Armitage, NO v Mtetwa

• Judge: Millin J, and Malan J
• Judgment Date: 23 September 1946
• Citation: 1950 (1) SA 439 (T)
• Hearing Date: 17 September 1946
• Court: Transvaal Provincial Division

Millin, J.:

This is an appeal from a judgment in the court of the magistrate of Johannesburg allowing with costs an exception to the plaintiff's summons as disclosing no cause of action. The plaintiff (now appellant) sued in his capacity as the duly appointed and licensed superintendent of Orlando, a native location administered

Millin J

in terms of Act 21 of 1923 as amended (now Act 25 of 1945). It was accepted at the hearing of the exception and before us on appeal that the land constituting the location and the houses upon the sites into which the land is divided are the property of the City Council of Johannesburg.

The plaintiff alleged in the particulars of claim that in his capacity as superintendent he granted the defendant, as a visitor a temporary permit to occupy a house in the location numbered 3,004 from the 4th December, 1944, to the 4th March, 1945. On the 9th August, 1945, the defendant was still in occupation of this house. The plaintiff was entitled by virtue of reg. 5 (b) of the native location regulations of the City Council of Johannesburg, promulgated under sec. 23 (3) of Act 21 of 1923, to call upon any person found in occupation or possession of any dwelling or site to establish his right thereto. The regulation provides that if a person so called upon fails to establish that he is the registered occupier of the house or site or a bona fide dependant or member of the household of such an occupier the superintendent may order him to remove forthwith from the location. On the 9th August, 1945, the defendant was called upon by the plaintiff to establish his right to occupy the house in question and he failed to do so. Thereupon the plaintiff caused an order in writing to be made upon the defendant to vacate the house. The defendant, it was said, remained in occupation of the house wrongfully and unlawfully and refused to vacate it, the value of the occupation being a sum not exceeding 17s. 4d. per month.

The claim was for an order of ejectment. This clearly means ejectment from the house and not from the location as a whole. A claim for the ejectment of the defendant from the location would not have been competent in a magistrate's court (Johannesburg City Council v Makaya (1945 AD 252, at p. 258)). The reference to the value of the occupation of the house could only have been intended to show the magistrate had jurisdiction to entertain a claim for ejectment from the house. Documents annexed to further particulars to...