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223/87 NvH

T M MNGOMEZULU & OTHERS / THE CITY COUNCIL OF SOWETO

SMALBERGER, JA :-

223/87
N v H

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter of

THEMBA MICHAEL MNGOMEZULU First Appellant

ISAAC MZONDEKI RADEBE Second Appellant
MXLOLISI ALFRED MPHUNGWA Third Appellant

and
THE CITY COUNCIL OF SOWETO Respondent

CORAM: CORBETT, HOEXTER, GROSSKOPF,

SMALBERGER, et VIVIER, JJA
HEARD: 30 AUGUST 1988

DELIVERED: 30 NOVEMBER 1988

JUGDMENT

SMALBERGER, JA :-

The three appellants are residents of

Jabulani, Soweto. The respondent, the City Council of

Soweto, is, and has at all material times been, a local

authority as contemplated in the Black Local Authorities

Act, 102 of 1982. The appellants and their respective

.../2

2 families have for many years been the registered tenants or lawful occupiers of houses in Jabulani owned by the respondent.
Section 65 of the Housing Act, 4 of 1966 (the 1966 Housing Act) affords certain remedies to a local authority against tenants who fail to pay the rental due by them. The section provides:-

"If the tenant of a dwelling constructed by a local authority fails to pay the rental payable by him on the due date, the local authority may-

(a)	take steps to recover the amount of the rental due, by action in a competent court;
(b)	after having given seven day's notice by letter delivered either to the tenant personally or to some adult inmate of the dwelling or, if that letter cannot be so delivered, by letter affixed to the outer or principal door of the dwelling or by prepaid registered letter addressed to the tenant at the place where the

.../3
3

dwelling is situated, by an officer authorized in writing by it and without having obtained any judgment or order

of the court, enter upon and take possession of the dwelling in respect of which the rental is owing."

(Any future reference to "s 65" is to the above-quoted section.)
On 26 August 1986 the appellants, together with their families and possessions, were ejected from their respective homes by officials of the respondent, purporting to act in terms of s 65 (b), for alleged non-payment of rental due. The appellants forthwith sought to have possession of their homes restored to them. To this end they brought an urgent application against the respondent in the Witwatersrand Local Division. By agreement between the parties possession of the appellants' homes was restored to them pending the hearing and determination of the application. In due course the application was heard

.../4
4

by GOLDBLATT, AJ. He dismissed the application, but
granted the appellants leave to appeal to this Court. As

the matter was regarded as being in the nature of a test
case the respondent sought no order as to costs, and none
was made.

It will be convenient to commence by setting out

certain relevant facts which are either common cause or not

in dispute for the purposes of the present appeal. The

houses occupied by the appellants were constructed in or

about 1959 by the Johannesburg City Council, an urban local

authority which at the time exercised jurisdiction over

Soweto. The houses are situated in an area set apart as a

location in terms of section 2(1) of the Blacks (Urban

Areas) Consolidation Act, 25 of 1945. The construction of

the houses was financed by means of a private loan granted

to the Johannesburg City Councll by certain mining houses.

The powers and obligations of the Johannesburg City Council

in respect of Soweto were subsequently assumed by the West

.../5
5

Rand Administration Board under the Black Affairs
Administration Act, 45 of 1971, and were later in turn
assumed by the respondent by virtue of the provisions of
Act 102 of 1982. The circumstances surrounding the

granting of the loan used to construct the houses occupied

by the appellants, and the legal provisions under which it

was acquired, are matters peculiarly within the knowledge

of the respondent as successor to the Johannesburg City

Council as the controller of Soweto. Various affidavits

were filed on behalf of the respondent by one Gerber, who

is employed as the respondent's township manager in charge

of the Jabulani area. In one of these affidavits Gerber

sets out the position as follows:-

"4.3 The Johannesburg City Council applied to

the Administrator for authority to erect 15,000 dwellings on land owned by it, the erection of such dwellings to be funded by means of a private loan.

