Radebe v Eastern Transvaal Development Board; Mthethwa v Eastern Transvaal Development Board; Jele v Eastern Transvaal Development Board (431/86,429/86,430/86) [1988] ZASCA 8; [1988] 2 All SA 271 (A) (11 March 1988)

REPORTABLE /mb

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matters between

TIMOTHY RADEBE (Case No 431/86) APPELLANT

andEASTERN TRANSVAAL DEVELOPMENT BOARD .... RESPONDENTN B MTHETHWA (Case No 429/86) APPELLANTand

EASTERN TRANSVAAL DEVELOPMENT BOARD ... RESPONDENT

JOSEPH JELE (Case No 430/86) APPELLANT

and

EASTERN TRANSVAAL DEVELOPMENT BOARD RESPONDENT

CORAM : CORBETT, HEFER, NESTADT, JJA, NICHOLAS

et KUMLEBEN, AJJA

DATE HEARD : 18 FEBRUARY 1988 DATE DELIVERED : 11 MARCH 1988

JUDGMENT/

2. JUDGMENT

KUMLEBEN, AJA:

The above three matters, now on appeal,came before Heyns J as opposed applications in theTransvaal Provincial Division. They were heardtogether since the issues to be decided and thematerial facts are the same. Respondent claimedagainst each appellant an order for his ejectmentfrom premises occupied by him. Such orders weregranted as prayed. The judgment of the Court isreported as Ontwikkelingsraad Oos-Transvaal vRadebe and Others in 1987(1) SA 878 (TPD). TheCourt granted leave to appeal. Through inadvertencethe notices of appeal were not lodged timeously re-

sulting in petitions for condonation. Mr Swart, who

appeared/

3. appeared for respondent, correctly conceded that

there were good grounds for condonation, which was

duly granted.In resisting the claims for ejectment appel-lants rely on certain provisions of the Black Communi-ties Development Act, 4 of 1984 (to which I shall refer as "the Act") and on some of the regulations of the Regulations Governing the Control and Supervision of an Urban Black Residential Area and Relevant Matters con-tained in Chapter 2 of Government Gazette No R1036 pu-blished in Government Gazette No 2096 of 14 June 1968. Before turning to the merits, some explanatory commen-tary on these two enactments is appropriate.

Prior to the promulgation of the Act, res-

pondent was an "administration board" established

by sec 2 of the Black Affairs Administration Act,

45 of 1971/

4. 45 of 1971. In terms of sec 3(1) (d) of the Act

(4 of 1984) administration bcards were deemed to

be development boards. It was common cause that

the property occupied by each appellant was sitna-

ted within a Black residential area, as declared

and determined in terms of sec 3(1)(a) of the Act,

in respect of which respondent was authorised to

exercise the powers conferred upon such a board.

These included authority to "sell, let, hypothe-

cate or otherwise dispose of or encumber any land

belonging to it" (sec 36(1)(d) of the Act). It

should be noted, merely in passing since it has

no bearing on the outcome of the appeals, that in

terms of sec 2(1) of the Abolition of Development

Bodies/ 5. Bodies Act, 75 of 1986, "development bodies", which

by definition included a development board, wereabolished. And in terms of section 3 of that Actthe assets, liabilities, rights, duties and obliga-tions of respondent with effect from 1 July 1986vested in the Administrator of the Transvaal.

Initially the aforesaid regulations, gover-ning inter alia the control and supervision of urbanBlack residential areas, were published in terms ofsec 38(8)(a) of the Black (Urban Areas) ConsolidationAct, 25 of 1945, for the guidance of urban local authori-ties. By Government Notice R1267 published in GovernmentGazette No 2134 of 26 July 1968 these regulations wereapplied to such authorities. The Act (4 of 1984) repealed

most/

6. most of Act 25 of 1945 but, in terms of sec 35(5)(b)

- before amendment by sec 9 of Act No 74 of 1986 - and

69(2) read with sec 66(3) of the Act, the regulations

remained applicable to a Black residential area.In considering the merits, to which I now turn, I shall for convenience refer to the record in one of the appeals only, that of the appellant Radebe.The founding affidavit of respondent alleges that it is the owner of the property occupied by appellant. This fact, if proved or admitted, en-titles respondent to repossession unless appellant can establish some overriding right as against re-spondent entitling him to remain in occupation.

