Hatch v Koopoomal

• Jurisdiction: South Africa
• Judge: Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 27 March 1936
• Citation: 1936 AD 190
• Court: Appellate Division

Curlewis, J.A.:

The appellant was sued by respondent, an Asiatic widow, in the magistrate's court, Johannesburg, for a certain sum alleged to be due under a lease entered into between them on 24th November, 1933, whereby appellant hired from respondent a stand or lot No. 603 situate in Fifteenth Street, Malay Location, Johannesburg. The preamble of the lease reads thus: Whereas a certain company known as the Kolaba Trading Co. Ltd was the owner of stand 603 situate at Malay Location, and whereas the lessee (i.e., the appellant) carried on therein a bioscope business under the style or firm of the Star Talkie Theatre, and whereas the said Kolaba Trading Co. Ltd has now sold the said stand to the lessor. The contract states that the lease is for a period of two years from 15th November, 1933, with the right of renewal from time to time for three more years. Clause 4 reads: "The premises are let for the purpose of a bioscope, concert hall, dancing hall, lecture hall and church purposes and for no other purposes, and the lessee agrees and undertakes to carry on the said business throughout the period of this lease and any renewal

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thereof and not to shut down the premises during the period hereof." In clause 24 mention is made of a shop which the lessor shall be obliged to broaden by removal of a wall. Clause 25 reads: "In the event of the lessor or of certain Mustapha Hassim, who will be the licence holder of the bioscope licence granted in connection with the premises let hereunder, doing anything which will cause said licences to be cancelled, then the lessee shall have the right and option to cancel this lease."

Under clause 4 of the lease the lessee was liable for sanitary and other municipal charges, and the amount claimed (£25 3s.) in the summons was for stand licence and sanitary fees from 1st January, 1934, to 30th September, 1934, the appellant having been in occupation of the premises under the lease from 15th November, 1933.

The defence to the action was that the agreement of lease was illegal on the ground (1) that he (the defendant) was a European and no European is permitted to occupy any stand or premises in the Malay Location, Johannesburg; (2) alternatively, that the agreement of lease was made in contravention of sec. 8 of the Malay Location regulations of the Johannesburg Municipality and that the agreement was against public policy and consequently void and unenforceable; (3) alternatively, that the agreement of lease was made in contravention of regulation 8, which was a contravention of the said regulations and punishable as an offence in terms of regulation 22, and (Consequently the said lease is void and unenforceable.

The regulations were published under Government Notice No. 104 of 10th May, 1895, paragraph 8 reading: "Geen houder eener stand licentie zal het veroorloofd zyn het geheel of een gedeelte zyner standplaats te onderverhuren." Paragraph 22 is as follows: "Eenig persoon die eenigeen der voorgaande regulaties overtreedt zal wanneer schuldig bevonden onderworpen zyn aan een straffe geen £20 te bovengaande of by gebreke van betaling aan gevangenisstraf met of zonder harden arbeid voor eenigen termyn geen drie maanden te bovengaande of in geval van naturellen tot zulke boete of slagen te ontvangen geen vyftien in getal te bovengaande."

Respondent's title to the stand consists of a document called a "Transfer Permit" issued by the Estates Department (Malay Location) of the Municipal Council of Johannesburg, under which

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permission was granted to the Kolaba Trading Co. Ltd to transfer stand No. 603 Malay Location to Koopoomal, the company renouncing all its rights and interests in the said stand in favour of Koopoomal; the document states that the said stand is subject to the by-laws regulating the Malay Location.

The magistrate's court granted absolution from the instance, holding that the agreement of lease was "contrary to the spirit of the law, contrary to the regulations and contrary to public policy, and was null and void." An appeal to the Transvaal Provincial Division was successful, and the magistrate's judgment altered into one in favour of plaintiff for £25 3s with costs. he appeal before us is against this order of the Provincial Division, leave having been granted by that Court.

