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1985
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[1985] ZASCA 36
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Durban (Ningizuma) Community Council and Another v Minister of Co- Operation and Development (484/83) [1985] ZASCA 36 (24 May 1985)
56/85
484/83 N v H
DURBAN (NINGI2UMA) COMMUNITY
C
OUNCIL 1st Appellant
EDWIN THEMBA NGO
BENI 2nd Appellant
and
THE MINISTER OF CO-OPERATION AND DEVELOPMENT
1st
Respondent
POR
T
NATAL ADMIN
I
STRATION B
OARD 2nd
Respondent
MILLER, JA :-
484/83
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
DURBAN (NINGIZUMA) COMMUN
I
TY COUNCIL
First
Appellant
EDWIN THEMBA NGOBENI
Second Appellant
and
THE
MINISTER OF CO-OPERATION AND
DE
VELOPMENT
First Respondent
PORT NATAL ADMINISTRATION BOARD
Second Respondent
CORAM
: MILLER, TRENGOVE, CILLIé, VAN HEERDEN, JJA,
et NICHOLAS, AJA
HEARD
: 7 MAY 1985
DELIVERED
: 24 MAY
1985
JUDGMENT
MILLER, JA :-
By Government Notice No 823 published in
Gazette No 8667 of 22 April 1983 the first respondent
promulgated /
2 promulgated amendments to the then existing regulations
"relating to tariffs of fees and charges for the Black residential areas
situate
at Durban" and elsewhere. The amendments would serve to increase the rentals
payable for occupation of dwellings falling
within the area of the Durban
(Ningizuma) Community Council, the first appellant herein. (The second appellant
is an interested resident
in the area.) The Government Notice in question
revealed that the enactments relied upon by the first respondent as the sources
of
his power to make and promul= gate such regulations were sec 2261)(b) of the
Black Affairs Administration Act, No 45 of 1971 ("the
1971 Act") read with sec
ll(l)(e)(i)(aa) of that Act and with sec 38(3) of the Blacks (Urban Areas)
Consolidation act, No 25 of
1945 /
3 1945 ("the 1945 Act"). The amendments to the regulations were
said in the Government Notice to have been made "after consultation
with the
Administration Board of the Port Natal Area". That board is the second
respondent in this appeal.
The appellants applied in the Durban and Coast Local Division of the Supreme
Court, upon notice of motion, for an order declaring
that Government Notice No
823, "in so far as it purports to increase rentals" was "null and void and of no
force and effect". The
basis of the application was that consequent upon the
implementation of the provisions of the Community Councils Act, No 125 of 1977
(
"the 1977 Act") in terms of which the first appellant was established, not the
first respondent but the first appellan
was /
4
was vested with the power of making regulations in relation to rentals,
fees and other charges and that the amendments in question
were therefore
ineffectual for want of power in the first respondent to make them. A rule nisi
was issued, upon the return date of
which the respondents opposed the
application. The Court
a qu
o, LEON, J, upheld the respondent's
contentions in regard to the seat of the relevant powers and accordingly set
aside the rule nisi.
Leave was granted by the Court a quo to appeal to this
Court.
The judgment of the Court
a quo
, in which are quoted the statutory
provisions referred to in the
Government Notice, is reported at 1984(2) SA 222. It will be convenient, and
will facilitate the reading of
this /
5 this judgment, to reproduce that part of the judgment
a
quo
, at pp 224 - 5:-
"Section 38(3)(o) of the Blacks (urban Areas) Consolidation Act 25 of 1945 reads
as follows:
'An urban local authority may, by resolution passed after at least seven days'
notice thereof
at a meeting make regulations not incon=
sistent with this Act, as to all or any of
the
following matters
(o) tariffs of fees and charges (with due regard to the cost of providing any
accommodation for educational purposes in the interests
of the residents of a
Black residential area) for rent, water, electri= city, sanitary, health,
medical and other services or any
consolidations of such services and the
collection and recovery of such fees and charges.' Section 11 of the Black
Affairs Administration
Act 45 of 1971 grants powers to an administration board
established in terms of s 2 of that Act. Section ll(l)(e)(i)(aa) reads as
follows:
'The object of a board is to administer within its administration area
matters affecting Blacks so as to give effect to the purposes
of this Act,
and to /
6
and to that end a board shall, in addition to any other powers vested in it
by or under this Act or by any regulation in force, in
terms of
s 22
(e) within its administration area be vested and charged with
-
(i) all the rights, powers, functions, duties and obligations -(aa) of an urban
local authority in
terms of the Blacks (Urban Areas)
Consolidation act 25 of 1945 ...;' Section 22 of the Black Affairs
Administration Act of 3 971 provides:
'Notwithstanding the provisions of
sll(l)(e)(i)(aa)
(a) the powers conferred thereby on a board shall not include the power to make
regular tions under any 1 aw mentioned or contempla=
ted therein:
(b) any such power which but for the provisions of para (a) would have been
exercisable by a board, shall be vested in the Minister,
and may be exercised by
him either general or in relation to the administration area o any particular
board or part of such area.'"
