Osler v Johannesburg City Council

• Jurisdiction: South Africa
• Judge: Clayden J
• Judgment Date: 17 December 1947
• Hearing Date: 09 December 1947
• Court: Witwatersrand Local Division

Clayden, J.:

By Transvaal Ordinance 17 of 1939, sec. 172, it is provided that:

'(1) All actions against a local authority shall be brought within six months of the time when the causes of such actions arose.

(2) No such action shall be commenced unless written notice of the intention to bring such action shall have been served on the local authority at least 30 days before the action is commenced. Particulars as to the cause on which the action is based shall be clearly and explicitly stated in such notice.'

On 3rd April, 1947, the plaintiff was injured in a collision between a motor-car driven by one Henderson and a tramcar driven by a servant of the defendant. On the 30th September the plaintiff issued summons against the defendant claiming £25,000 from the defendant as damages sustained as a result of the negligent driving of the tramcar. The defendant filed a plea in abatement, alleging that the plaintiff's action was barred by reason of his not having complied with sec. 172 (2),

'in that he did not serve notice on the defendant of his intention to bring the action at least thirty days before the action was commenced or at all'.

In his replication the plaintiff said that due and proper notice was given on the 15th April, 1947. He now applies to amend the replication by substituting for the bare allegation the allegation that due and proper notice was given on the 15th April, 1947, and in two letters, dated 2nd and 25th May, 1947, and by attaching copies of the notice and letters. The application to amend in this manner is opposed by the defendant on the ground that the documents referred to do not constitute notice under sec. 172 (2).

On the 15th April the plaintiff's attorney wrote to the defendant in the following terms:

'I have been instructed by my clients Henry William McCosky Osler and Francis Thomas Henderson to communicate with you in connection with an accident which occurred at the corner of von Weilligh and Market Streets on the 3rd instant at 8.20 p.m., when a tramcar collided with a motor-car No. N.Y. 94, which was being driven by Mr. Henderson.

Clayden J

It is alleged that the accident was caused by the negligent driving or other culpable act of the driver of the municipal vehicle.

Mr. Osler was very seriously injured in the accident and is at present in the Johannesburg General Hospital receiving attention. Mr. Henderson's son, Noel, was badly cut about the face and has been four days in the Children's Hospital. The other persons in the motor-car were bruised and suffered from shock, but do not intend to make any claim whatsoever.

Mr. Henderson's car was badly damaged and is at present being repaired by Bez Motors, Main Road, Randfontein. The reason why he placed the work in hand without reference to you is that he must return to Natal to-morrow. The car can, however, be inspected at the above address. I believe the police had the car at Marshall Square for five days.

It is not possible to furnish a detailed claim at this...