Welkom Village Management Board v Leteno

• Jurisdiction: South Africa
• Judge: Schreiner JA, De Beer JA, Beyers JA, Price AJA and Ogilvie Thompson AJA
• Judgment Date: 05 December 1957
• Citation: 1958 (1) SA 490 (A)
• Hearing Date: 25 November 1957
• Court: Appellate Division

Ogilvie Thompson, A.J.A.:

Appellant has under its control at Welkom the Thabong Location which is governed by Location Regulations made under C the authority of sec. 38 (3) of Act 25 of 1945, and promulgated by Administrator's Notice 216 of 1952 in the Official Gazette of the Orange Free State of 28th November, 1952. Appellant appeals against an order, granted by GROBLER, J., in the Orange Free State Provincial Division directing appellant to issue to respondent a certificate stating that stand A5 in the Thabong Location was lawfully allotted to respondent by D appellant as a site for the purpose of carrying on the business of a fresh produce dealer and, further, directing that respondent's said trading rights are deemed to have been lawfully renewed in terms of reg. 25 of Chap. 3 of the above-mentioned Administrators Notice 216.

In the regulations appellant is, by definition, designated as the E 'Council', and I shall hereafter so refer to appellant. Under Chap. II of the regulations every male person over 21 years wishing to take up residence in the Location must apply in person to the Location Superintendent for a permit. Such permit is called either a site permit or a residential permit, according as the applicant occupies a Council F dwelling or otherwise (regs. 6 and 9). Reg. 12 makes provision for the cancellation of site and residential permits upon certain stated conditions. Reg. 34 prescribes a tariff of rents and charges payable by

'every registered occupier or other resident in the location or person liable to take out a permit'.

Chap. III of the regulations is headed 'Trading Regulations' and regs. 3 and 4 of this Chapter reads:

G 'Trading Sites.

(3) The Council may set aside sites in the location and may erect buildings thereon for allotment to natives for trading or business purposes.

Authority to commence trading.

(4) (1) No person shall carry on any trade or business in the location unless a site has been allotted to him for that purpose by the Council, and no person shall carry on any trade or business in the location on any site other than one set aside and allotted by the Council in terms H of reg. 3; provided that nothing contained herein shall absolve any person from obtaining any licence or other authority which is required by any other law as a condition precedent to the commencement of any such trade or business.

(2) Any male native over 21 years of age who desires to carry on any trade or business within the location shall make written application, wherein the nature of such trade or business shall be disclosed, to the Council, which may in its discretion, subject to the provisions of this Chapter, allot to the applicant

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a site, set aside in terms of reg. 3, on which he may carry on his trade or business.'

Reg. 5 provides that, should any trading or business site in the location become available at any time for allotment, that fact is to be advertised and that all applications received are to be transmitted by A the Superintendent to the Council

'which may decide to which applicant the site shall be allotted in terms of reg. 4'.

Reg. 6 lays down that no site in the location may be let for trading or business purposes to a person who is not a native: and reg. 23 provides B that no trader may dispose of his trading or business rights in the location to any person other than 'a native approved of by the Council'. Reg. 26 lays down that every trader to whom a site or building is allotted in terms of regs. 3 and 4 shall pay therefor a prescribed monthly rental together with fees 'for sanitary water and other services rendered by the Council'. In passing it may be remarked that the English text - which Notice 216 states is the official version - C of reg. 26 refers to a non-existent reg. 31 in the expression 'shall . . . pay the sums prescribed in reg. 31'; whereas the Afrikaans version reads 'sodanige bedrae as wat die Raad van tyd tot tyd mag vasstel'. Nothing, however, turns upon this in the present appeal. Reg. 25 reads as follows:

'25. The right to carry on any trade or business, and to occupy any site in terms of the provisions of this Chapter, shall expire on the 31st day of December in each and every year, but shall upon application by the trader not less than one month before that date be renewed by the Council, provided that the trader -

(i)

is a fit and proper person,

(ii)

is lawfully resident in the location,

(iii)

has paid his rentals and all fees and other charges due to the E Council up to the 31st October of the year in which application for such renewal is made.'

