No. 14-1868.

situation, nature, and extent of the land or property proposed to be sold, and of the object or purpose for which the money to arise Lands may be sold from the sale is required: Provided, also, that when and as often subject to servitudes as any land or property shall be sold under and according to the provisions of this section, then such land or property shall be subject to such servitudes, conditions, and provisions as shall be inserted in the transfer deed of the land or property so sold, and to none other; anything contained in the original grant of such Council may ex- land or property to the contrary notwithstanding: Provided, further, that the said council may, with such consent, as aforesaid, alienate any of the land or property aforesaid in exchange for other land or property, but such council shall not, except with such consent, alienate any such land or property; and the provisions of this section in regard to the notice to be given before applying for a consent to sell shall extend to any application for a consent to an exchange.

change lands.

Council may, with consent of Governor,

tures.

42. The council elected under this Act may, with the consent of raise loans on mort- the Governor aforesaid, testified as aforesaid, raise by way of gage or by deben- mortgage of any land or property vested in the said council, or by debentures or other securities charged upon such land or property, any sum of money which shall be required for any purpose of a municipal nature which the said council shall deem desirable and But notice to be the said Governor shall approve of: Provided that the provisions given of such inten- of the last preceding section requiring the publication of notice of an intended sale shall, mutatis mutandis, apply to the case of Council to execute an intended mortgage or issue of debentures: Provided, also, that on which debentures as often as the said council shall raise money by the issue of shall be charged. debentures, to be charged upon any such land or property as afore

tion.

mortgage of property

Extent to which loans may be raised.

said, the council shall execute to and in favour of any person or persons whom the said council shall propose, and the Governor aforesaid shall approve of, a mortgage of the land or property upon which it is intended that the said debentures shall be charged, to be held by such person or persons in trust for the holders of the debentures so issued, which holders shall, according to their respective amounts and interests, rank pari passu upon the proceeds of the land or property comprised in such mortgage.

43. The sum of money to be raised under the last preceding section in any one year, reckoned from the first day of January till the 31st of December, shall not exceed double the amount which shall be estimated as the probable sum to be yielded by the municipal rate assessed, or to be assessed, in manner hereinafter But mortgages or mentioned, for that year: Provided that no mortgage granted or not affected by limit debentures issued under the said last preceding section shall be

debentures issued

being exceeded.

invalidated or affected, either wholly or in part, by reason that the sum secured by such mortgage or debentures shall prove to have exceeded the sum which, under and according to the provisions of this section, ought to have been raised.

No. 14-1868.

Council may raise

loans upon security

rates.

But only with con

ratepayers.

44. The council may, for any such purpose as is in the fortysecond section described, mortgage or charge by debentures the municipal rates of the said municipality in security for any sum of of money to be borrowed by the said council: Provided that no sum of money shall be capable of being borrowed under the sent of majority of provisions of this section, unless with the previous consent of a majority of the ratepayers of the said municipality present at a meeting to be convened by the council upon a notice of not less than twenty-one days, to be published in the manner hereinafter in the seventy-fifth section mentioned: And provided that it shall not be And not to exceed lawful for the said ratepayers to sanction or for the said council to borrow upon security of the said rates any sum or sums exceeding at any one time the sum of twelve thousand pounds sterling. 45. Every mortgage aforesaid or power of attorney for authoris- Mortgages, low to ing the execution of a mortgage of any land or property under this Act shall be under the common seal of the corporation, and shall be executed by two councillors and be countersigned by the Town Clerk, and every debenture issued under this Act shall be executed in the same manner.

£12,000.

be executed.

