Feun v Pretoria City Council

• Judge: Blackwell J and Williamson AJ
• Judgment Date: 01 November 1948
• Citation: 1949 (1) SA 331 (T)
• Hearing Date: 10 September 1948
• Court: Transvaal Provincial Division

Blackwell, J.:

I agree with the judgment of WILLIAMSON, A.J. The crux of the matter in my opinion is the meaning to be assigned to the term 'town planning' as used in the enabling Act, Item 15 of the second schedule of Act 10 of 1913 as amended. Does it apply only to new and undeveloped areas or to settled areas as well? If the former, then the scheme under review in the present case, applying as it does in large measure, if not mainly, to old established parts of Pretoria, must pro tanto if not altogether be ultra vires. It is necessary at the outset to provide an answer to this question.

Blackwell J

As a matter of impression I would have no hesitation in saying that Parliament could have intended only the wider meaning, as otherwise possibly three quarters of the ambit of operation of all projected town planning schemes in the Transvaal might be destroyed. Why indeed should town planning be confined to undeveloped or virgin areas? Are the built up or partially built up areas to be left to remain in a state of disorganisation or even chaos, with none of the benefits which are expected to follow from orderly schemes of town planning? Such an answer would seem to carry its own refutation. Yet FEETHAM, A.J.A., who delivered the judgment of the Court of Appeal in the case of Rossmaur Mansions (Pty.), Ltd v Briley Court (Pty.), Ltd. (1945 AD 217) used language which expressed the view that the narrower meaning is the one to be preferred. He says, at p. 232:

'I come to the conclusion, therefore, that the term 'Town Planning' in Item 15 in its natural import refers only to planning of areas not already developed as urban areas over which the growth of a town is expected to extend.'

An obvious criticism to this dictum is its vagueness. What is an area 'not already developed'? Does it mean an area not fully developed, where e.g., there are already a few houses and shops, or does it mean an area which is still bare veld? And how is the local authority which is preparing a town planning scheme to know when it may begin and where it must stop short?

A second criticism, if I may be permitted with respect to make it, is that the dictionary meaning of town planning taken by the learned Judge from the Oxford New English Dictionary and made the basis of the dictum quoted above, does not in my view appear to be definite enough to warrant so definite a conclusion as that indicated in FEETHAM, A.J.A.'s dictum - a conclusion which has been widely read as amounting in effect to a finding that the whole of chap. 4 of the Town Planning Ordinance, 1931, is ultra vires and inoperative.

The language of sub-sec. (c) of Item 15 in its terms applies to an already developed area. In other words the Legislature expressing what in its opinion should come within the scope of town planning, clearly indicates that it may apply to existing subdivisions and lay out of the land. This in my view can be used as an argument that town planning could not have been intended by the Legislature to have the narrower meaning indicated by FEETHAM, A.J.A.

Blackwell J

If the passage to which my attention is being directed is an essential part of the decision in Rossmaur's case, then, even if I think it unsound, this Court is bound to accept and follow it, but I agree with my Brother WILLIAMSON that this particular dictum, important though it is, is obiter. What did the Court in Rossmaur's case have to decide? The question was whether sec. 29 of the Town Planning Ordinance of 1931 was intra vires or not. This was the section which gave the Administrator power to alter or remove restrictive covenants registered against the title of erven in townships. Sec. 29 does not fall within the chapter on town planning, but it was agreed that its validity depended on either Items 10 or 15 of the Schedule. Clearly, in the opinion of the Court of Appeal, Item 10 had little bearing on the matter, and the solid point was whether the principle of sec. 29 could be brought under Item 15 as an ingredient in town planning. FEETHAM, A.J.A., answered this question by examining the different sections of Item 15 and saying that none of them could possibly apply save (c), and that (c) could not apply since it postulated compensation where necessary, and that there was nothing about compensation to be found in sec. 29. Therefore, he said, sec. 29 could not be based on 15 (c). He then went on to consider the meaning of 'town planning', simpliciter, without the extensions particularised in the sub-sections which followed, and, after studying its dictionary meaning, came to the conclusion already mentioned. But the answer to the question whether or not the term 'town planning' was to be given an extended or restrictive meaning was not a necessary element in deciding the problem before him. The question was whether provisions such as those contained in sec. 29 could be justified as coming under the head 'Town Planning', and the answer to that question could be given without the questioner necessarily troubling himself, as to whether or not that term applied to built up areas.

