Town Council of Springs v Moosa and Another

• Jurisdiction: South Africa
• Judge: De Villiers ACJ, Wessels JA and Curlewis JA
• Judgment Date: 13 July 1929
• Citation: 1929 AD 401
• Hearing Date: 14 June 1929
• Court: Appellate Division

De Villiers, A.C.J.:

The Transvaal Gold Law (Act 35 of 1908), sec. 131 (1), provides that "no coloured person shall be permitted to reside on proclaimed land in districts comprised in class A except in bazaars, locations, mining compounds, and such other places as the Mining Commissioner may permit." And "proclaimed land" is defined in sec. 3 of the Act as land proclaimed a public digging. The question in this appeal is whether the two respondents, who are Indians and admittedly coloured persons within the meaning of the Act, are entitled to reside on Erf No. 66 in the town of Springs. The erf is registered in the name of the Springs Warehouse (Proprietary) Ltd. and the respondents have resided there since 1927. They carry on business under a trading licence on Erf 40. The town of Springs is situate on proclaimed land in the mining district of Boksburg, a district comprised in class A. In the Witwatersrand Local Division

De Villiers, A.C.J.

appellant instituted an action against the two respondents for ejectment from the erf in question. The action was dismissed KRAUSE, J., with costs, and an appeal from that judgment is now before this Court.

The relevant facts are the following: Appellant is the Town Council of Springs, a body duly constituted in terms of Local Government Ordinance (Transvaal), No. 11 of 1926. It is also the duly registered freehold owner of Erf No. 108 and of freehold reserves Nos. 1 and 3 in the town. The town of Springs is situate on Crown land, and the mineral rights are vested in the Crown In November, 1904, the Lieutenant-Governor of the Transvaal proclaimed the town as a town under the name of Springs. All the erven and reserves in the town were disposed of under the Crown Lands Disposal Ordinance No. 57 of 1903 (Transvaal). The grants of the erven and reserves were in each case made, and are held "on condition that the land comprised therein should be subject to such town regulations, stipulations and laws as existed at the date of the said grants, or which might thereafter be passed by the Legislature." In, July, 1911, by Proclamation 190 of 1911, the ground on which the town of Springs is situate was proclaimed a public digging for precious minerals under the provisions of sec. 26 of the Gold Law as and from the 24th August, 1911. The ground may, therefore, be taken for the purposes of this case as proclaimed land. There are no bazaars, locations or mining compounds in the town, and the Mining Commissioner has given no coloured person any right to reside anywhere within the town.

Several defences were raised to the action, which need not all be detailed, for I have come to the conclusion that sec. 131 (1) of the Gold Law does not apply. To understand the point at issue it is necessary to remember that up to the year 1908, the Transvaal law did not allow any prospecting or digging for precious metals to be carried on on what, for want of a better term, may be called "improved land," such as land on which towns villages, townships are situate, or on public squares, streets, cemeteries, gardens, etc. The last Gold Law of the Republic, Law No. 15 of 1898 (sec. 118), provides: "Prospecting and digging is forbidden on or in towns, villages, townships, open squares, streets, roads, railways, cemeteries, erven, stands, permanent fortifications, locations (with the exception of those indicated under sec. 49), town lands, gardens...