Vandayar v Port Elizabeth Municipality

• Jurisdiction: South Africa
• Judge: Sampson J
• Judgment Date: 06 December 1956
• Citation: 1957 (2) SA 67 (E)
• Hearing Date: 04 December 1956
• Court: Eastern Districts Local Division

F Sampson, J.:

This application came before me on notice of motion to the Port Elizabeth Municipality, the respondent Municipality, and there is an affidavit by the attorney for the applicant which indicates that on the 7th of last month he served notice of motion and the papers annexed thereto, upon the chief inspector of the Group Areas, Eastern Cape Committee at Port Elizabeth.

G The applicant is an Indian general dealer who has been carrying on that business at 126a Russell Road, Port Elizabeth. His petition alleges that he has been the registered owner of certain property, being certain piece of land situate in Irvine Street and Russell Road, in the Municipality of Port Elizabeth, being No. 11 of the divided lots Nos. 1 H and 2 Town Impovement Lands, since June, 1936.

On the 26th of August last the respondent Municipality passed plans submitted by the applicant for a proposed structure of certain shop premises by himself on the aforesaid property, and his petition alleges that he commenced building operations in accordance with such plans and made application incidentally to the Post Office for a telephone.

Sampson J

In terms of sec. 13 (1) (a) of the Group Areas Act, 41 of 1950, his attorneys, on the 16th day of April, 1956, made application to the Group Areas Board for the necessary certificate without which the Municipality was not entitled to issue a certificate enabling the applicant to obtain A a general dealer's licence for the premises in question. This certificate was duly issued to him and the certificate sets out that he is lawfully in occupation of such premises.

The section in question reads as follows:

'23. (1) No authority entrusted by or under any law with the issue of any certificate authorising the issue of any licence to carry on any business, trade or occupation on any land or premises or the transfer of such a licence to other land or premises, shall issue such a certificate B unless the person applying therefor produces to such authority a certificate signed by an officer authorized thereto by the board . . ..'

And then the section goes on to set out further features.

This certificate was granted by the chief inspector of the Group Areas Board at Port Elizabeth and it was forwarded to the applicant under C cover of a letter in which the following remarks were made by the Secretary of the Group Areas Board, Eastern Cape Committee:

'I have to point out, however, that steps have been taken to define the property in question in terms of sec. 13 (3) (a) of the Act for the purposes of sec. 13 (3) (b) thereof.'

This certificate was obtained after considerable delay and despite D numerous reminders and requests to the Eastern Cape Committee of the Group Areas Board.

On the 21st June, 1956, the applicant made application to the respondent Council for a general dealer's licence and submitted the certificate in question. On the 21st July, 1956, however, a Proclamation, No. 134, was published in the Government Gazette of the 20th...