The State v Antrim Court (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judge: Herbstein J and Watermeyer J
• Judgment Date: 19 April 1962
• Citation: 1962 (4) SA 405 (C)
• Hearing Date: 12 March 1962
• Court: Cape Provincial Division

G Watermeyer, J.:

This is an appeal against the conviction of the appellants on two counts of contravening the provisions of regs. 837 (1) and 837 (5) read with reg. 837 (8), of the Cape Town Municipal Building H Regulations, as amended, promulgated under Provincial Notice 255 of 1920 in the Provincial Gazette dated 30th July, 1920. Particulars of the charges are, firstly that the appellants wrongfully and unlawfully erected a building, as defined, to wit 6 servant's rooms, without the prior approval of the Council given under the regulations, and secondly, that they wrongfully and unlawfully failed to comply with an order under the hand of the Town Clerk requiring them forthwith to demolish

Watermeyer J

such building and to complete such demolition by a specified date, to wit 6th February, 1961.

Reg. 837 (1), as substituted by Provincial Notice 241 of 1957, provides A that any person who erects a building without the prior approval of the Council given under these regulations shall be guilty of an offence.

Reg. 837 (5) provides that the Council may serve upon the owner of such building an order under the hand of the Town Clerk requiring such owner to demolish such building by a specified date, and failure to comply with such order is made an offence by reg. 878 (8).

B There is no dispute on the facts. The appellants clearly contravened both these regulations and the only point raised on appeal relates to the validity of the regulations.

Mr. Schock, who appeared for the appellants, contended that by reason of the inclusion in the regulations of a regulation empowering the Council C to waive compliance with, or relax, the provisions of its regulations, the whole set of building regulations is ultra vires and the appellants' conviction should therefore be set aside.

The waiver provisions are contained in regs. 837 (9) and 837 (10) which read as follows:

'(9) The Council may, if it deems it desirable so to do, waive compliance with or relax the provisions of any of these regulations, D provided that this subregulation shall not entitle the Council to waive payment of any fee prescribed by these regulations, except as is provided for by sub - reg. (7) of reg. 829.

(10) In each case in which such waiver or relaxation has been granted to any person, the Council shall serve a notice in writing under the hand of the Town Clerk upon such person citing the regulation or regulations waived or relaxed and the extent to which such regulation or regulations have been waived or relaxed. In addition, the Council shall keep a E record containing an identical copy of each such notice, which record shall be available for inspection by members of the public at the offices of the...