.../6
6

4.4 The Administrator granted such approval in terms of the Housing Act on or about 30 January 1957 subject to the concurrence of the then Minister of Native Affairs.
4.5 The then Minister of Native Affairs approved the Council's application for the £3 million loan in terms of Section 16 of Act 25 of 1945.
4.6 The rent for the houses in question (detached dwellings) was approved by the then Minister of Bantu Administration and Development in terms of Section 20 of Act 25 of 1945.

In an earlier affidavit Gerber had stated that the loan for the construction of the houses occupied by the appellants "was approved by the then Minister of Native Affairs in terms of Section 16 of Act No 25 of 1945 and accordingly I am advised and submit that the house in question does fall within the ambit of the Housing Act and in particular within the ambit of Section 65 of the present Housing Act". The relevance of the above assertions by Gerber will become apparent later in this judgment.

.../7
7

At the time when the appellants were ejected from

their homes they were required by the respondent to pay a
monthly charge of R54-45. This represented the total of
amounts levied in respect of house rental, site rental,
electrification fund contribution, surcharge for water and

sewerage and refuse removal. House rental was R3-25, as

published in Government Notice No 703 in Government

Gazette No 5529 of 29 April 1977. It was determined by

the Minister of Bantu Administration and Development (as he

then was) under the provisions of s 22(1) (b) of Act 45 of

1971. The site rental was R13-32 as published in

Government Gazette No 9918 of 6 September 1985 in terms of

by-laws of the respondent approved by the Minister of Co-

operation, Development and Education under the powers

vested in him by s 27 of Act 102 of 1982. The remaining

charges are not relevant to the present appeal as it is

conceded by the respondent that they do not form part of

the rental per se. It is not disputed that the appellants

.../8
8

were in arrears in respect of the monthly charges levied by

the respondent in the amounts of R357-20, R367-80 and R353-

90 respectively.

It is common cause that the house occupled by

each appellant falls within the definition of a "dwelling"

in s 1(a) of the 1966 Housing Act, and that each appellant

at all relevant cimes was a "tenant of a dwelling

constructed by a local authority" within the meaning of s

65. (I shall henceforth refer to the appellants' houses

as dwellings.) The respondent was only entitled to act in

terms of s 65(b) on failure by the appellants to pay "the

rental payable" by them (in the sense in which that term is

used) by due date. It is also common cause that if the

respondent has succeeded in esteblishing the appellants'

failure to pay "the rental payable", the ejectments in casu

were effected in the manner provided for in s 65(b), and

after compllance with the necessary pre-requisites with

regard to notice. Nor is it in dispute that the

.../9
9
"rental" would not be "payable" unless some legal
obligation to pay rental had been imposed. Amounts
alleged to be payable as rental, which were not determined
in the manner prescribed by the governing statutory
provision would therefore not constitute "rental payable"
in terms of s 65, and the failure to pay such amounts would
not entitle the respondent to have recourse to the
provisions of s 65(b). The word "rental" is not defined
in the 1966 Housing Act. In its ordinary connotation it
means an amount paid as rent, usually by a tenant to his
landlord f or the use and occupation of land and premises.
The definitlon of "dwelling" in s 1 of the 1966 Housing

Act includes the site on which any dwelling has been or

is to be constructed. When s 6l(b) of the 1966
Housing Act (to which I shall refer in more detail
later) therefore speaks of letting any dwelling it includes
both the house and the site, and a single rental could
normally be expected for the two (Duze v Eastern Cape

Administration Board and Another 1981(1) SA 827 (A) at 842

.../10
10

H - 843 A). For the purposes of the present appeal it is
not necessary to decide what precisely is meant by the word

"rental" in the phrase "the rental payable" in s 65. I

shall assume that it refers to both house and site rentals,

whether determlned separately or together. It would not

include service and availability charges.

