REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number:
248/2002
Reportable

In the matter between:

H JORDAAN                                                                       APPELLANT

and

THE BLOEMFONTEIN TRANSITIONAL
LOCAL AUTHORITY                                      FIRST RESPONDENT
JOHANNES JACOBUS RAUTENBACH   SECOND RESPONDENT

CORAM:

FARLAM, MTHIYANE JJA et MOTATA AJA

HEARD:

6 NOVEMBER 2003

DELIVERED:
28 NOVEMBER 2003

SUMMARY:
Civil procedure – whether magistrate’s finding that defendants were liable
for plaintiff’s damages appealable when first defendant concedes by letter and in counsel’s heads
that plaintiff’s allegations re quantum correct – whether res ipsa loquitur maxim applied – whether
inference could be drawn against defendants from common cause facts where no evidence led.
________________________________________________________

JUDGMENT
________________________________________________________

FARLAM JA

[1] In this matter the appellant instituted an action in the magistrate’s court
Bloemfontein against the first respondent, the Bloemfontein Transitional
Local Council, as first defendant, and one Johannes Jacobus Rautenbach as
second defendant, suing them in the alternative as well as jointly and
severally. He claimed R73 701-56 as damages, following a collision in which
his motor vehicle was extensively damaged and which resulted, so he alleged,
from an earlier collision which took place between two motor vehicles, one
which was driven by an employee of the transitional local authority while the
other was driven by the second defendant. In what follows I shall refer to the
parties as they were in the magistrate’s court.
[2] At the commencement of the trial the parties agreed that there was to be
a separation of issues and that the trial court was to be asked first to
pronounce upon the question as to whether either or both of the defendants
was or were liable for the damages suffered by the plaintiff, whereafter, if
there was a finding on this issue in favour of the plaintiff, the issue as to the
quantum of the plaintiff’s damages was to be considered, both defendants
having put the plaintiff to the proof of the extent of his damages.
[3] The trial court was informed by the parties that the following facts were
regarded by the parties as being common cause: viz
(1)
that at the time of the collision the plaintiff’s vehicle was parked
in a demarcated parking place in Voortrekker Street,
Bloemfontein;

(2)
that Voortrekker Street at that point is divided into three lanes,
which carry traffic in a westerly direction;
(3)
that a collision occurred between the first and second defendants’
respective vehicles and directly thereafter and as a result of that
collision one or both of the first and second defendants’ vehicles
collided with the plaintiff’s parked vehicle;
(4)
that the driver of the first defendant’s vehicle had been driving it
in the course and scope of his employment with the first
defendant with the result that if he was negligent the first
defendant would be vicariously liable therefor; and
(5)
that the plaintiff did not know which of the first and second
defendants was liable for the damage occasioned to his vehicle,
the two defendants having been joined in the action pursuant to
the provisions of section 42(1) of the Magistrate’s Courts Act 32
of 1944, as amended.1 In what follows I shall refer to Act 32 of
1944 as ‘the Act’.
[4] The plaintiff’s attorney thereafter requested the court to rule on the
question as to who had to commence leading evidence. After this point was
argued the court ordered that the duty to begin rested on the defendants in the

1 Section 42(1) of the Magistrates’ Courts Act 32 of 1944 reads as follows:
‘Several defendants may be sued in the alternative or both in the alternative and jointly in one action,
whenever it is alleged by the plaintiff that he has suffered damages and that it is uncertain which  of the
defendants is in law responsible for such damages: Provided that on the application of any of the defendants
the court may in its discretion order that separate trials be held, or make such other order as it may deem just
and expedient.’

order in which they were cited in the summons. The legal representatives for
the first and second defendant thereupon said that they would not lead
evidence at that stage but that they were placing it on record that this did not
mean that the defendants were closing their cases. After reference was made
to the decision in S v Magoda 1984(4) SA 462(C), the magistrate held that he
interpreted the actions of the defendants as amounting for all practical
purposes as if they had closed their cases. The plaintiff then closed his case
without leading any evidence.
[5] In his judgment the magistrate held that although none of the parties
had placed viva voce  evidence before the court it was clear from the facts
which were common cause that the maxim res ipsa loquitur applied and that
there was accordingly a prima facie case against the defendants which was not
answered, with the result that he was obliged to find that the two defendants
were jointly and severally liable for the damage suffered by the plaintiff.
[6] The first defendant appealed against the magistrate’s judgment to the
Orange Free State Provincial Division. Before the appeal was heard it
conceded the quantum of the plaintiff’s claim by letter and again in its
advocate’s heads of argument.
[7] The issues argued before the court a quo were: (1) whether the
magistrate’s judgment was appealable; and (2) whether the magistrate was
correct in holding, on the basis of the maxim res ipsa loquitur, in the absence
of any evidence from any of the parties that the first defendant’s employee

