Monto and Another v Campbell and Others

• Judge: De Wet J
• Judgment Date: 21 November 1951
• Hearing Date: 06 November 1951
• Court: Transvaal Provincial Division

De Wet, J.:

In terms of sec. 3 (2) of Act 25 of 1945 the Minister of Native Affairs authorised the abolition of the Old Location of the E Klerksdorp Municipality and prescribed terms and conditions as to compensation for the inhabitants. The first and second respondents were appointed as valuators on the 5th April, 1949, and the basis of the valuation laid down by the Minister was: '(a) die waarde van die gebou soos dit staan, en (b) 'n bykomende bedrag by wyse van solatium.'

F Certain Native site holders brought proceedings in this Court for inter alia (a) an order restraining the third respondent from ejecting them from the Location where they resided, and (b) an order restraining the third respondent from proceeding with the valuation of the buildings G in the Old Location by two valuators, in particular the valuator purporting to act for the Natives.

The matter came before the Court for hearing on the 29th September, 1949, and a settlement was arrived at whereof the following terms are material:

'The Native Advisory Board shall have the right to make representations to the second respondent for the appointment of new valuators.

All valuations so far made are regarded as provisional.

H All further valuations will in the first place be made on a provisional basis.

The amount of each provisional valuation will be notified in writing to the individual standholder concerned, and any standholder desiring to object to the provisional valuation of his stand will be given an opportunity of making representations to the valuators orally or in writing.

Any native at present residing in the Old Location will be entitled to remain there until compensation approved by the Minister has been paid to him in terms of the Minister's consent to the removal of the Location, dated 5th April, 1949.'

De Wet J

The first respondent in that application was the Municipal Council, which is the third respondent in the present matter, and the second respondent was the Minister, who is the fourth respondent in the present matter. The valuators, who are the first and second respondents in the present matter, were not parties to the previous proceedings.

A The present proceeding arises out of an alleged breach of the terms of the settlement.

When the present matter came before DOWLING, J., preliminary objections were taken, firstly that the applicants had no locus standi inasmuch as B they were not parties to the previous proceedings. This objection was overruled as well as a second objection that the first, second and third respondents should not have been joined in the proceedings. The judgment was delivered on the 29th September and it is not necessary for me to deal with those objections. [*1]

C After the settlement was effected there was a meeting of the Native Advisory Board on the 27th January, 1950, and the appointment of Aenmey as valuator was recommended in terms of the settlement. The recommendation was conveyed to the Minister by the town clerk in a letter dated 20th February, 1950. In the same letter the town clerk D stated that all valuations had been completed and it was suggested that no purpose could be served by the replacement of one of the valuators at that stage. In reply to this letter the Minister, through the Departmental Secretary, in a letter dated 10th March, 1950, enquired (1) whether clause 4 of the settlement had been complied with and whether E any objections had been lodged by the site holders, and (2) whether any new valuations had been made since the date of the settlement. The reply, dated 13th March, 1950, stated that there had been 98 objectors out of a total of 864 inhabitants and that all notices had not yet been F sent out. It was stated further that all valuations had been completed by the 3rd September, 1949 (i.e. before the date of the settlement). It appears from the affidavit of the Minister that he was not aware of the fact that valuations had been completed when the settlement was entered into, and the town clerk, who filed an affidavit on behalf of the third G respondent, stated that this was not known to any of the persons present when the terms of settlement were drawn up.

The Minister's decision was notified to the third respondent in a letter dated 18th April, 1950, in the following terms:

Verskuiwing van Naturellelokasie.

H 'Met betrekking tot u brief nr. N. 11/385 van 13 Maart 1950, wil ek u meedeel dat, aangesien alle waardasies reeds voor die datum van die geregtelike skikking voltooi is, die moontlikheid vir die benoeming van nuwe waardeerders ingevolge klousule 1 van die skikking vanselfsprekend wegval. Gevolglik spyt dit Sy Edele die Minister van Naturellesake dat hy nie die

De Wet J

voorgestelde benoeming van mnr. D. A. Aenmey as nuwe waardeerder kan oorweeg nie.

Daar alle waardasies reeds gedoen is en derhalwe kragtens klousule 2 van die skikking as voorlopige waardasies beskou word, staan dit enige perseelhouer ooreenkomstig klousule 4 nou vry, indien hy teen die A voorlopige waardasie beswaar maak, om mondelinge of skriftelike vertoë tot die waardeerders te rig.

Geliewe die posisie aan die Adviserende Naturellekomitee te verduidelik.'

The Secretary for Native Affairs states that in October, 1950, he received information that a further application to Court was B contemplated and then found that the memorandum submitted to the Minister in April...