EJECTMENT

JURISDICTION.

PRACTICE AND PROCEDURE.

Jurisdiction of Bantu Affairs Commissioner's Court

—

^White

Messenger _of that Court cited as a Respondent

—

warrant of ejectment

—

when it

may

validly he issued and executed

—

prospectivejudgmentnot competent.

Summary: A

compromise between the parties as to rentals, the date on which the Defendant undertook to-

vacate the premises and that on Defendant’s default the Plaintiff “ shall be entitled to eject the Defendant from the Plaintiff’s property immediately ” was

made

an order of Court. Plaintiff subsequently caused a warrant of ejectment to be issued and this was servedbythe European Messenger of the Bantu Affairs Commissioner’s Court. Defendant was granted a rule nisi operating as an interim inderdict restraining the Messenger and Plaintiff from ejecting him pending decision on an application by him that the warrant beset aside as invalid.

On

the merits ofthe application the Bantu Affairs Commissioner in due course discharged the rulenisiwithcosts.

On

appeal to this Court by Defendant (Appellant) points were taken inlimine by Plaintiffs (Respondent) counsel that the Bantu Affairs Commissioner’s Court’s jurisdiction was ousted as the Messenger ofCourt was not a Bantu and that the appeal was not properly before this Court as a notice of appealhad notbeen served on theMessenger. Boththese objections were overruled. Respondent’s counsel then asked for a postponement and withdrew

when

this was refused.

Thereafter Appellant’s counsel addressed the Court.

Held:That the jurisdiction ofthe Bantu AffairsCommissioner’s Court over ^its Messenger derived from the fact that he was

its officer charged with the execution of its process and not from ^{his race} and that it was unnecessary to cite him as a party and so unnecessary to serve notice of appeal upon him.

Held further: That the Bantu Affairs Commissioner’s Court could not give a prospectivejudgment and thattheagreement

which was

made

an order of Court did nothing

more

than entitlethePlaintifftoapplyto theCourt on theduehappening of a certaineventfora warrantof ejectment.

Held

further: That the application to set aside the warrant of ejectment shouldhavebeengranted.

Casesreferredto:

Louis Sacks N.O. and Maria

Malope

versus John Mdhlali, 1956, N.A.C. 43.

Works

referredto:

Shorter Oxford Dictionary.

Statutes referredto:

Act38 of1927.

Appeal from the Court of the Bantu Affairs Commissioner,

Camperdown.

Cowan, President:

—

In December, 1962, the present Respondent issued a

summons

.against the Appellant claiming his ejectment from his property, payment of

R72

arrear rental up to and including December, 1962 and costs.

The

action was defended and

when

the matter

came

to trial on the 7th May, 1963, a compromise was arrived at by the parties and a written record thereof in the following .termswassignedbytheirattorneys:

—

1.

The

Defendant undertakes to pay to the Plaintiff the

sum

of

R30

representing rental for the Plaintiff’s property for the months of January, February, March, April and

May

1963 to the Plaintiff's Attorneys at

Camperdown

by the 31st March, 1963.

2.

The

Defendant continue to pay rental of the

sum

of

R6

per

month

in respect of the property by the last day of each succeeding month to the Plaintiff’s Attorneys at

Camperdown

until the 30th January, 1964,whereafter such day the Defendant undertakes to vacate the Plaintiff’s property.

The

firstpayment in respect ofsuch rental shall be

made

on or before 30th June, 1963 and should the Defendant default in the payment of any one instalment then the Plaintiff shall be entitled to eject the Defendant fromthePlaintiff’sproperty immediately.

3. Thereshallbenoorderas to costs.

Thisdocument was handed intoCourt and itstermswere

made

:an order of the Court, the judgment recorded being one of.

Judgment by consent as per written consent order filed.”

The

Respondent subsequently caused a warrant to be issued for the ejectment of the Appellant from the property and this

was

served on the Appellant by the Messenger of the Court, a European, on the 17th February, 1964.

The

Appellant then applied for,and was granted, arulenisi restraining theMessenger and the Respondent from ejecting the Appellant front the property and the matter has

now come

before this Court as an appeal against thejudgment oftheCommissionerdischargingthat rulewith costs.

