Lydenburg Properties Ltd v Minister of Community Development

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Galgut J
• Judgment Date: 16 October 1962
• Citation: 1963 (1) SA 167 (T)
• Hearing Date: 15 August 1962

G Galgut, J.:

In this application the applicant company seeks an order declaring, inter alia, that Portion 1 of Portion A of erf 125, Lydenburg, Transvaal, presently registered in the name of the petitioner, is the property of the State; that the petitioner is in bona fide H possession of the said property and the improvements thereon; that on the repossession by the State of the said property, the petitioner is entitled to be compensated for the improvements effected by it on the said property, and that the respondent pay the costs of this application.

The applicant company was registered in February, 1945. The authorised and issued share capital was 1,300 shares of £1 each, consisting of 50 A shares of £1 and 1,250 B shares of £1. These shares had different rights. The 50 A shares were held by a member of the White group, 825 B shares were held by Asiatics, and 425 B shares

Galgut J

were held by a Coloured woman. This Coloured woman, so the petition states, was later, by virtue of legislation, deemed to be an Asiatic; it A also states that the persons who formed the company did so with the intention, to which effect was given, that the member of the White group and the Coloured woman would hold a preponderence of voting power. They thereby intended to create what was known as a European company. The respondent's attitude, however (as will be seen later) was that it at all times regarded all the shareholders save the member of the White B group as Asiatics. The present position is that apart from the 50 A shares, which are held by a member of the White group, all the other shares are held by members of the Indian group. These persons so holding are not the same persons as those who held the shares when the company was formed.

Portion 1 of Portion A of erf 125, Lydenburg, being the property C concerned, was transferred to the company on the 4th December, 1945. On the 11th September, 1951, the State took the first steps against the applicant under the Group Areas Act. The Minister of the Interior, in terms of sec. 20 of Act 41 of 1950(which, for all practical purposes, is the same as sec. 37 of Act 77 of 1957)served a notice on the applicant D company in terms of which he stated that the property was to be sold and, if not sold after the expiration of three months, the Minister himself would cause it to be sold.

The relevant portion of sec. 20 provided that:

'(1) If any immovable property -

(a)

. . .

(b)

has at the commencement of this Act been acquired or is at the said commencement held in contravention of any law repealed by E this Act or in pursuance of any agreement which is null and void in terms of any such provision, or is registered in favour of any person who is in terms of any such provision debarred from holding it, or is dealt with or used contrary to any condition of a permit or any term of a certificate issued under any such provision, under the authority of which it was acquired or held,

the Minister may, after not less than three months' notice in writing to F the person concerned and to the holder of any registered mortgage bond over the property, cause the property to be sold . . .'

As already stated, sec. 37 (1) (b) of Act 77 of 1957 is the same for all practical purposes as sec. 20 (1) (b) save that it refers also to the Group Areas Act, 41 of 1950.

G It is important to state that as far back as December, 1951, the chief inspector appointed under the Group Areas Act filed an affidavit in certain proceedings in which the applicant company was a party...