Slomowitz v Vereeniging Town Council

• Jurisdiction: South Africa
• Judge: Beyers ACJ, van Blerk JA, Ogilvie Thompson JA, Rumpff JA and Potgieter JA
• Judgment Date: 01 June 1966
• Citation: 1966 (3) SA 317 (A)
• Hearing Date: 24 May 1966
• Court: Appellate Division

Ogilvie Thompson, J.A.:

The question for decision in this appeal is whether or not appellant's claim for damages against respondent, as G formulated in his declaration and hereinafter detailed, is barred by the provisions of sec. 172 (1) of the Transvaal Local Government Ordinance, 17 of 1939. That section reads:

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

On 24th March, 1964, appellant - who I shall call the plaintiff - issued a summons in the Transvaal Provincial Division against respondent H - a local authority duly constituted under the aforementioned Ordinance and hereinafter referred to as defendant - claiming R100,000 damages allegedly sustained by reason of defendant's wrongful and unlawful closing of a street within its jurisdiction 'in contravention of the provisions of sec. 67 of Ord. 17 of 1939'. The street referred to in the summons - which, so we were informed from the Bar, was served on 24th March, 1964 - is in fact a gravel road, but nothing turns upon that in this appeal. To plaintiff's declaration dated 2nd June, 1964, claiming, in addition to the R100,000 damages, a declaratory order and

Ogilvie Thompson JA

an interdict in relation to the road in question, defendant filed both a plea in abatement and a plea over, the former based upon the provisions of sec. 172 (1) or, alternatively, upon the provisions of sec. 172 (2) of Ord. 17 of 1939 (T). Following upon a so-called notice of amendment, A a substituted declaration dated 2nd August, 1965, was filed by plaintiff. Thereafter an amended and somewhat amplified declaration, dated 9th September, 1965, was filed praying for substantially the same declaratory order and interdict as mentioned above, but reducing the damages claimed to R23,200. To this amended declaration of 9th September, 1965, defendant filed a plea in bar and a plea over, both B dated 5th October, 1965, the former again raising defences based upon the provisions of sec. 172 of Ord. 17 of 1939 (T). To this plea and plea in bar lengthy replications, dated 14th October, 1965, were filed. For the purposes of this appeal it is not necessary to refer to the replications in detail, but the relevant portions thereof will be mentioned directly.

C Upon the pleadings as above outlined, the parties proceeded to trial before STEYN, J. On 22nd October, 1965, being the third day of the trial and after certain evidence on behalf of the plaintiff had, at the request of plaintiff's counsel, been led, argument commenced on the plea in bar. During the course of this argument, counsel for plaintiff applied for certain further amendments to the declaration. This D application was opposed by defendant's counsel but was, together with a consequential postponement, ultimately granted. To the plaintiff's declaration as thus yet further amended - and to the terms of which I make fuller reference below - defendant again filed a plea in bar and a plea over, both dated 5th November, 1965. No further replications were E filed, counsel and the learned Judge tacitly accepting those dated 14th October, 1965, as equally applicable to defendant's two pleas of 5th November, 1965. Upon the pleadings as thus at long last settled, argument upon the plea in bar was resumed before STEYN, J., on 29th November, 1965. Prior to the reservation of judgment on that issue, STEYN, J., was informed that it was common cause between counsel that, F if the plea in bar should be upheld, the plaintiff's claim for damages must necessarily fail and that, in such event, an agreed order should be made in respect of the declaratory decree and interdict claimed by plaintiff.

On 1st December, 1965, the learned trial Judge upheld defendant's plea G in bar as founded upon sec. 172 (1) of the Ordinance and, finding it unnecessary to deal with the plea in bar based upon sec. 172 (2) - upon which little, if any, reliance had been placed by counsel for defendant - expressed no opinion upon the merits thereof. In conformity with the above-mentioned arrangement between counsel, STEYN, J., entered the agreed judgment in respect of the interdict and the H declaratory order sought, but dismissed plaintiff's claim for damages with costs, directing that such costs should be 'on the basis of 95 per cent of the costs of the action'. Plaintiff has now appealed against the upholding of the defendant's plea in bar, as also against the order for costs. The evidence led at the trial is not before us, the parties having adopted the commendable course of incorporating an agreed statement of facts into the record. Defendant no longer relies upon the provisions of sec. 172 (2) of the Ordinance, and that portion of the plea in bar thus falls away.

