Johannesburg City Council v Makaya

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Feetham JA, Greenberg JA and Davis AJA
• Judgment Date: 01 December 1944
• Citation: 1945 AD 252
• Hearing Date: 18 October 1944
• Court: Appellate Division

Johannesburg City Council Appellant v Makaya Respondent
1945 AD 252

1945 AD p252

Citation	1945 AD 252
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Feetham JA, Greenberg JA and Davis AJA
Heard	October 18, 1944
Judgment	December 1, 1944

Flynote : Sleutelwoorde

Native — Locations — Regulations — Validity — Power conferred upon magistrate to order ejectment of person wrongfully in location — Section 23 of Act 21 of 1923, as amended by Act 25 of 1930.

Headnote : Kopnota

Section 23 of Act 21 of 1923, as amended by Act 25 of 1930, does not empower an urban local authority to make a regulation conferring power on a magistrate, in the exercise of his criminal jurisdiction, to make an order for the ejectment from a native location, village or hostel of a person who has been found guilty of a failure to comply with an order of the superintendent to remove from the location, village or hostel, and consequently such a regulation is ultra vires the local authority.

The cases of Tutu and Others v Municipality of Kimberley (1918, G.W.L. 64); Sdumbu v Benoni Municipality (1923 T.P.D. 289), distinguished.

The decision of the Transvaal Provincial Division in Makaya v Johannesburg City Council (1944 T.P.D. 218), confirmed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (BARRY, J.P., and RAMSBOTTOM, J.).

The facts appear from the judgment of GREENBERG, J.A.

1945 AD p253

N. E. Rosenberg, K.C. (with him S. Kuper), for the appellant: The power granted to a magistrate in sec. 5 (b), chap. 1, of the Native Location. Regulations for the District of Johannesburg, framed under sec. 23 (3) of the Native Urban Areas Act 21 of 1923, is not ultra vires the Local Authority by reason of sub-secs. (b), (m) and the general power given immediately after (t) of sec. 23 (3) of the Act, in that (1) as to sub-sec. (b), the failure by respondent to vacate is an offence which continues until vacation by him and it is a necessary implication from the power to maintain good order in the location that the magistrate should on conviction have the right to order expulsion: Randfontein Estates G.M. Co. Ltd. v Randfontein Town Council (1943 AD 475 at 495); Tutu and Others v Municipality of Kimberley (1918, G.W.L.D. 64); Makubira v Benoni Municipality (1935 AD at 316); Sdumbu v Benoni Municipality (1923 T.P.D. 289 at 295-6); (2) as to sub-sec. (m), a regulation under the power given by this sub-section could validly exclude a non-resident and respondent became a non-resident on his failure to vacate; the power to order expulsion is, it is submitted, carrying out the express purpose of the Act: Mdhluli v Brakpan Town Council (1933 TPD at 475); Delew v Brakpan Town Council (1937 TPD at 440); (3) as to the general power given immediately after sub-sec. (t), this also sanctions the power given to the magistrate in the regulation in question. Sec. 23 (3) (g) introduced an innovation into the law by making it possible to convert a failure to carry out a civil obligation into a criminal offence. The word "penalties" used in the section must be read with sec. 23 (4) and sec. 25; ejectment is not a penalty, Rex v Voyilase (1934 TPD at 241); sec. 23 (3) (q) does not qualify the powers given in sec. 23 (3) (b) and (m) or the general power given immediately after sec. 23 (3) (t). In legislation prior and subsequent to the present Act, it was assumed that the power similar to that sought in this case was necessary for the preservation and maintenance of good order; see Act 40 of 1902 (Cape), secs. 7 and 9; Act 8 of 1905 (Cape), sec. 6; Act 37 of 1884 (Cape), secs. 20 and 30; Act 3 of 1930, sec. 12.

L. Lazar, for the respondent: The power of ejectment granted to the magistrate in reg. 5 (b) is ultra vires. Ejectment is not a penalty: see Rex v Voyilase (1934 TPD at 241). Where the Legislature intends the urban Local Authority to have the power of ejectment in relation to contravention of regulations made under sec. 23 (3) such power is expressly given, see sec. 23 (3) (q) of Act

1945 AD p254

21 of 1923 and sec. 18 (2) of Act 25 of 1930. If the magistrate on conviction has the right to order expulsion, a Native so expelled will be lawfully within an urban area but unable to reside in a location, in terms of sec. 5 (1), Makubira v Benoni Municipality (1935 AD at 316); such power of ejectment is drastic resulting in practice, either in such Native leaving the urban area or in his removal under sec. 17; see sec. 21, Act 46 of 1937, sec. 9 (5) Act 21 of 1923 as amended by Act 46 of 1937, Rex v Mhlongo (1941 NPD at 324); Rex v Nqaleka (1941 TPD at 304). The general power given immediately after sec. 23 (3) (t) cannot be read as enlarging the scope of the powers already carefully delimited by the Legislature in sec. 23 (4) with regard to the specific matters set out in sec. 23 (3). This general power was not intended to give the urban authority unlimited powers: see Rex v Khali (1929 TPD at 611-612); Ex parte Minister of Justice: In re Rex v Nqubane (1932 AD at 24); Rex v Campbell (1937 TPD at 225). The respondent is in: the position of a tenant who is holding over: see sec. 23 (4) of the Act; secs. 28 (1) (a) and 29 (b), Act 32 of 1917; sec. 17 (2) of the Act; Germiston Municipality v Rand Cold Storage (1913 TPD at 539); Rex v Voyilase (1934, TPD at 245). The Court will not hold that powers should be implied where such powers are not necessary but merely convenient and would curtail adversely the liberties or interests of Natives resident in the location: see Groenewaud and Colyn v Innesdale Municipality (1915 TPD at 416); Randfontein Estates Gold Mining Co. v Randfontein Town Council (1943 AD at 494-5); Rex v Nqaleka (1941 TPD at 304); see also Rex v Voyilase (1934 T.P.D. 241 at 243); Tutu and Others v Municipality of Kimberley (1918, G.W.L.D at 64).

Rosenberg, K.C., replied.

Cur adv vult.

Postea (December 1st).

Judgment

Greenberg, J.A.:

The respondent was found in occupation of a dwelling in the Eastern Native Township, a native location within the area of the Johannesburg...