Olley v Maasdorp and Another

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Centlivres JA and van Den Heever JA
• Judgment Date: 14 October 1948
• Citation: 1948 (4) SA 657 (A)
• Hearing Date: 21 September 1948
• Court: Appellate Division

Watermeyer, C.J.:

This is an appeal from a decision by HUDSON, C.J., sitting in the High Court of Southern Rhodesia.

Appellant applied to the High Court, on motion, for an order declaring the first respondent (to whom I shall refer in these reasons as the respondent) incapacitated from holding office as a councillor of the City of Salisbury, on the ground that she did not possess the qualifications required by sec. 16 of Chap. 97 of the Rhodesian Statutes or alternatively that she was disqualified by virtue of the provisions of sec. 17 (2) of the Act.

The facts were stated by HUDSON, C.J., in his judgment as follows:

'The applicant is a ratepayer and duly registered as a voter and entitled to vote at municipal elections in the City of Salisbury. The first respondent is a woman married to her husband under ante-nuptial contract excluding community of property and of profit and loss and the marital power. She lives with her husband in a house situated in the City, of which he is the owner. Throughout the period during which she served as a councillor she has managed her own business affairs and has not been concerned in any of her husband's business affairs. She has operated her own banking account and submitted separate returns of income for income tax purposes. She is also the lessee and occupier of an office and store room, portion of premises known as Manica Chambers situated on Stand 53 within the Municipality, and let to her by Shabani Estates at a rental of £4 5s. a month. The valuation of the property comprised in Manica Chambers made under sec. 122 of the Municipal Act (Chap. 97) is land £2,750 and buildings £4,000. The said land and buildings are rateable property in the Municipality and have been assessed for quarterly rates at a total of £31 14s. 11d. These rates have been paid since the year 1941. No separate valuation of the portion of the premises occupied by her has been made by the Council in terms of the Act, but an affidavit by Mr. Guest, a sworn appraiser of this Court, was put in. In this affidavit Mr. Guest valued the portion of the building occupied by the first respondent at £260 and the land on which this portion is situated at £380. He considered the rental of £4 5s. a month a fair one. Mr. Dudley, a partner in the firm of accountants who act as secretaries to Shabani Estates Limited, estimated that the nett income from

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the offices occupied by the first respondent to be £36 10s a year, after deducting from the gross rental of £51 the sum of £14 10s. as representing the proportion of the total expenses in respect of the said land and buildings attributable to such office. The first respondent's husband is a surveyor practising as such in partnership with two partners. Such partnership executed survey work for the Council during the years 1945, 1946 and 1947, being paid fees considerably in excess of £100 in each of those years. Further survey work, for which the fees would exceed £100, was placed in the hands of the said partnership between the 7th October, 1946 and the 6th August, 1947, the date of the election hereinafter referred to, all of which work had still to be completed. At an election of councillors held on the 6th August, 1947, for which there were six candidates, the first respondent was declared duly elected. It is common cause that no tenant's rate has been imposed by the Council and the first respondent is not under contract liable to pay the owner's rate on the office leased to her. The grounds on which the application is based are twofold. Firstly, it is contended that she is not eligible to be elected as a councillor in terms of sec. 16 of the Act, and secondly, that she is disqualified from becoming or continuing as a councillor in terms of sec. 17 (2) (b) in that she has an indirect pecuniary interest in her husband's contracts with the Council.'

The learned CHIEF JUSTICE dealt with these grounds and held that respondent was eligible for election as a councillor and was not disqualified by reason of her husband's contract with the Council.

This appeal is now brought against that decision.

Dealing first with respondent's eligibility, the relevant sections of the Act are (a) sec. 136, which empowers municipal councils to impose a landlord's or owner's rate upon rateable property (i.e., land and buildings and improvements, with certain exceptions, within the Municipality) or on a portion of it, and a tenant's rate upon the annual value of rateable property within the Municipality or on portion of it, and (b) sec. 16 (1) which is as follows:

'Every person of full age liable to be rated in respect of immovable property within the Municipality of the yearly value of not less than twenty pounds, owned or occupied by him (or of different properties of not less than such yearly value owned or occupied in immediate succession) for a period not less than six months next before such election, and in regard to which property no municipal rate made three months (to be computed or reckoned from the date upon which the rate assessed became due and payable) or more before the date of such election is then due and in arrear, if such person is the owner or the lessee, and in the case of the latter, liable under any contract to pay such rates, shall be eligible to be elected a councillor, and qualified to hold office as such, but so long only as he continues to possess such qualification.'

With regard to the construction of sec. 16 (1) appellant took two points:

1. He contended that the words 'if such person is the owner or

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the lessee and in the case of the latter, liable under any contract to pay such rates' related back to the word person in the first line, and were words which limited the class of owners or occupiers who were eligible for election. In other words he contended that, with regard to the eligibility of occupiers, only occupiers who were lessees and were liable under contract to pay the rates on the property occupied by them were eligible for election.

Respondent contended on the other hand that the words quoted related to the disqualification upon owner and occupiers who had failed to pay the municipal rates upon the property owned or occupied by them, and limited the disqualification...