This blog was co-authored by Talia Rajah, Candidate Attorney.

The July 2023 High Court case of Gavon Anton Broadhurst v Gearhouse Splitbeam (Pty) Limited and D P Hussey considered whether an application for leave, in terms of section 2(4)(a) of the Apportionment of Damages Act 1956, can be granted after the institution of the further action in which that joint wrongdoer has been sued.

The plaintiff instituted two separate delictual actions against two sets of alleged joint wrongdoers, arising out of the same incident where he suffered brain injuries sustained as a result of a mirror ball falling on his head from the ceiling whilst at a music production.

The first action was instituted around January 2020, two and a half years after the event and was against three defendants, namely the owner of the theatre, the event management company, and the company that the plaintiff contended rigged the equipment for the show. During the exchange of pleadings, the defendants joined two further parties by way of third-party notices which were the theatre equipment specialist company and the civil and structural consulting engineer. The plaintiff was therefore made aware later that the further two parties joined by the defendants could be potential wrongdoers.
With this knowledge, a second action was instituted by the plaintiff on 24 March 2020 against those two parties.

Section 2(2) of the Act provides:

Notice of any action may at any time before the close of pleadings in that action be given –
(a) by the plaintiff;
(b) by any joint wrongdoer who is sued in that action, to any joint wrongdoer who is not sued in that action, and such wrongdoer may thereupon intervene as a defendant in that action.

In terms of section 2(2) of the Act, it was common cause that the plaintiff failed to give notice to the second defendant before the close of pleadings in the first action, despite becoming aware of his existence, identity, and possible blameworthiness.

Section 2(4)(a) of the Act says:
If a joint wrongdoer is not sued in an action instituted against another joint wrongdoer and no notice is given
to him in terms of paragraph (a) of subsection 2, the plaintiff shall not thereafter sue him except with the leave of the court on good cause shown as to why notice was not given as aforesaid.

A section 2(4)(a) application for leave to sue was brought by the plaintiff. The second defendant opposed this application on the basis that leave cannot be sought after instituting an action is a nullity and it cannot be cured after the event by utilising section 2(4)(a). The plaintiff contended that the leave of the court does not need to be sought prior to the action being instituted.

The court conducted a statutory interpretation of section2(4)(a). ‘Thereafter’ used in section 2(4)(a) was interpreted to mean after the period of time where the plaintiff failed to give notice before close of pleadings as set out in section 2(2)(a) of the Act.

The court interpreted section 2(4)(a) to allow leave to be sought after instituting the action. This was due to the fact that there would be considerably narrow prospects of leave being sought if it is required before. The plaintiff can motivate as to “why such leave is only being sought after the institution of further action rather than before”. Furthermore, non-compliance with section 2(4) does not result in a nullity.

The court noted that if leave is only sought after the action has been instituted, the following factors are to be taken into account in assessing whether good cause has been shown:

1. Is there potential prejudice that the wrongdoer may incur;
2. What is the extent of the prejudice that has been exacerbated by the time of the s2(4) application; and
3. The fact that leave in terms of s2(4) if sought after rather than before issuing summons.

Showing good cause simply means to explain as to why notice was not given timeously.

In this case, the plaintiff explained that failure to provide notice was due to their legal representative’s lack of familiarity with the Act. The court accepted this reasoning. However, despite the fact that the plaintiff became aware of the requirement to give notice as well as getting new attorneys, he did not take the necessary steps to remedy his noncompliance but further argued that his previous attorneys were of the belief that the section was abrogated by disuse. The court viewed this in itself was insufficient to establish good cause being shown. The court however considered the fact that the plaintiff had brought an application to consolidate the two actions which would consequently address the prejudice caused by there being two separate actions.

The court, in coming to its decision that good cause was shown, took a flexible approach having regard to:

1. The weaknesses of the plaintiff’s arguments were considered;
2. The second defendant is a possible joint wrongdoer who was already compelled to participate in the first litigation;
3. The possibility of the plaintiff being left remediless against the second defendant in the event that leave was not granted.

On that basis, leave was granted in terms of s2(4) of the Act.