Mali v Government of the Republic of Ciskei

• Jurisdiction: South Africa
• Judge: Pickard CJ, Diemont JA and Galgut JA
• Judgment Date: 18 November 1988
• Citation: 1989 (2) SA 556 (CkA)
• Hearing Date: 19 August 1988
• Court: Ciskei Appellate Division

Pickard CJ:

In this matter the appellant instituted civil action against the respondent for an order directing respondent (the Government of the Republic of Ciskei) forthwith to effect transfer of an immovable property into the name of appellant together with other appropriate ancillary relief. Appellant's claim was based on an alleged purchase by appellant of the said property from the respondent during 1985 G and respondent's refusal to give effect thereto by not passing transfer despite the purchase price having been paid.

In her particulars of claim the appellant alleges that she complied with the provisions of s 80(2) of the Republic of Ciskei Constitution Act 20 of 1981.

H Section 80 of the said Act reads as follows:

'(1)

Subject to the provisions of ss (2), any claim against the Government, which would if that claim has arisen against a person on the ground of an action in any competent court, shall be cognisable by such court, whether the claim arises out of any contract lawfully entered into on behalf of the Government or out of any delict I committed by any servant of the Government acting in his official capacity and within the scope of his employment as such servant.

(2)

No proceedings contemplated in ss (1) shall be brought if a period of 12 months has elapsed from the date on which the cause of action arose and only after notice in writing of the intention to bring such proceedings and of the cause thereof has been given to every defendant at least one month before the commencement of J proceedings.'

Pickard CJ

A At the hearing of this matter before the Court a quo the respondent (defendant in that Court) sought various amendments to its plea with which I need not deal for purposes of this judgment. It did, however, seek inter alia an amendment to insert the following:

'7.3

The defendant further denies that the letter annexure ''H'' B to the plaintiff's further particulars is notice as envisaged by s 80(2) of Act 20 of 1981, more particularly in that such letter does not specify the legal proceedings which the plaintiff gave notice of intention to commence.

7.4

The defendant accordingly denies that the plaintiff has complied with the provisions of s 80 of Act 20 of 1981, and puts C the plaintiff to the proof of such allegation.'

It is common cause between the parties that annexure 'H' referred to above was the notice given by appellant and received by respondent in an attempt by appellant to comply with the aforementioned provisions of D s 80(2) of the Constitution Act. It consisted of a letter dated 30 April 1983 which should be quoted herein in its totality. It reads as follows:

'Dear Sir

re: Transfer of the property, erf 379, Alice, from the Ciskeian Government Mrs B B P Mali.

E We act for Mrs B B P Mali of Alice, who instructs us that despite there being in existence a written offer of acceptance for the purchase of the above-mentioned property by yourself from the Ciskeian Government, the attorneys handling the aforesaid transfer, namely Messrs Squire, Smith & Laurie, have been instructed not to proceed with registration of the transfer.

We are instructed further that the purchase price of the property of R3 000 has already been paid to the Ciskeian Government for which she has a receipt.

F Our instructions are to demand from you, as we hereby do, that transfer of the above-mentioned property be effected from the Ciskeian Government into the name of our client within one month hereof, failing which our instructions are to institute legal proceedings in respect hereof.

This demand is duly giving notice of plaintiff's intention to commence proceedings in terms of s 80 of the Constitution Act.'

G Appellant...