was negligent.
[8] The judgment of the court a quo was delivered by Danzfuss, AJ with
whom Hancke J concurred. On the appealability point Danzfuss AJ referred to
section 87(d) of the Act, which deals with the powers of the High Court sitting
on appeal from a judgment of a magistrate’s court in a civil matter and which
(as far as is material) provides:
‘The court of appeal may –
…
(d)
take any other course which may lead to the just, speedy and as much as
may be inexpensive settlement of the case ….’
He pointed out that the courses referred to in the Act are not limited to courses
which ensure the speedy disposal of the appeal but include those which may
lead to the speedy disposal of the case. He referred, inter alia, to the decision
of the Natal Provincial Division in Durban City Council v Kistan 1972(4) SA
465(N) and said that it had been held in that case that the abandonment of an
order for costs by letter, and not in terms of the rules, had brought the lis
between the parties to an end, so that an appeal against the cost order could no
longer proceed as there was no longer a dispute between the parties.
[9] The court a quo held that section 87(d) of the Act empowered the court
of appeal to amend the order of the magistrate on appeal so as to bring it in
line with the present state of affairs, to wit that there were no longer any
disputes between the plaintiff and the first defendant, but expressed the view

that it was not necessary for the court to do so and that it could merely
proceed to hear the appeal without altering the order. The appealability point
was accordingly decided in favour of the first defendant.
[10] Turning to the merits, Danzfuss AJ held that the magistrate had erred in
holding that the maxim res ipsa loquitur (the occurrence speaks for itself)
applied. He referred to the decision of this Court in Madyosi and Another v SA
Eagle Insurance Co Ltd 1990(3) SA 442(A), where Milne JA said that he had
some doubt whether in a case where a bus left the road and overturned and it
was known that one of the bus’s tyres had burst the maxim applied. Applying
the reasoning in that case to the present, Danzfuss AJ pointed out that it is
known that one or both of the first and second defendants’ vehicles collided
with the plaintiff’s vehicle, where it was stationary in a demarcated parking
area. The cause of this collision is also known: it was an earlier collision
between the first and second defendants’ vehicles. He said that no evidence
was led which indicated that either of the two drivers involved in that earlier
collision was negligent with regard to that collision and that the occurrence
itself did not justify such an inference.
[11]   Danzfuss AJ acknowledged that the facts relating to the first collision
are within the exclusive knowledge of the defendants and that the plaintiff
clearly has no personal knowledge about them, with the result that much less
evidence is necessary to make out a prima facie case, but there must be
sufficient evidence. He referred to the decision of this Court in Mazibuko v

Santam Insurance Co Ltd and Another 1982(3) SA 125(A), on which the
magistrate had strongly relied in his judgment. In Mazibuko’s case the
plaintiff sued two defendants, as was done in this case, in the alternative and
also in the further alternative, (under Rule 10(3) of the Uniform Rules of
Court, which are similarly worded to section 42(1) of the Act) jointly and
severally, for damages sustained by her as a result of a collision between two
vehicles. Each of them denied liability (as was the case here) and said that the
driver in respect of whom the other defendant was liable had been negligent
(an averment made here by the second defendant and, in the alternative to a
general denial, also by the first defendant). At the end of the plaintiff’s case
there was no evidence as to exactly where or how the collision took place and
the plaintiff had not established a prima facie case that her injuries were
sustained as a result of the first defendant’s driver. She also had not
established that her injuries were caused by the negligence of the second
defendant’s driver. She had led evidence, however, which established prima
facie that either the first defendant’s driver or the second defendant’s driver or
both had been negligent and that such negligence had caused her injuries. The
trial court thereupon granted absolution from the instance as against both
defendants.
[12] An appeal to this Court was allowed. Corbett JA, with whom Jansen,
Kotze, Diemont and Trengove JJA concurred, held that where there was
evidence upon which a court applying its mind reasonably could hold that it