It is /
7 It is clear that
upon the coming into operation of the 1971 Act the newly created boards became
vested with powers such as urban
local authorities had been empowered to
exercise in the areas concerned, but that a sharp distinction was drawn between
administrative
powers and legislative powers in the sense of making regulations.
The latter powers were specifically excluded from the powers vested
in the
boards and were vested instead in the Minister, who could exercise them
generally or in relation to the areas of boards or
parts of such areas. (Sec
22(1)(a) and (b) of the 1971 Act.) In
Jacobs v Minister of Black
Administration and Development and Others
1978(1) SA 741 (NCD) at p 744, VAN
DEN HEEVER, J, undertook a brief historical survey, up to and including the 1971
Act,
of /
8
of legislation in this field. I quote from the learned
Judge's conclusion;
"The pattern that seems to emerge is that there is progressively a divorce
between legislative and administrative government as regards
Blacks, previously
conjoined and both exercised by the urban local
authorities Now management boards
are to be purely administrative bodies. Act 45 of 1971 takes this development
further."
The Community Councils Act, was clearly
designed
inter alia
to vest in the councils
created in terms of
sec 2 thereof, substantially those administrative functions
and powers which urban local authorities had exercised in
terms of the
1945 Act. This is evidenced by several of
the provisions of the 1977 Act, for example, sec 1(2),
which provides that "this Act" and the Urban Areas Act are
to be /
9
to be construed "as if they formed one Act", and
sec 5(1)(m), which provides that the council
"shall have, with regard to any power or duty which, immediately before the date
on which such power was vested in it or it was charged
with such duty was
exercised or performed by an administration board, all the rights, powers,
functions, duties and obliga= tions
of an urban local authority in terms of the
laws mentioned in section 11(1)(e) of the Black Affairs Administration Act, 1971
(Act
No 45 of 1971)."
And sub-sec (2) of sec 5
provides that "rights, powers,
functions, duties and obligations vested in a community
council by virtue of the provisions of sub-section (l)(m)
shall subject to the provisions of this Act devolve upon
such council to the exclusion of the administration board
or any other urban local authority". The specific, as
distinct from the general descriptions of the functions,
duties /
10 duties and powers of the council are to be found in
sub-sec
(1) of sec 5 of the 1977 Act. Of the many functions, duties
and powers
there described those contained in sub-secs (i)
and (ii) of sec 5(1)(a) are
of particular importance in
this case and, in fact, form the subject of the
true issue
in the case. They read as follows:
"5.
Powers and Duties of a Community Council
(i) A Community Council
-
(a) shall in respect of its area and
subject to the Minister's directions exercise such powers and perform such
duties in respect of those of the undermentioned matters
as may be vested in it
and, with which it may be charged by the Minister, after consultation with the
administration board concerned
and such community council: (i) the allocation
and administration of the letting of accommodation to single persons or to
persons
as if they were single; (ii) the allocation and administration of the
letting of dwellings, buildings and other structures."
The /
11
The powers described in these two sub-secs ((i) and (ii)))were amongst those
duly vested by the Minister in the first appellant. The
contention on the
appellant's behalf is that properly construed in their full context, these
powers include the power to determine
rentals and other charges; the words more
particularly
relied upon for this conclusion are "the administration of the letting of
dwellings" in (ii) above.
There was a dispute on the papers on the question whether the proclamation of
R823 was made without prior consultation with the first
appellant and no doubt
because of that the parties agreed at the hearing in the Court
a quo
that
the Court be asked to decide "only a single issue"; that issue, as formulated in
the judgment,
together /
12
together with "the agreed consequences", reads as follows:
"The issue to be decided is whether or not the Minister's vesting of the power
to allocate and administer the letting included the
power to fix rentals and
charges for other services. If the answer is in the affirmative, the application
must succeed. If the answer
is in the negative, the application must
fail."
The learned Judge's formulation of the agreed
single issue and the consequences of the findings thereon, was not challenged
before
us and therefore the single issue before this Court is whether the Court
a quo
was correct in answering the posed question "in the negative",
LEON, J, observed (at p 226) with reference to the Shorter Oxford English
Dictionary, that the "ordinary meanings of the verb administer'
and the noun
admini= stration embrace the activities of management, carrying
on /
13
on and acting in relation to the management of affairs ..."