into fresh loan to

obtaining Gover

46. As often as any mortgage granted or debenture issued under Council may enter any of the preceding sections of this Act shall be called up, or any pay off loans becomdebenture shall become payable, it shall be lawful for the said ing payable without council to raise by a fresh mortgage of the same land, property, or nor's sanction. rates which was or were mortgaged by such mortgage, or to raise by the issue of fresh debentures, any sum not exceeding the sum then required to be paid off; and the council may raise upon debentures moneys required to pay off mortgages, and conversely may raise by mortgage moneys required to pay off debentures, so long as the same land, property, and rates which were charged by the one form of security and none other, shall be charged by the other or substituted form of security: Provided that it shall not be necessary for the council to obtain the consent of the Governor aforesaid for the granting of any mortgage or the issue of any debentures under the provisions of this section. And whereas by Provision for loans the Act aforesaid, No. 31 of 1860, certain borrowing powers akin contracted previous to those in this Act mentioned were conferred upon the council Act. created by the said Act: And whereas the said council, acting bonâ fide, and purporting to act under such powers, borrowed from the South African Mortgage and Investment Company (Limited) a sum of six thousand pounds upon mortgage of certain property of the said municipality, to wit, the property commonly called and known as the Town-hall: And whereas, owing to a failure to comply with certain of the powers or requirements of the Act aforesaid, in regard to such mortgage, doubts may be entertained whether the said mortgage is in law valid and sufficient: And whereas it is the desire of the said council and at the same time just and expedient, that all such doubts should be removed, and also that the said council should be authorised and empowered to secure

to passing of this

No. 14-1868.

Mortgage in favour

of South African

ment Company declared valid.

by one or more first mortgages as may be found convenient the moneys needed to pay off the principal and interest of the said mortgage to the said South African Mortgage and Investment Company (Limited): Be it enacted as follows:

47. The mortgage aforesaid, bearing date the 27th day of June, Loan and Invest- one thousand eight hundred and sixty-three, and executed by the council aforesaid to and in favour of the company aforesaid, for six thousand pounds, with interest, is hereby ratified and confirmed, and declared to be and to have been from the date thereof a good, valid, and sufficient mortgage.

Council may grant

ne or more mort

pany.

48. It shall be lawful for the council of the municipality for the gages for paying off time being, at any time after the taking effect of this Act, to grant loan of above com- one mortgage, or more than one, as may be found convenient, for securing to any person or persons who shall have lent and advanced to the said council the amount required to pay off the mortgage aforesaid, or any part thereof, the amount so advanced; which mortgage or mortgages, as the case may be, shall hypothecate the same property which was hypothecated by the mortgage aforesaid, and none other, and shall not be granted for any greater sum upon the whole than the principal sum of six thousand pounds secured by the mortgage aforesaid, together with any interest which may be due upon the said sum; and such last-mentioned mortgage shall be cancelled before the granting of the mortgage or mortages to Mortgages, where be substituted therefor: Provided that if more mortgage bonds be granted, how to than one shall be granted under the provisions of this section, they shall each bear equal date, and, notwithstanding the order of time in which they may stand registered in the Deeds Registry, they shall all rank pari passu as if registered at the same instant : Sections forty-five Provided, also, that the provisions of the forty-fifth and fortyand forty-six to ap- sixth sections of this Act shall respectively apply to the mortgage or mortgages to be executed under the provisions of this section, and that the mortgage deed or deeds so executed shall state in some part thereof that the same is or are granted under the authority of this section of this Act.

more than one shall

rank.

gages.

Municipal lands may be leased for

building purposes.

Mode of leasing and

conditions of lease.

Mines and quarries.

Lessee not to sublet without sanction of souncil.

49. The council may lease any portion of the lands belonging to the municipality for building purposes, for a period not exceeding thirty-three years, and for any other purpose for a period not exceeding twenty-one years: Provided that such leases shall be put up at auction to public competition, and that they shall contain a power to re-enter for non-payment of rent or non-peformance of covenants.

50. The council may, by public sale or tender, lease the privilege of working any mines or quarries belonging to the corporation.

51. No lessee of any such land, or of any mines or quarries, shall assign or sub-let the same without the previous consent of the council, testified in writing by the Town Clerk.

No. 14-1868.

chase or hire lands,

provements.

