Adbro Investment Co Ltd v Minister of the Interior and Others

• Jurisdiction: South Africa
• Judge: Williamson J
• Judgment Date: 03 April 1959
• Court: Transvaal Provincial Division
• Citation: 1961 (3) SA 283 (T)

Williamson, J.:

In this matter the petition dated January 29th, 1959, F was originally set down for hearing on February the 12th and was postponed eventually until March the 24th. The applicant company Adbro Investment Company Limited seeks two declaratory orders to which I will make fuller reference later and no consequential relief is claimed upon such orders. It is averred in the petition that a dispute has arisen between the applicant and in particular the first respondent in regard G to the validity or otherwise of certain sales and transfers of specified properties in Denver, Johannesburg and Rustenburg. These properties, as far as the registration is concerned, stood registered in the name of the applicant company; certain transfers have since taken place. The declaratory orders having reference to the sales and transfers and one other matter are sought under the provisions of sec. H 102 of the General Law Amendment Act 46 of 1935 and in terms of that section the Court has jurisdiction in its discretion to enquire into and to determine rights or obligations of a future or present contingent nature even though no consequential relief be claimed. I emphasise the words 'in its discretion'; those words are of importance in considering this application. In the case of Adbro Investment Company Limited v Minister of the Interior, the case in which the present applicant and the first respondent were the parties in relation to these same

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properties reported in 1956 (3) SA 345 (AD), the case to which I will refer again later, it was held that one Judge of this Division has jurisdiction to hear an application for a declaratory order under the provisions of sec. 102 of the General Law Amendment Act of 1935. Previously there had been some doubt on that matter. In the case of A Williams v Benoni Town Council, 1949 (1) SA 501 (W), ROPER, J., said at p. 510 that he could see no cogent reason for a restrictive rather than a liberal exercise of the discretion bestowed upon the Court by this section. With that view I respectfully agree, but I would like to add that that does not mean that the Court in each case must not carefully determine whether or not the particular case in question is B a proper case for the exercise of its discretion. For a case to be a proper case, in my view, generally speaking it would require to be shown that despite the fact that no consequential relief is being claimed or perhaps could be claimed in the proceedings, yet nevertheless justice or convenience demands that a declaration be made, for instance as to the existence of or as to the nature of a legal right claimed by C the applicant or of a legal obligation said to be due by a respondent. I think that a proper case for a purely declaratory order is not made out if the result is merely a decision on a matter which is really of mere academic interest to the applicant. I feel that some tangible and D justifiable advantage in relation to the applicant's position with reference to an existing future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.

I turn to the facts of this particular application. The applicant company Adbro Investment Company Limited, was incorporated in 1942 and it is a registered company under the Union Company Laws with the head E office or registered office in Johannesburg. In these proceedings the company is represented by one Omarjee Moosa Ebrahim who is a director of the company. He has been authorised by resolution to bring these proceedings. The first respondent is the Minister of the Interior cited in his capacity as such. I will refer to other respondents as they make F their appearance in the short history of events that I will mention leading up to the bringing of this application. In 1943 and 1944 the applicant company acquired certain fixed property or purported to acquire certain fixed property. The fixed property was transferred into the name of the company. Those properties are set out in para. 9 of the petition and they are, first of all, three properties in Denver, in the G district of Johannesburg, the first being freehold stand 68; second, freehold stand 69 in the township of Denver and the third one being the leasehold stand or lot 218 in the same township. The company acquired also the two properties in Rustenburg referred to as erf 80 in the town of Rustenburg and erf 1074 in the town of Rustenburg. From reference to H p. 348 of the previous case reported in the Appellate Division between the applicant company and the first respondent it would appear that the applicant acquired these properties for the sum of £4,508 13s. 3d. At the time the applicant company acquired these properties there was, of course, in force the Asiatic Land Tenure Act of 1919 as amended, that is Act 37 of 1919, which at the time of the acquisition had been amended inter alia by Act 35 of 1932. In terms of the Act as amended it was not possible for an Asiatic