In the court a quo GOLDBLATT, AJ held that in

ejecting the appellants from their homes the respondent had

acted lawfully under the powers conferred upon it by s 65.

He came to the conclusion that the words "the rental

payable" as used in s 65 applied to any rental which a

local authority was entitled to charge, and a tenant

obliged to pay, whether under the provisions of the 1966

Housing Act or in terms of any other legislation. He

accordingly held that although the rental in respect of

which the appellants were admittedly in arrears had not

been determined under the 1966 Houslng Act, as it had been

lawfully determined under other applicable legislation it

.../11
11

constituted "rental payable" as contemplated by s 65.

Three main arguments were raised on appeal on

behalf of the appellants. The first related to the proper
meaning to be ascribed to the words "rental payable" f or

the purposes of s 65. It was contended that in view of

the extraordinary and drastic remedies afforded by s 65 (cf
Magadi v West Rand Administration Board 1981 (2) SA 352 (T)

at 355 A) the section should be restrictively interpreted,

and that properly interpreted within their contextual

setting the words mean rental fixed and payable pursuant to

the provisions of s 61 of the 1966 Housing Act. It will

be convenient to refer to s 61 at this stage. It

provides:-

"Any local authority may -

(a) out of advances made to it or moneys

borrowed by it under this Act, construct approved dwellings and carry out approved schemes -

(i) within the area under its jurisdiction; or

.../12
12

(ii) outside the area under its juris= diction, on land acquired by it in terms of section 66 or approved by the Administrator concerned; (b) sell or let any dwelling, constructed by it under the powers conferred by this Act, on such conditions as may be determined -(i) in the case of dwellings in respect of the construction whereof an advance has been made out of the fund, by the Commission; or (ii) in the case of other dwellings, by the Administrator concerned on the recommendation of the Commission."

It is common cause that the "conditions" that fall to be
determined in terms of s 61(b)(i) and (ii) by either the
Commission (the National Housing Commission), or the
Administrator on the Commission's recommendation, as the

case may be, include the fixing of rentals. Also, that

there was no determination of rental by the Commission or

the Administrator in respect of the dwellings occupied by

the appellants.

.../13
13
The second argument advanced on behalf of the
appellants was that insofar as the house and site rentals
claimed by the respondent to be due by the appellants were
determined under s 22(l)(b) of Act 45 of 1971 and s 27 of
Act 102 of 1982 respectively, on the authority of Duze v
Eastern Cape Administration Board (supra) at 843 A - B such
determinations had to satisfy the requirements of s 61(b)
because the 1966 Housing Act is a special Act, whereas the
other two are general ones. The appellants' third
contention was that, in any event, s 65(b) only permits a
local authority to re-possess a dwelling for non-payment of
rental without an ejectment order where it has previously
sought to recover the amount of the rental due by the
ordlnary process of law enjoined in terms of s 65(a).

There seems to be little substance in the appellants' third contention if one has regard to the apparent purpose and wording of s 65. As far as the first

.../14
14

argument is concerned, there seem to be insufficient
indications in s 65, or in the provisions of the 1966

Housing Act generally, to justify the limited meaning the

appellants seek to place upon the words "the rental

payable". They are words, given their ordinary grammatical

meaning, of fairly wide import. It must be borne in mind

that a local authority has the power to erect dwellings in

addition to that conferred by the 1966 Housing Act (see e g

s 23(1) of Act 102 of 1982 read with item 24 of the

schedule thereto), and that there are various other

legislative provisions under which rentals charged by local

authorities for houses in Black residential areas could

previously, and can now, be determined (see e g s 20(1)

and s 38(3)(o) of Act 25 of 1945; s 22(1)(b) of Act 45 of

1971; s 43 of the Black Communities Development Act, 4 of

1984). There would therefore appear to be litte justifi=

cation for restricting the application of the words "the

rental payable" in s 65 only to instances of rental

.../15
15

determined under s 61(b) of the 1966 Housing Act. The
second argument is of doubtful validity in the unqualified
form stated above. But it does have a bearing on a matter
touched upon by Mr Mahomed, for the appellants, for the
first time in reply.

