Picbel Groep Voorsorgfonds (In liquidation) v Somerville and Related Matters

Several pension funds suffered losses of approximately R946 million due to the wrongful removal of surplus assets through the so-called Ghavalas Option. The funds instituted Aquilian damages claims against Alexander Forbes Financial Services (Pty) Ltd as one of several alleged joint wrongdoers. Alexander Forbes gave notice to other alleged joint wrongdoers under s 2(2)(b) of the Apportionment of Damages Act 34 of 1956. The claims against Alexander Forbes were settled for R325 million, coupled with a cession to the funds of Alexander Forbes’ statutory rights of contribution against the notified joint wrongdoers. The funds then sued those respondents in the South Gauteng High Court as cessionaries of Alexander Forbes’ contribution claims. The respondents raised exceptions, contending that the settlement was not a ‘full settlement’ as contemplated in s 2(12) of the Act and that no right of contribution capable of cession had arisen.

The appeal was dismissed with costs, including the costs of two counsel. Nedbank Limited was ordered to pay the costs, including the costs of two counsel, incurred by Mitchell Cotts Pension Fund (in liquidation) and Lucas South Africa Pension Fund (in liquidation) in respect of Nedbank’s withdrawn cross-appeal.

This judgment clarifies the interpretation of s 2(12) of the Apportionment of Damages Act and confirms that a settlement need not cover the plaintiff’s full loss to give rise to a right of contribution. It affirms that statutory contribution claims are independent, transferable rights that may be ceded to plaintiffs. The decision promotes settlements with individual wrongdoers while preserving proportional liability among joint wrongdoers, thereby advancing the remedial purpose of the Act.