Ritch and Bhyat v Union Government (Minister of Justice)

• Jurisdiction: South Africa
• Judge: Coram Innes ACJ, Solomon J, CG Maasdorp JP, Laurence J and J De Villiers JP
• Judgment Date: 22 November 1912
• Hearing Date: 25 September 1912
• Court: Appellate Division

Innes, A.C.J.:

This appeal raises the important question of the liability to forfeiture attaching to land in a Government township held under converted freehold title from the Crown, by reason of non-compliance with certain conditions of the rant. The first defendant is the registered owner, and the second defendant was at all relevant times, and is still, the occupier of certain three stands in

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the township of Boksburg, which is situated irk the mining district of that name. The lots in question were originally held under ordinary licence tenure, which was converted into freehold rather more than a year ago. The grant then issued contained certain conditions, one of which was in the following terms: "The land hereby granted, or any portion of it, shall not be transferred, leased, or in any other manner assigned or disposed of to any coloured person, and no coloured person other than the domestic servant of the registered owner or his tenant shall be permitted to reside thereon, or in any other manner occupy the same. Any breach of the foregoing condition shall entitle the Government of the Union of South Africa to cancel this grant, and to resume possession of the land hereby granted without payment of any compensation in respect of buildings or structures erected on, or improvements effected to, the said land." It is upon a breach of that clause that the plaintiff's claim for cancellation and forfeiture is based. Before examining it in greater detail, I may remark that it would have been satisfactory had the incidents of the original tenure and the circumstances under which the conversion took place been more fully elucidated at the trial. In view of the scanty evidence produced by the plaintiff, and the fact that the defendants elected to give none at all, copies of certain documents were, at the suggestion of this Court, and by consent of parties, filed as supplementary to the record. From these it is possible to gather all the conditions both of the old and the new tenure; but we are still without knowledge of the circumstances attending the conversion from one to the other; though it would certainly have been interesting, and might have been important, to be informed upon that point.

It would appear that the voorkeurrechten of the stands in question were sold by public auction in October, 1894. The rights so acquired by the purchasers were analogous to leasehold rights for a period of 99 years, subject to the periodical payment of licences in advance, and further subject to all lawful conditions affecting the occupation of stands. In July and August, 1896, these par-

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ticular leases were transferred to one Thomas, from whom the defendant Ritch acquired them. The contract of purchase must have been concluded before the tenure had been converted; because the freehold grant was issued to Thomas on the same day (29th August, 1911) that transfer was passed in the Registry Office from him to Ritch. But whether the latter was party to the application for a new title, and whether the conversion took place upon the first or the second of the two statutory bases, to be hereafter mentioned, these are points upon which the record is silent.

The plaintiff produced evidence to show that the second defendant was a coloured person, and that he was in occupation of the stands. Upon these points there is no doubt; and it being clear that the first defendant had knowledge of the facts, it follows upon the principle laid down by this Court in Alexander v Johns (supra p. 431), that he permitted the occupation. And the Government would consequently be entitled to enforce the forfeiture clause unless there is some legal ground for invalidating it. The regular course would have been to serve formal notice of cancellation upon the first defendant and to demand from both of them possession of the property. It does not appear from the declaration whether that procedure was followed, but the relief asked for raises the questions admittedly at issue between the parties; and the important point to be decided is the sufficiency of the defences raised on the pleadings. The denial of the allegations relating to the occupancy of the premises by Bhyat with the permission of Ritch, and of the assertion that Bhyat is a coloured person, need not be further dealt with; as already pointed out, the evidence produced by the plaintiff is uncontradicted and sufficient on those points. The several pleas are twofold. The land, it is stated, was purchased while it was still leasehold property, the title to which was not subject to the special condition on which the plaintiff relies; the freehold grant was issued under the provisions of Act No. 34, 1908, and the condition referred to was based upon certain regulations framed by the Governor in accordance with the powers conferred on him by section

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62 (2) of the said statute. These regulations are attacked on two grounds. First, in that (having the force of law) they differentiate between persons of European and of non-European descent by imposing special disabilities upon the latter. By virtue of section 39 (a) of the Transvaal Constitution such disabilities cannot be imposed unless the instructions of His Majesty the King have been first obtained upon the law which effects that result, or unless the law contains a clause suspending its operation for the signification of the Royal pleasure. These requirements not having been complied with, both section 62 (2) of Act 34 of 1908 and the regulations promulgated under it are, it is said, void, inoperative and unconstitutional. Secondly, the regulations are alleged to be ultra vires and bad in so far as they enable the Government to cancel the grant and resume possession of the land without compensation for buildings or improvements, and in so far as they introduce class distinctions.

It will be convenient, in order the better to appreciate these objections, to refer briefly to such of the provisions of the Townships Amendment Act of 1908 as have a bearing upon the present dispute. The second chapter of that measure deals with the conversion of voorkeurrecht and leasehold into freehold title. The ninth section, after safeguarding the right of the Government to stand licence moneys in the future, confers upon every registered owner (the definition of which term would include Ritch's predecessor) the right tinder the statute to obtain a freehold title to his stand, in one of two ways: either by payment of a lump sum calculated according to a scale set forth in a schedule table, or by continuing to pay the, ordinary licence moneys for a period varying with the value of his stand, and shown on another scheduled table at the expiration of which period his right to the freehold grant automatically matures. The language of the section is permissive; it enables a registered standholder to convert his title, but it does not compel him to do so. Section 55 (11), however (as amended by section 9, Act No. 30, 1909), enacts that after payment has been made of all sums due from the holder of a stand in respect of the conversion thereof to freehold title, no

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transfers, mortgage, or encumbrance whatsoever shall be effected of that stand in the Mining Commissioner's Office. From which it follows that all such transactions are under the circumstances mentioned only to take place at the proper registration office, thus necessitating the issue of a Crown grant to the holder before he can sell or burden his stand in any way. The object, no doubt, was to place pressure, none the less real because indirect, upon holders of stands to carry through the process of conversion when they had once embarked upon it. Whether the provision would operate in the case of a holder who had paid his licence moneys (as he was bound to do) for a period prescribed in the statutory table without any intention of applying for a new title, is a question which, for the purposes of this case, it is not necessary to discuss. Even if it did, the issue of a freehold grant would still be dependent upon the option of the standholder, though under certain circumstances it might be highly inconvenient for him not to exercise his option.

As to the form of title to be issued, provision is made by the 60th section. It is, in cases like the present, to Fe a deed of grant under the Crown Land Disposal Ordinance, 1903: a statute which enables the Governor to dispose of Crown lands by grant, upon such conditions as he may deem advisable, not being repugnant to the provisions of the Ordinance. None of these provisions have any bearing upon the present dispute.

The 62nd section, however, which deals with the effect of the issue of freehold title, is the one upon which the result of this controversy mainly depends. It is couched in language so involved and so ingeniously complicated that it is difficult to interpret it with certainty. The first sub-section enacts that a deed of grant under section 60 shall vest in the grantee the land described therein, but subject to two conditions, stated under separate heads. The first is that the grant is to be subject to such of the terms...