H Jordaan v The Bloemfontein Transitional Local Authority and Johannes Jacobus Rautenbach

The appellant (plaintiff) instituted an action in the Bloemfontein magistrate's court claiming R73,701.56 in damages after his parked motor vehicle was damaged. The plaintiff's vehicle was stationary in a demarcated parking place in Voortrekker Street, Bloemfontein, when it was struck by one or both vehicles involved in an earlier collision between a vehicle driven by the first defendant's employee and a vehicle driven by the second defendant. The parties agreed to a separation of issues - first liability, then quantum. The following facts were common cause: (1) plaintiff's vehicle was parked in a demarcated parking space; (2) a collision occurred between the first and second defendants' vehicles; (3) directly thereafter one or both defendants' vehicles collided with plaintiff's parked vehicle; (4) the first defendant's driver was acting in the course and scope of employment; (5) the plaintiff did not know which defendant was liable. The defendants were joined pursuant to section 42(1) of the Magistrates' Courts Act. After argument, the magistrate ruled that the defendants had the duty to begin leading evidence. Both defendants declined to lead evidence and were deemed to have closed their cases. The plaintiff then closed his case without leading evidence.

• Whether a magistrate's finding on liability only, where the issue has been separated from quantum, is appealable under section 83(b) of the Magistrates' Courts Act 32 of 1944
• Whether a defendant's concession on quantum by letter converts a non-appealable order into an appealable one
• Whether the res ipsa loquitur maxim applied in circumstances where the cause of the collision was known
• Whether an inference of negligence could be drawn against defendants from common cause facts where both defendants failed to lead evidence
• Whether the 'Galante rule' applied to enable the court to select the inference most favorable to the plaintiff where defendants with exclusive knowledge failed to testify

The appeal succeeded with costs. The judgment of the court a quo was set aside and replaced with an order that no order be made in respect of the proceedings except that the appellant (first defendant in the court a quo) must pay the costs thereof. This effectively restored the magistrate's finding that both defendants were jointly and severally liable for the plaintiff's damages.

The binding legal principles established are: (1) A magistrate's order determining liability only, where that issue has been separated from quantum in terms of rule 29(4) of the Magistrates' Courts Rules, does not constitute "a rule or order having the effect of a final judgment" under section 83(b) of the Magistrates' Courts Act 32 of 1944 and is therefore not appealable; (2) A defendant's concession on quantum, whether by letter or in heads of argument, does not convert a non-appealable interlocutory order on liability into an appealable final judgment; (3) Where multiple defendants have exclusive knowledge of material facts and both fail to lead evidence after being deemed to have closed their cases, the court is entitled under the Galante rule to select from among possible inferences the one most favorable to the plaintiff; (4) Where common cause facts establish that a collision occurred between two vehicles which then struck the plaintiff's stationary vehicle, and both defendants fail to adduce evidence, the more natural and plausible inference is that both drivers were negligent, resulting in joint and several liability; (5) The res ipsa loquitur maxim does not apply where the cause of the occurrence is known, even if the precise mechanics or fault are unclear.

Farlam JA made several obiter observations: (1) The court noted that section 87(d) of the Magistrates' Courts Act, which empowers the court of appeal to "take any other course which may lead to the just, speedy and as much as may be inexpensive settlement of the case," does not extend to converting a non-appealable order into an appealable one; (2) The court observed that abandonments of judgments can occur both under section 83 and "outside the section," and that an abandonment outside the section (with an undertaking not to plead res judicata) does not render a judgment non-appealable, though the court in its discretion would likely refuse costs of appeal; (3) The court referenced the English case Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 (CA) approvingly, noting Denning LJ's observation that where two drivers collide and neither gives evidence, courts "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"; (4) The court noted that it is trite law that a 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" (citing Govan v Skidmore and Ocean Accident and Guarantee Corporation Ltd v Koch); (5) The court observed that section 42(1) creates a procedure for joinder but does not create liability that does not otherwise exist.

This case is significant in South African civil procedure and delictual law for several reasons: (1) It confirms and applies the principle from Steenkamp v SABC regarding the non-appealability of interlocutory orders on liability where issues are separated; (2) It clarifies that concessions on quantum do not convert non-appealable orders into appealable ones; (3) It demonstrates the continued application and scope of the Galante rule in situations where multiple defendants with exclusive knowledge fail to lead evidence; (4) It illustrates the proper application of section 42(1) of the Magistrates' Courts Act, which permits joinder of defendants in the alternative where uncertainty exists as to which is liable; (5) It provides guidance on drawing inferences from common cause facts in the absence of evidence, particularly in multi-defendant negligence cases; (6) It distinguishes between the application of res ipsa loquitur (which requires the cause to be unknown) and situations where inferences of negligence can be drawn from known facts combined with defendants' failure to testify; (7) It affirms that pleadings are not evidence and that courts must base findings on admissible evidence or properly drawn inferences from common cause facts.