to the plaintiff in respect of his responsibility for such damage an amount in excess of the amount (hereinafter referred to as the amount apportioned to the first mentioned joint wrongdoer) which the court deems just and equitable having regard to the degree in which he was at fault in relation to the damage suffered by the plaintiff and to the full amount of the damages awarded to the plaintiff, may, subject to the provisions of paragraph (b) of sub-section (4), recover from any other joint wrongdoer a contribution in respect of the latter's responsibility for such damage of an amount not exceeding so much of the amount which the court deems just and equitable having regard to the degree in which such other joint wrongdoer was at fault in relation to the damage suffered by the plaintiff and to the full amount of the damaged awarded to the plaintiff, as has not been paid by such other joint wrongdoer, or so much of the amount paid by the first mentioned joint wrongdoer as exceeds the amount apportioned to him, whichever is less.
(b) The provisions of paragraphs (b) and (c) of sub-section (6) shall apply mutatis mutandis to any claim for a contribution under paragraph (a) of this sub-section.
3.51 As regards this section, it suffices to refer to the criticism
as expressed by McKerron:(68)
The subsection is so clumsily and obscurely worded that it is difficult
to determine its purpose. But it would seem to be intended to provide for
the case where a joint and several judgement has been given against two
or more joint wrongdoers ('one' having been used in the first line of paragraph
(a) per incuriam for 'two'), and an apportionment has then been
made between them in terms of subsection (8)(a)(iii). If this is the correct
interpretation of the subsection, then it would appear to serve no purpose;
for the case is expressly provided for in clear and unambiguous language
by subsection (8)(b). It is submitted, therefore, that the subsection should
be repealed and all references to it deleted from the Act.
3.52 There are no reported decision dealing with this section and the Commission supports McKerron's submission that section 2(7) should be repealed.
Judgment in favour of the plaintiff
3.53 Section 2(8) reads as follows:
(8) (a) If judgment is in any action given in favour of the plaintiff against two or more joint wrongdoers, the court may-
(b) Any joint wrongdoer who pays more than the amount apportioned to him under sub-paragraph (a) may recover from any joint wrongdoer who has paid less than or nothing of the amount so apportioned to him, a contribution of an amount not exceeding so much of the amount so apportioned to the last mentioned joint wrongdoer as has been paid by him, or so much of the amount paid by the first mentioned joint wrongdoer as exceeds the amount so apportioned to him, whichever is less.
(c) The provisions of paragraph (b) of sub-section (6) shall apply mutatis mutandis to any claim for a contribution under paragraph (b) of this sub-section.
3.54 At common law the rule was that, except in the case of a claim based on injuria, the plaintiff was entitled to an undivided judgement for the whole of his or her loss. Paragraph (a)(ii) of this subsection empowers the court to apportion the damages and give separate judgements against each joint wrongdoer. This the court may only do if it is satisfied that all the joint wrongdoers have been joined in the action.(69) If the court exercises the power, the respective liabilities of the parties are determined once and for all in one action and no question of contribution arises. This is therefore the simplest and most satisfactory method of dealing with the problem of joint wrongdoing.
3.55 McKerron(70) submits that since the application of the provision deprives the plaintiff of his or her common law right to an undivided judgement, the court should not exercise the power if there is any likelihood of the plaintiff being prejudiced thereby as, for example, one of the joint wrongdoers being unable to discharge his or her share of the liability. It is true that the proviso to the paragraph affords the plaintiff some measure of protection against this eventuality, but it would be unfair to him or her to give separate judgements in circumstances in which the probabilities are that he will have to institute further proceedings in terms of this proviso.
3.56 McKerron(71) argues that the words 'in such proportions ... plaintiff' occurring at the end of the proviso in section 2(8)(a)(ii) appear to be redundant. He suggests that the offending words be deleted and be substituted by the words 'in such proportions as the damages awarded to the plaintiff were apportioned between them'.
3.57 McKerron(72) also shows that the omission in section 2(8)(c) of a reference to section 2(6)(c) of the Act is clearly a casus omissus. For 'paragraph (b)' there should therefore be substituted 'paragraphs (b) and (c)'.