had been established that either the first defendant or the second defendant or
both of them were legally liable (even though it was uncertain as to which of
the alternatives was the correct one) the court hearing the matter should not
grant absolution. Corbett JA said (at 135 E-G):
‘In such a case, which is in effect a tripartite suit between three adversaries, it is, in my
opinion, in the interests of justice that the case should be decided on the evidence which all
the parties might choose to place before the Court, provided, as I say, that the plaintiff,
when presenting his case, has laid the necessary foundation of showing, prima facie, that
one or other or both of the defendants are legally liable. To hold otherwise would, in many
instances, defeat the object of the Rule which permits a plaintiff who is uncertain as to the
legal responsibility of two defendants to sue them both in the alternative and, in the further
alternative,  jointly and severally.’
[13] Danzfuss AJ distinguished the Mazibuko case on the basis that it was
concerned with the situation at the end of the plaintiff’s case, when the test
was whether there was sufficient evidence on which a reasonable man could
decide in favour of the plaintiff, while the test to be applied at the end of the
defendant’s case was whether a reasonable man should find for the plaintiff.
He found that there was no evidence placed before the court on the strength of
which a reasonable man should find in favour of the plaintiff. He said that it
was clear that one of the two drivers (the first defendant’s driver and the
second defendant) or both of them was or were negligent but the plaintiff had
not succeeded in showing which one was negligent or that both were
negligent. He stated that it was very possible that only one of the two was

negligent and it was not clear which one. In the circumstances the appeal was
allowed with costs and the finding of the magistrate was set aside and
replaced by an order of absolution from the instance.
[14] Mr Colditz, who appeared before us for the plaintiff, contended that the
court a quo had erred in two respects. It should have found that the
magistrate’s finding was not appealable and alternatively, that the magistrate’s
finding on the merits should have been confirmed.
[15] On the appealability point he referred to the decision of this Court in
Steenkamp v South African Broadcasting Corporation 2002(1) SA 625 (SCA),
in which it was held that a magistrate’s order on the issue of liability only,
where that issue has been separated from the issue of quantum in terms of rule
29(4) of the Magistrates’ Courts Rules, was not appealable. He submitted that
the principle laid down in that case still applies in this matter, despite the first
defendant’s concession by letter and in its counsel’s heads of argument before
the court a quo, and that the first defendant should have waited until the
magistrate gave judgment against it before appealing.
[16] In my view this contention is correct. Section 83(b), the provisions of
which were considered by this Court in Steenkamp v South African
Broadcasting Corporation, supra, provides that a party to any civil suit or
proceeding in a magistrate’s court may appeal to the provincial or local
division of the High Court having jurisdiction against ‘any rule or order made
in such suit or proceedings and having the effect of a final judgment’. The

finding made by the magistrate in this case was, on the authority of the
Steenkamp decision, not a rule or order having the effect of a final judgment
and the first defendant’s concession regarding the quantum of the plaintiff’s
claim did not convert it into such a rule or order. The court a quo’s reliance on
the decision in Durban City Council v Kistan, supra, was misplaced. In my
view it misread the judgment in that case because the abandonment of the
costs order under consideration there was by notice and was held at (469 H) to
be one made under section 83 of the Act. Reference was made (at 469 D-G) to
Scrooby v Engelbrecht 1940 TPD 100 where it was pointed out that
abandonments can take place under section 83 as well as outside the section.
Where an abandonment of a judgment takes place outside the section and the
party so abandoning undertakes not to take the objection of res judicata in
further proceedings on the same cause of action it was envisaged that an
appeal against the judgment so abandoned could proceed but it was said (at
105) that the court in the exercise of its discretion would probably refuse the
appellant his costs of appeal. In other words an  abandonment of a judgment
‘outside the section’ does not render the judgment non-appealable as the court
a quo appears to have thought. I also do not think that the power conferred on
the court of appeal by section 87(d) of the Act ‘to take any other course which
may lead to the just, speedy and as much as may be inexpensive settlement of
the case’ extends to doing something to a non-appealable order to make it
appealable. In the circumstances I am of the view that the court a quo’s