After judgment was reserved this Court requested

further written submissions from counsel in regard to

certain issues arising from the matter touched upon by Mr

Mahomed in reply. These were duly furnished, and we are

grateful to counsel for their assistance. The view I take

of these issues is such as to render it unnecessary to come

to a firm conclusion on the three main arguments advanced

on behalf of the appellants.

As I have mentioned previously, it is common

oause that the dwellings occupied by the appellants were

constructed in 1959 by one of the respondent's

predecessors, the Johannesburg City Council, and that such

construction was financed by means of a private loan

.../16
16

granted by certain mining houses. Approval for the
erection of the dwellings and the funding thereof in the
manner aforesaid was, according to the deponent Gerber,
granted by the Administrator on or about 30 January 1957

subject to the concurrence of the then Minister of Native

Affairs. The latter's epproval of the loan was duly given

under the provisions of s 16(1) of Act 25 of 1945. When

the loan was procured the provisions of the Housing Aot, 35

of 1920 (the 1920 Housing Act) were operative; by the time

the dwellings were erected the Housing Aot, 10 of 1957 (the

1957 Housing Act) had come into operation. The 1957

Housing Act was the immediate predecessor of the 1966

Housing Act. The dwellings in question fall within the

definition of a "dwelling" in s 1 of the 1920 Housing Act,

as well as under the corresponding definitions in the 1957

and 1966 Housing Acts.

Both in 1957 (when the loan was procured) and

1959 (when the dwellings were constructed) the provisions

.../17

17 of s 16(l)(b) of Act 25 of 1945 were in force. (The section has since been repealed by s 69(1) of Act 4 of 1984.) The section, as it read at the time, provided as follows:-

"16(1) For the purpose of providing, setting

apart, establishing, equipping and maintaining any location, native village or native hostel, whether under this Act or otherwise, any urban local authority may, subject to the approval of the Minister, after reference by him to the Administrator -

(a)

(b) borrow moneys on the security of
the urban local authority's rates
or on the security of any
location, native village or native
hostel or under any law to provide
facilities for the construction o f
dwellingS . . , subject to
repayment upon such terms and
conditions as may be approved."
(My emphasis.)

.../18
18
An urban local authorlty (such as the

Johannesburg City Council) was therefore empowered by the

provisions of s 16(1)(b) of Act 25 of 1945 to borrow moneys

for the purpose of providing housing for Blacks, The loan

had to be approved by the Minister of Native Affairs after

reference by him to the Administrator. Approval of the

loan by the Administrator was not required in terms of s

16(1)(b). Moneys could be borrowed in one of three ways.

In the present instance it is not contended that the loan

raised for the purpose of constructing the appellants'

dwellings was obtained on the security of either the rates

of the Johannesburg City Council (as the relevant urban

local authority) or "of any location, native village or

native hostel". Consequently, it must have been obtained

"under any law to provide facilities for the construction

of dwellings". The appllcable law would have been the

then operative Housing Act (the 1920 Housing Act). That

the loan in question was obtained under the provisions of

.../19

19 the 1920 Housing Act is confirmed by Gerber's affidavit where he states that the Administrator granted approval for the loan "in terms of the Housing Act". Such approval
would have been granted under s 2 of the 1920 Housing Act which at the time read as follows:-

"Anything to the contrary notwithstanding in any law prescribing or limiting the powers of any local authority, any local authority may borrow money for the purpose of enabling it, subject to the provisions of this Act -

(a)	to construct approved dwellings:
(b)	to lend money for the construction of approved dwellings;
(c)	to carry out approved schemes;
(d)	to lend money to enable approved schemes to be carried out;

and such local authority may borrow the money for any of the purposes aforesaid either from the commission or the administrator in accordance with and on terms and conditions prescribed by this Act or from any other source whatever on terms and conditions prescribed by the administrator."

