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[1986] ZASCA 144
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Moosa and Another v Community Development Board (239/85/av) [1986] ZASCA 144; [1990] 1 All SA 1 (A) (28 November 1986)
239/85/AV
IN THE SUPREME COURT OF SOUTH_AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
IASA MOOSA
and
MOHAMED SAYED CASSIM
Appellants
AND
THE COMMUNITY DEVELOPMENT BOARD
Respondent
CORAM
: JANSEN, HOEXTER,GROSSKOPF, JJA GALGUT et NICHOLAS,AJJA
HEARD
: 18 September 1986
DELIVERED: 28 November 1986
JUDGMENT
NICHOLAS, AJA
This is an appeal against an order made by VAN DER
WALT
2
WALT J on an application brought in the Witwatersrand Local
Division. The
applicant was the COMMUNITY DEVELOPMENT :
BOARD. The respondent was AHMED MOHAMED CASSIM
who, when the application
was launched, was in occupation of
the dwelling known as 26 B Twentieth
Street, Pageyiew,
Johannesburg. CASSIM died before the application was
heard
and, apparently by consent, his executors testamentary were
substituted as the resp:ondent. VAN DER HALT J granted an
order as prayed, namely -
"Vir die uitsetting uit die woning bekend as Twintigstestraat 26B, Pageview,
Johannes-burg, geleë te Erf 301 (voorheen 621)
Pageview, Johannesburg, van
die Respondent en alle ander persone wat die genoemde eiendom deur of namens hom
okkupeer."
The
3.
The Court
a quo
refused an application for
leave to appeal, but leave was subsequently granted by this Court in terms of s.
20(4)(b) of Act No 59
of 1959.
In this judgment I shall, for the sake of
conve-nience, refer to AHMED MOHAMED CASSIM and to the present appellants as
"CASSIM".
The Community Development Board ("the Board") is an autonomous
statutory body established under s.2 of the
Community Development Act
, No
3 of 1966 ("the Act"). Until September 1984 the Minister of Community
Development was responsible for the administration of the
Act, and the powers of
the Board were exercisable subject to his approval. With effect from 17
September 1984, however, the State
President,
acting
4
acting in terms of s. 26 of the Republic of South
Africa Constitution Act, No 110 of 1983 ("the Constitution Act")
assigned the
powers, duties and functions entrusted to the
Minister of Community
Development in terms of certain Acts
and portions of Acts "relating to his responsibility for the
administration of local government, housing and works for the
White population group", to the Minister of Local Government,
Housing and Works (Whites). One of the Acts concerned was'
"(15) The Community Development Act, 1966 (Act 3 of 1966), excluding sections
2,3,4,5,6 7,11 and 12; the administration thereof within
an area which has, by
way of a general law, been declared an area for use by the White population
group and in so far as the execution
thereof has no consequence outside of such
an area."
At
5
At the same time the State President assigned the
powers, duties and functions of the Minister of Community
Development in terms of certain Acts and portions of Acts
"relating to his responsibility for the administration of
housing and
works relating to the Indian population group"
to the Minister of
Locál Government, Housing and Agriculture
(Indians). One of the Acts concerned was
"(5) The Community Development Act, 1966 (Act 3 of 1966), excluding sections
2,3,4,5,6 7,11 and 12; the administration thereof within
an area which has, by
way of a general law, been declared an area for use by the Indian population
group and in so far as the execution
thereof has no conseqúence outside
of such an area." .
A similar assignment was made in respect of the administra-
tion
6
tion of housing and works for the Coloured population
group.
MUSER, the deponent to the Board's founding affidavit, is the regional
representative of the Department of Admini-stration for White
Own Affairs, which
falls under the Depart-ment of Local Government, Housing and Works (Whites)
and
which, he alleged, is responsible for the handling of all matters
affecting Pageview, in which the premises concerned are situated.
He said that
he was duly authorized to repre-sent the Board in these proceedings.
There was little dispute as to the material facts, most of which were deposed
to by one DU TOIT in an affidavit supporting that of
MUSER.
