Mabukane v Port Elizabeth Divisional Council and the Solicitor - General

• Jurisdiction: South Africa
• Judge: De Villiers JP, Jennett J and Van Der Riet J
• Judgment Date: 20 June 1957
• Citation: 1957 (4) SA 293 (E)
• Hearing Date: 07 June 1957
• Court: Eastern Districts Local Division

De Villiers, J.P.:

The applicant, a native, has occupied lot 51 in what was then the Hankey Location, under the jurisdiction of the Hankey Municipality, since 1946. For this he pays 1s. 6d. a month site rent, and 1s. 6d. a month for water charges.

B The history of the location is set out in the affidavits of the Secretary of the first respondent, the Divisional Council of Port Elizabeth, as follows:

'(4) (a) The village of Hankey was proclaimed a municipality and the boundaries defined in terms of the Municipal Act of 1882 by Proc. 98, dated 31st March, 1905, as published in the Cape of Good Hope Government C Gazette 8743 dated 11th of April, 1905.

(b) Certain land under the jurisdiction of the Municipality of Hankey was proclaimed a Native Location in terms of sec. 1 (1a) of the Native Urban Areas Act, 1923, by Government Notice 1977 dated 24th December, 1931, as published in Government Gazette 199 dated 24th December, 1931.

(c) Certain regulations framed by the Municipality of Hankey for the said Location were promulgated in terms of sec. 23 (3) of the Native Urban Areas Act, 1923, by a Provincial Notice 482 dated 24th November, D 1932, published in the Cape of Good Hope Official Gazette 1418 dated 25th November, 1932.

(d) The Municipality of Hankey ceased to be a Municipality and was constituted a Village Management Board Area in terms of Ord. 10 of 1921, and the Village Management Board of Hankey was abolished and was constituted a Local Area under the jurisdiction of the Divisional Council of Port Elizabeth in terms of Ord. 13 of 1917 by a proc. 153 dated 17th October, 1951, as published in the Cape of Good Hope Official Gazette 2557 dated 19th October, 1951.

(e) E The Divisional Council of Port Elizabeth became the registered owner of all land in Hankey previously owned by the Municipality of Hankey, including therein the area of land constituting the Hankey Location by deed of transfer 4110 dated 27th March, 1953.

(f) The Divisional Council of Port Elizabeth was designated an urban local authority for the purpose of the application of the Natives (Urban Areas) Consolidation Act, 1945, within the Local Area of Hankey by Proc. 189 dated 12th of August, 1953, as published in Government Gazette 5131 F dated 4th September, 1953. No regulations have as yet been promulgated in terms of sec. 38 (3) and sec. 38 (5) of the Natives (Urban Areas) Consolidation Act, 1945, in respect of the said area.

(g) The area in which lot 51 is situated is an area which has been set aside for Natives.

(h) The Prevention of Illegal Squatting Act, 52 of 1951, was made applicable to the Magisterial District of Humansdorp (area in which G Hankey falls) by Proc. 282 published in Government Gazette 4976 on the 12th of December, 1952.

Though the area referred to in para. 4 (g) has been set aside by the first respondent the approval of the Minister as required by sec. 2 of Act 25 of 1945 has to date been withheld in terms of sec. 2 (2) of the said Act.'

On the 12th August, 1955 the applicant, together with certain other natives, was given notice to remove himself from his site and the 'commonage' within one month from the date of the notice, and he was H threatened with criminal prosecution if he failed to comply with the notice. The appellant failed to vacate and the first respondent as prosecutor in a private prosecution served the applicant with a criminal summons for contravention of sec. 1 (a) of Act 52 of 1951.

The prosecution failed as the magistrate held that first respondent had no locus standi to prosecute.

De Villiers JP

On the 28th September the applicant was again served with a notice to vacate. He refused but a prosecution by the second respondent failed because the magistrate held that the notice was invalid in that it did not give a full month's notice.

A Thereafter the applicant received a further notice dated the 7th of February which is in the following terms:

'Your permission to reside on the Hankey Commonage on lot 51 has been withdrawn by the Divisional Council of Port Elizabeth.

You are therefore required to remove yourself and your family from the commonage by the end of March, 1956. Failing compliance with the terms of this notice within 48 hours of the above-mentioned date...