Tiopaizi v Bulawayo Municipality

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA and Kotzé JA
• Judgment Date: 28 February 1923
• Citation: 1923 AD 317
• Hearing Date: 01 November 1922
• Court: Appellate Division

Innes, C.J.:

I agree with the conclusions reached by my brethren whose reasons I have had the advantage of seeing. The main point to be decided is whether the notice given to the appellant on the 1st December terminating his engagement on the 31st of that month was sufficient notice. He was a native constable and therefore not a servant within the meaning of the Ordinance; he had been in the employ of the municipality for more than a year at a monthly wage of £5, 5s. payable on the first of the month. It is not suggested that his original engagement was for a period of one month only and that it was tacitly renewed for similar definite limited periods thereafter. The fact that his pay only became due on the first of the month following that in which it was earned is inconsistent with that idea. The contract was a hiring for an indefinite period running from month to month and terminable by either side on due notice. That being so, no question of tacit relocation arises. The parties contemplated that the contract should remain in force until duly terminated. But the fact that it was to run from month to month affects the question of notice. In Fulton v Nunn (1904, T.S., p. 123) the rule of Roman-Dutch law regulating the lease of a house, which required due notice to extend to the end of one of the customary terms, was applied to monthly leases in South Africa. And it was held that the necessary reasonable notice should, in the absence of custom or agreement to the contrary, expire at the close of a monthly period. That principle was extended to contracts of service in Pemberton v Kessell (1905, T.S p. 174) and it has been repeatedly applied by South African Courts. (Paruk v Hayne & Co. (27 N.L.R., p. 380); Sitterding v Hermon Lime Co. (1921 CPD p.439) ). Indeed it is not challenged by the present appellant and may he regarded as established It was assumed in the cases referred to that reasonable notice was a month's notice - an assumption which, so far as the evidence went, would seem to have been in accordance with general custom. Speaking generally, therefore, a monthly hiring, whether of houses or of services, is terminable upon a month's notice expiring at the end of a monthly period. Upon this point the parties are at one. The dispute is not as to the term of the notice, but as to its computation. Can a period which begins during the currency of the first day and ends at midnight on the last day be properly described as a full month? That question must be answered in the affirmative if the civil mode of calculation is proper to be adopted. By that method

Innes, C.J.

the reckoning is ad dies; no account is taken of broken units; the whole of the first day is included and the whole of the last day is excluded. So that a calendar month reckoned from any moment of the 1st December would terminate at midnight on the 31st. Enslin v Joubert (1910, A.D., p. 6) decided that in cases of contract, failing any indication to the contrary, time must be computed civiliter; but that where special circumstances render such a course necessary, the Court may direct an exact calculation (naturaliter) - that is ad momentum temporum. The result of adopting that basis would be that notice given on the first of one month would terminate at the corresponding moment on the first of the following month. But there are no special circumstances here which would justify a departure from the general rule. The right of terminating the contract is one which operates impartially in favour of both parties; the object is to secure to each a reasonable time for such new arrangements as may be necessary. And that object is substantially attained by calculating the term of the notice civiliter. It was suggested that the legal rule was not applicable in dealing with a calendar month. There is no reason why the civil basis of calculation should not be thus applied. An instance of its application in the case of a calendar year will be found in the Consilium of Coren (No. 22) which was referred to in Cock v The Cape of Good Hope Marine Company (3 Searle at p. 119) a case in which a period of 12 calendar months was computed civiliter. That method was also approved by the Transvaal Court in calculating a period of 6 calendar months. (Lammas v Nicholls and Alderson (1911 T.P.D. 968.) I am of opinion, therefore, that a month's notice may be given at any time on the first day of the month and that in intendment of law such a notice covers the entire month. This view is not opposed to the decision either in Fulton v Nunn or in Pemberton v Kessell. In the latter case, however, I am reported (no doubt correctly) to have said that if reasonable notice was to run with a monthly period "it must be given at the end of the preceding month." That was a dictum which did not affect the decision, but which I must take the opportunity of qualifying. The point intended to be emphasised was the necessity for a full month's notice terminating with a monthly period. An obvious way of ensuring that was to give the notice on the preceding day, which would comply with the requirements of a mathematical calculation. The question whether

De Villiers, J.A.

the same result could not legally be attained by notice on the first day of the month did not arise and was not under consideration. Had it been, less general language would have been used. The same consideration no doubt explains the decision in Sitterding v Hermon Lime Co.

I have dealt with the matter on the assumption that the contract was one for an indefinite period at a monthly wage. In my opinion that is the proper construction to be placed upon the facts as they stand. Had the evidence shown that the original engagement was for one month only and that there had been a series of tacit relocations on the same basis thereafter, the case would have been even clearer against the appellant. Because notice would only have been necessary in order to prevent - a tacit relocation on the 1st January. That necessity could not arise until the month of December had begun. And assuming that under such circumstances a reasonable intimation...