508

GOUWS v. ORANGE FREE STATE VERMIN CONTROL AND WILD LIFE PROTECTION SOCIETY.

(APPELLATE DIVISION.)

1969.	November 21, 28. OGILVIE THOMPSON, I.A., RUMPFF, J.A., HOLMES, I.A., WESSELS, I.A. and JANSEN, J.A.

Game.-Hunt club.-Claim for membership fee by. -Sec. 2 of Ord. 11 of 1967 (O) not ultra vires.

Section 2 of Ordinance 11 of 1967 (O) is not ultra vires and the respondent, which is registered as a hunt club under Ordinance 8 of 1953 (O), as amended, which is a body .corporate, can claim a membership fee from the 1owner of land in the Province..

The decision in the Orange Free State Provincial Division in Gouws v. Oranje­ Vrystaatse Ongediertebeheer en Wildbeskermingsvereniging, 1969 (4) S.A. 449, confirmed.

Appeal against a decision of the Orange Free State Provincial Division (HOFMEYR, J.). The facts appear from the judgment of RUMPFF, J.A.

H. J. O. van Heerden, for the appellant: The provisions of sec. 2 of Ordinance 11 of 1967 are (a) ultra vires because, in effect, they compel owners to pay a tax which may be utilised for a purpose in respect of which a provincial council has no legislative authority; (b) alter­ natively, the objects of the respondent a:re wider than those authorised by the Ordinance; (c) alternatively, the provisions of the Ordinance embrace much' more than the extermination of vermin. The appellant accepts that the provisions of provincial legislation are not objection­ able merely on the ground of unreasonableness or unfairness, and that a provincial council may also exercise legislative powers which are reasonably incidental to the powers expressly conferred. S. v. Le Grange, 1962 (3) S.A. at p. 504; Middelburg Municipality v. Gertzen, 1914 AD. at p. 552; Herzberg v. Germiston City Council, 1968 (1) S.A. 63. The powers exercised in the section concerned are neither express nor reasonably incidental to the power expressly conferred. It is conceded that the Council may delegate its legislative powers to another person or body e.g. the Administrator, but an Ordinance whereby the Administrator is given the power to regulate university education would clearly be ultra vires. The same will apply to an Ordinance which empowers the Administrator to regulate any matter. In the latter case invalidity will not occur only when the Administrator promulgates a regulation which

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falls outside the legislative authority of the Council. The regulation would indeed be intra vires the Ordinance; but the empowering provision would be ultra vires. Landelike Lisensieraad, Krugersdorp v. Cassim, 1961 (3) S.A. at p. 129; Springs Town Council v. Soonah, 1963 (1) S.A. 659; R. v. Abdurahman, 1950 (3) S.A. at pp. 148-9 do not assist the respondent. The section itself is very clear and places no limitation on the contents of the constitution except that it must be approved by the Administrator. There is, therefore, no room for a restrictive interpretation except if there are very clear indications in the remainder of the Ordinance. R. v. Alli, 1958 (2) S.A. at p. 58; Bhyat v. Commissioner for Immigration, 1932 AD. at p. 129; Bulawayo Municipality v. Bulawayo Waterworks Ltd., 1915 C.P.D. at p. 443. The Court a quo found two such indications, viz. firstly in the title of the Ordinance and secondly in the words "subject to the pro­ visions of •the Ordinance" in sec. 2 (1). As far as the title is concerned it must in the first place be remembered that it may only be taken into consideration if the provision is not clear, which is not the case here. R. v. Kutu, 1930 T.P.D. at pp. 416-7; R. v. Magano and Madumo, 1924 T.P.D. at p. 139; Dedlow v. Minister of Defence and Provincial Marshall, 1915 T.P.D. at p. 554. The Ordinance itself indicates that it was not intended that the constitution should only be in connection with the extermination of vermin. In the third place the title is only indicative of the scope of the Ordinance. The object was to promote the extermination of vermin and as an instrument an existing society was used. Although it may, therefore, be accepted that the constitution must indeed contain the object concerned, it does not in any way whatsoever justify the conclusion that it may not contain another object. There is no reason why a restrictive meaning should be given to the clear words of sec. 2 (1). R. v. Ras and Others, 1938 T.P.D. at p.34. If the interpretation of the Court a quo is however, correct it speaks for itself that the Administrator’s act was ultra vires by approving a constitution which was not only directed at the extermination of vermin but also at the protection of game. Therefore the respondent's action can in any event not succeed. Johannesburg, City Council v. Arumugen and Others, 1961 (3) S.A. at p. 711.

