Nomhle Percy Notshele obo Samkelo v Transnet Freight Rail Limited and Another (2561/2016) [2018] ZAGPPHC 819 (29 September 2018)

Nomhle Percy Notshele obo Samkelo v Transnet Freight Rail Limited and Another (2561/2016) [2018] ZAGPPHC 819 (29 September 2018)

The court held that the grounds of exception raised by the City of Tshwane were not matters for determination at the exception stage. The court found that the third party notice was not vague and embarrassing and did not lack necessary averments to sustain an action. The statutory duties and potential liability of the municipality, as well as joint wrongdoing, are issues to be determined at trial, not at the exception stage. The intergovernmental relations framework was found irrelevant as there was no dispute between organs of State requiring such resolution. Accordingly, the exception was dismissed.

Citation
[2018] ZAGPPHC 819
Parties
Plaintiff: Nomhle Percy Notshele obo Samkelo; Defendant: Transnet Freight Rail Limited; Respondent: City of Tshwane Metropolitan Municipality
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 September 2018
Case Number
2561/2016
Procedural Posture
Civil Procedure / Exception to Third Party Notice
Outcome
Exception dismissed with costs, including costs of two counsel where employed.
Judges
Mdalana-Mayisela
Legal Topics
Third Party Procedure, Exception Procedure, Duty of Care, Negligence, Apportionment of Damages
Civil Procedure Delict Third Party Procedure Exception Procedure Duty of Care Negligence Apportionment of Damages

Case Brief

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Parties

Nomhle Percy Notshele obo Samkelo

Plaintiff

Transnet Freight Rail Limited

Defendant

City of Tshwane Metropolitan Municipality

Respondent

Procedural Posture

Civil Procedure / Exception to Third Party Notice

Legal Issues

  1. 1 Whether the third party notice discloses a cause of action against the City of Tshwane Metropolitan Municipality.
  2. 2 Whether the third party notice is vague and embarrassing.
  3. 3 Whether the statutory duties of the municipality envisage liability for damages in this context.

Ratio Decidendi

The court held that the grounds of exception raised by the City of Tshwane were not matters for determination at the exception stage. The court found that the third party notice was not vague and embarrassing and did not lack necessary averments to sustain an action. The statutory duties and potential liability of the municipality, as well as joint wrongdoing, are issues to be determined at trial, not at the exception stage. The intergovernmental relations framework was found irrelevant as there was no dispute between organs of State requiring such resolution. Accordingly, the exception was dismissed.

Court Disposition

Exception dismissed with costs, including costs of two counsel where employed.

Orders

  • The exception is dismissed with costs, including the costs of employment of two counsel where employed.