1973AnnSurvSAfricanL196

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Citation: 1973 Ann. Surv. S. African L. 196 1973

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LAW OF PROPERTY(INCLUDING MORTGAGE AND PLEDGE)

By D J PAVLICH*A LEGISLATION

DEEDS REGISTRYOf the several amendments made to the Deeds Registries Act 47of 1937 by the General Law Amendment Act 62 of 1973, the mostimportant is contained in s 10, which amends s 63 of the principalstatute. The erstwhile provision enacted simply that '[n]o deed, or

condition in a deed, purporting to create or embodying any personalright, and no condition which does not restrict the exercise of anyright of ownership in respect of immovable property, shall becapable of registration'. The effect of this section, read with s 3(r)of the Act, was to ensure that as far as immovable property isconcerned our law does not have a numerus clausus of real rights.However, a right could not be made real by registration unless,inter alia, that right constituted a diminution in the dominium ofimmovable property. And if a right, essentially personal, waserroneously registered, this did not change its character (OdendaalsrusGold, General Investments & Extensions Ltd v Registrar of Deeds 1953(1) SA 600 (0) at 608). The change introduced by the new amend-ment is the addition to the old section of a proviso which states thata deed containing a condition not restricting the exercise of anyright of ownership but which, in the opinion of the registrar, is'complementary or otherwise ancillary to a registrable condition orright contained or conferred in such deed' is capable of registration.It seems unfortunate that the legislature has failed to clarify whetherthese ancillary, personal rights will assume the status of real rightson registration because, from a practical point of view, whetherthese rights retain or lose their personal character will determinewhether they bind successors in title to the land to which theypertain. Section 102, which defines a real right, rather cryptically,as 'including any right which becomes real on registration', doesnot seem to take the matter any further. However, it is arguablethat, since in any event one of the purposes of a deeds registry is toconvert personal rights (eg the jura in personam ad rem acquirendamarising out of contracts) into real rights, the legislature has indeed

* BA LLB (Witwatersrand), Attorney of the Supreme Court of South Africa,Lecturer in Law, University of the Witwatersrand, Johannesburg.196

HeinOnline -- 1973 Ann. Surv. S. African L. 191 1973


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LAW OF PROPERTY IV3/

extended the class of personal rights that may be registered andthereby made real.Section 9(a) of Act 62 of 1973 amends s 32 of the principal Act(dealing with the registration of expropriated servitudes or servi-tudes vested by statute) by adding a new ss (5A). In terms of theenactment, where any right of servitude or right to minerals overland has been expropriated, but a formal cession of these rights hasnot been effected, the registrar is obliged, on written applicationby the cessionary and the owner of the land or right to minerals, tocancel any note of the expropriation in his registers or endorsementon the title deed of the land, with the result that the expropriatedright of servitude or right to minerals vests in such owner.This provision, as in the case of s 32(5), does not affect s I of theRailways Expropriation Act 37 of 1955 (s 9(b) of the amendingstatute).In order to facilitate certain administrative arrangements con-tained in ss 2 and 9(4) of the principal Act, ss 7 and 8 have beenenacted. Section 8(1) increases the tenure of office of the memberappointed by an incorporated law society to serve on the regula-tions board from one to .three years. This last-mentioned provisionis not to operate with retrospective effect (s 8(2)).The tariff of fees and charges prescribed under regulations made.in terms of s 10..of the Deeds Registries Act has been extensivelyamended by GN R437 GG 3815 of 23 March 1973 (Reg Gaz 1762).SECTIONAL TrrLs

The amendment of s 23(1) of the Sectional Titles Act 66 of1971 by s 44 of the General Law Amendment Act-62 of'1973remedies an important deficiency in the former provision. In termsof the amendment any person who occupies any part of a buildingin perpetuity by virtue of a shareholding in a company can havethose rights of occupancy converted into ownership of the parts inquestion. Previously, as the old wording read, even persons whohad rights of occupancy for only a limited period qualified forconversion.

Regulations in terms of s 40 of the Sectional Titles Act 66 of 1971have been promulgated under GN R475 GG 3822 of 30 March1973 (Reg Gaz 1765). These regulations se t out the procedure tobe followed in respect of applications for approval of a developmentscheme (s 2); appeals to the administrator (s 3); the form in whichcertificates of registered sectional title (s 4) and sectional plans (s 5)are to be presented; the manner in which an alteration, amendment,substitution or cancellation of a registered sectional plan is to bemade (s 7); and the mode in which registration of transfer of



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198 ANNUAL SURVEY OF SA LAWownership and registration of other rights in respect of parts ofbuildings are to be effected (s 8). Section 6 deals with proceduresrelating to sectional title registers.Proc R18 GG 3776 of 2 February 1973 (Reg Gaz 1733) broughtthe Sectional Titles Act 66 of 1971 into operation with effect from30 March 1973.THE ENVIRONMENTSoil Conservation

The effect of the amendment to s 3 (1)(a) of the Soil ConservationAct 76 of 1969 by s 1(a) of the Soil Conservation AmendmentAct 11 of 1973 is to enable the Minister of Agriculture to issue adirection pertaining to certain land with the result that that landwill be withdrawn permanently from cultivation. Section 1(b) ofthe amending statute, by altering s 3(3) of the principal Act,empowers the Minister to withdraw, amend or suspend, subject tosuch conditions as he may determine, a direction issued under s 3(1).

Act 11 of 1973 also amends s 6 of the principal Act so that theMinister is now entitled to pay subsidies to persons who incur costs,not only in connection with the construction of any soil conservationworks or the performance of any act in compliance with a direction,but also 'for the achievement of any object of this Act' (s 2).A new provision, s 26A, creates a presumption that the Act isapplicable to any land where an offence under the statute is alleged

to have been committed unless the contrary is proved by the accused(s 3 of Act 11 of 1973).Atmospheric Pollution

GeneralThe Atmospheric Pollution Prevention Act 45 of 1965 has beenextensively amended by the Atmospheric Pollution Prevention

Amendment Act 17 of 1973 which, apart from s 9(c), came intooperation on 4 April 1973. Many of the amendments were aimed ateliminating certain inconsistencies that prevailed under the principalAct (hence there is a new definition of 'fixed date'; see also, on thesubject of appeals, s 2, which amends s 5(1) (a) of Act 45 of 1965);and rationalizing some of its procedures (see ss 8(b) and (c), 9(a)and (b) and 18 of the amending Act, which alter ss 18(l)(j), 18(5),20(l), 20(10) and 45 of the principal Act respectively).The definition section introduces a very wide definition of 'sell'which, accordingly, includes 'offer, advertise, keep, display, trans-mit, consign, convey, or deliver for sale, or exchange, or dispose ofto any person in any manner, whether for consideration orotherwise . . .



