Ketteringham v City of Cape Town

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Stratford ACJ, Beyers JA, De Villiers JA and Gardiner AJA
• Judgment Date: 20 October 1933
• Citation: 1934 AD 80
• Hearing Date: 06 October 1933

De Villiers, J.A.:

The appellant (plaintiff in the court below) sued defendant for damages for wrongful dismissal. He alleges in his declaration: "2. Plaintiff was verbally employed by defendant as a clerk on 3rd November, 1923 and on 5th November, 1932 was still in defendant's service as a junior clerk in the City Treasurer's office at a salary of 2285 per annum. 3. On the 1st January, 1925 defendant, under the powers conferred upon it by Ordinance 24 of 1919, created a Municipal Pension Fund. A true copy of the rules governing the said pension fund at all times material to this suit is annexed hereto marked 'A.' 4. In terms of rule 5 of the aforesaid rules plaintiff duly elected to become a member of the said fund as from 1st January, 1925, and remained a member thereof until 5th November, 1932. 5. At all times material plaintiff duly performed all the obligations resting on him under the rules of the said fund and at all times material was entitled to all and sundry the benefits accruing to him as a member of the said fund. 6. On a true interpretation of the said rules plaintiff was entitled to continue in the service of defendant until he attained the age of superannuation, viz., 60 years, and thereafter to receive a pension in terms of the said rules, unless on grounds provided for in the said rules his contract of service was lawfully terminated prior thereto. 7. On 5th November, 1932, plaintiff was twenty-six years of age and no legal ground justifying the termination of his employment existed." He alleges further that

De Villiers, J.A.

in November, 1932 the defendant unlawfully dismissed him without notice, and he claims damages. Defendant in its plea alleges: "1. Paragraphs 1, 3, 4, 5 and 10 of plaintiff's declaration are admitted. 2. As to paragraph 2, defendant says that plaintiff was on November 5th, 1932 assistant ledger clerk in the roadway section of the revenue branch of the department of the City Treasurer of defendant at a salary of £285 per annum payable monthly. Plaintiff was at all times material to this action an officer of defendant within the meaning of secs. 119 and 120 of Ordinance 10 of 1912. Save as above the said paragraph is admitted. 3. As to paragraph 6 defendant says that the contract of service between it and plaintiff was in law terminable in terms of Ordinance 10 of 1912 and was not affected by the said rules. If plaintiff were still in the service of defendant at the time when he attains the age of superannuation, viz., 60 years, he would be entitled to receive from the said pension fund a pension in terms of the said rules. Save as above the said paragraph is denied." Defendant alleges further in paragraph 1 of its plea that plaintiff sold to defendant certain land, and that thereby he rendered himself incapable in terms of sec. 119 of Ordinance 10 of 1912 of being employed by defendant. In paragraph 8 defendant alleges that plaintiff had from time to time carried on the business of a land jobber and thereby rendered himself liable to dismissal in terms of sec. 120 of the Ordinance. In paragraph 9 of the plea defendant alleges that plaintiff had also rendered himself liable to dismissal on the ground of misconduct (presumably under the common law). To this plea the plaintiff took a number of objections in the form of "exceptions" such as are apparently perinitted by the practice of the Cape Provincial Division, and he also moved to strike out certain paragraphs, as follows: "Plaintiff excepts to defendant's plea as being vague, embarrassing, contradictory, bad in law and as disclosing no defence, more particularly in that: (a) The penultimate sentence of paragraph 2 is contradictory to the admissions contained in the first and last sentences of paragraph 2. (b) The first sentence of paragraph 3 is contradictory to the admissions contained in paragraph 1 and to the true interpretation of the rules of the pension fund and in any event is vague embarrassing and bad in law. (c) Paragraph 7 affords no defence in law to the plaintiff's claim. (d) Paragraph 8 is vague embarrassing and bad in law inasmuch as by reason

De Villiers, J. A.

of the admissions contained in paragraphs 1 and...