Deneysville Estates Ltd v Surveyor-General

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Ogilvie Thompson J
• Judgment Date: 22 December 1950
• Citation: 1951 (2) SA 68 (C)
• Hearing Date: 13 December 1950

B Ogilvie Thompson J:

Applicant company is the registered owner of certain defined portions of land situate in the vicinity of Gordons Bay and which it holds by Deed of Transfer No 1821 dated 26th February C 1942 During 1949 applicant caused diagrams to be framed and to be lodged with respondent for approval in respect of certain sub-divisions of this land being erven Nos 1205 1206 and 1207 'portion of erf 1204 Gordons Bay' On 22nd August 1949 respondent wrote to applicant's attorneys informing them that the matter had been submitted by him to the Townships Board in terms of sec 9 of Ord 33 of 1934 that the D Townships Board had re-affirmed its previous decision of 9th February 1948 to the effect that 'the sub-division must be treated as a sub-division in terms of sec 11 of the Ordinance' and that the Board was not prepared to consider the diagrams 'unless a plan of sub-division of the whole property as it was in 1921 is submitted for scrutiny in E terms os sec 11 of the Ordinance' In the ensuing correspondence applicant's attorneys clearly stated applicant's claim that its land did not fall under the provisions of the Townships Ordinance 33 of 1934 and that applicant disputed the Townships Board's jurisdiction in the F matter The Townships Board however remained adamant and respondent who is himself a member of the Townships Board persisted in his refusal to approve the cendered diagrams This refusal was at all material times based solely upon the ground that applicant's land and thus also the tendered sub-divisional diagrams was subject to the jurisdiction of the G Townships Board After various interviews had proved abortive applicant ultimately on 7th July 1950 issued a notice of motion against respondent claiming inter alia a declaration that the land held by it under Deed of Transfer No 1821 of 28th February 1942 is exempt from the provisions of Chap 2 of Ord 33 of 1934 and an order directing the respondent to approve the tendered diagrams

H It appears that the land now owned by applicant under Deed of Transfer No. 1821 of 28th February, 1942, was originally portion of a large tract of land owned by one Louisa Langschmidt under Deed of Transfer No. 524 dated 22nd September, 1880. In 1920 the executors in her estate instructed Mr. H. M. Shaw, a well known and experienced Government Land Surveyor, to effect a survey of this land with a view to establishing a township on portion thereof. Pursuant to this mandate, Shaw surveyed, beaconed

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and sub-divided this land into lots and framed a draft plan thereof in the form of Annexure 'B' in the present proceedings. This plan depicted inter alia a considerable number of sizable lots on the seashore, each lot being designated by a letter. The plan showed, running through the land, the main road from the Strand to Gordons Bay and also established A other roads which had not previously existed. Contemporaneously Shaw surveyed and beaconed these lettered lots into constituent numbered lots, and prepared a separate draft plan thereof which also reflected additional roads intersecting the lettered lots. The draft plan was in B the form of Annexure 'D', presently to be mentioned. Shaw states that he consulted the Surveyor-General's office at the time and that this procedure plus these two draft plans were then approved. Shaw further deposes that he was at this time instructed by the Surveyor-General's Office to frame only one General Plan in the form of C Annexure 'B' and to make the sub-divisional diagrams of the lettered lots to such a scale that the numbered lots subsequently to be deducted from such diagrams of the lettered lots could be made direct upon the diagrams of the lettered lots: and that he followed these instructions. It is common cause that at any rate up to the passing of D the Land Survey Act, 9 of 1927 (if indeed not later also) the custom prevailed for surveyors to make all deductions of land on the floating copy of the existing diagram.

Shaw further states that on 17th November, 1920, the executors of Louisa Langschmidt held a public auction sale of the numbered lots as shown on E a sales plan exhibited at the auction and drawn up in the form of Annexure 'E' in the present proceedings. This sales plan (in the form of Annexure 'E') was apparently prepared from Shaw's draft plan of numbered lots which I have mentioned above. Shaw states that at the auction sale - which he attended - an appreciable number of numbered lots were F sold. In addition, after bidding for individual numbered lots had weakened, the larger lettered lots were put up for auction and sold, it being announced - Shaw states - that all such lettered lots had been surveyed into constituent lots in accordance with the exhibited sales plan.

