Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd

Four crossed and restrictively marked cheques were drawn in favour of the respondent (Lloyd-Gray Lithographers) by its debtors. The cheques were unendorsed. One S unlawfully obtained possession of the cheques and deposited them into his account with Nedbank. Nedbank, as collecting bank, collected payment for S's benefit despite the absence of endorsement. The drawee banks honoured the cheques, discharging both the cheques and underlying debts. The respondent lost its rights against the drawers. Both S (who had stolen the cheques) and Nedbank (who negligently collected payment) had the financial means to satisfy claims. The respondent sued Nedbank in delict for the full face value of the cheques.

• Whether a collecting bank and a thief who independently cause the same damage are concurrent wrongdoers liable in solidum at common law
• Whether the plaintiff's claim against one wrongdoer must be reduced by the value of its claim against another concurrent wrongdoer when calculating damages
• Whether the Apportionment of Damages Act 34 of 1956 applies where one wrongdoer acts wilfully (dolus) and another negligently (culpa)
• Whether the plaintiff's right of action against the thief constitutes a relevant asset in the plaintiff's estate that should reduce the claim against the negligent bank

The appeal was dismissed with costs. The judgment of the Witwatersrand Local Division (Boruchowitz J) was confirmed, holding that the respondent's claim against Nedbank should not be reduced by the value of its claim against S, and that the respondent could recover the full amount of its loss from Nedbank.

Concurrent wrongdoers at common law, whose independent wrongful acts cause the same indivisible damage, are liable in solidum to the plaintiff. This means the plaintiff may sue any one concurrent wrongdoer for the full amount of the loss, regardless of whether the wrongdoers' fault took different forms (dolus or culpa). When calculating the plaintiff's damages, the plaintiff's right of action against other concurrent wrongdoers must be disregarded and does not constitute a relevant asset that reduces the claim against the defendant sued. The absence of a right to contribution between concurrent wrongdoers inter se does not affect their liability in solidum to the plaintiff.

The Court expressly declined to decide whether the Apportionment of Damages Act 34 of 1956 applies where one wrongdoer acts wilfully and another negligently, though Scott JA expressed discomfort with the notion that a thief could claim contribution from a negligent bank. The Court also noted that the historical distinction between actio furti and actio legis Aquiliae had disappeared by the time of De Groot, with both being actions for damages. Scott JA observed that a concurrent wrongdoer guilty of culpa who pays in full should have recourse against a concurrent wrongdoer guilty of dolus, applying the principle a fortiori from cases involving wrongdoers both guilty of culpa. The Court criticized Holscher v Absa Bank 1994(2) SA 667 (T) as wrongly decided on the calculation of damages.

This case is significant in South African delictual law for clarifying the principles governing concurrent wrongdoers and liability in solidum. It confirms that where independent wrongful acts by different parties cause the same indivisible damage, each wrongdoer may be sued for the full amount regardless of the form their fault takes (intentional vs negligent). The judgment establishes that when calculating a plaintiff's damages, the plaintiff's right of action against other concurrent wrongdoers is not treated as an asset that reduces the claim. This protects plaintiffs from having to sue multiple defendants to recover their full loss. The case is particularly important in banking law contexts involving negligent collection of cheques, confirming that banks cannot reduce their liability by pointing to the plaintiff's rights against thieves or fraudsters.