Rossmaur Mansions (Pty) Ltd v Briley Court (Pty) Ltd
Jurisdiction | South Africa |
Judge | Feetham JA, Greenberg JA and Davis AJA |
Judgment Date | 28 November 1944 |
Citation | 1945 AD 217 |
Hearing Date | 20 October 1944 |
Court | Appellate Division |
Feetham, J.A.:
This case raises the question of the validity of sec. 29 of the Townships and. Town-planning Ordinance 1931 of the Transvaal, as inserted in that Ordinance by sec. 7 of the amending Ordinance No. 20 of 1941, and of the validity of a proclamation issued by the Administrator of the Transvaal thereunder. Sub sec. (1) of sec. 29 of the 1931 Ordinance as amended, to which I shall hereinafter refer as "the Ordinance", provides in its opening words as follows:
Notwithstanding anything to the contrary in this Ordinance or any other law contained any person, including the Provincial Secretary, may apply to the Administrator for the alteration, suspension or removal of
any restrictive covenant registered against the title or
any condition imposed under the provisions of this Ordinance of any prior law, restricting or in any way affecting the use or occupation of any erf situated in a township established or proclaimed before or after the coming into operation of this Ordinance."
(Sec. 1 of this Ordinance defines "erf" as meaning "every piece of
Feetham, J.A.
land in a township registered in the Deeds Registry as an erf, stand, lot or plot," and as including "any piece of land other than a public place shown on a general plan of a township or proposed township.")
Sub-sec. (1) then goes on to prescribe the manner in which applications are to be made; sub-secs. (2) to (5) require the Administrator to refer any application made under sub-sec. (1) of the Townships Board, constituted under Chapter II of the Ordinance, for consideration and report, specify requirements as to deposit by an applicant of such sum as may be considered by the Administrator sufficient to cover expenses to be incurred in connection with the application, and as to notices to parties concerned, and lay down the procedure to be followed by the Board in dealing with applications and objections thereto. Sub-secs. (6), (7) and (8) further provide as follows:
The Board shall recommend to the Administrator -
that the application be refused; or
that the application be granted, subject to such conditions as it may deem fit.
Notwithstanding anything to the contrary in this Ordinance or any other law contained, the Administrator may on receipt of the recommendation of the Board -
refuse the application; or
by proclamation in the Gazette, alter, suspend or remove any condition referred to in sub-sec. (1) of this section either permanently or for such period as may be specified by him in such proclamation subject to such conditions (if any) as may be specified by him in the proclamation; provided that if the Board recommended that conditions be imposed the Administrator shall not modify any of those conditions or impose additional conditions without further reference to the Board; provided further that if the Board did not recommend that conditions be imposed the Administrator shall not impose any conditions without further reference to the Board.
The Administrator shall as won as possible after publication of the proclamation referred to in sub-sec. (7) of this section, transmit or cause to be transmitted to the Registrar of Deed's the title deed of the erf concerned for endorsement. The
Feetham, J.A.
Registrar of Deeds shall endorse the title deed accordingly and thereafter return it to the Administrator."
The appellant company, to which I shall refer as "the Rossmaur Company," is the registered owner of two stands, Nos. 3766 and 3767, situate in the township of Johannesburg, in the portion formerly known as Hillbrow, by virtue of a Crown Grant dated 22nd April, 1942. These two stands were formerly held by the Rossmaur Company in leasehold title under a Deed of Transfer dated 10th December, 1934, which contained a condition that the owner of the two stands should have no right to make application for or to take out or hold a licence for a hotel, canteen, bar, restaurant or shop of any kind, or to carry on any such business on the stands in question. The Crown Grant, dated 4th April, 1942, which was issued as the result of an application made by the Rossmaur Company for the conversion of its leasehold title into, freehold, contained a condition providing as follows: -
"The Registered Owner or his Heirs, Executors, Administrators or Assigns, shall not have the right to apply for a licence for or to open and carry on upon the property any hotel, canteen, bar, restaurant, or shop of any description whatsoever. A breach of this condition shall render the Registered Owner liable to forfeiture to the Government of all his (the Registered Owner's) right and title to the property and he shall be further liable to ejectment from the said property at the instance of any standholder on that portion formerly known as "Hillbrow" of the Government Township of Johannesburg. He shall also be liable for any damages which any holder of a stand or stands on this property may sustain by reason of the breach of the said condition by him (the Registered Owner) as aforesaid. Stands 3986 to 3997 (formerly Stands Nos. 5488 to 5497 Hillbrow) inclusive shall not be subject to the provisions of this condition as above set forth, and they are specially exempted therefrom."
This condition reproduced in almost identical terms the condition to a like effect embodied in the leasehold title.
In November, 1941, the Rossmaur Company made application to the Administrator, in terms of sec. 29 (1) (a) of the Ordinance as quoted above, for the removal of the restrictive condition above quoted, and the procedure laid down in the section in regard to such an application was duly followed. No objections to the removal of the restrictive condition were lodged with the Townships
Feetham, J.A.
Board, and the Board made a recommendation to the Administrator. Thereafter the Administrator issued a proclamation (No. 14 (Administrator's) 1943), dated 22nd January, 1943, under sec. 29 (7) (b) declaring that clause (e) of the Crown Grant of 1942 in respect of the two stands in question "shall be and is hereby removed." After the issue of this proclamation the Rossmaur Company proceeded to erect shops on the two stands, and business has since been carried on in these shops with the knowledge and approval of the company.
The respondent company, to which I shall refer as the "Briley Court Company", is the registered owner of Stand No. 4079, situate in the township of Johannesburg, in the portion formerly known as Hillbrow, by virtue of a Deed of Transfer dated 7th December, 1943. This stand is subject to a special condition appearing in the deed of transfer in terms identical with those of clause (e) as above quoted, to which the Rossmaur Company's stands are subject.
In July, 1944, the Briley Court Company made an application by petition to the Witwatersrand Local Division setting out the facts in regard to the ownership of the two stands and the issue of the proclamation of the 22nd January, 1943, by the Administrator, and asking the Court for-
"an order in terms of sec. 102 of Act 46 of 1935 declaring That sec. 29 (7) (b) and 29 (8) read with sec. 29 (1) (a) of the Townships and Town Planning Ordinance of 1931, as amended by sec. 7 of Ordinance 20 of 1941, is ultra vires and invalid, and that Proclamation No. 14 (Administrator's), 1943, dated 22nd January, 1943, removing the condition contained in clause (e) of Crown Grant No. G24/42 is ultra vires and void."
The petition also asked for an order interdicting the Rossmaur Company from carrying on business or permitting business to be carried on in the shops on Stands 3766 and 3767, for further or alternative relief and for costs. It appears...
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