Reg. 29 (d) provides that 'should any trader, during the term of his right to occupy, . . . die,' . . . the Council may, upon notice to his executor, cancel his right to carry on any trade or business on any site in the Location.

F In the Court below the proceedings were brought on notice of motion supported by respondent's petition. Notwithstanding that the latter contained numerous allegations of mala fides - inter alia, of a fraudulent conspiracy on the part of the Location Superintendent and other location officials in the employ of the Council to deprive respondent of his rights - the Council elected to file no G opposing affidavits. In consequence, the present appeal falls to be decided upon the uncontradicted allegations of fact as deposed to by respondent. For a proper appreciation of the issues to be determined in this appeal it is necessary to make some reference to those facts. I accordingly proceed to summarise the salient facts of the case as reflected in respondent's petition and annexures thereto.

H Respondent's brother, one Oriel Leteno, was, in his lifetime, the holder of a site permit, granted by the Council, in respect of stand A5 in the Thabong Location whereat he lawfully conducted the business of a fresh produce dealer. Oriel also held a permit from the Council in respect of location residential stand 582. Oriel died on 21st November, 1954, and respondent inherited the business from him. This was

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recognised both by the Council and by the native commissioner. No notice was issued by the Council under reg. 29 (d). Respondent at once acquired possession of the stands (No. A5 and No. 582), and he has ever since remained in possession of them both. On 28th December, 1954, a permit was issued to respondent authorising him to reside on stand 582 at an A inclusive monthly rental of £3 15s. Respondent has always regularly and punctually paid this rental to the Council. On a few occasions the receipts issued to respondent were endorsed 'without prejudice'; but such endorsements would appear to have been sporadic, and some of the most recent receipts bear no endorsement at all.

B As regards the trading stand A5, respondent, although throughout in possession thereof and consistently regular in his payment to the Council of the £7 rental therefor, was, despite constant application, persistently thwarted in his endeavours to obtain a permit. Eventually on 30th May, 1955, a permit was issued to respondent in respect of stand C A5, but still in the name of the deceased Oriel. Some of the receipts issued to respondent for the £7 monthly rental of stand A5 bore a 'without prejudice' endorsement; but, as in the case of the receipts for stand 582, there was no continuity of practice in this regard, and some of the latest receipts bear no endorsement at all. When respondent pursued his endeavours to obtain a permit in his own name in respect of D stand A5 one de Beer, a Council location official, told him that he must sign a document selling the business for £200 to one Lincoln Dhlamini, a native whose father held the position of chief clerk in the location office. Subsequently respondent was told by one Swart, another location employee of the Council, that 'all the businesses in Thabong Location belong to European officials there' and that if respondent E refused to sell to Dhlamini he would lose both the business and the £200. A letter, dated 27th September, 1955, from respondent's attorney to Swart, recording the latter's threats against respondent and demanding an explanation, was ignored. Under date 23rd January, 1956 van der Westhuizen, the location Superintendent, sent a notice, purporting F to be issued under reg. 12 (2) (a), to respondent of cancellation of his residential permit within one month. A similar notice, also signed by van der Westhuizen, was again issued on 3rd April, 1956. In the interim, a letter, dated 26th January, 1956, addressed by respondent's attorney to the manager of the Council - who, in terms of the regulations, is an official appointed by the Council and licensed by the G Minister for the management of the Council's Department of Native Administration - requesting an explanation of the persistent frustration of respondent in his endeavours to obtain a trading permit remained unanswered; this despite the intimation contained in the letter that, failing satisfaction, respondent would be obliged to make H application to the Supreme Court at Bloemfontein to compel the issue of the permit.

Van der Westhuizen - who, before he became location superintendent, was one of the Council's location officials - consistently adopted a hostile attitude towards respondent. The latter made many verbal requests to van der Westhuizen for a permit to trade on stand A5, but van der Westhuizen consistently refused, saying that he did not want

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respondent in the location. Van der Westhuizen caused several criminal prosecutions to be instituted against respondent for being unlawfully in the location and for trading therein without a licence - an A aspect of the case to which I shall make further reference directly. The charges against respondent of being unlawfully in the location failed; but van der Westhuizen nevertheless...