Johannesburg City Council v Farrell Bros

• Jurisdiction: South Africa

Johannesburg City Council Appellant v Farrell Bros Respondent
1940 AD 113

1940 AD p113

Citation	1940 AD 113
Court	Appellate Division
Judge	De Wet CJ, Watermeyer J, Tindall JA, Centlivres JA and Feetham JA
Heard	November 15, 1939; November 16, 1939
Judgment	November 30, 1939

Flynote : Sleutelwoorde

Market — What amounts to — Municipal by-law prohibiting establishment of market — Ordinance 9 of 1912 (T.), section 72 (41).

Headnote : Kopnota

A Municipal by-law made under section 72 (41) of Ordinance 9 of 1912 (T.) prohibited the establishment of any market within the municipality without the permission of the Council The respondent Company without such permission carried on a business under a licence as a general dealer and as a broker or agent in its promises in the Municipality where it sold out of hand in its own name on commission fruit, vegetables and flowers consigned to it for sale by producers from all over the Union, throwing its net as widely as it could by means of advertisements, in order to attract as many producers as possible who had these commodities for sale The company fixed the prices of the goods at its discretion It sold nothing by auction nor did it sell at any fixed time It dealt mainly with customers who bought for resale and to whom it gave extended credit at its own risk The Municipality having applied unsuccessfully for an interdict.

Held, that, assuming the by-law was valid and that it applied not merely to a market at which sales by public auction were an important feature, but also to a market in the normal sense, the company was not carrying on its business in such a way as to contravene the by-law.

The decision of the Witwatersrand Local Division in Johannesburg City Council v Farrell Bros., confirmed.

Case Information

Appeal from a decision of the Witwatersrand Local Division (MILLIN, J.) The facts appear from the judgment of FEETHAM, J.A In dealing with the question as to whether by-law 39 (a) of the Johannesburg Market By-laws was ultra vires MILLIN, J., said:

"Mr Price before coming to his argument that the respondent's activities do not amount to the carrying on of a market, contended that the by-law is void because (1) the Provincial Legislature is not competent to delegate power to prohibit the establishment of markets; and (2) the by-law offends against the rule that, to be valid, it should indicate to those who are to be subject to it what they must do or refrain from doing to avoid contravening it The answer to the first point is that the Provincial Council, deriving from sec 85 (ix) of the South African Act its authority to make ordinances in relation to the subject matter of markets, enacts on that subject matter original and not delegated legislation; and so long as an ordinance on such a subject matter is not repugnant to an Act of Parliament, it has the same force within the Province as if it had been an Act of Parliament This has been a commonplace since the decision in Midddburg Municipality v Gertzen (1914, A.D 544) Nor can I see any want of clarity in a by-law which

1940 AD p114

follows exactly the wording of an enabling section Mr Price's argument war, that the definition of market given in the first of the market by-laws being obviously inapplicable to By-law 39 (a), the by-law fails for want of a definition of the word He sought to rely on Naidoo v Pretoria Municipality (1927, TPD 1013) where a by-law that "no person shall wilfully or negligently cause an obstruction on any street by any means whatever," made under a power "to regulate traffic and prevent and remove obstructions in or on public places," was held void because the public could not know what kind of obstruction would constitute a contravention of the by-law The reasoning shows that it was apparent to the Court, in spite of the wide language of the by-law, that not everything which could conceivably be an obstruction was intended to be hit; hence it was necessary that the by-law should indicate what conduct had to be avoided by those subject to it This case is quite different The word "market," though difficult to define and, as will be seen later, never defined in statutes dealing with the subject and never yet completely and exhaustively defined in any decided case, is not ambiguous in such a context It is a word of determinate meaning which enables a Court to say in any given case whether what is being done does or does not constitute the carrying on of a market."

N E Rosenberg, K.C. (with him O I Frankel), for the appellant: "A market is a place where the public or a large section of the public are habitually invited to send their goods for sale and where the public generally are invited to come and buy and where this invitation is acted upon." See also the definition given in the following dictionaries: Webster's, New English Dictionary, Shorter Oxford Dictionary, Imperial Dictionary, Ogilvie & Annandale's, Wharton's Law Dictionary See also Corporation of Pietermaritzburg v Lister (10 N.L.R 36 at p 39); Corporation of Durban v Trustees of Mahomedan Mosque (18 N.L.R 83); Durban Corporation v McDonald (29 N.L.R 726 at pp 727-9); Elwes v Payne (12 Ch.D 468 at pp 471, 473); Goldsmid v Great Eastern Railway Co. (25 Ch.D 511 at pp 524, 526, 538, 539, 541, 542, 545, 549, 557 and 9 A.C 927 at pp 946, 961); Corporation of London v Lyons (1936, Ch.D 78 at pp 93, 107, 108, 111, 119, 122, 125, 127, 128, 131, 132, 135, 139, 141, 143); Mayor of Dorchester v Ensor (4 Exch Cases 335 at pp 341, 342); Halsbury's Laws of England (Hailsham ed., vol 22, p 44 ff.); Wilcox v Steel (1904, 1 Ch 212 at pp 219, 222, 223).

Sales out of hand are just as much marketing operations as auction sales See Nicholls v Tavistock Urban District Council (1923, 2 Ch 18 at p 28); Corporation of London v Lyons (supra at pp 108, 128, 135) and Webster's Dictionary and Imperial Dictionary.

The business of a shop may be the business of a market See Mayor of Manchester v Lyons (22 Ch.D 287 at pp 306, 309);

1940 AD p115

Wiltshire v Willett (142 E.R 788) approved in Hailsham Cattle Market Co v Tolman (1915, 1 Ch 360 at p 367).

If respondent has established or is carrying on a market, it has contravened the by-laws, or alternatively it has no right to do so at common law See Corporation of Pietermaritzburg v Lister (supra at pp 40-2) and City of Jacksonville v Lewith (9 L.R.A 69).

Norman C B Price, K.C. (with him V Rosenstein), for the respondent: The real complaint against respondent is that it sells the goods of others on commission and not its own goods.

The facts do not show that the general public is invited to bring its produce to respondent's place of business and there sell it Owners of produce are invited to deal with respondent as a commission agent or broker and to send their produce to it for sale on commission This does not constitute a market See Corporation of London v Lyons (supra at p 126).

Moreover respondent is liable to the owners for the full price realised; and respondent gives credit to several purchasers and contracts with them as if it were the owner of the goods See Corporation of London v Lyons (supra at p 126).

To constitute a market there must be a collection of sellers selling through auctioneers or out of hand occupying tables or booths and displaying their wares, and a collection of buyers who can pass from table to table or from stall to stall to select the goods they want at the price they wish to pay - i.e there must be competition among sellers and competition among buyers The concourse of sellers which is necessary to make a market is in bodily form See Corporation of London v Lyons (supra at p 132); Goldsmid v Great Eastern Railway Co. (supra) It is clear that, when Ordinance 9 of 1912 (T) was passed, the intention was to regard auction sales as essential to a market The essential distinction between "market" and "shop" is seen in the phrases "I am going to the market" and "I am going to a shop".

By-law 39 (a) is not aimed at an individual who may disturb the market in the sense that he sells in competition with the market on market days and in a similar manner Consequently the large number of English cases that deal with the disturbance of a monopolistic market must be distinguished from the cases which deal with an establishment of a rival market The charters granting monopoly markets in England usually define specifically the extent of the monopoly and set out in detail what is prohibited

1940 AD p116

See Nicholls v Tavistock Urban District Council (supra at p 18); Haynes v Ford (1911, 2 Ch 237)...