REPORTABLE
CASE NO 257/98
IN THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
In the matter between:
NEDCOR BANK LTD
t/a NEDBANK
APPELLANT
v
LLOYD-GRAY LITHOGRAPHERS (PTY) LTD
RESPONDENT
CORAM
:
SMALBERGER, VIVIER, HARMS, SCOTT  et
ZULMAN JJA
HEARD
:
24 AUGUST 2000
DELIVERED:
8   SEPTEMBER 2000
Delictual action for damages against collecting bank - computation of
damages - bank and thief for whom amount of cheque collected concurrent
wrongdoers at common law - full amount of loss recoverable from bank.
J U D G M E N T

SCOTT JA/.....
SCOTT JA:
[1] The respondent instituted action for damages in the Witwatersrand
Local Division against the appellant (“Nedbank”).   In its particulars of claim the
respondent alleged that it was the true owner of four crossed and restrictively
marked cheques drawn in its favour for which payment had been collected by
Nedbank for the benefit of the latter’s client, one S, notwithstanding the absence
of any endorsement. The action was founded in delict and based on Nedbank’s
alleged wrongful and negligent conduct in collecting payment for the account of S
in such circumstances. (Cf Indac Electronics (Pty) Ltd v Volkskas Bank Ltd
1992(1) SA 783 (A).) The parties reached agreement on certain facts which were
recorded in a written statement. The question which in terms of Rule 33(4) the
Court a quo was called upon to decide was in essence whether the respondent’s
claim against Nedbank fell to be reduced by the amount which the respondent

could recover from S. Boruchowitz J held that the existence of the claim against S
did not preclude the respondent from proceeding against Nedbank for the full
amount. The judgment is reported sub nom Lloyd-Gray Lithographers (Pty) Ltd
v Nedcor Bank Ltd t/a Nedbank 1998(2) SA 667 (W). The present appeal is with
the leave of the Court a quo.
[2] Although the statement of agreed facts is quoted in the judgment of the
Court a quo, it is convenient to quote it again.
“1.
1.1
A company, Ogilvy-Mather Direct (Pty) Limited, and the First
National Bank of SA Limited, were indebted to pay certain
amounts to the [respondent].
1.2
In settlement of these debts they drew cheques which were
delivered to the [respondent].
1.3
The particulars of these cheques are as follows:
1.3.1 They were all made out in favour of the [respondent]
as payee.
1.3.2 They were all crossed and marked restrictively.
1.3.3 They were not endorsed.
1.4
The  [respondent]  thus became the true owner of the cheques
and no-one but the [respondent]  had the right to claim
payment of the cheques.

1.5
One S obtained possession of the cheques and
unlawfully caused them to be deposited into his account with
[Nedbank].
1.6
[Nedbank], as collecting bank, owed the [respondent], as true
owner of the cheques, a duty to take care that it, [Nedbank],
did not collect payment of the cheques for the benefit of
anyone but the [respondent].
1.7
[Nedbank], however, collected payment thereof for
S in circumstances which render [Nedbank] liable in delict to
the [respondent].
1.8
The banks on which they were drawn honoured the cheques in
circumstances which do not render these banks liable [to] the
[respondent] and consequently the cheques and the underlying
debts which they represented, were discharged.
1.9
The aforesaid depositing for collection of the cheques by or on
behalf of S and the unlawful appropriation by him
of the proceeds thereof were delicts committed by
S.
1.10
The [respondent] thus has claims in delict against both
S  and [Nedbank].
1.11
Both S and [Nedbank] have the financial means to

satisfy the claims aforesaid.
1.12
The prima facie quantum of the [respondent’s] loss suffered
as a result of the aforementioned delicts, is the aggregate total
of the face value of the cheques.
1.13
The [respondent] has instituted action against [Nedbank],
S is not a party to these proceedings.”