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LAW OF PROPERTY ]VIn terms of the principal Act certain enforcement measures maybe given effect to by local authorities. Realizing that this may cast a

heavy financial burden on local authorities (in connection with theemployment of expert staff, the purchase of costly, specializedequipment and investment in research projects), the legislature hasamended ss 20 , 44 and 45 of the principal Act (by ss 9(c), 17 and19 respectively) in order to cater for adequate funding by appro-priations from the central government.Section 21(a) amends s 47 of the principal Act and renders theState subject to all its provisions with the exception of ss 14-26inclusive (relating to air pollution caused by smoke), which may beadministered by local authorities. With the exception of the rail-ways and harbours administration (but see s 21(c) of Act 45 of1965), where a department of state or a provincial administrationis a polluter special steps may be taken against it in terms of s 21 (b)of the principal Act.The second schedule to the principal Act has been amended inrelation to works involving cement production, asbestos, lead,power stations, ceramic, chemical incineration, metal spray (GNR212 GG 3783 of 16 February 1973 (Reg Gaz 1739)) and macadampreparation (GN R303 GG 3793 of 2 March 1973 (Reg Gaz 1745)).Part III of Act 45 of 1965 is to apply to the municipal areas ofDundee, Meyerton and Standerton (GN R1728 GG 4031 of 28September 1973 (Reg Gaz 1842)).Regulations governing the appeal board and regional appealboards appointed in terms of Act 45 of 1965 have been promulgatedunder GN R2110 GG 4074 of 9 November 1973 (Reg Gaz 1871).

Controlof Noxious and Offensive GasesThe purpose of s 3 is to make the provisions contained in s 9(1) (b)and (c) of the principal Act unequivocal. In the circumstances aperson on any premises within a controlled area shall not erect, alteror extend any building or plant used for carrying on a scheduledprocess unless he holds a provisional registration certificate; or, if

he holds a current registration certificate, such a person shall notalter or extend an existing plant or building unless he has, prior tothe proposed alteration or extension, applied to the chief officer forprovisional registration. The last-mentioned application will not benecessary if the proposed alteration or extension will not affect theescape into the atmosphere of noxious or offensive gases producedby the scheduled process in question.The 30-day time limit, within which the chief officer had togive a decision under s 10(2) of the principal Act, has been deleted



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200 ANNUAL SURVEY OF SA LAW(s 4 of Act 17 of 1973). If that officer makes an adverse decisionwhich gives rise to an appeal to the board under s 13 of the principalAct, the scheduled process to which the appeal relates may con-tinue subject to certain conditions. One of these conditions, a resultof the amendment to s 13(1) (b) (by s 5 of the amending statute), isthat the permission of the chief officer must first be acquired, andhe may only give his consent if the process in dispute is unlikely tocause a danger to the 'health of man'.Atmospheric Pollutionby SmokeBecause technology has not been able to produce an effectivegrit-collecting appliance which may be attached to a fuel-burning

appliance (see House of Assembly Debates vol 42 co l 1745 (1 March1973)), the purpose behind the amendment of s 15(l)(b) of theprincipal Act (see s 7) is to permit the attachment of 'effectiveappliances' that will 'limit the emission of grit and dust to thesatisfaction of the local authority or the chief officer, as the casemay be'.Section 18(l) (d ) of the principal Act enables local authorities to.make regulations prohibiting the use or sale of solid fuel. By virtueof ss 8(a) and 17(b) of the amending statute .this has been extendedto include the use or sale of fuel-burning domestic appliances.

Smoke control zone orders in terms of s 20(1) .of Act 45 of 1965as amended by s 9(a) of Act 17 of 1973 have been promulgated inrespect of various municipalities (shown in parentheses): see. GNsR1006 (Witbank), R1007 (Germiston), R1008 (Alberton), R1009(Springs), R1026 (Pretoria) GG 3927 of 15 June 1973 (Reg Gaz1799); GNs R1369 (Roodepoort), R1371 (Krugersdorp), R1372(Johannesburg) GG 3994 of 10 August 1973 (Reg Gaz 1823);GN R1647 (Brits) GG 4023 of'14 September 1973 (Reg Gaz 1839);GNs R1805 (Brakpan), R1806 (Johannesburg) GG 4041 of 5.October 1973 (Reg Gaz 1850); GN R1959 (Westonaria) GG 4059of 26 October 1973 (Reg Gaz 1860); GN R2032 (Edenvale) GG:4067 of. 2 November 1973 (Reg Gaz 1866); GN R2210 (Benoni)GG 4086 of 23 November 1973 (Reg Gaz 1878).-Smokecontrol regulations in terms of s 1.8(5) of Act 45of 1965, asamended by Act 17 of 1973, have been promulgated in respect ofseveral municipalities (shown in parenthesis): see GN RI010 GG3927 of 15June 1973 (Reg Gaz 1799) (Springs); GN R1370 GG3994.of 10 August 1973 (Reg Gaz 1823) (Germiston); GN R1456 GG'3999 of 17 August 1973 (Reg Gaz 1824) (Kroonstad); GN R1729GG 4031 of 28 September 1973 (Reg Gaz 1842) (Standerton);,GN R1807 GG4041 of 5 October 1973 (Reg Gaz 1850) (Rustenburg);GN R2031 GG 4067 of 2 November 1973 (Reg Gaz 1866) (Pretoria);



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LAW OF PROPERTY 201GN R2212 GG 4086 of 23 November 1973 (Reg Gaz 1878) (King-williamstown); GN R2317 GG 4099 of 7 December 1973 (Reg Gaz1887) (Carletonville).

Dust ControlSection 30(1) and (5) of the Act have been amended by s 1 (a)

and (b) respectively in order to determine clearly 'the financialresponsibility relating to the establishment of vegetation on minedumps' (House of Assembly Debates vol 42 col 1746 (1 March 1973)).The effect of the amendment is to ensure that persons who areresponsible for nuisances will contribute to the cost of establishingsuch vegetation. Because this vegetation, once established, requirescareful maintenance to prevent veld fires and soil washaways andto protect it from the natural hazards of wind and water, s 12, byamending s 33 of the principal Act, constitutes a fund from whichmoney will be applied for maintenance services. Moreover, theminister may, in terms of an amendment to s 33 (by s 13 of Act 17of 1973), make regulations 'prohibiting damage to or regulatingthe removal of any means established for the abatement of a dustnuisance or potential dust nuisance, or any equipment which isused in connection with the establishment of such means'. Offenderswill be financially obligated for any restoration or replacement work(House of Assembly Debates vol 42 col 1747 (1 March 1973)).The amendment of s 28(1)(b) of the principal Act by s 10 giveseffect to the conversion to the metric system.

Air Pollution by Fumes Emitted by Vehicles-The procedures under s 37 of the Act have been found to be too

cumbersome (House of Assembly Debates vo l 42 col 1747 (1 March1973)). Under the amended s 37 (see s 14 of Act 17 of 1973) aperson authorized by a local authority may require the driver ofany vehicle travelling on a public road within its area of jurisdic-tion to stop and there and then permit a prescribed examination ofthe vehicle to be carried out, or he may cause a notice to be servedon the registered owner calling upon him to make the vehicleavailable within a specified period and at a specific place for aprescribed examination. If after either of the examinations it isfound that noxious or offensive gases are being emitted, a noticeshall be served on the registered owner calling on him to take thenecessary steps to prevent the emission of the gases, and to make thevehicle available at a se t time and place for a further examination.The necessary amendment to the relevant regulations is effected bys 16 (amending s 39 of the Act). Section 15, amending s 38, dealswith appeals to the board arising from s 37(2) and abolishes the



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202 ANNUAL SURVEY OF SA LAWormer right of an owner to use the vehicle in question pending adecision from the board.

