City of Cape Town v Kenny

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Beyers JA and De Villiers JA
• Judgment Date: 18 September 1934
• Citation: 1934 AD 543
• Hearing Date: 12 September 1934
• Court: Appellate Division

Wessels, C.J.:

The plaintiff in the court below claimed 92,000 damages from the City Council of Cape Town on the ground that he was a fire brigade officer on and prior to the 18th December, 1930. On that date he received notice from the City Council that his contract of service was terminated. This notice, he contended in his declaration, was invalid and in violation of sec. 9 of the conditions of service by reason of the fact that no Board of Officers of the Fire Brigade had ever been set up nor had any Board of

Wessels, C.J.

Officers at any time resolved that plaintiff's services should no longer be required. He alleges that he was always willing to perform his duties, but since December 18th, 1930, the City Council has refused to employ him or to pay him his weekly salary and allowances attaching to the office. To that the defendant pleaded three alternative pleas. We are only concerned with the third. In this plea (para. 7 (c) ) the defendant contended that if the plaintiff was a member of the fire brigade and if clause 9 of the conditions of service (annexure A) applied to him, even then he has no case because clause 9 did not operate to preclude the City Council from itself terminating the services of the plaintiff without the intervention of a Board of Officers. To this plea the plaintiff excepted in this form: "The conclusion drawn by defendant in this paragraph (i e., 7 (c) ) is bad in law in that both parties are bound by the conditions of service annexed to the declaration and defendant has no right except as therein provided to terminate plaintiff's services." In other words the plaintiff in his exception contends that by virtue of clause 9 of the conditions of service he could only be dismissed Iv the City Council if a Board of Officers had been constituted and if such Board had expressed that in its opinion his services were no longer required and if he had then received a week's notice. The only issue between the parties on this exception is therefore whether clause 9 constitutes a condition precedent to the City Council's right to dismiss him, viz., that a Board of Officers had expressed the opinion that plaintiff's services were no longer required. The learned Judge in the court below upheld the exception. Clause 9 reads as follows: "One week's notice will be required to be given if a member (other than a probationer) wishes to leave the brigade, and he will be entitled to one week's notice if, in...