Minister of Finance v Barberton Municipal Council

• Jurisdiction: South Africa
• Citation: 1914 AD 335

Minister of Finance Appellant v Barberton Municipal Council Respondent
1914 AD 335

1914 AD p335

Citation	1914 AD 335
Court	Appellate Division, Bloemfontein - Cape Town
Judge	Lord De Villiers CJ, Innes JA, CG Maasdorp AJA, AFS Maasdorp Acting AJA and Dove-Wilson Acting AJA
Heard	March 10, 1914
Judgment	April 28, 1914

Flynote : Sleutelwoorde

Crown Liability — Declaration of Rights — Act 1 of 1910 — Duty to individuals created by Statute — Retrospective operation of Act.

Headnote : Kopnota

A claim for a declaration of rights or for an interdict against His Majesty in his Government of the Union is cognisable in any competent Court of the Union.

The 14th section of Act 34 of 1908 (T.) 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 B Municipal Council brought action against the Minister of Finance for the Union alleging that B was a Government township, that since the coming into operation of the Act the Government of the Transvaal Colony and the defendant had received payment of stand licence moneys which had been in arrear at the time of such coming into operation, and that the Government of the Transvaal Colony and the defendant had failed and refused to pay such moneys into a special account. The prayer of the declaration was for a declaration that the defendant was bound to pay the moneys into a special account and for an order directing the defendant to do go.

Held, on exceptions taken by the defendant, that, assuming that the action was brought against the Government, the statute created an unqualified and direct duty between the plaintiffs and the defendant, that the neglect of such duty

1914 AD p336

by the defendant was a wrong within the meaning of sec. 2 of the Crown Liabilities Act 1 of 1910, and that the Court had power to aid the plaintiffs by declaration of rights or by a mandatory interdict.

The decision of the Transvaal Provincial Division in Barberton Municipality v Minister of Finance (1913 TPD 816) affirmed.

The dictum of the Privy Council in Cook v Sprigg (1899, A.C at p. 578) not followed.

The case of Braunschweig V.M. Board v Minister of Lands (1913, E.D.L.D. 386) overruled.

The case of Farr v Union Government (1913 CPD 818) approved.

Case Information

Appeal from the decision of the Transvaal Provincial Division (DE VILLIERS, J.P., and MASON, J.), on exceptions taken by the defendant Government to the plaintiff council's declaration.

The plaintiff council brought action against the Government, their declaration setting out that the defendant was the Hon. J. C. Smuts, in his capacity as Minister of Finance for the Union Government, which Government was by law the successor in title to all the rights and liabilities of the late Government of the Transvaal Colony; that the township of Barberton was a Government township, as defined in Act 34 of 1908 (T.); that at the time of the taking effect of that Act there were arrear licence moneys due by holders of stands in the township to the Government of the Transvaal Colony; and since the taking effect of the Act the defendant and the Government of the Transvaal Colony had received payment of such arrear licence moneys. By virtue of Act 34 of 1908, the Government of the Transvaal Colony had been, and the defendant was, bound to pay such moneys into a special account, and to set aside the same for the plaintiff council for the purpose of such capital expenditure by that council as the Governor might approve. The Government of the Transvaal Colony and the defendant had failed and refused to pay the moneys into such account, and to set them aside as aforesaid. The plaintiff council claimed: -

"(a)

A declaration that the defendant is bound to pay the said moneys into the said special account and to set aside the same for the plaintiffs for the purpose of such capital expenditure by such council as the Governor may, approve.

(b)

An order directing the defendant to pay the said moneys into the said special account and to set aside the same as aforesaid.

(c)

Alternative relief, and

(d)

Costs."

1914 AD p337

The defendant excepted to the plaintiff's declaration on the following grounds:-

(a)

It discloses no cause of action and is bad in law in that the said moneys are not subject to the provisions of Act, 34 of 1908.

(b)

It discloses no responsibility or liability on the part of the defendant to pay the said moneys into the said special account and to set the same aside as detailed in claim (a.) of the declaration.

(c)

This Honourable Court has no jurisdiction to grant as against the defendant claims (a) and or (b) of the declaration.

(d)

The plaintiff's claim is in respect of an administrative matter and is not within the jurisdiction of this Honourable Court.

(e)

The declaration is vague, embarrassing and bad in law and discloses no cause of action.

