Lydenburg Properties Ltd v Minister of Community Development

• Jurisdiction: South Africa
• Judge: Steyn CJ, Van Blerk JA, Botha JA, Holmes JA and Hoexter AJA
• Judgment Date: 26 March 1964
• Citation: 1964 (2) SA 729 (A)
• Hearing Date: 24 March 1964
• Court: Appellate Division

Botha, J.A.:

The appellant, to whom I shall refer as the company, was F incorporated on 15th February, 1945. On 4th December, 1945, portion 1 of portion A of erf 125, Lydenburg, hereinafter referred to as erf 125, was registered in favour of the company and is still so registered. It is common cause that the company was at all relevant times an Asiatic company as defined by sec. 11 of Act 37 of 1919, as substituted by Act 35 of 1932, and thus debarred by law 3 of 1885, as amended by sec. 2 of G Act 37 of 1919 and substituted by sec. 7 of Act 35 of 1932, from holding fixed property in certain areas in the Transvaal, including the area in which erf 125 is situate. Upon the registration of the property in favour of the company on 4th December, 1945, it therefore became the property of the State in accordance with and subject to the provisions H of sec. 2 (5) of Act 37 of 1919 as amended. In 1945 that section read as follows:

'(5)

Any fixed property registered in any deeds registry in favour of any Asiatic or Asiatic company which such Asiatic or company is debarred from holding by virtue of the provisions of Law 3 of 1885 (T) or of this Act, shall become the property of the State and any person other than the registrar of deeds or registrar of mining titles or any of their subordinate officers. who is in any way instrumental in effecting any such registration in favour of an Asiatic or in favour of a company which is, on the date of such registration. an Asiatic company, shall be guilty of an offence:

Botha JA

Provided that if any such Asiatic or company purports to transfer such property to a person who may lawfully hold it, the rights of the State under this sub-section in respect of such property shall terminate on the expiration of one year after the registration of such transfer in a deeds registry.'

A This sub-section was amended by sec. 25 of Act 28 of 1946 and again by sec. 2 of Act 53 of 1949, the most important amendments, for the purposes of this appeal, being the deletion in 1949 of the proviso, and the addition of the following sub-section:

'(5)

bis. When any property has so vested, the Minister of the Interior shall inform the officer in charge of the deeds registry in which is registered the title to that property of such vesting and of the B particulars of such property, and such officer shall thereupon record upon the title deed of the property the fact that it is vested in the State.'

It does not appear from the papers that the fact that erf 125 became vested in the State was, in terms of this sub-section, recorded on the title deed thereof.

C On 11th September, 1951, a notice, in terms of sec. 20 of the Group Areas Act, 41 of 1950. was served upon the company advising it that as erf 125 was registered in the name of an Asiatic company which, in terms of the provisions of the laws repealed by Act 41 of 1950, the company was debarred from holding, the Minister of the Interior had decided to cause the said erf to be sold.

D The relevant provisions of sec. 20 (1) of Act 41 of 1950 are as follows:

'20. (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 provision of any law repealed by this Act . . . or is registered in favour of any person who is in terms of any such provision debarred from E holding it . . .,

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

In consequence of negotiations which followed between the company and F the Minister, the notice of 11th September, 1951, was subsequently withdrawn in terms of sec. 20 (5) of Act 41 of 1950, and the company was advised

'that the Minister has agreed that action in terms of sec. 20 of Act 41 of 1950 be postponed until such time as Group Areas are declared in Lydenburg . . .'

G The Minister also approved of the issue of a permit under sec. 14 (1) (a) (ii) of Act 41 of 1950, in terms of which the company was authorised to allow buildings completed, erected, re-erected or extended on erf 125 after the 15th August, 1952, to be occupied by members of the Indian Group for a period of three years as from 9th July, 1953, the date of issue of the permit. The permit was renewed from time to time, H and group areas were proclaimed in Lydenburg on 28th June, 1957.

Following upon the agreement with the Minister, the company duly renovated old buildings on erf 125 and erected new buildings thereon at a cost to it of more than R35,000. These buildings were, under the permit of 9th July, 1953, occupied by two Indian firms, Hajee Hassim & Sons and Hajee & Sons.

On 7th July, 1959, the liaison officer of the Group Areas Board advised the company that it was...