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[1985] ZASCA 142
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Avenue Delicatessen and Others v Natal Technikon (187/85) [1985] ZASCA 142; [1986] 2 All SA 1 (A) (29 November 1985)
Case No 187/85
WHN
AVENUE DELICATESSEN
First Appellant
SCALA CINEMA
Second Appellant
SCALA CAFE
Third Appellant
SCARWICK CENTRE (PTY) LTD
Fourth Appellant
SCALA GROCERIES
Fifth Appellant
and
NATAL TECHNIKON
Respondent
JOUBERT
JA
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
AVENUE DELICATESSEN
First Appellant
SCALA CINEMA
Second Appellant
SCALA CAFE
Third Appellant
SCARWICK CENTRE (PTY) LTD
Fourth Appellant
SCALA GROCERIES
Fifth Appellant
and
NATAL TECHNIKON
Respondent
CORAM
: RABIE CJ, JOUBERT, VAN HEERDEN, GROSSKOPF JJA et GALGUT
AJA
Heard
: 12 November 1985 Delivered: 28
November
JUDGMENT
JOUBERT
/The
2
The respondent is the owner of certain business premises in
Warwick Avenue, Durban, occupied by the appellants as separate tenants.
On 27
July 1983 the respondent gave separate notices in writing to them to vacate
their respective premises by not later than 30
September 1983. It was common
cause that the notices were not given in terms of section 27 or 29 of the Rent
Control Act 80 of 1976
(the "Rent Control Act"). On 17 February 1984 the
respondent commenced separate ejectment proceedings on notice of motion in the
Durban & Coast Local Division against the appellants on the ground that the
premises which had previously been
/subject
3
subject to the provisions of the Rent Control Act were no
longer subject thereto. The appellants resisted the applications by claiming
the
protection of the Rent Control Act. When the respondent's application against
the first appellant was heard by WILSON J it was
agreed between the parties that
the order to be made in that application would also apply to the applications
against the other appellants.
On 2 August 1984 WILSON J refused the respondent's
application against the appellants. The respondent's appeal to the Natal
Provincial
Division against the judgment and orders of WILSON J was successful.
The
/Natal
4
Natal Provincial Division granted the application of the
respondent against the first appellant and made similar orders in the
applications
against the other appellants. The Court a quo refused to grant the
appellants leave to appeal to this Court against the whole of
its judgment and
orders but such leave was thereafter granted to them pursuant to a petition
therefor addressed to the Chief Justice.
The crucial question is whether
the
appellants are entitled to rely on
the protection of.
the Rent Control Act. The essential facts and
events
giving rise to the dispute between the parties may be
briefly
summarized as follows.
/The
5
The Rents Act 43 of 1950 (the "Rents Act") as originally
enacted applied to dwellings or business premises occupied
before
21
October 1949 (sec 33(1)(f)), that is to say, to what may conveniently be
designated as pre-1949 premises. The premises in question
were first occupied
after
20 October 1949 and before 1 June 1966, that is to say, they are
post-1949 business premises. It followed that the provisions of
the Rents Act as
originally enacted did not apply to them as post-1949 business premises. The
fact that the relevant Minister, acting
in terms of sec 4(1) of the Rents Act,
established rent boards for the area in which the premises in question
/were
6
were situated merely affected pre-1949 premises by bringing
them within the purview of the Rents Act. The existence or dissolution
of such
rent boards did not affect post-1949 premises such as the premises in question
since they were not subject to the provisions
of the Rents Act. By Government
Notice 2218/1968 dated 6 December 1968, the relevant Minister, acting in terms
of sec 4(2)(a) of
the Rents Act dissolved certain rent hoards and in terms of
sec 4(1) of the said Act established the Regional Rent Board of the North
Coast
for the area mentioned in paragraph (b) of the Schedule thereto. I may add in
parenthesis that the premises in question were
situated
/in
7
in the said area. In paragraph (d) of the said Government
Notice he dissolved the Regional Rent Board of the North Coast in so far
as its
jurisdiction in the said area over business premises (with certain exceptions)
was concerned. The effect thereof was that
the Regional Rent Board of the North
Coast had jurisdiction over pre-1949 premises other than business premises (with
certain exceptions)
in the area in which the respondent's business premises were
situated. By Government Notice 459/1969 dated 28 March 1969, the relevant
Minister acting in terms of sec 4(2)(b) of the Rents Act withdrew para= graph
(d) of Government Notice 2218/1968 in respect of
/the
8
the area for which the Regional Rent Board of the North
Coast had been constituted as described in paragraph (a) & (b)
of the Schedule thereof. The effect of the withdrawal
was that the
jurisdiction of the Regional Rent Board of
the North Coast revived in respect
of business premises
in certain areas which included the area in which the
premises of the respondent were situated.