.../20
20

Unlike the corresponding provisions in the 1957 and 1966
Housing Acts (s 48 and s 61 respectively), s 2 does not

specifically provide f or a loan obtained "from any other

source" (such as the one we are dealing with) to be

approved by the Administrator, but the need for such

approval is implicit in the provisions of the section.

Because of the provisions of s 16(1)(b) of Act 25 of 1945,

before the Johannesburg City Council in 1957 could borrow

money under s 2 of the 1920 Housing Act for the provision

of housing for Blacks in Jabulani it also had to obtain the

approval of the Minister of Native Affairs. While the

authority to borrow money may initially have derived from

Act 25 of 1945, the loan raised was obtained under the

provisions of s 2 of the 1920 Housing Act. It was the

proceeds of this loan that were utilised f or the later

construction of the appellants' dwellings. Such dwellings

were accordingly constructed from the proceeds of a loan

procured under the provislons of the 1920 Housing Act, and

.../21
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not under any other statutory provision.

As appears from s 2 of the 1920 Housing Act, the

Johannesburg City Council was only empowered to borrow
money for building purposes if such money was to be used
for the construction of approved dwellings or to carry out
approved schemes (a scheme, by definition, meant a proposal

for the construction of several approved dwellings).

Section 5(a) of the 1920 Housing Act specifically limited

the power of a local authority to construct dwellings under

the Act to approved dwelllngs. An "approved dwelling" in

terms of the definition thereof in s 1 of the 1920 Housing

Act meant a dwelling approved by the Administrator (except

where the dwelling was funded by an advance made by the

Commission, in which case an "approved dwelling" meant one

approved by the Commission).

The 1957 Housing Act came into operation on 1

June 1957. When the appellants' dwellings were constructed

in 1959 the provisions of that Act applied. Section 78(2)

.../22
22

of the 1957 Housing Act contained a savings clause which
read as follows:-

"All advances made or loans granted or contracts entered into or moneys spent or anything done under any provision of any law repealed by sub-section (1) or under any provision of any regulation made under any such law, shall be deemed to have been made, granted, entered into, spent or done under the corresponding provisions of this Act: Provided that ..."

(The proviso that followed is not relevant to the present

appeal.)

One of the laws repealed was the 1920 Housing

Act. The corresponding provisions in the 1957 Housing Act

to sections 2 and 5 of the 1920 Housing Act were sections

48 and 55 respectively. In terms of s 78(2) of the 1957

Housing Act the loan granted under s 2 of the 1920 Housing

Act was deemed to have been granted under s 48 of the 1957

Housing Act. Money borrowed by a local authority under s

48 read with s 55 of the 1957 Housing Act could also only

.../23
23

be used for the construction of approved dwellings. An
"approved dwelling" in terms of s 1(ii) of the 1957 Housing
Act meant a dwelling approved by the Commission. This
could not alter the character of the appellants' dwellings.
They had been approved by the Administrator under the 1920
Housing Act, and in terms of s 78(2) of the 1957 Housing
Act, "anything done" under the 1920 Housing Act was deemed

to have been done under the corresponding provision of the

1957 Housing Act. The necessary approval to constitute the

appellants' dwellings approved dwellings was therefore

deemed to have been givcn. The upshot of all this is that

when the appellants dwellings were constructed in 1959 they

were constructed as approved dwellings and remained such

under the 1957 Housing Act. And they retained their

character as approved dwellings when the 1966 Housing Act

came into operation, by virtue of the savlngs provisions of

s 91(2) of that Act which is of similar import to s 78(2)

of the 1957 Housing Act, although worded somewhat

.../24
24

differently. It is not necessary to quote s 91(2).
The effect thereof is quite clearly that an approved

dwelling under the 1957 Housing Act remains such under the

1966 Housing Act.

The power of a local authority in terms of s

61(b) of the 1966 Housing Act to "sell or let any dwelling,

constructed by it under the powers conferred by this Act"

applies only to approved dwellings, f or under the 1966

Housing Act (as under the corresponding provisions of the

1920 and 1957 Housing Acts) a local authority is only

empowered to construct approved dwellings (see s 61(e)).