3.58 The Commission would give effect to these recommendations. The proviso to section 2(8)(a)(ii) will be dealt with below(73) when we discuss the effect of the insolvency of a joint wrongdoer on his or her co-joint wrongdoer's efforts to claim a contribution from the insolvent wrongdoer. It will also be recalled that we recommended(74) section 2(8)(a)(iv) be repealed and be substituted by a general section dealing with cost orders. Our proposal reads as follows:
| Words underlined indicate insertions and words in square brackets in bold type [bold] indicate omissions from the text of the Act. |
(8) (a) If judgment is in any action given in favour of the plaintiff against two or more joint wrongdoers, the court may-
(i) order that such joint wrongdoer pay the amount of the damages awarded jointly and severally, the one paying the other to be absolved;
(ii) if it is satisfied that all the joint wrongdoers have been joined in the action,
(aa) apportion the damages awarded against the joint wrongdoers in such proportions as the court may deem just and equitable having regard to the degree in which each joint wrongdoer was at fault in relation to the damage suffered by the plaintiff, and
(bb) give judgment separately against each joint wrongdoer for the amount so apportioned: Provided that any amount which the plaintiff is unable to recover from any joint wrongdoer under a judgment so given (including any costs incurred by the plaintiff in an attempt to recover the said amount and not recovered from the said joint wrongdoer) [whether by reason of the said joint wrongdoer's insolvency or otherwise,] may be recovered by the plaintiff from the other joint wrongdoer or, if there are two or more other joint wrongdoers, from those other joint wrongdoers in such proportions as damages awarded to the plaintiff were apportioned between them [the court may deem just and equitable having regard to the degree in which each of those other joint wrongdoers was at fault in relation to the damage suffered by the plaintiff];
(iii) where it gives judgment against the joint wrongdoers jointly and severally as aforesaid, at the request of any one of the joint wrongdoers, apportion, for the purposes of paragraph (b), the damages payable by the joint wrongdoers inter se, amongst the joint wrongdoers, in such proportions as the court may deem just and equitable having regard to the degree in which each joint wrongdoer was at fault in relation to the damage suffered by the plaintiff;
[(iv) make such order as to cost as it may consider just, including an order that the joint wrongdoers against whom it gives judgment shall pay the plaintiff's cost jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful joint wrongdoers his pro rata share of such excess.]
(b) Any joint wrongdoer who pays more than the amount apportioned to him or her under [sub-]paragraph (a) may recover from any joint wrongdoer who has paid less than or nothing of the amount so apportioned to him or her, a contribution of an amount not exceeding so much of the amount so apportioned to the last mentioned joint wrongdoer as has been paid by him or her, or so much of the amount paid by the first mentioned joint wrongdoer as exceeds the amount so apportioned to him or her, whichever is less.
(c) The provisions of paragraph (b) and (c) of [sub-]section 2(6) shall apply mutatis mutandis to any claim for a contribution under paragraph (b) of this sub-section.
Exemption from or limitation of liability
3.59 Section 2(10) reads as follows:
(10) If by reason of the terms of an agreement between a joint wrongdoer and the plaintiff the former is exempt from liability for the damage suffered by the plaintiff or his liability therefore is limited to an agreed amount, so much of that portion of the damages which, but for the said agreement and the provisions of paragraph (c) of sub-section (6) or paragraph (b) of sub-section (7), could have been recovered from the said joint wrongdoer in terms of sub-section (6) or (7) or could have been apportioned to him in terms of sub-paragraph (ii) or (iii) of paragraph (a) of sub-section (8), as exceeds the amount, if any, for which he is liable in terms of the said agreement, shall not be recoverable by the plaintiff from any other joint wrongdoer.
