Hleka v Johannesburg City Council

• Jurisdiction: South Africa

Hleka v Johannesburg City Council
1949 (1) SA 842 (A)

1949 (1) SA p842

Citation	1949 (1) SA 842 (A)
Court	Appellate Division
Judge	Watermeyer CJ, Centlivres JA, Greenberg JA, Schreiner JA and Van Den Heever JA
Heard	November 1, 1948
Judgment	December 14, 1948

Flynote : Sleutelwoorde

Municipality — Establishment of native camps — Municipality framing rules — Rental prescribed — Failure to pay made an offence — Whether ultra vires — Power to discriminate — 'Accommodation' — Meaning of — Determination of — Circumstances and surrounding facts taken into consideration — Limit of Rule — Object of legislation emerging from other legislation — Contravention of Rule providing imprisonment only — Whether magistrate can add hard labour to sentence.

Headnote : Kopnota

Regulation 3 (i) of War Measure 18 of 1947 empowered any local authority (as defined in sections 7 and 9 of Act 36 of 1919) to establish, within its area of jurisdiction, emergency camps for the accommodation of homeless persons, and to issue rules, subject to the approval of the Governor-General, providing for the administration, maintenance, control, sanitation and health of the camp. The respondent Council, in terms of the Regulation, issued rules approved of by the Governor-General 'for the Administration and Control of the Emergency Camp for Natives, Johannesburg'. Rule 32 provided that a site permit holder in the camp had to pay in advance 15s. per month, 'as an exclusive charge to cover rent for the use of the site and in respect of the provision by the Council of the services provided in the camp'. Rule 31 provided that a failure to pay any sum for which a person was liable within one month from when it became due was an offence, and on

1949 (1) SA p843

conviction such person was liable to a fine or imprisonment, or both a fine and imprisonment. Appellant, who was a site permit holder in the emergency camp established by the respondent, had been charged with and convicted of a contravention of Rule 31, and was fined 10s. or five days' imprisonment with hard labour and ordered to pay the arrears within a specified time, failing which to undergo a further term of imprisonment with hard labour. In his defence he stated that he would refuse to pay the rent until he was given a house. The Council, it appeared, provided the services, but in regard to shelter all it did was to ascertain whether applicants for sites in the camp either had the material or the means to erect temporary shelters, and, where they had material, to convey it to the site allotted, leaving it to the applicant to build his own dwelling. A Provincial Division upheld the conviction. On an appeal, leave having been granted, it was contended, inter alia, that the rules were ultra vires.

Held, that the rules were not ultra vires.

Held, further, that in order to determine what was meant by the word 'accommodation', regard had to be had to the context and the circumstances.

Held, further, that as the Council had been given the power to discriminate, the rules were not invalid.

Held, further, in order that the scheme should not be frustrated, that it was not unreasonable to have civil obligations reinforced with criminal sanctions.

Held, further, although a breach of Rule 31 provided only for imprisonment, that the sentence imposed by the magistrate was not irregular.

Held, further, that it was not necessary to determine the limits to the rule that the Courts in construing a Statute may take into consideration the circumstances or surrounding facts to which the Statute relates, as the words used in the empowering legislation clearly emerged e visceribus ejus.

The decision in the Transvaal Provincial Division in Hleka v Johannesburg City Council, confirmed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (MARITZ, J.P. and DE WET, A.J.), leave having been granted, dismissing an appeal from a conviction in a magistrate's court. The facts appear from the judgment of VAN DEN HEEVER, J.A.

G. Lowen, for the appellant: The rules of respondent are ultra vires the empowering Reg. 3 (i) and (j), Proc. 67 of 1947, amending Proc. 76 of 1944. Respondent did not establish an 'emergency camp' in terms of Reg. 3 (i). The clear and unambiguous meaning of the word 'accommodation' is 'some shelter from the elements'; see the Shorter Oxford English Dictionary; it is more than bare veld; it is residential accommodation and not mere site accommodation; the same meaning has been given to the word in Rex v Lammas (1929, E.D.L. 264 at p. 267); Rex v Hodos and Jaghbay (1927 TPD 101 at p. 105); Rex v Zock (1928 AD 384); Rex v Abelman (1929 TPD 595 at p. 599); Rex v Mabi and Others (1935 TPD 408 at p. 411); Rex v Nkonyane (1934,

