Ex parte Gold

• Jurisdiction: South Africa
• Judge: Ramsbottom J, Rumpff J and Cillie J
• Judgment Date: 09 April 1956
• Court: Transvaal Provincial Division
• Hearing Date: 02 December 1955
• Citation: 1956 (2) SA 642 (T)

C Ramsbottom, J.:

In this matter, a rule nisi which had been granted by the JUDGE PRESIDENT was, on the return day, referred by me to the Full Court. After hearing argument, the Court confirmed the rule and intimated that it would give written reasons at a later date. The reasons are now given.

D By deed of transfer 1123/1933 the applicant became the owner of erf 42 situate in Yamorna Street in the township of Tzaneen. The only restrictions to which the use of erf 42 was subject were that all rights to minerals, metals and precious stones were reserved to the Crown, and the land was not to be disposed of to coloured persons, and no coloured persons other than the domestic servants of the owner or his tenant were E to be permitted to reside on or occupy the erf. Yamorna Street is on the west side of erf. 42. Fronting on Yamorna Street and adjoining erf 42 on its northern boundary is erf 58, and adjoining that, on the north, is erf 57. On the east side of these three erven, abutting on their eastern boundaries, is a triangular piece of ground which belonged to F the Village Council of Tzaneen. That piece of ground did not form part of a township and has been described in the petition as 'uitvalgrond'. The 'uitvalgrond' formed a wedge between the three erven I have mentioned and the ground occupied by the South African Railways.

By a letter dated October 8th, 1947, the Village Council of Tzaneen G offered to sell to each of the owners of erven 42, 58 (portion 1), 58 (remainder), and 57 that portion of the 'uitvalgrond' which abutted on his erf as shown on a sketch plan. The offer was subject to the condition that it was accepted by all the offerees, in writing, before the end of October, 1947, 'in respect of the respective piece of ground H offered for sale to each', and that each owner was to consolidate the piece of land bought by him with his existing diagram. There were no restrictive conditions. The offer was accepted by all the offerees, including the applicant, and the applicant thus became the purchaser of that part of the 'uitvalground' that adjoined the eastern boundary of erf 42. Transfer, however, was not then passed to the applicant, nor was it passed until October, 1954.

Ramsbottom J

Erf 42 and the piece of 'uitvalgrond' purchased by the applicant are situated in the centre of Tzaneen and away from the residential area.

In 1953 the Village Council of Tzaneen laid out a township known as A Tzaneen Extension No. 4; that township was proclaimed on October 28th, 1953. It is stated in the petition that Extension No. 4 is in essence a residential township, and that is borne out by the terms of the proclamation. Nonetheless, presumably for convenience and to enable transfer to be passed, the four portions into which the 'uitvalgrond' had been divided were included in Extension No. 4 as erven 432, 433, 434 and 435. The portion that the applicant had purchased was erf 435.

B The conditions imposed by the Administrator in proclaiming the new township, Extension No. 4, are divided into two parts: A, conditions of establishment, and B, conditions of title. The conditions of establishment include the following:

'8. Erven 432, 433, 434 and 435 shall be transferred to the owners of erven 57, 58 (portion 1), 58 (remainder) and 42 in Tzaneen Township C respectively and shall be 'tied on' to the latter properties simultaneously with transfer.'

In part B of the conditions, the erven are grouped under several different categories. Thirteen erven are set aside for Government, hospital, and municipal services; two are described as 'general residential erven'; nine erven are described as 'special business D erven'; three are 'special purposes erven' which can be used only as hospitals, nursing homes, clinics, and for religous purposes; two are 'industrial erven', all the rest are 'special residential erven' which, with certain provisos, can be used solely for dwelling houses.

Although erven 432, 433, 434, and 435 are erven in Extension No. 4, it is stated in the petition that they 'border on the centre of the E business area and are situated some distance from the residential township'.

The nine erven which are dealt with in the proclamation as 'special business' erven are erven 326, 327, and 432 to 438. For these nine erven special conditions of title have been prescribed in the proclamation including the following:

'The erf shall be used for trade or business purposes only; provided F that it shall not be used for a warehouse, or a place of amusement or assemply, industrial premises or an hotel.'

Erf 435 was transferred to the applicant subject to this condition. The practice of the Deeds Office is not to 'tie on' one erf to another but to issue a certificate of consolidated title, and that was done. The certificate of consolidated title that was issued to the applicant G contains the provision that the portion of consolidated erf 42 which consists of erf 435 is subject to the condition I have just quoted.

When transfer of erf 435 was passed to the applicant, and when the certificate of consolidated title was issued, he was not aware of the condition. He had bought the land free of any restrictive conditions, and he says that the purpose for which he bought it was to build an H hotel on it. There is no explanation before the Court as to how it came about that the condition was imposed. In March, 1955, the Administrator proclaimed a town-planning scheme for Tzaneen in terms of which consolidated erf 42 has been...