decision that the magistrate’s finding in this case was appealable was incorrect
and that it should have made no order in the case save for an order that the
first defendant should pay the costs.
[17] The legal representatives of the parties requested us, if we were to hold
that in favour of the plaintiff on the appealability point, to express our views
on the merits of the case in view of the fact that the matter was fully argued.
They pointed out that this Court expressed its views on the magistrate’s ruling
on liability in Steenkamp’s case, supra. In my view this is an appropriate case
for this request to be granted. I accordingly now turn to consider the question
as to whether the magistrate’s finding was correct.
[18] Mr Reinders, who appeared on behalf of the first defendant, contended
that the court a quo correctly distinguished this Court’s decision in Mazibuko
v Santam Insurance Co Ltd and Another, supra. He submitted also that what
was described in the passage from Corbett JA’s judgment which I have quoted
above as the ‘tripartite suit between three adversaries’ had at the end of the
case to be decided ‘on the evidence which all the parties might choose to place
before the Court’. In this case there was, he contended, no evidence placed
before the trial court, pleadings not being evidence. He submitted further that,
as the court a quo had found, section 42(1) of the Act did not create liability
for a defendant which did not otherwise exist; it merely created a procedure
for the joinder of several defendants. He also contended that the court a quo’s
finding that the res ipsa loquitur maxim did not apply was correct.

[19] In my opinion the court a quo was correct in holding that the res ipsa
loquitur maxim did not apply. It overlooked, however, the fact that both
defendants, each of whom had exclusive knowledge as to what happened (as
opposed to the plaintiff who did not know how the two collisions occurred),
had both decided to place no evidence before the trial court and were,
correctly in my view, regarded as having closed their cases. The plaintiff had
succeeded in showing that one or both of the drivers concerned were
negligent. It is true that the plaintiff led no evidence but certain facts,
summarized in para [3] above, were common cause. The plaintiff presumably
had no other evidence to put before the court but the common cause facts gave
rise, in my view, to four possible inferences, viz: (a) neither driver was
negligent; (b) the first defendant’s driver was negligent; (c) the second
defendant was negligent; (d) both drivers were negligent.
[20] The failure by both defendants to lead evidence brings into play the
Galante rule, which was formulated by this Court in the decision of Galante v
Dickinson 1950(2) SA 460(A) at 465, as follows:
‘[W]here the defendant was himself the driver of the vehicle the driving of which the
plaintiff alleges was negligent and caused the accident, the court is entitled, in the absence
of evidence from the defendant, to select out of two alternative explanations of the cause of
the accident which are more or less equally open on the evidence, that one which favours
the plaintiff as opposed to the defendant.’
In considering which of the possible inferences is to be preferred in this case it

is trite law that the court may ‘by balancing probabilities select a conclusion
which seems to be the more natural, or plausible, conclusion from amongst
several conceivable ones, even though that conclusion be not the only
reasonable one’ (Govan v Skidmore 1952(1) SA 732 (N) at 734 C-D,
approved by this Court in Ocean Accident and Guarantee Corporation Ltd v
Koch 1963(4) SA 147(A), in which it was pointed out (at 159 C) that by
‘plausible’ is meant ‘acceptable, credible, suitable’). The application of the
Galante rule in this case means, in my judgment, that the more natural or
plausible inference was that both drivers were negligent.
[22] A situation similar to the present was considered by Denning LJ in
Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1
WLR 1472 (CA). This was a case where there was a collision in the centre of
a straight road at night. Both drivers were killed. It was held that, in the
absence of evidence enabling the Court to draw a distinction between the two
drivers, the inference to be drawn was that both were equally to blame. At
1476 Denning LJ said:
‘It is pertinent to ask, what would have been the position if there had been a passenger in
the back of one of the vehicles who was injured in the collision? He could have brought an
action against both vehicles. On proof of the collision in the centre of the road, the natural
inference would be that one or other or both were to blame. If there was no other evidence
given in the case, because both drivers were killed, would the court, simply because it
could not say whether it was only one vehicle that was to blame or both of them,  refuse to
give the passenger any compensation? The practice of the courts is to the contrary. Every

day, proof of the collision is held to be sufficient to call on the two defendants for an
answer. Never do they both escape liability. One or other is held to blame, and sometimes
both. If each of the drivers were alive and neither chose to give evidence, the court would
unhesitatingly hold that both were to blame. They would not escape simply because the
court had nothing by which to draw any distinction between them.’
[23] In my opinion the magistrate correctly held on the common cause facts
before him, read with the failure of both defendants to lead evidence, that both
defendants were jointly and severally liable for the plaintiff’s damages.
[24] The following order is made:
1.
The appeal succeeds with costs.
2.
The judgment of the court a quo is set aside and replaced by the
following:
‘Geen bevel word ten opsigte van hierdie verrigtinge gemaak nie
behalwe dat die appellant die koste daarvan moet betaal.’

……………..
IG FARLAM
JUDGE OF APPEAL
CONCURRING
MTHIYANE JA
MOTATA
AJA