DU TOIT
7 DU TOIT was from 1 January 1984 to 30 September 1984,
regional representative, Johannesburg, of the Department of Community
Development.
CASSIM had, with effect from 1 November 1979, occupied the premises
concerned under a lease between the Board andCASSIM. It was provided
in clause 3
that "the lease is on a monthly basis and ... may be termi-nated by either party
on one month's written notice. Such
notice to take effect and terminate on the
first and last day respectively of the particular month." DU TOIT said that he
was "a
standing committee(one man)" appointed in terms of s. 8(1) of the
Community Development Act
, No3 of 1966. This provides:
"8.-(l) The Minister may appoint one or more
standing
8
standing committees, consisting of one or
more members of the board or of one or more
officers in the Department or of one or more
such members and one or more such officers,
to carry out, subject to such conditions
as he may determine, such of the functions
of the board as he may, after consultation
with the board, specify, and any such stan-
ding committee may for the proper carrying
out of such functions perform all the duties
imposed upon the board in respect of the
carrying out of such functions: Pro-
vided that the board shall not be divested
of any function which has so been specified
to be carried out by a committee."
He annexed to his affidavit copies of the appointments con-
cerned, both of which were dated 9 September 1980. One reads:
"AANSTELLING VAN EN DELEGASIE VAN BEVOEGDHEDE AAN VASTEKOMITEES (EENMAN)
INGESTEL INGEVOLGE ARTIKEL 8 (1) VAN DIE WET OP GEMEENSKAPSONTWIKKELING,
NO 3
VAN
1966.
Kragtens die bevoegdhede my verleen by artikel 8(1) van die Wet op
Gemeenskapsontwikkeling No. 3 van 1966, stel ek STEPHANUS JACOBUS
MARAIS
STEYN,
Minister
9
Minister van Gemeenskapsbou, beamptes met die range van
Streekverteenwoordiger, Ondersekretaris en hoer range in streekkantore van
die
Departement van Ge-meenskapsbou, as Vastekomitees (Eenman) aan met bevoegdhede
om namens die Gemeenskapsontwikkelings-raad besluite
te neem in verband met die
beëindiging van huurooreenkomste of okkupasie (waar 'n huuroor-eenkoms nie
bestaan nie) ten opsigte
van Gemeenskaps-ontwikkelingsraad-eiendomme en die
betreding en be-sitname van Gemeenskapsontwikkellingsraad-eienomme kragtens
artikel
18(1) van die Wet op Gemeenskaps-ontwikkeling, No. 3 van 1966. (Geteken
S.J.M. Steyn"
The other appointment is substantially.in similar terms, save that
the
following appears in the place of the passage I have side-
lined:
"... met bevoegdhede om kennisgewinge wat voort-spruit uit besluite in
verband met die beëindiging van huurooreenkomste of okkupasie
(waar 'n
huuroor-eenkoms nie bestaan nie) ten opsigte van
Gemeenskaps-ohtwikkelingsraad-eiendomme en die betreding en be- sitname
van
Gemeenskapsontwikkelingsraad-eiendomme kragtens artikel 18(1) van die Wet op
Gemeenskaps-ontwikkeling No. 3 van 1966, wat namens
die Gemeen-
skapsont..
10 skapsontwikkelingsraad geneem is, te onderteken."
Acting as such committee, DU TOIT decided on behalf of the Board to terminate
CASSIM's lease,and arising out of that decision, to give notice of such
termination. On 31 August 1984, he signed a notice addressed
to CASSIM that "the
said lease will terminate and expire on 30th September 1984." The notice was
served on CASSIM personally on 31
August 1984. Notwithstanding the said notice,
CASSIM remained in occupation of the property and was still in occupation
thereof at
the time of his death.
The defences raised in CASSIM's answering affidavit did not go to the merits
of the application, but were technical in nature. They
included the
following:
(a) He .....
11
(a) He disputed the authority of MUSER to act on behalf of the Board.
(b) He alleged that the notice terminating the lease was
invalid.
