Sinovich v Hercules Municipal Council

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Feetham AJA
• Judgment Date: 08 October 1946
• Citation: 1946 AD 783
• Hearing Date: 14 May 1946
• Court: Appellate Division

Sinovich Appellant v Hercules Municipal Council Respondent
1946 AD 783

1946 AD p783

Citation	1946 AD 783
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Feetham AJA
Heard	May 14, 1946
Judgment	October 8, 1946

Flynote : Sleutelwoorde

Municipality — By-law — Validity — Prohibition of keeping of swine — Whether ultra vires on ground of unreasonableness — Ordinance 17 of 1939 (T.), section 80 (67) — Validity.

Headnote : Kopnota

A municipality, purporting to act under a power conferred upon all municipal councils of the Transvaal by section 80 (67) of Ordinance 17 of 1939 to make by-laws for the purpose of preventing the keeping of, inter alia, swine within the municipal area, passed a by-law prohibiting the keeping of swine within the municipal area. The appellant, who farmed upon 70 morgen of land within the municipality, having been convicted of a contravention of the by-law and a Provincial Division having dismissed the appeal,

1946 AD p784

Held, dismissing an appeal (GREENBERG, J.A., and SCHREINER, J.A., dissenting) that the by-law was not ultra vires the Municipality nor was section 80 (67) of the Ordinance ultra vires the Provincial Council.

The power of the Court to declare a by-law passed by a municipality ultra vires on the ground of unreasonableness discussed.

The decision of the Transvaal Provincial Division in Sinovich v Hercules Municipal Council, confirmed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (MARITZ, J., and DE VILLIERS, A.J.) dismissing an appeal from a conviction in the magistrate's court of Pretoria. The facts appear from the judgment of SCHREINER, T.A.

D. Gould, for the appellant: The by-law in question is invalid on the ground of unreasonableness: Feinstein v Baleta (1930 AD 319); Natal Organic Industries (Pty.), Ltd. v Union Government (1935 NPD at 709); Delew v Brakpan Municipality (1937 T.P.D. at 443, 446, 450); Rex v Struwig and Another (1939) CPD 450). Under sec. 85 (vi) of the South Africa Act, Provincial Councils are empowered to confer on municipal councils the power to make all such by-laws as may be reasonably necessary for the proper discharge by them of the functions of municipal government: Head & Co., Ltd. v Johannesburg Municipality (1914 T.P.D. at 525); Middelburg Municipality v Gertzen (1914 AD at 551); as to the scope of the functions of municipal government, see Bloemfontein Municipality v Bosrand Quarries (Pty.), Ltd. (1930 AD 370 at 379, 382); Rex v Dickson (1934 AD 231 at 233); as to the nature of the functions of municipal government, see Maserowitz v Johannesburg Town Council (1914 W.L.D. 139 at 146), quoted with approval in Cham v Johannesburg Municipality (1922 AD 255); Williams and Adendorff v Johannesburg Municipality (1915 T.P.D. at 120-1). The Provincial Council did not confer on municipal councils a general power to make by-laws. Cf. Local Government Act (23 and 24 Geo. 5, C 51, sec. 249), Municipal Corporations Act, 1882 (45 and 46, Vict., C 20, sec. 23 (1), and see Jennings, The Law Relating to Local Authorities (p. 317); Arnold, Law of Municipal Corporations (5th ed., p. 49); Beattie, Ultra Vires in its Relation to Local Authorities (p.196 et seq.); Donges and van Winsen, Municipal Law (p. 728 et auth. loc. cit); Halsbury (Hailsham ed., Vol. 26, para. 1287, p.600, note (a)). The Provincial Council has, in sec. 80 of the Ordinance, in place of merely conferring such a general power on municipal councils, particularised the matters in respect of which