[3] The questions of law were formulated by the parties as follows:
“2.1
Is the [respondent’s] claim against S, at this point, a relevant asset
in the [respondent’s] estate?
2.2
If so, should the [respondent’s] claim against [Nedbank] be reduced
by the value of its claim against S?
2.3
On the premise that the value of the [respondent’s] claim against
S is equal to the amount of the [respondent’s] claim against
[Nedbank] and, if it be held that
(a)
The [respondent’s] claim against S is an asset in the
[respondent’s] estate; and
(b)
the [respondent’s] claim against [Nedbank] should be reduced
by the value of its claim against S.
does the [respondent’s] claim against [Nedbank] fall to be
dismissed?
2.4
What should the appropriate costs order be in respect of the
adjudication of the aforesaid questions of law?”
[4] In answer to these questions the Court a quo ruled:
“(1)
The [respondent’s] claim against S is not, at this point, a relevant
asset in the [respondent’s] estate.
(2)
The [respondent’s] claim against [Nedbank] does not fall to be
reduced by the value of the claim against S.

(3)
The [respondent’s] claim against [Nedbank] does not fall to be
dismissed.
(4)
The costs in respect of the adjudication of the aforesaid questions of
law should be paid by [Nedbank].”
[5] Before dealing with counsels’ submissions it is necessary to make
certain preliminary observations regarding the agreed facts. First, although  S  is not
expressly stated to have been guilty of intentional wrongdoing, viz to have stolen
the cheques, this was accepted by both counsel in the Court below which decided
the matter on that basis.   I shall do the same. Second, it is accepted that the
damage suffered by the respondent was the loss of its rights against the drawers of
the cheques. Those rights would be in respect of the cheques themselves as well
as the underlying debts for which they were given.  (See Volkskas Bank Bpk v
Bonitas Medical Aid Fund 1993(3) SA 779 (A) at 794 C - F.)    The prima facie
quantum of the loss so suffered by the respondent is in turn accepted as being the
aggregate of the face value of the cheques.   Third, it is accepted that the loss was

caused by the independent wrongful acts of S and Nedbank; in other words, the
independent wrongful conduct of each caused the same indivisible damage.
Furthermore, there was clearly an intact causal chain between the loss and
Nedbank’s negligence. It is perhaps  also worth recording at this stage that
whatever differences may have existed previously between the acto furti and the
actio legis Aquiliae with regard to what was recoverable, by the time De Groot
wrote his Inleidinge there was no difference of any consequence between them;
they were both actions for damages. (Smit v Saipem 1974(4) SA 918 (A) at 929 H.)
[6] The argument advanced on behalf of Nedbank was in essence the
following. In determining the loss suffered by the respondent in consequence of
Nedbank’s wrongful conduct, the right of the respondent to recover damages from
S was an asset in the respondent’s estate. Accordingly, so it was contended, the
respondent’s claim against Nedbank fell to be reduced by the value of that right and
as it was accepted that S had the financial means to satisfy the claim in full,

Nedbank was not indebted to the respondent. This seemingly ingenious argument
was based on the judgment of Van Dijkhorst J in Holscher v Absa Bank en ‘n
Ander 1994(2) SA 667 (T). The facts of  that case relevant to the issue of damages
may be stated shortly. The plaintiff was the true owner of a cheque which was
stolen by the managing director (“H”) of the plaintiff’s brokers (“Duerka”) who
deposited it in Duerka’s account with the defendant bank. Although the cheque was
crossed and marked “not transferable” the defendant bank nonetheless collected
the amount from the drawee bank and credited the account of Duerka which
thereafter went into liquidation.   The defendant bank was held to be liable, but in
determining the plaintiff’s damages the Court deducted from the amount claimed,
being the face value of the cheque, the sum which the plaintiff would have received
as a dividend had he proved a claim against Duerka in liquidation. The Court’s
reasoning in short was the following.  (a)   When determining the difference in the
value of the universitas of the plaintiff before and after the delict in question, being

the true measure of his damage, any right of action which the plaintiff acquired
against any other person was an asset in the former’s estate and had to be taken
into account (673 H - J).    (b) While the onus was on the plaintiff to prove its
damage, proof of the theft and the amount stolen would constitute prima facie
proof of the amount by which the plaintiff’s estate had been reduced.
Accordingly, it was up to the defendant to put facts before the Court to rebut this
inference (675 F - H).   (c)   No evidence was adduced to indicate what had
become of H or whether the plaintiff’s right of action against him had any value
(675H).    (d) There was, however, evidence as to the value of the plaintiff’s right
to recover from Duerka and this had to be deducted when determining the extent
of the plaintiff’s loss (675 I - J).
[7] Holscher’s case has been the subject of trenchant criticism. (See for
eg Dendy 1994   Annual Survey of South African Law 264 - 266;   Van der Linde
“The Liability of a Collecting Bank for Negligence” 1995 Juta’s Business Law

