Ismail and Another v Durban City Council

• Jurisdiction: South Africa
• Judge: Harcourt J, Friedman J and Milne J
• Judgment Date: 13 December 1972
• Citation: 1973 (2) SA 362 (N)
• Hearing Date: 20 November 1972
• Court: Natal Provincial Division

Harcourt, J.:

On 21st August, 1972, SHEARER, J., sitting in the Durban and Coast Local Division, granted an application brought by the City Council of the City of Durban for an order upon the two appellants (respondents in the Court a quo and to whom I shall refer as the respondents)

Harcourt J

to vacate stall 171 of the Durban Indian Market and, in the event of the respondents failing to comply with such order, for the eviction of the respondents from such stall by the Deputy-Sheriff. The respondents were also ordered to pay the costs of the application jointly and severally. A I shall refer to the City Council (the respondent in the appeal) as the applicant.

The respondents now appeal against the said order. An outline of the factual context of the application and of the contentions of the parties in the Court a quo is contained in the judgment of SHEARER, J., and it will be convenient to set it out at the commencement of this judgment. B The learned Judge summarised the position as follows:

'This application is directed to the ejectment of the first and second respondents from stall 171 of the Durban Indian Market. The applicant is the City Council of the City of Durban and it purports to rely upon powers given to it in the City of Durban Market by-laws published in Provincial Notice 536 of 1958. The two respondents carry on business in partnership at the stall in question at the Durban Indian Market under a C permit which was granted in terms of the by-laws on 1st July, 1966. That permit was issued in terms of secs. 3 and 4 of the by-laws. In seeking the ejectment of the respondents the applicant relies upon a notice dated 18th February, 1972, which was expressed to be given in terms of sec. 5 (1) of those by-laws. The relevant portion of sec. 5 reads as follows:

'5. (1) Every permit issued in terms of secs. 3 and 4 of these by-laws shall be valid for an indefinite period, provided that the right to occupy may be terminated by the market master or by the permit holder on one month's notice in writing;

(2) The market master may, on one week's notice in writing to the stallholder, cancel the permit issued to him, should the stall-holder -

(i)

be convicted twice within any period of three years of a contravention of these by-laws;

(ii)

be convicted of a contravention of the provisions of the E Public Health Act, 36 of 1919, as amended, or any other legislation relating to health;

(iii)

be declared of unsound mind by a competent Court (Provincial Notice 573 of 1959);

(iv)

have his estate sequestrated as insolvent;

(v)

fail to obtain the requisite trading licence to enable him to carry on his trade or business;

(vi)

be 30 days in arrear with the payment of the prescribed F monthly fees in respect of the stall or stand occupied by him;

(vii)

disregard any lawful direction given to him by the market master.'

The notice in question reads as follows:

'In terms of sec. 5 (1) of the Indian Market By-Laws you are hereby given one month's notice as from 1st March, 1972, of the termination of your right to occupy stall 171, Indian Market, Victoria Street, Durban.

The permit issued in terms of secs. 3 and 4 of these by-laws will be G cancelled with effect from 31st March, 1972.'

and the notice is given under the hand of one Johnston, the director of markets.

The word 'market master' which is used in sec. 5 of the by-laws is defined in sec. 1 as:

'the market master of the City or any person appointed by the Council or H by the market master with the approval of the Council to exercise the powers and duties conferred and imposed upon the market master by these by-laws'.

The allegation made by Johnston in the founding affidavit that he is the person appointed by the applicant to exercise the relevant powers and duties has not been contested in this application. It is common cause that the respondents are still in occupation of the premises in question and it is contended on behalf of the applicant that they have no legal right to continue to occupy such premises.

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The respondents contest the validity of the notice basing their contention upon the submission that:

(1)

A in purporting to exercise the power conferred upon him by sec. 5 (1), Johnston did not exercise his discretion bona fide; and

(2)

in any event the by-laws under which he purported to act are ultra vires and therefore affected with invalidity because they are either grossly unreasonable or too vague or both.

It is relevant to add that the notice dated 18th February, 1972, was the B second notice bearing to be given by the market master in terms of by-law 5 (1). An earlier similar notice had been given on 25th October, 1971, after an incident on 4th October, 1971, which looms large in the case and which will be discussed later in this judgment. The earlier, or first, notice was withdrawn (without any reason being given) by letter C dated 18th February, 1972, that is, the same day on which the second notice was given.

