Minister of the Interior v Toubkin, NO

• Jurisdiction: South Africa
• Judge: Maritz JP, De Villiers J, and De Wet J
• Judgment Date: 27 March 1952
• Court: Transvaal Provincial Division
• Hearing Date: 18 March 1952
• Citation: 1952 (4) SA 223 (T)

Maritz, J.P.:

I concur in the judgments of my Brothers DE VILLIERS and DE WET, but would like to add a few words on what I think is the proper C construction to be placed on sec. 3 of Act 37 of 1919 as added by sec. 7 of Act 35 of 1932.

At all relevant times the Clyde Properties (Pty.) Ltd. was an Asiatic company. The controlling interest was held by an Asiatic in that he had 'the power to exercise any control whatsoever over the activities or D assets of the company' (sec. 7 of Act 37 of 1919, as amended).

In terms of sec. 2 (2) of Act 37 of 1919, as amended by Act 35 of 1932, no Asiatic company shall hold any fixed property. Sec. 2 (4) provides: 'No person shall hold any fixed property on behalf of or in the E interests of an Asiatic or Asiatic company . . .'. Sec. 2 (5) states: 'Any fixed property registered in any deeds registry in favour of any Asiatic or Asiatic company . . . shall become the property of the State.'

Sec. 3 (1) of Act 37 of 1919 as added by sec. 7 of Act 35 of 1932, reads as follows:

F 'Whenever any private company holds any fixed property, any share in or debenture of such company held by or pledged to - (i) an Asiatic; or (ii) an Asiatic company; or (iii) any person on behalf or in the interest of an Asiatic or an Asiatic company, shall be forfeited to the State.'

It is quite clear that the word 'hold' in the sub-sections I have cited G means 'own' or 'have the ownership of'. Sec. 3, therefore, applies where a private company is the owner of the property. How can an Asiatic company, although it is a private company, be the owner of the property in view of the other sections to which I have referred? The sections then seem to be mutually destructive. Where an Asiatic company which is H a private company is the owner of fixed property, in terms of this section, you have an irreconcilable clash between this section and the other sections to which I have referred.

In Principal Immigration Officer v Bhula, 1931 AD 323, WESSELS, J.A., said the following:

'The Legislature is presumed to be consistent with itself . . . where there are two sections in an Act which seem to clash, but which can be interpreted so as to give full force and effect to each, then such an interpretation is to be adopted rather than one which will partly destroy the effect of one of them.'

De Villiers J

I venture to suggest, therefore, that sec. 3 was never intended to cover the case of an Asiatic company. Sub-secs. (2) and (5) of sec. 2 deal effectively and completely with Asiatic companies, be they private or public. Sec. 3 deals with cases of private companies where there may be one or more Asiatic shareholders who cannot affect the controlling interest in the companies.

A In my view sec. 3 is not applicable on the facts of this case, and the properties in question therefore are the property of the State.

Judgment

De Villiers J.:

Clyde Properties (Pty.) Ltd. was registered in October, 1945.

B Before the 15th March, 1946, it acquired three fixed properties in Piet Retief, Transvaal. After the 15th March, 1946, it acquired a fourth property also in Piet Retief.

In an application before STEYN, J., the learned Judge held that the C three properties acquired before the 15th March, 1946, were not forfeited to the State in terms of sec. 2 (5) of the Transvaal Asiatic Land Act, 37 of 1919, but that the shares in the private company held by the two European nominees of Jina an Asiatic were forfeited to the State under the provisions of sec. 3 (1) of the Act.

D In regard to the fourth property he held that it was forfeited to the State.

The result of his judgment is that the first three properties remained in ownership in the company, and on its liquidation were available to pay creditors.

E The Minister appeals against this judgment in respect of the first three properties.

The cross-appeal in respect of the fourth property was abandoned. All that we are concerned with in this appeal therefore is the order of STEYN, J., in respect of the first three properties acquired by the F company, and the statutory provisions up to the date when the amending Act 35 of 1932 came into operation.

Sub-sec. (2) of sec. 2 of the Act provides that 'no Asiatic Company shall hold any fixed property'. I agree with STEYN, J., that 'hold' here means 'own'.

G According to STEYN, J., if sec. 2 (2) stood alone the Minister's contention must prevail; but he applied sec. 3 (1) of the Act which reads:

'Whenever any private company holds any fixed property, any share in or debenture of such company held by or pledged to -

(i)

an Asiatic; or

(ii)

an Asiatic company; or

(iii)

H any person on behalf or in the interest of an Asiatic company,

shall be forfeited to the State.'

The learned Judge therefore reasoned as follows. Immediately Clyde Properties held the properties in question the shares were automatically forfeited to the State, but at that very moment the company ceased to be an Asiatic company so that sec. 2 (2) does not become operative.

De Villiers J

With respect I cannot agree with this reasoning. In my judgment this reasoning works backwards from a position that never arises.

If at the time the company purported to acquire the three properties it A was an Asiatic company then sec. 2 (2) comes into operation to prevent transfer to the company from having the effect of passing ownership to the company.

Sub-sec. (5) of sec. 2...