As/...

7. As explained in Chetty v Naidoo 1974(3) SA 13(AD)

at 20 B - D:

"It is inherent in the nature of owner-ship that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g.,a right of retention or a contrac-tual right). The owner, in instituting a reivindicatio , need, therefore, do no more than allege and prove that he is the owner and that the defendant is hol-ding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner (cf. Jeena v Minister of Lands , 1955(2) SA 380 (AD) at pp 382E, 383 )."

In the answering affidavit respondent's allegationof ownership was denied. The Court below held thisfact to have been proved - at 880 I to 883 F of the

judgment/

8.

judgment - and on appeal this finding was notchallenged. In the circumstances appellant wasrequired to prove a right to retain possession.To do so he alleges in his answering affidavitthat:

"(a) My rights and obligations in regard to the possession and occupation of the said property are governed solely by the Regulations pertaining to the Control and Superyision of an Urban Black Residential Area.

(b) The said property is within an UrbanBlack residential area to which suchregulations pertain.

(c) Such regulations are presently offorce and effect in terms of Go-vernment Notice R1036 of 14 June1968 as published in GovernmentGazette No 2096 (Regulation GazetteNo 976) of that date, together with

all/

9. all subsequent relevant amendments.

(d) Such common law rights as the appli-cant may claim to the said propertyhave therefore been displaced by

the said regulations and do not avail the applicant for the relief that he seeks.

(e) The applicant has failed to use theprocedure stipulated in the said re-gulations for my eviction."

It is thus the contention of appellantthat his right of occupation is governed by theregulations and that these entitle him to remainin occupation unless and until the steps provi-ded in these regulations for his eviction have beensuccessfully pursued. Or put more explicitly, hisanswer to the claim for ejectment is that thevindicatory right of an owner, in the case of pro-

perty/ 10. perty in a Black residential area, has been abolished

and replaced by the regulations providing for evic-tion. They are the following:

Regulation 15(4) "(4)(a) On. the cancellation of the permit or certificate, the holder concerned and all his dependants and all persons who claim to be in the residential area through a gualification or the authorisation of the holder or under him shall forthwith leave the site and dwelling, unless the superin-tendent otherwise determines, and the hol-der shall deliver the permit or certificate to the superintendent. (b) If the holder of a permit or certifi-cate fails or his dependants fail to com-ply with the provisions of sub-regulation (a), the superintendent may apply to a competent court for an order for the ejection of such holder, his dependants and all other persons from such site and dwelling." Regulation 47 /

11.

Regulation 47

"(1) Any person who

(f) having been ordered in terms of

regulation 19(5) of this Chap- ter to remove from the site, dwelling or Black residential area and not being otherwise authorised to remain in the Black residential area, fails, neglects or refuses without reasonable cause to comply with such order shall be guilty of an offence and liable to the penalties prescribed in section 44 of the Act. (2) The court, on convicting any per-son in terms of subregulation (1)(l)may make an order for the ejectment of such person from the site, dwelling or Black residen-tial area concerned."

Regulation 19(5), referred to in regulation 47(l)(f),is as follows:

"Any person found in the Black resi-dential area without the authority to

be/

12.

be therein in terms of these re-gulations may be ordered by the manager or any person authorised by him, either specifically or generally, to remove from the Black residential area forthwith."

The main argument in the court below dealt with the defence raised by appellant on the suppo-sition that appellant's occupancy was in fact governed by the regulations. The first enquiry, however, is whether the allegations in the answering affidavit establish this. The regulations, one notes, entitle a person to be in a Black residential area under different authorisations and in several capa-cities: as a "lodger", being a person who legally resides at a dwelling with the holder of a site or residential permit (reg 20); as the holder of a

residential/ 13. residential permit, a "tenant" by definition, in re-

spect of a dwelling allocated to him (reg 7); as a

"grantee", that is, a person to whom a certificateof occupation of a Board dwelling has been issued

(reg 8 read with reg 1). A person may also occupy asite allotted to him for the erection of a privatedwelling (reg 6). Moreover a "Black" may enter orremain in a black residential area on the strengthof an "accommodation permit" which has no referenceto any site or dwelling (reg 19(2)). And certainpersons, who may or may not be Blacks, are permittedto be in a black residential area without any specialauthorisation or permit (reg 19(6)). Thus, though

the references to authorisation in this paragraph do

not/

14. not. purport to be a comprehensive review of the

rights of persons to be in a Black residential areaor to occupy premises therein, it is plain that interms of the regulations there are various categorieswith differing rights attaching to each.

