Sheshe v Vereeniging Municipality

• Jurisdiction: South Africa
• Citation: 1951 (3) SA 661 (A)

Sheshe v Vereeniging Municipality
1951 (3) SA 661 (A)

1951 (3) SA p661

Citation	1951 (3) SA 661 (A)
Court	Appellate Division
Judge	van Den Heever JA, Fagan JA, and De Villiers AJA
Heard	June 3, 1951
Judgment	June 20, 1951

Flynote : Sleutelwoorde C

Native — Locations — Demolition of and removal of site-holders and tenants to new location — Common Law right of Municipality as owner not restricted by sec. 3 (2) of Act 25 of 1945 — Nor by Location Regulations — Joinder of tenants not necessary. — D Appeal — Appellate Division — Leave of — Quantum of information to be placed before Court.

Headnote : Kopnota

The requisite quantum of information to be placed before the Court in an application in terms of section 105 of the South Africa Act for leave to appeal, leave having been refused by a Provincial Division, varies from E case to case. Practitioners must exercise discretion and, depending upon the circumstances of the particular application, furnish not too little nor yet too much, but enough to put clearly before the Court the particular grounds upon which leave to appeal is sought. Where the point at issue is purely one of law it may conceivably be stated in a paragraph. If a litigant shows lack of discretion in either direction he may be visited with displeasure in the form of an order as to costs.

F Applicant was the holder of a site permit granted to him by respondent Municipality in respect of two stands in the Top Location, Vereeniging, in terms of Native Location Regulations in force in the Municipality. Applicant had erected buildings on the stands, part of which he occupied himself, letting the rest to a number of natives who were holders of 'lodger's permits' in terms of the Regulations. Respondent Municipality G had instituted proceedings in a magistrate's court for the ejectment of applicant from these stands and for delivery of all improvements thereon against payment of a specified sum of money. In the particulars of claim the Municipality alleged that it was the owner of the stands of which applicant was the occupant, that it was 'vested with the right by authority of the Minister of Native Affairs given in terms of section 3 (2) of Act 25 of 1945 to remove the said Location subject to payment of H a certain compensation and provision of accommodation in Sharp Native Township,' and that it had undertaken to provide applicant and his tenants with the necessary accommodation, but that he had wrongfully and unlawfully continued in occupation, despite notices to vacate, 'without colour of right and as a malicious trespasser'. At the conclusion of the case for the Municipality, applicant had closed his case without calling evidence and judgment was granted in favour of the Municipality as prayed. An application to a Provincial Division for leave to appeal from its decision confirming that of the magistrate's court having been refused, in an application under section 105 of the South Africa Act, it was contended (1) that there was no evidence

1951 (3) SA p662

to prove that the stands registered in the applicant's name fell within the Location to which the Ministerial approval related; (2) that the Municipality had not the power, right or authority to have the applicant ejected nor could the Minister confer such powers on the Municipality in terms of Act 25 of 1945; and (3) that the Municipality should have A joined all the lodgers in the action against the applicant. On applicant's behalf the guidance of the Court had been sought as to the material which should be furnished to the Court. Held, regard being had to applicant's first contention, that the Court should at least have been furnished with the pleadings, a copy of the magistrate's reasons for judgment, the correctness of which was ultimately in issue, and so much of the record as related to this point raised.

B Held, as to contention (1), regard being had to admissions on the pleadings, that it was without substance.

Held, as to contention (2); that the Municipality's Common Law right as owner to terminate applicant's occupation was not restricted by section 3 (2) of Act 25 of 1945 nor by the Native Location Regulations framed under section 23 (3) of the Natives (Urban Areas) Act of 1923 as amended C by Administrator's Notice.

Held, as to contention (3), as the right of a defendant to object as of right that other parties had not been joined was very limited, that there was no substance in this contention.

The decision of the Transvaal Provincial Division refusing leave to D appeal in Sheshe v Vereeniging Town Council confirmed.

Case Information

Application, in terms of sec. 105 of the South Africa Act, to the Appellate Division for leave to appeal, leave having been refused by the Transvaal Provincial Division, [MURRAY and NESER, JJ.]. The facts appear from the judgment of VAN DEN HEEVER, J.A. E

P. Lakier, for the applicant: There is no direct evidence that Lots 35 and 68 fall within the Native Location defined in Government Notice 1704 of the 30th December, 1932. Respondent was not entitled to eject applicant from the location. The relationship between applicant and F respondent is a contractual relationship governed by the respondent's Municipal Regulations. Sec. 3 (2) of Act 25 of 1945 does not empower the Minister to eject the residents of a location nor does it empower him to confer special rights of ejectment upon a local authority. The right of 'removal' from the location referred to, conferred by the Minister, does G not alter the legal position nor does it confer upon the respondent any greater power to eject than it had before. The Minister's authority for removal of residents from the location does not contemplate the forceful ejectment of the residents. Respondent should have joined all lodgers of stands 35 and 68 in the action instituted against applicant. The H relationship between respondent and all lodgers is governed by the Location Regulations. Respondent's Superintendent is bound to renew all lodgers' permits if lodgers comply with the necessary Regulations; see Reg. 12 (3). The lodger's permit refers to a particular site; see Reg. 12 (4). Respondent's action was intended to eject all lodgers and the effect of the judgment was to affect each lodger materially. The lodgers all have a material interest in the action; see Amalgamated Engineering Union v Minister of Labour, 1949 (3) SA 637. Respondent is bound by its

1951 (3) SA p663

Location Regulations; see Langheim v Frankfurt V.M.B., 26 S.C. 3; Hennessey and Others v Durban Town Council, 1923 NPD 326; Alice Municipality v Crallan, 14 S.C., 379; Yabbicom v King, 1899 (1) Q.B. 444; Dönges and van Winsen, Municipal Law, p. 691. The issues raised are A of substantial importance to both parties and applicant has reasonable prospects of success; see Haine v Podlashuc & Nicolson, 1933 AD 104; Fripp v Gibbon & Co., 1913 AD 221; Bethal Landbouw Kooperatieve Vereeniging v van den Berg, 1913 AD 491.

P.F. O'Hagan, for the respondent: There is nothing of real substance B or importance in the matter which applicant seeks to put in issue on appeal to this Court; cf. Mavromati v Union Exploration Import (Pty.) Ltd., 1947 (4) SA at pp. 199 - 202; Kramer v Coloured Vigilance Committee, Grassy Park, 1948 (1) SA 1233. Alternatively, C applicant has no reasonable prospect of success on appeal; see Haine v Podlashuc & Nicolson, 1933 AD 104, as explained in Rex v Baloi, 1949 (1) SA 523. It follows from Mavromati's case, supra, that this Court will, in determining whether there is real substance and importance in applicant's claim, have regard to all the circumstances including the extent to which respondent's interests may be prejudiced D by the grant of special leave to appeal. Alternatively, even if the issue can be said to be one of substance, the Court will be guided by the circumstances of the case and the equities in the exercise of its discretion under sec. 105 of the South Africa Act; see Smith and Bader v...