CHAPTER 4

THE GENERAL PROVISIONS OF THE ACT

Introduction

4.1 Chapter III reads as follows:

CHAPTER III

General

4.2 This Chapter is fortunately shorter and more understandable than the previous chapter. We will mainly look at sections 4, 6 and 7 of the Act as the other provisions of chapter III need not be amended or only require consequential changes.

Section 4(1)(b) of the Act

4.3 It has been argued in the past that the Act applies to damage caused by breach of a term of a contract (express or implied) which imports a duty to be careful, so that the breach amounts to 'fault' in terms of section 1(1)(a) of the Act. To support this view, reliance has been placed on section 4(1)(b) of the Act as it is said this subsection indicates a legislative belief that the Act does apply to breaches of contract: otherwise the provision would have been unnecessary.(1)

4.4 The Commission has expressed itself in favour of making the Act applicable to claims for contractual damages.(2) If that suggestion is followed, then section 4(1)(b) of the Act would make it possible to nullify the operation of the Act by the inclusion of a simple exclusion clause in a contract. This would defeat the whole purpose of making the Act applicable to claims for breach of contract. Even if it is decided that the Act does not apply to breach of contract, then one has to agree with the Natal Bar Council that section 4(1)(b) is incomprehensible.(3) The section should therefore be repealed.

Collisions or accidents at sea

4.5 The Act does not apply to collisions or accidents at sea(4) as these are regulated by Part IV of Chapter V of the Merchant Shipping Act, 1951. According to the Merchant Shipping Act, 1951 the recovery of damages for loss caused by a collision at sea depends on the existence of fault,(5) and the following three situations are possible:

  1. Where there is no fault on either side - that is, where the collision was an inevitable accident. In these circumstances no claim is maintainable by either ship, and the loss in each case lies where it falls.(6)
  2. Where there is fault on one side. The innocent party is entitled to full compensation for all loss.(7)
  3. Where both parties are at fault. Section 255 of the Merchant Shipping Act, 1951 provides that where damage or loss is caused by the fault of two or more ships, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was at fault. If it is not possible to establish different degrees of fault, the liability shall be apportioned equally.(8)

4.6 If loss of life or personal injuries is suffered by a person on board a ship owing to the fault of that ship and of any other ship, the liability of the owners of the ships involved shall be joint and several.(9) However, the liability of an owner of a ship for any loss or damage of any kind caused without his or her actual fault or privity is limited.(10)

4.7 The Commission is not convinced that it is necessary to make the Apportionment of Damages Act, 1956 applicable to collisions or accidents at sea. Section 255 of the Merchant Shipping Act, 1951 adequately regulates the apportionment of damages resulting from accidents or collisions at sea relative to the degree in which each ship was at fault. Although it is accepted that the equal division rule could work hardship, this rule only comes into operation in those instances where it is not possible to establish different degrees of fault.

Section 108 of the South Africa Act, 1909

4.8 The South African Act, 1909 was an Act of the Parliament of the United Kingdom. It provided for the then colonies of the Cape of Good Hope, Natal, the Orange River Colony and the Transvaal to become united in a legislative union under one Government under the name of the Union of South Africa. All of the provisions of that Act have been repealed.(11)

4.9 The reference to section 108 of the South Africa Act, 1909 in section 4(2) of the Apportionment of Damages Act, 1956 should therefore be disregarded and the Act can be amended accordingly.

Section 3 of the Administration of Justice Proclamation, 1919 of South-West Africa

4.10 South-West Africa became independent on 21 March 1990 and a new state Namibia was born.

4.11 Section 3(1) of the Administration of Justice Proclamation, 1919 (Proclamation No. 21 of 1919) of South-West Africa created a superior court known as the High Court of South-West Africa for the territory. The rest of section 3 of the Proclamation dealt with the salaries of the judges, the seat of the court, and related matters. Subsections 3(1) - (5), (7), (8), and (10) of the Proclamation were repealed, while subsections (6) and (9) were amended, by the Supreme Court Act, 1959.

4.12 The reference to section 3 of the Administration of Justice Proclamation, 1919 in section 4(2) of the Apportionment of Damages Act, 1956 should therefore likewise be disregarded and the Act can be amended accordingly.

Application of Act to South-West Africa

4.13 As was stated above, Namibia (the old South-West Africa) is of course now independent.(12)

The whole of this section can therefore be repealed.

The title of the Act

4.14 It seems that the Act was not very aptly named. The court does not apportion damages: What it does is apportion the fault and then reduce the damages.(13)

The heading and Section 7 of the Act will have to be amended to take this fact into account.

The Commission's recommendation

4.15 In the light of the above, the Commission therefore recommends the following amendments to Chapter III of the Act:

Words underlined indicate insertions and words in square brackets in bold type [bold] indicate omissions from the text of the Act.

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Footnotes:

1. Boberg Law of Delict 713. See also Van der Merwe and Olivier Onregmatige Daad 168.

2. See paragraph 2.29 above.

3. There are to date no reported decisions interpreting this subsection.

4. Section 4(2). See also Van der Merwe and Olivier Onregmatige Daad 178, 307.

5. Bamford Law of Shipping 62.

6. This is the English law adopted in certain cases in the Cape by Act 8 of 1879. The Roman-Dutch rule (which had itself departed from the Roman law) was that the loss should be equally borne by both ships: Smith v Davis (1878) 8 Buch 66 at 71; Tychsen v Evans (1880) 1 EDC 28 at 42. The whole matter is exhaustively treated in Voet 9.2.15. See also Huber 3.44.II - 14; Van der Keesel 813 - 815.

7. Smith v Davis (1878) 8 Buch 66 at 72. Also see Voet 9.2.15; Van der Linden 4.5.7. In Trimmel v Williams 1952 3 SA 786 (C), the skipper of a fishing-boat was held negligent in firing at a seal which had appeared between two boats, the bullet having ricocheted off the seal and killed the skipper of the other boat.

8. This enacts the English rule of apportionment: Grime Shipping Law 170-1. The Roman-Dutch law is said to have not been established: Smith v Davis (1878) 8 Buch 66 at 72. But see Voet 9.2.15; Van der Linden 4.5.7; Van der Keesel 816. See also Bamford Law of Shipping 65 footnote 5. The equal division rule also applies in the United States of America: Baer Admiralty Law 221 - 222; Gilmore and Black Law of Admiralty 492 - 493.

9. Section 256(1) of the Merchant Shipping Act, 1951.

10. Section 261(1) of the Merchant Shipping Act, 1951.

11. By, inter alia, section 120 of Act 32 of 1961, section 1 of Act 26 of 1969, section 1 of Act 43 of 1977, and section 86 of Act 53 of 1979.

12. This was also submitted by the GCB.

13. Boberg Law of Delict 659; Neethling, Potgieter and Visser Deliktereg 149.