Against this background one must decidewhether the answering affidavit raises a defence torespondent's claim for ejectment. One notes thatappellant's case :is not that he is entitled to remainin occupation, whether by virtue of the regulationsor some other fact. Nowhere is this alleged. He

in effect says: "Even if I have no such right, youhave invoked the wrong remedy". In support of this

contention, as pointed out, it is submitted that the

procedure/ 15. procedure laid down in the regulations for eviction

is the only permissible one. The basis for thisassertion is in turn the allegation that his occu-pation is governed by the regulations. But this isa conclusion of law not a statement of fact. It wasessential for appellant to have alleged that he wasthe holder of one of the permits, to which I have re-ferred,or to have averred some other facts having theeffect of making the regulations applicable to him andto his occupancy of the premises in question. Whathe has alieged is analagous to relying on the protec-tion afforded by section 28 of the Rent Control Act,80 of 1976, without alleging the necessary facts,which,

if proved, would establish that it applied. Mr Unter-

halter,/....

16. halter, who with Mr Black appeared for the appellants,

argued that it was the eviction provisions in the

regulations, and not the regulations as a whole, whichwere being relied. upon and that it therefore mattersnot in what capacity or by what authorisation appellantoccupied the premises. This misses the point. Unlessthe regulations apply, the provisions relating to evic-tion, which are part of them, cannot be relied upon.

If I am incorrect, or inaccurate, in regar-ding the crucial allegation in the answering affidavitas a conclusion of law, it is at best for appellant an

inference, a"secondary fact", with the primary factson which it depends omitted. (Cf. Willcox and Others vCommissioner for Inland Revenue 1960(4) SA 599(AD) at 602). The remarks

of/ 17. of Miller J in Hart v Pinetown Drive-in Cinema (Pty) Ltd 1972(1) SA 464 (D & CLD), though made in reference to a petition, are pertinent. At page 469 C - E it was stressed that:

"where proceedings are brought by way of application,. the petition is not the equi-valent of the declaration in proceedings by way of. action. What might be suffi-cient in a declaration to foil an excep-tion, would not necessarily, in a petition, be sufficient to resist an objection that a case has not been adequately made out. The petition takes the place not only of the declaration but also of the essen-tial evidence which would be led at a trial and if there are absent from the petition such facts as would be necessa-ry for determination of the issue in the petitioner's favour, an objection that it does not support the relief claimed is sound."

Even/

18. Even viewed simply as a pleading the answering affi-

davit falls short. As stated in Odgers' Principlesof Pleading and Practice in Civil Actions in theHigh Court of Justice (22nd Ed.) at page 97:

"Whenever the same legal result can be attained in several different ways it is not sufficient to aver merely that the result has been arrived at, but the facts must be stated showing how and by what means it was attained."

In the instant case it is a legal result alone which

has been "pleaded".

Respondent failed to deny these allega-tions in a replying affidavit. This is of no legal consequence since they do not amount to state-ments of fact disclosing a defence to respondent's

claim./

19.

claim. In this regard at page 886A of the judgment

it is recorded that

"Counsel for applicant concedes that the letting of applicant's premises to respon-dent is governed by these regulations, but he points out that nowhere in para 6 of his answering affidavit does respondent pertinently say on what legal right he relies to occupy the property of appli-cant. He simply says that: 'Such common law rights as the applicant may claim to the said property have therefore been displaced by the said regulations and do not avail the applicant for the relief he seeks.'"

From what is said in this passage, and from the judgment as a whole, it would appear that this concession was made for the purposes of the main argument advanced for respondent in the court below. Mr Unterhalter, who also appeared for the

appellant/....