1946 AD p785

the municipal councils may make by-laws. Whether any particular matter specified in any sub sec. of sec. 80 falls within or without the scope of municipal government is a question for the Court, and not for the Provincial Council to decide, Gertzen (supra, at 553); Bosrand Quarries' case (supra, at 383). As to the object of licensing, see Rex v du Toit (1911 CPD 923 at 928); as to the power permitting licensing, which was given by special legislation, Act 46 of 1925, sec. 12 (2), now replaced by sec. 14 (1) Act 38 of 1945; if the enabling section confers a power greater than is required by a municipality the enabling section is ultra vires; if it confers a power less wide than is reasonably required by a municipality for good rule and government it can exercise the wider power conferred by sec. 80 (125); cf. Goath v Johannesburg Municipality (1929 T.P.D. 84); the control of animals is not per se a function of municipal government, Barling v Town Council of Cape Town (1875, Buch. 101); Queenstown Municipality v Wiehahn (1943, E.D.L. at 139-40); it is a power ancillary to municipal functions relating to public health, public safety, amenities of the neighbourhood, the prevention of nuisances, etc.; see Maserowitz's case (1914 W.L.D. at 146); the power to control the keeping of swine within the municipality is conferred on municipal councils subject to the limitation that it will be exercised only for the attainment of the objects mentioned, cf. Pretoria Liquor Licensing Board v Mader (1944 T.P.D. at 429), and cf. also the discretion given to municipal councils by sec. 80 (67) either to prohibit the keeping of swine absolutely or merely to regulate and control the keeping of swine within the municipality, see Delew's case (supra, at 452); the power to regulate and control gives the municipal council a right of partial prohibition; Rex v Williams (1914 AD at 468); Johannesburg City Council v Constandelas (1936 AD at 16); if the power conferred by sec. 80 (67) is read as giving every municipal council a specific and unqualified right totally to prohibit the keeping of swine within the municipality, regardless of whether such total prohibition is reasonably necessary for municipal purposes in the particular municipality, the section if;, for the foregoing reasons, ultra vires of the Provincial Council; Rex v Ras (1938 T.P.D. 32); Rossmaur Mansions (Pty.), Ltd., v Briley Court Pty.), Ltd. (1945 AD 217); sec. 80 (67) should be construed in such manner as to make it intra vires rather than ultra vires; Rex v West (1925, E.D.L. at 86); Kneen v Minister of Labour (1945 AD 400 at 403-4). The by-law in the present case involves "such

1946 AD p786

a gratuitous interference with the rights of the appellant as can find no justification in the minds of reasonable men"; Kruse v Johnson (1898, 2 Q.B. 96); Delew's case (supra); Governors of Repton School v Repton Rural District Council (1918, 2 K.B. 133 at 137); Enniscothy Urban District Council v Field (1904, 2 I.R. 518); Scott v Pilliner (1904, 2 K.B. 855); Stiles v Galinski (1904, 1 K.B. 615); Arlidge v Islington Borough Council (1909, 2 K.B. 127); Thames Conservators v Kent (1918, 2 K.B. 272); Everitt v Grapes (1861, 3 L.T. 669); Wanstead Local Board v Wooster (1873, 37 T.P. 403); Heap v Burnley Union (1884, 12 Q.B.D. 617); the reasonableness of the by-law may be tested by its application in an extreme case; cf. Amoils v Johannesburg City Council (1943 T.P.D. 386 at 390); Bhyat v Rex (1945 T.P.D. 229).

S. Bekker, for the respondent: If a specific power is conferred on respondent by sec. 80 (67), Ordinance 13 of 1939, to prohibit the keeping of swine within the municipality, the question of the unreasonableness of the by-law becomes irrelevant; Feinstein v Baleta (1930 AD at 319); Delew v Brakpan Municipality (1937 T.P.D. at 442-3). The prohibition against, and controlling and regulating of, the keeping of swine is a matter necessary or incidental to municipal government; Rex v Dickson (1934 AD 231 at 233); Maserowitz and Another v Johannesburg Town Council (1914 W.L.D. 139 at 146); Bloemfontein Municipality v Bosrand Quarries (Prop.), Ltd. (1930 AD 370 at 382); White v Morley (1899, 2 Q.B. at 39). The Provincial Council is the supreme legislator on matters necessary or incidental to municipal government; Johannesburg Consolidated Investment Company, Ltd. v Marshall's Township Syndicate (1917 AD at 666). Accordingly the only question is whether sec. 80 (67) of the Ordinance confers a right on respondent to prohibit the keeping of swine. The section does confer such a right, and that without any limitation or qualification. All municipalities in the Transvaal, therefore, are by law, specifically and not generally, empowered to prohibit the keeping of swine, or to regulate the keeping of swine; as to the distinction between "specific" and "general" powers, see Delew's case (supra, at pp. 451-2). The section confers on all municipalities a discretionary but absolute right to avail themselves of the specific power mentioned; the matters particularised in sec. 80 are not merely "examples" of municipal functions but represent rights conferred on municipalities by law subject only to the limitations that the Court may hold that a particular matter is not

1946 AD p787

a matter of municipal concern, that is, for local government. A discretion is inferred by the use of the word "may" in the opening paragraph of sec. 80. Even though the by-law in question may seem unreasonable in the circumstances of the present case, the Court is not justified in declaring it ultra vires, once it is clear that it falls within the powers granted to respondent by the Provincial Council.

Gould in reply.

Cur. adv. vult.

Postea (October 8th).

Judgment

Watermeyer. C.J.:

I agree with the judgment of my brother FEETHAM, but I wish to add something upon one aspect of this case.

It seems to me that the provisions of sec. 80 (67) of Ordinance 17 of 1939 clearly and specifically authorise all municipal councils in the Transvaal to make by-laws for the purpose of preventing the keeping of swine within the municipal area, and the ordinary way in which a law prevents the performance of an act is by means Of a prohibition against its performance coupled with a penalty for any contravention of such prohibition...