Dendy799and Kelly800agree that had the court in this case decided according to the principles laid down in Holscher v ABSABank,801namely, that the true owner’s claim against the collecting bank had to be reduced by the amount of the claim against S, it would have led to a total elimination, rather than a reduction, of the true owner’s claim against the collecting bank. They suggest that the effect would be unfair because no damages would be claimable against the negligent collecting bank in the overwhelming majority of cases concerning stolen cheques. Kelly802further submits that it would be unacceptable that a negligent collecting bank cannot be held liable for the damage it caused given that had it not been for its negligence, a thief would not have succeeded with his intentional wrongdoing. She correctly states that it is also unfair and difficult for the courts to establish what amount of damages can in fact be recovered from a wrongdoer who is not a party before the court; a court should only be required to make a decision based on the facts before it. In contrast, Potgieter803argues that a case can be made to the effect that an intentional wrongdoer and a negligent wrongdoer, causing the same damage to a third party, do not qualify as joint wrongdoers for purposes of the Act. Potgieter804submits that, in his opinion, Boruchowitz J is wrong in this case to hold that the 7961998 THRHR521-522. 797Lloyd-Gray Lithographers (Pty) Ltd v Nedcor Bank t/a Nedbank1998 2 SA 667 (W) 675. 7981998 THRHR522. 7991998 THRHR515; cf SALRC Report 22. 8002001 SA Merc LJ528. 8011994 2 SA 667 (T). 8022001 SA Merc LJ528. 8031998 THRHR732. 8041998 THRHR734.
123 meaning of “fault” in section 1(1)(a), as well as the judgments of Minister van Wet en Orde v Ntsane805and Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank,806both dealing with the meaning of “fault” in section 1(1)(a), was irrelevant in determining the meaning of “fault” in section 2. In establishing the meaning of “fault” in section 2 the court should, in Potgieter’sopinion, have considered its meaning in section 1. He807argues that it would also be unfair to hold a negligent collecting bank liable for the full amount of damages while the intentional thief escapes liability completely. He808further submits that the court moved even further beyond the boundaries of the Act, by holding a (merely) negligent bank jointly and severally liable as joint wrongdoer with a thief whose conduct had been far more blameworthy. On the other hand, it would not be acceptable that the bank, being negligent, completely escape liability (which would have been the result of Potgieter’s interpretation of the Act).Be that as it may, this judgment is nevertheless important since it approves of the decision in S v Ngubane809that where there is intention, negligence is simultaneously present. Furthermore Neethling’s suggestions provide an acceptable solution to the difficulty of apportioning liability between joint wrongdoers, as well as
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