Johannesburg Indian Sports Ground Association v Johannesburg City Council

• Jurisdiction: South Africa
• Citation: 1964 (4) SA 779 (A)

Johannesburg Indian Sports Ground Association v Johannesburg City Council
1964 (4) SA 779 (A)

1964 (4) SA p779

Citation	1964 (4) SA 779 (A)
Court	Appellate Division
Judge	Steyn CJ, Rumpff JA, Holmes JA, Williamson JA and Wessels JA
Heard	August 28, 1964
Judgment	September 21, 1964

Flynote : Sleutelwoorde

Ejectment — City Council obtaining proclaimed mining ground for recreational use for coloured persons and Indians — Such ground B leased to Indian Association — Association permitting Bantus to use portion of ground — Bantu not coloured persons — Breach committed — Association holding precario — Council entitled to eject Association.

Headnote : Kopnota

The respondent had obtained certain ground from a mining company in C terms of the Transvaal Precious and Base Metals Act, 35 of 1908, for the purpose of providing sporting facilities for the Johannesburg Indian Community. The deed of transfer contained the following special conditions '(a) that the portion D is to be used . . . 'solely as a recreation ground for coloured people' and (b) that portion E is to be used . . . as a recreation ground for Natives only'. Section 136 (6) of the Act made it an offence to use proclaimed land unlawfully. Before transfer the respondent had obtained a surface permit under section 69 D of the Act under which the respondent was given the right to use the ground for the purpose 'of recreation ground for coloured persons and Indians'. The respondent entered into an arrangement with the appellant to allocate the ground for use by the Indian community. This arrangement was adhered to until 1961 when the appellant allocated certain parts of the ground to soccer teams consisting mainly of Bantu players and which games attracted mainly Bantu spectators. The respondent had provided ample sporting facilities for the Bantus elsewhere and as the ground E allocated was the only sports ground for the Indians it was its policy to maintain it for that purpose and it requested the appellant to comply with this policy. As the appellant had refused to do so the respondent applied for an order terminating the appellant's tenure, which it was conceded was precarium, and to have it ejected. The application was granted and was upheld on appeal. In a further appeal,

Held, that the expression 'coloured person' in the permit did not include Bantu.

Held, further, that by allowing an unlawful use of the ground both the F respondent and the appellant could have been prosecuted for a contravention of section 136 (6) of Act 35 of 1908.

The decision in the Transvaal Provincial Division in Johannesburg Indian Sports Ground Association v Johannesburg City Council, 1964 (2) SA 505 (T), confirmed. G

Case Information

Application for leave to appeal from a decision in the Transvaal Provincial Division (DE WET, J.P., LUDORE, J., and MARAIS, J.) dismissing an appeal from a decision in the Witwatersrand Local Division (VIEYRA, J.). The facts appear from the judgment of STEYN, C.J., and VIEYRA, J., as reported in 1964 (1) SA 678.

C. Kinghorn, for the applicant: The resolution of respondent's H management committee, purporting to give the clerk of the respondent Council the right to decide whether action should be taken against applicant, was invalid. The clerk, therefore, had no authority to take, on behalf of respondent, the decisions which he took. Respondent's petition was therefore unauthorised and should have been dismissed with costs; see Mall (Cape) (Pty.), Ltd v Merino Ko-op., Bpk., 1957 (2) SA at p. 351; Pretoria City Council v Meerlust Investments Ltd., 1962 (1) SA at pp. 324, 325; Johannesburg City Council v Helms,

1964 (4) SA p780

1962 (4) SA at pp. 556, 557; Durban City Council v Minister of Labour, 1947 (1) SA 373; Dönges & van Winsen, Municipal Law, 2nd ed., pp. 685, 686 - 88; Caney, Statute Law, p. 111; R v Nyandoro, 1959 (1) A S.A. at p. 640. Alternatively, if the petition was lawfully brought by the clerk, the petition should have been dismissed on the merits. It is conceded that applicant's occupation of the ground is precario but, if regard is had to the nature of the permission granted to applicant, the terms of the agreement and the other circumstances, respondent is in the B present case only entitled to eject applicant if a nova causa has arisen and after reasonable notice to applicant; see Lechoana v Cloete, 1925 AD at pp. 545, 546, 552; Theron, N.O v Joynt, 1951 (1) SA at pp. 508 - 10, 511; Stow v Hurd, 1916 OPD 200; Voet, 8.4.18; 43.26.5. As to the judgment of the Court a quo which held that the requirement of nova causa is one which arises from equitable C considerations in favour of the owner, relieving him, where it can be applied, from the necessity of giving notice to the precario habens, this proposition has not been settled in our law; see Lechoana's case, supra at p. 552; Theron's case, supra at p. 511. Nova causa in the sense of some substantial change in the circumstances has arisen in the D present case. In the further alternative, in terminating the grant of the grounds to applicant, respondent acted ultra vires Ord. 17 of 1939 (T); see sec. 79 (8), (9), (10) and (11). Respondent was under a duty to exercise a proper and honest discretion as to whether the grant of the grounds to applicant should be terminated. It was under a duty to apply E its mind to all relevant facts and circumstances pertaining to the exercise of this discretion. On the facts, respondent's discretion was not properly exercised and the purported termination is therefore a nullity; see R v London County Council, (1918) 1 K.B. 68; Johannesburg City Council v Norman Anstey, 1928 AD 335; Pietermaritzburg City Council v Local Road Transportation Board, 1959 (2) SA at p. 774. Respondent used its discretion and power to grant F and terminate the use of the grounds in order to further the interests of the Football Association of South Africa as against the South African Soccer League. Respondent was not authorised in law to use its powers for this purpose, which is wholly different from the purpose authorised; G see Dutch Reformed Church v Town Council of Cape Town, 15 S.C. at p. 24; East London Municipality v Legate, 1915 AD 313; Fernwood Estates, Ltd v Cape Town Municipal Council, 1933 CPD 399; van Eck, N.O. & van Rensburg v Etna Stores, 1947 (2) SA 984; Broadway Mansions, Ltd v Pretoria City Council, 1955 (1) SA at p. 522; Administrator (Cape) v Associated Buildings, Ltd., 1957 (2) SA at p. 325; Mustapha & H Another v Receiver of Revenue, Lichtenburg, 1958 (3) SA at p. 348. The conduct of respondent, in terminating the grant of the grounds to applicant, amounts to a substantial and unreasonable discrimination between two classes...