The

Respondent’s attorney took the pointin limine inthe lower court that, as the Messenger of the Court was one of the Respondents in that Court and was not a Native as defined by Act No. 38 of 1927, that Court had nojurisdiction to grant the interdict. This objection was over-ruled by the Commissioner and was again taken in this Court by the Respondent’s counsel

who

reliedforthiscontention onthe decisiongivenby theCentral Bantu Appeal Court in the case ofLouis Sachs, N.O. and Maria

96

Malope

versus JohnMdhluli, 1956. N.A.C.43. Ido not propose

-

to discuss the question ofwhetherthe decision givenin that case was or was not a correct one because in

my

view the reasons given for that decision can have no application in the matter

now

beforeus. Here

we

havethecasewhere theAppellant sought to restrain the Messenger of the Courtfrom executing a warrant of execution which he claimed was invalid and to

my

mind it

cannot be that the Court was precluded from doing so because the Messenger was a European.

The

warrant was a process of the Court and it clearly had the right to determine whether it

was a valid one and should be executed or whether it was an invalid one which it should direct the Messenger not to execute.

The

right to exercise this authority over the Messenger does not depend on whether his race was such as would

make him

subject to the jurisdiction of the Court in the ordinary

way

but derives simply from the fact that he is an officer of the Court charged with theexecution ofitsprocess.

Another point taken by Mr.

Menge

in limine was that as no notice of appealhad been served on ^the Messenger of the Court the appeal was not properly before this Court. In our view there is nomerit in this point.

The

Messenger oftheCourt

was

cited in the interim interdict proceedings simply because it was necessary to restrain him from executing the warrant until such time as the merits of the application for the setting aside of the warrant could be decided by the Court.

He

had, however, no interest in the subsequent proceedings as no costs had been asked for against him and ^this is borne out by the fact that he neither filed a replying affidavit nor did he appear on the day the application was ^heard. It was, indeed, unnecessary to cite

him in those proceedings and the fact that no notice of this appeal has been served on him ^is not one to which this Court

is prepared to attach any importance as he can be occasioned no prejudice whichever

way

the appeal is decided.

For these reasons the points raised by Mr.

Menge

were over- ruled andhe then applied for the postponement ofthehearingof the appeal. This requestwas opposed by the Appellant’scounsel and, as Mr.

Menge

could advance no reason

why

it was

made

other than that he had been instructed todo so by his attorneys, his application was refused.

He

then intimated that he had no mandate to argue the appeal on its merits and, with the Court’s leave,hewithdrewfromthe case.

In his reasons for judgment, the Bantu Affairs Commissioner says, interalia, “Iconcluded thatoncetheterms ofthesettlement wererecorded andconvertedinto thejudgmentof the Court,there thematter ended; the Plaintiff’srights to issue awritof ejectment immediately the Defendant fell into arrear with his rent was indisputably established and the Defendant had to abide by it”.

He

went on tosay in a subsequent paragraph, “I concluded that once the terms of the settlement were recorded and converted intotheJudgmentofthe Courttherethe matterended;the Plain- tiff’srightto issue a WritofEjectmentimmediatelytheDefendant

fell into arrear with his rent was indisputably established, and the Defendant had to abide by it”. In

my

view the

Commis-

sioner has given a wrong meaningto the

word

^“entitled” in the phrase, “_{the Plaintiff shall} be entitled to eject the Defendant from the Plaintiff’s property immediately”, whichis contained in paragraph 2 of the agreement arrived at by the parties.

The

verb “ to entitle” _is defined in the Shorter Oxford Dictionary as meaning “ to give a rightful claim to anything^”. Under the agreement,therefore, the Plaintiffhad noright to evict the Defen- dant should he fallinto arrear with his rent

—

he merely had the right to claim the Defendant’s eviction and he could pursue this claim only through the Court.

The

fact that the agreement between the partieswas

made

ajudgmentofthe Courtcouldgive the Plaintiff no greater right than he had under the agreement

97

as no right of eviction had accrued to him ^at that stage and a Court would not give a prospective judgment nor

make

an order of ejectment prior to the happening of the event which would warrantthegranting ofsuchanorder.

For these reasons the appeal mustsucceed. It is upheld with costs and the judgment of the Bantu Affairs Commissioner is altered to one of. “

The

application to set aside the warrant is

granted withcosts^”.

CraigandParsons, Members,concur.

ForAppellant: Mr. C. S. Ntloko (C. S. Ntloko

&

Co.) For Respondent: Adv.

W.

O. H.

Menge

instructedby Randles, Davis

& Wood.

NORTH-EASTERN BANTU APPEAL COURT.

NTULI

vs.

MKONZA.

B.A.C.

CASE

No.23of 1964.

Pietermaritzburg; 4th August, 1964. Before

Cowan.

President;

CraigandParsons,

Members

of the Court.