Madrassa Anjuman Islamia v Johannesburg Municipality

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, Juta AJA and Kotzé Acting AJA
• Judgment Date: 28 December 1917
• Citation: 1917 AD 718
• Hearing Date: 29 October 1917
• Court: Appellate Division

Solomon, J.A.:

This is an appeal against an order made by the Transvaal Provincial Division interdicting the appellants from permitting or allowing one Dangor or any other Asiatic or coloured person or persons to occupy Stand 320 in the township of Vrededorp. The stand in question is owned by the appellants in freehold, the original title to it having been transferred from the respondent Council to one Rieseberg under the provisions of "The Vrededorp Stands Act 1907."

Under sec. 3 of that Act on the day of its taking effect "the freehold title in so much of the area of land defined in the first schedule as is vested in the Crown shall be by the Governor granted to and vested in the Municipal Council of Johannesburg." In the said area was included the stand in question together with other stands in the township of Vrededorp, which at the time of the passing of the Act were in the occupation of a number of indigent persons to whom stand licenses had been issued by the Government of the late South African Republic under certain Executive Council and Volksraad Resolutions. By sec. 4 of the Act it was provided that on the taking effect of

Solomon, J.A.

the Act or at any time within four years thereafter every registered holder of any such stand should be entitled to obtain from the Council on payment of certain moneys in substitution for his existing interest in his stand a freehold title, which should be subject to the conditions set forth in that section. The appellants are the successors to Max Rieseberg, to whom freehold title to stand 320 was transferred by the Council in accordance with the provisions of the aforesaid section. And one of the conditions to which the title is subject is the following: "the owner after the expiry of the said period of four years shall not permit any Asiatic, native or coloured person (other than the bona fide servant of a white person for the time being residing on the stand) to reside on or occupy the stand or any part thereof." It is common cause that the appellants have in breach of the said condition permitted a certain Asiatic named Dangor to reside on the said stand, and that they have refused to comply with the demand made by the Council to terminate this occupation. In these circumstances the Transvaal Provincial Division, reversing the decision of the Witwatersrand Local Division, made an order interdicting the appellants from permitting the said Dangor or any other Asiatic or coloured person to occupy stand No. 320, and it is that order which is now the subject of appeal. The contention for the appellants is that, inasmuch as the Statute provides certain remedies for a breach of the condition embodied in the title, no other remedy is open to the Council, and that consequently it was not entitled to the interdict which was granted by the court below.

Now there are two special remedies provided by Act 27 of 1907. The first is contained in sec. 4 (d) and the other in sec. 13. The former provides that if after the period of four years has expired, an Asiatic or coloured person is found occupying a stand, the Council may give notice in writing to the owner to put an end to such occupation within three months, and if he fails to do so proceedings may he taken before a magistrate to have the stand forfeited. And sec. 13 entitles the Council as well as the owner to bring an action in the magistrate's Court to eject such Asiatic or coloured person from the stand. The question for our decision is whether the fact that these two remedies have been provided in the Act excludes the remedy by interdict which was granted in the court below.

Solomon, J.A.

Now there is abundance of authority in the English Courts for the proposition that, as a general rule, where a Statute, as here, creates a special obligation and prescribes special remedies, no other remedy is available. This rule was laid down by Lord TENTERDEN in Doe v Bridges (1 B. & Ald. 847) as follows: "Where an Act creates an obligation and enforces the performance in a specified manner we take it as a general rule that performance cannot be enforced in any other manner." The same principle was enunciated by WILLES, J., in Wolverhampton New Waterworks Co. v Hawksford, (6 C.B.N.S.) where he stated that there were three classes of cases in which a liability may be established founded upon a Statute. The third, which is the present case, is "where a liability not existing at common law is created by a Statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the Statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second kind," that is, to proceed by action at common law. The general rule thus laid down in these two old cases has been generally followed in the English Courts up to the present time. It is true that in Lamplugh v Norton (22 Q.B.D. 352, BOWEN, L.J deprecated laying down any general canon of construction with regard to Acts of Parliament, but in spite of his protest the Courts have generally continued to follow the rule laid down by Lord TENTERDEN. And in a comparatively late case in the House of Lords Passmore v Oswaldtwistle Urban Council (1898, A.C. 387) it was unreservedly adopted by that tribunal. In his judgment the LORD CHANCELLOR, Lord HALSBURY, said: "The principle that where a specific remedy is given by a Statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the Statute, is one which is very familiar and which runs through the law. I think Lord TENTERDEN accurately states that principle in...