Alexander v Johns

JurisdictionSouth Africa
JudgeCoram Innes ACJ, Solomon J and CG Maasdorp JP
Judgment Date09 September 1912
Citation1912 AD 431
Hearing Date04 September 1912
CourtAppellate Division

Innes, A.C.J.:

This appeal is brought by the party who obtained the verdict of the trial Court, on the ground that it did not go far enough. He contends that, in addition to the interdict against the defendant Mahomed, he was entitled to judgment against the Johns, whose costs, he maintains, he was wrongly ordered to pay., Under these circumstances there is some of the ground covered by the very careful reasons of Mr. Justice BRISTOWE, over which it will be unnecessary again to travel. The questions with which we have now to deal concern not the liability of Mahomed, but the position of the first two defendants, Mr and Mrs. Johns. They are owners in freehold of lot 547 in the township of Boksburg North, which they purchased subject to certain conditions registered against their title. The plaintiff is the owner on leasehold tenure of an adjoining lot, incorporated in the title of which are provisions identical (in all respects relevant to this dispute) with the conditions governing the ownership of the defendants. And the clause common to both, and upon which the present case depends, reads as follows: "The purchaser (or lessee as the case may be) shall not let or transfer to, or in any way give, suffer, or allow the occupation in part or in whole of the said building lot, or any of the buildings thereon, to or by any Arab, Malay, Chinaman, Coolie, Indian, or any other coloured person, nor shall the purchaser allow to be located on the said lot, or any part thereof, any such person as aforesaid, unless he is in the bona fide employment of the purchaser, his tenant or tenants, and is engaged in carrying out the duties for which he is employed by the purchaser, his tenant or tenants, on the said building lot." Subject to the provisions of that clause the original predecessors in title of both parties acquired their respective holdings. The condition was imposed by the company which laid out the township It was intended to be, and undoubtedly was, for the reciprocal benefit of all owners of leasehold or freehold land therein, and formed an important element in the general scheme under which all the lots were disposed of. Its effect upon the legal position of the parties to this action will be considered later on.

Innes, A.C.J.

The Johns did not themselves lease their property to a coloured person. But they let two shops upon it to one Lintine, without inserting in the contract any stipulation with regard to coloured occupation. On the same day Lintine sub-let to the third defendant, who is an Indian, on the same terms and at the same rent, and the latter forthwith entered upon the occupation of the premises. The trial Court was satisfied that Mahomed, when he took his lease from Lintine, had not only legal notice, but actual knowledge of, the existence of the restrictive condition. He was therefore interdicted from occupying the property and ordered to pay the plaintiff's costs. But on the ground that collusion between the Johns and Lintine had not been established, and that the registration of the condition made it unnecessary for the owners to guard against its breach in their contract with Lintine, the Court dismissed the action against the Johns, with costs. It is with the correctness of this finding that the present appeal is concerned.

Now, if Mr and Mrs. Johns were parties to an attempt to evade the condition in question, if the intervention of Lintine was a mere blind, then they would be in the same position as if they were direct lessors to Mahomed. They would be liable to an interdict, and answerable for any damage which the plaintiff could prove that he had sustained. The learned Judge came, after some hesitation, to the conclusion that he would not be...

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55 practice notes
  • Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council
    • South Africa
    • Invalid date
    ...something of which he has no H knowledge. The correct formulation of this principle appears in Innes ACJ's judgment in Alexander v Johns 1912 AD 431 at 445 where it is said '(a) man who has undertaken not to suffer or allow a particular condition of things violates his undertaking, if, know......
  • Malan and Another v Ardconnel Investments (Pty) Ltd
    • South Africa
    • Invalid date
    ...facts. For these claims it would seem it C seeks to rely on a principle extracted from a line of cases commencing with Alexander v Johns 1912 AD 431 at 441 and Elliston v Reacher [1908] 2 Ch 374 at 376 and 384. The restriction sought to be enforced in the present case is not one which falls......
  • Malan and Another v Ardconnel Investments (Pty) Ltd
    • South Africa
    • Appellate Division
    • 2 December 1987
    ...facts. For these claims it would seem it C seeks to rely on a principle extracted from a line of cases commencing with Alexander v Johns 1912 AD 431 at 441 and Elliston v Reacher [1908] 2 Ch 374 at 376 and 384. The restriction sought to be enforced in the present case is not one which falls......
  • Ex parte Millsite Investment Co (Pty) Ltd
    • South Africa
    • Invalid date
    ...Estate Co v Vereeniging Town Council, 1963 (2) SA 367; Rossmaur Mansions (Pty.) Ltd v Briley Court, 1945 AD 217; Alexander v Johns, 1912 AD 431; Alexander v Collins, 1920 W.L.D. 81; Nestadt v Hope, 1928 W.L.D. 31; F Ex parte Jerrard, 1934 W.L.D. 87 Ex parte Johannesburg Diocesan Trustees, 1......
  • Request a trial to view additional results
55 cases
  • Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council
    • South Africa
    • Invalid date
    ...something of which he has no H knowledge. The correct formulation of this principle appears in Innes ACJ's judgment in Alexander v Johns 1912 AD 431 at 445 where it is said '(a) man who has undertaken not to suffer or allow a particular condition of things violates his undertaking, if, know......
  • Malan and Another v Ardconnel Investments (Pty) Ltd
    • South Africa
    • Invalid date
    ...facts. For these claims it would seem it C seeks to rely on a principle extracted from a line of cases commencing with Alexander v Johns 1912 AD 431 at 441 and Elliston v Reacher [1908] 2 Ch 374 at 376 and 384. The restriction sought to be enforced in the present case is not one which falls......
  • Malan and Another v Ardconnel Investments (Pty) Ltd
    • South Africa
    • Appellate Division
    • 2 December 1987
    ...facts. For these claims it would seem it C seeks to rely on a principle extracted from a line of cases commencing with Alexander v Johns 1912 AD 431 at 441 and Elliston v Reacher [1908] 2 Ch 374 at 376 and 384. The restriction sought to be enforced in the present case is not one which falls......
  • Ex parte Millsite Investment Co (Pty) Ltd
    • South Africa
    • Invalid date
    ...Estate Co v Vereeniging Town Council, 1963 (2) SA 367; Rossmaur Mansions (Pty.) Ltd v Briley Court, 1945 AD 217; Alexander v Johns, 1912 AD 431; Alexander v Collins, 1920 W.L.D. 81; Nestadt v Hope, 1928 W.L.D. 31; F Ex parte Jerrard, 1934 W.L.D. 87 Ex parte Johannesburg Diocesan Trustees, 1......
  • Request a trial to view additional results

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