Toho v Diepmeadow City Council and Another

• Jurisdiction: South Africa
• Citation: 1993 (3) SA 679 (W)

Toho v Diepmeadow City Council and Another
1993 (3) SA 679 (W)

1993 (3) SA p679

Citation	1993 (3) SA 679 (W)
Court	Witwatersrand Local Division
Judge	Stegmann J
Heard	July 29, 1992
Judgment	February 24, 1993

Flynote : Sleutelwoorde

Land — Occupation of — Statutory lease in terms of s 6(1)(a) of Conversion of Certain Rights to Leasehold Act 81 of 1988 — Residential permit issued in terms of reg 7 of chap 2 of Regulations Governing the Control and Supervision of an Urban Bantu Residential Area and Relevant J Matters, as amended, published in Government

1993 (3) SA p680

A Notice 1036 of 14 June 1968 and made in terms of Blacks (Urban Areas) Consolidation Act 25 of 1945 — Act 81 of 1988 coming into effect on 1 January 1989 — Regulations repealed in terms of s 12 on that date — Tenure evidenced by residential permit converted into unregistered B statutory lease in terms of s 6(1)(a) upon repeal of regulations — Section 6(1)(a) thus also excluding residential permit from category of rights qualifying for consideration, in terms of s 2, by provincial secretary with a view to deciding whether such rights qualify for conversion to leasehold rights.

Land — Occupation of — Statutory lease in terms of s 6(1)(a) of Conversion of Certain Rights to Leasehold Act 81 of 1988 — Termination of C by local authority as lessor — Provision in s 6(2) for termination of lease by lessee and for payment of rental in amount equal to that paid by lessee immediately before commencement of Act prefaced by words '(s)ubject to any by-laws relating to the site and accommodation concerned' — D Implications of such words — Firstly, that local authority would adopt by-laws determining circumstances and manner in which statutory leases terminable at instance of lessor — Secondly, where no by-laws applicable, that statutory lessee could retain lease for as long as rental paid until by-laws making some other provision adopted — Thirdly, that until E adoption of by-laws determining circumstances in which lease terminable at instance of lessor, lessor unable to terminate lease for any reason other than non-payment of rental — Until adoption of by-laws, lessor having to comply with common-law requirement of giving reasonable notice to lessee to pay overdue rental by fixed date — If lessee in default after fixed F date, lessee then in mora and lessor thus acquiring right of cancellation on that ground — Statutory lease thus not ipso jure terminable on failure to pay rental and without notice.

Headnote : Kopnota

On 3 November 1978 the West Rand Bantu Affairs Administration Board issued to the applicant in respect of a house in Diepkloof a residential permit G in terms of reg 7 of chap 2 of the Regulations Governing the Control and Supervision of an Urban Bantu Residential Area and Relevant Matters published in Government Notice 1036 of 14 June 1968 and made in terms of the Blacks (Urban Areas) Consolidation Act 25 of 1945 (hereafter referred to as the '1968 Residential Areas Regulations'). The permit provided that '(t)he right to occupy the site described below is hereby granted to the holder and his dependents'. The address of the house was specified, as well as the names of the occupants, being the applicant, as holder, two of H his sisters and a niece. In 1979 reg 7 was replaced by a new reg 7, granting to permit holders a slightly more secure form of tenure. In terms of the new reg 7(4), the superintendent of a residential area was empowered to cancel a permit on various grounds, one being upon the divorce of the permit holder if such permit holder had not made satisfactory arrangements for the accommodation of his (former) wife and her dependants. By virtue of the Black Local Authorities Act 102 of 1982, the first respondent local authority succeeded to the rights, powers and I obligations of the West Rand Administration Board. In terms of s 69(1) of the Black Communities Development Act 4 of 1984, the relevant provisions of the Blacks (Urban Areas) Consolidation Act were repealed, but by virtue of s 66(3) the validity and effectiveness of the 1968 Residential Areas Regulations, as amended, were preserved.