3.60 In principle, one wrongdoer should not be permitted to derive any benefit from an agreement between the plaintiff and another wrongdoer. However, from this subsection it would appear as if the legislature apparently considered it necessary to allow him or her to do so in order to achieve what it conceived to be ideal justice between the joint wrongdoers concerned. McKerron(75) submits that this section must be interpreted as applying only to an agreement excluding or limiting liability entered into before the damage was caused.(76) McKerron(77) further submits that this is not a sufficient reason for taking away the plaintiff's common law right to recover his or her damages in full from any joint wrongdoer whose liability is not limited by contract: 'The purpose of the Chapter is to adjust liability between joint wrongdoers, not to deprive injured persons of their common-law rights. There would seem therefore to be no justification for this provision, and it is submitted that the subsection should be repealed.'(78)
3.61 The Commission is therefore faced with two options. The first is to retain section 2(10) (albeit in an amended form) to make it clear that it only applies to agreements excluding or limiting liability entered into before the damage was caused. This will give effect to McKerron's first submission and appeals to one's sense of fairness. The second option is to give effect to McKerron's second submission and repeal the section altogether.
3.62 The Commission therefore suggests the following in the alternative:
| Words underlined indicate insertions and words in square brackets in bold type [bold] indicate omissions from the text of the Act. |
(10) If by reason of the terms of an agreement between a joint wrongdoer and the plaintiff entered into before the damage was caused the former is exempt from liability for the damage suffered by the plaintiff or his or her liability therefore is limited to an agreed amount, so much of that portion of the damages which, but for the said agreement and the provisions of paragraph (c) of [sub-]section 2(6) [or paragraph (b) of sub-section (7)], could have been recovered from the said joint wrongdoer in terms of [sub-]section 2(6) [or (7)] or could have been apportioned to him or her in terms of [sub-paragraph (ii) or (iii) of paragraph (a) of sub-]section 2(8)(a)(ii) or (iii), as exceeds the amount, if any, for which he or she is liable in terms of the said agreement, shall not be recoverable by the plaintiff from any other joint wrongdoer.
3.63 The alternative is to repeal the subsection in toto.
Contribution in cases of insolvency
3.64 Recovery of contribution - indeed, recovery of damages at all - depends on the availability and solvency of the defendant(s) against whom judgement is given. In its simplest terms, it is of no use to a plaintiff to have a judgement ready for execution if the relevant defendant has no funds to meet it. The question is then how the insolvency or unavailability of one joint wrongdoer should impact on the other joint wrongdoers (each of whom is jointly and severally liable) and on the plaintiff?(79)
3.65 The proviso to section 2(8)(a)(ii) and section 2(11) are relevant in this regard. Section 2(11) reads as follows:
(11) (a) Whenever a joint wrongdoer who is entitled under any provision of this section to recover a contribution from another joint wrongdoer, is unable to recover that contribution or any amount thereof from that other joint wrongdoer, whether by reason of the latter's insolvency or otherwise, he may recover from any other wrongdoer such portion of that contribution or that amount thereof as the court may deem just and equitable having regard to the degree in which that other joint wrongdoer was at fault in relation to the damage suffered by the plaintiff and to the full amount of the said contribution or the said amount thereof, as the case may be.
(b) Any cost incurred by a joint wrongdoer in an attempt to recover any contribution from any other joint wrongdoer, and not recovered from that joint wrongdoer, shall for the purpose of paragraph (a), be added to the amount of that contribution.
3.66 In its submission the GCB shows that in Ontario(80) and New Zealand(81) provision has been made for a re-allocation of the apportionment in the event of it becoming impossible to execute as against one of the wrongdoers in respect of his or her share. This might happen where one of the wrongdoers is insolvent, absent from the country, or cannot be found. The GCB argues that a court should apportion liability only between those who are parties before it, disregarding any potential defendant who has not been sued by the plaintiff or joined as a third party. If one of the wrongdoers is unable to pay his or her debts before judgement, that ought to be taken into account by the court by ignoring his or her contribution if there is no prospect of any recovery from such a source.
3.67 Should a dividend in the insolvency be a reasonable possibility, the GCB feels a court should enter judgment against all defendants. The plaintiff can then enforce judgment against one or more of the defendants and be fully compensated in that way. Should any of the defendants held liable by the court discover that no aliquot contribution is available from one of the co-defendants also held liable (e.g. because of insolvency), such defendant should be entitled to return to the court within a reasonable time and apply for the re-allocation of the unenforceable contribution among the remaining parties. In this way the plaintiff and the solvent defendants share, in a proportional way, between them the burden of such insolvency.
