ABSA Brokers (Pty) Ltd v RMB Financial services and Others (332/08) [2009] ZASCA 83; 2009 (6) SA 549 (SCA) ; [2009] 4 All SA 463 (SCA) (20 August 2009)

ABSA Brokers (Pty) Ltd v RMB Financial services and Others (332/08) [2009] ZASCA 83; 2009 (6) SA 549 (SCA) ; [2009] 4 All SA 463 (SCA) (20 August 2009)

The Supreme Court of Appeal held that the interpretation in Becker v Kellerman was erroneous and inconsistent with the scheme and purpose of the Apportionment of Damages Act. The Act requires that any joint wrongdoer who was not joined in the original action must be given notice or, failing that, leave of the court must be obtained before instituting proceedings for contribution. The appellant failed to give such notice to the respondents and did not obtain leave of the court, thereby precluding the present action for contribution. The exception was correctly upheld. The court further clarified that the Act's procedural requirements apply regardless of whether the respondents were alleged...

Citation
[2009] ZASCA 83
Parties
Appellant: ABSA Brokers (Pty) Ltd; Respondent: RMB Financial Services; Respondent: RMB Asset Management (Pty) Ltd; Respondent: Momentum Distribution Services; Respondent: Momentum Group Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 August 2009
Case Number
332/08
Procedural Posture
Civil Appeal / Appeal From Exception Upheld in High Court, Pretoria
Outcome
Appeal dismissed with costs, save for leave to amend particulars of claim.
Judges
N Z Mhlantla, R W Nugent, Mlambo, Mhlantla, Leach, Bosielo
Legal Topics
Apportionment of Damages Act, Joint Wrongdoers, Exception Procedure, Leave to Amend, Notice Requirements
Civil Procedure Delict Apportionment of Damages Act Joint Wrongdoers Exception Procedure Leave to Amend Notice Requirements

Case Brief

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Parties

ABSA Brokers (Pty) Ltd

Appellant

RMB Financial Services

Respondent

RMB Asset Management (Pty) Ltd

Respondent

Momentum Distribution Services

Respondent

Momentum Group Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Exception Upheld in High Court, Pretoria

Legal Issues

  1. 1 Whether the appellant was required to give notice to the respondents of the original action in terms of section 2(2) of the Apportionment of Damages Act.
  2. 2 Whether leave of the court in terms of section 2(4) was a precondition to instituting action for contribution against the respondents.
  3. 3 Whether the interpretation in Becker v Kellerman regarding joint wrongdoers applies to the present case.

Ratio Decidendi

The Supreme Court of Appeal held that the interpretation in Becker v Kellerman was erroneous and inconsistent with the scheme and purpose of the Apportionment of Damages Act. The Act requires that any joint wrongdoer who was not joined in the original action must be given notice or, failing that, leave of the court must be obtained before instituting proceedings for contribution. The appellant failed to give such notice to the respondents and did not obtain leave of the court, thereby precluding the present action for contribution. The exception was correctly upheld. The court further clarified that the Act's procedural requirements apply regardless of whether the respondents were alleged...

Court Disposition

Appeal dismissed with costs, save for leave to amend particulars of claim.

Orders

  • Save as set out in paragraph (b) the appeal is dismissed with costs.
  • The order of the court below is varied by the addition of the following sentence: 'The plaintiff is granted leave to amend its particulars of claim within 21 days of the date of this order.'