In the further alternative and once again on the assumption that the interpretation of the Court a quo is correct, the section is ultra vires because the powers which were exercised cannot be regarded as reasonably conducive to the main object-.the extermination of vermin. The Council then, as it was entitled to do, used an existing society to promote the main object, but at the same time, as it was not entitled to do, prescribed to the society what may be contained and what may not be contained in its constitution. R. v. Ras, supra, R. v. Belman, 1940 T.P.D. at p. 171. A Provincial Council may exercise powers which may be regarded as reasonably conducive to attaining the main object. The test is, however, not whether the exercise of the "additional power" merely promotes the attainment of the main object, for then an Ordinance whereby the jurisdiction of the Courts is extended or limited may, under the circumstances, be valid. A provision in the present Ordinance whereby a technical college is instituted to conduct a course in the extermination of vermin would, therefore, not be valid merely because the institution of such a college may promote the extermination of

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yermin in the Free State. Bignaar v. Municipal Council of Rustenburg, 1927 T.P.D. 615. The correct test is whether the "additional power" can normally be regarded as connected with the main power in the sense that an adequately close relationship exists between the two. Joyce and McGregor Limited v. Cape Provincial Administration, 1946 A.D. at p. 672. Sec. 2 of the present Ordinance compels every owner of land to be a member of respondent and in addition provides that the constitution may not be amended without the administrative approval of the Administrator. In effect the freedom of the individual is infringed, inter alia, the freedom of the individual to belong to or not to belong to a society and the Provincial Legislator arrogated to itself the power to prohibit an existing society from amending its constitution without the discretionary administrative authority. No express authority was granted to a Provincial Council to pass legislation of this nature and it can certainly not be said that the provisions concerned are reasonably necessary to exercise the expressly conferred authority. Arenstein v. Durban Corporation, 1952 (1) S.A. at p. 294. The only question is, therefore, whether it may be said that there is a normal and close relationship between the extermination of vermin on the one hand and the restriction of freedom to join a society and the power of an existing society to amend its constitution on the other hand, and to this the answer must, with respect, be in the negative. The main power may be exercised completely effectively without restricting the relative rights and it is certainly not possible to find any relationship between the extermination of vermin and e.g. the duty •to become a member of a society.

J. J. F. Hefer, for the respondent: "The extermination of vermin" is a matter specially entrusted to the legislative authority of provincial councils: sec. 13 (1) {a) of Act 38 of 1945, read with item 1 of the Second Schedule to the Act, as amended by sec. 3 (a) and sec. 4 of Act 70 of 1956. This was done in terms of sec. 85 (xiii) of The South Africa Act, 1909, and the authority thus granted was retained in the present Constitution Act, secs. 84 and 107 of Act 32 of 1961.

Provincial councils were therefore vested with original legislative authority in respect of the "extermination of vermin" so that-(a) subject to the requirements that Ordinances must be assented to by the State President and that they cannot be repugnant to an Act of Parliament, such councils are competent to act exhaustively and effectively, without taking into account the reasonableness or fairness of Ordi­ nances (Bloemfontein Municipality v. Bosrand Quarries (Pty.) Ltd. 1930 AD. at p. 378; S. v. De Lange, 1962 (3) S.A. at p. 504; Springs Town Council v. Soonah, 1963 (1) S.A. at p. 666); (b) such councils are further competent to pass Ordinances in respect of matters which are not expressly conferred on them, when it is necessary or expedient to exercising the expressly conferred powers, i.e. to pass Ordinances in respect of matters in regard to which no express power has been conferred on them, but which are necessary to exercise the expressly con-