OffencesSeveral amendments have been effected by Act 17 of 1973 (seess 17 and 20, amending ss 44 and 46 of the principal Act) in orderto impose more stringent penalties for offenders under the principal

Act, and to make it an offence for persons to cause pollution by thedomestic combustion of fossil fuels.Pollutionof the Sea by Oil

The Prevention and Combating of Pollution of the Sea by OilAmendment Act 72 of 1973 effects a number of amendments to theprincipal Act (67 of 1971), many of which are designed to improvethe administration of the Act and to enable the authorities to dealmore effectively with oil spills.

An important amendment is that contained in s 5 (f) (amendings 5(10) of the principal Act). In terms of the old provision theminister could cause the detention of a ship until the owner hadpaid the amount owing by him in respect of the prevention orremoval of oil pollution, and, in default of payment, cause anygoods of the owner on board the ship or held in South Africa to beseized and sold. By virtue of-the amendment the minister, afternotice in the Gazette, may now also cause the ship itself to be seizedand sold.

Section 2(c) of the principal Act makes it an offence for themaster or owner of a ship to discharge oil into the Republic'sterritorial waters and contiguous fishing zone unless he can prove,inter alia, that the oil escaped into the sea by reason of leakage notdue to 'any want of reasonable care'. The amendment introducedby s 2 adds that for the master to escape liability on this ground itmust also be shown that any delay in discovering the leakage is notdue 'to want of reasonable care'.The new subsection (4) added to s 3 of the Act provides that inthose circumstances where the State is partly responsible for an oildischarge, the provisions of the Apportionment of Damages Act 34of 1956 will operate so that it will be liable for a portion of theclean-up and combating of pollution costs.Wildlife Conservation

The Sea Birds and Seals Protection Act 46 of 1973 consolidatesthe provisions relating to the control and protection of sea birds,seals and certain islands.



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LAW OF PROPERTY ZU 3FORESTRY

The main purpose of the Forest Amendment Act 45 of 1973 isto create a Forestry Council and a Forestry Industry Fund. Thecouncil will act as an advisory body to the minister and will havethe power, inter alia, to cause research work affecting the forest ortimber industry to be undertaken either by itself or in collaborationwith'a state department, university or other institution or associa-tion (s 2, introducing s 1OD into the Forest Act 72 of 1968). Section10C deals with the class of persons eligible for representation on thecouncil.The Minister of Forestry is empowered (by s 10G), after con-sultation with the council, to impose a levy on any timber orimported timber derivatives. The amounts received from thissource will be paid into the Forestry Industry Fund (establishedunder s 10H) and applied to expenses incurred by the council inthe performance of its functions and the exercise of its powers.Section 3 amends certain of the provisions in s 29 of the principalAct. Section 29(2)(a) enables the Minister of Forestry, in consulta-tion with the Minister of Planning, to make regulations concerningthe making and keeping of a comprehensive running survey ofrequirements in respect of forest produce in the Republic or of thepotential productivity of plantations or forests therein. Section29(2) (b)(iii) enables the minister to make regulations providing forthe collection of data (by owners of plantations or forests and personsengaged in related industries) including returns dealing withcosts, selling prices and profits. The only information, as a resultof the amendment, which the minister may not insist upon isreturns relating to processing techniques.MISCELLANEOUS

Section 5 of the Abattoir Commission Amendment Act 30 of 1973inserts s 31A, B and C into the Abattoir Commission Act 86 of1967, which enact far-reaching provisions relating to expropriation.The commission, with the approval of the Minister of Agriculture,may, for its own benefit and for the benefit of any other person,expropriate land that is required for the extension of any abattoiror for the 'handling, treatment, storage, packing, cooling, freezing,sale, distribution or processing of meat or products of animalsslaughtered at any abattoir of which the commission is the owner'.With the exception of ss 4 to 13 inclusive the provisions of theExpropriation Act 55 of 1965 are to apply mutatis mutandis (s 5). Interms of s 31C the commission, or a person authorized by it, may,with the approval of the minister, enter upon the premises with thenecessary workmen, equipment and vehicles and 'perform . . .all



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ZU1+ ANNUAL SURVEY OF SA LAWacts which may be necessary to enable it or him to come to a decisionin regard to the said contemplated acquisition'. Compensation fordamage suffered is payable and is to be determined in accordancewith the provisions of ss 7, 9 and 10 of Act 55 of 1965.

Section 48 of the General Law Amendment Act 62 of 1973repeals the Registration of Property in Deceased Estates Ordinance 9of 1957 (SWA) and the Registration of Property in DeceasedEstates Amendment Ordinance 28 of 1961 (SWA).

B CASE LAWOWNERSMP

It has always seemed trite that, in a cash sale, ownership of themerx does not pass on delivery but only if the price has been paid.Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA685 (AD) now holds, however, that this is not an unbreakable rule.In the words of Holmes JA, it is 'basically a question of fact in eachcase. It depends whether the totality of the circumstances shows, byinference or otherwise, that the parties intended ownership to passor not to pass, as the case might be' (at 694). The court, in thecontext of its endorsement of the decision in Commissioner of Customs& Excise v Randles, Brothers& Hudson Ltd 1941 AD 369, appears tohave extended the abstract theory for the passing of ownership tocash sales. However, it is difficult to imagine real circumstanceswhere the parties will at one and the same time intend that theprice has to be paid as against delivery (ie a cash sale) and never-theless intend ownership to pass even if the price is, as a fact, notpaid against delivery. A cash sale in which a seller intends to passownership even if he is not paid must be regarded as very strange.It is true that one could have an agreement to the effect that owner-ship will pass whether the price is paid or not, and, of course, inthis situation ownership will pass on delivery. But it would bevery odd to regard this as a cash sale. Again, in the absence of anexpress agreement of this kind, it is difficult to conceive of circum-stances that would warrant the inference that, as a fact, the partiesby implication intended ownership to pass even if the price werenot to be paid. It should be noted that the facts in Eriksen's case,which related to an interim interdict, are unusual,Another case concerned with cash and credit sales is InternationalHarvester (SA) (Pty) Ltd v A A Cook & Associates (Pty) Ltd 1973 (4)SA 47 (W), which is dealt with in the section on the Law of Purchaseand Sale above.

In Caledon Afdelingsraad v Mathee en andere 1973 (2) SA 398 (C), acase concerning co-ownership, the applicant divisional council had



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LAW OF PROPERTY 205applied on notice of motion fo r the division of the farm Hartebees-rivier in Caledon. From the papers filed on record it transpiredthat the farm had been bequeathed in 1809 to nine persons (twowhites and seven slaves) by one T and his wife. Two of the heirshad taken transfer of their portions of the farm; the other sevenremained owners in undivided shares of the balance. At the timethe application was brought 127 of the 627 persons (some of whomwere white and the others coloured) who populated the undividedportion of the farm, known as Tesselaarsdal, claimed to be 'interestedparties', so that the applicant, which had experienced difficulty indetermining which persons were responsible for the payment oftaxes, sought a court order, inter alia, (a ) declaring the names of theinterested parties in the farm; (b) determining the portion of thefarm to which each interested party was entitled; (c) defining, inthe absence of agreement, the portion to which each interestedparty was entitled. The application was opposed by 35 respondentsand supported by 40 others who, however, also made a counter-application in respect of, first, the manner in which the farm was tobe divided and, secondly, the definition of certain water rights.

