Radebe and Others v Eastern Transvaal Development Board

• Jurisdiction: South Africa
• Citation: 1988 (2) SA 785 (A)

Radebe and Others v Eastern Transvaal Development Board
1988 (2) SA 785 (A)

1988 (2) SA p785

Citation	1988 (2) SA 785 (A)
Court	Appellate Division
Judge	Corbett JA, Hefer JA, Nestadt JA, Nicholas JA and Kumleben AJA
Heard	February 18, 1988
Judgment	March 11, 1988

Flynote : Sleutelwoorde

Blacks — Black Communities Development Act 4 of 1984 — Regulations promulgated in Government Notice R1036 and published in Government Gazette 2096 of 1968 in terms of ss 35(5) (b) and 69(2) of Act — Remedies (ejectment and eviction procedures) provided for in reg 15(4) H and reg 47(1) (l) read with reg 47(2) not replacing common law vindicatory right to reclaim possession of property but are additional thereto.

Headnote : Kopnota

Regulations 15(4) and 47(1)(l) read with 47(2) of the Regulations Governing the Control and Supervision of an Urban Black Residential Area I and Relevant Matters, promulgated in Government Notice R1036 and published in Government Gazette 2096 of 14 June 1968 (which provide for eviction or ejectment from premises in Black residential areas) do not replace the common law vindicatory right to reclaim possession of property but were intended to be additional to the civil remedy.

Respondent had claimed ejectment orders in the Court a quo against each of the appellants from premises occupied by them. In resisting the claims for ejectment, appellants unsuccessfully relied on certain J provisions of the Black Communities

1988 (2) SA p786

A Development Act 4 of 1984 and of the Regulations Governing the Control and Supervision of an Urban Black Residential Area and Relevant Matters promulgated in Government Notice R1036 published in Government Gazette 2096 of 14 June 1968, and the ejectment orders were granted. On appeal, appellants contended that their right of occupation of the premises was governed solely by the above-mentioned regulations, as the vindicatory right of an owner in the case of property in a Black residential area B had been abolished and replaced by the regulations providing for eviction, and that these regulations entitled them to remain in occupation unless and until the steps provided for in the regulations for their eviction had been successfully pursued.

Held, that the crucial contention in the appellants' answering affidavits, viz that their occupation was governed by the regulations, was a conclusion of law and not a statement of fact and that it was essential for appellants to have alleged some other facts having the effect of making the regulations applicable to them and to their C occupancy of the premises in question.

Held, further, that, even if this allegation in appellants' affidavits was not a conclusion of law, it was at best for the appellants an inference or secondary fact, with the primary fact on which it depends, omitted.

The appellants sought to remedy this inadequacy in their affidavits by relying on an allegation that they occupied a site in a Black D residential area and that whatever the (undisclosed) circumstances which gave rise to their being in occupation, the regulations inevitably had to apply, and particularly regs 15(4) and 47(2).

Held, that these two subregulations did not confer any general right to evict or apply for an eviction order in all circumstances but that each such right was circumscribed by its terms and that appellants had failed to allege the facts necessary for their inapplicability.

Held, consequently, that appellants had failed to make out a case E against the granting of the eviction orders. Appeal dismissed.

The decision in the Transvaal Provincial Division in Ontwikkelingsraad, Oos-Transvaal v Radebe and Others 1987 (1) SA 878 (T) confirmed.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Heyns J). The facts appear from the judgment of Kumleben AJA.

F J Unterhalter SC (with him R S Black) for the appellants: The appellant is presently in possession and occupation of the said property. The property is within an urban Black residential area and the possession and occupation of the said property are governed by regulations presently of force and effect in terms of Government Notice R1036 of 14 June 1968 as published in Government Gazette 2096 G (Regulation Gazette 976) of that date together with all subsequent relevant amendments. Such common law rights that respondent may claim to the said property have therefore been displaced by the said regulations and do not avail respondent for the relief he seeks. The respondent has not denied that the said property is within a Black residential area or H that the occupation and possession of the said properties are governed by the said regulations. The said Government Notice R1036 of 14 June 1968 was first published for the guidance of Urban Local Authorities in terms of s 38(8)(a) of the Blacks (Urban Areas) Consolidation Act 25 of 1945 and on 26 July 1968 they were applied by Government Notice R1267 as published in Government Gazette 2134 (Regulation Gazette 995) of that I date in terms of s 38(8)(b) of the said Act. Although Act 25 of 1945 was repealed (except for certain sections not presently relevant) by the Black Communities Development Act 4 of 1984 in terms of s 69(1) thereof and the schedule thereto, the regulations referred to above continue in force in terms of s 35(5)(b) and s 69(2) as read with s 66(1)(e) of Act 4 of 1984. See s 38(8)(b) of Act 25 of 1945 and s 2 of Chapter 1 of J Government Notice R1036 of 14 June 1968, the effect

