Rederi v South African Railways and Harbours

• Jurisdiction: South Africa
• Citation: 1979 (1) SA 1032 (E)

Rederi v South African Railways and Harbours
1979 (1) SA 1032 (E)

1979 (1) SA p1032

Citation	1979 (1) SA 1032 (E)
Court	Eastern Cape Division
Judge	Stewart J
Heard	October 18, 1978
Judgment	November 16, 1978

Flynote : Sleutelwoorde F

Railways — Action against — One month's notice of intention to commence in terms of s 64 (2) of Act 70 of 1957 — What constitutes — Does not have to take the form of a single document — Claim for damage caused to a ship whilst being docked — Railways denying negligence on its part — Plaintiff G furnishing Railways with details of damages — But at no time did the plaintiff intimate an intention to commence action — Accordingly the provisions of section not complied with.

Headnote : Kopnota

A notice in terms of s 64 (2) of Act 70 of 1957 does not have to take the form of a single document. A series of letters may collectively constitute compliance with the requirements of the section.

Avex Air (Pty) Ltd v Borough of Vryheid 1973 (1) SA 617 (A) at 622B - E applied.

H On 31 January 1975 plaintiff's ship had been damaged in two docking incidents and on 1 February plaintiff's attorney had in two letters informed the defendant that it was being held responsible for the damage caused while the ship was being docked. The letters set out in sufficient detail how the ship came to be damaged and the costs of repairs. The defendant replied on 27 March denying negligence on its part. On 6 June the plaintiff had forwarded a document setting out details of the repair bill. On 18 June the defendant replied by referring to the letter of 27 March. On 3 October the plaintiff again wrote requesting payment of the repair bill. On 14 October the defendant again referred to its letter of 27 March. On 30 January 1976, when the period of 12 months mentioned in s 64 (2) of Act 70 of 1957 was about to expire, the plaintiff requested an extension of the

1979 (1) SA p1033

three months to enable plaintiff to investigate the claim. The defendant refused this request and plaintiff issued summons on the same day. In a special plea the defendant relied upon the provisions of s 64 (2) of Act 70 of 1957, averring that the plaintiff never gave one months' notice of his intention to commence action as required by the sub-section.

A Held, that if the plaintiff had intended to issue summons he should have done so after receiving the letter of 18 June. At no time had the plaintiff intimated that it intended to commence action.

Held, accordingly, that the provisions had not been complied with. Special plea upheld. B

Case Information

Argument on a special plea. The facts appear from the reasons for judgment.

Frank Kroon for the plaintiff.

T M Mullins SC for the defendant.

Cur adv vult.

Postea (November 16). C

Judgment

Stewart J:

The issue in this case is whether the plaintiff has complied with the provisions of s 64 (2) of the Railways and Harbours Control and Management (Consolidation) Act 70 of 1957. That sub-section reads:

D "No legal proceedings whatsoever shall be commenced against the defendant (ie the Administration) until one month at least after written notice of intention to commence such proceedings has been served upon the defendant by the claimant or by his attorney or agent. In that notice the cause of such proceedings and details of the claim shall be clearly and explicitly stated."

E The issue is raised in a special plea filed by the defendant and the parties are for present purposes agreed that it be decided upon the following facts:

(a)

On 31 January 1975 the motor steamship Arapride sustained damage in two incidents at East London. The first occurred when a tug, owned and operated by the defendant, struck the ship during F berthing. The second occurred when the ship rolled at its berth as a result of ranging and struck the dockside.

(b)

These incidents were respectively reported to the defendant by the plaintiff in two letters, both dated 3 February 1975, written by the plaintiff's attorneys. They read:

G "We have been instructed by the master of the Arapride to write a letter to you and advise you that he intends holding the Administration responsible for certain damage done to the port side of his vessel when the tug Schermbrucker which was assisting in the berthing of his vessel struck the port side heavily and caused several indentations.

It is the opinion of the master that the incident was caused either by the careless manoeuvring of the tug Schermbrucker or to the fact that she did not have a good head of steam to carry out the task required of her.

H The vessel will be leaving East London for European ports where she is to be dry-docked and we write to advise you that we will keep you posted so as to enable you to arrange for a surveyor to examine the ship during the course of dry-docking.

As soon as it is possible to do so, a claim will be formulated and presented to you."

And

"We have been instructed by the master of the above-named vessel to write to you to advise that on the first February between 0000 and 0600 hours the vessel rolled heavily at her berth and in addition, surged.

1979 (1) SA p1034

Stewart J

Several chain hangers for fenders on the berth were broken and damage was done to the starboard side of the vessel.

We have been instructed by the...