3.68 The GCB elucidates its proposition by way of the following example:
Plaintiff (P) takes judgment against first defendant (D1) and second defendant (D2) (each found to be 30% responsible for the loss) and third defendant (D3), held to be 40% responsible. Should D1 establish that a contribution from D3 is unavailable, D1 should be permitted to apply to a court for a re-allocation of the uncollectible 40%. Since D1 and D2 are, inter se, equally responsible, the outstanding 40% share will be equally divided between them, leaving each of them 50% responsible. Such application for a re-allocation will only become enforceable once D1 has actually made payment to the plaintiff. The same principle should apply where the plaintiff himself was partly to be blamed for the loss.
3.69 The Common Law Team(82) of the English Law Commission (83) considered the introduction of "'full' proportionate liability" whereby defendants would be liable to plaintiffs only for the amount of damages equal to their proportionate share of the fault in the plaintiff's loss. Their investigation came down firmly against such a solution, mainly on the grounds that (i) it is unfair for a legally blameless plaintiff to have to bear the risk of a defendant's insolvency and (ii) it is misleading to say that defendants can currently be called on "to provide 100% of the damages even though they are only 1% at fault" since the principle of joint and several liability is that relative to the plaintiff each defendant is 100% liable for the whole of the plaintiff's loss.(84)
3.70 The Common Law Team went on to look at three forms of a modified proportionate liability. The first would be the reallocation of the share of an insolvent wrongdoer between other wrongdoers and the plaintiff where the latter is contributory negligent.(85) The second would be to apply proportionate liability to a "peripheral wrongdoer"(86) only, i.e. one whose fault is secondary when compared with the other wrongdoers.(87) The third would be to reallocate the uncollected share of the insolvent wrongdoer, but only up to 50% of each defendant's proportionate share.(88) For reasons of principle or policy the investigation also rejected these three alternatives.
3.71 Also relevant in this regard is the Glanville Williams' theory.(89) According to this theory,(90) where the plaintiff has been contributorily negligent, it is desirable to spread the risk of insolvency by applying proportionate liability. However, simply to apply proportionate liability would be too crude and unfair to the plaintiff in that it would throw the risk of insolvency entirely onto the plaintiff. The solution advocated is for the plaintiff to be given a primary (absolute) judgment based on proportionate liability coupled with a secondary (conditional) judgment for the proportionate share of such sum as the plaintiff fails to collect from the other defendant(s). As a matter of procedure, it is suggested that it would normally be preferable not to give the secondary judgement automatically but rather to give the plaintiff the right to apply for it.
3.72 For present purposes the theory can best be examined by developing the example of the GCB. Assume, on an assessment of proportionate liability, that plaintiff (P) is 50% contributory negligent, first defendant (D1) is 25% at fault and second defendant (D2) is also 25% at fault. D2 is insolvent and nothing can be recovered from him or her. P has suffered a loss of R100 000. Applying the principle of joint and several liability, P would be entitled to R50 000 from either D1 or D2, the one paying the other to be absolved. However, if we apply Professor Glanville Williams' theory, the risk of D2's insolvency would be shared between P and D1 in the ratio 2:1. D1 would therefore be liable for R33 333 (i.e. 25%, plus a third of 25%) and P would be left to bear the remaining R66 666 (i.e. 50%, plus two-thirds of 25%).
3.73 One cannot help but being attracted by the impeccable logic of Professor Williams' theory.(91) That is unless one takes the controversial view(92) that the contributory negligence of a plaintiff is not as blameworthy as the commission of a wrong against another person, and hence that contributory negligence does not justify transferring a share of the risk of insolvency from the defendant(s) to the plaintiff.
3.74 Nevertheless, there remains some doubt(93) as to whether legislative reform to implement the theory of Professor Williams would be justified. For one thing, the Williams theory would be exceedingly complex to apply in practice.(94) Contribution proceedings are difficult enough and a system of secondary judgments based on proportionate shares of the risk of insolvency would be even more complex.
3.75 At this stage the Commission is not in a position to take a definite stand on the issue. We would therefore welcome comment on problems experienced in practice in this regard, and especially on the possibility of making a re-allocation of the apportionment in the event of it becoming impossible to execute against one of the joint wrongdoers in respect of his or her share; the introduction of "'full' proportionate liability" whereby defendants would be liable to plaintiffs only for the amount of damages equal to their proportionate share of the fault in the plaintiff's loss; whether some form of modified proportional liability should be introduced; and the effectiveness of the present provisions in the Act.
