Desai v Wessels and Torlage and Another

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: James J
• Judgment Date: 03 January 1964
• Citation: 1964 (1) SA 783 (D)
• Hearing Date: 13 December 1963

Desai v Wessels and Torlage and Another
1964 (1) SA 783 (D)

1964 (1) SA p783

Citation	1964 (1) SA 783 (D)
Court	Durban and Coast Local Division
Judge	James J
Heard	December 13, 1963
Judgment	January 3, 1964

Flynote : Sleutelwoorde A

Land — Group Areas Amendment Act, 77 of 1957 — Sec. 5 (3) permissive — Object of section — Secretary not obliged to call for proposals — Proposals only have to be called for before Board considers them under sec. 5 (2).

Headnote : Kopnota

B Section 5 (3) of Act 77 of 1957 is permissive. This section was inserted to provide for cases in which the Secretary for Community Development does not feel competent, because of the difficulties and obscurities in the racial distribution in a particular area, to make any provisional preliminary division of a town or district into possible racial group areas. He is given the right to call for proposals in regard to the area generally from all persons interested, but is not obliged to do so.

C It is for him to come to a preliminary view as to what areas should be considered by the Board as possible areas for proclamation for ownership and occupation by a particular racial group and, if he does so, then, before the Board considers the proposals, persons having an interest therein must be given an opportunity to make representations in terms of section 5 (2). D

Case Information

Return day of a rule nisi. The facts appear from the reasons for judgment.

L. R. Dison (with him R. C. P. Allaway), for the applicant.

H. J. May, Q.C. (with him J. Allan Howard), for the respondents.

Cur adv vult.

Postea (January 3rd). E

Judgment

James, J.:

On 2nd August, 1963, the Secretary for Community Development published in proper form a notice to the effect that the Group Areas F Board would enquire into the desirability or otherwise of proclaiming in terms of sec. 20 of Act 77 of 1957, as amended, certain areas within the Borough of Port Shepstone and a portion of the adjoining Town Board Area of Marburg as group areas for specified racial groups. The notice further invited written representations from interested persons and G intimated that if the Group Areas Board. after considering the written representations, wishes to interrogate or hear any person in regard to his representations the person concerned would be notified of the time and place where a committee of the Board would, on the occasion of a public enquiry, hear him.

On 8th November, 1963, notice was duly given in the appropriate H newspapers that such a public enquiry would be held on 19th November, 1963, in the Memorial Hall at Port Shepstone by a committee of the Group Areas Board and persons who had lodged representations were invited to present themselves to the committee on that day. It was stated that the committee would then indicate which persons might appear before it, which persons would be interrogated by it, and which persons it would allow to be interrogated in terms of the Act.

The areas which it was proposed to investigate were reflected on a

1964 (1) SA p784

James J

map which was available for inspection by the general public. Certain portions marked on the map as 11 and 12 were indicated as possible areas for Indian occupation, certain others marked B3/13 and B4/14 were to be A investigated as possible areas for either the White or the Indian Group, while other areas were indicated as possible areas for ownership and occupation by Europeans.

The applicant is a member of the Indian Group carrying on business in what he describes as the Indian business area in Port Shepstone. In his B founding affidavits he states that this Indian business area is bounded by the following streets, namely Robinson Street, Wooley Street, Shepstone Street and Wood Street; but that only a portion of that area falls into the area, described as B3/13 on the plan, which is to be investigated as a possible area for either the Indian or the White Groups, while the balance falls into an area in respect of which the only proposal is that it should be proclaimed for ownership and C occupation by members of the White group. This application is in essence concerned with the consequences flowing from the failure to include the whole of what is claimed to be the Indian business area in the area B3/13 and including a portion of it in an area suggested for ownership and occupation solely by Europeans. In this judgment I shall D describe the so-called Indian business area not included in the area B3/13 as the excluded area.

In response to the notice of 2nd August, 1963, elaborate written representations were sent to the Secretary for Community Development on behalf of the Port Shepstone Indian community making the case that the E whole of what the applicant describes as the Indian business area including the excluded area should be reserved for the Indian group. These written representations are attached to the founding affidavit and are marked 'D'.

When the enquiry by the Committee of the Group Areas Board commenced its F sitting at Port Shepstone, on 19th November, 1963, the applicant through his legal representative requested an adjournment of the enquiry for reasons which may be summarised as follows:

(a)

In respect of the excluded area, the only proposal which the Committee was lawfully entitled to consider was the proposal set out in the notice of 2nd August, 1963, namely whether it should G be proclaimed for European ownership and occupation. It was accordingly argued that the Committee could not consider a proposal that it should be proclaimed for Indian ownership...