The court below held that if legislative authority existed for the regulations in question it was to be found in Volksraad Besluits Art. 931 of 7th July, 1888 (Lokale Wetten, 1888 (p. 66) ), but that that besluit had been repealed by Proclamation 34 of 1901. The court also considered sec. 40 of Law 9 of 1897. That law provided for the establishment of a stadsraad in Johannesburg, and sec. 40 enacted that the regulations of the then existing Johannesburg Health Committee should remain in force, so far as not in conflict with that law, until they were altered or repealed by the stadsraad. Law 9 of 1897 was repealed by Law 9 of 1899, sec. 40 of which was identical with sec. 40 of the 1897 law. Sec. 41 of Law 9 of 1897 provided that the "present health committee shall, so long as the stadsraad shall not have been elected and constituted under this law, continue to function as such." This provision is repeated in sec. 41 of Law 9 of 1899, though a stadsraad had apparently been established under the law of 1897, because we find under the heading "Stadsraad Johannesburg" in the Staatscourant of 9th 16th and 23rd February, 1898, and of 16th March, 1898, publications signed by the burgomaster and secretary notifying for general information various by-laws of the Johannesburg Town Council as submitted to the Government. That a Town Council of Johannesburg did exist is also implied in sec. 27 of Proclamation 16 of 1901. Dealing with the effect of sec. 40 of Law 9 of 1897 and of Law 9 of 1899, TINDALL, A.J.P., who prepared the judgment of the court below said: "Assuming, without deciding, that sec. 40 of Law 9 of 1897 and sec. 40 of Law 9 of 1899 amounted to an implied recognition by

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the Volksraad of the regulations of the sanitary committee in question in the present case, those sections are no longer in force. Law 9 of 1899 was repealed by sec. 2 of Proclamation 16 of 1901. That being so, it was argued on behalf of the appellant that as the enabling Statutes have been repealed, the regulations made by virtue of them have ceased to have any validity. This argument seems to me unanswerable and is supported by the decision in Watson v Winch (1916, 1 K.B. 688), where it was held that a by-law made under a Statute which has been repealed ceases to have any validity unless the by-law is preserved by some provision in the repealing Statute or some other Statute. A similar decision was given in de Beers Mining Board v Moseley (1 B.A.C. 144). In the present case there is no provision in the repealing Statutes preserving the existence of the regulations, nor is there any provision in any other Statute that I am aware of that can be held to preserve the regulations." Unfortunately, the attention of the learned Judge had not been directed to sec. 27 of Proclamation 16 of 1901, which does preserve the existence of the regulations. Sec. 27 reads: "The regulations of the town council established under Law 9 of 1899 shall in so far as they are not in conflict with this Proclamation continue of force until modified or repealed by the council."

On behalf of appellant it was contended before us that the regulations in question have the force of law, having been promulgated by the Uitvoerende Raad under the authority conferred on it by Volksraad Besluit No. 931 of 7th July, 1888; moreover they received legal sanction by sec. 40 of Law 9 of 1897 (repeated in sec. 40 of Law 9 of 1899) which gave those regulations the force of law until they were altered or repealed by the Stadsraad, and when Law 9 of 1899 was repealed by Proclamation 16 of 1901, sec. 27 of that Proclamation specially preserved the force and effect of the regulations until modified or repealed by the council; the power to repeal the regulations given to the Town Council of Johannesburg by sec. 40 of Law 9 of 1899 or by sec. 27 of Proclamation 16 of 1901 was never exercised; the fact that Government Notice No. 104 of 10th May, 1895, was not mentioned in the Schedule of the general repealing Proclamation, No. 34 of 1901, shows that the regulations remained in force and effect as part of the Johannesburg Municipal Regulations.

There can be but little doubt that sec. 40 of Law 9 of 1897 and

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of Law 9 of 1899 impliedly if not expressly gave legal force and effect to the regulations published under Government Notice No. 104 of 10th May, 1895, and that thereby they became regulations of the Stadsraad that was established for Johannesburg under those Laws; and further that their full legal force and effect were preserved by sec. 26 of Proclamation 16 of 1901 when Law 9 of 1899 was repealed by that Proclamation. When the Volksraad by Law 9 of 1891 made provision for the establishment of a Stadsraad for Johannesburg, it made provision (sec. 41) that the then existing health committee should continue to function until a Stadsraad was established, and the object of sec. 40 was that the regulations of the health committee should remain in force, in so far as they were not in conflict with that Law, and become regulations of, and be administered by, the contemplated Stadsraad until altered or repealed by the Stadsraad. And though sec. 27 of Proclamation 16 of 1901 peaks of the regulations of the town council established under Law 9 of 1899 and not of the regulations of the health committee, when once the Stadsraad was established under Law 9 of 1897 (and continued under Law 9 of 1899, which was practically a repetition of Law 9 of 1897 with some provisions added relative to rates), the health...