At the hearing an objection in limine, taken by the opposingrespondents on the basis that the applicant council lacked locusstandi injudicio,was upheld. The court accepted that, while co-ownershave the right to possess their property in undivided shares and theright to terminate this joint possession at any time, the authoritiesare clear that an outsider who has no interest in the co-ownershipcannot demand that the property be divided among the owners(Voet 10.3.1, Van der Keessel Praelectiones 1507, Grotius Inleiding3.28.6). Van Zyl J stated:

''n Buitestaander het geen reg om hom in te laat met 'n anderse saaklike reg nie. Die reg is geldig teenoor almal. As die afdelings-raad se eis dat die hof Tesselaarsdal onder die mede-eienaarsmoet verdeel toegestaan sou word, sou dit 'n inbreuk op dieeiendomsreg-van elkeen van die mede-eienaars wees. Elke mede-eienaar is eienaar van Tesselaarsdal in die geheel in die ver-houding wat sy deel tot die geheel is. Deur 'n verdeling te vra,probeer die raad om 'n wesenlike verandering aan te bring indie saaklike regte van al die mede-eienaars. Dit kan die raadalleen doen as hy grond vind wat hom die reg gee om in te mengmet die respondente se saaklike regte op 'n wyse wat hom instaat stel om 'n verdeling van Tesselaarsdal op die mede-eienaarsaf te dwing. Waar daar mede-eienaars is wat ie geregistreerdeeienaars is nie, mag dit vir die raad moeilik wees om te bepaalwie hulle is, maar hierdie moeilikheid wat die raad ondervind



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2Ub ANNUAL SURVEY OF SA LAWgee nog nie aan die raad die reg om te eis dat elke eienaar syaandeel in die geheel moet prysgee deur te verdeel en sy deel inalleenbesit moet neem en daarvan transport neem nie' (at 406).Although 40 of the respondents had supported the applicant'sprayer for subdivision, the court refused to grant an appropriate

order and held that motion proceedings are unsuitable for settlingdisputes of this nature because the court would have to resolveconflicting and complicated factual issues.OK Bazaars (1929) Ltd v Universal Stores 1973 (2) SA 281 (C) andthe appeal, Universal Stores Ltd .v OK Bazaars (1929) Ltd 1973 (4)SA 747 (AD), concerned the availability of the defences ofestoppeland the exceptio doli to the true owner's right, not to vindicate, butto claim compensation against bona fide intermediaries who havebeen in possession of a lost or stolen crossed cheque in terms ofs 81(1) of the Bills of Exchange Act 34 of 1964. The cases are morefully discussed in the section on the Law of Negotiable Instrumentsbelow.

Where the circumstances of a case warrant the issue of a vindica-tory interdict pendente lite restraining the use of the thing in questionby the respondent, such an order may be combined with an injunc-tion authorizing an attachment pendente lite so that a restraint againstuse and a protection of the thing from deterioration may be effected:Van Rhyn v Reef Developments A (Pty) Ltd 1973 (1) SA 488 (W).Several decisions dealt with statutory 'owners'. In Mdlalo: vHendricks 1973 (1) SA 931 (C) the court decided that in terms of theRoad Traffic Ordinance 21 of 1966 (C) the registered owner of'amotor vehicle who has transferred it to another person remains the'owner' for the purposes of the ordinance until all steps have beencompleted that have the effect of rendering his registration asowner null and void. Once the registration has been abrogated thecommon-law owner, even before he becomes registered as owner,is regarded as such for the purposes of the ordinance. It should benoted that in S v Wana 1973 (3) SA 209 (C) at 211 the court statedthat the word 'owner' does not appear to have a single consistentmeaning attached to it throughout the ordinance. Wana's case isalso authority for the proposition that proof of common-law owner-ship (and not necessarily registered ownership) is sufficient to bringthe presumption created by s 155 of the ordinance into operation.The word 'owner' in s 1(1) of the Community Development Act 3of 1966 includes any person who is legally competent and has thecapacity to transfer property: Gemeenskapsontwikkelingsraadv MaximTownship Development (Pry) Ltd 1973 (2) SA 71 (AD) (also consideredin last year's Survey at 186).



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LAW OF PROPERTY 2U7A few cases dealt with delivery or transfer. Wagenaar v Minister

van Landboukrediet en Grondbesit 1973 (2) SA 496 (0) is authority forthe proposition that the expression 'transfer' or 'to transfer' inrelation to land, contained in s 11 (9) of the Land Settlement Act 12of 1912, means transfer by registration coram lege loci according tothe provisions of the Deeds Registries Act 47 of 1937. In S v Maseko1973 (3) SA 964 (AD) it was held that for the purposes of s 135(l)(c)of the Liquor Act 30 of 1928 delivery will have taken place if thegoods are physically handed over at the address on the invoice. Acase considering the question of transfer of shares in relation tos 24bis(2) of the Companies Act 46 of 1926 (now s 39 of the newAct 61 of 1973) is Inland PropertyDevelopment Corporation (Pty) Ltd vCilliers 1973 (3) SA 245 (AD). In S v Abraham 1973 (1) SA 697(RAD) it was stated that the term 'deliver' need not always bearits specialized, legal meaning in the context of the passing ofownership. Where circumstances so require, it can have the 'commonlay meaning' of 'to hand over'. Finally, the following remarks ofBoshoffJ in ConsolidatedFactorsofSA (Pty) Ltd v NationalCashRegisterCo SA (Pty) Ltd 1973 (4) SA 486 (T) in connection with traditiobrevi manu may be noted:

'Two different matters are meant by the expression traditiobrevi manu. One is the delivery of property when the possessionhas already been handed over and the other is the delivery ofpossession where the person to whom delivery is to be madealready has the detention of the article. Since the passing ofownership in the [cash] register was reserved in the hire-purchaseagreement until all the instalments were paid, we are only con-cerned with the delivery of the possession. The principles involvedin both these two forms of delivery, however, remain the same'(at 490).An application brought under s 32 of the Companies Act 46 of

1926 as amended (now s 115 of the new Act 61 of 1973) for therectification of a company share register is primarily a matterinvolving title to be on the register rather than title to (ie ownershipof) the shares in question. However, according to Verrin Trust &FinanceCorporation (Pty) Ltd v ZeelandHouse (Pty) Ltd 1973 (4) SA 1(C) a court acting under s 32(3) may, in appropriate circumstances,determine the issue of ownership.

In Fittinghof Investments (Pty) Ltd v Barlow Rand Ltd 1973 (1)PH A10 (W) an interim interdict was granted to the applicantenabling it to recover from a bona fide purchaser scrip which hadbeen stolen by a stockbroker's clerk.