(c)
He
denied
"... for the reasons that follow, that all
matters pertaining to pageview may in law be handled by the Department of White
Own Affairs
and (averred) that in law the matter of housing comprised within
community development as this pertains to Pageview is to be handled
by the
Administration for Indian Own Affairs and that as the representative of the
Administration for White Own Affairs the deponent
may not be granted the relief
that he seeks in his Notice of Motion."
There were other contentions raised but in
the
12
the view which I take of the matter, it is
unnecessary to set
them out or to deal with them.
(a)
MUSER's AUTHORITY
In terms of s. 2(1) of the Act, the Board is
"a body corporate capable of suing and being sued in its corporate name and
of performing all such acts as are neces-sary for or incidental
to the exercise
of its powers and the performance of its functions and duties under this
Act."
In his answering affidavit, CASSIM denied that MUSER was
authorized to act on behalf of the Soard in this matter,
inasmuch as he attached no resolution of the Board confir-
ming his authority. In reply MUSER said that he was
authorized by virtue of a ministerial delegation, but stated
that in any event the Board had ratified and confirmed his
conduct.
13
conduct in bringing the application, and had authorized him to proceed
therewith. He annexed to his replying affidavit a copy of the
document recording
the ratification and autho-rization.
Relyinq on the case of
South African
Milling Co
.
(Pty) Ltd v Reddy
, 1980(3) SA 431 (S E C L D), CASSIM's
counsel contended in the Court
a quo
that the Board could not, after
objection had been taken to the authority of a person purporting to act on
behalf of a company, amend
its founding affidavit by relying on a ratification
that did not exist when the objection of
non locus standi
was taken. VAN
DER WALT J, however, agreed with the decision in
Baeck & Co (SA) (Pty)
Ltd v van Zummeren & Another
, 1982(2) SA 112 (W)
(in
4
(in which GOLDSTONE J declined to follow the earlier case) and held that MUSER
was in fact authorized to act on behalf of the Board.
In this Court Mr. Unterhalter, who appeared on behalf of CASSIM, conceded,
correctly in my opinion, that he could not urge that the
learned judge's
conclusion was wrong. The objection to MUSER's authority has accordingly fallen
away. (b)
INVALIDITY OF NOTICE OF TERMINATION OF LEASE
Mr.
Unterhalter's submission, as I understand it, was that the only action which
could be taken pursuant to a notice by a "standing
committe (one man)"
terminating a lease, was extra-judicial action in terms of s. 18(1) of the
Act
15
Act. This provides:
"18.-(1) If a tenant or other occupier of immovable property belonging to the
board fails -
(a) . ..
(b) to vacate such property on or before
the date on
which he has lawfully
been required by the board to do so,
the board may, after having given seven days' notice (in the case of any such
property occupied for residential pur-poses), or thirty
days' notice (in the
case of any such property occupied for any other purpose), by letter delivered
either to such tenant or other
occupier personally or to some adult person
living on the property, or, if such letter cannot be so delivered, by letter
affixed
to the outer or principal door of any building erected on such property,
or by registered letter addressed to such tenant or occupier
at the address
where the property is situated, without having obtained any judgment or order of
court, by resolution declare that
such property may be entered upon and
taken
possession
16
possession of." I do not think that there is any merit in the point. The
legislature did not, in providing a summary remedy in s.
18(1), exclude
proceedings for ejectment in a court of law. Under the ministerial appointments
the committee is autho-rized to perform
a number of functions: to take decisions
in connection with termination of leases or occupation, and in connection with
entry upon
and taking possession of Board
property; and to sign notices arising out of decisions in connection with the
termination of leases or occupation, and the entry upon
and taking possession of
Board properties. Each of these functions is separate and distinct. If the
giving of notice falls within
the scope of the ministerial
authority
17
authority, then it is a valid notice, and it
matters not
whether or not it is followed by a notice under s. 18(1).
The
notice to CASSIM was within the authority, and that con-
cludes the matter.
Upon the expiry of the notice, the
Board was entitled, if it so choose, to take steps by way of
legal proceedings to obtain possession of the property.