511

ferred powers or which are reasonably incidental thereto (Middelburg Town Council v. Gertzen, 1914 A.D. at p. 551; De Lange's case, supra at pp. 504-5; Venter v. Randburg Town Council, 1968 (4) S.A. at p. 307); (c) in deciding the question whether a particular provision is necessary or reasonably incidental to the expressly conferred power, reasonableness or fairness should not be elevated to a criterion for the validity thereof (Joyce and McGregor Ltd. v. Cape Provincial Administration, 1946 A.D. at p. 672); (d) in the present case the Ordinance concerned will not be found to be ultra vires, except when it is perfectly clear that the bounds of the legislative authority were indeed exceeded (R. v. Dickson, 1934 A.D. at p. 233; Le Grange's case, supra at p. 505). A Court will not declare an Ordinance ultra vires merely because the scheme followed therein in the execution of the conferred power is, in the opinion of the Court unfair or because the object can be attained· in a more effective manner (Gertzen's case: supra, at p. 554; R. v. McChlery, 1912 A.D. at p. 215; R. v. Tuhadeleni and Others, 1969 (1) S.A. at p. 172 and 173, Cf. Principal Immigration Officer v. Bhula, 1931 A.D. at p. 336; Dickson's case, supra at p, 234). There can be no doubt that the Provincial Council would act intra vires if it should, with the object of exterminating vermin, compel owners of land to become members and to pay membership fees to a society whose exclusive object (which cannot be amended) is precisely the extermination of vermin. It would also not alter the position if the objects of the society concerned should be wider than the extermination of vermin but still only covering matters within the legislative powers of the council. The fact that respondent's constitution may be amended with the approval of the Administrator in committee (sec. 2 (1) (3)) does not lead to the result that the section concerned is ultra vires. (Cf. Administrator Cape Province v. Ruyteplaas Estates, 1952 (1) S.A. 541; Pretoria City Council v. S.A. Organ Builders Ltd., 1953 (3) S.A. at p. 408}. Naturally a provincial council may not confer greater powers on an Administrator then it itself has. (Landelike Lisensieraad, Krugersdorp v. Cassim, 1961 (3) S.A. at p. 129G-H) and an Ordinance is certainly ultra vires in so far as it purports to confer on an Administrator powers which are ultra vires the Provincial Council. A reference to the title (which is permissible in the present circumstances, Law Union and Rock Insurance Co. Ltd. v. Carmichael's Executor, 1917 A.D. at p. 597), makes it still clearer that the legislator intended to pass a measure in respect of the extermination of vermin and matters related thereto only, and it is inconceivable that the intention could have been to authorise the Administrator to approve• a constitution which also covers other matters and, a·fortiori, matters which fall outside the powers of the council itself. It cannot be said that sec. 2 is not reasonably conducive to the main object. See R. v. Dickson, supra at p. 233; Johannesburg Consolidated Investment Co. Ltd. v. Marshalls Township Syndicate

512

Ltd., 1917 AD. at p; 674. Cf. also Johannesburg Municipality v. Davies and Another, 1925 AD. at p. 402; City of Cape Town v. Claremont Union College, 1934 AD. at p. 420; Pretoria City Council v. S.A. Organ Builders Ltd., supra at p. 409. It cannot be submitted that the provision does not serve a useful purpose or that it is not reasonably expedient when, inter alia, it is borne in mind that the control of vermin can only be successful when it is done in an organised way by an owners of land. The pest cannot successfully be controlled if e.g. only some farmers exterminate vermin while on other farms they are allowed to increase their numbers undisturbed. In this regard it is also emphasised that a court of law cannot introduce its own opinion in the place of the opinion of the legislator (who is undoubtedly better informed about the magnitude of the vermin pest and the practical problems in connection with the control thereof). (Cf. Joyce and McGregor's case, supra). The fact that the provision intrudes upon what may be called the fundamerital right of freedom of thought and society does not lead to invalidity. Cf. Gertzen's case, supra at pp. 556, 551, 552-3; Johannesburg Consolidated Investment Co. Ltd.'s case, supra; R. v. Champman, 1943 C.P.D. 338 (confirmed in R. v. Michelson, 1939 AD. at p. 15); Abraham v. Durban Corporation, 1927 AD. 44. 

Van Heerden, in reply.

Cur. adv. vult.

Postea (November 28th).

RUMPFF, J.A: In terms of the provisions of sec. 2 of Ord. 11 of 1967 (0) the appellant is a compulsory member of the respondent and in terms of the same section he is compelled to pay his membership fee to respondent annually. The respondent claimed the membership fees from appellant for the years 1968 and·1969, but appellant refused to pay them. Because the issue between the parties arose from an interpretation of the Ordinance concerned, the parties agreed to place the matter by way of a stated case, with respondent as plaintiff, before the Orange Free State Provincial Division for decision. That Court decided in favour of respondent and ordered appellant, as defendant, to pay the membership fees due, i.e. RS, to respondent. By agreement between the parties no order as to costs was made.

