Winter v South African Railways and Harbours

• Jurisdiction: South Africa
• Judge: De Villiers ACJ, Curlewis JA and Stratford JA
• Judgment Date: 16 November 1928
• Citation: 1929 AD 100
• Hearing Date: 19 October 1928
• Court: Appellate Division

De Villiers, A.C.J.:

The respondent in the Cape Provincial Division successfully claimed an order of ejectment against the appellant from Wharfside Site No. 1, East London, on the ground that the site in question was the property of the respondent and that appellant was in wrongful occupation thereof. It is common

De Villiers, A.C.J.

cause that the ownership in the site is in the Crown. In his plea the appellant denied that the site was the property of the respondent, and in the alternative pleaded that he was in lawful occupation thereof under a deed of lease of the 15th December, 1917, entered into between the owners, the Government of the Union of South Africa, and one John Robinson and himself as lessees, which deed was duly approved and ratified by Parliament. That the above parties entered into such a lease is common cause, but the respondent contends that under clause 2 of the lease it cancelled the lease as it was entitled to do. The two substantial questions, therefore, before the Court are first whether respondent is the owner of the site, and second whether the lease was lawfully cancelled.

On the first question the appellant, who appeared in person, maintained that the respondent is a persona in law under sec. 65 of Act 22 of 1916, and that on the authority of what was stated by SOLOMON, J.A in Minister of Railways and Harbours v Johannesburg Municipality (1912, A.D at 606) it follows that the Government is not a party to the action. That was an action brought in the name of the Minister of Railways and Harbours on an, allegation that the rights and liabilities of the Railways vested in the plaintiff. There was no reference to the Government of the Union. The Court dismissed an exception to the declaration, holding that there could have been no doubt in the mind of the defendant that the plaintiff brought the action on behalf of the Government. "Had the South African Railways," proceeded SOLOMON, J.A., who delivered the judgment of the Court, "been a corporate body with power to sue, I am not prepared to say that the objection taken" by the defendant might not have been a good one. It is upon these words that the appellant relies. But his argument rests upon a misinterpretation of sec. 65. This section does not make the South African Railways and Harbours a persona. Very different language would have been used if that had been the intention. The section provides that "all legal proceedings to which the Administration is a party shall be brought by or against the Administration in the name of 'The South African Railways and Harbours.'" That is what was done in the present case. The action is, brought in the name of "The South African Railways and Harbours," as directed in the section, and it follows that it

De Villiers, A.C.J.

is an action brought by the "Administration." It remains to ascertain the identity of the person described in the section as the "Administration." The word "Administration" as used in the Act is defined in sec. 2 as the authority for the control and management of the railways, ports and harbours of the Union as established under the South Africa Act, 1909, or any amendment thereof." I turn, therefore to Act 17 of 1916, an Act amending the South Africa Act, to determine who is "the authority" contemplated in sec. 2 of Act 22 of 1916. The answer is to be found in sec. 2 (1) of Act 17 of 1916, which provides that the railways, ports and harbours of the Union "shall be administered and worked under the control and authority of...