Hleka v Johannesburg City Council

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Centlivres JA, Greenberg JA, Schreiner JA and Van Den Heever JA
• Judgment Date: 14 December 1948
• Citation: 1949 (1) SA 842 (A)
• Hearing Date: 01 November 1948
• Court: Appellate Division

Van den Heever, J.A.:

This is an appeal, leave having been obtained, against a judgment of the Transvaal Provincial Division dismissing an appeal against a conviction before the additional magistrate, Johannesburg. The charge alleged a contravention of Rule 31 of Chapter 1 of the Rules framed under Reg. 3 of the Regulations in the Annexure to Proclamation 76 of 1944, as amended, and promulgated under Government Notice 890 of the 2nd May, 1947, in that the accused, being the registered occupier of a site in the Emergency Camp for Natives, Johannesburg, failed to pay within one month the sum of £1 4s. 6d. for which he was liable on the 1st June, 1947, under Rule 32 of the said Chapter. Appellant pleaded not guilty but was convicted and the sentence recorded was 'fined 10s. or 5 days' imprisonment with hard labour and ordered to pay arrears of £1 4s. 6d. by 31st October, 1947, or in default, 14 days' imprisonment with hard labour'.

It appears from the evidence that from 1939 onwards large concentrations of natives grew up in and around Johannesburg. As Mr. Venables, the manager of the Non-European Affairs Department of the City Council for Johannesburg, stated in evidence:

'These people had taken forcible possession of land and had erected thereon various types of structures, principally sacking. In the Orlando area alone there were approximately 40,000 native squatters concentrated on approximately an area a mile square. There were no services - essential services - for these people; that is, they were not provided with sanitation, rubbish removal, or supply of water. There was a very grave danger to the health

Van den Heever JA

of the inhabitants of this city. There was no adequate form of control or discipline in these squatters' camps, and the circumstances in which these people were living constituted a grave threat to the public peace.'

To remedy this situation a number of War Measures were passed. War Measure 31 promulgated under Proc. 76 of 1944 introduced 'Regulations for the ejectment of persons unlawfully occupying land'. As amended by War Measure 96 of 1944 they read as follows:

'1. Whenever it appears to a magistrate from sworn statements in writing placed before him by the owner or occupier of any land or building situate within his district -

(a)

that any persons have entered upon such land or building without the permission of the said owner or occupier, are remaining thereon or therein against his will and refuse, despite warning, to depart therefrom; and

(b)

that the conditions and the circumstances under which such persons are living on or in the land or building are such that unless they are without delay removed therefrom, the health or safety of the public generally or of any class or classes of persons (including the said persons themselves) or the maintenance of peace and good order, may be endangered,

the magistrate may take all such steps as appear to him to be reasonably necessary -

(1)

to effect the immediate removal of such persons and their families and dependants, if necessary by force, from that land or building;

(2)

to effect the transfer of such persons and their families and dependants to such other place, whether within or without the said magistrate's district, as ne may indicate.'

These regulations were amended from time to time; War Measure 18 of 1947 provides that persons removed to any place under War Measure 31 of 1944 may again be removed from that place if the magistrate or native commissioner is satisfied

'that the said place provides no suitable accommodation for the said persons, or that they can be more suitably accommodated elsewhere, or that they have no proper employment within a reasonable distance from such place.'

The Afrikaans version reads:

'Dat bedoelde plek nie paslike huisvesting vir genoemde persone aanbied nie, of dat hulle elders op meer geskikte wyse onderdak kan kry. . . .'

No. 4 of the Regulations published as an Annexure to War Measure 18 of 1947, introduces a new Reg. 3 containing the following paras.:

'(i)

Any local authority (as defined in sections seven and nine of the Public Health Act, 1919 (Act 36 of 1919) may, in addition to any powers that it has in terms of any other law, establish within the area over which it has jurisdiction an emergency camp for the purpose of the accommodation of homeless persons, and may issue rules, which shall be subject to

Van den Heever JA

the approval of the Governor-General, providing for the administration, maintenance, control, sanitation and health of the said emergency camp.

(j)

Without prejudice to the generality of the powers conferred under paragraph (i), the said rules may in particular -

(i)

provide for fees or charges to be levied in respect of any accommodation or service supplied;

(ii)

. . .

(iii)

provide penalties in respect of the contravention of such rules, not exceeding on first conviction a fine of ten pounds or of imprisonment for a period of two months, or both such fine and such imprisonment, . . .'

Exercising the power so conferred the City Council of Johannesburg made and the Governor-General approved 'Rules for the Administration and Control of the Emergency Camp for Natives: Johannesburg', promulgated under Government Notice 890 of the 2nd May, 1947.

Rule 31 provides:

'Any person failing to pay any sum for which he is liable in terms of the provisions of this Chapter within one month from the date on which it becomes due and payable, shall be guilty of an offence and upon conviction may, in addition to any penalty the Court may impose, be ordered by the Court to pay, within such period as the order may specify, the amount which is found to be owing by him, or, in default of payment within such period, to be imprisoned for a period not exceeding one month . . .'

Rule 32 provides that every site permit holder shall pay to the Council monthly in advance the sum of 15s. per month

'as an inclusive charge to cover rent for the use of such site and in respect of the provision by the Council of the services provided in the camp'.

It is common cause that appellant was a site permit holder and occupied with his family a site in...