20. appellant in the application, confirmed this and

said that at no stage was any admission made onbehalf of respondent at that hearing.

Mr Unterhalter sought to meet this diffi-

culty arising fróm the inadequacy of the averments

in the answering affidavit by relying solely onan allegation, which was a statement of fact andwas admitted, namely, that appellant occupied asite in a Black residential area. He submittedthat, whatever the (undisclosed) circumstances whichgave rise to appellant being in occupation, the re-gulations must inevitably apply, and particularlyregulation 15(4) and regulation 47(2). But thesetwo sub-regulations do not confer any general right

to/

21.

to evict or apply for an eviction order in all cir-

cumstances. Each such right is circumscribed by

its terms. The right afforded a superintendent to

apply to a competent court for an order of eject-ment in terms of regulation 15(4)(b) is restrictedto cases in which a permit or certificate has beencancelled and the erstwhile holder has failed tovacate. There is no reference to a cancelled permitor certificate in the answering affidavit. The evic-tion remedy - assuming it to be such - provided forin regulation 47(2) is only available if the facts

justifying a conviction in terms of reg 47(1)(l) arepresent - and one may add only if the occupant issuccessfully prosecuted. In short, if this sub-

regulation/

22.

regulation is to be invoked, the appellant is requiredat the very least to allege facts which establish that he committed an offence in terms of that sub-regulation before the provisions of sub-regulation (2) can apply. The answering affidavit does not allege that he was ever given the necessary order, or that he was not "otherwise authorised to remain in the Black residential area" or that he failed 'without reasonable cause to comply with any such order.

In regard to regulations 47(1)(l) and 47(2), appellant is faced with a further insuperable difficulty. Respondent claimed an order for'the eject-ment of appellant from a particular site. For this reason

Mr Unterhalter /....

23.

Mr Unterhalter initially based his argument on thatportion of regulation 47(1)(f) which relates to an order for removal from a site or dwelling and not on the reference to removal from a Black residential area as a whole. Regulation 47(1)(l) as originally published made no reference to a site or dwelling and in that form accorded with regulation 19(5), which similarly referred only to a Black residential area. The words "site, dwelling or" were inserted where they now appear in regulation 47(1) (l) by Government Notice R2081 published in Government Ga-zette No.3310 of 19 November 1971. For some reason regulation 19(5) was not correspondingly amended. Counsel submitted that by necessary implication a

similar/

24.

similar amendment of regulation 19(5) must be in-ferred. I cannot accept this. An order in terms of regulation 19(5) is the substantive ground on which the offence is based. It is the failure to comply with an order in terms of regulation 19(5) which constitutes the offence. Since this sub-regulation is restricted to an order for the removal from a Black residential area, the amendment of regulation 47(1)(l) cannot extend its scope. In the circumstances counsel for appellant sought to argue that, though regulation 19(5) and therefore regulation 47(1)(l) are restricted to orders relating to removal from a Black residential area, the latter sub-regulation could nevertheless be invoked when

a person/....

25.

a person is in unlawful occupation of a site ordwelling. This submission is plainly unsound, as counsel was constrained to concede, for the simple reason that a person may be in unlawful possession of a site or dwelling though lawfully in the Black residential area concerned. For instance, the holder of an accommodation permit. Moreover an unlawful occupant of premises may be a person exempt from the requirement of obtaining such a permit in terms of regulation 19(6), for example, a member of the South African Railways and Harbours Police. (Incidentally from the papers in the Joseph Jele appeal it appears that he was such an official).

For these reasons I consider that the appel-

lant/

26.

lant failed to make out a case against the grant of

an eviction order in his answering affidavit and that,in any event, as regards regulation 47(1)(2), it has no bearing upon an order for removal from a site or a dwelling.One infers, however, that the main purpose of these appeals was to determine, in the generalpublic interest and for future guidance, whether regulation 15(4), or regulation 47(1)(f) read withregulation 47(2), in circumstances when one or other applies, replaces the vindicatory right to reclaim possession.Counsel for the appellant based his sub-missions in this regard on the well known dictum

of/

27. of Kotzé AJJA in Madrassa Anjuman Islamia v Johannes-

burq Municipality 1917 AD 718 at 727, to wit:

