Mahomed Ebrahim & Co (Pty) Ltd v Minister of the Interior

• Jurisdiction: South Africa
• Judge: Maritz JP, Cillié J and Galgut AJ
• Judgment Date: 10 September 1958
• Court: Transvaal Provincial Division
• Hearing Date: 10 September 1958
• Citation: 1958 (4) SA 388 (T)

A Galgut, A.J.:

The appellant is a private company and the respondent is the Minister of the Interior for the Union of South Africa. The petitioner was at all relevant times since its incorporation in 1918 an Asiatic company and since 30th March, 1951, being the fixed date under the Group Areas Act, 41 of 1950, a company controlled solely by members of the Indian Group as defined by Proc. 73 of 1951 issued in terms of B the said Act. On the 15th July, 1930, the petitioner acquired fixed property in a township called Newclare, and thereafter, on the 6th December, 1930, it acquired further fixed property. The petitioner's ownership of these two properties was investigated by the inspectorate appointed under the Group Areas Act and as a result the petitioner was C notified by letter dated the 18th January, 1957, from the Chief Inspector of the Land Tenure Board, that the properties were held on the 30th March, 1951, in contravention of the laws repealed by Act 41 of 1950 and that accordingly the respondent would take appropriate action under sec. 20 of the said Act. The petitioner believed that the respondent's contention that he had the right to act under sec. 20 of D the Group Areas Act was correct and at that stage the petitioner did not dispute that contention. Thereafter the case of Mahomed v Insolvent Estate du Toit, 1957 (3) SA 555 (AD), was decided in the Appellate Division and because of that decision the petitioner came to the conclusion that as the properties had been registered in its name prior E to the coming into force of the amending Act, 37 of 1932, it was entitled to continue to hold the property. It came to this conclusion because there was no penal sanction in force during the period from 1st May, 1930, to the date on which Act 37 of 1932 came into force. The petitioner on the 20th November, 1957, wrote to the respondent in those terms and the respondent rejected the petitioner's contention. The F parties placed their contention before this Court and HIEMSTRA, J., held that the contention of the appellant was incorrect and that of the respondent was correct.

The relief sought in the Court a quo appears from the prayer which asks for an order:

'Restraining respondent from in any way disposing of, alienating or selling lot 402 situate in Polock Avenue, township of Newclare, District G of Johannesburg, and Portion 'C' of lot 577 in the Township of Newclare, District of Johannesburg, registered in the name of the applicant, and from taking any further steps relating to the said properties under sec. 20 of Act 41 of 1950.'

Mr. Dison, on behalf of the appellant, to-day applied for leave, which was granted, to add an alternative prayer which reads:

'Alternatively to (a):

An order declaring that the applicant is entitled to retain the balance H of the proceeds under sec. 22 of the Act after the sale of the said properties.'

Prayer (b) asks for an order:

'Calling upon respondent to withdraw the caveat imposed by him in the Deeds Registry, Pretoria, upon the aforesaid properties under sec. 20 of Act 41 of 1950.'

It is clear from the prayers as they then read that the petitioner maintained

Galgut AJ

that the respondent was not entitled to take any action whatsoever in terms of sec. 20. That that was the view of the petitioner when he came to Court is borne out also by its letter of the 20th November, 1957, the relevant portion whereof reads:

'It follows that the Honourable the Minister has no authority to act A under sec. 20 of the Group Areas Act 41 of 1950.

I shall therefore be pleased if you will be kind enough to advise me by return that the Minister agrees with the above contention, will take no action under sec. 20 and will withdraw the caveat imposed on the said properties.'

Sec. 20 (1) (b) of the Group Areas Act, 41 of 1950, has now become sec. B 37 of Act 77 of 1957. I quote sec. 20 (1) (b) because action was taken under that sub-section. In any event it is for all practical purposes the same as the new section. Sec. 20 (1) (b) reads:

'If any immovable property has at the commencement of this Act been acquired or is at the said commencement held in contravention of any law repealed by 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 . . . the Minister may, after not less than three months'...