Broadhurst v Gearhouse Splitbeam (Pty) Limited and another

[2023] JOL 59968 (GJ)

While attending a production at a theatre, the applicant sustained injury when a mirror-ball suspended from the ceiling fell onto his head. He instituted action claiming damages from the theatre owner, the event management company and the company responsible for rigging of equipment. It was only during the exchange of pleadings in that action in March 2020 that the plaintiff came to learn of the present defendants, who were the theatre equipment specialist company and the civil and structural consulting engineer (Mr Hussey) who had attended to the erection of the mirror-ball. A second action was then instituted against the said defendants. The institution of two actions against two sets of alleged joint wrongdoers arising out of the same incident and for the recovery of the same damages in delict rendered section 2(1) of the Apportionment of Damages Act, 1956 applicable. Section 2(1) provides that where it is alleged that two or more persons are jointly or severally liable in delict to a third person for the same damage, such joint wrongdoers may be sued in the same action. In terms of section 2(2) of the Act, Mr Hussey as a joint wrongdoer, was entitled, at any time before the close of pleadings, to notice of the first action. That notice was not given by the applicant. In terms of section 2(4)(a), the applicant could then not sue Mr Hussey except with the leave of the court on good cause shown as to why notice was not given. Based thereon, Mr Hussey raised a special plea to the second action, that the applicant was precluded in terms of section 2(4)(a) from instituting the present proceedings, which were said to be unlawful and a nullity.

The applicant thus brought the present application seeking the court’s leave, in terms of section 2(4)(a), to proceed with the second action. Mr Hussey argued that the court’s leave could not be sought after the action had already been instituted.

Held that the court was required to undertake an interpretation of section 2(4)(a), applying the established rules of interpretation. What section 2(4)(a) provided was that unless a plaintiff obtained the leave of the court on good cause shown, he could not, after having failed to give the requisite notice in terms of section 2(2)(a) before close of pleadings, sue the joint wrongdoer, the section did not necessarily provide that such leave to sue must be obtained before the joint wrongdoer was so sued. Pointing to the difficulties in an interpretation as advocated by Mr Hussey, the court favoured an interpretation that section 2(4)(a) did permit an application in terms thereof to be brought after the further action had already been instituted. The applicant was not consequently precluded from seeking such leave of the court in terms of section 2(4)(a).

While the applicant had not shown good cause as to why notice was not given to Mr Hussey as a joint wrongdoer before the close of pleadings, the court exercised its wide discretion to grant leave in terms of section 2(4)(a), permitting the applicant to proceed with the further action against the joint wrongdoer.