Hurwitz v Rhodesia Railways Ltd

• Jurisdiction: South Africa
• Judge: Coram Lord De Villiers CJ, Innes J and Solomon J
• Judgment Date: 02 February 1912
• Citation: 1912 AD 8
• Hearing Date: 23 January 1912
• Court: Appellate Division

Lord De Villiers, C.J.:

This is an appeal against a judgment of the High Court of Southern Rhodesia dismissing an exception to the defendant's plea. The action was for damages sustained by the plaintiff by reason of some of his mules having been injured in the course of being conveyed in the defendant company's trucks from Vryburg to Salisbury. The defendant, without admitting any liability, tendered to pay the sum of £39 "in full settlement of the plaintiff's claim with any costs that may have been incurred up to the date of the tender," and the defendant prayed that, subject to the tender, the claim might be dismissed with costs. The plaintiff excepted to the plea on the ground that the allegations therein "are vague, inconsistent, irrelevant, embarrassing and bad in law inasmuch as defendant after first denying all liability makes a tender and inasmuch as the tender made was not unconditional." In the course of the argument the plaintiff's Counsel practically abandoned the first ground of exception, namely, that the tender was made after a denial of liability, and it is unnecessary, therefore, to say anything on that point. The second ground of exception, as I understand it, is that the tender, having been made in full settlement, was

Lord De Villiers, C.J.

not unconditional, and that, consequently, the plea of tender should not be allowed to stand.

I quite agree that, if a condition which neutralises the effect of a tender is attached by one party to such a tender, it would be very, embarrassing to the opposite party to allow a plea of tender to stand. In the case of Van der Spuy v Colonial Government (14 S.C. 410), the tender was conditional upon a previous finding of the Court that the defendant was legally liable to pay damages, and, of course, such a tender was held to be valueless as a tender. In the present case the defendant, without admitting liability for any amount, tendered a certain sum in full settlement. Would it have made any difference either to himself or to the plaintiff if the words "in full settlement" had not been used at all? Without the use of these words the meaning of his tender in a somewhat expanded form would have been this: "I do not admit any liability, but in order to put an end to this litigation, I offer to pay you the sum of £39 and all costs up to date of tender." This would certainly have been the meaning conveyed to the plaintiff, and, if he had then accepted the money, I cannot conceive of any Court in South Africa, whatever might be the practice in England, allowing the plaintiff to continue his action for the balance of his claim. It is not necessary to decide what the plaintiff's position would have been if the defendant had admitted his liability up to a certain amount and had tendered that amount. In such a case it might have been plausibly argued that the plaintiff by accepting the amount which was admittedly owing to him did not foreclose himself from suing for the balance...