Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others

• Jurisdiction: South Africa
• Judge: Kotzé JA, Joubert JA, Trengove JA, Hoexter JA and Botha JA
• Judgment Date: 06 September 1985
• Citation: 1985 (4) SA 773 (A)
• Hearing Date: 14 May 1985
• Court: Appellate Division

Hoexter JA:

This appeal involves the interpretation of a clause in a contract and a subsection of a statute. The contract H concerned is embodied in a notarial deed of cession of mineral rights and the relevant statute is the Deeds Registries Act 47 of 1937. The first question is whether the "rights to minerals" ceded in terms of the notarial deed include rights to stone. Should that question be affirmatively answered the further question arises whether in terms of s 3 (1) (m) of Act 47 of 1937 the Registrar of Deeds has a legal duty to register such I notarial cession.

The background to the appeal may be shortly summarised. The farm "Smaldeel" No 683 ("the farm") is situate in the Heilbron district of the Orange Free State. Relevant to the case is a portion of the farm ("the property") which is 1 027,8384 hectares in extent. Before February 1964, and under deed of J transfer 7118/1948, the ownership both of the property and of the rights to minerals thereon was held by the third respondent.

Hoexter JA

The property has since been divided into various subdivisions A which are at present owned severally by the second, third and fourth respondents. The second respondent is the owner of subdivisions 2 and 3.

During February 1964, and by notarial deed of cession of mineral rights 22/1964MR, the third respondent ceded to a private company ("Finger Brothers") all the rights to minerals B in respect of the property. On 13 October 1966, and by notarial deed of cession of mineral rights 110/1966MR, Finger Brothers in turn ceded all the rights to minerals in respect of the property to the appellant. All the subdivisions into which the property has been divided are subject to the notarial deed of cession of mineral rights 110/1966MR in favour of the appellant.

C During September 1980 the second respondent agreed to grant the right to prospect for stone on and to extract stone from subdivisions 2 and 3 of the property to a public company ("Hippo Quarries"), whereafter Hippo Quarries ceded such rights to a private company ("Constone"). Thereafter Constone received legal advice to the effect that, inasmuch as the appellant was D the owner of the mineral rights in respect of the property, the rights to stone in respect of subdivisions 2 and 3 of the property vested in the appellant.

During January 1982, and as holder of the rights granted in terms of notarial deed of cession of mineral rights 110/1966 MR, the appellant sold to Constone all the rights to stone in E respect of the property. However, the Registrar of Deeds for the Orange Free State refused to register a cession of the said rights to stone in favour of Constone by the appellant as the holder of the mineral rights to the property. The view of the Registrar of Deeds was that the appellant's rights to minerals did not include rights to stone; and that the rights to stone F vested in the surface owner(s).

Upon notice of motion the appellant and Constone ("the co-applicants") lodged an application ("the main application") in the Orange Free State Provincial Division. The Registrar of Deeds (OFS) was cited as the first respondent; and the second, third and fourth respondents were cited as surface owners G having an interest in the matter. In the main application the co-applicants sought:

(1)

an order declaring them to be the holders of all rights to stone in respect of the property under and by virtue of deed of cession of mineral rights 110/1966MR; and

(2)

an order directing the first respondent to register a H notarial deed of cession of mineral rights in terms whereof all rights to stone in respect of the property were ceded by the appellant to Constone.

No order for costs was sought against any of the four respondents. The main application was not resisted by any of the four respondents. The first respondent filed with the Court a report setting forth certain legal submissions but stating I that the first respondent abided the decision of the Court.

The co-applicants were companies based in Johannesburg. For the purposes of the main application they instructed a firm of Johannesburg attorneys: Deneys Reitz and Company ("Deneys Reitz"). In turn Deneys Reitz used the services of Goodrick and Franklin, a Bloemfontein firm of attorneys, as their J correspondents and as attorneys of record.

Hoexter JA

A The main application was heard on 7 October 1982. There was no appearance by or on behalf of any of the four respondents. Having heard counsel for the co-applicants the Court (HATTINGH AJ) reserved judgment until 31 March 1983 when a judgment dismissing the main application ("the main judgment") was B handed down. The main judgment is reported in 1983 (3) SA at 191.