3.76 In order to give focus to the debate, attention is drawn to section 16 of the draft Act prepared by the New Zealand Law Commission.(95)
(1) If
(a) contribution is recoverable from a concurrent wrongdoer under this Act, and
(b) a court has attributed a proportion of a loss to that concurrent wrongdoer, and
(c) the proportionate amount of contribution payable by that concurrent wrongdoer is uncollectible,
any other concurrent wrongdoer to whom all or part of that contribution is payable may apply to the court for apportionment of the uncollectible contribution.
(2) Contribution is uncollectible for the purposes of this section if it cannot be collected because the concurrent wrongdoer by whom it is payable is insolvent, absent from New Zealand or cannot be found.
(3) If the court is satisfied that contribution payable by a concurrent wrongdoer is uncollectible, it may make an order apportioning the uncollectible contribution among the other concurrent wrongdoers (including the applicant) and any wronged person who has failed to act with due regard for that person's own interest, so that each is liable to pay or to forego a share of the uncollectible contribution that is proportionate to the loss attributable to each.
(4) An application under this section may be made in a proceeding brought by a wronged person for the recovery of damages or in a proceeding brought by a concurrent wrongdoer for the recovery of contribution or in a separate proceeding, but must be brought within one year after the attribution of a proportion of the loss to the concurrent wrongdoer whose contribution is uncollectible.
(5) Apportionment of uncollectible contribution under this section does not discharge the concurrent wrongdoer whose contribution is uncollectible from liability to pay contribution.
3.77 At this stage, it suffices to say that the professional bodies in New Zealand do not see the Law Commission's proposal as going far enough. Their preference is for full proportionate liability in terms of which every defendant is liable only to the extent of that defendant's fault, the risk of the "uncollectible share" resting always on the plaintiff.(96)
3.78 Even if all defendants are solvent and available, some particular defences may be available to a claim against them. These defences may be based on matters such as an exemption or limitation on damages in a defendant's contract with the plaintiff or the expiry of the limitation period involved. In these situations it might immediately be said that the plaintiff should be barred from or restricted in recovery, either on the basis that the plaintiff has agreed on the limitation (if it arises under contract) or that good public policy reasons have led to the inclusion of a limitation in a statute.
Payment in full settlement of plaintiff's claim
3.79 Section 2(12) is a most useful provision and reads as follows:
(12) If any joint wrongdoer agrees to pay to the plaintiff a sum of money in full settlement of the plaintiff's claim, the provisions of sub-section (6) shall apply mutatis mutandis as if judgment had been given by a competent court against such joint wrongdoer for that sum of money, or, if the court is satisfied that the full amount of the damage actually suffered by the plaintiff is less than that sum of money, for such sum of money as the court determines to be equal to the full amount of the damage actually suffered by the plaintiff, and in the application of the provisions of paragraph (b) of the said sub-section (6), any reference therein to the date of the judgment shall be construed as a reference to the date of the agreement.
3.80 This section enables a joint wrongdoer who does not dispute liability to settle the plaintiff's claim and then claim contribution from the other joint wrongdoers. The effect of the reference to section 2(6) is that contribution cannot be claimed until the sum agreed upon has been paid in full to the plaintiff. It is also to be noted that the period of prescription in respect of the right to claim contribution begins to run from the date of the agreement and not from the date of payment.(97)
3.81 The Commission endorses this subsection.
3.82 Section 2(13) reads as follows:
(13) Whenever judgment is in any action given against any joint wrongdoer for the full amount of the damage suffered by the plaintiff, or whenever any joint wrongdoer has agreed to pay to the plaintiff a sum of money in full settlement of the plaintiff's claim, and the judgment debt or the said sum of money has been paid in full, every other joint wrongdoer shall thereby also be discharged from any further liability towards the plaintiff.