The letting of approved dwellings not constructed from

funds advanced by the National Housing Fund (which is the

case here) is required to be on such conditions as may be

determined (which by necessary implication would include

the fixing of rental) by the Administrator on the

recommendation of the Commission (s 61(b)(ii)). It

follows that in the absence of any overriding statutory

.../25

25
provisions to the contrary the rental f or the appellants'
dwellings, in view of the provisions of s 61(b)(ii), had to
be determined by the Administrator on the recommendation of
the Commission. It is common cause that no such

determination was made.

Are there any such overriding statutory

provisions? The respondent seeks to rely upon s 20(1) of

Act 25 of 1945. (That section has also been repealed by s

69(1) of Act 4 of 1984, but there is a savings provision in

s 69(2) which preserves anything previously done under it).

Section 20(1) empowered the Minister, after consultation

with the Commission, to determine a fair and reasonable

rental for the occupation i a of any house in a location.

(The section referred to the Black Housing Board, but the

Commisaion took over the functions and duties originally

conferred on the Black Housing Board under the 1966 Act.

The latter Board was abolished by Act 109 of 1979 as from

1 October 1979 - see Duze v Eastern Cape Administration

.../26

26 Board (supra) at 834 H). However, s 20(1) has no application in the present matter because neither the house nor site rentals currently being charged were determined under its provisions. Even if they had been so determined, such determination would not have been lawful as it is common cause that the Commission was not consulted when the rentals were fixed.

The house rental, as I have mentioned previously, was determined in 1977 by the Minister under the powers vested in him by section 22(1) (b) of Act 45 of 1971. Section 11(1) of that Act provided that an Administration Board shall, in addition to any other powers vested in it under the Act:

"(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)

.../27
27

Consolidation Act, 1945 (Act No 25 of 1945), the Black Services Levy Act, 1952 (Act No 64 of 1952), the Urban Black Councils Act, 1961 (Act No 79 of 1961), and Black Labour Act, 1964 (Act No 67 of 1964); (bb) ... (cc) ...

(dd) in so far as they relate to Blacks
only, of an urban local authority
or a local government body or a
Commissioner in terms of such laws
as may from time to time be
specified by the Minister by
notice in the Gazette, but subject
to such conditions, modifications
or exceptions as may be so
specified;
(ii) such rights, powers, functions, duties
and obligations, in so far as they
relate to Blacks only, of an urban
local authority or a local government
body in terms of the relevant
ordinance establishing local authority
or in terms of any other ordinance as

.../28
28

the Minister may from time to time after consultation with the Administrator specify by notice in the Gazette, but subject to such conditions, modifications or exceptions as may be specified in the notice."

Notwithstanding the above-quoted provisions, s

22(1)(a) of Act 45 of 1971 deprived an Administration Board
of the power to make regulations under any law mentioned or
contemplated therein, and in terms of s 22(1)(b) vested
such power in the Minister. The Minister was therefore
given the power to make regulations which a local authority

previously had under the provisions of s ll(l)(e) set out
above (Duze v Eastern Cape Administration Board (supra) at

837 E; Durban (Ningizuma) Community Council and Another v

Minister of Co-operation and Development and Another

1985(3) SA 667 (A) at 673 H - I.) Section 22(l)(b) of

Act 45 of 1971 was also repealed by s 69(1) of Act 4 of

1984, but in terms of s 66(3) of the latter Act "(a)ny

.../29
29

regulation made under a law repealed by this Act shall be
deemed to have been made under subsection (1) and shall
continue to apply notwithstanding the repeal of such law".

