Abrahamse v East London Municipality and Another; East London Municipality v Abrahamse

• Jurisdiction: South Africa
• Citation: 1997 (4) SA 613 (SCA)

Abrahamse v East London Municipality and Another;
East London Municipality v Abrahamse
1997 (4) SA 613 (SCA)

1997 (4) SA p613

Citation	1997 (4) SA 613 (SCA)
Case No	483/95 & 513/95
Court	Supreme Court of Appeal
Judge	Marais JA, Mahomed CJ, F H Grosskopf JA, Harms JA, Streicher AJA
Heard	March 17, 1997
Judgment	May 12, 1997
Counsel	A J G Lang for the appellant in case No 483/95 and the respondent in case No 513/95.; J W Eksteen for the first respondent in case No 483/95 and the appellant in case no 513/95.; M C Jardine for the second respondent in case No 483/95

Flynote : Sleutelwoorde B

Local authority — Legal proceedings — Limitation of — Limitation of Legal Proceedings (Provincial C and Local Authorities) Act 94 of 1970 — Notice in terms of s 2(1)(a) — Requirement that local authority be given written notice of intention to institute legal proceedings — Sufficient if such intention implicit in notice.

Local authority — Legal proceedings — Limitation of — Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 — Notice in terms of s 2(1)(a) — Provision in s 2(2)(c) that debt D not due before creditor (1) has knowledge of identity of debtor or (2) can acquire such knowledge by exercise of reasonable care, 'whichever is the earlier' — Second postulate not dependent upon first not being present and must, as matter of logic, coincide with or precede first — Subsection (2)(c) to be interpreted literally — Ability of creditor to acquire knowledge by reasonable E care not subject to any conditions or exceptions — Special cases to be dealt with under s 4, in terms of which plaintiff who requires more time can apply for leave to serve notice after lapse of prescribed period.

Headnote : Kopnota

The issue in these appeals was whether the plaintiff a quo had complied with s 2(1)(a) of the F Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 prior to instituting his claim for damages against the Municipality of East London as the first defendant and the Municipality of Beacon Bay as the second defendant. The plaintiff had claimed R93 187,21 damages from the defendants in the alternative on the ground that his property had been flooded after a water main had burst as a result of the defendants' negligence. Summons G was issued on 28 October 1993. Responsibility for the water reticulation system in the Beacon Bay area, in which the plaintiff's property was located, had been transferred from the first to the second defendant in July 1991. The plaintiff, who had been resident in Bophuthatswana when the flooding occurred, had only on 15 April 1992 become personally aware of this fact. The incident that caused the damage occurred on 2 November 1991. The plaintiff's insurers gave H written notice to the first defendant of the plaintiff's intention to hold it liable by means of a letter dated 28 November 1991 ('the first notice'). When loss adjusters appointed by the plaintiff's insurer subsequently discovered that the second defendant had become responsible for the Beacon Bay area's water main, they gave written notice to the second defendant on behalf of I the plaintiff of the plaintiff's intention to hold the second defendant liable for the damage. This was done by means of a letter dated 3 June 1992 ('the second notice'). The plaintiff contended that both notices complied with s 2(1)(a) of the Act; the first defendant that the first notice did not notify it sufficiently or at all of an intention to institute legal proceedings should liability be disputed; and the second defendant that the plaintiff by exercising reasonable care should have known before 15 April J

1997 (4) SA p614

1992 that the second defendant had taken over responsibility for the water mains in the area, A and that the second notice accordingly did not comply with the 90-day limit in s 2(1)(a) of the Act. It was not disputed that the onus of showing that the plaintiff had been guilty of want of care in failing to learn of the takeover before 15 April 1992 was on the second defendant. The B Court a quo held that the plaintiff had complied with s 2 vis-á-vis first defendant (against which finding first defendant appealed) but not vis-á-vis second defendant (against which finding plaintiff appealed).