A far-reaching change to the Rents Act was brought about by sec 9(e) of the
Rents Amendment Act 54 of 1966 which repealed subsections
(1)
bis
, (1)
ter
and (1)
quat
of sec 33 and replaced them by subsections (1A)
and (1B) to authorise the State President to ex= tend the operation of the Rents
Act, by proclamation,
/to
9
to post-1949 premises. On 7 January 1972 Proclamation 3 of 1972
was promulgated by the State President by virtue of the powers conferred
on him
by sec 33 (1A) of the Rents Act as amended. In the Proclamation he declared that
as from 28 Marc provisions of the Rents Act
would apply in respect of all
business pre= mises situate within the areas described in the Schedule thereto
in so far as such premises
were occupied or used for the first time
after
20 October 1949 and
before
1 June 1966. The effect thereof was that the
State President extended the provisions of the Rents Act to apply to post-1949
business
premises used for the first
/time
10
time in the stated period in the areas described in the
Schedule thereto. Schedule (a) to the Procla= mation described the area in
which
the respondent's premises were situated. The combined effect of the Proclamation
and Government Notice 459/1969 was that the
respondent's premises were as from
28 March 1969 within the purview of the Rents Act and also subject to the
jurisdiction of the
Regional Rent Board of the North Coast.
On 23 June 1976 the Rent Control Act came into operation. It superseded the
Rents Act, as amended, but according to sec 54(2) anything
done under the
provisions of the Rents Act, as amended, is deemed to
/have
11
have been done under the corresponding provisions of the Rent
Control Act. The Rent Control Act is a consolidating legislative measure
with a
new arrangement of sections.
In Proclamation 105 of 1983, promulgated on 15 July 1983, the State President
acting in terms of sec 52(1) of the Rent Control Act
amended Procla= mation 3 of
1972 by the withdrawal of paragraph (a) of the Schedule to the latter
Proclamation. As stated earlier,
paragraph (a) of the Schedule to Proclamation 3
of 1972 described the area in which the premises in question were situated. I
should
also point out that sec 33 (1B) of the Rents Act which empowered
/the ....
12
the State President at any time to withdraw or amend
any proclamation promulgated pursuant to sec 33 (1A) of
the Rents Act has
not been re-enacted in the Rent Control
Act.
By Government Notice 2629/1983, dated 2 December 1983, the relevant Deputy
Minister, purporting to act under the powers vested in
him by sec 51(g) of the
Rent Control Act, amended Government Notice 459/1969 by the withdrawal of
paragraph (a) of the Schedule thereto.
Paragraph (a) of the said Schedule
described the area of jurisdiction of the Regional Rent Board of the North Coast
in which the
premises in question were situated.
/The
13
The appellants, as tenants, have at all material times been
occupying the premises in question as business premises. The question
to be
resolved is whether they are entitled to resist the respondent's applications
for their ejectment from the premises in question
by invoking the protection of
the Rent Control Act.
The combined effect of Proclamation 3 of 1972 and Government Notice 459/1969,
as stated
supra
could be nullified if either of them was withdrawn or
appropriately amended to render the premises in question no longer subject
to
the provisions of the Rent Control Act.
/Mr
14
Mr
Wulfsohn
, on behalf of the appellants, challenged
the validity of Government Notice 2629/1983. His contention was that sec 51 (g)
of the Rent
Control Act did not empower the relevant Minister to issue the said
Government Notice. A reading of sec 51(g) makes it clear that
it empowers the
relevant Minister to exempt business premises from the provisions of the Rent
Control Act by notice in the
Gazette
and thereafter by like notice to
withdraw or amend such notice of exemption. In the present matter the relevant
Minister was not
concerned with the issuing of a notice of exemption. I am
prepared to assume without deciding that sec 51(g) did not give the relevant
Deputy Minister the appropriate
/power ....
15
power to issue Government Notice 2629/1983. On
this assumption the reference in Government Notice 2629/1983 to sec 51 (g) as
the empowering section was erroneous. Sec 2 (2) and
(3) of the Rent Control Act
is the proper empowering section for the amendment or withdrawal of the
jurisdiction of a rent board.
Where the relevant Minister had the power in terms
of sec 2 to withdraw paragraph (a) of the Schedule to Government Notice 459/1969
the fact that he purported to issue the notice under the wrong section did not
invalidate the notice.
/See
16
See
Latib v The Administrator
,
Transvaal
,
1969(3)
SA 186 (T) at p 190B - 191A:
The relevant sub-sections of sec 2 of the Rent
Control Act provide as follows:
"(1) The Minister shall establish so many rent boards as he may deem
necessary, and notice shall be given in the
Gazette
of the establishment
of every such rent board and of the area for which it is established.