3.83 This section would appear to be merely a restatement of the common law rule that payment in full by one co-debtor, or the receipt of a discharge which is intended to operate as a complete discharge of the whole obligation, releases the other(s).(98)
3.84 The Commission endorses this section.
3.85 Section 3 of the Act reads as follows:
3. Application of provisions of section 2 to liability imposed in terms of Act 29 of 1942.-The provisions of section two shall apply also in relation to any liability imposed in terms of the Motor Vehicle Insurance Act, 1942 (Act No. 29 of 1942), on the State or any person in respect of loss or damage caused by or arising out of the driving of a motor vehicle.
3.86 In its submission the GCB shows that cognisance should be taken of the provisions of the Motor Vehicle Accidents Act, 1986,(99) and the Multilateral Motor Vehicle Accidents Fund Act, 1989, in this section. The Commission agrees with this submission and suggests the following:
| Words underlined indicate insertions and words in square brackets in bold type [bold] indicate omissions from the text of the Act. |
3. Application of provisions of section 2 to liability imposed in terms of Act 93 of 1989 [29 of 1942].-The provisions of section two shall apply also in relation to any liability imposed in terms of the Multilateral Motor Vehicle Accidents Fund Act, 1989 (Act No. 93 of 1989) [Motor Vehicle Insurance Act, 1942 (Act No. 29 of 1942)], on the State or any person in respect of loss or damage caused by or arising out of the driving of a motor vehicle.
__________
Footnotes:
1. Although Trollip J in Windrum v Neunborn 1968 4 SA 286 (T) at 289 - 290 left open the question whether the common law right of contribution between concurrent wrongdoers is still available.
2. Neethling, Potgieter and Visser Deliktereg 269; Van der Walt Delict 110; McKerron Law of Delict 306.
3. See Hughes v Transvaal Associated Hide & Skin Merchants (Pty) Ltd 1955 2 SA 176 (T); Windrum v Neunborn 1968 4 SA 286 (T).
4. Van der Walt Delict 110. See also Commercial Union Assurance Co Ltd v Pearl Assurance Co Ltd 1962 3 SA 856 (E) at 863; Saitowitz v Provincial Insurance Co Ltd 1962 3 SA 443 (W); Becker v Kellerman 1971 2 SA 172 (T).
5. 1956 Annual Survey 188 at 193.
6. Shield Insurance Co Ltd v Zervoudakis 1967 4 SA 735 (E) at 737 - 8 per Munnik J. However, in South African Railways and Harbours v South African Stevedores Services Co Ltd 1983 1 SA 1066 (A) at 1090 the Appellate Division states unequivocally that "... the Act does not ... deprive a person who, in terms of s 2(1), is alleged to be a joint and several wrongdoer of his right to plead that he is not actually liable as such". See also Van der Merwe and Olivier Onregmatige Daad 293 - 4; Wapnick v Durban City Garage 1984 2 SA 414 (D) at 421.
7. See Boberg 1971 SALJ 423 - 457 and Van der Merwe and Mynhardt 1971 THRHR 308 et seq for a full discussion of these amendments.
8. Rohloff v Ocean Accident &Guarantee Corporation Ltd 1960 2 SA 291 (A).
9. Section 2(1A) of the Act. See also Delport v Mutual and Federal Insurance Co Ltd 1984 3 SA 191 (D); Sonnekus 1986 De Jure 150. See also sections 18 and 19 of the Matrimonial Property Act 88 of 1984.
10. McKerron Law of Delict 318. See also Bondcrete (Pty) Ltd v City View Investments (Pty) Ltd 1969 1 SA 134 (N) at 137E.
11. Delict 110. See also McKerron Law of Delict 306 - 7.
12. The Apportionment of Damages Act 7.
14. Becker v Kellerman 1971 2 SA 172 (T); Shield Insurance Co Ltd v Zervoudakis 1967 4 SA 735 (E) at 737 - 738. See, however, Smit v General Accident Fire and Life Assurance Corp Ltd 1964 3 SA 739 (C).
15. Maphosa v Wilke 1990 3 SA 789 (T).
16. Barclays Bank DCO v Straw 1965 2 SA 93 (O); OK Bazaars (1929) Ltd v Stern and Ekermans 1976 2 SA 521 (C).
18. A wrongdoer is defined as a person whose acts or omissions give rise, wholly or partly, to a loss: Preliminary Paper 80.
