Odendaal v Du Plessis

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, De Villiers AJA and Juta AJA
• Judgment Date: 12 September 1918
• Hearing Date: 05 June 1918
• Court: Appellate Division

Innes, C.J.:

These proceedings were instituted by the appellant to recover damages for assault and defamation. A lump sum of £5,000 was claimed under both heads. The plea admitted the assault, but denied the slander, and tendered £100 in settlement of any damage sustained. The Trial Court found that defamation as well as assault had been proved, but awarded £100 as compensation in respect of both injuries, the appellant to have his costs up to date of tender, but to pay all costs incurred thereafter. The appeal against this order is urged on several grounds; because the amount was, upon the merits, inadequate; because the tender as pleaded covered only the damage due to the assault, and not that arising from the slander; and because the tender was conditional, and the decree as to costs on that account incorrect. The first two contentious may be shortly disposed of. Relations between the parties had been strained owing to the appellant having laid information with the police that the respondent had illegally shot certain blesbok which he claimed, but which were at the time upon appellant's farm. Irritated at what had taken place, but without immediate provocation, the respondent assaulted the appellant by throwing a stone which struck him on the arm. No serious injury was inflicted though the stone was of some weight, but it was only

Innes, C.J.

the interference of a bystander which prevented a continuation of the assault. The defamatory statements complained of were also connected with the original quarrel. They were not such as to call for special remark. The Provincial Division, without taking P very serious view of the assault, reprimanded the respondent for his conduct, but considered that a sum of £100 was adequate compensation for both injuries.

Now the question of damages is one in which an appellate tribunal will be slow to interfere save under special circumstances or where some principle is at stake. No such elements are present here; and after giving full consideration to the arguments addressed to us, I do not think we should be justified in interfering with the quantum of compensation fixed by the Trial Court. The fourth clause of the plea refers in terms to clause six of the declaration, and shows that the tender of £100 was intended to cover both heads of the claim. So that neither the first nor the second of the appellant's contentions can succeed. The third raises an important question of practice and requires some consideration. As already remarked a globular sum was demanded in respect of all the torts complained of. After admitting and endeavouring to extenuate the assault, but denying the slander, the plea alleged a tender on 6th November, 1917, to plaintiff of "the sum of £100 with costs, in settlement of any damages he might have suffered, which sum defendant says is ample and sufficient for the purpose of meeting plaintiff's claim, and he is still prepared to pay, as he hereby offers again to do." The tender was admitted, but was rejected as inadequate. No documents were put in, and no oral testimony led to show the exact terms of the offer. They must be taken, therefore, to have been accurately stated in the plea. So that we have to enquire whether a tender made in the words above quoted is or is not effective.

The question of the effect of coupling with a tender some such expression as "in settlement" or "in full settlement" is one upon which South African decisions have not been harmonious. It was held by the Transvaal Court in African Agricultural Corporation v Bouguenon (1904, T.S. 535), where a defendant admitted liability for part of a claim and pleaded a tender of the amount thus admitted "in full settlement," that the tender was conditional. The principle of that decision was approved and adopted in the Free State (Nel v van Moltke, 1910, O.F.S. 106); but at the

Innes, C.J.

Cape it was questioned in Reid v Carnofsky's Trustee (1910, E.D.L.D. 166), and was dissented from in Hyne v Union Government (1912 CPD 825). The point has not, up to now, been adjudicated in this Division. It was debated in Hurwitz v Rhodesia Railways (1912 AD 8), but not decided. The claim there was for damages; the defence was a general denial, and a tender of less than the demand without admission of liability and "in full settlement of the plaintiff's claim." Exception was taken to the plea on the ground that the two defences were inconsistent, and that the tender was not unconditional. The first ground was abandoned on appeal, and the second only was relied upon. The order of the Trial Court dismissing the exception was upheld. Indeed the contention of the excipient was hardly arguable; because even if the tender was conditional it was not on that account open to exception. It did not embarrass or prejudice the plaintiff. But the Court refrained from deciding whether a tender "in full settlement" would protect a defendant against costs. So that the point, so far as this Division is concerned, is an open one.

"Tender" is essentially a term of English law; and one is apt on that account to regard it in the light of English practice. That was certainly the case in African Agricultural Corporation v Bouguenon, where none but English authorities were considered. Speaking generally, a tender in English law is an offer by a debtor or person under an obligation to pay his debt or perform his obligation (see Encyclopaedia Laws of England, Vol. 14, p. 50). It does not discharge the debt, but if due and sufficient it prevents the accrual of subsequent interest, and protects against liability for subsequent costs. Its operation as a defence is restricted by...