Cape Town Municipality v Clohessy

JurisdictionSouth Africa
JudgeInnes CJ, Maasdorp JA, De Villiers JA, Juta JA and JER De Villiers AJA
Judgment Date07 November 1921
Citation1922 AD 4
Hearing Date21 October 1921
CourtAppellate Division

Innes, C.J.:

In the year 1905 the appellant corporation paved with tar a footway in Moray Place, Cape Town. The control and management of that footway is admittedly vested in the corporation. In process of time portion of the surface crumbled and a depression was formed four feet three inches in width, about two feet long and with a maximum depth of It inches at the centre, whence it sloped upward to the surrounding surface. On the evening of the 2nd September, 1920, the respondent while proceeding along Moray Place stepped into this depression, tripped, fell and injured her person and clothing. As compensation for these injuries the Magistrate awarded her the sum of £38 17s. 6d. and the question before us is whether his judgment was rightly upheld by the Cape Provincial Division.

Had the controversy arisen before 1913 it would have been attended with less difficulty, because the council was up to that date under a statutory obligation to maintain all the public streets "in good and efficient repair" (see Act 26 of 1893, sec. 129 and Act 25 of 1897, sec. 6). But Ordinance 19 of 1913 repealed those statutes and enacted that the provisions of the Municipal Ordinance of 1912 should apply to the enlarged municipality of Cape Town then constituted. By those provisions the public streets (which include the public footways) were vested in the council (sec. 168), which was given "power and authority to make, close, alter and keep in repair" all streets within the municipal limits (sec. 205). These were enabling and not compulsory words and the difference between this two enactments is

Innes, C.J.

important. The duty to maintain in good and efficient repair imposed by the repealed statutes fell away and the substituted provisions merely authorised, but did not render obligatory, such repair. The question to be determined is whether the corporation is liable in damages for failure to exercise the permissive powers thus conferred. And in considering that question I shall assume without deciding, that the depression constituted a, danger to pedestrians. The fact that the light of the nearest electric lamp was partially obscured by foliage, taken with other portions of the evidence, justifies that assumption in the plaintiff's favour for the purposes of the case.

Now it is settled law that speaking generally a public body endowed by statute with permissive powers is under no legal duty to exercise them; mere omission to...

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23 practice notes
  • Minister of Law and Order v Ngobo
    • South Africa
    • Invalid date
    ...Minister of Police v Rabie 1986 (1) SA 117 (A); Halliwell v Johannesburg Municipal Council 1912 AD 659; Cape Town Municipality v Clohessy 1922 AD 4 at 7; Witham v Minister of Home Affairs 1989 (1) SA 116 (ZH); Herschel v Mrupe 1954 (3) SA 464 (A); Minister van Polisie v Ewels 1975 (3) SA 59......
  • Cape Town Municipality v Bakkerud
    • South Africa
    • Invalid date
    ...(C): criticised but confirmed on appeal F Cape Town Municipality v Butters 1996 (1) SA 473 (C): applied Cape Town Municipality v Clohessy 1922 AD 4: not De Villiers v Johannesburg Municipality 1926 AD 401: not followed Faiga v Body Corporate of Dumbarton Oaks and Another 1997 (2) SA 651 (W)......
  • Cape Town Municipality v Bakkerud
    • South Africa
    • Supreme Court of Appeal
    • 29 May 2000
    ...(C): criticised but confirmed on appeal F Cape Town Municipality v Butters 1996 (1) SA 473 (C): applied Cape Town Municipality v Clohessy 1922 AD 4: not De Villiers v Johannesburg Municipality 1926 AD 401: not followed Faiga v Body Corporate of Dumbarton Oaks and Another 1997 (2) SA 651 (W)......
  • Moulang v Port Elizabeth Municipality
    • South Africa
    • Invalid date
    ...B Halliwell v Johannesburg Municipality, 1912 AD 659; Municipality of Bulawayo v Stewart, 1916 AD 357; Cape Town Municipality v Clohessy, 1922 AD 4; de Villiers v Johannesburg Municipality, 1926 AD 401. In so far as these decisions purport to decide that there can be no liability for a mere......
  • Request a trial to view additional results
23 cases
  • Minister of Law and Order v Ngobo
    • South Africa
    • Invalid date
    ...Minister of Police v Rabie 1986 (1) SA 117 (A); Halliwell v Johannesburg Municipal Council 1912 AD 659; Cape Town Municipality v Clohessy 1922 AD 4 at 7; Witham v Minister of Home Affairs 1989 (1) SA 116 (ZH); Herschel v Mrupe 1954 (3) SA 464 (A); Minister van Polisie v Ewels 1975 (3) SA 59......
  • Cape Town Municipality v Bakkerud
    • South Africa
    • Invalid date
    ...(C): criticised but confirmed on appeal F Cape Town Municipality v Butters 1996 (1) SA 473 (C): applied Cape Town Municipality v Clohessy 1922 AD 4: not De Villiers v Johannesburg Municipality 1926 AD 401: not followed Faiga v Body Corporate of Dumbarton Oaks and Another 1997 (2) SA 651 (W)......
  • Cape Town Municipality v Bakkerud
    • South Africa
    • Supreme Court of Appeal
    • 29 May 2000
    ...(C): criticised but confirmed on appeal F Cape Town Municipality v Butters 1996 (1) SA 473 (C): applied Cape Town Municipality v Clohessy 1922 AD 4: not De Villiers v Johannesburg Municipality 1926 AD 401: not followed Faiga v Body Corporate of Dumbarton Oaks and Another 1997 (2) SA 651 (W)......
  • Moulang v Port Elizabeth Municipality
    • South Africa
    • Invalid date
    ...B Halliwell v Johannesburg Municipality, 1912 AD 659; Municipality of Bulawayo v Stewart, 1916 AD 357; Cape Town Municipality v Clohessy, 1922 AD 4; de Villiers v Johannesburg Municipality, 1926 AD 401. In so far as these decisions purport to decide that there can be no liability for a mere......
  • Request a trial to view additional results

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