Evans v Schoeman, NO

• Jurisdiction: South Africa
• Judge: Centlivres JA, Greenberg JA and Schreiner JA
• Judgment Date: 04 December 1948
• Citation: 1949 (1) SA 571 (A)
• Hearing Date: 30 November 1948
• Court: Appellate Division

Centlivres, J.A.:

In 1946, the Government expropriated certain stands in Johannesburg from one Stephens, who had leased the stands to the appellant subject to the condition that the lease could be terminated on six months' notice given by either party to the lease. The appellant, who was carrying on a motor engineering business on the stands, was given six months' notice by the Government to vacate the premises by May 31, 1947. She was, however, subsequently allowed to retain possession of the premises, firstly until January 31, 1948, secondly until April 30, 1948, and thirdly until September 30, 1948. In the letter from the Department of Public Works giving her permission to retain possession of the premises until September 30, 1948, it was stated: 'It must be clearly understood, however, that occupation after that date cannot be allowed.'

Appellant having failed to vacate the premises by the last mentioned date, the respondent in his capacity as Minister of Public Works petitioned the Witwatersrand Local Division for an

Centlivres JA

order of ejectment against the appellant. This order was granted and the appellant appealed to this Court, both parties having filed a consent paper in terms of sec. 5 of Act 1 of 1911. This Court dismissed the appeal with costs and intimated that it would give its reasons later. The following are the reasons.

The only defence raised in this Court and in the trial Court to the application for ejectment was based on the provisions of sec. 2 (d) of Act 53 of 1947 as amended by Act 7 of 1948. If those provisions applied the appellant would have had a good defence to the claim for ejectment. Those provisions can, however, only apply if the Crown is bound by them. There are two cases in which this Court has considered whether a particular statute was binding on the Crown - Union Government v Tonkin (1918 AD 533) and South African Railways & Harbours v Smith's Coasters (Pty.) Ltd. (1931 AD 113). In the first case this Court held that the provisions of sec. 8 of the Transvaal Prescription Amendment Act of 1908 are binding on the Crown, the main ground of the decision being that when that Act was passed the Crown, in respect of property freely alienable, had already by its own consent been deprived of the benefit of the maxim nullum tempus occurrit regi. In the second case this Court held that the Crown is not bound by sec. 503 of the Merchant Shipping Act. In both cases this Court examined the authorities on the question in issue. In Tonkin's case, as was correctly pointed out by STRATFORD, J. (as he then was) in Transvaal Provincial Administration v Klerksdorp Municipality (1923 TPD 475 at p. 477), INNES, C.J., approved of the rule laid down by Lord ALVERSTONE in Hornsey Urban Council v Hennell (1902 (2), K.B. 73 at p. 80) viz. that the intention that the Crown should be bound, or has agreed to be bound, must clearly appear, either from the language used, or from the nature of the enactment. Lord ALVERSTONE did not qualify in any manner the rule which he formulated, but after adopting that rule INNES, C.J., said in Tonkin's case (supra, at pp. 541, 542):

'I may here remark that, in more than one case, the contention has been advanced that the above rule of construction only applies...