Maharaj Brothers v Pieterse Bros Construction (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Caney J
• Judgment Date: 19 December 1960
• Citation: 1961 (2) SA 232 (N)
• Hearing Date: 23 November 1960
• Court: Natal Provincial Division

G Caney, J.:

The applicants claim that the first respondent, a building contractor, owes them £485 3s. 9d. on a sub-contract part of a contract the first respondent had with the second respondent for certain construction work on behalf of the Union Government. On 19th August, the H applicants obtained ex parte a rule nisi calling upon the two respondents to show cause why the second respondent

'should not be interdicted from paying over to the first respondent a sum of £1,000 being portion of moneys due by the second respondent to the first respondent in respect of work done by the first respondent for the second respondent, pending determination of an action to be brought by the applicants against the first respondent for payment of the sum of £485 3s. 9d.'

This rule was to 'operate as an interim interdict pending confirmation or discharge of this rule'. At this point I interpolate that I do not appreciate why the second respondent was cited as a party. It

Caney J

should have sufficed to issue a rule nisi calling upon the first respondent (as the only respondent) to show cause why the District Representative of the Public Works Department should not be interdicted from paying the money. The applicants have no cause of action or ground A of claim against the Public Works Deprtment. The applicants' debtor, if there is one, is the first respondent.

Upon the matter coming before me on an extended return date, the first respondent was in default but the second respondent raised two preliminary points. The first was that the order granted on 19th August B 'was improperly sought and was improperly granted' and was consequently 'invalid and should be set aside'. This contention was founded on sec. 35 of Act 62 of 1955, which reads as follows:

'Notwithstanding anything to the contrary contained in any law, no court shall issue any rule nisi operating as an interim interdict against the Government of the Union including the South African Railways and Harbours Administration or the Administration of any Province, or any Minister, Administrator or other officer of the said Government or C Administration in his capacity as such, unless notice of the intention to apply for such a rule, accompanied by copies of the petition and of the affidavits which are intended to be used in support of the application, was served upon the said Government, Administration, Minister, Administrator or officer at least 72 hours, or such lesser period as the court may in all the circumstances of the case consider reasonable, before the time mentioned in the notice for the hearing of the application.'

D The second respondent, who is the District Representative of the Public Works Department, filed an affidavit in which he said he was 'an officer of the Union Government, within the meaning of the word 'officer' in sec. 35'. He also averred:

'Prior to the hearing of the application made herein on the 19th day of August, 1960, no notice in terms of the said sec. 35 was served upon me or upon the Union Government.'

E Mr. Hourquebie, for the second respondent, submitted that he was an 'officer' and that sec. 35 was peremptory. In regard to the former submission, he referred to Administrator, Transvaal v Carletonville Estates Ltd., 1959 (3) SA 150 (AD). Mr. Will, for the applicants, did not dispute that the second respondent was an 'officer', and I think F rightly so, for whether or not sec. 35 contemplates every employee of the Government (as the case relied on by Mr. Hourquebie decided that sec. 99 of Transvaal Ordinance, 9 of 1933 did, in relation to officers of the Prvincial Administration), I consider there is no escaping the conclusion that the provincial head of the department is an 'officer', G for clearly he is a person appointed to perform the prescribed duties of an office; see Ketheringham v City of Cape Town, 1934 AD 80 at p. 89.

I consider also that the section is peremptory. It is expressed in the negative, as a prohibition, which is one of the indications of peremptoriness (although not a conclusive one) laid down in Sutter v. H Scheepers, 1932 AD 165 at p. 173. We have to find the intention of the Legislature from the language it has used. Examining this, I think the question is concluded by the fact that a limited discretion is conferred on the Court, a discretion to allow a lesser period of notice. The implication is unavoidable that there is no discretion to dispense entirely with notice. That feature and the general tenor of the section show that the giving of notice is obligatory.

Mr. Will contended, however, that the section applied only to what

Caney J

he called 'acts of State' and not to...