In argument before this Court it was common cause that the period, within which any application for leave to appeal against the main judgment should have been made, expired on 25 April 1983. Within the said period no such application was in C fact made. However, by notice of motion dated 6 June 1983, a firm of Johannesburg attorneys, Raphaely-Weiner, made application on behalf of the appellant for condonation of the appellant's failure timeously to apply for leave to appeal; and, in the event of such condonation being granted, for leave to appeal against the main judgment. The application for condonation, which was not resisted by any of the four D respondents, was heard by HATTINGH AJ on 11 November 1983, and on the same date refused by the learned Judge. To the latter judgment I shall refer as "the condonation judgment". Following a petition addressed by the appellant to the Chief Justice, however, leave to appeal against the refusal of condonation by the Court below was granted by this Court which also, E contingently upon the success of such an appeal, granted leave to the appellant to appeal against the main judgment.

In the application for condonation the notice of motion was accompanied by a founding affidavit (jurat 30 May 1983) by one Finger, a director of the appellant. To the founding affidavit were annexed (1) an affidavit (jurat 25 May 1983) by one Dale, F an attorney and a partner in Deneys Reitz; (2) an affidavit (jurat 30 May 1983) by one Hoffman, a partner in the Johannesburg firm of accountants acting as the appellant's auditors; and (3) an affidavit (jurat 6 June 1983) by one Bortz, an attorney and a partner in Raphaely-Weiner. Of the events between 31 March 1983 (on which date the main judgment G was delivered) and 10 June 1983 (when the condonation application was actually filed in the Court below) there is to be found in Finger's founding affidavit a somewhat meagre account whose essential parts may be summarised as follows:

(a)

Finger states that on Friday, 22 April 1983 attorney Dale of Deneys Reitz:

H "... received notification from Messrs Goodrick and Franklin of the outcome of the judgment, as is confirmed in his affidavit..."

(my italics).

In fact, however, Dale's affidavit does not provide such confirmation. All that Dale's affidavit states in this connection is the following

I "I received the judgment in this matter on Friday, 22 April 1983 and immediately despatched a copy thereof to Messrs Fisher, Hoffman, Stride & Co, the first applicant's auditors."

(My italics.)

(b)

Finger states that the appellant first became aware of the main judgment on Monday, 25 April, when Dale delivered a copy thereof to the appellant's auditors. J (The correctness of these averments is confirmed by Hoffman in his affidavit.)

Hoexter JA

(c)

Finger states that for two or three days after 25 A April 1983 the appellant and Constone discussed the possibility of an application for leave to appeal against the main judgment. The upshot of the matter was that Constone decided against and the appellant in favour of making such an application; but that the appellant further decided in this connection to B instruct a firm of attorneys (Raphaely-Weiner) not previously involved in the matter.

(d)

On 2 May 1983 Finger instructed attorney Bortz to take the steps necessary to enable the appellant to appeal against the main judgment. Bortz thereupon instructed his own Bloemfontein correspondents as a matter of urgency to obtain a copy of the main judgment "and all C relevant documents" in regard thereto. Under cover of a letter from his Bloemfontein correspondents dated 10 May 1983 the said documents were received by Bortz on 16 May 1983. On 18 May 1983 Bortz instructed counsel to consider the matter and to settle the condonation application. (The correctness of these averments is D confirmed by Bortz in his affidavit.)

I proceed to examine the reasons given by the Court below in support of its refusal to grant condonation. Dealing with the fact that the appellant became aware only on 25 April 1983 that the main application had been dismissed, the learned Judge remarked:

"The question arises who caused the delay? On the papers it is E suggested that Messrs Goodrick and Franklin caused the delay. If so, why was the Court left in the dark about the identity of the attorney responsible for the delay and why was no affidavit filed by the attorney concerned, offering an acceptable explanation for his suggested inordinate delay to notify the applicant of the judgment?

Council for the applicant, however, contended in this Court during argument that Dale was the person who caused the delay, although Dale in his supporting affidavit does not admit such a F fact..."

The learned Judge proceeded to consider whether, had Finger sought to fasten the blame for late notification of the result of the main application on a particular attorney, such a direct accusation would have improved the appellant's chances of gaining condonation. The answer to this question against the G appellant the learned Judge found in the oft-repeated judicial warning that there...