Where there is a criminal charge under s 52(1) read with ss 71 and



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W5 ANNUAL SURVEY OF SA LAW73(a) of Proc R188 of 1969, and it is necessary to establish owner-ship of land, this must be done by the-best evidence -usually theproduction of the tide deeds: S v Ndlovu 1973 (2) SA 238 (N) at 239.EXPROPRIATION

An interesting case dealing with the assessment of compensationfor the expropriation of land is Bestuursraad van Sebokeng v M & KTrust & Finansiele Maatskappy (Edms) Bpk 1973 (3) SA 376 (AD).By a proclamation of 1957 issued under the Group Areas Act 41of 1950, the land in question had been zoned for occupation bymembers of the Bantu group and land tenure by Whites. In termsof a government notice issued in 1965 the land also fell within adistrict to be controlled and administered by the appellant manage-ment'board, which had been.created for the purpose of developingthe area and establishing dwellings to meet the residential require-ments of those Bantu 'working within the environs of certain neigh-bouring local authorities. In 1969 the appellant had expropriatedcertain of the respondent's land under the Expropriation Act 55 of1965, and tendered: the sum of R200per. morgen as compensation.This figure was rejected by the respondent, which had applied fora.etermination under s 8(1) (a ) (i) (the fair market value provision)of the Act. It was established that the land had an agricultural anda Bantu housing potential, and that it also had deposits of sand andclay. Addressing its mind to the measure of compensation dueunder s 8(1) (a) (i) of the Act, the court stated:.

'Die gewillige verkoper en die' gewillige koper .waarna inart 8(1)(a)(i) verwys word in verband met die bepaling van diebillike markwaarde, is nie die onteiende en die onteienaar nie,miar 'n denkbeeldige gewillige verkoper en 'n denkbeeldigegewillige koper wat met mekaar op gelyke voet onderhandel, enwat albei ten volle ingelig is oor. die op die datum van onteieningbestaande voor- en nadele en potensialiteite van die grond en ooralles wat dit affekteer.... Om die billike markwaarde van.dieonteiende grond .tebepaal is dit dus in die eerste plek nodig omvas te stel wat die potensialiteite van die onteinde grond op diedatum van onteiening was, ie as gerealiseerde werklikhede niemaar as redelike moontlikhede' (per Botha JA at 384).Although it was clear that at the date of expropriation the land

had had a Bantu housing potential, this had arisen because of theestablishment of the appellant board. Therefore this value had tobe excluded in determining the compensation payable because ofthe provisions of s 8(4)(f). Since the clear purpose underlying thissection, said Botha JA, is that



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LAW OF PROPERTY %UV''n onteiende nie vergoed moet word nie vir enige verhoging inwaarde van die onteiende goed wat toe te skryf is bloot aan diedoel waarvoor of in verband waarmee die goed onteien is, is diegevolgtrekking dat die respondent op geen vergoeding ten opsigtevan die Bantoebehuisingspotensiaal van sy grond geregtig is nie,onvermydelik' (at 386).

However, if the evidence had shown that the effect of the relevantgroup area proclamation had been to characterize the expropriatedland- with a Bantu township potential, thereby augmenting itsvalue, this increase would not have fallen within the ambit ofs 8(4) (f) and would have been relevant in determining the measureof compensation. It was established that the expropriation had notarisen through the publication of the 1957 proclamation but throughthe publication of the 1965 government notice.It was accepted that at the date the land in question had beenexpropriated it had had an agricultural potential. However, deter-mination of the compensation payable in thisregard was extremelydifficult as the use of this potential had been seriously circumscribed.It was doubtful that a. willing purchaser would want to buy theland for agricultural purposes because of its inclusion within theaforementioned group area and within the jurisdiction of theappellant board. The court observed:

'Dit is trouens duidelik, meen ek , dat die appellant die enigstemoontlike koper van die grond was, en nie as landbougrond niemaar vanwe8 sy Bantoebehuisingspotensiaal, die waarde waarvanegter by the [sic] vasstelling van die betaalbare vergoeding buiterekening gelaat moet word' (at 388).The business potential of the expropriated ground was entirely

dependent on the discretionary approval of the authorities. Forexample, a purchaser could not, without the permission of theState President in consultation with the appellant (see s 6 of Act 25of 1945), establish a business in the area. And it was obvious fromthe evidence that the necessary consent was unlikely to be givensince it would clash with the planning of the area as a regionalBantu housing area. This and other statutory restrictions woulddiscourage a reasonable purchaser. Accordingly, the court dismissedthe possibility of any business potential on the land.

Ultimately, said the court,'[d]ie vraag wat nou, in die lig van die voorgaande, beantwoord

moet word, is watter bedrag vir die onteiende grond, met geenander potensiaal as 'n landboupotensiaal, op die datum vanonteiening, verkry sou geword het indien dit deur 'n gewillige



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2 U ANNUAL SURVEY OF SA LAWverkoper aan 'n gewillige koper verkoop was wat met mekaar opgelyke voet onderhandel het, en wat albei ten volle ingelig wasoor die waarde van soortgelyke landbougrond in die omgewing,soos blyk uit, onder meer vergelykbare transaksics en diewaardasies van geswore taksateurs, en oor die beperkings watdaar op die gebruik van die grond bestaan het vanwee dieinsluiting daarvan in groepsgebied N3 en die regsgebied van dieappellant' (at 391).As far as compensation for the sand deposits was concerned, the

appellant contended that these would have been unexploitablebecause of the statutory restrictions already referred to. The argu-ment was rejected by the court on the basis that its acceptancewould lead to the anomaly that expropriation of a small piece ofland, placed in a similar group area with no potential other thanthe exploitation of sand, would result in no compensation for theowner. Such a conclusion would frustrate the object of Act 55 of1965 which is 'dat die ekwivalent in waarde aan die onteiende toe-geken moet word om die plek in te neem van die goed wat hornontneem is' (at 393). (See also Estate Marks v PretoriaCity Council1969 (3) SA 227 (AD) at 242-3). In the circumstances the value ofexploitable sand deposits had to be taken into account in assessingthe compensation due on expropriation.

In Bonnet v Departmentof AgriculturalCredit and Land Tenure 1973(2) SA 560 (T) it was held that, where there has been an expropria-tion and a claim for compensation is made in terms of s 8(1) (a) (ii)of Act 55 of 1965, the claimant who alleges actual loss or incon-venience must prove his claim by discharging the civil law onus.The case also decided that the question of a cash payment as againstpayment by instalments is not a proper factor to be considered. Itshould be noted, on the authority of this decision, that the-word'purpose' appearing in s 8(4) (f) of the Act is limited to the specificpurpose for which the property was expropriated, so that anyenhancement in its value which is due to such purpose must bedisregarded.IMPROVEMENTS

A claim by an alleged bona fide possessor that it was entitled toretain possession of the premises until it had been compensated forthe useful improvements it had effected to the property arose inEduan Hoogtes (Pty) Ltd v Charin Electronics (Py) Ltd 1973 (2) SA795 (T). The court held that useful improvements in the form ofbuildings will, as a general rule, not entitle the bona fide possessorto compensation where the costs of such improvements are large,



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LAW OF PROPERTY ZlIor where the true owner himself would never have incurred them.The proper course for such a possessor is to remove the improve-ments in so far as this is possible. The court stressed its discretion inthese matters, and held that in determining a solution it woulddecide on a result that would be equitable to both parties, havingregard to all the circumstances of the case. Hill J stated:

'Hierdie omstandighede behels 'n verskeidenheid faktore, onderandere, die finansi~le status van die eienaar, die vraag van of dieeienaar die eiendom wil verkoop of self okkupeer, die uitvoer-baarheid van verwydering, die vraag van of die verbeteringsgeskei kan word, of die eienaar self sodanige koste sou aangegaanhet en dies meer' (at 796).

