Smits v Member of the Executive Council: Police, Roads and Transport, FS (1657/2012) [2014] ZAFSHC 75 (12 June 2014)

Smits v Member of the Executive Council: Police, Roads and Transport, FS (1657/2012) [2014] ZAFSHC 75 (12 June 2014)

The court held that it is impermissible to grant a final declaratory order that the third party is solely liable to the plaintiff at the defendant's behest, especially on a default basis without evidence. Rule 13 does not create a lis between the plaintiff and the third party, and only allows for apportionment of fault or indemnification between the defendant and third party. Granting the relief sought would risk prejudicing the plaintiff and could result in conflicting orders. The interests of justice require that findings regarding liability be made together at trial, not piecemeal or by default. The application was dismissed and costs awarded to the plaintiff.

Citation
[2014] ZAFSHC 75
Parties
Plaintiff: Magdalena Smits; Defendant: Member of the Executive Council: Police, Roads and Transport, FS; Third Party: Tefo Ephraim Gopane
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 June 2014
Case Number
1657/2012
Procedural Posture
Civil Application / Application for Default Judgment Against Third Party Under Rule 13
Outcome
Application dismissed; costs awarded to plaintiff.
Judges
A. Kruger
Legal Topics
Third Party Proceedings, Default Judgment, Apportionment of Damages Act, Uniform Rule 13
Civil Procedure Third Party Proceedings Default Judgment Apportionment of Damages Act Uniform Rule 13

Case Brief

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Parties

Magdalena Smits

Plaintiff

Member of the Executive Council: Police, Roads and Transport, FS

Defendant

Tefo Ephraim Gopane

Third Party

Procedural Posture

Civil Application / Application for Default Judgment Against Third Party Under Rule 13

Legal Issues

  1. 1 Whether the defendant is entitled to a declaratory order that the third party is solely liable to the plaintiff by default.
  2. 2 Whether Rule 13 permits the court to grant final relief against the third party in favour of the plaintiff at the defendant's behest.
  3. 3 Whether the relief sought prejudices the plaintiff or risks conflicting orders.

Ratio Decidendi

The court held that it is impermissible to grant a final declaratory order that the third party is solely liable to the plaintiff at the defendant's behest, especially on a default basis without evidence. Rule 13 does not create a lis between the plaintiff and the third party, and only allows for apportionment of fault or indemnification between the defendant and third party. Granting the relief sought would risk prejudicing the plaintiff and could result in conflicting orders. The interests of justice require that findings regarding liability be made together at trial, not piecemeal or by default. The application was dismissed and costs awarded to the plaintiff.

Court Disposition

Application dismissed; costs awarded to plaintiff.

Orders

  • The application is dismissed.
  • The defendant is ordered to pay the plaintiff's costs of this application.