19. A reformulation of section 2(1) of the Act.
20. A reformulation of section 2(1A) of the Act.
22. A reformulation of section 2(14) of the Act.
23. Before the 1971 amendment the dependant had no claim for loss of maintenance where the breadwinner was only injured: De Vaal NO v Messing 1938 TPD 34; Lockhat's Estate v North British and Mercantile Insurance Co Ltd 1959 3 SA 295 (A); Evins v Shield Insurance Co Ltd 1980 2 SA 814 (A). But see Van der Merwe and Olivier Onregmatige Daad 341; Klopper 1995 De Rebus 101 - 102.
24. See Van der Merwe and Olivier Onregmatige Daad 340 - 341 who have long advocated such an approach.
25. Van der Merwe and Olivier Onregmatige Daad 342; Burchell Principles of Delict 244.
26. Burchell Principles of Delict 244.
28. 1964 Acta Juridica 82. See also McKerron 1971 SALJ 443.
30. As Boberg 1975 SALJ 332 realises. See also Boberg 1960 SALJ 447; Davel Skadevergoeding aan Afhanklikes 82; Dendy 1990 SALJ 155.
31. This is also the point of view of Conradie 1966 THRHR 61; Van der Merwe 1971 De Rebus 309 at 311; Davel Skadevergoeding aan Afhanklikes 82.
32. Davel Skadevergoeding aan Afhanklikes 82.
33. It is not clear who this member is. See the covering letter of the Natal Law Society dated 13 February 1995.
34. See also Grindrod Cotts Stevedoring (Pty) Ltd v Brock's Stevedoring Services 1979 1 SA 239 (D).
35. [1989] 1 AC 328. The decision was applied by the Court of Appeal in Drew v Abbassi and Packer, unreported, 24 May 1995.
37. Van der Merwe and Olivier Onregmatige Daad 301 - 302. See also Lincoln v Ramsaran 1962 3 SA 374 (D); Becker v Kellerman 1971 2 SA 172 (T); Wapnick v Durban City Garage 1984 2 SA 414 (D).
38. McKerron Law of Delict 307. See also Du Raan v Maritz 1973 4 SA 39 (SWA).
40. I.e. the defendant denies that he or she was negligent, but if he or she was and the defendant has consequently to pay the entirety of the established general damages, then on so doing the defendant will be entitled to recover from the plaintiff in his or her personal capacity such percentage thereof as relates to the plaintiff's negligence.
41. See Rondalia Bank Bpk v Pieter Nel Motors (Edms) Bpk 1979 4 SA 467 (T) at 472E; Erasmic v Botha 1990 3 SA 230 (C). Supreme Court Rule 24(4) makes specific provision for bringing a conditional counter-claim.
42. 1956 THRHR 192. See also Van der Merwe and Olivier Onregmatige Daad 301.
43. See also De Polo v Dreyer 1990 2 SA 290 (W).
47. Subsection (9) deals with orders as to cost where judgment was given in favour of one or more joint wrongdoers.
49. The proviso is a reformulation of section 2(5) of the Act.
50. McKerron Law of Delict 309.
51. Suid-Afrikaanse Onderlinge Brand- en Algemene Versekeringsmaatskappy Bpk v Van den Berg 1976 1 SA 602 (A).
52. Burchell Principles of Delict 242.
54. Burchell Principles of Delict 242.
55. See Suid-Afrikaanse Onderlinge Brand- en Algemene Versekeringsmaatskappy Bpk v Van den Berg 1976 1 SA 602 (A); Grindrod Cotts Stevedoring (Pty) Ltd v Bock's Stevedoring Services 1979 1 SA 239 (D); Govender v SA Stevedores Services Co Ltd 1981 1 SA 353 (D); Callender-Easby v Grahamstown Municipality 1981 2 SA 810 (E).
59. See also Van der Merwe and Olivier Onregmatige Daad 302.
60. Van der Merwe and Olivier Onregmatige Daad 302.
61. Per Mahomed J (as he then was) in Randbond Investments v FPS (Northern Region) (Pty) Ltd 1992 2 SA 608 (W) at 619E - G. See also Burchell Principles of Delict 240 - 241.