After this auction sale, Shaw prepared the final draft of the General G Plan Annexure 'B' for filing in the Surveyor-General's Office. This plan (which I have already described) was filed in the Office of the Surveyor-General in or about March, 1921, and was given the official number of G 35. In this final draft the lettered lots A to J also contain reference to their constituent numbered lots, and Shaw explains H that these were the numbered lots which had been sold at the auction and that their relevant sub-divisional diagrams were contemporaneously lodged with the Surveyor-General for approval. These lots were all transferred during 1921. After the auction Shaw prepared a final general plan of the numbered lots and he still retains in his office a bound copy thereof. This plan was printed, distributed and exhibited during the years 1921 and 1922. In or about 1923 Shaw made a tracing of this general

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plan. This tracing, which was received by applicant in 1942 from its predecessor in title Estate Fryde, is Annexure 'D' in the present proceedings: it reflects lettered lots from O to M(a), all of them A subdivided into numbered lots and with roads intersecting the various lettered lots and it also includes Lot No. 5 (on Annexure B) showing roads and divided into lettered lots.

On 21st July, 1921, lot numbers 1 - 12 inclusive in Lot D were by deed of transfer 6859 transferred to the Trustees for the School Board for B the School District of Stellenbosch free of payment as land to be set aside for School purposes in terms of sec. 56 of Act 35 of 1905 Annexed to the transfer are two certificates (apparently filed in support of claim for exemption from transfer duty): and that of the Secretary of the School Board for the District of Stellenbosch certifies that

'in connection with sub-division by the executors . . ..of Louiss C Langschmidt of the farm Gustrouw . . .. the land aforementioned has been set aside free of payment for school purposes . . .. (and that) the said land so set aside has been approved of by the Board.'

On 8th December, 1921, by deed of transfer 11558 one D. P. de Klerk D obtained transfer of a considerable section of the property indicated on the plan G 35 (Annexure 'B'). The property so acquired by de Klerk is depicted in Annexure 'D' and it comprises the area bounded by lot O (on Annexure 'B') on the one side and lot M(a) (on Annexure 'B') on the other side, and also includes lot 5 on Annexure 'B'. Thereafter Gustrouw E Seasides Limited acquired this land from de Klerk and that Company, after deducting and transferring certain lots to purchasers, transferred the remaining extent to one Benjamin Baris by deed of transfer 10791 of 1923. Baris made further deductions and transferred various numbered F lots to various purchasers, and subsequently transferred the remaining extent to one Fryde on 11th September, 1928, by deed of transfer 9209. Ultimately applicant acquired transfer of the extent remaining from Fryde's executors by deed of transfer 1821 of 26th February, 1942.

G Filed with the transfer NO. 10791 of 12th December, 1923, from Gustrouw Seasides Limited to Baris is a copy of a sales plan of the property. This plan not only shows the lettered lots divided into numbered lots in conformity with Shaw's bound copy of the plan of the numbered lots (whereof Annexure 'D' is a tracing), but it also specifies the separate prices of the individual numbered lots. When applicant purchased the H property, it caused a sales plan thereof to be prepared. This plan is Annexure 'E' and is in all essential respects identical with Annexure 'D', and with the bound copy of the General Plan in Shaw's possession.

Applicant has sold some 99 numbered lots to purchasers: of these 20 have, after approval of the diagrams by the Surveyor-General, been transferred. All sales have been subject to conditions as set out in Annexure 'M'. Applicant's predecessors in title likewise sold off lots in accordance with conditions as set out in Annexures

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'J', 'K' and 'L'. These various sets of conditions are not entirely uniform, but there are certain conditions common to all of them (e.g., a prohibition against non-European ownership) which would, I consider, be enforceable between the lot holders inter se. Apart from the numbered lots sold by applicant and which I have already mentioned, an analysis of the various numbered lots which were...