1949 (1) SA p844

T.P.D. 363 at p. 365); and this meaning was adopted in sec. 31 of Act 46 of 1937, amending sec. 29 of Act 21 of 1923. The language used in Reg. 3 (i) is plain and unambiguous and the word 'accommodation' must be construed in its ordinary sense; cf. Steyn, Die Uitleg van Wette (pp. 20 - 1); Maxwell, Interpretation of Statutes (8th ed., pp. 1 - 4); Rex v Venter (1907, T.S. 910 at p. 919); Shenker v The Master (1936 AD 136 at pp. 142 - 3); Hatch v Koopoomal (1936 AD 190 at pp. 204 - 5, 209, 212); Rex v Bennett (1941 TPD 194 at p. 200); Storm v Durban Municipality (1925 AD 49 at p. 55). Alternatively, if the word 'accommodation' is ambiguous, regard must be had to the fact that it is used in Reg. 3 (i) in conjunction with 'homeless persons' and further that the words used in the Afrikaans version are 'ten einde huislose persone te huisves'; cf. Kritzinger, Groot Woordeboek (pp. 210, 340); Maxwell (supra, at pp. 26 - 7); Halsbury's Laws of England (Hailsham ed., vol. 31, para. 595); both versions of the regulations must be consulted; see Rex v Alberts (1942 AD 135 at p. 140); Spies v Rex (1944 OPD 174 at p. 177). The statutory definition of the word 'accommodation' in sec. 1 of Act 25 of 1945, is 'housing or lodging'; since that Act is a statute in pari materia regard must be had to the definition in sec. 1; see Maxwell, supra (p. 36); Craies, Statute Law (4th ed., pp. 126 - 7); Halsbury (supra, paras. 611 - 2). Alternatively in view of the plain and unambiguous language used in Reg. 3 (i) and (j), the Court a quo erred in admitting, and taking into consideration, evidence relating to the history of and reasons for the enactment of Procs. 76 of 1944 and 67 of 1947, for the purpose of determing the meaning of the word 'accommodation' in the regulation; see Maxwell (supra, at p. 3); Craies (supra, at p. 68); Halsbury (supra, vol 31, paras. 592, 623, 595); Rex v Detody (1926 AD 198 at pp. 202, 209); Shenker v The Master (1936 AD 136); Hatch v Koopoomal (1936 AD 190); Queen v Bishop of London (24 Q.B.D. 213 at p. 224); Builders, Ltd v Union Government (1928 AD 46 at p. 56); Phipson, Evidence (8th ed., pp. 605 - 6); Camden v I.R.C. (1914 (1), K.B. 641 at pp. 649 - 50); Powell v Kempton Park Race-course Co. (1899, A.C. 143 at p. 157); Palmer v Thatcher (3 Q.B.D. at p. 346). Alternatively, if the Court a quo was entitled to take into consideration the history of and the reasons for the enactment, it was not entitled to rely on it to the extent to which it did, which resulted in an interpretation of the word 'accommodation' which is contrary to its meaning; the qualification of the word 'accommodation

1949 (1) SA p845

by the word 'emergency' in Reg. 3 (i) can only affect the type of accommodation but cannot nullify the ordinary meaning of the word 'accommodation'; the fact that this word appears in a War Measure does not alter the position; see Michel v Rex (1944 OPD 227 at pp. 236 - 7); Rule 32 is not a rule providing for the 'fees or charges to be levied in respect of any accommodation' mentioned in Reg. 3 (j); a contravention of Rule 31 read together with Rule 32 is not a contravention of a rule validly made in terms of Reg. 3 (j) (i); the provision of a penalty for the contravention of such rule is ultra vires Reg. 3 (j) (iii). Alternatively to all the aforegoing contentions, the charge imposed on the appellant was partly in respect of services not provided in the camp but only planned by the respondent for the future; the inclusion of any amount for future amenities and/or the determination of a high charge for the purpose of keeping homeless persons out of the camp, was ultra vires Reg. 3 (j) (i); see Sinovich v Hercules Municipality (1946 AD 783 at p. 792); van Eck, N.O. and van Rensburg, N.O v Etna Stores (1947 (2), S.A.L.R. 984 at pp. 996 - 9). Failure to pay such charges within the prescribed time did not constitute an offence under Rule 31, Chap. 1 of the rules. The order to pay arrear charges or to be imprisoned with hard labour was made in terms of Rule 31, Chap. 1, and the part of the rule which empowers the making of such an order is invalid, as being ultra vires Reg. 3 (j) (iii) and as purporting to empower the magistrate to impose penalties more severe than those imposable by him under sec. 92 of Act 32 of 1944; cf. Johannesburg City Council v Makaya (1945 AD 252 at p. 256); alternatively, the magistrate was not entitled to order imprisonment with hard labour in default of payment; Rule 31, Chap. 1, does not provide for imprisonment with hard labour.

S. Kuper, K.C. (with him A. L. MacMillan), for the respondent: When the amending War Measure 18 of 1947 was passed, local authorities had the power, in terms of Act 25 of 1945, sec. 2 (1) to set aside areas of land with or without structures thereon for the accommodation of Natives for the purposes mentioned. The amending War Measure was entitled to enlarge these powers. The words 'emergency', 'camp' and 'accommodation' have varying meanings according to the context in which they occur...