The appellant now appeals against the decision of the Orange Free State Provincial Division.

According to the facts of the stated case, appellant is the registered owner of a farm, 261 morgen in size, situated in the magisterial district of Ladybrand in the Orange Free State. Respondent came into being in 1965 as a hunting society as a result of the amalgamation of three existing hunting societies which functioned on a voluntary basis over a total area of about 9 million morgen in the Orange Free State. As from 1st January, 1966 respondent was registered as a hunting society in terms of secs. 2 and 3 of the Extermination of Vermin Ordinance, 8 of 1953(0) as amended. The area for which respondent was created and registered as a hunting society comprised a number of magisterial

513

districts, including Ladybrand, and was about 11½ million morgen in extent. In terms of Administrator's Proclamation 133 of 1967 the area in which respondent functioned was increased so that it comprised the whole Orange Free State. As from 1st January, 1968, Ord. 8 of 1953 was repealed and replaced by Ord. 11 of 1967. In view of the adaptation to this new Ordinance the previous constitution of respondent was replaced by a new constitution, a copy of which was attached to the stated case. The Court a quo was referred in particular to sec. 2 of Ord. 11 of 1967 which reads as follows :

"2. (1) Subject to the provisions of this Ordinance, the affairs .of Oranjejag shall be managed in accordance with the provisions of its constitution, as approved by the Administrator, and for this purpose it shall ·be a body corporate, capable of suing and being sued in its corporate name and of per­ forming all such acts as are necessary for or incidental to the exercise of its powers and the performance of its functions.

(2) Every owner of land in this Province shall be a member of Oranjejag and shall pay annually to Oranjejag a membership fee not exceeding ten rand; Provided that-

(a)	no membership fee shall be paid by a member if the size of the land of which he is owner on the date on which such fee becomes payable is less than 100 morgen in extent;

(b)	membership fees may differ having regard to the difference in the sizes of the land .of which members are owners on the date such fees become payable.

(3)	The constitution of Oranjejag sha,11 not be amended except with the approval of the Administrator.

(4)	The Administrator may,.from funds made available for this purpose by the Provincial Council, and on the basis which he may determine, make grants in aid to Oranjejag."

The argument on behalf of appellant was that this section was ultra vires: (i) on the ground that it contained the possibility of encroaching on an area where the Provincial Council has no legislative authority, because of the provisions of respondent's constitution and potential amendments thereto; in the alternative that it includes topics on which the Provincial Council has no legislative authority, and (ii) on the ground that it in effect levies ground tax and entrusts respondent with the collection thereof.

The second ground, viz. that ground tax is in effect levied was apparently not argued with conviction in the Court a quo and as regards the first ground, the Court a quo found that it could not be said that the obligation to become a member of respondent and to pay, membership fees, is not reasonably useful for the attainment of the objects of the Ordinance and that, in terms of the Ordinance the Administrator is required only to approve constitutions which reason­ ably serve the objects of the Ordinance. Should the Administrator not do this, he would act ultra vires the Ordinance, but such conduct would not make the Ordinance itself ultra vires.

Before dealing with appellant's arguments before this Court it is perhaps desirable to sketch briefly the development of provincial legislation concerning the extermination of vermin since 1914, and to refer to some sections in the present constitution of respondent, from which· the characteristics of respondent may be deduced. The Ordinances to which I shall refer are all Orange Free State Ordinances.

Ord. 4 of 1914 already made provision for the registration of so-called "Vermin Societies" and for the payment of rewards and allowances to

514

such societies by the Administrator for the extermination of vermin. Certain rights were given to these societies which had voluntary membership, inter alia the right to hunt vermin on the ground of an owner with the owner's consent, or, should the owner not take proper steps, to exterminate vermin on his property on instruction by the Administrator. Ord. 10 of 1917 made certain amendments, and amongst other things it was provided that an owner who refused to assist in a hunt, personally or by a representative, had to pay compensation for services rendered, viz. a fixed amount per vermin killed.

