Makhanya v University of Zululand - LexisNexis South Africa

More documents

Recommendations

Info

18TWO CLAIMS ARISING FROM COMMON FACTS[40] It is not unusual for two rights to be asserted arising from the samefacts. That is what occurred in a leading case that came before this court,which I find to be most instructive in the present context.[41] In Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)(Pty)Ltd 26 the plaintiff said that it had two distinct claims arising from preciselythe same facts. The facts were briefly these. A company (the plaintiff)contracted with a firm of professional engineers (the defendant) to provideprofessional services. The company was not satisfied with the way in whichthe engineers performed their services. The facts were capable of founding aclaim for breach of contract. But the company chose instead to sue theengineers in delict for negligence. That was a novel claim, because adelictual right arising in those circumstances had not been recognised in lawbefore. The defendant opposed the claim on the basis that the claim was badin law because the right that was asserted did not exist.[42] The facts that were relied upon in support of the delictual claimcorresponded with the facts that would have supported a claim in contract.What the court was being asked to do was to recognise that the company hadtwo separate claims arising from the same set of facts. This is how the courtexpressed the question that was before it: 27‘The only infringement of which the [company] complains is the infringement of the[engineers’] contractual duty to perform specific professional work with due diligence;and the damages which the [company] claims, are those which would place it in theposition it would have occupied if the contract had been properly performed. In261985 (1) SA 475 (A).27At 499D-E.
19determining the present appeal we accordingly have to decide whether the infringementof this duty is a wrongful act for purposes of Aquilian liability.’[43] As it turns out the court declined to recognise the right that wasasserted (the delictual right) and the claim was thus dismissed as being badin law, but that is not important for present purposes. What is important isthat the plaintiff was entitled to ask a court to exercise its power to considerand rule upon the claim notwithstanding that the company might equallyhave founded a claim on another right.[44] I think it is useful for present purposes to consider what might havehappened in that case had there been a special court with exclusivejurisdiction to deal with claims for the enforcement of contracts. Would ithave made any difference to whether the high court had the power toconsider the claim that was before it?[45] I think it is patent that the high court would not have declined toconsider the claim (a claim that asserted a right in delict) only because thecompany had an alternative claim arising from the same facts (a claim thatasserted a right in contract) enforceable in another court. The claim that wasbefore it was a claim in delict and it fell within the power (and the duty) ofthe high court to consider that claim (if only to dismiss it). That there wasanother claim enforceable in another court was irrelevant. That can be testedby asking what would have happened had the two claims been broughtsimultaneously (one in either court). Clearly neither could have been met bya plea of lis pendens. Nor, if one was dismissed in one court (which is what
Page 1 and 2: THE SUPREME COURT OF APPEALREPUBLIC
Page 4 and 5: 4[4] Whatever explanation is given
Page 6 and 7: 6ratio for the order that was made.
Page 8 and 9: 8ordinary power to consider claims
Page 10 and 11: 10[20] Much the same happened to Ms
Page 12 and 13: 12excluding the ordinary power of t
Page 14 and 15: 14[31] The disposal of a jurisdicti
Page 16 and 17: 16Training, Eastern Cape, 23 and th
Page 20 and 21: 20occurred), could a plea of res ju
Page 22 and 23: 22present purposes. Upon that suppo
Page 24 and 25: 24The Second Unsound Proposition: A
Page 26 and 27: 26[62] The approach taken by the co
Page 28 and 29: 28should be the subject only of cla
Page 31 and 32: 31court found itself able to find t
Page 33 and 34: 33what constitutes the ratio of a c
Page 35 and 36: 35[88] While the ratio of a decisio
Page 37 and 38: 37CONCLUSIONS[94] To summarise, I a
Page 39 and 40: 39agreement had not been establishe

Makhanya v University of Zululand - LexisNexis South Africa

Create successful ePaper yourself

Delete template?

Save as template?