Govender v Moobley and Another (315/2005, 8682/2008) [2014] ZAKZPHC 2 (22 January 2014)

Govender v Moobley and Another (315/2005, 8682/2008) [2014] ZAKZPHC 2 (22 January 2014)

The court held that the second defendant, by failing to raise the statutory bar at the earliest opportunity and by participating in the proceedings—including consenting to consolidation, attending pre-trial conferences, and issuing third party notices—acquiesced in the plaintiff's action. The purpose of the Apportionment of Damages Act, to avoid multiplicity of actions, was not undermined, and the second defendant suffered no prejudice. The consolidation of the actions and the conduct of the parties rendered the requirement for notice under the Act unnecessary. Accordingly, the special plea was dismissed.

Citation
[2014] ZAKZPHC 2
Parties
Plaintiff: Yugusan Govender; Defendant: Cleophas Shane Moodley; Defendant: Road Accident Fund
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
22 January 2014
Case Number
315/2005, 8682/2008
Procedural Posture
Civil Trial / Determination of Second Defendant's First Special Plea in Consolidated Action
Outcome
Second defendant's first special plea dismissed with costs, including costs of two counsel.
Judges
Vahed
Legal Topics
Apportionment of Damages Act, Joint Wrongdoers, Acquiescence, Statutory Bar, Consolidation of Actions
Civil Procedure Delict Apportionment of Damages Act Joint Wrongdoers Acquiescence Statutory Bar Consolidation of Actions

Case Brief

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Parties

Yugusan Govender

Plaintiff

Cleophas Shane Moodley

Defendant

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Determination of Second Defendant's First Special Plea in Consolidated Action

Legal Issues

  1. 1 Whether the plaintiff's claim against the second defendant is statutorily barred for failure to comply with section 2(4)(a) of the Apportionment of Damages Act, 34 of 1956.
  2. 2 Whether the second defendant acquiesced in the proceedings by failing to raise the special plea at the earliest opportunity.
  3. 3 Whether consolidation of the actions and subsequent conduct rendered notice under the Act unnecessary.

Ratio Decidendi

The court held that the second defendant, by failing to raise the statutory bar at the earliest opportunity and by participating in the proceedings—including consenting to consolidation, attending pre-trial conferences, and issuing third party notices—acquiesced in the plaintiff's action. The purpose of the Apportionment of Damages Act, to avoid multiplicity of actions, was not undermined, and the second defendant suffered no prejudice. The consolidation of the actions and the conduct of the parties rendered the requirement for notice under the Act unnecessary. Accordingly, the special plea was dismissed.

Court Disposition

Second defendant's first special plea dismissed with costs, including costs of two counsel.

Orders

  • The second defendant's first special plea is dismissed.
  • The second defendant is ordered to pay the costs of the plaintiff, including costs consequent upon the employment of two counsel.