Union Government (Minister of Finance) v Van Soelen

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, Villiers AJA, Juta AJA and Wessels Acting AJA
• Judgment Date: 29 February 1916
• Hearing Date: 24 February 1916
• Court: Appellate Division

Innes, C.J.:

Law 15 of 1909 regulates the establishment of all townships upon farm land in the Free State. No township may be constituted, save with the sanction either of Government or Parliament, according to circumstances, and by due Proclamation in the Gazette. A person desirous of laying out a township upon a farm is bound to apply to the Minister of Lands, and to state, among other things, the amount which he stipulates for out of the

Innes, C.J.

proceeds of the sale of erven as purchase-price for the farm, together with all costs and expenses connected with the foundation of the township. The price so fixed is the compensation which the applicant receives for the entire farm, because in return, he parts not only with such erven as he may sell to the public, but also with the remainder of the area which is transferred to the Government In trust for the community. The disposal of the erven to Private buyers is a gradual process, which lasts until they have all found purchasers, or until the stipulated amount has been realised. The arrangement involves, of course, a number of sales to individuals, but it is not in itself a sale of the farm as a whole to any one person. It is a special statutory mode of dealing with the property. In the present case a committee was appointed at a public meeting of residents in the neighbourhood to establish a township on the farm Poortje, with the consent and co-operation of de Bruin, the owner of the property. The Committee, whom the present respondent represents, figured as applicants, and conducted the negotiations. Under the Act the Government deals only with the applicant, upon whom considerable statutory responsibility is imposed. But it is nowhere provided that the applicant must be the owner of the farm; and Mr. Hertzog not only admitted that he need not be the owner, but stated that in practice he generally was not. Nor does it follow that, in every case where the two capacities are separated, there must have been a sale by the owner to the applicant. It is quite possible that an applicant while submitting himself to such obligations as the statute imposes may in good faith and quite properly act on behalf of the owner. And I take it that, if matters had gone smoothly in the present instance, it could never have been contended that there had been any sale of Poortje by de Bruin to the Committee.

But a hitch occurred. The approval of Parliament had been sought and obtained on a basis of £6,000 as the total amount to be recovered by the sale of erven. This was an error; the stipulated BUM should have included an item of £2,550 for expenses, making £8,550 in all. And the Government took up the position that a fresh consent was necessary to legalise the increased amount. No serious difficulty was anticipated in obtaining Parliamentary sanction; but considerable delay was inevitable, and de Bruin was

Innes, C.J.

desirous that matters should be finally arranged. To meet his views, therefore an agreement was on 19th July, 1911, entered into between himself and the Committee, upon the construction of which the present dispute will be found to turn. Its general purport was to the effect that they were to advance to him the money he had stipulated to retain out of the sale of the erven, and that he would execute in their favour a power of attorney authorising them in his name to carry out the requirements of the statute to sell and transfer the...