How where parties sale or hire.

disagree as to terms

of

52. In case the said council shall require to take or use any land, with or without the buildings, if any, erected thereon, for the Council may purpurpose of making, widening, or improving any street, market, or buildings, or mate public building, or to dig out or carry away any materials belong-rials for public iming to any person or persons within the said municipality, or to appropriate or make use of any springs, streams, or other supplies of water belonging to any person or persons who shall not be bound in law to allow the Town Council so to do, then, and in that case, it shall be lawful for the said council, and it is hereby authorised and empowered, to treat and agree with every such person or persons for the purchase or hire, as the case may be, of any such land, buildings, materials, springs, streams, or other supplies of water, as aforesaid, and generally to enter into such contract or contracts, relative to the obtaining of any such land, buildings, materials, springs, streams, or other supplies of water, upon such terms and conditions as the said council shall judge expedient; and in case any such person or persons and the said council shall not agree upon the purchase money, or hire, or other recompense to be respectively given by the one party and accepted by the other, then the said council shall cause to be served upon such person or persons a written notice, offering as recompense or compensation whatever sum of money it shall deem sufficient, and requiring such person to state in writing to the said council, or to some person by it appointed, within fourteen days from the service of the said notice, whether he or they are willing to accept the sum therein mentioned or not; and in case the person shall refuse to Arbitration may be accept the sum offered, or shall neglect to reply to the said referred to. notice, then the said council shall, by another notice in writing, call upon such person or persons to refer to arbitration the amount of recompense or compensation to be paid to him or them by the said council, and for that purpose to transmit to the said council within a certain reasonable time to be specified in the said last-mentioned notice, the name of some person whom he shall select to be an arbitrator upon such arbitration, and the said council, upon receiving the name of the person so selected, shall nominate a second arbitrator, and shall cause a deed of submission to be prepared, which shall be signed on behalf of the said corporation by the Town Clerk for the time being, and by the person or persons claiming such recompense or compensation as aforesaid, and which shall clearly set forth the matter to be determined by the said arbitrators, together with a power to the said arbitrators in case of a difference of opinion, to call in an umpire, whose decision shall be final; and the award of such arbitrators or umpire, as the case may be, shall be made a rule of the Supreme Court of this Colony or the Court of the Eastern Districts, and shall be binding and conclusive, and may be pleaded in bar to any action or proceeding at law brought for, or on account of, the same subject-matter. And in case such person as aforesaid claiming

No. 14-1868.

or refuses to name arbitrator.

such recompense or compensation shall neglect or refuse to name How where owner some person to be such arbitrator as aforesaid, or to sign the said of property neglects deed of submission, then it shall be lawful for the said council, and it is hereby authorised to lodge in some joint-stock bank in the Colony the sum of money offered by it as aforesaid, in its first notice in this section mentioned, for or on account, and at the risk of such person as aforesaid, who shall at all times be entitled to draw the same out of the said bank as his absolute property; and the said council, upon so lodging the said sum, shall be authorised and entitled to take or use the said land, buildings, materials, springs, streams, or other supplies of water in question, as freely as if the said sum had been agreed upon between the parties as the sum to be paid, or had been an order by the arbitrators or umpire under the provisions of this section, and as if all acts by law required for vesting in the said council a sufficient title to the use of, or property in, the land, buildings, materials, springs, streams or other supplies of water aforesaid, had been duly done and performed.

How if owner of

not discoverable.

53. In case the said council shall require to take or use any of property be absent or the land, with or without the buildings, if any, erected thereon, or to dig or carry away any of the materials, or to appropriate or make use of any springs, streams, or other supplies of water, in the last preceding section mentioned, of which the owner or owners shall be absent from the Colony, and not represented by any agent duly accredited, or shall not be discoverable, then it shall be lawful for the said council, and it is hereby authorised, tocause a notice to be inserted in the Government Gazette, and one or more newspapers published in the town of Port Elizabeth, for four successive weeks, describing, as accurately as may be, the materials, land, buildings, springs, streams, or other supplies of water which are required to be taken or used, and calling by name on the owner or owners of the said land, buildings, materials, springs, streams, or other supplies of water, if known, to take notice that the said council is ready and willing to treat with the owner or owners, or any persons duly authorised by him or them, for the recompense or compensation to be made or paid by the said council for the said land, buildings, materials, springs, streams, or other supplies of water, and requiring such owner or owners to. apply within six months from the date of such notice, which shall be the day of its publication, to the said council, stating the recompense or compensation claimed; and if the owner or owners shall so apply within the said period, then the like proceedings in regard to the agreeing for or otherwise determining the recompense or compensation to be respectively given and received shall in all respects be had and taken, which are prescribed in the last preceding section, precisely as if the said owner or owners had from the first been in actual occupation; and in case such owneror owners shall not apply to the said council within the said period,