Pio v Franklin, NO and Another

• Jurisdiction: South Africa
• Judge: Herbstein J
• Judgment Date: 29 November 1948
• Hearing Date: 27 November 1948
• Court: Cape Provincial Division

Herbstein, J.:

Ord. 11 of 1921, which was passed 'to provide for the establishment and management of Local Board areas', contains provisions for the framing of 'Voters' Lists'. Sec. 6 lays down the procedure for the framing of the first voters' list; the procedure in respect of subsequent lists is set out in sec. 7, which calls for citation in full.

Sec. 7. '(1) Every subsequent voters' list shall be drawn up by the Board before the fifteenth day of May in each and every year. The Board shall place upon such voters' list the name of every person who in its opinion is entitled to have his name placed thereon and shall take off the name of every person who in its opinion is not entitled to have his name placed thereon.

(2) The Board shall, immediately after drawing up the said list by notice posted at some conspicuous place within the area, notify that a copy of the said list is open for inspection at the said place, for a period of fourteen days. The said notice shall also intimate that at a certain date, being not less than seven days after the expiration of the said fourteen days, and at an hour and place to be therein set forth, claims to be inserted on, or objections to the said list will be heard and determined.

(3) The members of the Board shall, on the day notified, in open session hear all such claims and objections and determine thereon, and may adjourn from time to time as may be necessary.

(4) The revised list certified by the Chairman shall be and remain the voters' list in force and shall not be added to or altered until a new list is drawn up under the provisions of this Ordinance.'

Herbstein J

The procedure adopted by the Local Board of Great Brak River (which will be referred to as 'the Board'), in 1948 is the cause of this ligitation, and so calls for detailed description.

At what is described as 'the postponed meeting' held on April 7th, 1948, the Board passed a resolution which, as minuted, reads:

'The work of revising and compiling the voters' roll for 1948 was left in the hands of the health inspector.'

At a special meeting held on 5th May, 1948, 'for the purpose of compiling a revised voters' roll for 1948', the health inspector reported that

'as the names of certain property owners and occupiers of rateable property within the Board area were not available, the compiling of an accurate revised voters' roll for 1948 was not possible.'

The Board thereupon resolved: -

(1)

that the secretary immediately write to such owners and occupiers for the required information,

(2)

that the meeting be adjourned to a date when the revised voters' roll for 1948 could be accurately compiled.

On 16th June at an ordinary monthly meeting the health inspector submitted a draft revised voters' roll for the ensuing year, and it was resolved that such revised roll be immediately advertised as open for inspection.

On 10th July, 1948, an advertisement in both official languages appeared in the 'Mossel Bay Advertiser' - a newspaper circulating in the area, giving notice that the Board had drawn up a voters' roll for the ensuing year and that it would lie for inspection for a period of 3 weeks from that date at the magistrate's offices in Mossel Bay and George, and at the office of 'the undersigned' - i.e. of the secretary of the Board. No address was given. The notice concluded: -

'Enige persoon wat beswaar teen die voorgestelde stemlys het, moet sulke besware aan die ondergetekende op of voor 5 n.m. op Woensdag 4 Augustus rig. Op die datum sal 'n vergadering vir die doel om eise aan te neem en besware te hoor en te bepaal gehou word.'

A copy of this notice was also exhibited on the door of the office of the Local Board. This office consists of a room on the second floor of a block of buildings known as Searle's Buildings, and which is the administrative block of a company known as Searle's Limited, 'which occupies a most important place in relation to the scheme of administration in the Township'. Out of 236 voters in the area, only 86 are either not employed by or associated with the Company. It is alleged without contradiction

'daar is egter geen naambord of borde of enige aanduiding vir die publiek

Herbstein J

dat die genoemde kamer die kantoor van die sekretaris van die genoemde Bestuur is',

and

'the door of the Local Board office has always been used for the screening of notices required to be issued by the Local Board in the course of its functions.'

At the ordinary monthly meeting held on July 28th, the secretary reported the fact of the advertisement and that the list was lying for inspection.

On the 4th August a 'special open meeting . . . for the purpose of inserting claims and hearing and determining objections to the proposed voters' roll for 1948' was held - not in the ordinary office of the Board, but in the office of the Chairman of the Board, who is also the general manager of Searle's Limited, and which appears to be situated on the ground floor of the administrative block of Searle's Limited. At this meeting the secretary reported that the voters' roll which had been lying for inspection in George and Mossel Bay had not been returned, nor had the respective magistrates advised the Board of any objections or claims to the proposed roll. It was therefore resolved

'that the meeting be adjourned to a date when the rolls were at hand and the required information forthcoming.'

At this stage it should be stated that the applicant alleges that on that day he indirectly came to learn that the proposed list was lying for inspection. He thereupon saw the secretary, who is a full-time employee of Searle's Limited, and asked for inspection of the list. He was taken to the office of the Local Board, on the door of which he saw the abovementioned notice; there he was shown the voters' list. It is averred by the secretary, one Wigget, and not denied by the applicant, that at that time Wigget asked him if he was coming to the meeting, and that he replied in the negative, adding that he was lodging an objection, which was sufficient. It would appear from a letter dated 26th October, 1948, which is set out later, that applicant had time in which to go through the list, and did so before lodging his objection. This objection was contained in a letter which reads as follows:

'Groot Brakrivier.

4de Augustus, 1948.

Die Sekretaris,
Plaaslikeraad,
Groot Brakrivier.

Waarde Heer,

Hiermee wens ek as kieser van bogenoemde raad u in kennis te stel dat ek beswaar maak teen die plaaslike-raad kieserslys as 'n geheel.

Herbstein J

A.

Omdat name nie volledig uitgeskryf is op die kieserslys nie, en dit daardeur nie vasgestel kan word nie wie die persone is nie.

B.

Omdat geen melding gemaak word waar die sogenaamde eiendom of eiendomme geleë is nie, en ek daar deur nie in staat is om te kan vastel of die persoon of persone kiesers mag wees of nie.

C.

Omdat die kennisgewing tot ondersoek van die kieserslys in so 'n plek uitgehang was dat die publiek dit nie kon opmerk nie en daardeur nie in staat was om ondersoek in te stel of hul name op die kieserslys verskyn of nie.

Die uwe,

(Get.) P. L. Pio.'

I shall have to refer to this letter later.

On the 18th August the further meeting was held. It does not seem that any public notice of the meeting was given. Reports from the magistrates of George and Mossel Bay, and the letter from applicant was tabled and read. It was resolved that the

'objections be overruled - terms of sec. 7 (1), (2), (3), (4) of the Local Board Ordinance 11 of 1921 had been complied with'.

Before the rest of the proceedings at this meeting are described, references should be made to the actual 'Voters' List' which the Board had before it. It contained the names of some 230 natural persons, some churches, a bioscope, a boarding house and the Post Office, but against these artificial persons there also appeared the name of a natural person. In most cases the Christian names of the individual voters were set out, but there were a number in which only the initials were given; in two instances only the surname was given. Each of the persons was described either as 'owner' or 'occupier', but no details whatsoever of the properties so owned or occupied were given. Under the heading 'Address', the...