Introduction
5.1 Most of the submissions dealt with the defective enforcement procedure against third parties in the Magistrate's Courts in that no judgement binding on a third party can be obtained in this way. As the Natal Law Society shows, this problem relates not so much to the Act, but to the problem caused by the lack, in the Magistrate's Court Rules, of third party procedures similar to those in the Supreme Court. In the consequence, even if a finding is made subsequent to the filing of a section 2(2)(b) notice one still has to sue to recover. Further, as is pointed out by the Natal Law Society, even in the Supreme Court the third party is not a co-defendant in the fullest sense.
5.2 In the Supreme Court a joint wrongdoer not sued by a plaintiff may in practice be brought before that court in the same action in one of two ways: Either he or she intervenes voluntarily, or he or she is joined at the instance of the defendant(s). A joint wrongdoer not originally sued, who exceeds to a request to intervene, must bring an application to court on notice to all third parties, which, if successful, renders him or her a defendant in the action. On the other hand, a joint wrongdoer, joined at the instigation of an existing defendant becomes a third party in terms of Rule 13. Joinder in terms of Rule 13 in the Supreme Court is not by application through motion proceedings, but such a third party is automatically joined after a third party notice is served on him or her together with the relevant particulars of claim and copies of all pleadings filed to date.
5.3 The gist of Rule 13 is contained in subrules (1) and (2) which read as follows:
13.(1) Where a party in any action claims-
such party may issue a notice, hereinafter referred to as a third party notice, as near as may be in accordance with Form 7 of the First Schedule hereto, which notice shall be served by the Sheriff.
(2) Such notice shall state the nature and grounds of the claim of the party issuing the same, the question or issue to be determined, and any relief or remedy claimed. In so far as the statement of the claim and the question or issue are concerned, the rules with regard to pleadings and to summonses shall mutatis mutandis apply.
5.4 A third party may therefore be joined either at the instigation
of a defendant who claims to be entitled to a contribution from such third
party or who seeks an indemnification in respect of such relief claimed
by the plaintiff from such defendant;(1)
or at the instigation of a defendant if the question of issue between them
is substantially the same as that involved between the plaintiff and the
defendant.(2)
5.5 Rule 13 is complementary to, but does not supersede, the machinery
laid down in section 2 of the Act,(3) which
section, it has been held,(4) contemplated
a procedure of the kind regulated by the rule. The difference lies, inter
alia, in the form of relief which can be sought.(5)
Where in terms of section 2 of the Act action has been instituted against
two or more joint wrongdoers, or where a joint wrongdoer who was not sued
by the plaintiff initially, intervenes in the action pursuant to a notice
having been given to him or her in terms of section 2(2), the court may
order such joint wrongdoers to pay any damages awarded to the plaintiff
either jointly or severally(6) or in such
proportions as the court may deem just and equitable.(7)
On the other hand when a litigant joins a third party by serving a notice upon him in terms of Rule 13 such third party does not become a joint defendant vis-a-vis the plaintiff and the court cannot give a judgement against the third party for the payment of a sum of money in respect of the amount being claimed in the action, but can merely make a declaratory order apportioning the degree of fault between the various wrongdoers. This was held in Hart v Santam Insurance Co Ltd,(8) purportedly following Shield Insurance Co Ltd v Zervoudakis.(9)
5.6 The rule makes no provision for a judgment sounding in money in
favour of one alleged wrongdoer against the other.(10)
A defendant who issues a notice under the rule against a third party is,
accordingly, not entitled to claim a judgment in its favour in a specified
sum of money as determined by the court.(11)
This does not, however, mean that a third party can be joined in order
to obtain a declaratory order which will be of academic interest only.(12)
5.7 After service of a third party notice such third party becomes a party
to the action(13) and he may thereafter
file pleadings(14) and may himself issue
a third party notice.(15) The court may
even make an order of cost against such third party despite the fact that
the rule makes no express provision for such an award.(16)
5.8 A plaintiff may also issue a third party notice in terms of the rule.(17)
The plaintiff is not, however, entitled to compel further particulars from
a third party whom the plaintiff has joined, because there is no lis
between the plaintiff and such third party.(18)
5.9 In his submission Mr GM Bernstein of Livingston Leandy Inc recommends the inclusion of the following clause (c) in Rule 13(1) as a solution to the above problem:
"or (c) that the provisions of the Apportionment of Damages Act may be relevant"
5.10 This inclusion would not necessarily open the door for a court to grant a judgement sounding in money in favour of one wrongdoer against another. The solution seems rather to lie in amending the Act. The Commission would welcome proposals in this regard.
Rule 28(2) of the Magistrate's Court
5.13 The problem under discussion is even more unsatisfactorily entertained
in the Magistrate's Court since the rules contain no provision corresponding
with Supreme Court Rule 13, nor is there a rule sanctioning the use of
a conditional counter claim. In the Magistrate's Court the defendant must
necessarily therefor employ the provisions of Rule 28(2) in terms of which
he or she is obliged to bring an application consisting of notice of motion
supported by affidavits covering all the necessary allegations in order
to affect such a joinder.(19) Once a joinder
has been effected in terms of Magistrate's Court Rule 28(2), the magistrate
is then requested either to implement the provisions of section 2(8)(a)
of the Act,(20) or to apply section 2(6)(a)
of the Act.(21)
5.14 Rule 28(2) of the Magistrate's Court reads as follows:
(2) The court may, on application by any party to any proceedings, order that another person shall be added either as a plaintiff or applicant or as a defendant or respondent on such terms as may be just.