10.)    Assuming the bank and the thief  to have been jointly and severally liable, the
plaintiff would have been entitled to sue either wrongdoer for the full amount. On
this assumption the obvious flaw in the learned judge’s reasoning would have been
that if for the purpose of determining the plaintiff’s loss his right of recovery against
the other wrongdoer had to be taken into account, it would follow that if both had
financial means, each when sued could point to the plaintiff’s right to recover from
the other so that the plaintiff could recover from neither. Quite clearly, once it is
accepted that the full amount is recoverable from any one wrongdoer the plaintiff’s
right  to sue any other wrongdoer must be disregarded when determining his loss.
Although not entirely clear from the judgment, Van Dijkhorst J appears to have
proceeded on the basis that the bank and the thief were not liable in solidum by
reason of what was said to be a distinction between the actio furti against the thief
and the actio  legis Aquiliae against the bank with regard to what was recoverable
(at 673 G - H). As pointed out above, however, there is today no real difference

between them; they are both actions for damages.
[8] Counsel for the appellant acknowledged that if S and Nedbank were
“joint wrongdoers” within the meaning of the Apportionment of Damages Act 34
of 1956  (“the Act”) his argument could not be upheld. He submitted that they were
not “joint wrongdoers” as defined, as the Act had no application in a situation
where damage was caused by two or more wrongdoers acting wilfully or by one
wrongdoer’s negligence and the other’s wilfulness. In support of this contention
he pointed to the use of the word “fault” in sections 1 and 2 of the Act and strongly
criticised decisions such as Randbond Investments (Pty) Ltd v F P S (Northern
Region) (Pty) Ltd 1992(2) SA 608 (W) and Greater Johannesburg Transitional
Metropolitan Council v Absa Bank Ltd t/a Volkskas Bank 1997(2) SA 591 (W) in
which respectively a contribution and an apportionment of damages between wilful
wrongdoers causing the same damage had been awarded in terms of the Act.
Academic writers commenting on the judgment of the Court a quo are divided on

the issue. Dendy (“The Negligent Collection of  Cheques: Is Anything Claimable
from the Collecting Banker? 1998 (61) THRHR 512) and Neethling (“Deliktuele
Mededaderskap: Toepaslikheid op Persone  wat Opsetlik of  Nalatig Dieselfde
Skade Veroorsaak” 1998 (61) THRHR 518)  support the view that the Act is
applicable.   Potgieter (“Is ‘n Dief van Tjeks en die Nalatige Invorderingsbank
Mededaders ingevolge Die Wet op Verdeling van Skadevergoeding 34 van 1956?”
1998 (61)  THRHR 731)  takes the opposite view.
[9] I find it, however, unnecessary to decide whether the Act is
applicable in a case such as the present, although I must confess to baulking at the
notion of a thief such as S being entitled to recover a contribution from a collecting
bank for negligently failing to prevent him from achieving his objective, which
according to some of the views expressed would be the consequence of the Act
being applicable. Nonetheless, I shall assume without deciding that the Act is not
applicable.

