Mahlaela v De Beer NO

• Jurisdiction: South Africa

Mahlaela v De Beer NO
1986 (4) SA 782 (T)

1986 (4) SA p782

Citation	1986 (4) SA 782 (T)
Court	Transvaal Provincial Division
Judge	Stafford J
Heard	April 23, 1986
Judgment	May 9, 1986

Flynote : Sleutelwoorde

Blacks — Black Communities Development Act 4 of 1984 — F Disestablishment of Black township — Section 37 (1) of Act — Only Minister has the sole discretion and power to disestablish such township — Minister's authorisation to Development Board to take necessary steps must be in writing — Applicant, qualifying for residence in B township in terms of s 10 (1) (a) of Blacks (Urban Areas) Consolidation Act 25 G of 1945, applying for allocation of a house — Such refused on the ground that the board was following a policy of disestablishing the township by refusing applications for site and residential permits — Duties of superintendent of township in applying regulations made under Act 25 of 1945 — Nothing in Act 4 of 1984 entitling the board to disestablish H the township or to refuse applicant's application for a house on that ground — Implementation of such policy unlawful — Decision refusing allocation set aside and allocation made.

Headnote : Kopnota

In terms of s 37 (1) of the Black Communities Development Act 4 of 1984 the Minister has the sole discretion and/or power to I disestablish a Black township. He has the sole power or discretion to authorise the Development Board in question to take such steps as he, the Minister, may decide for the disestablishment of the town in question. That he can only do in writing.

The regulations made under the Black Urban Areas Consolidation Act 25 of 1945 and published in Government Notice R1036 of 1986, in respect of Black townships, apply to Brits Black Township. In applying these regulations, the superintendent must act within the bounds of the empowering statute and the provisions of the regulations themselves. He must carry out J such duties as may be imposed upon him by the regulations. He must also apply his mind

1986 (4) SA p783

to the merits of an application made in terms of the A regulations and give due consideration to all relevant facts and circumstances, particularly those set out in the regulations.

Generally, if the refusal of the superintendent to grant a permit or his failure to act is actuated by considerations alien to the scope of the regulations, then the exercise of his discretion or his act has not been a proper one and his decision is not one in terms of the regulations.

The applicant, who had been born in and had lived in the Brits B Black township and was entitled to live there in terms of s 10 (1) (a) of the Black (Urban Areas) Consolidation Act 25 of 1945, applied to the respondent (the superintendent of the township) for the allocation to him of a house or residential stand in that township. The application was summarily refused as the policy of the Development Board was to disestablish Brits Township and to induce people to take up houses at C Lethlabile which was situate 24 km from Brits. Applicant applied to a Provincial Division for the decision of the respondent to be reviewed and for the allocation of a vacant dwelling in the township. Respondent took a point in limine that recourse to the Court should be barred until all statutory remedies had been exhausted and that applicant should have made a final appeal to the regional director before approaching the Court. It was contended for the respondent that the fixed D policy of the Board to disestablish Brits Township was a valid reason for refusing to consider the applicant's application for the allocation of a house.

Held, that the fact that the applicant has an option to appeal did not mean he had an obligation to do so and applicant was not precluded from approaching the Court by way of review before exercising his rights of appeal in terms of reg 46 of the regulations framed under Act 25 of 1945.

Held, further, on the facts, that respondent did not apply his E mind to the merits of applicant's application even though houses were available.

Held, further, that there was nothing in the regulations or the Act which entitled the Board in question to take steps to disestablish the Brits Township by refusing to even consider applications for the allocation of houses.

Held, further, that the respondent's attempt to effect the policy of disestablishment through the implementation of a F policy obliging the superintendent to refuse site permits and residential permits was unlawful.

Held, accordingly, that the decision of the respondent should be set aside and a dwelling should be allocated to the applicant.

Case Information

Review of a decision by the superintendent of a Black township. G The facts appear from the reasons for judgment.

A Chaskalson SC (with him R Bedhesi) for applicant.

S J Mynhardt for the respondent.

Cur adv vult.