5.15 The rule is wide enough to embrace an application by a defendant to add another person as a defendant, even where the plaintiff and the proposed co-defendant object thereto. However, this does not encompass a power to compel a plaintiff to claim relief against a defendant whom he or she has not sued and does not wish to sue.(22) It has been held(23) that the powers conferred upon a magistrate in terms of this subrule give a magistrate a discretion to permit the joinder of a defendant notwithstanding that the person sought to be joined does not have a direct and substantial interest in the proceedings and notwithstanding that his or her rights would not be affected by the judgement of the court if he or she were not joined. The test to be applied is that of convenience, especially in order to save costs or to avoid multiplicity of actions.
5.16 The effect of joinder under Rule 28(2) is, however, much more limited
in scope than the joinder of a third party under Rule 13 of the Supreme
Court. The finding of the magistrate is not binding on the party joined
under Rule 28(2), and such joinder does not have the effect of avoiding
multiplicity of actions.(24) At best the
finding of the magistrate would encourage a settlement out of court of
a subsequent action by the plaintiff against the party who has been joined
under Rule 28(2).(25)
5.17 Most submissions dealt with the lack, in the Magistrates'Court rules,
of a third party procedure similar to that in the Supreme Court. As the
Law Society of the Orange Free State(26)
puts it:
(D)aar (is) nie goeie skakeling in Landdroshof-aangeleenthede tussen Wet 34 van 1956 en die Landdroshof-Reëls nie. Daar is naamlik nie 'n Reël wat ooreenstem met Hooggeregshof Reël 13 nie en dit skep 'n groot leemte in Landdroshof-litigasie, veral ten aansien van die voeging van 'n mededader wat nie 'n party tot die aanvanklike geding is nie. Hofreël 28(2) het ernstige tekortkominge en bied ontoereikende skakeling tussen die Wet en die Reëls. Dit is dus noodsaaklik dat 'n Reël wat ooreenstem met Hooggeregshof Reël 13 in die Landdroshof-Reëls ingevoeg word. Dit sal waarskynlik ook voordelig wees indien die Landdroshof-Reëls aangepas word om dit duidelik te stel dat 'n voorwaardelike teeneis in die Landdroshof ontvanklik is.
5.18 It is obvious that this rule is a far cry from the detailed provisions of its counterpart in the Supreme Court.
The Commission's recommendation
5.19 The Commission therefore recommends that the Rules Board should seriously consider introducing a third party procedure similar to that contained in Rule 13 of the Supreme Court for the Magistrates' Court.
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Footnotes:
3. Erasmus Superior Court Practice B1-107. See also Shield Insurance Co Ltd v Zervoudakis 1967 4 SA 735 (E); Swart v Scottish Union & National Insurance Co Ltd 1971 1 SA 384 (W) at 395H; Hart v Santam Insurance Co Ltd 1975 4 SA 275 (E) at 277C.
4. Gross v Commercial Union Assurance Co Ltd 1974 1 SA 630 (A); Rondalia Assurance Corporation v Page 1975 1 SA 708 (A).
5. Erasmus Superior Court Practice B1-107.
6. Grobbelaar v Federated Employers Insurance Co Ltd 1974 2 SA 225 (A).
7. Section 2(8)(a); Du Raan v Maritz 1973 4 SA 39 (SWA).
9. 1967 4 SA 735 (E). In that case it was held that where a third party had been joined in terms of Rule 13 in an action for damages the prescriptive period provided for in section 11(2) of the Motor Vehicle Insurance Act 29 of 1942 did not apply to such third party as no compensation was being claimed from him in terms of section 11(1) of that Act. But compare SA Onderlinge Brand- en Algemene Versekering Maatskappy v Van den Berg 1976 1 SA 602 (A).
10. Erasmus Superior Court Practice B1-109.
11. Hart v Santam Insurance Co Ltd 1975 4 SA 275 (E) at 277H; Du Raan v Maritz 1973 4 SA 39 (SWA) at 41E.
12. Rabie v Kimberley Munisipaliteit 19914 SA 243 (NC).
13. Under certain circumstances a party also has the option of consolidating the actions: Nel v Silicon Smelters (Edms) Bpk 1981 4 SA 792 (A).
16. Robertson v Durban Turf Club 1970 4 SA 649 (N); Gross v Commercial Union Assurance Co Ltd 1974 1 SA 630 (A); Rondalia Assurance Corporation v Page 1975 1 SA 708 (A) at 721E.
17. Montana Steel Corporation v New Zealand Insurance Co Ltd 1975 4 SA 339 (W).
18. Geduld Lands Ltd v Uys 1980 3 SA 335 (T).
19. Car-to-Let (Pty) Ltd v Addisionele Landdros 1973 2 SA 99 (O).
20. But see Honey MVA Practice 262 who argues that "such a request must be doomed to fail unless of course the magistrate concerned is unaware of those authorities or unless the appellate division pronounces positively on the applicability of section 2(8) in such a situation".
21. Honey MVA Practice 263 argues that a joinder in the Magistrate's Court with a view to thereby implementing the provisions of section 2(6)(a) of the Act would also be futile as a magistrate does not appear to have jurisdiction to make a declaratory order.
22. See further Rubens 1976 De Rebus 115; Wessels 1976 De Rebus 374; Honey 1981 De Rebus 525.
23. Khumalo v Wilkins 1972 4 SA 470 (N) at 473, 475.
24. Jones and Buckle Civil Practice of the Magistrates' Courts Volume II 248.
25. Wessels 1976 De Rebus 374; contra Rubens 1976 De Rebus 115.
26. The submission was prepared by Dr DP Honey and Mr JJ Maree. The Association of Law Societies associates itself with this submission.