SPOLIATIONThe appellant in Pieter v Muller 1973 (4) SA 126 (E) had unsuccess-fully sought a spoliation order in the court a quo in respect of a

motor truck. On appeal the trial court's decision was confirmed onthe basis that the respondent's purported acts of interference hadnot amounted to a dispossession of the truck.Another case dealing with spoliation is reko v Qana 1973 (4)SA 735 (AD). The Appellate Division reaffirmed the importance ofan applicant's establishing that prior to dispossession he had actual,and not necessarily juristic, possession of the thing concerned. Itwould be sufficient if the applicant's holding was with the intentionof securing some benefit for himself. Moreover, it matters not thatthe occupation has been acquired secretlyor even fraudulently, forthis is irrelevant in the context of a spoliation enquiry (Voet 41.2.16).Adverting to the issue of self-help, Van Blerk JA stated that

'there may be circumstances justifying self-help if it concernscontra spoliation which is instanter resorted to, thus forming partof the res gestae in regard to the despoiler's appropriation ofpossession, as would be the immediate dispossession of a thief ofstolen goods when he was caughtflagrantedelicto' (at 739).

The alleged dispossession had occurred in respect of certain tradingpremises in which neither the appellant (who owned the property)nor the respondent (who alleged he had had detention of the pro-perty in terms of a lease and had commenced trading) had a licenceto trade. The Bantu affairs commissioner before whom the matterfirst arose discharged the rule on the basis that a restoration to thestatus ante quo would have resulted in both parties' committing anoffence. Rejecting this argument, and thus finding that the trialcourt had erred in discharging the rule on this basis, the AppellateDivision stated that



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212 ANNUAL SURVEY OF SA LAW'[a]n order that possession be restored to the respondent is notan order permitting him to trade on the premises and, even ifit could be regarded as creating an opportunity of contraveningthe relative statutory provision, it can hardly be said that thecourt will be permitting or countenancing the commission of anoffence' (per Van Blerk JA at 739).

ENCROACHMENTSThe Rhodesian Appellate Division, affirming Malherbe v CeresMunicipality 1951 (4) SA 510 (AD), has held that where the branchesof trees encroach on to neighbouring property by overhanging thecommon boundary, the owner of the neighbouring property is

entitled to claim that the owner of the delinquent tree trim itsbranches so as to prevent the encroachment: Francis v Roberts1973 (1) SA 507 (RAD).PRESCRIPTIONEx parte Glendale Sugar Millers (Pty) Ltd 1973 (2) SA 653 (N)

contains a clear pronouncement from the full bench that one oftwo procedures may be followed by a claimant wishing to obtainregistration of title acquired by prescription. The first is by actionat common law; the second is on application by way of a petitionin terms of s 33 of the Deeds Registries Act 47 of 1937 as amended.In Stadsraad van Pretoriav Van Wyk 1973 (2) SA 779 (AD) thecourt held that s 63 of the. Local Government Ordinance 17 of1939 (T) did not preclude the acquisition of ownership in a portionof certain streets by prescription. Although according to Roman-Dutch law prescription could not run against the State in respectof land not capable. of private ownership and not susceptible ofalienation, this did not apply to streets which the public had theright to use. Endorsing the decision in Jones v Town Council ofCapeTown (1895) 12 SC 19, Van Blerk JA stated:

'Alhoewel die publiek nie deur nie-gebruik sy reg op 'n publiekepad kan verloor nie, kan dit volgens Voet 13.7 wel die reg verloordeur strydige gebruik (vir die destydse vereiste tydperk vir ver-krygende verjaring, naamlik 40 jaar) deur enig iemand watsonder beswaar van ander die publieke pad as sy eie gebrulk hetdeur daarop te bou, te sai, te plant, te spit of heinings op te rig,of wat op enige ander wyse hoe ook al 'n hindernis skep vir diedeurgang van padgebrukers' (at 784).This was followed in Glaston House (Pty) Ltd v Cape Town Munici-

pality 1973 (4) SA 276 (C), which concerned a claim brought bythe registered owner of a property for the transfer to it of land under-



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LAW OF PROPERTY Z13lying a street encroachment, described as a 'stoep level with foot-way', which the plaintiff alleged had been acquired by prescription.The house from which the encroachment emanated had been builtin 1790, and since 1910, at least, the stoep had abutted on to thestreet inhibiting ordinary users from traversing the land occupiedby the encroachment. The court granted the application and in itsjudgment reiterated the requirements fo r acquisitive prescription.It rejected the contention that, because the various users of thepremises had been tenants rather than successive owners of thehouse, the possession of these owners had been largely of the possessionaturalisype which could not found a claim by prescription. CorbettJ said that

'[w]here a person erects or acquires a building which wholly orpartially encroaches upon the land of another, then, in myopinion, he legally possesses the land taken up by the encroach-ment irrespective of whether he occupies the building himself orwhether he lets it to someone else' (at 282).

The case of Welgemoed v Coetzer 1946 TPD 701 was distinguishable,for in that case

'the party claiming prescriptive title sought, to rely upon acts ofoccupation exercised by a tenant of a farm in respect of landconstituting portion of a neighbouring farm and falling outside.the leased property, which acts were neither authorized by thelandlord nor even exercised with his knowledge' (at 282).The argument advanced by counsel for the defendant, that the

adverse possession of the plaintiff and its predecessors in title merelyestablished a servitude, was also rejected. The court drew ananalogy with the person who builds on another's land and uses thebuilding with full juristic possession: here the user will obtain fulltitle to the land concerned provided, of course, that there has beencompliance with all the other requirements fo r prescription.GROUP AREAS

Section 35 of the Group Areas Act 36 of 1966 applies to a com-pany which is a 'disqualified person' in relation to the occupationof land even though the company may not be disqualified in rela-tion to the ownership of such land: Bestuursraad van Sebokeng vM & K Trust & Finansifle Maatskappy (Edns) Bpk 1973 (3) SA 376(AD).The power of the State President to attach conditions that affectthe application of the exemption provisions under s 26(2)(c) of theAct in respect of a particular group area, excludes the power to



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214 ANNUAL SURVEY OF SA LAWrequire the granting of a permit under s 21 of the Act as one ofthose conditions: S v Ockers 1973 (3) SA 684 (C).MORTGAGE AND PLEDGE

The issue that the court in Bro-Trust Finance (Pty) Ltd v Pieters1973 (3) SA 520 (T) had to determine was whether a covering bondpassed by a person who is not at the date of registration a debtor,but who contemplates that he may or will become one, is a properground for provisional sentence. After examining the decided caseson the point, the court accepted as authoritative Inglestone v Pereira1939 WLD 55, and answered the question in the affirmative.

