Kotsokwane v Johannesburg City Council

• Jurisdiction: South Africa
• Judge: Clayden J
• Judgment Date: 24 August 1949
• Citation: 1950 (1) SA 161 (W)
• Hearing Date: 23 August 1949
• Court: Witwatersrand Local Division

Clayden, J.:

The applicant in this case is a native, aged 171/2, who is resident in Alexandra Township. Prior to the 12th July, 1949, he alleges that he was engaged for employment by a firm, L. Abrahamson (Pty.), Ltd. in Johannesburg. From the Native Commissioner at Alexandra Township he obtained, on the 12th July, 1949, a pass authorising him to travel to the pass office Johannesburg, for the purpose of registration of a service contract. On the same day, accompanied by a European employee of his employer, the applicant went to the Native Affairs Department, municipal section, Johannesburg, in order to have his service contract registered. An employee of the Johannesburg City Council then ordered the applicant to leave the area under the respondent's control. This was a Mr. Johnson. The applicant was given a pass by an official in the Department of Native Affairs for the purpose of travelling to "any rural area or place of domicile" for the purpose of seeking work as from the 13th July, 1949, and on this pass there was put a rubber stamp by the employee of the City Council which reads:

"Non-European Affairs Dept., Refused entry into urban area of Johannesburg in terms of Proc. 61 of 1947."

On the following day the applicant again visited the Native Affairs Department, municipal section, with a clerk of his attorney and there asked the respondent's employee to put his pass in order and to cancel the refusal to al]ow him to enter into the area. This request was refused.

This petition is presented to ask for relief against the action on the part of the employee of the respondent. The respondent does not attempt to justify its action except in terms of Proc. 61 of 1947, the Proclamation which appears in the rubber stamp endorsement to which I have referred.

Clayden J

The defence raised is as follows: In para. 3 of the respondent's replying affidavit it is stated that the respondent has no knowledge of the contract of employment which the applicant says he has, and then it is alleged that if the applicant entered into a contract of employment with the said firm as alleged then he must have entered the said area wrongfully and unlawfully and without the necessary authority of the respondent. In so far as this purports to be a denial of the fact that the applicant had entered into a contract of employment it is, I think, unavailing. There is nothing to contradict the facts alleged by the applicant; and it would have been easy for the respondent to approach the named employer if it sought to contradict the allegation that the applicant had a contract; and, as appears from para. 7 of the replying affidavit, the real defence to this application is, I think, that the contract, which the applicant had, is not proved by him to have been a lawful contract; and this is coupled with the defence that under Proc. 61 of 1947 there is a discretion whether or not to admit the applicant to the area. The point of the discretion is taken in para. 7 (a), where it is said:

"The respondent avers that in terms of condition (a) of Proc. 61 of 1947, the officer appointed by the Urban Local Authority for the purpose of dealing with such applications had to be satisfied:

(i)

That the applicant had been engaged for employment in the area under the control of the urban local authority; and

(ii)

that the applicant was proceeding to take up such employment."

In para. 7 (d) it is alleged that the applicant

"had not proved that a lawful contract of employment had been entered into by him nor that he was proceeding to take up such lawful employment to the satisfaction of the said Johnson";

(that is the employee who dealt with the matter)

"and as the said employment had not been approved by the registering officer concerned; and as there was no undertaking by the petitioner's employer to return him to his home if so required".

This refers to the terms of Government Notice 1546 of 1924, to which I shall refer later. That the respondent alleges that the contract of employment was a contravention of sec. 4 of the said Government Notice appears from para. 7 (b) of the replying affidavit. Para. 7 (c) again repeats the earlier allegation, to which I have referred, made in para. 3, and alleges that if the applicant had been engaged for employment he must have entered the area without the necessary authority from the respondent and therefore he was attempting to defeat the objects of the Native Urban Areas Act, 25 of 1945.

Clayden J

I must now refer to Proc. 61 of 1947. This is a proclamation issued under sec. 10 of Act 25 of 1945, and it reads as follows:

". . . no native, except as provided in section thirteen of the said Act, shall enter any area under the control of any urban local authority, named in the Schedule hereto," (and Johannesburg is included in that schedule) "for the purpose of seeking or taking up employment or residing therein, unless one or other of the following conditions has been fulfilled: -

(a)

Such native has been engaged for employment in the area under control of the urban local authority and is proceeding to take up such employment;

(b)

such native satisfies an officer, appointed by the urban local authoiity for the purpose, that he is on a bona fide temporary visit;

(c)

the urban local authority is prepared, in view of the labour conditions then existing in the area under its control, to allow such native to seek work in such area.

Provided that the urban local authority shall issue to any native who has been permitted, in terms of paras. (b) or (c) to visit or enter the area under its control, a permit which shall indicate the period during which he may remain in such area, and which may be renewed from time to time."

There is a second proviso to which I shall later refer.

Now on a proper...