Transvaal Indian Congress v Land Tenure Advisory Board and Another

• Jurisdiction: South Africa
• Judge: De Wet J
• Judgment Date: 14 October 1954
• Court: Transvaal Provincial Division
• Hearing Date: 14 October 1954

De Wet, J.:

In this matter I should have preferred to reserve my G decision, but inasmuch as the matter is urgent and I have formed a clear view I propose to give my decision immediately.

The Land Tenure Advisory Board, acting in terms of Act 41 of 1950, published a notification that it would investigate the desirability or otherwise of proclaiming, in terms of sec. 3 and/or sec. 3 bis of the Act, certain areas shown on the map which was open to inspection as group areas for ownership and/or occupation by members of the group or groups indicated in respect of such areas. The notice continued:

H 'Representations which any interested party may wish to make in this connection must contain a brief statement of the reasons on which they are based and be lodged in writing in quintuplicate, with the undersigned (i.e. the secretary of the Board) not later than the 30th June, 1954. All persons who have lodged representations in pursuance of this notice may apply for leave to adduce evidence in support of the representations made and to address a

De Wet J

committee of the Board at a hearing in public at a date and place of which notice will be given at a later date.'

The applicant, which is a voluntary association, but which, on the facts alleged in its petition, appears to be a universitas with perpetual succession, lodged certain objections insofar as the Indian Group is A concerned. The objections were, first of all, an objection on principle; secondly it was submitted that there should be no creation of group areas in Johannesburg on the ground that the relationship between the races in these areas has always been amicable and that separation is undesirable. A third objection was that the proposed scheme would have B the result of depriving the Indian community of its livelihood and ruining it economically - that it would drastically affect the members of the Indian community. There were three further objections with which I do not propose to deal.

In due course the public hearing by the Board was commenced, and two members of the applicant association appeared and asked that they should C be heard together with a number of other people who were appearing. The chairman ruled that they could not be heard. At the actual meeting of the Board no reasons were given by the chairman, but in his replying affidavit in the present case he has given one reason, and certain facts are set out which may be construed as being another reason.

D The main reason given by him for refusing a hearing to the two members of the applicant is that he considered that they had no interest in terms of the Act. Later in his affidavit the chairman says:

'I draw the attention of this Honourable Court to the fact that first respondent is a statutory body charged with statutory duties and with the enforcement of certain provisions of the Group Areas Act. Consequently any representation and/or objections designed as an attack E directed against the Act itself or the implementation of its provisions are entirely irrelevant and tend to protract and obstruct unnecessarily the functions which first respondent is to perform.'

He adds:

'I annex hereto the representations made by petitioner on previous occasions . . . and I humbly submit that petitioner's main object is an attack on principle against the Act itself.'

Application is now brought to review the decision of the Board in refusing to allow the applicant a hearing through one or more of its members.

The applicant alleges that it is an association which represents all the Indians in the Transvaal, and the members of that community expect the G applicant to appear and make representations on their behalf in any enquiry affecting the interests of any of them.

The Board's enquiry was held in terms of secs. 27 and 28 of the Act as amended.

Sec. 27 provides that the Board shall enquire into and by means of a written report advise the Minister in regard to certain specified H matters. It is clear from the Act as a whole that the Board is merely advisory; the Minister may or may not act on any recommendation made by it.

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