Minister of the Interior v Estate Roos

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Schreiner JA, De Beer JA, Reynolds JA and Brink JA
• Judgment Date: 19 March 1956
• Citation: 1956 (2) SA 266 (A)
• Hearing Date: 06 March 1956
• Court: Appellate Division

A Centlivres, C.J.:

In 1926 the late T. J. Roos became the registered owner of certain land in the Transvaal. Although ex facie the deed of transfer he was the only person interested in the property it appears that there was an arrangement between himself and his brother, Ds. J. D. B Roos, that the latter should hold a half interest in the property. On March 1st, 1941, a deed of sale was drawn up whereby the property was sold for £7,200 to Mahomed Ibrahim who was described as a Cape Malay. The real purchaser, however, was one Mia, an Asiatic, who, in view of the law relating to Asiatics in the Transvaal, could not acquire registered title. It was he who paid the purchase price and took possession of the property and he effected improvements on the property C and paid all rates and taxes. For reasons which do not appear to be relevant to this enquiry another deed of sale was drawn up in 1943 between the same parties. The purchase price was stated to be £7,000 and the seller (T. J. Roos) acknowledged that he had received the full amount of the purchase price and it was stated that possession was deemed to have been given on April 1st, 1941. An attempt to pass D transfer of the property to Ibrahim failed as the Registrar of Deeds was not satisfied that Ibrahim was not an Asiatic. In 1946 another deed of sale was drawn up between T. J. Roos and the Rietvlei Investments Limited in which Mia held the controlling interest. In this deed there was again an acknowledgment of the payment of the purchase price of E £7,000. Transfer was not passed to the company and the land is still registered in the name of the late T. J. Roos. Ds. Roos was the person who conducted all the negotiations which led to the drawing up of the various deeds of sale which I have mentioned above.

In 1950 the Minister of the Interior, professing to act in terms of sec. F 2 (5) bis of Act 37 of 1919 as inserted by sec. 2 of Act 53 of 1949, informed the Registrar of Deeds in Pretoria that the property in question had vested in the State and the Registrar thereupon made the following endorsement against the title deeds of the property

'The within property now vests in the Government of the Union of South Africa.'

G The respondent estate instituted an action in the Transvaal Provincial Division in which it claimed an order declaring that the Minister's information and instruction to the Registrar of Deeds were wrong, unfounded, incompetent and bad and null and void in law. It also claimed an order directing the Registrar to expunge the endorsement. The Transvaal Provincial Division granted an order as prayed by the respondent and the Minister now appeals.

H Law 3 of 1885 of the Transvaal which was still in force at all times relevant to these proceedings provided that Asiatics could not become owners of fixed property. Act 37 of 1919 extended the prohibition imposed by the 1885 Law to companies controlled by Asiatics. Sec. 7 of Act 35 of 1932 repealed the whole of sec. 2 of Act 37 of 1919 and

Centlivres CJ

substituted a new section. 'Fixed property' was given an extended meaning in sub-sec. (1) of the substituted section. Sub-secs. (2), (3), (4), (5) and (5) bis are as follows (the single underlining indicates A amendments made by sec. 25 of Act 28 of 1946 and the double underlining amendments made by sec. 2 of Act 53 of 1949): -

'(2) No Asiatic company shall hold any fixed property.

(3) The provisions of sub-secs. (1) and (2) shall not apply in respect of any fixed property which, on the first day of May, 1930 -

(a)

stood lawfully registered in any deeds registry in favour of any Asiatic; or

(b)

stood registered in any deeds registry in favour of an Asiatic company, while held by such company.

B (4) No...