Nigel Town Council v Ah Yat

• Jurisdiction: South Africa
• Judge: Clayden J, and Dowling J
• Judgment Date: 01 March 1950
• Court: Transvaal Provincial Division
• Hearing Date: 09 December 1949

Nigel Town Council v Ah Yat
1950 (2) SA 182 (T)

1950 (2) SA p182

Citation	1950 (2) SA 182 (T)
Court	Transvaal Provincial Division
Judge	Clayden J, and Dowling J
Heard	December 9, 1949
Judgment	March 1, 1950

Flynote : Sleutelwoorde

Statute — Construction — Native (Urban Areas) Consolidation Act, 25 of 1945 — 'The Administrator.' — Meaning of in sec. 38 (5) — Regulations framed under Act indicating such made with approval of Executive Committee — Effect.

Headnote : Kopnota

The meaning to be attached to the word 'Administrator' in section 38 (5) of the Native (Urban Areas) Consolidation Act, 25 of 1945, is that given to it by Act 5 of 1910, section 3, namely, the Administrator himself and not 'the Administrator in Executive Committee' nor 'the Administrator acting on the advice of the Executive Committee'.

Where a regulation framed under Act 25 of 1945 promulgated as an Administrator's Notice provided that 'The Administrator in Executive Committee and the Minister of Native Affairs have been pleased, under the provisions of sub-section (5) of section 38 of the Native (Urban Areas) Consolidation Act, 1945, to approve the Sprouted Grain Regulations for the Municipality of Nigel as set forth in the Schedule hereto',

Held, as the natural inference of fact to be drawn from the preamble was that the Administrator had wrongly assumed that the approval called for was the normal and usual approval by the Administrator in Executive Committee and that he had directed his mind to the question of his personal approval, that the Regulations were accordingly invalid.

Case Information

Appeal by a local authority under sec. 104 of Act 32 of 1944. The facts appear from the reasons for judgment.

H. J. B. Vieyra, K.C. (with him H. N. McDonald), for the appellant: The regulations had to be approved by the Administrator acting on the advice of the Executive Committee. The Urban Areas Act 25 of 1945 contains no definition of Administrator.

1950 (2) SA p183

The Court must look to the South Africa Act for guidance. See secs. 68 (1), 78 (1), 80, 81, 84, 82. The whole intention of that Act is that the Administrator, with a few exceptions, shall act on the advice and with the consent of the Executive Committee. See Pretoria City Council v Lombard, N.O. (1949 (1), S.A.L.R. 166 at pp. 174 - 178). The 1945 Act is full of references to the Administrator. See secs. 2, 3, 4, 4 (1), 4 (2). Regulations under sec. 38 are by-laws within the meaning of that term in Ord. 17 of 1939 (T.) sec. 2. See Tsheleza v Brakpan Municipality (1929 TPD 613 at p. 616); Germiston Town Council v Union Government (1931 TPD 396). Sec. 38 (5) requires promulgation in the manner directed by the law of urban local authority. See sec. 101 of Ord. 17 of 1939. It is the Administrator acting on the advice and with the consent of the Executive Committee that must promulgate.

The onus is on the accused to show that the regulations were not approved by the Administrator personally. Omnia praesumuntur rite esse äcta donec probetur in contrarium. See Rex v Kramer (1929 TPD 173, 175); Rex v Podbrey (1948 (2), S.A.L.R. 189); Mofokeng v Rex (1949 (2), P.H. K. 137). Alternatively, see sec. 102 of Act 17 of 1939. This onus the accused has not discharged.

I. C. Steyn, for the respondent: The regulations promulgated by the Municipality are regulations framed under sec. 38 (3) (j) of Act 25 of 1945. Consequently they require the approval of the 'Administrator' and the 'Minister' in terms of sec. 38 (5) of the Act. The 'Minister' is defined in sec. 1 of the Act as the Minister of Native Affairs, but the 'Administrator' is not defined. Sec. 3 of Act 5 of 1910 defines 'Administrator' as Administrator of the province for or in respect of which any law was enacted.

The result is that, unless the 'Administrator' is defined in the enabling Act, it means the Administrator simpliciter and not the Administrator in Executive Committee. These regulations were approved by the Administrator in Executive Committee and this appears ex facie the notice promulgating the regulations. The enabling Act however provides for the approval of the Administrator simpliciter and not in the Executive Committee. The invalidity is therefore...