Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd

• Jurisdiction: South Africa

Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co Ltd
1947 (2) SA 1269 (A)

1947 (2) SA p1269

Citation	1947 (2) SA 1269 (A)
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA and Davis AJA
Heard	March 6, 1947; March 25, 1947
Judgment	June 10, 1947

Flynote : Sleutelwoorde

Tramway — Agreements between Municipal Council and Tramway Co — Right to construct and operate tramways on land leased by Municipality — Agreements of 1895 and 1940 — Erection of buildings on leased land — Permission of Council necessary — Contracts — Construction — Deliberate change of. language in second contract — Prima facie a change of intention.

Headnote : Kopnota

The agreements between the appellant Council and the respondent Company, which give the respondent Company the right to construct and operate a system of tramways on land leased to it by the appellant Council, do not entitle the respondent Company to erect buildings on such leased land without first obtaining the permission of the appellant Council.

The rule that in the construction of Statutes a deliberate change of expression is prima facie taken to import a change of intention, applies in the case of two contracts where the second is clearly drafted with the first in mind.

Case Information

Appeal from a decision in the Port Elizabeth Circuit Local Division (PITTMAN, J.P.). The facts appear from the judgment of WATERMEYER, C.J.

O v Sampson, K.C. (with him A. W. Back), for the appellant: The Court a quo erred in finding that appellant had no regulation under which the plans could be disapproved for the reason given by the Council. See Ordinance 10 of 1912, sec. 194 (10). As to other powers conferred upon it by the Ordinance, secs. 194 (6), (17), (21). Municipal Reg. 26 has incorporated the powers given

1947 (2) SA p1270

by the Ordinance; the precise words of sec. 194 (10) of the Ordinance have been taken over by Reg. 26, and nowhere else have the powers given by the Ordinance been adopted. Cf. Gin v Port Elizabeth Municipality (1931, E.D.L. 11 at pp. 16, 18). As to the meaning of the words 'Annoyance to inhabitants in the neighbourhood', see Fletcher v Birkenhead Corporation (1907, 1 K.B. 205 at pp. 211 - 215, 217 - 218); Gin's case (supra, at p. 16); Powell v Kempton Park Racecourse Co. (1899, A.C. 143 at p. 185); Turffontein Estates, Ltd v Mining Commissioner, Johannesburg (1917 AD 419 at pp. 431, 437); Chotabhai v Minister of Justice (1911 AD 13 at p. 24); Arrow Shipping Co v Tyne Improvement Commissioners (1894, A.C. 508 at p. 529); Hammersmith City Railway Co v Brand (1869, L.R. 4, H.L. 171); Inglis v Robertson (1898, A.C. 616); Union Steamship Co. of New Zealand v Melbourne Harbour Trust Commissioners (1884, 9. A.C. 365 at p. 369). As to Reg. 11, there is no such ground of doubt as to its import as in Inglis v Robertson (supra). See also Commander v Collector of Customs (1920 AD 510 at p. 522), and the Afrikaans version (Provincial Gazette of 9th February, 1940, Administrator's Notice 70 of 1940). As to the provision in it against disfigurement, see Reg. 26. The headings of Regs. 11 and 26 furnish no safe guide. As to whether the powers conferred by sec. 194 (10) of the Ordinance cover the reason for the Council's refusal in the present case, see Blackmore v Moodies G.M. & Exploration Co. (1917 AD 402 at p. 415). The section must be construed in the popular sense. If Reg. 26 or 11 provides against the effect on traffic which the Council anticipates that the new tramway building will have, the Council's refusal to sanction it should not be examined, unless it is attacked as being mala fide or grossly unreasonable. See Rex v Tynemouth Corporation (1911, 2 K.B. at pp. 364 - 365); Smith v Chorley Rural Council (1897, 1 Q.B. 678 at p. 680); Queen v Vestry of St. Pancras (24 Q.B.D. 371). As to the finding of the Court a quo that the plan need only comply with the municipal regulations as to structure, see the plain meaning contra, of clause 10 (c) of the agreement between appellant and respondent; see further West Witwatersrand Areas, Ltd v Roos (1936 AD 62 at p. 64); Birkdale District Electric Supply Co v Southport Corporation (1926, A.C. 355 at p. 364). As to respondent's attack on the appellant's decision as proceeding from an indirect or ulterior motive, and as being so grossly unreasonable

1947 (2) SA p1271

as to disclose an ulterior motive or a failure of the Council to apply its mind to the plans, these grounds of fact should have been stated in the petition or affidavits so that there could have been a full investigation of the facts. Cf. Annamma v Moodley (1943 AD 531 at p. 540); Hajee Habib v Pietersburg Municipality (1905, T.S. 63); Feinstein v Baleta (1930 AD 319 at p. 326); Gin v Port Elizabeth Municipality (supra). The approach to the matter in African Realty Trust v Johannesburg Municipality (1906, T.S. at p. 913), is not the proper approach, and the reasoning in Union Government v Union Steel Corporation (S.A.) Ltd. (1928 AD 220 at p. 237) is incorrect. Rex v Cambridge Corporation (1922, 1 K.B. 250) is not applicable.

F.G. Reynolds, K.C. (with him K. Graham), for the respondent: Appellant has ample powers to control traffic and so prevent traffic problems, under Ord. 10 of 1912, sec. 194 (73), (86), (87); Ord. 15 of 1938, sec. 55 (1), (6), (7), (8), (9), (12); Ord. 17 of 1939, sec. 15; Ord. 11 of 1941, sec. 6. The plans are not rejected as a fact under Municipal Reg. 26, nor is there any proof that the Council would have rejected the plans under Reg. 11, nor proof under what part of those Regulations the plans were alleged to be rejected. Reg 26 dos not cover the present case even when read without the heading. Still less does it do so with the heading, which should only be referred to if it does not strike out, in whole or in part, words in the regulation; cf. Turffontein Estates, Ltd v Mining Commissioner, Johannesburg (supra at pp. 437, 450); Inglis v Robertson (supra at pp. 624, 628, 629); Kempton Park Racecourse Co. (supra at pp. 192 - 3); Arrow Shipping Co v Tyne Improvement Commissioners (supra at pp. 529, 530); Halsbury's Laws of England (2nd ed., vol. 31, para. 559). The cases on the point quoted for the appellant were cases of 'striking out'. Reg. 11 does not help appellant; nor did appellant 'deem' the use of the building 'objectionable' under Reg. 11. Sec. 11 read without the heading does not cover 'deeming' objectionable because of the existence of traffic in a neighbouring street, especially where it may only be so if appellant creates a difficulty in traffic conditions by its own act and non-exercise of its powers; cf. Rex v Cambridge Corporation (supra); Bailey v Lowman (1910, 2 K.B. 39); Scottes v Johannesburg Municipality (1935, W.L.D. 105). Nor does Reg. 11 read with the heading, which is a part of the Proclamation in which the regulation appears, help appellant. Even if appellant could refuse

1947 (2) SA p1272

approval of the plans under Reg. 26 and 11, it has lost its right to do so by reason of Ord. 11 of 1941, read with clauses 22 and 10 (1) of the agreement concluded between appellant and respondent. In construing this agreement which has been embodied in the Ordinance, the circumstances of the case can be looked to. Richter v Bloemfontein Town Council (1922 AD 57). The Court sets aside the decision of a corporate body, when it acts with 'gross unreasonableness'; it so acts when it has some motive, however good it believes the motive to be, other than the fulfilment of the regulations under which it alleges it acts; cf. African Realty Trust v...