In 1921 the 1914 Ordinance was again amended and in 1926 the Ordinance was repealed and replaced by Ord. 8 of 1926. This Ordinance made provision for the registration of "hunting societies" and their composition and for rewards and allowances which could be paid by the Administrator. A society had the right to hunt on a member's property and also on the property of a non-member after notice had been given. An owner who was not a member was obliged to pay the society for services rendered in respect of vermin put up and killed on his property or put up on his farm and killed elsewhere.

After amendments in 1933, 1937 and 1944, the 1926 Ordinance was repealed and replaced by Ord. 8 of 1953. Also in the 1953 Ordinance provision was made for the registration of hunting societies after approval of their constitutions, and in sec. 5 (2) it was provided that the constitution could not be amended except •with the consent of the Administrator. A hunt may take place on any ground within the area of the hunting society. Occupiers of ground on which vermin was found and who were not members of the society had to pay the society for vermin killed, and the Administrator could use funds for the establishment of a breeding station for hunting hounds, subsidies to hunting societies and rewards in respect of vermin killed. •An occupier who re­ fused to assist in a hunt was guilty of an offence.

Through Ord. 19 of 1965 a new section was inserted in Ord. 8 of 1953, sec. 5 (bis) in terms of which every owner of ground within an area for which a hunting society had been established, was compelled to become a member of the society provided that the area was at least a million morgen in extent. The words "owner" and "ground" were de­ fined in sec. 5 (bis) (2). The 1953 Ordinance was repealed and replaced by Ord; 11 of 1967 which is a continuation of the previous legislation. Legal personality is granted to respondent and in terms of sec. 2 (2), quoted above, every owner of ground in the Province is compelled to be a member of Oranjejag and to pay membership fees.

In respondent's constitution, respondent's name is given as The Orange Free State Vermin Control and Wild Life Protection Society, known in short as Oranjejag. The area for which the society is established consists of the Province, Orange Free State. The objects, according to sec. 3 are as follows :
"3. (a) to strive for, and actively take steps to combat and exterminate harmful vermin, with the a.id of hunters and packs of hunting hounds or any other method or expedient, with regard to the provisions of Ord. 11 of 1967 (or any amendment thereto).

(b)	to strive for, in any way that it may decide, the preservation and protection of fauna (except harmful vermin).

(c)	to undertake research in connection with the extermination and contwl of vermin and/or the protection of faun1."

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As regards membership, sec. 4 provides that all owners of land in the Orange Free State, as provided in sec. 1 of the Ordinance, are members of the Society. Liability 0£ a member is limited to his unpaid membership dues. Membership fees are payable according to a tariff based on size of land. Owners of ground less than 100 morgen in extent pay no membership fees. The management of the Society is entrusted to a chosen Central Board which in its turn must establish a management committee. On the management committee there is one member who is appointed by the Administrator of the Orange Free State and he has sitting and the right to vote at meetings of the Central Board together with other members of the management committee. Concerning the duties of members of Oranjejag, sec. 15 of the constitution reads as follows :

"15. It will be the duty of each ordinary member of the Society to:

(a)	Provide accommodation and food free of charge to all white hunters when a hunt takes place on his property.
(b)	Provide sleeping accommodation for all Bantu hunters.
(c)	Provide a place where the hounds can properly be housed so that they cannot escape when not hunting. Such place must he capable of being locked properly.
(d)	Supply, when necessary and if possible riding horses for the hunt and stabling and/ or pasturage for the Society's horses.
(e)	Assist as far as possible with hunts and if necessary see to it that hunters carry out their duties.
(f)	Bring to the attention of a hunter or a member of the Central Council or report direct to the head office of the Society any incongruity during a hunt.

Sec. 16 (a) reads as follows:

"This constitution can be amended with the consent of the Administrator, if at least three quarters of the members of the Central Board who were present it a meeting of the Board, which was called specially for the purpose, voted in favour of such an amendment."

In sec. 17 it is provided that the Society can be liquidated with the consent of the Administrator if at least three quarters of the members present at a special meeting of the Central Board voted in favour of liquidation.

It is common cause that the "extermination of vermin" is a matter which forms part of the legislative authority of provincial councils in terms of the provisions of sec. 13 (1) (a) of Act 38 of 1945, read with Item 1 of the Second Schedule to the Act, as amended by sec. 3 (a) and sec. 4 of Act 70 of 1956. It is also common cause that in respect of matters entrusted to provincial councils, they must be regarded as be­ ing legislators with original legislative authority and in this capacity they can, subject to two provisos not relevant here, make laws as completely and effectively as Parliament itself, and that provincial legislation cannot be challenged in a court on the ground of unreasonableness or unfairness.