William Bain & Co (Pvt) Ltd v Pringle-Wood NO 1973 (4) SA443 (R) dealt with s 50(1) of the Deeds Registries Act Ch 253 (R).Prior to its amendment in 1971, this section provided that every'notarial special or general bond executed in Rhodesia . . . shallbe registered within the space of 60 days next after the day ofexecution or within such extended period as the court may onapplication allow'. It was held that this provision is peremptory,so that a bond registered out of time is invalid and of no effect.Moreover, a court is not entitled to condone or validate retrospec-tively a late registration.

In Wessels NO v StandardBank van SA Bpk 1973 (4) SA 716 (0) amortgage bond had been passed by C in favour of H, who there-after ceded the bond to R. R, in turn, ceded all his rights andinterests in the bond to the respondent as security for an overdraft.The cession together with the deed of transfer relating to C's pro-perty had been handed over to R's attorney so that he could effectregistration of the cession. However, the registration had beenstultified because H had refused to sign any documents. R's estatewas then sequestrated. The trustee of his estate, the applicant inthe action, asserted rights to the mortgage bond on the basis thatit had never been registered in the name of the respondent, andsoight an order compelling delivery of the bond to him so that thecession in favour of R could be properly registered in the deedsregistry. Granting the application, Klopper J stated:

'Human het alreeds op twee geleenthede die verbandakte enmeegaande regte aan die insolvent sedeer en hy het ook reedsdie verbandakte oorhandig. Daar is niks wat hy verder kan doenom registrasie van die sessie te bewerkstellig nie. Dat applikant'n plig teenoor die skuldeisers het om registrasie te bewerkstelligis ook duidelik. Al wat vir registrasie nog nodig is, is die ver-bandakte wat in die besit van die respondent is. Sonder registrasieis hierdie dokument vir die respondent ook nutteloos. Wat dierespondent se regte behels na die verbandakte aan die applikante



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LAW OF PROPERTY 215gelewer is, word ek nie gevra om nou te beslis nie, maar ek isvan oordeel dat die applikant in die omstandighede wel op diedokument geregtig is' (at 720).It was held in Barclays NasionaleBank Bpk v Badenhorst 1973 (1)SA 333 (N) that for the purposes of the sheriff's return or s 8(b)of the Insolvency Act 24 of 1936, read with rules 45 and 46 of the

Uniform Rules of Court, immovable property subject to a firstmortgage bond is not 'disposable property'.TOWNSHIPS

The growing importance of this branch of the law is indicated bythe many cases relating to townships reported during the year underreview.W's premises in Port Elizabeth Municipality v Wade 1973 (1) SA79 (E) had been zoned for 'special residential purposes' in terms ofthe Port Elizabeth town-planning scheme. Although the schemegave no definition of the phrase 'special residential purposes', it

provided that land falling within such a zone 'may be- usedfor the purpose of erection thereon of dwelling houses and with thespecial consent of the council, may be used as a place of assemblyor public worship or as an educational institution, but that save forthe aforegoing purposes it may not be used for any other'. It trans-pired that W's business, a 'blasting company', was listed in thetelephone directory as being situated on the property in question,and that motor vehicles, items of plant and equipment and supplies,used in his business, were kept there as well. The applicant localauthority applied for an interdict requiring, inter alia, the respon-dent, W, to remove 'all motor vehicles, plant, equipment andsupplies which may be kept or stored on the premises and whichrelate to the respondent's business' (at 79). The prayer was refusedon the basis that there was no provision in the scheme that per-mitted the court to determine whether the respondent's acts wentbeyond the use of the premises for 'special residential purposes'. Itwas true that the scheme stated that the premises in question mightbe used only for the purpose of the erection of a dwelling house(and other enumerated uses with the consent of the council), but itdid not specifically provide for the manner of use to which theproperty might be put once erected-except by the mere generallimitation of 'special residential purposes'.The applicant in Johannesburg Consolidated Investment Co Ltd vElfruci Investments (Py) Ltd & others 1973 (1) SA 494 (W) was theowner of a township, and the first respondent was the registeredowner of three lots upon which building operations were being



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216 ANNUAL SURVEY OF SA LA Wconducted by the third respondent. Against the title deeds of eacherf the following conditions were registered: (a) that no place ofbusiness of any description could be erected or opened, nor mightmore than one house with the necessary outbuildings and accessoriesthereto be built, thereon, unless the consent in writing of the town-ship owner was obtained; and (b) that no building might beerected until the plan had been submitted and approved by thetownship owner. In an endeavour to comply with condition (a) thesecond and third respondents negotiated with the applicant for thelatter's consent in regard to the erection of a block of flats on thethree erven. However, although a price was fixed by the applicant,the matter was not taken any further. Thereafter the applicantlearned that plans for the construction of a block of flats extendingover various erven, including the lots in question, had been sub-mitted to the Johannesburg City Council, and that building opera-tions were about to commence. It applied for an interim interdictrestraining the continuance of the building operations. The court;in acceding to the applicant's'prayer, rejected the respondents'submission that their action had been justified in the circumstancesbecause the price for the applicant's consent had been exorbitant:indeed, the applicant had not been obliged to give its consent atall unless so ordered pursuant to a successful application under theRemoval of Restrictions Act 84 of 1967. Nor could the respondents'further submission that the applicant's proper redress lay in damagesbe aceepted. The court found the respondents' conduct to havebeen, prima facie, high handed; nor had they made a bona fideoffer of security in respect of the applicant's rights. The case maybe compared with Johannesburg Consolidated Investment Co Lid vMitchmor Investments (Pty) Ltd 1971 (2) SA 397 (W); (see 1971 AnnualSurvey 208), where a similar application was dismissed but wherethe block of 40 flats in question had been almost completed and32 units sold.

In terms of a town-planning scheme, six small stands in Arcadia,Salisbury, had been zoned 'suburban commercial'. Resultantly, theonly permitted use of these stands was the establishment of shops,although a petrol filling station could be erected if the specialconsent of the Salisbury Municipality had been obtained for thispurpose. Shops had been constructed on three of the six stands; andthe city council, as owner of the other three stands, successfullyapplied to itself for special consent to erect a filling station. In respectof this decision an unsuccessful appeal was made by one Jones, aresident of the suburb, to the town-planning court of Rhodesia;but in Jonesv City ofSalisbury 1973 (1) SA 548 (RAD), the applicant'sfurther appeal was allowed. It had been shown that there were no



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LAW OF PROPERTY Z|1other stands available for shops which were more urgently required.Although the town-planning court had found this to be an imma-terial consideration, the Rhodesian Appellate Division held that itwas unreasonable to grant special consent for a use that had notbeen shown to be a present necessity, whether for the benefit of thepublic at large or the inhabitants of Arcadia. It was incumbentupon any relevant authority first to satisfy itself that a suitablealternative site for shops could be provided in the suburb before itgave its special consent. Macdonald JP stated that town planning

'is concerned more with the future than with the immediatepresent and it is of the greatest importance that a present needshould not be satisfied at the cost of long-term planning, moreparticularly if the present need is not a pressing one .... It isobviously the antithesis of good town planning to solve a presentneed at the expense of future amenity, the more so if the need isdoubtful' (at 551).