(c)
MATTER IS OWN APFAIRS OF INDIAN POPULATION GROUP
In summary, CASSIM's reasons for the third conten-
tion are these:
CASSIM is a member of the Indian group in terms of the
Population
Registration Act
, 1950.
He has resided in Pageview since August 1960.
The whole of Pageview was in 1960, and for many years before that, inhabited
by members of the Indian group.
Many
18
Many members of the Indian group have since been removed from
the area, but about 67 families (comprising some 250 people) still live
there.
CASSIM's removal from his home in Pageview would
interfere with his way of life and the pursuit
by him of his culture, traditions and customs as
an Indian; and his removal and that of other
members of the Indian group presently residing
there would interfere with their established way
of life in respect of the observance of their
religion, the education of their children, the
conduct of their communal activities, and their
social intercourse generally.
It was concluded that the matter of such removal therefore
specially or
differentially affects the Psgeview Indian
community and, in terms of s.
14(1) of the Constitution Act,
is an own affair in relation to such group. By reason of
the Board's denial, in effect, that this is such an own af-
fair, the question has arisen whether the matter is an own
affair
19
affair of the Indian population group, and that question
falls to be decided by the State President in terms of s.
16(l)(a)(of the Constitution Act, which provides-
"l6.-(l)(a) Any question arising in the
application of this Act as to whether
any particular matters are own affairs
of a population group shall be decided
by the State President, who shall do so
in such manner that the governmental
institutions serving the interest of
such population group are not by the
decision enabled to affect the interests
of any other population group, irrespec-
tive of whether or not it is defined as
a
population group in this Act."
It was accordingly submitted by Mr. Unterhalter that
if there was a question whether the matter was own affairs
of the Indian population group, that question had to be decided
by the State President and that until such decision had been
made, no order for ejectment could be granted.
S
19 A
It is not clear to me what bearing all this has on the right
of an autonomous statutory body to claim the ejectment of its lessee
from the
leased premises after the lease has terminated.i Nevertheless I shall examine
the question whether CASSIM's ejectment can
be regarded as own affairs of the
Indian population group.
S
20
S. 14(1) Provides:
"14.-(1) matters which are specially or dif-
ferentially affect a population group in
relation to the maintenance of its iden-
tity and the upholding and furtherance of
its way of life, culture, traditions and
customs, are, subject to the provision of
section 16, own affairs in relation to
such population group.
(2) Matters coming within the classes of
subjects described in Schedule 1, are,
subject to the provisions of section 16,
own affairs in relation to each population
group."
In my opinion, the question whether CASSIM's eviction is own
affairs of the Indian population group must be determined, not with reference
to
s. 14, but with reference to s. 98 of the Constitution Act.
The application for CASSIM's ejectment is one brought
by
21
by the Board in the exercise of its powers under the
Com-
munity Development Act. Ss. (1) of s. 98 of the Constitu-
tion Act
provides:
"98-(l) Any Act of Parliament or other law which at the commencement of this
Act is ad-ministered by a Minister of the Republic or
in a department of State
controlled by such a Minister and which relates to a matter referred to in
section 14 shall,
notwith
-
standing the fact that it relates to such
matter
, be regarded as a general law for the purposes of this Act until, and
except in so far as, its administration is assigned under section
26 to a
Minister of a depart-ment of State for own affairs of a popu-lation group." (My
emphasis)
The Community Development Act is a law which at the com-
mencement of the Constitution Act was administered by a
Minister of the Republic, and it related to matters referred
to
22
to in s. 14 of that Act. The Community Development Act must
accordingly be regarded, subject to the exceptiansat the end of the subsection,
as a general law for the purposes of the Constitution Act. (In terms of.s.100
"'
general law
' means any law dealing with general affairs" and
"'
general affairs
' means matters referred to in section 15". In terms of
s. 15 general affairs are matters which are not own affairs of the pcpulation
group in terms of s. 14).
As pointed out above, the State President didmake assignments under s. 26 of
the Constitution Act. The effect was that the administration
of the Community
Development Act within the area of Pageview (which had been declared an area for
use by the White population group)
was assigned to
the
23 the Minister of Local government, Housing and Works
(Whites).
