Benator NO v Worcester Court (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1983 (4) SA 126 (C)

Benator NO v Worcester Court (Pty) Ltd
1983 (4) SA 126 (C)

1983 (4) SA p126

Citation	1983 (4) SA 126 (C)
Court	Cape Provincial Division
Judge	Munnik JP, Van Den Heever J and Schock J
Heard	March 14, 1983
Judgment	June 6, 1983

Flynote : Sleutelwoorde

Landlord and tenant — Rent Control Act 80 of 1976 — Powers of State President to characterise premises and/or tenants as protected in terms of s 52 (1) thereof — State President, in Proc 91 of 1980, purporting to H classify premises/tenants as protected by reference to Housing Commission determinations made pursuant to Housing Act 4 of 1966 — Such determinations not promulgated and accordingly inoperative by virtue of s 13 (1) of Interpretation Act 33 of 1957 — State President moreover, in terms of s 52 of Rent Control Act, not empowered to delegate his powers to the Housing Commission.

Landlord and tenant — Rent Control Act 80 of 1976 — Proclamation 32 of 1983 promulgated thereunder — Such stated to apply with effect from 23 May 1980, but nonetheless not affecting then pending matters as if it were then already extant.

1983 (4) SA p127

Headnote : Kopnota

The State President in Proc 91 of 1980 used the power conferred upon him by s 52 (1) of the Rent Control Act 80 of 1976 to phase out completely the absolute protection determined solely by date of occupation in the two previous proclamations by defining the class of dwelling to which Act 80 of 1976 applied by reference to the date of occupation coupled with the financial status of the tenant. The method adopted to achieve A this object was, however, singularly inept. Proclamation 91 of 1980 and its predecessors purport to elevate a determination of guidelines for one purpose under the Housing Act 4 of 1966 into legislative definition of a characteristic of premises or classes of premises in terms of s 52 (1) of the Rent Control Act. Even were it successful, it is in a measure illogical. What is determined by the Housing Commission as the outside B limit of the parameters within which it is prepared to consider subsidizing in individual cases from State funds, is taken as the uniform norm of a tenant's financial status meriting interference with a lessor's common law rights. It could surely never have been the intention that, after the date on which Proc 91 of 1980 appeared, tenants one moment unprotected by the Rent Control Act should become protected by the mere fact of a new determination by the Housing Commission C under the Housing Act, without any intervention by the State President in terms of s 52 of the Rent Control Act to adopt each new determination as his own. After all, s 52 authorizes the State President to legislate and does not authorize him to delegate his powers to the Housing Commission. Furthermore, in terms of both s 13 (1) of the Interpretation Act 33 of 1957 and of the common law, a statutory enactment as a rule binds the subjects of a State only after they have been informed of the D Legislature's commands. Section 52 itself provides for promulgation by notification in the Gazette. Since Proc 91 of 1980 left the content of the Housing Commission's determination unpromulgated, the proclamation was a body without a heart and did not bring into operative life the whole as it intended to do. While there are other difficulties with the proclamation and its interpretation, they all pale into insignificance against this fatal flaw: non-promulgation of a vital portion of E its contents.

In an appeal from an order of ejectment, the appellant, as respondent in the Court a quo, having averred that he was a protected tenant in terms of the Rent Control Act 80 of 1976, read with Proc 91 of 1980, it appeared that Proc 91 of 1980 had been replaced by Proc 32 of 1983 after the Full Bench had already reserved judgment on appeal. Two issues arose for consideration at that stage, namely whether the papers could be supplemented with evidence to show what the Housing F Commission's determination of income categories was as at 23 May 1980, and whether Proc 32 of 1983 (the provisions of which were stated therein to apply with effect from 23 May 1980) was retrospective in the sense that it undid pending litigation and rent increases in the case of tenants in occupation at promulgation.

Held, that, in the light of the above, no purpose would be G served by allowing the papers to be supplemented as sought.

Held, further, that there was nothing to indicate that it was intended that the law as set out in Proc 32 of 1983 was also to be applied to pending matters as though it were then already extant.