"If it be clear from the language of a Statute that the Legislature, in creating an obligation , has confined the party com-plaining of its non-performance, or suffering from its breach, to a particu-lar remedy, such party is restricted thereto and has no further legal remedy; otherwise the remedy provided by the Statute will be cumulative." (My underlining)

Whether a particular enactment does give rise to such arestriction is a matter of interpretation, oftena difficult one as subsequent decisions on the

subject bear out. In certain of them the correctapproach to this enquiry has been debated. See,for instance, Da Silva & Another v Coutinho 1971(3)SA 123(AD) per Jansen JA at 134G - 135H and per

Muller/ 28Muller AJA 149A - 150H. As pointed out at 149 D

the problem presents itself and difficulties arise:

"in those cases where the statute,in creating a duty, provides for a sanc-tion in the form of a penalty but is silent on the question whether a civil remedy for its breach was intended or not".

It is unnecessary to address this question in anydetail, or to refer to other decisions in whichit is discussed, because the facts of this case aredistinguishable in a critical respect. The two regu-lations in question introduced no new statutory ob-ligation with a correlative right. The duty to vacateproperty unlawfully occupied and the right to exer-cise a rei vindicatio to secure possession were not,one need hardly say, created by the regulations.

The/

29.

The question in issue is therefore not the same as

that considered in the Madrassa case and others

cited by counsel. It is whether these regulatory

remedies, when they apply, have by implication re-placed and extinguished an important fundamental

right and common law remedy which pre-dates the re-gulations - as a ratter of fact by some fourteen

centuries. To answer this guestion affirmativelywould therefore require convincing reasons, whichare not present in this case.

Regulation 15(4)(b) authorises the super-

intendent to apply to a competent court for an orderfor ejectment. This provision is not at variance

or inconsistent with the right of an owner torecover/ 30. recover possession. It is plainly intended to con-

fer on this official - no doubt for reasons of prac-tical convenience - a right which he would otherwisenot have possessed. What is more, its exercise is

left to his discretion. It is inconceivable that,should he decide against taking action, respondent,as owner of the premises,would be precluded fromdoing so.

The grounds for concluding that regulation

47(1)(Z) read with regulation 47(2) does not havesuch effect are equally compelling. It is as incon-ceivable that it could ever have been intended thatthe right to evict a person from a Black residentialarea should be exclusively dependent upon a success-ful prosecution for a contravention of regulation

47(1)(l).

31. 47(1)(2). The differences between criminal pro-

ceedings with provision for an eviction order on

conviction and a civil vindicatory action are too

obvious to require elaboration. (But see in this

regard National Industrial Council of the Leather

Industry of SA v Parshotam & Sons (Pty) Ltd 1984(1)SA 277 (D & CLD) at 280 D - F.) Moreover, should aprosecution lead to a conviction, the court in termsof regulation 47(2) is not obliged to grant an eject-ment order. Should it decide against doing so, itwould follow that the convicted person would thenhave a permanent and entrenched right of occupation

unless new grounds for a further prosecution arose.This could never have been intended. Regulation 47(2)

was,/ 32. was, to my mind, introduced as a practical, expe-

ditious and cost saving-measure to secure the evictionof an unlawful occupier when a person is charged and

successfully prosecuted and the circumstances makethe grant of such an order appropriate. (Section 300of the Criminal Procedure Act, 51 of 1977, for instance,was enacted with the same considerations in mind.)Regulation 47(2) was intended to be additional to,not in substitution of, the civil remedy.

In the result the appeals,on both grounds

dealt with in this judgment,are dismissed with costsincluding any occasioned by the application for

condonation. CORBETT)

HEFER ) JJA -concur

NEDSTADT)

NICHOLAS) - AJA KUMLEBEN, AJATIMOTHY RADEBE (CASE NO 431/86), N B

MTHETHWA

(CASE NO 429/86) & JOSEPH JELE (CASE NO 430/86)

vs EASTERN TVL DEVELOPMENT BOARD

Neem asseblief kennis dat die woorde op bladsy 12 van bogenoemde saak (vierde reël van onder af)

" differing authorisation and in different..." deur die volgende woorde vervang word "... different authorisations and in several ..."

residential/