The respondent does not contend that there are

any provisions in either the Black Services Levy Act, the
Urban Black Councils Act or the Black Labour Act referred

to in s 11(1)(e)(i)(aa), or in any of the laws referred to

in s 11(1)(e)(i)(dd), or in the relevant Ordinance

referred to in s 11(1)(e)(ii) (the Transvaal Local
Government Ordinance, 17 of 1939) which either deal with

rent determinations, or empower a local authority to make

regulations (or by-laws) in respect of rent. This brings

me back to Act 25 of 1945. It contains two provisions with

regard to rental. The first of these is contained in s

20(1), to which reference has already been made. A local

authority had no power to determine rental under that

section. The powers conferred on the Minister under s

22(l)(b) of Act 45 of 1971 therefore did not encompass s

.../30
30

20(1) of Act 25 of 1945. The second provision is contained
in s 38(3)(o). That section entitled a local authority, upon
compliance with certain prescribed requirements, to make
regulations i a in respect of tariffs of fees and charges for
rent f or inhabitants of a Black residencial area. The
Minister's determination of house rental in 1977 was

therefore purportedly made under the powers conferred on him
by s 22(l)(b) of Act 45 of 1971 read with s 38(3)(o) of Act

25 of 1945. Insofar as the power to determine rentals under

s 22(1)(b) in respect of Black residential areas generally

differs or is inconsistent with that under s 61(b)(ii) of the

1966 Housing Act, which applies specifically to approved

dwellings, the general powers in s 22(1)(b) of Act 45 of 1971

must yield to the special, particular powers in s 61(1)(b) of

the 1966 Houslng Act in respect of approved dwellings

constructed under the latter Act (Duze v Eastern Cape

Administration Board (supra) at 843 A - B. This is in

keeping with the oft-referred to passage in R v Gwantshu 1931

/31

31

EDL 29 at 31 that "The general maxim is, generalia
specialibus non derogant. 'When the Legislature has given
attention to a separate subject and made provision for it the
presumption is that a subsequent general enactment is not

intended to interfere with the special provision, unless it
manifests that intention very clearly ...' per Lord HOBHOUSE

delivering the judgment of the Privy Council in Barker v

Edger (1898) A C at p 754" and further "In such cases it is

presumed to have only general cases in view and not

particular cases which have been already otherwise provided

for by the special Act". The same holds true in respect of

the site rentals. The power of a local authority in terms of

s 27(1) of Act 102 of 1982 to make by-laws with the approval

of the Minister, under which power the site rental for the

appellants' dwellings was determined, must also yield to the

special powers of s 61(1)(b) of the 1966 Housing Act.

It follows that in respect of approved dwellings

constructed under one or other of the Housing Acta there are

/32
32 no statutory provisions which override those of s 61(1)(b) of the 1966 Housing Act. As the rentals for the appellants' dwellings were not lawfully fixed and determined in the prescribed manner they did not constitute rental payable under s 65. In the circumstances the appellants' failure to pay the amounts the respondent required them to pay as rental did not entitle the respondent to have recourse to the provisions of s 65. The respondent's purported ejectment of the appellant was accordingly unlawful.

In the result the appeal succeeds, with costs, including the costs of two counsel. The order of the court a quo is set aside. As the appellants' possession of their dwellings was previously restored to them pending their application and subsequent appeal, there ls substituted for the order of the court a quo the following order:-

/33

33

"1) It is hereby declared that the respondent

was not entitled to eject the applicants from their respective dwellings on 26 August 1986 pursuant to section 65 of the Housing Act 4 of 1966.

2) The respondent is ordered to pay the

applicants' costs, including the costs of two counsel."

J W SMALBERGER JUDGE OF APPEAL

CORBETT, JA )
HOEXTER, JA )
GROSSKOPF, JA ) CONCUR
VIVIER, JA )

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