Other
shades of meaning but with a similar general conno=
tation are: performance
of a service (in a capacity),
performance of duties; management, direction,
superintend
dence. (Webster's Third New International
Dictionary.)
Ordinarily, one who was charged with the
"administration",
and no more, of a complex of dwellings which were
available
for letting would know that he was expected to manage the
business or
enterprise. It would be a bold manager so
charged who would think that he could take it upon himself
to fix and from time to time to alter the rentals and other
charges.
Such relatively limited meaning and connotation of
"administration" in the context, viz., that it does not include the
power /
14 power of deciding upon and proclaiming rentals and other
charges, is strongly supported by the background of the legislation, which
it is
proper to take into account for purposes of interpretation. As I have shown
above, the 1971 Act, after vesting in a board the
whole body of "the rights,
powers, functions, duties and obligations" of an urban local authority took care
to detach therefrom the
power to make regulations under any law mentioned or
contemplated therein. A similar but not identical, severance of legislative
powers from administrative powers and functions is to be seen in sec 5(b) of the
1977 Act, which relates directly to powers vested
in a Council in terms of
sub-sec (i). It is noteworthy, too, that included in the list of
powers /
15 powers and duties in sec 5 there are items in respect of
which the Council is directly empowered to levy charges. They are sec
5(l)(a)(vii) and sec 5(1)(j). The first relates to control over the keeping of
dogs and the im= position of levies on the keeping
of dogs; the second, to
levies for specific services or purposes on persons residing in the area. I
mention these provisions in order
to show that when it was intended to vest in
the Council the power to levy charges such intention was given clear-and direct
expression.
When considering the meaning and scope of a power simply of "administration"
in the context of sec 5(1)(a)(ii) of the 1977 Act, it
is necessary to bear in
mind that the fixing of rentals for dwellings and decisions
thereafter /
16
thereafter to increase or decrease existing rentals or charges usually
involve considerations of both finance and policy. If the grantor
of the power
to administer the concern, whether such grantor were a private company, or an
institution, or a government department,
desired and intended that not it but
its appointed administrator should make such decisions in respect of finance and
policy and
to give legal effect to them, it is highly unlikely that it would
have used the word "administration" to convey such purpose and
intent.
It appears to me, therefore, that the grant of the power and duty of
administration in sec 5(1)(a) would not embrace the power to
decide upon and to
give
legal /
17 legal effect to alterations in the existing rentals and other
charges unless there were strong indications in the Act considered
against its
background, or in other circumstances which it was proper to take into account,
that the word "administration" was not
used in its ordinary and usual sense. I
do not find such indications.
I have not overlooked the agreement between
the
first appelant and second respondent as to the
manner in which the
powers conferred on the first appellant should be exercised.
That
agreement is described at p 225 of the judgment
a quo
; I do not think
it necessary to reproduce it here.
It is sufficient to say that that agreement, which carried
the approval of
the Minister, visualized that the first
appellant might from time to time, upon request or other=
wise /
18
wise, consider adjustments to rentals and other charges. Mr Gordon
tentatively suggested that this might be helpful in the interpretation
of sec
5(1). I am satisfied that it is not. It shows no more than that the appellants
reached an agreement with the approval of the
Minister. Such an agreement could
have no bearing on sec 5(1) of the 1971 Act; only Parliament could amend the
Act.
Finally, Mr Gordon, in the course of his argument, laid stress upon sec
5(1)(m) of the 1977 Act, the terms of which have been set
out above. Reading
this provision together with sec 38(3)(o) of the 1945 Act, referred to earlier
herein, and secs 22(1) and ll(l)(e)(i)
of the 1971 Act, he contended that the
legis= lator's purpose was that the council should have all the
powers /
19
powers which an urban authority had, including the
power to make regulations regarding rentals and other
matters. That being so, he said, the Minister was
denuded of the powers granted to him by sec 22(1)(b) of
the 1971 Act. For the resolution of such a contention
it would be necessary to carry out a detailed investigation
of all the relevant legislation in order to determine
whether the ultimate effect of the several enactments was,
indeed, to relieve the Minister of all or some of his
powers. This is an issue which goes far beyond and is
fundamentally different from the agreed "sole issue",
the resolution of which the parties agreed would be
decisive of the case. The Court a quo correctly
decided the sole issue placed before it for decision and
this appeal must therefore fail.
The /
20
The appeal is dismissed with costs, which shall include costs
in respect of two Counsel.
S MILLER
JUDGE OF APPEAL
TRENGOVE,, JA )
CILLIé, JA ) CONCUR
VAN HEERDEN )
NICHOLAS, AJA )