1988 (2) SA p787

A of which is that the regulations apply to the exclusion of any other regulations relating to the same matters. The respondent, as a board defined in terms of s 1(viii) of Act 4 of 1984, may let any land belonging to it subject, inter alia, to such conditions as may be prescribed by regulation. The respondent, therefore, may let the property occupied by the appellant subject to the conditions prescribed B in Government Notice R1036 of 14 June 1968, as amended. The respondent does not have the common law rights of a lessor for the following reasons: (i) It is not empowered to determine the rental payable for the occupation of any house owned by it in a town and made available to a resident in such town. This power is exercised by a Minister. (ii) It may not terminate the right to occupy of a registered occupier upon the C notice that ordinarily applies in a contract of letting and hiring, but only if the conditions prescribed in Government Notice R1036 of 14 June 1968 are satisfied. (iii) Any action taken by an officer of respondent charged with the administration of the regulations is subject to appeal. (iv) A person ordered to remove from the dwelling and not being D otherwise authorised to remain in the Black residential area, who fails to comply with such order, is guilty of an offence. (v) The Court, on convicting any person in terms of reg 47(1)(l), may make an order for the ejectment of such person. The magistrate has a discretion and he may well not exercise it to order an eviction unless satisfied that alternative accommodation is available. S v Govender 1986 (3) SA 969 (T) E at 971I. If the vindicatory action is available this protection in terms of the regulations would be destroyed. The lawful permit holder is a statutory tenant with rights and duties as prescribed by the regulations. Armitage NO v Mtetwa 1950 (1) SA 439 (T) at 442 - 3 per Millin J; Kruger v Monala 1953 (3) SA 266 (T) at 270 per De Wet J; Chilone v Maduenyane 1980 (4) SA 19 (W) at 22G per Goldstone AJ: 'If it F be clear from the language of a statute that the Legislature, in creating an obligation has confined the party complaining of its non-performance or suffering from its breach, to a particular remedy, such a party is restricted thereto and has no further legal remedy; otherwise the remedy provided by the statute will be cumulative'; Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 at 727 G per Kotze AAJA; Klemp v Mentz NO and Others 1949 (2) SA 443 (W) at 452 - 3; Callinicos v Burman 1963 (1) SA 489 (A) at 498; Johannesburg City Council v Knoetze and Sons 1969 (2) SA 148 (W); Da Silva and Another v Coutinho 1971 (3) SA 123 (A) at 134; Halsbury's Laws of England 3rd ed vol 36 at 442, para 668; Lonrho Ltd and Others v Shell H Petroleum Company Ltd [1981] 2 All ER 456 (HL) at 461d. On the analysis stated in paras 11 and 12 above, the legislation confines the remedy of eviction to that provided by reg 47(2) or reg 15(4)(b) as amended. 'Duties and obligations unknown to the common law have been created.' Donner v Yzelle 1932 TPD 253 at 258 (approved by Beyers JA in Manoim v Veneered Furniture Manufacturers 1934 AD 237 at 250). As the respondent I is a creature of statute and elaborate provisions have been made in regard to residence in Black townships, the remedies in such provisions are exclusive ones. Liquidators of the Durban Roodepoort Mynpacht Syndicate v Blankfield 1922 TPD 173 at 177. There has been an express creation of a specific jurisdiction with no reference to any concurrent jurisdiction, nor can this latter be implied. Kubheka and Another v J Imextra (Pty) Ltd 1975

1988 (2) SA p788

A (4) SA 484 (W) at 489F (cf National Industrial Council of the Leather Industry of SA v Parshotam and Sons (Pty) Ltd 1984 (1) SA 277 (D)). By reason of the detailed provisions regarding the issue and cancellation of permits to registered occupiers, and in particular those concerning appeal and eviction and removal from a Black residential area, a civil judgment based solely on a vindicatory claim would be in conflict with B the intention of the Legislature. The common law rights of the respondent have, therefore, been displaced by the regulations. The respondent has failed to use the procedure stipulated in the regulations. In a vindicatory action the onus rests upon...