Before this Court both counsel reversed the order of the contentions set out in the judgment of SHEARER, J., and addressed first on the question of the quality of by-law 5 (1) in regard to whether or not it was ultra vires and only then on the quality of the actions of the market master, D Johnston, in purported exercise of the power apparently contained in such by-law. It will be convenient to follow this sequence in this judgment since it is only on the hypothesis of the legal validity of the by-law that the actions of the market master can have any validity.

In regard to the claim that by-law 5 (1) is invalid as being ultra vires, the first enquiry is as to the chain of enabling legislation and E the subordinate legislation and an ascertainment of the respective extent and legal effect thereof in order to discover what powers have been conferred and whether the subordinate legislature (the applicant in making the by-laws) has functioned within these powers or has exceeded F them. This first enquiry was described in R v. Padsha, 1923 AD 281 at p. 290 (cited and followed in R v. Seedat and Another, 1957 (1) SA 27 (N) at p. 33) in the following words:

'The function of the Court is to ascertain what was the intention of the Legislature as expressed in the Act and then simply to test the Minister's notice (the subordinate legislation) in the light of that intention.'

See, too, the remarks of FEETHAM, J.A., in Sinovich v. Hercules G Municipal Council, 1946 AD 783 at p. 817. This aspect is well put in RoseInnes, Judicial Review of Administrative Tribunals in South Africa, at p. 91:

'The Administration can only do what it has statutory authority to do, and it must justify all its acts by pointing to a statute. If a public authority exceeds its powers it acts unlawfully'

H and the writer then refers to Chotobhai v. Union Government, 1911 AD 13 at p. 30.

It may also here be conveniently interpolated that, in such preliminary enquiry, the fact that the subordinate legislation in question is that of a city council of a public representative character entrusted with delegated authority to legislate for local conditions and not a trading corporation carrying on business for its own benefit, is relevant since such legislation should be 'benevolently' interpreted and credit ought to be given to those who have to administer them that the powers conferred

Harcourt J

will be reasonably administered - see judgment of WATERMEYER, C.J., in Sinovich, supra at p. 790, approving Kruse v. Johnson, (1898) 2 Q.B. 91, which was adopted in the Appellate Division decisions mentioned at such passage. This was also the attitude adopted by the Appellate A Division in regard to market by-laws designed to maintain order in a public market in the case of Johannesburg City Council v. Constandelas, 1936 AD 1 at p. 17, per CURLEWIS, C.J. It is also to be noted that the Provincial Ordinances shortly to be mentioned

'contain provisions relating to the procedure for the making of by-laws and to the powers of supervision and control exercisable by the Administrator and the Executive Committee which... curb and correct B the by-law making activities of town councils'.

per CENTILIVRES, C.J., in Arenstein v. Durban Corporation, 1952 (1) SA 279 (AD) at p. 286.

This cannot of course be conclusive - indeed in Arenstein's case, in C which the CHIEF JUSTICE was the minority, the by-law in question was held to be ultra vires for reasons which will be later discussed - but it is a significant factor also suggesting the cogency of a 'benevolent construction' approach.

The by-laws in question were originally promulgated in 1958 before the enactment of the Republic of South Africa Constitution Act, 32 of 1961, D but various amendments were made thereafter and the enabling legislation thus comprises sec. 85 (ix) of the South Africa Act of 1909 and sec. 84 (i) of Act 32 of 1961 both of which empowered Provincial Councils to legislate by Ordinance in regard to 'markets and pounds'. Sec. 120 (2) of the latter Act saves the validity of

'any... power conferred or anything done'

E under any laws repealed by that Act which include the South Africa Act of 1909. There was thus an unbroken chain of validity for Ordinances made by the Natal Provincial Council in regard to, inter alia, markets. It is well established that within their limits of jurisdiction, the powers of the Provincial Councils are as plenary, absolute and discretionary as those of the national Parliament in its sphere and F include all the powers reasonably ancillary to those expressly conferred, cf., for example, Bloemfontein Municipality v. Bosrand Quarries (Pty.) Ltd., 1930 AD 370; Middelburg Municipality v. Gertzen, 1914 AD 544.

It is also well established that the Courts should not take a narrow view of what is implied in express powers granted to a Provincial G Council and...