The Transvaal Provincial Division dismissed the defendant's exceptions, with costs, the learned judges taking the view that the declaration was framed against the Minister of Finance personally. The judgment of MASON, J., concludes as follows:

MASON, J.: ". . . . A careful consideration of these authorities and the language of the Townships Amendment Act of 1908 has satisfied me that a statutory obligation has been imposed on the Minister of Finance to set aside these licence moneys for the benefit of the Municipality, that these are not moneys voted to the Crown or for the service of the Crown, and that the Treasurer is not entitled to deal with them or hold them as the servant or agent of the Crown. To sum up, apart from the question whether another remedy may not be available to the plaintiff, the facts and law of the case seem to me to bring it within the principles on which a writ of mandamus is granted in England and to distinguish it from those cases in which a mandamus has been refused.

The plaintiff in my judgment has established that his claim either in whole or in part can be maintained if not at common law or under the Crown Liabilities Act, then as an application for a writ of mandamus or a mandatory injunction of the usual nature.

The defendant's exceptions must therefore be dismissed with costs."

The defendant now appealed.

1914 AD p338

A. Davis (with him C. Steyn), for the appellant: The moneys in question in this case are stand licence moneys due under the Gold Law (No. 15, 1898 - see secs. 93, 94, 104). They are expressly protected by section 3 (1), Act No. 34, 1908. They do not fall within the term "all payments" in section 14. That expression only includes payments of capital sums for the conversion of stands into freehold under secs. 9 and 10. There is nothing in the Act to suggest that the legislature intended to make a donation of stand licence moneys to the municipalities. If the Act is read as transferring such moneys to the municipalities, the interpretation is retrospective, because it involves an interference with the Government's vested rights. The presumption is against retrospective interpretation: East London Municipality v Colonial Government (3 Juta 317); Halsbury, Laws of England (vol. 27, p. 159, secs. 305, 306; p. 151, sec. 284).

On the face of the declaration the real defendant is the Government of the Union, that is, the Crown. The Minister is only the nominal defendant: Union Act No. 1, 1910, sec. 2. In that case the declaration is bad in law because under Act No. 1. 1910, an action only lies in cases of contract or tort; there is no action for a declaration of rights or a mandamus. This is an action for a declaration of rights. It is not founded on contract or on tort: Cook v Sprigg (L.R. 1899, A.C. 572); Braunschweig Management Board v Minister of Lands (1913, E.D.L.D. 386); Fraser v Sivewright (3 Juta 55); Moll v C.C., Paarl (14 S.C. 463); Cape Town Council v Hoskyns (21 S.C. 393).

[LORD DE VILLIERS, C.J.: Does not the minister hold the moneys in trust for the municipality and rot for the Crown?]

In that case he should have been sued in his capacity as minister and as successor to the Treasurer of the Transvaal, for an order against him personally. He cannot be sued in tort for a dereliction of duty by a predecessor, but only for his own derelictions.

The Union Government is not the successor to the legal obligations of the Transvaal Government. "Functions" in sec. 16 of the South Africa Act does not include obligations.

This is not a debt or liability charged on any property of the Crown, and it is therefore not preserved by sec. 122 of the South Africa Act.

All revenues are vested not in the minister but in the Governor-General, that is the Crown: South Africa Act, sec. 117; Act No. 21,

1914 AD p339

1911, secs. 25, 28, 29. Money can only be withdrawn from the Exchequer account by Governor-General's warrant, except in the cases dealt with in secs. 28 and 29, Act No. 21, 1911. The Court cannot compel the Governor-General, that is the Crown, to withdraw money from the Exchequer account. See further Transvaal Letters Patent, 1906, sec. 53; Transvaal Act No. 14, 1907, secs. 25, 28.

Even if this is an action against the minister as minister, the Court has no jurisdiction. If the minister is sued for the performance of a duty imposed upon him by Parliament it is only Parliament that can compel him to perform it.

[LORD DE VILLIERS, C.J.: If the minister fails to perform a duty imposed upon him to the municipality, is that not a wrong done lo the municipality and covered by sec. 2 of the Crown Liabilities Act?]

In England in similar cases it has been held that the minister is not liable. A mere omission to perform a duty imposed by statute is not a tort.

[INNES, J.A.: It is...