Byers v Chinn and Another

• Jurisdiction: South Africa
• Judge: Solomon CJ, De Villiers JA, Wessels JA, Curlewis JA and Stratford JA
• Judgment Date: 02 March 1928
• Citation: 1928 AD 322
• Hearing Date: 17 February 1928
• Court: Appellate Division

Byers Appellant v Chinn and Another Respondents
1928 AD 322

1928 AD p322

Citation	1928 AD 322
Court	Appellate Division, Bloemfontein
Judge	Solomon CJ, De Villiers JA, Wessels JA, Curlewis JA and Stratford JA
Heard	February 17, 1928
Judgment	March 2, 1928

Flynote : Sleutelwoorde

Statute — Necessity for promulgation — Qualifications to general rule — Presumption of due notification — Omnia praesumuntur rite esse acta donec probetur in contrarium — Regulation of rights to water under Boedels Erven Act 38 of 1905 (C.).

Headnote : Kopnota

The general rule that before a law or any regulation or by-law having the force of law can become operative it must be duly promulgated, must be read subject to the qualifications that the word "law" in the rule must not be given too wide a connotation and that the enabling enactment must be looked to in order to see whether the necessity for promulgation is or is not excluded.

Certain regulations had been made under Cape Act 29 of 1881, as amended by Act 8 of 1883, by a village management board dealing with the distribution of the water of a stream among the erf-holders of the M location. Thereafter, by a proclamation of 1907, under the Boedels Erven Act 38 of 1905, the location was declared to have ceased to exist. The Act provided that each erf-holder was to have allotted to him a portion of the adjoining commonage if three-quarters of the erf-holders of any location agreed to a sub-division of the commonage. A Board appointed under the Act had power to regulate the times during which each erf-holder should be entitled to the water running through his land. The commonage of M was duly sub-divided and appellant and respondents as erf-holders in M each obtained a portion. A resolution was passed by the Board constituted under the Act of 1905 that the regulations dealing with the distribution of water at present in force, namely, those made under the Act of 1881, should be adhered to. There was no evidence of any publication of this resolution. The appellant instituted action in a magistrate's court in which he successfully sued the respondents for damages resulting from their wrongful diversion of water. On appeal from a decision of a local division reversing this decision,

Held, that after the location ceased to exist by virtue of the proclamation of 19017 the regulations under the Act of 1881 were no longer applicable.

Held, further, that no promulgation of the resolution passed by the Board under the Act of 1905 was necessary both on the ground that the enabling statute (the Boedels Erven Act of 1905) was so framed and in such circumstances as to indicate that the usual requirements as to promulgation were to be dispensed with and on the ground that the decision of the Board as to the allocation of water was not a "law" requiring promulgation.

1928 AD p323

Held further, that some form of notice of the resolution was necessary, such as notice to each of the erf-holders, or local publication reasonably accessible to the parties, or a notification that the board's decision was to be given at a certain time and place to which they had access.

Held further, that in all the circumstances of the case the appellant was entitled to the benefit of the maxim omnia praesumuntur rite esse acta donec probetur in contrarium, that in the absence of proof to the contrary some such form of notification should be presumed to have been given and that the resolution therefore governed the rights of the parties.

The decision of the Eastern Districts Local Division in Chinn and Another v Byers, reversed.

Case Information

Appeal from a decision of the Eastern Districts Local Division (GRAHAM, J.P., and PITTMAN, J.) on appeal from a decision of the magistrate's court of Stockenstroom.

The facts appear from the judgment of STRATFORD, J.A.

C. A. Beck, K.C., for the appellant: It was never contemplated that Act 38 of 1905 (Cape) should deprive owners of the water rights they had under the regulations promulgated under Act 29 of 1881 (Cape). The question whether the resolution of 1906 was promulgated or not is irrelevant as it provided merely that the regulations under Act 29 of 1881 were to be adhered to.

Act 29 of 1881 is not inconsistent with Act 38 of 1905.

No statute operates to repeal or modify the existing law, whether common or statutory, or to take away rights which existed before the statute was passed unless the intention is clearly expressed or necessarily implied. See Halsbury's Laws of England (vol. XXVII, p. 167, para. 319). In any case the onus is on the respondents to prove that the deproclamation of Menzies as an urban area took away appellant's water rights.

Sec. 11 of Act 38 of 1905 merely gives the Board constituted under that Act the power to regulate the times at which the water is to he distributed. Such a regulation does not require promulgation as it deals with an administrative act. Even if Rex v Koenig (1917 CPD 225) applies to this case, all that was required was notice to all parties concerned.

O. H. Hoexter, for the respondents: The urban regulations under Act 29 of 1881 lapsed on the deproclamation of Menzies as an urban area.

The object of the sub-division under Act 38 of 1905 was to change the area into a rural area. If the water regulations are still in force all the other regulations undo, Act 29 of 1881 must also

1928 AD p324

be in force though only applicable to an urban area, which reduces appellant's argument ad absurdum.

The proposed rural regulations are not in force because they were not promulgated. Promulgation is necessary. See Rex v Jizwa (11 C.S.C at p. 393); Crow v Aronson (1902, T.S at p. 259); Rex v Carto (1917, E.D.L at p. 96); Rex v Koenig (supra); Ismail Amod v Pietersburg Municipality (1904, T.S at p. 323); Rex v Ferreira (12 E.D.C. 91). Sec. 7 of Act 5 of 1883, referred to in the last case, is in the same terms as sec. 16 of Act 5 of 1910. See also Rex v Tatton (1915, C.P.D at p. 393).

Even though there are no penalties in the regulations promulgation or notice to the parties concerned is necessary.

[SOLOMON, C.J.: What notice or promulgation would be sufficient?]

The evidence shows that there was no notice and I would rather leave the question of sufficiency of promulgation open as KOTZÉ, I left it open in Rex v Tatton (supra). The onus of proving notice is on the appellant. The maxim omnia praesumuntur rite esse acta does not apply.

Beck, K.C., replied.

Cur adv vult.

Postea (March 2nd.).

Judgment

Stratford, J.A.:

The appellant in these two cases was plaintiff in the lower court in which he sued the respondents for damages altered to result from their wrongful diversions of water to which he claimed to be entitled. The magistrate found for the plaintiff, but his judgment was reversed by the Eastern Districts Local Division and the plaintiff now appeals to this Court.

Each of the three parties to this dispute is the owner of property in Menzies in the district of Stockenstroom. Prior to 1907 Menzies was a location divided into erven and fell tinder the provisions of the Village Management Act of 1881 (as amended by an Act of 1883). The Village Management Board constitutes tinder that Act made regulations for the distribution of the water which is the subject of the present dispute, among the various erf-owners. Water was allotted to Erf No. 2, now owned by respondent Chinn, on Wednesdays and Thursdays, to Erf No. 3, now owned by respondent Els, on Fridays and Saturdays, and

1928 AD p325

Stratford, J.A.

to Erf No. 4, now the property of the appellant, on Mondays and...