Monto and Another v Campbell and Others

• Jurisdiction: South Africa
• Judge: Ramsbottom J, Price J and Roper J
• Judgment Date: 27 August 1952
• Court: Transvaal Provincial Division
• Hearing Date: 01 August 1952

C Ramsbottom, J.:

In 1949 the Town Council of Klerksdorp, the third respondent, applied to the Minister of Native Affairs for his consent, in terms of sec. 3 (2) of Act 25 of 1945, to the removal of a municipal native location to a new site. As it would be a condition of the removal D that compensation would be payable to natives who had erected houses on their lots in the location, the third respondent invited the Klerksdorp Native Advisory Board to nominate a valuer who, with a valuer to be nominated by the third respondent would determine the value of the improvements in respect of which compensation would be paid. The Native Advisory Board failed to nominate a valuer, and on March 15th, 1949, the E town clerk wrote to the Secretary for Native Affairs submitting the names of three gentlemen with the request that one of them should be appointed as the third respondent's valuer; the first and the second respondents were two of the three gentlemen named. The letter contained the information that the Native Advisory Board had failed to nominate a valuer, but that three members of that Board, at an informal discussion F had expressed themselves as being in favour of the appointment of Mr. Campbell, the first respondent, as the valuer representing the lotholders.

On April 5th, 1949, the Secretary for Native Affairs wrote to the third respondent informing it that the Minister consented, in terms of sec. 3 G (2) of the Act, to the removal of the location and also that the Minister approved the appointment of Mr. Botha, the second respondent, and Mr. Campbell, the first respondent, as representatives of the Town Council and the lotholders respectively, to act as valuers to determine what would be payable. The consent to the removal of the location was given subject to conditions which included the following:

'(2)

Dat die grondslag van die berekening van vergoeding soos volg moet wees:

(a)

die waarde van die gebou soos dit staan en

(b)

H 'n bykomende bedrag by wyse van solatium vir die verlies van die huis wat gesloop word en in oorweging van die ongerief aan die verhuising verbonde . . .

(5)

Dat die ou lokasie nie afgeskaf sal word nie alvorens al die naturelle daarvan na die nuwe terrein verskuiwe is en vergoeding volgens 'n skaal

Ramsbottom J

wat deur die Minister goedgekeur is, aan al die betrokke eienaars betaal is.'

It will be noticed that while in condition (2) the basis of compensation was laid down, condition (5) required payment of compensation to have been made according to a scale approved by the Minister before the old location could be done away with.

A The first and second respondents accepted their appointments and entered upon their duties.

In September, 1949, a number of lotholders, some of whom were members of the Native Advisory Board, made an application to Court for an order restraining the third respondent from ejecting them from the old B location and from proceeding with the valuation of the buildings in that location by the two valuers, in particular Mr. Campbell; the Town Council and the Minister of Native Affairs were cited as the respondents. The present appellants were not parties to that application. Those proceedings were settled out of Court and the terms of the settlement, which were reduced to writing, contained inter alia the following:

i.

The Native Advisory Board shall have the right to make representations to the C second respondent (the Minister) for the appointment of new valuators.

ii.

All valuations so far made are regarded as provisional.

iii.

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

iv.

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

ix.

Nothing in this agreement shall fetter the second respondent's lawful discretion.

It appears that at the time this settlement was made the valuers had E completed their valuations of the improvements on all the lots, and that clause iii of the settlement therefore had no application; this fact was not known by the applicants or the Minister. It appears, also, that in certain instances the Minister had already approved the compensation which was payable to lotholders. However, by reason of clause ii of the settlement, all the valuations, whether approved by the Minister or not F were to be regarded as provisional, and any standholder who wished to object to the valuation of the improvements on his stand was to be given an opportunity of making representations to the valuers orally or in writing.

In November, 1949, in accordance with clause i of the settlement, the G Native Advisory Board...