Collin v Toffie

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Centlivres JA, Feetham JA and Davis AJA
• Judgment Date: 23 May 1944
• Citation: 1944 AD 456
• Hearing Date: 28 March 1944
• Court: Appellate Division

Tindall, J.A.:

As the judgment, which has given rise to this appeal, was one dismissing an exception taken to a declaration, I will refer to the parties in the appeal as the defendant and the plaintiff respectively. The action arose out of a sale and transfer of immovable property situated in the Transvaal by the plaintiff to the defendant, who, according to an allegation in the declaration, is an Indian Asiatic and therefore a person precluded by statute from becoming the owner of immovable property. Sec. 2 (b) of Law 3 of 1885, which was passed by the Legislature of the then existing South African Republic, enacts that (save in certain excepted localities) Asiatics "cannot be owners of fixed property in the Republic" - a prohibition which is still in force in the Transvaal. The prohibition as originally created was not coupled with any forfeiture which was to come into operation in the event of a registration forbidden by the statute taking place. But it is contended on behalf of the defendant that Act 35 of 1932 brought about a forfeiture in the present case, end it is on the legal effect of this Statute that the decision of the present appeal mainly depends.

Sec. 7 of Act 35 of 1932, inter, alia, substituted a new sec. 2 for the original sec. 2 of Act 37 of 1919. Sub-sec. (5) of the new sec. 2 enacts as follows: -

"(5) Any fixed property registered in any deeds registry in favour of any Asiatic or Asiatic company which such Asiatic or company is debarred from holding by virtue of the provision of Law 3 of 1885 (Transvaal) or of this Act, shall become the property of the State and any person other than the registrar of deeds or registrar of mining titles or buy of their subordinate officers, who is in any way instrumental in effecting any such registration in favour of an Asiatic or in favour of a company which is, on the date of such registration, an Asiatic company, shall be guilty of an offence:

Tindall, J.A.

Provided that if any such Asiatic or company purport a to transfer such property to a person who may lawfully hold it, the rights of the State under this sub-section in respect of such property shall terminate on the expiration of one year after the registration of such transfer in a deeds registry."

The statutory prohibition being in the terms above quoted, it is necessary to mention the salient allegations in the plaintiff a declaration. The plaintiffs a Cape Malay (and, therefore a member of a class to which, by reason of Act 12 of 1924 the prohibition does not apply), was the registered owner of plot No. 98 in a township called Klipriviersoog Estate at Kliptown in the district of Johannesburg and, by a deed of sale dated 7th October, 1942, she sold it to the defendant for £1,400. Pursuant to that sale transfer was registered in the name of the defendant in the registry of the Rand Townships Registrar on 9th January, 1943. The declaration alleges in para. 6 (a) that prior to and at the time the parties entered into the said deed of sale the defendant tacitly represented to the plaintiff or, alternatively, by entering into the deed of sale impliedly represented to the plaintiff that she, the defendant, wan a person who was not precluded by Law from becoming the lawful owner of the said immovable property or, as a further alternative, that the defendant deliberately concealed from the plaintiff the fact that she, the defendant, was a person so precluded. The further allegation is made that on 6th November, 1942, the defendant represented to the plaintiff's attorney (and in this manner to the plaintiff herself) that she, the defendant, was a Cape Malay and thus capable in law of acquiring the said property and of becoming the legal registered owner thereof. The defendant's aforesaid conduct, so the declaration alleges, led and induced the plaintiff to believe that the defendant was a Cape Malay and a person capable of purchasing and acquiring ownership of the said property and, relying upon such belief and on the faith of such conduct, the plaintiff was induced to enter into the said deed of sale and to cause registered transfer to be passed to, the defendant. Then there are allegations that the defendant is in fact an Indian Asiatic, that the defendant's said conduct was fraudulent, that her said representations were false to her knowledge, that she so conducted herself and made the said representations with the intention that the plaintiff should act thereon, and that until 15th February, 1943, the plaintiff was wholly ignorant of the defendant's true status and her incapacity to acquire and become the registered

Tindall, J.A.

owner of the said property. The declaration, it may be mentioned, was issued with the summons on 31st March, 1943. In the declaration the plaintiff tendered a refund of the price, £1,400, to the defendant against retransfer of the property and claimed, subject to the said tender, (a) an order cancelling the deed of sale, (b) an order upon the defendant to retransfer into the name of the plaintiff the aforesaid immovable property, being an half acre on plot No. 98 on Klipriviersoog Estate in the district of Johannesburg, and that the defendant pay all the costs of such retransfer; (c) alternative relief, and (d) costs of suit. The defendant excepted to the declaration on the ground that it was vague, embarrassing and bad in law and disclosed no cause of action.

In regard to the...