Osler v Johannesburg City Council

• Jurisdiction: South Africa
• Citation: 1948 (1) SA 1027 (W)

Osler v Johannesburg City Council
1948 (1) SA 1027 (W)

1948 (1) SA p1027

Citation	1948 (1) SA 1027 (W)
Court	Witwatersrand Local Division
Judge	Clayden J
Heard	December 9, 1947
Judgment	December 17, 1947

Flynote : Sleutelwoorde

Municipality — Actions against — Claim for damages — Requirements of notice — What sufficient — Ordinance 17 of 1939 (T.), section 172 — Object of.

Headnote : Kopnota

If the notice required by section 172 of Ordinance 17 of 1939 (T.) sets out the particulars as to the cause of action and makes it clear that an action will be brought on that cause of action, the notice is in order even though it does not in terms set out the intention to sue the plaintiff.

The object of section 172 of Ordinance 17 of 1939 (T.) is to afford opportunity to the local authority to consider whether it should meet a claim before it is involved in the costs of legal proceedings.

Case Information

Application for leave to amend a replication. The nature of the pleadings appears from the reasons for judgment.

J. H. Snyman, for the applicant (plaintiff): The purpose of sec. 172 (2) of Ord. 17 of 1939, is to enable a municipality to investigate the event, out of which the claim against it arises, so as to be able to decide whether or not to defend the action. See Russell v Cape Town Municipality (1926 CPD 93); Ahmed v City Council of Cape Town (1936 CPD 54). No specific form of notice is laid down by the section. Consequently there need only be substantial performance. See Ahmed's case (supra). The test whether there has been substantial performance is how the defendant understood the notice. Judicial interpretation should be directed to avoiding consequences which are inconvenient and unjust if this can be done without violence to the spirit or language of a statute. See Halsbury, Laws of England (Hailsham ed., Vol. 31, p. 506). The case of Murphy v S.A.R. & H. (1946 NPD 252) is distinguishable on the wording of the statute.

R. G. McKerron, for the respondent (defendant): The amendment to the replication would not constitute an answer in law to the plea. The purpose of sec. 172 (2) of Ordinance 17 of 1939 is to give defendant an opportunity of avoiding ligitation by tendering amends. Cf. Smith v West Derby Local Board (1878, 3 C. P. 423, at pp. 427 - 8); Norris v Smith (1839, 10 Ad. & Ellis 188). The notice must at least make a definite claim and intimate clearly and unequivocally that unless the amount claimed is paid before the expiration of the period of the notice action will be instituted. See

1948 (1) SA p1028

Murphy v S.A.R. & H. (supra). Cf. Norris v Smith (supra); Mason v Birkenhead Improvement Commissioners (1860, 6 H. &. N. 72). Ahmed's case (supra) and Russell's case (supra) are distinguishable on the different wording of the Cape Ordinance.

Snyman, in reply.

Cur adv vult.

Postea (December 17th).

Judgment

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...