Poort Sugar Planters (Pty)Ltd v Minister of Lands

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA, Botha JA, Williamson JA and Wessels JA
• Judgment Date: 13 May 1963
• Hearing Date: 02 May 1963
• Court: Appellate Division

Ogilvie Thompson, J.A.:

By deed of transfer 6201 dated 31st August, 1950, appellant is the registered owner of three pieces of land situate

Ogilvie Thompson JA

in the district Vryheid, Natal, respectively known as the farms Utopia No. 13667, The Poort No. 13668, and Diepkloof A No. 10222, and whose respective extents (eliminating roods and perches) are 672 morgen, 605 A morgen, and 1,707 acres. The above-mentioned three farms were granted, subject to the provisions of the Land Settlement Act, 12 of 1912, to one Maurice Hanbury Wege by Crown grant registered on 17th October, 1949. This deed of grant contains, in relation to both The Poort and Diepkloof A, but not in relation to Utopia, the following condition - which is admittedly incorporated in appellant's title and to which I shall refer as the resumption clause - viz.:

B 'This property is granted subject to . . .

(B)

The right of the Government at any time, upon due notice being given, to resume the whole or any portion of the land for purposes of any scheme for the conservation of water or for irrigation. Compensation shall be paid to the owner of the land by reason of the exercise of the power aforesaid; such compensation shall be payable proportionately to the area resumed on the basis of the purchase price of £2,271 9s. 7d. in C respect of this land and the adjoining property Diepkloof A No. 10222, plus the value of such improvements of a permanent nature as may have been effected by the owner on the land so resumed, such compensation to be determined by arbitration in the absence of a mutual agreement.'

(The condition in the grant in relation to Diepkloof A is identical save for the substitution of 'The Poort No. 13668' for 'Diepkloof A No. 10222').

D Appellant has sold, but had apparently at the dates relevant to this case not yet transferred, a portion, in extent 63.7716 morgen, of The Poort to one Martins.

The Government has since August, 1960, been constructing a dam across E the Pongola River known as the Pongolapoort-Makatini Flats Government Water Scheme (Pongolapoort Dam) and the Department of Lands has been acquiring the properties which will, as a result of this construction, be submerged, or which are required in connection with this water conservation and irrigation undertaking. Pursuant thereto, respondent caused a written notice, dated 16th February, 1962, to be served upon F appellant stating that Diepkloof A and The Poort (less the portion sold to Martins) are required in connection with the above-mentioned water scheme and that the State

'has in accordance with the resumption clause contained in your company's deed of transfer 6201/1950 decided to resume as from 15th March, 1962'

both Diepkloof A and The Poort (less the portion sold to Martins)

'together with all improvements of a permanent nature thereon'.

G Clause 1 of the notice went on to say that the amount payable to appellant would be

'the sum of four thousand five hundred and forty-two rand ninety-six cents (R4,542.96) less an amount calculated on the basis of the purchase price of R4,542.96 proportionately to the area of the portion of the farm The Poort No. 13668 sold by your company to Martins, plus the value, which is still to be determined, of the improvements of a H permanent nature effected by your company on the properties hereby resumed'.

The notice contained ten other clauses relating to various ancillary matters relevant to the resumption of these properties by the State but which it is not necessary, for the purposes of this judgment, to detail. By letter dated 3rd March, 1962, appellant refused to give up the properties stating, inter alia, that

'We have been advised that the 'resumption clause' contained in the title deed does not allow the State to take the action contemplated by you and that

Ogilvie Thompson JA

for this and other reasons your notice as contained in your letter under reply is invalid.'

Respondent thereupon applied on motion to the Natal Supreme Court for an A order (i) declaring that the resumption clause is valid and binding upon appellant; (ii) directing appellant, against tender of compensation as outlined in the resumption notice of 16th February, 1962, to transfer the two properties in issue to respondent; and (iii) for ancillary relief. This application was resisted by appellant upon a number of grounds and was dismissed with costs by FANNIN, J., (see 1962 (4) SA B 134). Respondent successfully appealed to the full Bench of the Natal Provincial Division which, however, granted appellant leave to appeal to this Court. The Provincial Division pronounced the resumption clause to be valid and binding upon appellant whom it ordered to transfer - against the compensation tendered and as detailed in the Court's order dated 2nd November, 1962 - to respondent the farm C Diepkloof A. In this notice of resumption dated 16th February, 1962, respondent, as indicated earlier, purported to resume the whole of The Poort. In delivering the judgment of the Provincial Division, MILNE, J.P., inter alia, said:

'No order is made regarding the transfer of portion of The Poort which is required for the purposes of the scheme, because the 365 acres so required have not been identified.'

D The mention of 'acres' in this passage obviously crept in per incuriam, for it is clear from the record, and indeed also from an earlier passage in the learned JUDGE-PRESIDENT'S reasons, that the correct figure is 365 morgen. Nothing turns upon this error: for it in no way affects the validity of the point made that, because the area in E question was not identified on the ground, the learned JUDGE-PRESIDENT was not on the papers before him prepared to make an order for transfer against appellant in respect of The Poort. Furthermore, the factors referred to by FANNIN, J., at p. 138 F to H of 1962 (4) SA are relevant in relation to respondent's claim for the whole of The Poort. In the absence of any cross-appeal, respondent's claim for transfer of F the whole of The Poort - as distinct from his contention that the resumption clause is binding in relation thereto - need not be further considered in this appeal.

As indicated above, and as will more fully appear below, the farms in G issue were originally acquired under the Land Settlement Act, 12 of 1912. Apart from claiming, upon grounds later to be mentioned, that respondent is in any event estopped from invoking the resumption clause against it, appellant contends that the resumption clause is invalid and unenforceable. The arguments advanced in support of this contention would not appear to have been entirely uniform in all three Courts. But H in this Court the grounds of alleged invalidity and unenforceability advanced were that the resumption clause, in the form in which it appears in the Crown grant of 17th October, 1949, (a) was never agreed to by the then lessee of these properties from the State, one William Abbott Wege; and (b) is, in any event, bad as being incompatible with the provisions of the Land Settlement Act, 12 of 1912, as amended. Since the inclusion of the resumption clause in the Crown grant was on both, or either, of these grounds invalid, appellant, as W. a. Wege's successor, is - so the argument continued - entitled

Ogilvie Thompson JA

to claim that the clause be treated as pro non scripto. Examination of the contentions thus advanced necessitates a somewhat fuller reference to the facts and to the provisions of the now repealed Land Settlement Act, 12 of 1912.

A Pursuant to a scheme of land settlement conducted in terms of Act 12 of 1912, in this area, the property Utopia was, under the provisions of that Act, leased to one Wright in August, 1925. This lease, 69/1925, was registered on 1st Se(tember, 1925, and it contained an option to purchase. Thereafter the lease was ceded, first to one Greene, and then, on 13th December, 1932, to William Abbott Wege. The cession in favour of W. A. Wege was duly registered on 6th January, 1933.

B Following upon an interview which he had had with the chairman of the Land Board two days previously, W. A. Wege on 17th January, 1941, wrote to the Department of Lands as follows:

'I beg to apply for the holdings 'The Poort' and 'Diepkloof A' as an addition to my present holding Utopia.

C I appreciate the fact that the Government is holding the ground in case it is decided to built the dam for irrigation purposes.

May I please suggest that a clause could be inserted in the title deeds to the effect that should the Government at any time require the holdings for the purpose of building a dam for irrigation purposes they will have the right to buy them back for the same price as the Government charged me. The Government to pay out for improvements on the holdings if any.

The Poort adjoins Utopia on...