Johannesburg City Council v Johannesburg Indian Sports Ground Association

• Jurisdiction: South Africa
• Judge: Vieyra J
• Judgment Date: 11 October 1964
• Citation: 1964 (1) SA 678 (W)
• Court: Witwatersrand Local Division

Johannesburg City Council v Johannesburg Indian Sports Ground Association
1964 (1) SA 678 (W)

1964 (1) SA p678

Citation	1964 (1) SA 678 (W)
Court	Witwatersrand Local Division
Judge	Vieyra J
Heard	August 13, 1964; August 14, 1964
Judgment	October 11, 1964

Flynote : Sleutelwoorde E

Ejectment — Holder's tenure a precarium — No express terms for termination — Right of precario dans — Nova causa arising — Effect.

Headnote : Kopnota

Where a person's tenure of land is a precarium and no express terms of F termination have been arranged the right of the precario dans to recall his permission at any stage is a conditio juris and subject therefore to such equitable considerations as might arise from the nature of the permission granted and other surrounding circumstances.

The requirement of nova causa is not one that arises from equitable considerations in favour of the precario habens but of the owner, relieving him, where it can be applied, from the necessity of allowing the precario habens a period of further possession or user which but for G the intervention of the nova causa would be reasonable.

Case Information

Application for an order of ejectment. The facts appear from the reasons for judgment.

G. A. Coetzee, S.A., (with him W. H. R. Schreiner), for the aplicant.

H. Philips, S.A. (with him I. Mahomed), for the respondent.

Cur. adv. vult. H

Postea (October 11th).

Judgment

Vieyra, J.:

The Johannesburg City Council is the applicant in proceedings in which it seeks to regain possession of certain land known as the Natalspruit Indian Sports Ground at the corner of Durban and

1964 (1) SA p679

Vieyra J

Berea Streets, City and Suburban, Johannesburg, of which it is the owner and which it is alleged is presently being unlawfully occupied by the respondent. An objection in limine was taken to the petition, it being A contended that the deponent thereto was not duly authorised to represent the applicant or to seek the relief claimed on its behalf. After argument had been heard in regard to this aspect the objection in limine was dismissed with costs and it will be convenient before dealing with the merits of the application to give my reasons for that decision.

The deponent who presents the petition is one Delabere Ross Blaine, the B clerk of the City Council aforesaid and he alleges, without seeking to substantiate the allegation, that he was duly authorised to depose to the petition on behalf of the applicant. And indeed at that stage there was no need to present proof of his authority. The copies of resolutions by the management committee attached to the petition relate to the C merits of the dispute and were not intended as corroboration of the deponent's authority. In his affidavit attached to and in support of the respondent's notice of objection in limine the contents of these resolutions are seized upon as being insufficient to give Mr. Blaine the authority to bring the proceedings and it is in any event submitted that the applicant did not give the management committee any authority to D present the petition. It is fair to interpret the notice of motion as a challenge of the deponent's authority and accordingly the onus lay on him to satisfy the Court that he had been duly authorised to bring the proceedings: see Pretoria City Council v Meerlust Investments (Pty.) Ltd., 1962 (1) SA 321 (AD) at p. 325C - E. Accordingly in the E absence of Mr. Blaine an affidavit by the deputy clerk of the Council of the City of Johannesburg was filed dealing with this issue. The question then arose whether the various documents before the Court sufficed to meet the objection taken.

It is apparent from a consideration of resolutions passed by the City Council at its meeting of the 8th March, 1963, that, save for certain F matters not germane to the present dispute, the management commitee has been entrusted with all the powers of the Council and accordingly that it had the power to resolve on behalf of the Council to institute the present application. Nor, as I understand the argument for the respondent, was it contended that the management committee could not legally resolve to authorise Mr. Blaine to institute the present G proceedings. But it was submitted that what had really been done by the management committee was to delegate its own powers of decision, whether or not to present the petition for recovery of the land in question to Mr. Blaine and, this it was contended, was not within the competency of the management committee. Reference must accordingly be made to the H resolution in terms of which Mr. Blaine has acted and which is dated 2nd May, 1963. It reads as follows:

'It is recommended:

(a)

That the action taken by the clerk of the Council in writing to the Johannesburg Indian Sports Ground Association on 1st May, 1963, to revoke all rights or any remaining rights the Association may have in and to the Indian Sports Ground, Natalspruit, and to reclaim possession of the grounds forthwith, be confirmed.

Adopted.

(b)

That the clerk of the Council (and in his absence, the deputy clerk of

1964 (1) SA p680

Vieyra J

the Council) be authorised to take whatever action he thinks necessary, including action before the courts of law -

(i)

to oppose the application made to the Supreme Court by the Johannesburg Indian Sports Ground Association, and

(ii)

to obtain the termination of all rights the Johannesburg Indian A Sports Ground Association may have in or to the Indian Sports Grounds at Natalspruit, or to the use thereof and to secure the Association's ejectment from the grounds.

Adopted.'

The application mentioned in part (b) (i) of the above resolution is a reference to certain preliminary proceedings for a spoliation order made B by the present respondent against the applicant and related directly to the dispute which is the subject-matter of the application before me.

A fair reading of the resolution is that the management committee had resolved to terminate all rights that the respondent might have to the land in question and to eject it therefrom and that if extra-judicial means were insufficient to achieve this purpose then resort to the C Courts was empowered. There is no question here of giving Mr. Blaine a discretion as to whether or not the respondent's rights should be terminated or whether or not it should be ejected. That course of action had been resolved upon. The inclusion of the phrase 'to take whatever action he thinks necessary, including action before the Courts of law' D is to confer authority upon Mr. Blaine, in case extra-judicial means should fail, to proceed to have recourse to the Courts. I had no doubt accordingly that the interpretation sought to be placed on the resolution was not linguistically justified and that Mr. Blaine did have authority to present the petition before me.

E I turn now to a consideration of the merits of the dispute. On 13th August, 1930, a deed of sale was executed in terms of which the applicant acquired, inter alia, certain fixed property being Portion 'd' of Portion 4 of the farm Doornfontein No. 24 (hereinafter referred to as the Indian Sports Ground) from the City Deep Ltd., subject to the special condition that it was to be used by applicant 'solely as a F recreation ground for coloured people'. The sale was to be binding on the Council only if surface rights permits could be obtained under the Gold Law for the purpose envisaged. This was duly effected and permit A118 of 1930 states that the ground can be...