The Board annexed to its replying affidavits copies of
proclamations duly published in the Government Gazette, which defined with
reference to "General Plan 626/94" group areas for occupation and ownership by
members of the White group. A copy of an extract from
General Plan 626/94 was
annexed as Annexure "G". From the Proclamation and Annexure "G" it is clear that
Pageview, including the
property which was leased to CASSIM, is such a group
area.
It was objected on behalf of CASSIM, however, that Annexure "G" was not
admissible in evidence because there had not been compliance
with s. 18(1) of
the Civil Proceed-ings Evidence Act, No 25 of 1965, which provides -
"18
24
"18.(1) Whenever any book or other document
is of such a public nature as to be ad-
missible in evidence on its mere produc-
tion from proper custody, any copy thereof
or extract therefrom proved to be an
examined copy or extract or purporting
to be signed and certified as a true copy
or extract by the officer to whose cus-
tody the original is entrusted, shall be
admissible in evidence."
In my opinion this objection is wide of the mark. S. 5 of
the Civil Proceedings Evidence Act provides that
"... Judicial notic shall be taken of any law or government notice, or of any
other matter. which has been published in the
Gazette
..."
General Plan 626/94 was incorporated by reference in the
relevant proclamations, and the Court was accordingly re-quired to.take
judicial notice of it, even though no copy was produced in
evidence. For the
convenience of the Court
the
25
the Board attached Annexure "G", whose
correctness was not
challenged by CASSIM, and in consequence the Court was
en-
titled to assume that it was common cause that it accorded
with the
General Plan, which could, had any dispute been
raised, have been referred to
by the Court itself.
Then it was argued that the relevant assignment by the State President to the
Minister of Lccal Government, Housing and Works (Whites)
was only "in so far as
the exe-cution thereof has no consequence outside of such area"; that the
eviction of CASSIM from the property
would have a consequence outside the area
of Pageview as he and his family would have to be re-housed elsewhere; and that
ac-cordingly
the particular matters arising in the present ap-
plication ...
26 plication do not fall within the purview of the
assignment. Even if that argument is valid, it does not support a con-clusion
that
CASSIM's ejectment is own affairs of the Indian population group. The
consequence would only be that the Community Development Act
would in terms of
s. 98(1), be re-garded so far as its administration in the area of Pageview is
concerned, as a general law for
the purposes of the Constitution Act.
I am accordingly of the opinion that there is no basis for contending that
CASSIM's eviction is own affairs of the Indian population
group. If any guestion
in that regard can be said to arise, it is not "a question arising in the
application of" the Constitution
Act. It has been
raised
27 raised by CASSIM in connection with an application for
ejectment by the Board acting under a different Act. There is therefore
no
occasion for a decision by the State Presi-dent under s. 16(1)(a) of the
Constitution Act.
There remains a final point to be dealt with, which was
raised for the first time on appeal, namely, that by reason of the State
President's
assignment on 15 September . 1984, the powers of the Board to
institute the proceedings for ejectment were taken away.
In terms of s. 15(2)(b)(iv) of the Act the Board has power, with the approval
of the Minister given either generally, or in a particular
case, to let property
belong-ing to the Board. In terms of s. 15(2(i) the Board has power -
"(i)
28
"(i) generally to perform all such acts as in the opinion of the board are
necessary for or incidental to the attainment of the objects
for which the board
is established."
The institution of legal proceedings to obtain possession of
the Board's
property, the lease of which has terminated,
plainly falls within that
general power.
The mere fact of the assignment of the administra-tion of the Act from the
department of one Minister of State to that of another
cannot
ipso facto
affect the powers of a Board established under that Act.
This point too is without substance.
There was no answer to the Board's evidence that it leased the premises
concerned to CASSIM, that the lease had
been
29
been terminated on notice duly given and that CASSIM
had thereafter unlawfully remained in occupation.
The appeal is accordingly dismissed with costs, including the costs of two
counsel.
H C NICHOLAS, AJA JANSEN, JA
HOEXTER, JA
GROSSKOPF, JA Concur
GALGUT, AJA