The Court of Appeal of the Republic of Botswana, on 7th May 2021, handed down Judgment in the matter between Therapy of Love (Pty) Ltd and Gaborone City Council in which it made important pronouncements with regards to the sufficiency of notice preceding legal proceedings in terms of Section 3 of the Local Authorities (Proceedings) Act (Chapter 10:04) (Local Authorities Proceedings Act).
The court made a significant finding that a notice in terms of Section 3 of the Local Authorities Proceedings Act which substantially complies with the requirements of the notice is sufficient to sustain legal proceedings and cannot be struck down due to technical deficiencies.
Section 3 of the Local Authorities Proceedings Act provides as follows: “No action shall be brought against a local authority unless at least 30 days’ written notice of an intention to bring such action has been served on the local authority.”
The brief facts of the matter were that sometime in 2017, Therapy of Love obtained an interdict against Gaborone City Council preventing the latter taking down its billboards, which Gaborone City Council alleged were illegally erected, pending judicial review proceedings of the decision to remove the billboards. Notice in terms of the Local Authorities Proceedings Act was issued by the attorneys for Therapy of Love, which notice, while including the cause of action and the relief to be sought, did not include the name of the party whom the attorneys for Therapy of Love were acting for (and on whose behalf the notice was issued).
This letter had, however, been preceded by an earlier letter from the same attorneys, which clearly stated Therapy of Love as being the aggrieved party, and, demanded the Gaborone City Council to cease its actions.
When the review proceedings were brought pursuant to the notice, the Gaborone City Council’s attorney took the point that the notice was deficient in that it did not state the name of the aggrieved party at whose behest the notice was issued, and as such the application should be struck out. The High Court agreed with this point, and duly struck out the application.
On appeal, the Court of Appeal correctly noted that the giving of a notice to a local authority was to afford such local authority the opportunity to investigate the question of its liability and to consider whether it should meet the claim before getting itself involved in costly legal proceedings. The court agreed that the complete absence of a notice would render proceedings a nullity. However, whether any defects in a notice render the notice ineffective, had to be considered in the context of the surrounding circumstances. The court restated the position that in the interpretation of statutes the factual matrix and the surrounding circumstances were crucial in the reading of a statute.
The court then considered the facts of the matter and the practical question of whether the Respondent was aware that Therapy of Love was the notice giver. The court considered the fact that in correspondence preceding the application for the interdict, the Appellant’s name was clearly provided, and the Respondent participated fully in the proceedings that followed. There was nothing in the record to suggest that any other party was engaged in such proceedings. The notice in question had been given in the course of proceedings for an interdict, in which the Gaborone City Council knew very well who was involved. There was no reason for the Counsel to suspect that any person other than Therapy of Love was involved in the matter.
The Court therefore concluded that there was substantial and sufficient compliance with Section 3 of the Local Authorities Proceedings Act. The court pointed out that in the circumstances of the matter, the “parochial view that the mere absence of the notice giver’s name, without regard to the circumstances and facts surrounding the notice, renders the notice a nullity, cannot be sustained.” The court considered substance over form and dealt with the practical issue at hand.
*Obrien Bvindi is a Senior Partner and Head of the Specialised Commercial Litigation, Arbitration and Dispute Resolution Department.
