Feinstein v Baleta

• Jurisdiction: South Africa
• Judge: De Villiers CJ, Wessels JA, Curlewis JA, Stratford JA and Roos JA
• Judgment Date: 19 March 1930
• Citation: 1930 AD 319
• Hearing Date: 06 March 1930
• Court: Appellate Division

Roos, J.A.:

This appeal raises the question of the validity of a by-law passed by the Benoni Municipality under authority derived from Act 39 of 1927, sec. 3, and Ordinance 4 of 1928 (Transvaal) sec. 6, sub-sec (3).

The Act gives Provincial Councils power to make Ordinances "providing for the restriction, regulation and supervision (including the prohibition of trading within specified limits of time or place) of persons carrying on business as hawkers or pedlars . . .

Roos, J.A.

and by Ordinance to confer upon any local authority the power to make regulations or by-laws providing for such restriction, regulation and supervision."

Acting under this power the Transvaal Provincial Council has in sec. 6, sub-sec. (3) of Ordinance 4 of 1928 given local authorities in the Transvaal the right of "restricting, regulating, supervising and licensing pedlars and hawkers (including the prohibition of trading within specified limits of time or place)."

The by-law passed by the Benoni Municipality reads as follows: "No person shall act as a hawker or pedlar or trade or exhibit his wares in either such capacity: (1) In that portion of Harpur Avenue lying between Fort Street and Bedford Street in the Township between the hours of 9 o clock a in and 4 o clock p m.; (2) In the hereinafter specified areas in the Municipality of Benoni save between the hours of 6 o clock a in and 2 o clock p m. (A) (1) Wilstead Street from Bedford Avenue to Harpur Street; (2) East Street between the Southern boundary of the Kleinfontein Power Station site and the southern boundary of Prince's Avenue Extension; (3) Woburn Avenue between Wilstead Street and East Street; (4) Cranbourne Avenue between Wilstead Street and East Street; (5) Prince's Avenue Extension between Wilstead Street and East Street; (6) Ampthill Avenue between Wilstead Street and the Main Reef Road; (7) Lake Avenue between Wilstead Street and the western boundary of the Kleinfontein Electric Power line right of way. (8) Harpur Avenue between Wilstead Street and the western boundary of the Kleinfontein Electric Power Line right of way. (B) Any spot to which the public has access and being within a radius of: (1) Half a mile from the Kleinfontein Mine Railway Level Crossing west of the Benoni Hotel on the main Benoni-New Modderfontein Road; (2) Half a mile from the, junction of the Main Reef Road and the Benoni-Brakpan Road at the Van Rhyn Deep Gold Mine; (3) half a mile from the beacon W.B.R on the boundary of the farms Benoni No. 3, Rietfontein No. 4, and Brakpan No. 5; (4) Three quarters of a mile from the farm beacon B.V.M on the boundary of the farms Benoni No. 3, Modderfontein No. 6, and Vlakfontein No. 7; (5) Half a mile from the beacon M.F. 19 on the boundary of the farms Modderfontein No. 6 and Vlakfontein No. 7; (6) Three quarters of a mile from the Mine Recreation Hall of the New Modderfontein Gold Mine;

Roos, J.A.

(7) Three quarters of a mile from the Aline offices of the Modderfontein Deep Levels Gold Mine; (8) Three quarters of a mile from the Mine offices of the Modderfontein B Gold Mine; (9) Three quarters of a mile from beacon M.F. 31 on the boundary line between the properties of the Modderfontein B Gold Mines and the Modderfontein East Gold Mine." The prohibition which arises in this action is that set out in B (7) of the by-law.

The evidence called in this case shows that the areas concerned, although only portion of the area of the municipality, largely affect the trade of hawkers, as those areas comprise the mining areas within the municipality and the hours allowed make it difficult if not impossible for the great majority of the natives employed on the mines to trade with the hawkers. The time allowed hawkers for their trade is confined to the time when these natives are working on the mines. The hawkers' trade in Benoni was built up primarily on the business done with mine natives, and the hawkers' modus operandi, as in this case, was to select a spot between the concession store of a mine and the Native Compound to intercept the native trade which might otherwise flow to the store.

In the case of Mary Antony v Benoni Municipality (1929 TPD 902) it was stated by TINDALL, J that the evidence showed that the effect of this by-law was "to put a certain class of hawker and pedlar out of business altogether" and also "that the object of the by-law is to eliminate the hawker trading with natives." On the ground that the evidence justified the inference that the Council's object corresponded with the effect of the by-law and was the prevention of all competition by hawkers with storekeepers trading with mine natives. TINDALL, J held that the by-law was unreasonable and ultra vires.

The case of Mary Antony v Benoni Municipality was not taken to appeal to this Court and the present case is one in which a storekeeper seeks to interdict a hawker from carrying on business during the hours prohibited by the by-law in question in a prohibited area on the Main Reef Road near his store and between his store and the native compound of the Modderfontein Deep Gold Mine.

In the judgment the case of Mary Antony v Benoni Municipality was followed and the present appeal is to test the correctness of that decision.

Roos, J.A.

In interpreting the Act and the Ordinance we are urged to consider the numerous attempts made by the municipalities of the East Rand to deal with hawkers who had largely made their businesses stationery ones and by drawing up their lorries and carts at certain spots or within a narrow radius, all day long, had practically converted their vehicles into fixed stores. In many cases the by-laws passed to deal with this position were declared ultra vires and we are urged to hold that this was the reason for the enactment of the provisions of sec. 3 of Act 39 of 1927 set out above. This section is, however, of general application to all the Provinces of South Africa and without knowing what the position was in the other Provinces it would be difficult for us to hold that this general Act was passed solely to meet the wishes of a few municipalities on the East Rand. The section must, therefore, be interpreted without any assistance derivable from the long controversy between the Rand municipalities and the hawkers.

Now it seems to us that when the Legislature gives powers to Provincial Councils for "restriction, regulation and supervision" and then expressly adds the words "including the prohibition of trading within specified limits of time and place," it intends to make it quite clear that the words "restriction, regulation and supervision" should be widely and not narrowly interpreted. It may be conceded at once that a certain measure of prohibition would be permitted even if the words stood alone and even if the governing word "restriction" were...