Tikly and Others v Johannes NO and Others

• Jurisdiction: South Africa
• Judge: Trollip J
• Judgment Date: 28 March 1963
• Court: Transvaal Provincial Division
• Hearing Date: 28 February 1963
• Citation: 1963 (2) SA 588 (T)

Trollip, J.:

The applicants are the owners of a certain property in Pietersburg. The area within which it is situate was on the 4th March,

Trollip J

1960, declared a group area for White ownership and occupation with the result that the property became affected property within the meaning of sec. 1 of the Group Areas Development Act, 69 of 1955, in as much as it was owned and occupied by persons belonging to the Indian Group. In due A course it was placed on the list of affected property compiled under that Act, and the committee of valuators appointed in terms of sec. 19 (2) determined its final basic value at R29,000. Thereupon the applicants lodged an appeal against that determination in terms of sec. 19 (4) (a). The revision court, appointed in terms of the Act, sat at Pietersburg on the 15th October, 1962, to hear the applicants' and other B appeals. The first three respondents are the members of that court. At the hearing the applicants and the fourth respondent, the Group Areas Development Board (to whom I shall refer as 'the board') were represented by counsel.

At the very outset of the hearing a dispute arose between the applicants C and the board as to the proper function of the revision court in regard to the 'appeal'. That dispute was debated before and heard by the revision court and the parties sought its ruling thereon. The applicants contended that the 'appeal' was an appeal in the wide sense of the word, being a complete re-hearing of the issue that had arisen concerning the D final basic value of the affected property, and a re-determination by the revision court itself of that value. The board contended that the 'appeal' was a review (in the strict sense) of the valuators' determination in which the revision court's function was confined to determining merely whether or not the valuators had exercised their powers properly and honestly in determining the final basic value. That E was in essence the main dispute between the parties, but in the course of canvassing it before the revision court the parties also raised collateral issues such as the weight that had to be given by the revision court to the valuators' valuation.

On the 16th October, 1962, the revision court gave its ruling which is recorded in the copy of the proceedings annexed to the petition.

F That ruling was fundamental to the nature of the revision court's proceedings. It applied not only to the applicants' appeal, but would, of course, have applied too to all the other appeals that were then and are still pending before the revision court. It was consequently agreed between the parties that the question of the correctness of that ruling G should be submitted immediately to this Court for its decision. The revision court itself was naturally anxious that that should be done, and adjourned its proceedings for the purpose. Hence the present application in which the applicants claim certain declaratory orders.

Although the revision court has not yet given its final decision on the H merits in the applicants' appeal, I think that this Court can and, in the circumstances, should hear and decide this application now. Generally the Court will not entertain review proceedings of the present kind until the inferior tribunal has pronounced its final decision upon the merits. The main reason for that rule is probably that the final decision might correct the irregularity in the proceedings complained of, or might cure any prejudice that the aggrieved person has thereby sustained. But, as appears from the authorities cited by Mr. Oshry for the applicants, this Court is entitled to intervene at any stage to correct

Trollip J

the pending proceedings before the inferior tribunal if, in the particular circumstances, that is necessary or convenient for the purpose of doing justice between the parties (Eliovson v Magid, 1908 T.S. 558 at pp. 561, 566; Rascher v Minister of Justice, 1930 T.P.D. 810 at p. 820; Wessels v General Court Martial, 1954 (1) SA 220 (E) A at pp. 221H - 222 C). That requirement is manifestly complied with in the present case.

The revision court's ruling was ambiguous. Indeed, the applicants asserted in the present proceedings before this Court that the revision B court had ruled against their contentions and they accordingly claimed appropriate declaratory orders; whereas the board maintained before me that the ruling was in the applicants' favour and against it, and as such it was erroneous. With the consent of the parties, the chairman of the revision court, the first respondent, was prevailed upon to clarify the ruling by affidavit. He explained that the ruling meant:

(a)

C that all parties concerned had the fullest right to adduce evidence in respect of the basic value which was the subject of the appeal;

(b)

that the revision court could have regard to the fact that the valuators had determined the basic value at a particular figure, and that it was a valuation to which the revision court could D have regard if there was no other evidence placed before it contradicting it;

(c)

that after hearing evidence the revision court had to make its own determination of the basic value on all the evidence adduced before it.

E It then appeared that the ruling as amplified had in regard to (a) and (c) been in favour of the applicants and against the board on their main contentions, and in favour of the board and against the applicants in regard to...