Third-Party Notices: Navigating the Fine Line Between Contractual and Delictual Liability

Often, more than one Defendant is sued for damages that a Plaintiff has sustained, whether jointly or in the alternative. Uniform Rule 13 allows a Defendant to issue a third-party notice against another Defendant where the former believes it is, in law, entitled to a contribution or indemnification from the latter.

This scenario unfolded in a case instituted in the High Court of South Africa, Gauteng Division, Johannesburg. The Plaintiff was the owner of a Bell Motor Grader (“the grader”), which it leased to the first Defendant for a monthly fee of R107,635.00. On 17 May 2017, the grader was involved in a collision with a dump truck owned by or under the control of the second Defendant.

The Plaintiff instituted a contractual claim against the first Defendant arising from the first Defendant’s failure to return the grader in the same condition as it had been delivered, apart from ordinary wear and tear. In the alternative, the Plaintiff instituted a delictual claim against the second Defendant, alleging that the second Defendant’s employee, acting within the course and scope of his employment, was solely responsible for the collision.

The first Defendant issued a third-party notice against the second Defendant, claiming that the second Defendant was a joint wrongdoer. In turn, the second Defendant excepted to the third-party notice, claiming that the claim against the first Defendant was purely contractual and the first Defendant sought indemnification or a contribution from the second Defendant in delict, rendering the third-party notice bad in law.

An exception to a pleading, like a third party notice, may only be taken when it strikes at the root of the cause of action pleaded. The excipient has a duty to persuade the court that the pleading is excipiable on any interpretation that can be attached to it. An overly technical approach should be avoided because it destroys the usefulness of the exception procedure, which is to weed out cases without legal merit.

In upholding the exception of the second Defendant, the court found that joint wrongdoers are persons who are jointly and severally liable in delict and no provision is made in our law of contract for the concept of a joint wrongdoer.

Jean-Paul Rudd

Partner | Attorney

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