On 1 January 1989 the Conversion of Certain Rights to Leasehold Act 81 of 1988 (hereafter referred to as the '1988 Act') came into operation. Its purpose was to provide for the conversion of certain occupational rights J into leasehold rights. In

1993 (3) SA p681

A terms of s 1, 'affected site' is defined as a site which was occupied 'by virtue of a site permit, a certificate, a trading site permit or a permit issued by the local authority concerned conferring upon the holder thereof rights which in the opinion of the secretary [being the provincial secretary of the province concerned] are similar to the rights which are held by the holder of a site permit, a certificate or trading site permit'; and 'certificate' is defined as 'a certificate of occupation issued under reg 8(1) of chap 2 of the regulations', such regulations B including the 1968 Residential Area Regulations. Section 2 of the Act empowers and obliges the secretary to conduct an enquiry in respect of affected sites within development areas within his province in order to determine who should be declared to have been granted a right of leasehold with regard to such sites. Upon completion of such enquiry the secretary is required by s 2(5) to publish a notice containing specified particulars of his determination. Section 3 provides a right of appeal to any person aggrieved by the secretary's determination. In terms of s 4 the secretary C is required to declare who has been granted a right of leasehold over the site in question in accordance with the final decision on appeal or, if no appeal has been made, in accordance with his own determination under s 2. Registration of the leasehold title to the site in the name of the person declared to be entitled thereto is provided for in s 5. Section 6(1) provides that the holder '(a) of a residential permit or hostel permit referred to in the regulations . . . shall from the commencement of this Act . . . be the lessee, and the local authority concerned shall be the D lessor, of the site or accommodation concerned . . .'. Section 6(2) provides that '(s)ubject to any by-laws relating to . . . the site or accommodation concerned, a lease contemplated in ss (1) . . . (a) may be terminated by the lessee on three months' written notice; (b) shall be subject to the payment of rental by the lessee to the lessor in an amount equal to the amount paid by the lessee immediately before the commencement of this Act . . .'. Finally, certain measures, including the 1968 Residential Areas Regulations, were repealed with effect from 1 January E 1989 in terms of s 12.

The applicant and second respondent were married in community of property on 20 July 1983. Two children were born of the marriage. The applicant did not have the names of his wife and children added to the residential permit as occupants of the property. On 20 February 1989 the parties were divorced, the second respondent and children having moved out of the house at an earlier date. On 11 April 1989 the first respondent, purporting to F act in terms of regs 7(4) and 47(1) of chap 2 of the 1968 Residential Areas Regulations, notified the applicant of its intention to cancel his residential permit after 30 days and required him to vacate the house on the grounds that he no longer qualified for accommodation after his divorce. On 23 May 1989 the first respondent purported to issue to the second respondent a residential permit in respect of the house in terms of reg 7, and on 15 November 1989 it purported to sell to her certain rights of leasehold in respect of the property to be granted in terms of s 6A of G Act 25 of 1945. At some point during 1989 the applicant ceased to pay rental. This, he alleged, had been during a rent boycott in Soweto. He pointed out, however, that the first respondent had written off any unpaid rental prior to 31 August 1990 in terms of an agreement known as the 'Soweto Accord'. The applicant refused to vacate the property and on 2 December 1991 (at which stage he was not alleged to be in arrears with his rental) he launched proceedings for an order declaring (1) that the first respondent's purported cancellation of his rights of occupation of the house had been unlawful and invalid; (2) that he was entitled to continue H residing at the house on the terms and conditions existing at the date of the purported cancellation of his rights of occupation; and (3) he sought a mandatory interdict directing the first respondent to amend its records to reflect the applicant as statutory lessee of the house.

One of the issues was whether the applicant's residential permit brought the property concerned within the definition of 'affected site' by virtue I of the words '. . . or a permit issued by the local authority concerned conferring upon the holder thereof rights which in the opinion of the secretary concerned are similar to the rights which are held by the holder of a site permit, certificate or trading site permit'. It was argued for the respondents that it would be for the provincial secretary to consider the rights enjoyed by the holder of a residential permit and to form an opinion whether such rights were sufficiently similar to those held by the holder of a site permit, certificate or trading site permit to entitle the J site occupied by virtue of a residential permit to

1993 (3) SA p682

A be an affected site, ie to be made the subject of an enquiry under s 2 and of a determination of the person(s) to be declared to have been granted a right of leasehold over such site. It was argued for the applicant that the three forms of tenure selected by the Legislature for conversion to leasehold title, namely site permits issued under reg...