Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 14 March 1933
• Citation: 1933 AD 87
• Court: Appellate Division

Stratford, J.A.:

This is an appeal from a judgment of the Transvaal Provincial Division overruling a, decision of GREENBERG, J., given in the Witwatersrand Local Division. The present appellant was the applicant in the Local Division and prayed for an order, (a) directing the respondents to eject from stands Nos. 577, 1039, 1163, 1164, 254 and 308, Roodepoort, the persons mentioned in the petition (being admittedly coloured persons), and (b) interdicting respondent from thereafter leasing the said stands to Asiatics or coloured persons and from permitting their residence or occupation thereon except as bona fide servants of the registered owners. A summary of the material facts set forth in the judgment of GREENBERG, J. (slightly amplified) is as follows: The petition alleges that respondent as owner of the premises on the stands mentioned is permitting their occupation by coloured persons in breach of the provisions of secs. 130-1 of Act 35 of 1908. The occupation by coloured persons is admitted but respondent resists the granting of any order on a number of grounds. Petitioner is the Municipal Council vested with the control of the Roodepoort and Maraisburg townships. Roodepoort township is situated in the mining district of Johannesburg on a portion of the farm Roodepoort No. 43. The farm was proclaimed a public digging by proclamation dated 8th September, 1896. In 1896 a survey of the claims diagram was confirmed and is filed in the office of the Registrar of Mining Titles in Johannesburg. The township of Roodepoort was established under an agreement between the owners of the farm and the Government of the South African Republic, dated 18th December, 1897. According to the general plan of the township it originally comprised 1,555 stands with streets and open

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spaces. The general plan also shows 108 excluded figures within the boundaries of the township. These figures did not originally form part of the township but represented stands granted in terms of sec. 92 of Law 15 of 1898 or under corresponding sections of prior gold laws; they have been dealt with by sec. 13 (2) of Act 34 of 1908 for the purposes of that Act, and the township now includes these stands. Respondent owns stands 577, 1039, 1163, and 1164 which are included in the original 1,555 stands, and also stands 254 and 308 which are included in the 108 figures referred to above. None of the title deeds made in favour of respondent contain any restriction relating to occupation by coloured persons. Petitioner is the registered owner of about 35 stands in the township.

The application was opposed first on the ground that the petitioner had no locus standi in judicio. The learned Judge decided this question in favour of the present appellant. He likewise rejected the further grounds of opposition raised by respondent and granted the application. It will he necessary to examine these alternative objections later, for they were not discussed by the Provincial Division which overruled the judgment and dismissed the application on the preliminary objection of want of locus standi.

On this first question, GREENBERG, J., held himself bound by a decision of the Transvaal Provincial Division in the case of Krugersdorp Municipal Council v Dadoo Ltd and others, a report of which is to be found in the report of the case on appeal (1920 AD 530). The appeal was upheld by a majority (DE VILLIERS, A.J., dissenting), for reasons not affecting the question of locus standi, which was, only discussed by the dissenting Judge. We concur in the view expressed by both the lower courts that the Provincial Division's decision in Dadoo's case is directly in point and, if correct, disposes of the objection of want of locus standi in the present case. The Provincial Division, however, held that the decision was clearly wrong and refused to follow it. In this Court of course the question is res integra and must now be decided.

The appellant originally claimed to have a locus standi on three grounds: (a) That it is the owner of stands within the township, (b) that it is the owner of stands which has suffered depreciation as a result of respondent's unlawful acts, (c) that as local authority it

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is the superviser of health and sanitation and is the representative and guardian of the interests of the inhabitants of the township. The second ground, however, was not urged as it admittedly depended upon proof of damage which could not be established on motion. Dealing, then, with the first claim it is the admitted fact that the stands in question in this case (including the 35 held by the appellant) are held by their registered owners by virtue of a right which falls under the category of rights "acquired under Law No. 15 of 1898 or a prior law" within the meaning of sec. 130 of Law 35 of 1908 (Transvaal). That section contains the following prohibition: -

"(1)

Save as is provided in see twenty-four no right may be acquired under this Act by a coloured person; and the holder of a right acquired under Law No. 15 of 1898 or a prior law or under this Act shall not transfer, or sub-let, or permit to be transferred or sub-let, any portion of such right to a coloured person, nor permit any coloured person (other than his bona fide servant) to reside on or occupy ground held under such right."

and the penalty:

"(2)

Any person contravening this section shall be guilty of an offence, and liable on conviction to a fine not exceeding fifty pounds, and in the case of a continuing contravention to a fine not exceeding five pounds for every day during which such contravention is continued."

The appellant claims, under the heading of his first contention, to have this prohibition enforced and bases his locus standi on the ground that it was enacted in the interest, inter alia, of stand township owners of whom the appellant municipality is one. The decisions in Patz v Green & Co. (1907, T.S. 427) and Madrassa Anjuman Islamia v Johannesburg Municipality (1917, A.D., p. 718) were invoked in support of the proposition that where the Legislature prohibits the doing of an act in the interest of any person or class of persons, such person or any one of such class can obtain the intervention of the Court to enforce the prohibition without proof of special damage. The first of these decisions has been affirmed in this Court on more than one occasion and indeed is relied upon by SOLOMON, J.A., in delivering judgment in this Court in the latter

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case. Two questions then arise, firstly, whether that proposition Is good law and secondly, whether the prohibition in sec. 130 is of the nature above described. As to the first, the proposition can be extracted from either decision in almost the exact language used above. In Patz v Green the actual...