I agree with WILLIAMSON, A.J., that a study of the local government legislation as it existed in 1925 in all four Provinces of the Union, shows that provisions of a wide-spread and far reaching nature, which to-day would be called town planning, existed in the bye-laws of the major local authorities, and that these provisions rested on Provincial Ordinances which in their turn rested on sec. 85 (vi) of the SA Act. The point is that these provisions: -

(a)

applied to existing built up areas, and,

(b)

were imposed ex post facto with no provision for compensation.

Blackwell J

By-law 127 in the present matter is a case in point. At the time of its imposition there were large built up areas in Pretoria. Nevertheless the Council said in effect to the erven-holders of these areas:

'notwithstanding the lack of any restrictive provision in your title deeds we shall not allow you to use your erven for business purposes unless they are situated in particular streets'.

And it says nothing about compensation.

This being the case it is very difficult for us to believe that the Legislature in an Act passed for the purpose of conferring additional powers on the Provinces could have intended to have taken a step backward instead of step forward, and to limit town planning to new areas, or to have contemplated compulsory compensatory provisions except as expressly stated in 15 (c). With great respect therefore, and having regard to the additional information now placed before us, we are prepared to say that we will adopt the wider meaning of town planning, and hold that it can apply to areas already developed, and reject the view, which seems to have arisen by reason of FEETHAM, A.J.A.'s dictum, that chap. 4 of the Town Planning Ordinance is ultra vires.

We must not however forget that the matter does not rest solely on the dictum in Rossmaur's case; there are three other subsequent decisions which although not on all fours with the case before us, tend definitely in the opposite direction to that in which this judgment has been moving.

The first is Rex v Davis (1946 TPD 510). The Court in that case had to consider the effect of sec. 52 (1) (b) (iv) of the Town Planning Ordinance as substituted by sec. 6 of Ordinance 10 of 1943. This is the section which confers on local authorities the power to prohibit a particular user of fixed property if in its opinion such user would prejudice a town planning scheme in course of preparation. Such a prohibition was applied by the municipality against the conditions of an existing title deed and when this prohibition was ignored it prosecuted the offender. The Transvaal Court held that this particular provision was ultra vires and it came to this conclusion mainly on its reading of the effect of Rossmaur's case. BARRY, J.P., then said at page 514:

'The learned Judge further was of the opinion that even if a Provincial Council was empowered under clause (c) of Item 15 to legislate and provide for the removal of restrictive conditions in titles to erven in a township, sec. 29 of the Ordinance of 1931, as amended, was not within the powers of the Council because of the omission of any provision for compensation.'

Blackwell J

But this would seem to us to involve a misapprehension of what the learned Judge did say. He was, as we have already seen, asking himself the question whether sec. 29 could be based on Item 15 (c) and his reply in effect was 'obviously not because 15 (c) postulates compensation and sec. 29 is silent upon this subject'.

BARRY, J.P., then continues:

'By a parity of reasoning it seems to me that even if the Provincial Council is empowered under the corresponding Item in the Act of 1945 to prohibit a lot-holder in the Township of Claremont from exercising his rights as such, the provision of sec. 52 prohibiting particular use of a building is ultra vires in the absence of provisions for compensation.'

This seems to me, with all respect to the learned Judge, a non sequitur. There is no justification in my opinion for saying that sec. 29 was bad because it did not provide for compensation. The only part of Item 15, and therefore the only aspect of town planning legislation in respect of which the Provincial Council as a condition of validity, must in its legislation provide for compensation, is 15 (c) which, as we have seen, refers to a variation to any existing sub-division or a lay-out of land for building purposes or urban settlement.

I cannot see that the prohibition under a town planning scheme of user for a particular or by a particular class can be described as a variation of an existing sub-division or layout and therefore I do not think that the Court in Davis' case was right in saying that because of the absence of a provision for compensation sec. 52 (1) (b) (iv) was ultra vires.

I have come to the...