On behalf of appellant it was contended that the provisions of sec. 2 of Ord. 11 of 1967 are ultra vires because they compel owners to pay what amounts to a tax and the money can be used for a purpose in respect of which the Provincial Council has no legislative authority. It was suggested that the constitution of respondent could in future be amended, with the consent of the Administrator in such a way that an object could be added to the present objects and that such an object

516

could include a matter on which the Provincial Council has no authority. In this connection it was argued that had the Ordinance provided that membership fees may only be used in connection with the extermination of vermin, sec. 2 would not have been ultra vires.

The argument as set out above is in my opinion not a valid one unless one adds to it that the intention of the Provincial Council was to allow respondent to add objects which may fall outside the legislative authority of the Provincial Council and that this intention can be deduced from the contents of the Ordinance. As regards the interpretation of legislation, there is a presumpt10n that the Legislator does not intend to make powerless or purposeless provisions and tha.t an interpretation must be preferred which would have the effect that the legislation is not ultra vires. (See Steyn, Uitleg van Wette, 3rd ed., p. 119). This presumption seems to me to apply to a case like the present. One must therefore look to see if the Ordinance reflects such an intention in express or clear language.

When the Ordinance is viewed as a whole, there is in my opinion no indication that the Provincial Council intended to enable the respondent to amend its constitution in future in such a way that it may incorporate an object concerning a matter falling outside• the legislative power of the Council. On the other hand it is clear that the Council intended to deal fully in the Ordinance with the extermination of ver­ min. Moreover the considerans of the Ordinance reads 

"To provide for the extermination of vermin .and for matters incidental thereto."

In the Ordinance it is, inter alia, provided that, "save the provisions of this Ordinance", the affairs of Oranjejag must be administered in terms of the provisions of its constitution and it is expressly provided that the constitution may only be amended with the leave of the Administrator. This latter provision constitutes in my view a clear indication that, although new objects may be considered, the Provincial Council intended to give the Administrator a right of veto ;to ensure that no objects are inserted in the constitution concerning matters of no interest to the Council or falling outside the Council's legislative authority, and to ensure that the affairs of the respondent are administered in terms of the provisions of the Ordinance, The representation of the Administration on ,the management committee, and thus on the Central Council, is also an indication of the Administration's power to control the administration of Oranjejag's affairs in terms of. the provisions of the Ordinance. All the sections of the Ordinance, except one, deal directly or indirectly with the extermination of vermin. The exception is sec. 10 which provides that no one may export a monkey or an ape from the province except with the leave of the Administrator. This section has nothing to do with respondent's constitution and is clearly neutral. The cases of Landelike Lisensieraad, Krugersdorp v. Cassim en Andere, 1961 {3) S.A. 126 (AD.), and Springs Town Council v. Soonah, 1963 (1) S.A. 659 (A.D.), on which appellant relied, show that a Provincial Council may not exceed the boundaries of its legislative authority and that a subordinate managing body could never

517

have greater power in terms of an Ordinance. In both cases the question was whether a provision in an Ordinance exceeded the enabling legislation of Parliament. In both cases this Court, because of the wording of the provision which was challenged, was forced to the conclusion that the provision in the Ordinance was ultra vires. The other cases also, dealing with the interpretation of legislation, to which we have been referred, were decided on the particular wording of the legislation which was in question there, and are of no material assistance in the interpretation of Ord. 11 of 1967.

The conclusion to which I arrive, is that there is no clear provision in the Ordinance, or even any provision, from which one may conclude that the Provincial Council intended to enable the respondent to extend its activities to matters falling outside the legislative authority of the Council or to enable the Administrator to approve of such an extension. The indications rather show a contrary intention.

On behalf of the appellant a further submission was made in this Court, but not to the Court a quo. The contention is that the compulsory membership fees payable to respondent amount to a tax and that this money had to be paid, in terms of sec. 3 of the Financial Relations Consolidation and Amendment Act, 38 of 1945, into the provincial revenue fund and could subsequently be disbursed. Because the money is not paid into the provincial revenue fund, so it is contended, sec. 2 of the Ordinance is ultra vires. It was contended in the alternative that, if the membership fees do not amount to revenue, the Provincial Council has no power to order anyone to pay to anyone and that for this reason the said sec. 2 is ultra vires.

