Minister of Finance v Barberton Municipal Council

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Innes JA, CG Maasdorp AJA, AFS Maasdorp Acting AJA and Dove-Wilson Acting AJA
• Judgment Date: 28 April 1914
• Hearing Date: 10 March 1914
• Court: Appellate Division

Lord De Villiers, C.J.:

The 14th section of the Transvaal Act No. 34 of 1908 enacts that "all payments made in respect of stands in a Government Township . . . . shall be paid into a special account and shall be set aside by the Colonial Treasurer for the council of the municipality for the purpose of such capital expenditure as the Governor may approve." The declaration in this case alleges that the township of Barberton is a. Government township, that since the coming into operation of the Act the Government and the defendant as Minister of Finance received payment of arrear licence moneys and that the Government and the defendant have failed and refused to pay the said moneys into a special account and to set aside the

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same is directed by the Act. The prayer is (a) for a declaration that the defendant is bound to pay the said moneys into a special account and to set the same aside for the plaintiffs, as the council of the municipality, for the purpose of such capital expenditure as the Governor-General may approve, and (b) for an order directing the defendant to pay the said moneys into the special account and set the same aside. The defendant excepts to the declaration on the grounds (1) that the Act does not refer to arrear moneys paid after the coming into effect of the Act, and (2) that the Transvaal Provincial Division, in which the action was brought, has no jurisdiction to grant either of the plaintiff's claims. The court, by its judgment, dismissed the exception, and from that judgment the defendant now appeals.

As to the first ground of exception, I agree with Mr. Justice MASON that the words "all payments made in respect of stands" include all payments made after the Act came into force. That is the natural and primary meaning of these words, and the fact that such a construction would include payments which ought to have been made before the date of the Act would not justify a departure from the proper meaning of the words.

The more important question is that of jurisdiction. The Act imposed on the Colonial Treasurer the duty of paving certain moneys into a special account for the benefit of the plaintiffs, but it is contended that the Transvaal Court has no jurisdiction to enforce the performance of that duty by the defendant as Minister of Finance, who under the South Africa Act, takes the place of the Colonial Treasurer. If the duty had been imposed upon an ordinary subject there would have been no doubt as to the power of the Court to enforce its performance but because, it is imposed upon the defendant as Minister of Finance, the Court is asked to hold that there exists no legal means of enforcing it. As I understand the Act, the licence moneys were not intended to become the property of the Crown but the Minister was enjoined on receipt thereof to pay the same into a separate account for the benefit of the different municipalities. He held the amount now in question not as servant or agent of the Crown, but as the trustee of the municipality interested therein. The case of Binda v The Colonial Government (5 S.C. 284) is no authority for the proposition that the Transvaal Court has no jurisdiction to entertain the plain-

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tiff's claims. The point there decided was not that the Cape Supreme Court had no jurisdiction but that the Government was not liable for the tortious acts of its servants. It was sought to make the Cape Government liable in damages for the acts of a collector of house duty in seizing certain cattle belonging to the plaintiff. The Cape Supreme Court held that, whatever power it might have possessed if the claim had arisen out of a contract or quasi-contract, it could not order payment of damages inasmuch as the Government was not liable for the tortious acts of its servants, even when committed within the scope of their employment. By the declaration in the present case no attempt is made to render the Union Government liable in damages for the act of the Minister of Finance, but it is sought to compel the Minister of Finance to perform a duty which the Legislature has directed him to perform for the benefit of the different municipalities concerned, and no case, whether English or South African, has been cited which would justify the Court in refusing to enforce the plaintiff's claims. The case in the House of Lords of Kinloch v The Secretary of State for India (7 A.C. 619) does not assist the defendant, for there, although the booty of war granted by Royal warrant to the Secretary of State was "in trust" for the officers and men of certain forces, the payments were only to be made if the Secretary of State was satisfied that the claims were right. It was held that art action for an account did not lie against the Secretary of State on the simple ground, as stated by Lord BLACKBURN, that, on the construction of the warrant, the Secretary of State was made an agent of the Queen, subject to her Majesty's control and power, to pay away the moneys when satisfied that the claims were right. In the present case, the duty imposed upon the defendant for the benefit of the plaintiff is unqualified. In the case of Queen v The Commissioner of Inland Revenue (12 Q.B.D. 461) the Court of Appeal refused a mandamus to the Commissioners to pay to the applicant the amount of duty overpaid by him. The ground for the refusal was that the Statute upon which the applicant relied created no duty between the Commissioners and the applicant whose remedy, if the decision of the Commissioners could be reviewed, was by Petition of Right. In the present case a direct duty was created between the plaintiffs and the defendant and there

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is, moreover, no authority in our law for proceeding by way of Petition of night to enforce a claim against the local Government.

A difficulty, however, arises from the fact that the declaration alleges that the moneys had been received by the Government and the defendant, but if the moneys immediately on receipt thereof by the defendant were held in trust for the plaintiff, the allegation should not be allowed to prejudice the plaintiff. Assuming, however, that the present action must be regarded as a claim against the Union Government arising out of the defendant's neglect or refusal to perform his duty towards the plaintiff and that the doctrine laid down in Binda's case is far-reaching enough to relieve the defendant as Minister of Finance from liability, the question would still remain whether the effect of subsequent legislation has not been to remove any obstacle in the way of the plaintiff's claim if otherwise well founded. In that case I expressed a strong opinion, which was shared by my then colleague SMITH, J., that an amendment of the Cape Law was urgently needed. In the following year the Cape Act No. 37 of 1888 was passed, and that Act was subsequently adopted by the Transvaal Legislature (Ordinance No. 51 of 1903) and the Union Parliament (Act No. 1 of 1910). The first section enacts that "any claim against Her Majesty in her Colonial Government which would, if such claim had arisen against a subject, be the ground of an action in the Supreme Court, shall be cognizable by the said court, whether such claim shall arise or have arisen out of any contract lawfully entered into on behalf of the Crown or out of any wrong committed by any servant of the Crown acting in his capacity and within the scope of his authority as such servant." It has been said that the claim referred to can only be a money claim, because a subsequent section enacts that "no execution or attachment or process in the nature there of shall be issued against the defendant, or respondent, or against any property of Her Majesty, but it shall be lawful for the Treasurer of the Colony to pay out of the colonial revenue such sum of money as shall, by the judgment of the Supreme Court, be awarded to the plaintiff, applicant or petitioner." These words, however, do not show that it was intended to exclude suits for a declaration of rights or for an interdict from the operation of the first section. If a interdict is granted no attachment or process in the nature thereof can be issued against the defendant, but it

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would be...