Postea (May 9). H

Judgment

Stafford J:

The identity of the applicant and the respondent in this case are not in dispute. The applicant is an adult Black male, presently unemployed, residing at 395 Brits Location. The respondent is Mr M B de Beer, who is sued in his capacity as a I superintendent of the Brits Location, employed at the Central Transvaal Development Board offices, Brits Location, Brits. He is the officer referred to in reg 1 (2) of chap 2 of the regulations, being the officer appointed and licensed under the provisions of s 22 (1) of the Blacks (Urban Areas) Consolidation Act 25 of 1945 for the management of the Brits J Location, or his deputy or assistant.

1986 (4) SA p784

Stafford J

A The applicant, by way of notice of motion proceedings, has in effect asked me to review the decision of the respondent on 22 January 1986, in refusing to grant the applicant a residential site in the old Brits Location, alternatively in refusing to allocate a vacant dwelling to him in the said location.

B It is common cause that the Brits Location has been proclaimed as a location in terms of the Black (Urban Areas) Consolidation Act and that the usual township regulations would be applicable to it. In fact, it is common cause that the regulations attached to respondent's papers, are applicable to C the Brits Black Township and are the regulations which must be considered in this case. The said regulations were made under the partly repealed Blacks (Urban Areas) Consolidation Act 25 of 1945. They were issued in terms of s 38 (a), read with s 38 (3), of Act 25 of 1945 and were published in Government Notice R1036 of 1986. With reference to s 38 (3) (a), (b) and (e) of Act 25 of 1945, these regulations were enacted not inconsistent with the then Act, to inter alia deal D with the terms and conditions of residence and with the controlling and allocating of houses. It is clear that the regulations do not deal with or confer any power on the respondent, the superintendent, or in fact on anyone else to disestablish a Black township. That was dealt with elsewhere in the repealed Act, in fact, in s 3 (2) which reads as follows:

E "No location, Black village or Black hostel shall be removed, curtailed or abolished without the consent of the Minister, after reference to the Administrator and except upon such terms and conditions as to compensation, if any, and otherwise as the Minister, after consultation with the urban local authority, may direct."

Act 4 of 1984, the Black Communities Development Act, repealed F the whole of Act 25 of 1945, except for a few specified sections. Its date of commencement was 1 April 1984. Section 66 of Act 4 of 1984 deals with the powers of the Minister to make regulations not inconsistent with the Act. Section 66 of Act 4 of 1984 is similar to s 38 of Act 25 of 1945, except that the G local authority, the Development Board in casu, no longer has the power to make regulations as it did in s 38 (3) of Act 25 of 1945.

Section 66 (1) (e) of Act 4 of 1984 reads as follows:

"The Minister may make regulations not inconsistent with this Act as to - the terms and conditions of residents in towns and hostels, the making available of accommodation therein, the allocation of sites therein, the management and control of such towns and hostels and of the accommodation and public places therein."

H Section 66 (1) (k) gives the Minister the power to make regulations as to the procedure to be followed to have a town disestablished. I have referred to s 3 (2) of Act 25 of 1945 and to s 66 (1) (k) of Act 4 of 1984, as it will be seen that the essence of the respondent's case is that, in pursuance of I the Development Board's policy that the Brits Black township ought to be disestablished, he refused the applicant a home. It is common cause that the town in question has not been disestablished, but the respondent submits as justification for his refusal to allocate a house, with reference to Act 4 of 1984 and the relevant regulations, that the ball had been set rolling for the possible disestablishment of the township. I J will elaborate later on this defence of the respondent, that is the justification for his refusing the applicant a house, when it will become

1986 (4) SA p785

Stafford J

clearer why I am emphasising, in terms of what section the A regulations are made, what they entail and deal with, and that they do not deal with the power to disestablish a Black town.

Section 66 (3) of Act 4 of 1984 makes the regulations issued under the 1945 Act applicable to the Brits Location. They are therefore applicable to the applicant's application for the B allocation of a house and to this review application. It reads as follows:

"Any regulations made under a law repealed by this Act shall be deemed to have been made under ss (1) and shall continue to apply, notwithstanding the repeal of such Act."

Once again the power to disestablish a Black town is dealt with C elsewhere in Act 4...