The decision in Worcester Court (Pty) Ltd v Benator 1982 (4) SA 714 (C) confirmed but for different reasons.

Case Information

Appeal to the Full Bench from a decision of COMRIE AJ. The H facts appear from the reasons for judgment.

A J Smit for the appellant.

M W Odes SC (with him P Meyerowitz) for the respondent.

Cur adv vult.

Postea (June 6).

1983 (4) SA p128

Judgment

Van den Heever J:

Mr Benator leased a flat including a maid's room and garage from respondent on 9 December 1974. These premises were first occupied after 1949 and before 1966. The A lease was renewed periodically. He occupied the flat along with his wife and two independent children. The son, a doctor furthering his studies, was paying the rental in the name of his father at the time when respondent gave the tenant two months' notice in terms of the latest lease. The tenant refused B to leave. Respondent applied on motion for ejectment and damages. The tenant claimed the protection of the Rent Control Act 80 of 1976. The application was successful, hence the present appeal, in which his estate replaces the tenant, since deceased. I shall, however, for the sake of convenience refer to the tenant as the appellant. Counsel informed the Court that it was common cause that, at that initial hearing, the tenant's C widow agreed to be bound by the judgment. There was no attempt to intervene to claim rent control protection in her own right, qua widow.

The Court a quo held that the onus lay on appellant (then respondent) to prove that he was entitled to the protection claimed, and that he had failed to discharge the onus.

D On appeal, Mr Smit for appellant conceded, correctly in my view, that the onus lay on a tenant to establish facts which place him within the protection of the Act (cf Myaka v Havemann and Another 1948 (3) SA 457 (A)). He argued, however, that since the ambit of the protection intended to be afforded by the Legislature to control or de-control the rent of buildings E occupied for the first time after 1949 is a matter of law there was no onus on him to prove what the law is.

It is unnecessary to detail the history of legislation in this field from the time of the original Tenants' Protection (Temporary) Act 13 of 1920 to today. That history is set out in The Rents Act in South Africa by Rosenow and Diemont and F demonstrates that what was originally intended as a temporary measure, inter alia, to combat rack-renting, immediately after the First World War, by its repeated extension by re-enactment exacerbated the housing problem because it discouraged private individuals and companies from providing housing, and, later, also business premises, for those unable or unwilling to provide their own.

G What is relevant to the present inquiry is the legislation since 1950. The pattern of control has changed considerably since then. At first buildings were subject to control according to their age: the date when first occupied. Legislative power by-passing Parliament enabled that date to be H altered. Later the pattern was to confer protection on tenants or classes of tenants according to their needs rather than to impose control on buildings merely because of their age, the legislative discretion by-passing Parliament being broadened so that not only dates determining total control of a building (and corresponding total privilege for its tenants) could be altered, but qualified control could be introduced or even legislation ad hoc by subjecting individual premises to control or releasing others from control.

Act 43 of 1950 applied rent control only to buildings occupied

1983 (4) SA p129

Van den Heever J

before 21 October 1949. Section 33 (1) (A), inserted by s 9 (c) of Act 54 of 1966, authorised extension of the operation of the Act, by proclamation, to buildings erected later. The operation of the Act was so extended by Proc 317 of 1966 on 4 October 1966 to include buildings occupied after 21 October 1949, but A before 1 June 1966, in areas for which rent boards had been constituted.

Then Act 43 of 1950 was superseded by Act 80 of 1976, which creates the machinery for phasing out rent control. The legislative power bypassing Parliament that had been provided for in s 33 (1) (a) of Act 43 of 1950 is retained in s 52 of B the later statute.

This later statute (Act 80 of 1976) excluded certain premises from the operation of the Act, inter alia, dwellings and business premises not occupied or used before 21 October 1949 (vide s 51 (f)) and gave the relevant Minister power to exempt C even pre-1949 premises from rent control

"by notice in the Gazette unconditionally or on such conditions as he may determine"

(vide s 51 (g)).

However, the future imposition of rent control on post-1949 properties...