Webb v Beaver Investments (Pty) Ltd and Registrar of Deeds

• Judge: Clayden J
• Judgment Date: 22 November 1949
• Citation: 1950 (1) SA 491 (T)
• Hearing Date: 22 November 1949
• Court: Transvaal Provincial Division

Clayden, J.:

The applicant in this case has sold a portion 'C' of the farm 'Leeuwenkloof' No. 97 to the first respondent. This farm was originally jointly owned by the predecessors of the applicant, members of the Glas family and certain other persons. An arbitration took place to divide the farm, as a result of which the Glas family became the owners of portion 'A' and the predecessors of the applicant and these other persons the owners of the remaining extent. Subsequently there was a division of the remaining extent between these other persons and the predecessors of the applicant. So far as the mineral rights of the original farm are concerned, disputes have arisen as to whether these were dealt with in the arbitration; if they were, what was the effect and, if they were not, what rights the various owners of portions of the farm became entitled to on the mineral rights of the farm.

The main dispute concerns the effect of the sale by the applicant to the first respondent of his portion 'C' of the farm. The contention

Clayden J

of the applicant is that in terms of the deed of sale and the deed of transfer passed in pursuance of it the first respondent obtained no mineral rights whatsoever. The contention of the first respondent is that mineral rights did pass under these two documents. For the first respondent to-day it was contended that the procedure adopted by the applicant was out of order because the applicant was asking for a rectification of a contract which should be done not by way of application but by way of petition. Reference was made to the case of Hadiaris v Freeman & Freeman (1948 (3), S.A.L.R. 720 (W.L.D.)). In that case what the Court was concerned with was a clause in a lease. The lease had been renewed and, when it was renewed, the clause dealing with an extension of the lease appeared in a different form to that which had been in the original lease. The applicant asked that he should be declared to have a right to renew the lease not in terms of the clause as it appeared in the lease but in terms of the clause as it should have appeared in the lease, and it was argued that this was in effect an attempt to rectify a document on motion and then to have a declaration of rights made on the amended contract. That contention was upheld. PRICE, J., at page 727 dealt with the argument that this application was not a claim for rectification but merely a claim for declaration of rights, and pointed out that the answer to...