(2) The Minister may by notice in the
Gazette
dis= solve, or, in
respect of business premises, withdraw the jurisdiction of, any rent board
previously established, and thereupon
the area for which such rent board was
established, shall, for the purposes of section 51, be deemed to be an area for
which a rent
board has not been established or has not been es= tablished in
respect of business premises,
/as....
17
as the case may be.
(3) The Minister may from time to time by notice
in the
Gazette
withdraw any notice by which
the jurisdiction of a rent board in respect
of business premises has been withdrawn, either
absolutely or in respect of a specified portion
of the area for which such rent board has been
established or in respect of any specified
business premises or class of business premises,
and thereupon the jurisdiction of such rent
board shall revive and the provisions of this
Act shall apply in respect of business premises
situated within the area for which it is
established or within the portion of that
area specified in such notice or in respect
of the business premises or class of business
premises so specified, as the case may be."
/18
18
In this Court Mr
Wulfsohn
contended that Government
Notice 2629/1983 was defective because it purported to withdraw in one step
paragraph (a) of the Schedule
to Government Notice 459/1969 whereas the correct
procedure required two steps which could be embodied in the same notice as had
been done in Government Notice 2218/1968. According to this argument step one in
terms of sec 2(2) necessitated a total withdrawal
of the jurisdiction of the
Regional Rent Board of the North Coast in respect of business premises by the
withdrawal of paragraphs
(a) and (b) of the Schedule to Government Notice
459/1969. Step two in terms of sec 2(3)
/required
19
required a partial withdrawal of the notice of withdrawal
which comprises step one. That is to say, step two should have consisted
of a
withdrawal of the withdrawal in respect of paragraph (b) of the Schedule to
Government Notice 459/1969 whereupon the jurisdiction
of the said
Rent Board
would have been revived in respect of the
described area of jurisdiction described in paragraph (b) of the Schedule
whereas its jurisdiction in respect of the area
described in paragraph (a)
of the Schedule would
have been withdrawn. The procedure suggested
by Mr
Wulfsohn
is a clumsy circuitous method of
achieving what the
legislature, as appears from a reading of sub-sectio
(2) and (3) of sec 2 together, intended to confer on the
/relevant
20
relevant Minister, viz the power to withdraw the jurisdiction
of a rent board over business premises either totally (
in toto
) or
partially (
pro parte
) i.e. in respect of a specified portion of its area
of jurisdiction or in respect of any specified business premises or class of
business premises. I accordingly see no reason in law why the relevant Deputy
Minister could not adopt, as he did in Government Notice
2629/1983, the direct
method of withdrawing in one step paragraph (a) of the Schedule to Government
Notice 459/1969. In my opinion
the attack by Mr
Wulfsohn
upon the
validity of Government Notice 2629/1983 must accordingly fail.
/The
21
The alternative contention of Mr
Wulfsohn
was that even
if this Court found that Government Notice 2629/1983 was valid then the
withdrawal of the jurisdiction of the Regional
Rent Board of the North Coast in
respect of business premises in the area in which the premises in question were
situated could not
affect the acquired or accrued rights of the appellants under
the Rent Control Act. In my opinion this conten= tion is untenable
for the
following reasons. The object of the Rent Control Act is to controilrent of
premises subject to its provisions as controlled
premises and to give tenants
thereof security of tenure against ejectment by landlords by imposing
concomitant restrictions
/and
22
and disabilities on the contractual and common law rights of
landlords. I am satisfied from the context of the Rent Control Act that
the
legislature intended the protection afforded to tenants to be co-extensive with
the applicability of the provisions of the Act
to controlled premises. When its
provisions cease to be applicable to premises the latter cease to be con=
trolled premises. The
tenants of the premises can then no longer invoke the
protection of the Rent Control Act. The latter does not in my opinion confer
on
tenants of controlled premises vested rights which continue to exist after the
premises have ceased to be controlled premises.
To hold to the contrary would
lead to the absurd situation that the freezing of both rent
/and
23
and occupation of premises could continue to
exist
indefinitely after the premises had ceased to be
controlled
premises. Such a result would be wholly repugnant to the intention of the
legislature and the object of the Rent Control
Act. In the circumstances of the
present matter the appellants did not, in my opinion, acquire any vested rights
under the Rent Control
Act on which they could rely as a defence against the
respondent's application for their ejectment from the premises in question.
In view of the conclusion to which I have come in regard to the validity of
Government Notice 2629/1983 it is unnecessary to deal
with the attack
/by
24
by Mr
Wulfsohn
upon the validity of Proclamation 3
of
1972.
In the result the appeal fails with costs.
C P JOUBERT JA
RABIE C J )
VAN HEERDEN J A )
concur. GROSSKOPF J A )
GALGUT A J A )