Hurley, NO v Group Areas Development Board

• Jurisdiction: South Africa
• Citation: 1960 (3) SA 435 (N)

Hurley, NO v Group Areas Development Board
1960 (3) SA 435 (N)

1960 (3) SA p435

Citation	1960 (3) SA 435 (N)
Court	Durban and Coast Local Division
Judge	Caney J
Heard	May 20, 1960
Judgment	May 30, 1960

Flynote : Sleutelwoorde D

Land — Group Areas Development Act 69 of 1955 — Sec. 15 (1) — 'Affected properties' — What are — Property held by a Bishop in trust for the Roman Catholic Indians of Natal.

Headnote : Kopnota

Certain deeds recorded the transfer of certain immovable properties in full and free property to and on behalf of the Right Reverend Delalle, E Roman Catholic Bishop of Natal for the time being, or his successors in office, in trust for the Roman Catholic Indians of Natal for certain specified purposes. These properties were situated in an area declared to be an area for ownership by members of the Indian Group. The respondent, purporting to act under section 15 (1) of the Group Areas Development Act, 69 of 1955, had placed the properties upon a list of 'affected properties'. The applicant, the successor to the named Roman Catholic Bishop, applied for an order declaring the F properties not to be 'affected properties' and directing the respondent to remove them from the list.

Held, that the properties were not owned by a person of a racial group other than the Indian Group. Application accoringly granted.

Case Information

Application for an order declaring that certain properties were not G 'affected properties' under Act 69 of 1955 and directing the respondent to remove them from the list of 'affected properties'. The facts appear from the reasons for judgment.

J. J. Friedman, Q.C. (with him J. F. Hewat), for the applicant.

D. J. Shaw, Q.C. (with him A. B. M. Wilson), for the respondent.

Cur. adv. vult.

Postea (May 30th). H

Judgment

Caney, J.:

This application relates to three pieces of freehold land, the present title to which is represented by two deeds of transfer. The one deed, dated in 1923, concerns two pieces, and the other dated in

1960 (3) SA p436

Caney J

1925, concerns the other piece of land. Each deed records the transfer of the land

'in full and free property to and on behalf of the Right Reverend Bishop Henri Delalle, O.M.I., Roman Catholic Bishop in Natal for the time being, or his successors in office, in trust for the Roman Catholic A Indians of Natal for religious, charitable, educational and industrial purposes, or the like, with full power and authority to the said Right Reverend Bishop Henri Delalle, O.M.I. and his successors in office, to sell, transfer, cede, assign, mortgage or otherwise deal with the said property for the benefit of the said Roman Catholic Indians of Natal'

(further, after setting out the description of the property and the conditions attaching to it, the deed continues:)

B 'Wherefore the said appearer renouncing all the right and title this principal heretofore had to the premises, did, in consequence also acknowledge his principal to be entirely dispossessed of, and disentitled to the same, and that by virtue of these presents, the said The Right Reverend Bishop Delalle, O.M.I., in his aforesaid capacity, or his successors in office, or assigns, now are and henceforth shall be entitled thereto, conformably to local custom'.

(and the deed concludes with an acceptance by the Bishop)

'who declared to take and accept transfer of the said property on the C trusts aforesaid'.

The applicant is the Roman Catholic Archbishop of the Archdiocese of Durban and, as such, is the successor in office to the Right Reverend Bishop Henri Delalle, O.M.I., within the terms of the two deeds of transfer.

D The properties are situate within an area which, by Proc. 152 dated 6th June, 1958, was declared under the provisions of sec. 20 of the Group Areas Act, 77 of 1957, to be 'an area for ownership by members of the Indian group'. The area was also, by the same Proclamation, declared under the provisions of sec. 21 to be 'an area for future occupation by E members of' that group. This, however, is not material to the present case, which originates in the declaration relating to ownership. By Proc. 154 of the same date, the provisions of the Group Areas Development Act, 69 of 1955, were applied to the area. The respondent is the board established under the provisions of sec. 2 of that Act. I shall call this Act the Development Act.

F On 6th March, 1959, (before the amending Act, 81 of 1959, became operative), the respondent, purporting to act under the provisions of sec. 15 (1) of the Development Act placed the three properties upon a list of 'affected properties'. Sec. 15 (1) reads:

'The board shall as soon as possible after any area has . . . been proclaimed . . . compile a list of all affected properties situate in any area so proclaimed, and shall record in respect of each affected property -

(a)

G the description and number of the property at the basic date:

(b)

the name of the owner at the basic date, and the group . . . of which he is a member . . .:

(c)

the name of the occupier and the group of which he is a member:

(d)

the basic date and the basic value of the land and of the buildings thereon at the basic date'.

H The 'basic date' is, shortly, the date of the publication of the relevant Proclamation, in this instance Proc. 152 on 6th June, 1958.

The definition of 'affected property' is found in...