Sheshe v Vereeniging Municipality

• Jurisdiction: South Africa
• Judge: van Den Heever JA, Fagan JA, and De Villiers AJA
• Judgment Date: 20 June 1951
• Hearing Date: 03 June 1951
• Court: Appellate Division

Van den Heever, J.A.:

Applicant was the holder of a site permit granted H to him by respondent Council in respect of two stands Nos. 35 and 68 in the Top Location, Vereeniging, in terms of the Native Location Regulations in force in that Municipality. Applicant erected buildings on the stands, part of which he occupies himself, letting the rest to a number of natives who are holders of 'lodgers' permits' issued to them in terms of the said Regulations.

In the magistrate's court, Vereeniging, the respondent Municipality (hereinafter referred to as 'the Municipality') instituted proceedings for ejectment of applicant from the stands mentioned

Van den Heever JA

and for delivery of all the improvements thereon to plaintiff against payment to applicant of the sum of £150 2s. 9d. The particulars of claim reads as follows:

'1.

Plaintiff is the owner of land known as Old Location Vereeniging, and which land was duly defined and set apart as a Native Location.

2.

Defendant is the occupant of certain premises situate and being A Stands Nos. 35 and 68 in the said Old Location.

3.

Plaintiff is vested with the right by authority of the Minister of Native Affairs given in terms of sec. 3 (2) of Act 25 of 1945 to remove the said location subject to payment of a certain compensation and provision of accommodation in Sharpe Native Township and in terms thereof plaintiff notified defendant on B divers occasions and more particularly on the 27th July, 1950, in writing and verbally that he was required to vacate the said premises.

4.

Plaintiff undertook to provide defendant and his tenants with the necessary accommodation in Sharpe Native Township and tendered defendant the sum of £150 2s. 9d. being the approved compensation in respect of the improvements on the aforesaid stands.

5.

C Defendant has refused to vacate the said stands and wrongfully and unlawfully continues in occupation thereof without colour of right and as a malicious trespasser.

6.

Plaintiff repeats his tender to accommodate defendant and his tenants in Sharpe Native Township and again tenders defendant the sum of £150 2s. 9d. which amount has been paid to the Native D Commissioner at Vereeniging to be held at the disposal of defendant.

Wherefore plaintiff prays for judgment with costs for

(a)

Ejectment of defendant from stands 35 and 68, Old Location.

(b)

Delivery to plaintiff of all improvements on Stands 35 and 68 Old Location, against payment to defendant of the sum of £150 2s. 9d.'

E The record of proceedings was not annexed to the petition but was handed in from the Bar by consent. This raises a question to which I return later.

In the plea the first two paragraphs of the particulars of claim were admitted; the third paragraph was denied and further defences were F raised not relevant to this application. The matter went to trial; at the conclusion of the case for plaintiff applicant closed his case without calling evidence and judgment was granted in favour of the Municipality as prayed. An appeal to the Transvaal Provincial Division G was unsuccessful; an application to that Division for leave to appeal to this Court was refused; hence this application under sec. 105 of the South Africa Act as amended.

Before the record was handed in, the material before us was rather scanty. Counsel invited us to give some guidance as to the material which should be furnished with an application such as this. If too much is furnished the parties lay themselves open to the reproach that they H are abusing the process of the Court (MacDonald v Johannesburg City Council, 1934 AD 234 at p. 236). In Halliwell v Johannesburg Municipality, 1912 AD 392 at p. 394, on the other hand this Court stressed the importance of giving full particulars in the petition and warned that if the Rule is not complied with in the future, petitioners may run the risk of having their applications refused for that reason.

It is impossible to lay down a rule of thumb in this regard. Rule

Van den Heever JA

4 (3) and (4) provides that the applicant shall furnish succinctly and fairly all such information as may be necessary to enable the Court to decide whether leave ought to be granted and that the petition shall A deal with the merits of the case only in so far as is necessary for the purpose of explaining and supporting the particular grounds upon which leave to appeal is sought. Obviously, therefore the requisite quantum of information can vary from case to...