Hoisain v Town Clerk Wynberg

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and CG Maasdorp JA
• Judgment Date: 29 May 1916
• Hearing Date: 25 May 1916
• Court: Appellate Division

Hoisain Applicant v Town Clerk Wynberg Respondent
1916 AD 236

1916 AD p236

Citation	1916 AD 236
Court	Appellate Division
Judge	Innes CJ, Solomon JA and CG Maasdorp JA
Heard	May 25, 1916
Judgment	May 29, 1916

Flynote : Sleutelwoorde

Municipality — General dealer's licence — Certificate — Town clerk — Mistake of — Estoppel — Ordinance 19 of 1914 (C.).

Headnote : Kopnota

The Cape Provincial Ordinance 19 of 1914 provides that no person shall trade is a general dealer within the area of any local authority unless his name has been placed upon a list framed for that area. The Ordinance further imposes upon the Town Clerk of every municipality the duty of framing such list, but provides that no person shall be entitled to have his name placed thereon unless either he was trading as a general dealer within the municipality at the promulgation of the Ordinance or has obtained from the Town Council a certificate authorising the issue to him of a general dealer's licence.

Applicant, who was not trading as a general dealer within the municipality of Wynberg at the time of the promulgation of Ordinance 19 of 1914, applied to the Council for a certificate authorising the transfer to himself of a licence held by one I and the transfer of the business from the old to new premises. The Council refused the first application and referred the second to the discretion of the Mayor, who subsequently granted it. Thereafter the Town Clerk issued to applicant a certificate headed "removal," which stated that applicant had been granted a "general dealer's licence."

Thereupon applicant having obtained from the proper revenue officer a general dealer's licence commenced to trade, but at the commencement of the following year the licensing authority refused to renew the licence. It appeared that the certificate issued to applicant had been so issued in error by the Town Clerk, who had inserted therein the name of applicant instead of the name of I.

The Provincial Division having refused an application for an order directing the Town Clerk to place applicant's name on the list of general dealers, it was contended on an application for leave to appeal that the Council was estopped from setting up the irregularity in the issue of the certificate.

Held, that as the insertion of a wrong name in a certificate, or the affixing of a signature in error by the Town Clerk could not deprive the Council of its statutory authority and allow its officer to usurp its functions the doctrine of estoppel did not apply; and as an appeal would be hopeless leave to appeal should be refused.

Semble, that the Council had no right to delegate to the Mayor a duty imposed upon it as a whole and one for the discharge of which express directions were contained in the Ordinance.

The case of Royal British Bank v Turquand (6 E and B. 327) distinguished.

The decision of the Cape Provincial Division in Hoisain v Town Clerk, Wynberg, confirmed.

Case Information

Application for leave to appeal from a decision of the Full Bench of the Cape Provincial Division (JUTA, J.P., KOTZÉ, J., and GARDINER, J.), sitting as a Court of Appeal from a decision of BUCHANAN, J.

1916 AD p237

The applicant applied on motion to BUCHANAN, J., for an order directing the Town Clerk of Wynberg to place his name on the list of general dealers framed under Ordinance 19 of 1914. The applicant alleged that a certificate, as required by the Ordinance, had been granted to him by the Town Clerk, entitling him to obtain a general...