[10] At common law a distinction is drawn between joint wrongdoers and
concurrent wrongdoers. (The latter are sometimes referred to as “several”
wrongdoers; see for eg Glanville Williams Joint Torts and Contributory
Negligence at 1.)   Joint wrongdoers are persons who, acting in concert or in
furtherance of a common design, jointly commit a delict. They are jointly and
severally liable. Concurrent wrongdoers , on the other hand, are persons whose
independent or “several” delictual acts (or omissions) combine to produce the same
damage. (See generally Van der Walt Delict para 60;    McKerron The Law of
Delict 7ed at 107 - 108.)    It was accepted by this Court in Union Government
(Minister of Railways) v Lee 1927 AD 202 that, subject always to there being an
intact chain of causation, one concurrent wrongdoer may be sued for the full
amount of the plaintiff’s loss, ie that concurrent wrongdoers are liable in solidum.
(See also Botes v Hartogh 1946 WLD 157 at 160; Hughes v Transvaal Associated
Hide and Skin Merchants (Pty) Ltd and Another 1955 (2) SA 176 (T) at 180 F -

H;   Windrum v Neunborn 1968 (4) SA 286 (T) at 287 H - 288 A.) A contrary
view,  viz that each concurrent wrongdoer should be answerable to the plaintiff in
proportion to the degree at which the former was at fault, is advanced by Kotzé in
his doctoral thesis  Die Aanspreeklikheid van Mededaders en Afsonderlike Daders
(1953) at 124 et seq.   Such an approach would require a plaintiff to sue each and
every concurrent wrongdoer in order to recoup his loss.   This strikes me as being
likely to cause undue hardship for a plaintiff.   The correctness of Lee’s case was,
however, not challenged in argument and despite Kotzé’s criticism I am
unpersuaded that it was wrongly decided. The distinction between joint and
concurrent wrongdoers is of course now largely academic in view of the provisions
of the Act which recognise and regulate a right of contribution between “joint
wrongdoers” who are so defined as to include both joint and concurrent
wrongdoers at common law.
[11] Counsel for the appellant conceded that Nedbank and S were

concurrent wrongdoers at common law. The concession was correctly made.
However, he disputed that they were liable in solidum, in other words that the
respondent could sue Nedbank for the full amount of its loss. The argument, as I
understood it, was that Lee’s case was distinguishable on the ground that in the
present case the fault of the concurrent wrongdoers took different forms.
Accordingly, so it was contended, the one could not claim a contribution from the
other and this in turn precluded them from being liable in solidum. In my view the
argument is unsound. Joint wrongdoers are undoubtedly jointly and severally liable
at common law. This has always been so even when the one paying was not entitled
to recover a contribution from another.   The absence of a right to a contribution
inter partes has no effect on their joint and several liability to the plaintiff. In the
case of concurrent wrongdoers a right to a contribution has generally been
recognised.   (See Hughes v Transvaal Associated Hide and Skin Merchants (Pty)
Ltd and Another supra.) But even if in a particular case such a right were not to be

afforded, that would not affect the nature of their liability to the plaintiff. In any
event, it is difficult to appreciate why a concurrent wrongdoer guilty of culpa who
pays a plaintiff in full should be precluded from having recourse against a
concurrent debtor guilty of dolus. At common law a defendant guilty of dolus
could not raise a defence of contributory negligence on the part of the plaintiff (
Pierce v Hau Mon 1944 AD 175 at 197 - 198) and this rule and the denial of a right
of recourse against a joint wrongdoer were  probably founded on the principle
embodied in  maxims such as ex dolo malo non oritur actio  and ex turpi  causa
non oritur actio. (See Broom’s Legal Maxims 10 ed at 497 - 498; Hughes’s case
supra at 178F - 179F.)   Joint wrongdoers, having committed the delict acting in
concert or in furtherance of a common design, would usually have acted wilfully.
But if a concurrent wrongdoer guilty of culpa has recourse against another
concurrent wrongdoer similarly guilty of culpa it follows a fortiori that he would
have such right against a concurrent wrongdoer whose fault took the form of dolus.

[12] It follows that even if the Act is not applicable,   Nedbank  would be
liable to the respondent in solidum at common law. The respondent is therefore
entitled to recover the full amount of its loss from Nedbank and for the purpose of
calculating that loss  the respondent’s  right of action against S must be
disregarded.    It follows, too, that in my view Holscher’s case in so far as the
calculation of damages is concerned was wrongly decided.
The ruling of the Court a quo was therefore correct and the appeal is
dismissed with costs.
D G   SCOTT
Concur:
SMALBERGER JA
VIVIER
JA
HARMS
JA
ZULMAN
JA