62. McKerron Law of Delict 309. See also Van der Merwe and Olivier Onregmatige Daad 302.
66. McKerron Law of Delict 310.
68. Law of Delict 312. See also Van der Merwe and Olivier Onregmatige Daad 303 - 304; Kotzé 1956 THRHR 193; and Millner 1956 Annual Survey 193 - 194 who declares: "But the draftmanship of this portion of the Act is in parts unfortunate. The chief offender is subsection (7)(a) of section 2 which in a single sentence consisting (in the English version) of 223 words, immobilizes the wretched reader in a glutinous jelly of subordinate clauses."
69. McKerron Law of Delict 313.
73. See paragraphs 3.65 et seq below.
76. See, however, Prinsloo v Du Preez NO 1965 4 SA 300 (W) at 302, where Vieyra J said that, although subsection (10) seemed prima facie to refer to an agreement entered into prior to the event causing the damage, he was not prepared to rule that this was necessarily so. See also Windrum v Neunborn 1968 4 SA 286 (T).
78. McKerron Law of Delict 316.
79. See also New Zealand Law Commission Preliminary Paper 23.
82. Under Professor Andrew Burrows.
83. Feasibility Investigation.
84. Feasibility Investigation 16 - 23.
85. Feasibility Investigation 24 - 30.
86. Defined as a wrongdoer who is only trivially blameworthy relative to the fault of other wrongdoers: Feasibility Investigation 18.
87. Feasibility Investigation 30 - 33.
88. Feasibility Investigation 33 - 35.
89. Williams Joint Torts and Contributory Negligence 403 - 405.
90. Professor Williams' views on this question were incorporated (applying his suggested draft bill almost word for word) in the Irish Civil Liability Act 1961. More recently he received support from Professor John Fleming 1976 California LR 239 at 250 - 256, 1979 Hastings LJ 1465 at 1482 - 1485, 1491 -1494; and by Professor Richard Wright 1992 Memphis State LR 45 at 71 - 84. The same approach has also been advocated, while rejecting full proportionate liability, by the New Zealand Law Commission Preliminary Paper and the Law Reform Commission of British Columbia Shared Liability Chapter III.
91. Common Law Team Feasibility Investigation 26.
92. That view is, however, taken by most of the law reform bodies that have looked at this issue. For example, the Law Reform Commission of New South Wales Contribution among wrongdoers: Interim report on solidary liability LRC 65 1990 para 25 says: "It must be recognised that in many cases a plaintiff's fault is different in kind to that of a defendant. A plaintiff's fault need not be negligent in the sense that it exposes others to harm, it might consist merely of a failure to take adequate care to safeguard his or her own interests (for example the failure to wear a seat belt). While some reduction for contributory negligence can still be justified to provide an incentive for accident prevention, it might well be unfair in such a case to equate the plaintiff's conduct with that of a negligent defendant for the purpose of apportioning an insolvent defendant's "share" of liability". See also the Ontario Law Reform Commission's Report Contribution among wrongdoers and contributory negligence 1988 47; New Zealand Law Commission Preliminary Paper para 169.
93. Feasibility Investigation 27.
94. Although, admittedly, this system seems to have worked satisfactory in Ireland since 1961: Feasibility Investigation 27, 75.
95. Preliminary Paper 53 - 54. For a recent criticism of the New Zealand Law Commission's views, see A-M Simpson "Apportionment or compensation? Joint and several liability reconsidered" 1995 NZLJ 407.
96. Common Law Team Feasibility Investigation 52.
97. McKerron Law of Delict 317. See also Grindrod Cotts Stevedoring (Pty) Ltd v Brock's Stevedoring Services 1979 1 SA 239 (D).
98. McKerron Law of Delict 318. See also Prinsloo v Du Preez NO 1965 4 SA 300 (W).
99. In terms of section 3 of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 the provisions of the Motor Vehicle Accidents Act 84 of 1986 are suspended. The Motor Vehicle Accidents Act 84 of 1986 is therefore not repealed. But see section 27 of the Road Accident Fund Bill, 1995, published as General Notice 436 of 1995 in the Government Gazette of 26 May 1995.