Ogilvie Thompson JA

According to the averments in his final declaration, plaintiff is the registered owner of a number of erven, including erf 49, in Dickinsonville Industrial Township situate within the municipal area of defendant. In terms of the conditions of establishment of the said A township, erf 49 is the only business erf therein and all businesses conducted thereon must be occupied by persons of the White Group. Plaintiff erected five shops on erf 49 for the purpose of letting them to tenants of the White Group. It is common cause that erf 49 is some 125 yards from the northern boundary of Sharpeville Bantu Location, B which is also within the municipal area, and subject to the control, of defendant. Some 40,000 Bantu are alleged to reside in this location. By reason of their situation, plaintiff's said shops - the plans for which were duly approved by defendant - are claimed to constitute valuable trading sites. Plaintiff avers that, when he erected the afore-mentioned shops during the year 1954, and at all material C times thereafter until July, 1958, persons proceeding from Sharpeville had free access to the shops by means of the road in issue. This road - which joins a Sharpeville street called Moreka Street - admittedly lies within defendant's municipal area and is under its control. Plaintiff further avers in his declaration that the road in D issue is a road or street within the meaning of secs. 63 and 67 of Ord. 17 of 1939 (T).

Para. 11 of the final declaration alleges that in July, 1958, the defendant wrongfully and unlawfully erected a fence along the northern boundary of Sharpeville and across the road in question, leaving at the latter merely a passageway of special design which entirely precluded E vehicular traffic and only permitted the through passage of pedestrains and of cyclists provided the latter carried their bicycles. The declaration avers in para. 12 that this obstruction was wrongful and unlawful in that no prior advertisements or notices as required by the provisions of sec. 67 of the Local Government Ordinance, 17 of 1939, had been published or served. In paras. 13 and 14 it is averred that F defendant's wrongful act resulted in plaintiff being unable to let two of his aforementioned shops. The declaration goes on to allege, in para. 15, that between 30th July, 1958, and 30th November, 1958, defendant

'removed the said fence across the said road as well as the passageway, thereby restoring free access to all forms of traffic across the said boundary'

and, consequentially, also

'free and unrestricted access from the shops to Sharpeville and vice versa'.

G The learned Judge a quo found that free access was so restored on 15th November, 1958, and that the road in question remained open and unobstructed until February, 1960.

Plaintiff's declaration of 9th September, 1965, as finally amended by the order of 22nd October, 1965, then continues as follows:

'16. (a)

H In February, 1960, the defendant wrongfully and unlawfully closed the said road in manner similar to that referred to in para. 11 hereof. Before doing so defendant did not comply with the said provisions of the said Ordinance.

(b)

Thereafter and until 17th December, 1963, defendant omitted to remove the obstruction across the road which had been wrongfully and unlawfully placed across it.

17.

During or about November, 1960, defendant caused bollards to be planted on the Sharpeville side of the said fence across the said road and parallel to it. Between the bollards and the said fence and parallel to the said fence on the Sharpeville side thereof, it caused a deep furrow to be dug leaving as a sole means of access to the said passageway a single

Ogilvie Thompson JA

round pipe placed across the furrow. The said constructions had the effect of rendering it more difficult for pedestrians and cyclists to use the said passageway out of Sharpeville and to visit the said shops.

18. (a)

In April, 1961, the Minister for Bantu Administration requested defendant to re-open the said road to all forms of traffic. Furthermore, plaintiff and other interested parties A made representations to defendant similarly to re-open the said road.

(b)

Despite requests by the plaintiff and other interested parties and from the Minister of Bantu Administration, defendant wrongfully and unlawfully persisted in keeping the said road closed and in the premises persisted in omitting to remove the obstruction across the road, and opened the road only on 17th December, 1963, but has refused or neglected to indicate whether the road will remain permanently open.

19.

B Plaintiff has sought assurances from the defendant that it will open the said road completely to all traffic but defendant has neglected or refused to furnish such assurances.

20.

Plaintiff has asserted that defendant is not entitled to close the said road unless it acts in accordance with the provisions of sec. 67 of the Local Government Ordinance, 17 of 1939, and C defendant has asserted that it is entitled to do so.

21.

As a result and by reason of the said wrongful...