Concerning the first part of this contention we were referred to sec 88 (1) (a) of the Constitution Act, 32 of 1961, which provides:

'There shall be a provincial revenue fund in every province, into which shall be paid all revenues raised by or accruing to the provincial coucil and all money paid over by the State President to the provincial council."

Sec. 3 of Act 38 of 1945 provides:

"All expenditure incurred by any province in respect of matters entrusted to that province shall be defrayed from the provincial revenue fund."

Item 10 of the First Schedule to Act 38 of 1945 enables a Provincial Council to levy a tax on the ownership of land. The question is therefore whether the compulsory membership fees may be considered as being tax. The answer to this question is in my view clear. The Provincial Council entrusted the extermination of vermin to an association which is a body corporate and provided that owners of land will be members of the association. Membership fees are payable to the association by certain owners, depending on the size of their property, and the association may use the money in defraying its expenses. Sec. 10 (f) of the constitution provides that the managing committee may use the money at the association's disposal to cover the expenses incurred in connection with the activities of the association or it may invest the money. No part of the membership fees is payable to the Provincial Council and the Provincial Council retained no power for itself to dispose of the money.

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If the rule in interpreting a revenue act is that a person is deemed to be dutiable if the Act unequivocally makes him so, the same rule will in my view apply when the question arises whether or not a pro­ vision in an Act aims at a tax. And in such a case the rule which is applicable in the interpretation of a revenue act, will also apply,

518 B

viz. " ...................." except when it is necessary, see Commissioner for Inland Revenue v. Simpson, 1949 (4) S.A. 678 (AD.) at p. 695. The wording of Ord. 11 of 1967 is in my view so clear ,that there is no ground whatsoever for the deduction that membership fees may be considered as a tax payable to the Provincial Council and which ought therefore to be paid into the provincial revenue fund.

The second question under this head of argument is whether the Provincial Council is entitled to compel the respondent's members to pay membership fees to the respondent. It goes without saying that the Council is entitled to appoint officials or other persons to exterminate vermin in the Orange Free State and because the Council would; be­ cause of its original and full legislative authority concerning the extermination of vermin, in my view be entitled to compel owners of land to pay compensation for the costs of such officials or other persons, it would also be entitled to compel all the said owners to pay compensation to an organisation or association whose function it is to exterminate vermin in the Orange Free State. It is evident that the membership fees must be used for defraying respondent's costs incurred in functioning as an exterminator of vermin. The fact that the conservation of fauna is mentioned as an object in respondent's constitution, does not detract from this power• because the conservation of fauna admittedly falls within the legislative authority of the Provincial Council. The membership fees are therefore not applied in connection with a matter falling outside the legislative authority of the Council and the payment of membership fees is a duty which directly concerns the ex­ termination of vermin. A similar case, as far as it concerns Parliament, may be found in the provisions of the Motor Vehicle Insurance Act, 29 of 1942, where it is, inter alia, provided that no.one may drive a motor vehicle on a public road or street unless that motor vehicle is insured in terms of the provisions of that Act. In terms of that Act a duty is imposed to insure motor vehicles and the insurance moneys are payable not to the State, but to insurance companies. I am there­ fore of the opinion that the Provincial Council in the present case is in fact entitled to compel respondent's members to pay membership fees to respondent.

The third, and last ground on which the appellant relies, is also a ground which was not submitted to the Court a quo. In the contention dealing with this, it is accepted that when legislative powers are granted to a provincial council, powers which are reasonably necessary to implement the powers expressly granted, must be implied and it is accepted that if an ancillary power is exercised which is reason­ ably necessary for the exercise of the main power, then it cannot be

519 A

ultra vires merely because of the fact that a matter over which the provincial council has no legislative power, is incidentally involved or because the rights and liberties of the individual are affected. It is, however, submitted that an ancillary power may only be validly exercised when there is a sufficiently close connection between the main and the ancillary power. In several previous cases decided in this Court the question was put, in deciding on the validity of an implied ancillary power, whether such an ancillary power, is reasonably necessary for the exercise of the main power, or, to put it differently, whether it is reasonably ancillary or incidental to the main power. The concept of "close connection" appears in a judgment of this Court, Joyce & McGregor Ltd. v. Cape Provincial Administration, 1946 A.D. 658 in which it is said, with reference to a previous judgment in Middelburg Municipality v. Gertzen, 1914 A.D. 544, inter alia: "……………….."