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company as defined to hold fixed property in the Transvaal and the position was as a result of the amendments that if a company was an Asiatic company as defined in the Act as amended, then the properties in question became forfeit to the State. That was in terms originally of A sec. 2 (5) of Act 37 of 1919 as inserted by sec. 7 of Act 35 of 1932. It was held in the cases of Bobert v Ettlinger and Grimwood, 1937 W.L.D. 28, and Rex v Hanid Ltd. and Another, 1950 (2) SA 587 (T) particularly at pp. 591 and 592, that on the registration of fixed property into the name of an Asiatic company as defined by the Act the B fixed property became automatically forfeited to the State. The State, in other words, became vested with the property, the dominium in the property, it became the owner of it without it being necessary for the State to take any further steps to have such a forfeiture formally declared and in regard to this company it has been averred by the State that that in fact did take place. In July, 1950, there was promulgated C the Group Areas Act 41 of 1950; in accordance with the Act it came into force following upon Proclamations and in regard to the Transvaal it came into force on the 31st March, 1951. At that stage all the old Asiatic Land Tenure Acts previously operating in the Transvaal were repealed as from that date. Two and a half years after that, namely on D 20th October, 1953, the Chief Inspector of Land Tenure in the Transvaal, acting on the authority of the Minister of Interior, forwarded to the company a notice issued in terms of sec. 20 (1) of the Group Areas Act of 1950. That notice, which is annexed to the proceedings, was addressed to O.M. Ebrahim as a director of the company. It stated that by direction of the Minister he was advised that, in E terms of the section, the immovable property therein set out (and then the properties to which I have referred which had been acquired by the company were set out) registered in the name of Adbro Investment Company Limited, an Asiatic company, which in terms of the provisions of the laws repealed by Act 41 of 1950 was on the 30th March. 1951, debarred F from holding such immovable property, the Honourable the Minister would after the expiration of three months from the date thereof (the 20th October, 1953), cause the said properties to be sold out of hand upon the terms and conditions as might be agreed to by the said company and approved of by the Minister after consultation with the mortgagee if any. The notice went on to state

G 'be pleased to take notice that if the said properties or any of them are not so sold within a period of one month after the expiration of the abovementioned period of three months, the Honourable the Minister will cause the said properties or any of them remaining unsold, to be sold by public auction upon such terms and conditions as he may determine'.

Finally, the notice said:

'Be pleased to take notice further that the balance of the proceeds of H the sale of the abovementioned properties will be paid into the Consolidated Revenue Fund in terms of sec. 20 (2) (b) of Act 41 of 1950.'

The section in terms of which that notice was issued provides in brief as follows - that if any immovable property has at the commencement of this Act been acquired or is at the said commencement held in contravention of any provision of any law repealed by this Act, or is registered in favour of any person who is in terms of any such provision debarred from holding it, the Minister may after not less than

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three months' notice in writing to the person concerned and to the holder of any registered mortgage bond over the property, cause the property to be sold either out of hand upon the terms and conditions agreed to by the person concerned and approved by the Minister after consultation with the mortgagee or if the property has not been sold A within such period, not being less than one month, as the Minister may allow, then by public auction upon such terms and conditions as the Minister may determine. Sub-sec. (2) of the section provides in regard to the costs of the sale that they are to be a first charge upon the proceeds and that any balance is to be applied towards the payment of B any debt of which payment is secured by the property in legal order of priority, and it finally provides that, unless the Minister otherwise directs, such balance over after all these payments is to be paid into the Consolidated Revenue Fund. I have not quoted the section in full but those seem to me to be the material portions of the section in relation to these present proceedings. The applicant company, the petitioner C company, immediately objected to this; when I say immediately, there is correspondence only some little time later but from an early stage it was obvious that the applicant company was going to oppose the proposed...