Held, that first defendant's appeal had to be dismissed for the following reasons: Although the first notice was not a lawyer's letter and did not bear a litigious heading, it was more than a routine covering letter enclosing an invoice reflecting a debt due by first defendant for goods C supplied to it. It referred to 'claims' arising out of damage to property caused by flooding from a burst municipal water pipe and asserted that '(w)e are therefore holding the East London Municipality liable for all damages caused by the above and our quotations and final repair invoice will be forwarded to you in due course for reimbursement'. Such terminology is redolent D of potential litigation if liability is denied and would have been so understood by first defendant. It was implicit in the notice that legal proceedings would result if liability was disputed and therefore the purpose of s 2 was met - it served to put the first defendant on inquiry and afforded an early opportunity to it to investigate the matter and avoid litigation if so advised. (At 623H–624C.) (Per Marais JA, the other Judges concurring. Marais JA's view that plaintiff's appeal had to be upheld was not supported by the other Judges.) E

Held, further (per Harms JA; Mahomed CJ, F H Grosskopf JA and Streicher AJA concurring), that plaintiff's appeal had to be dismissed for the following reasons: There were two deeming provisions in s 2 concerning the date 'on which the debt became due' (ie the date on which the cause of action arose): the first related to the instance where the debtor F intentionally prevented a creditor from coming to know of the existence of the debt and the second was to be found in ss (2)(c), viz that the debt would not be regarded as due before the first day on which the creditor (1) 'has knowledge of the identity of the debtor and the facts from which the debt arose', or (2) 'can acquire such knowledge by the exercise of reasonable care, whichever is the earlier'. Both postulates involved questions of fact, and the second was G not dependent upon the first not being present: it had, as a matter of logic, to coincide with or precede the first. Nor was the ability of the creditor to acquire knowledge by reasonable care H subject to any conditions or exceptions. Although it was possible to accept that there might be policy reasons why a creditor should be protected where he had no reason to doubt the identity of the debtor or where he, by the exercise of reasonable care, identified the wrong debtor, the intention of the Legislature was that, where special circumstances for a late notice existed, the matter had to be dealt with under s 4 - the otherwise clear language of s 2(2)(c) could not be modified by way of judicial interpretation to deal also with some or all special cases. In the instant case plaintiff had been aware of the damage to his property by the time the I first notice was sent (28 November 1991). As to plaintiff's ability to have established the identity of the debtor before 15 April 1992, a single call to the local authority or a glance at the water account would have sufficed to determine that second defendant had been in control of the burst pipe. There was in addition no suggestion that the fact that plaintiff was resident in Bophuthatswana had made identification impossible. No reason was given why the plaintiff's insurer addressed the notice to the wrong municipality and there was no allegation as to the insurer's (or even plaintiff's) knowledge or belief. The J

1997 (4) SA p615

issue was in any event not whether the insurer was negligent but whether, acting on plaintiff's A behalf, it could by the exercise of reasonable care have established the identity of the debtor. The salient facts being within the knowledge of plaintiff, the absence of any information in these regards could only enure to the benefit of the debtor. (At 633A–634I.)

The decisions in the East London Circuit Local Division in Abrahamse v East London B Municipality and Another and in Abrahamse v East London Municipality confirmed.

Cases Considered

Annotations

Reported cases

Administrateur, Kaap v Burger 1993 (3) SA 414 (A): referred to

Administrator, Cape v Olpin 1996 (1) SA 569 (C): referred to C

Brand v Williams 1988 (3) SA 908 (C): referred to

Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A): dictum at 532H–I applied

Maponya v Minister of Police and Another 1983 (2) SA 616 (T): dictum at 620D applied

Minister van Wet en Orde en 'n Ander v Hendricks 1987 (3) SA 657 (A): dictum at D 663D–664G applied

Protea International (Pty) Ltd v Peat Marwick Mitchell & Co 1990 (2) SA 566 (A): referred to

Shraga v Chalk 1994 (3) SA 145 (N): dictum at 153 applied

Sibeko and Another v Minister of Police and Others 1985 (1) SA 151 (W): dictum at E 166H–I applied

Statutes Considered

Statutes

The Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970, s 2: see Juta's Statutes of South Africa 1996 vol 1 at 2-611.

Case Information

Appeal from a decision in the Eastern Cape Division (Van Rensburg J). The facts appear from the judgment of Marais JA. F

A J G Lang SC for the appellant in case No 483/95 and the respondent in case No 513/95.

J W Eksteen for the first respondent in case No 483/95 and the appellant in case No 513/95.

M C Jardine for the second respondent in case No 483/95. G

In addition to the cases cited in the judgment of the Court, counsel referred to the following...