519 E

It was further contended that compulsory membership of an association, whose constitution may not be amended without the Administrator's leave, infringes the freedom of association and that an infringement of this nature cannot be considered as reasonably necessary for the exercise of the power expressly granted. It was contended that there is no normal and close connection between the extermination of vermin on the .one hand and the limitation of the freedom of association and an association's power to amend its constitution on the other hand. The absence of this close connection has the result that the Provincial Council exceeded its authority and that sec. 2 of the Ordinance is ultra vires.

It is to be expected that legislation which provides for compulsory membership of an association and which at the same time restricts the liberty of its members to amend the association's constitution, will give rise to a certain amount of resentment amongst those who still value certain liberties. This type of legislation ventures into an area upon which, as far as I know, neither Parliament nor other Provincial Councils have set foot and that this venture is eyed with disquietude, cannot be denied. Add to this, for example. the obligation which rests on a compulsory member, mentioned in respondent's constitution, to pro­ vide board and lodging to those who hunt on his land, and it seems to remind one of certain facets, of a bygone feudal system. This Court has, however, previously stressed that it is not competent to decide on the wisdom or not of legislation and to decide, in view of such a con-

520

sideration, whether or not legislation is ultra vires. Such competency would not uphold the division between legislative power and judicial authority and would be contrary to the Constitution Act of the Republic. The question which must be decided is whether the restriction on the right of association in the present case is of such a nature that there is insufficient connection between the extermination of vermin and the specific restriction on the freedom of association. Whether a sufficiently close connection exists in a specific case where freedom is restricted, ·between matters over which legislative power exists and the restriction on the freedom, would in each case depend on the special circumstances and it seems to me to be impossible to lay down a general rule applicable to every case.

It is not denied that the Provincial Council would have the power in the present case to compel every owner of 'land to exterminate vermin on his land himself. This would of course directly infringe. personal liberties. Compulsory membership of respondent results in the compulsory payment of membership fees and, inter alia, the obligation to assist when a hunt takes places on a member's land. The member is not compelled to attend any meetings and the only meeting which he may apparently attend, is an annual meeting where the members of the Central Council are elected. In the present case we have also not to deal with a prohibition on membership of an association, but with compulsory membership of an organisation used by the Provincial Council as an instrument to exterminate vermin. One can understand that members on whose land no vermin exists, may object to the payment of membership fees, but on the other hand vermin has the propensity to increase in numbers and to spread, if no control is exercised over them. The extermination of vermin in certain areas of the Orange Free State is therefore to the advantage of all owners of land in the Orange Free State. Although compulsory membership is of recent date, the use of hunting associations by the Provincial Administrations in the extermination of vermin dates back to 1914. The use of- such an association is in fact in direct connection with the extermination of vermin and materially the only question which arises, is whether compulsory membership, in the light of the particular facts of the case, has insufficient connection with the extermination of vermin.

When one considers the nature of a member's obligations in the present case and the extent of the concomitant infringement of rights, as well as the advantage of compulsory membership to the Province as a whole, it seems to me that it cannot be said that there is no sufficiently strong connection between compulsory membership of respondent and the extermination of vermin. It is perfectly true that vermin can be satisfactorily exterminated without compulsory membership of an association, but it does not necessarily follow that because of compulsory membership, such obligation has no or an insufficient connection with the extermination of vermin. Viewed from another angle, it could be said that in the present case the joint interests of all the owners of land, which are served by compulsory membership of respondent, weigh so much. more heavily than the infringement of the freedom of an in-

521

dividual owner of land that it cannot be said that this specific infringe­ ment of freedom fell outside the powers of the Provincial Council. I am therefore not convinced that sec. 2 of Ord. 11 of 1967 is ultra vires.

It is common cause in this Court that the usual order concerning costs must be made. In my view the appeal must be dismissed with costs.

OGILVIE THOMPSON, J.A., HOLMES, J.A., WESSELS, J.A. and JANSEN, J.A., concurred.

Appellant's Attorneys: Symington and de Kok, Bloemfontein. Respondent's Attorneys: Leinberger, van de Wall and Potgieter, Bloemfontein.