In the circumstances the town-planning court had erred in con-fining its enquiry 'to ascertaining whether there is a need for afilling station or filling station site in Arcadia, and, if so, whetherthe three stands are suitable for that purpose'. In any event motoristsare mobile-this is the very purpose of possessing a motor-car-unlike shoppers, who very often are not.In Doves-Morgans (Pvt) Ltd v City of Salisbury 1973 (2) SA 463(RAD) the court refused to upset the decision of the respondent,which had been upheld by the town-planning court, that an applica-tion for the establishment of a .funeral parlour in the suburb ofAvondale be rejected. The appellant's business had operated in hecentral business area but a move had become necessary because itslandlord, at the expiration of a lease, had wanted the property forhimself. The town-planning court, from whose opinion the Rho-desian Appellate Division did not dissent, had based its findings ontwo main grounds. First, that Avondale had a residential characterwhich it was likely to retain for the foreseeable future. Secondly, acommercial use that involved the 'storing and handling of deadbodies' did not blend with an essentially residential area, and would,accordingly, adversely affect the character of the neighbourhood.Moreover, the establishment of a parlour with its chapel would addto the traffic hazards in the area in view of the inevitable proces-sions that would occur. The appellant's application had also receivedan adverse reaction from many objectors whose opinion, the courtstated, constituted an 'essential: point'. Lewis JA, alluding to theplight in' which the appellant found itself, said:



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218 ANNUAL SURVEY OF SA LAW'It provides an essential service for the public as a whole, yetnowhere in the scheme is there any provision freely permittingthe conduct of such a business. It appears that even in the com-mercial and light industrial zones such a business may only beconducted with special consent. From the very nature of itsbusiness, the appellant is almost bound to encounter some opposi-tion in whichever area it applies for such special consent, and ithas already made a number of abortive attempts to find analternative place in which to conduct its long-established business'(at 467).Davies & others v Administrator, Cape Province & another 1973 (3)

SA 804 (C) is a case concerned with the controversial issue ofdevelopment contribution. Although the Townships Ordinance 33of 1934 (C), as amended, contains no definition of this phrase,Van Winsen J held that it seemed clear from the context of s 35terthat

'it was intended to represent a sum of money to be paid by theowner of property beneficially affected . . .and others similarlyadvantaged. . . .As I understand the ordinance it was not theintention to provide for added-value tax on land but was ratheran attempt upon the part of the legislature to lighten the financialburden imposed upon a local authority which results from expenseof supplying facilities to the rezoned land allowing it to be putto a more service-intensive use than was the case before rezoning.Since this extension of services to such property is of specialbenefit to the owner thereof it is only fair that he should contributetowards the relief or partial relief of such burden. If no suchburden is placed upon the local authority this factor is no longerrelevant to the decision whether or not to levy a contribution'(at 812-13).

In this case the administrator, the first respondent, had causedcertain farm land to be rezoned industrial and had levied a develop-ment contribution on the applicants' property, which fell withinthe area, on the basis of information supplied to him, by the localauthority concerned (the second respondent). It was found that thisinformation had not been made available to the applicants, norhad they been afforded an opportunity of making representationsto the administrator prior to his decision. Hence there had been nofair hearing, in circumstances where it was required, since the audialteram partem rule had not been complied with. Accordingly, thefirst respondent could not be said to have made a proper decision.It was also found that the first respondent had fettered his discretion



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LAW OF PROPERTY 219by prescribing as a general policy a contribution of 50 per cent ofthe increase in value of land arising through a rezoning.

The first applicant in Coin Operated Systems (Pty) Ltd & another vJ7ohannesburgCity Council 1973 (3) SA 856 (W) had, pursuant to itsbusiness operations of 'supplying . . . and installing automaticlaundering machines', installed a coin-operated machine in thesecond applicant's block of flats which was situated in an areazoned 'general residential'. The machines were to be for the useof the building's tenants or their servants only. The question whichthe court had to decide was whether this use conflicted with the userestrictions contained in the respondent's town-planning scheme.In finding for the applicants the court declared that the operationdid not breach the provisions of the scheme because there had beenno conflict with the applicable test, viz whether 'the use in questionis legitimately part of, or incidental to one or other of the uses oractivities included in the definition of "residential building" ' (at860). The submission of the respondent that the conduct of anybusiness is a use prohibited by the scheme in respect of a 'generalresidential' zone was rejected by the court, since the business ofrunning an hotel or boarding house, or of letting and hiring flats,and all that was reasonably incidental thereto, was a permitteduse. And in the case of a block of flats the occupants as 'a reasonableincident of the use of the building for human habitation' requiredlaundering amenities. The court added, obiter, that the operationof a petrol filling station, however, would not satisfy the test.

The three applicants in CD of Birnam (Suburban) (Pry) Ltd &others v FalconInvestments Ltd 1973 (3) SA 838 (W) had obtained aninterdict restraining the respondent from using its property for thepurpose of quarrying andesite, a type of rock, until it had obtainedthe necessary consent formally required by the provisions of theSouthern Johannesburg Region Town-Planning Scheme 1962,which had zoned the area for special residential use. However, onappeal in Falcon Investments Ltd v CD of Birnam (Suburban) (Py)Ltd & others 1973 (4) SA 384 (AD), the respondent obtained areversal of the trial court's decision. Although the quarrying opera-tion was conducted in an area zoned for special residential use,the respondent argued that the dispensation contained in s 18(a) ofthe scheme, viz 'the winning of minerals by underground working,or ... by surface working' and the carrying out of work incidentalthereto, applied to its business. In supporting this contention, theAppellate Division accepted that the word 'mineral' in s 18(a) hadto be given a wide meaning, and that in the circumstances itincluded andesite. The court held that the purpose of the section'was to ensure that the scheme did not interfere with the exploitation



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220 ANNUAL SURVEY OF SA LAWof minerals of any kind on land not included in an establishedtownship or an agricultural holding' (per Rumpff JA at 405). Theapplicant's actual quarrying operation (ie conveying extractedandesite to a crusher plant and crushing it) was found to be inci-dental to the winning of the rock within the meaning of s 18(a).Kruger v Tuckers Land & Development Corporation (Pty) Ltd 1973(2) SA 532 (T) is authority, inter'alia, for the proposition that theamendments contemplated in s 58(13) of the Town-planning andTownships Ordinance 25 of 1965 (T) relate only to minor amend-ments which do not fundamentally affect the layout of a proposedtownship. In the circumstances, provisions in a contract of sale ofunproclaimed land which gave a seller rights to effect amendmentspursuant to s 58(13) did not -render the contract uncertain oroffend against the provisions of s 1(1) of the Formalities in respectof Contracts of Sale of Land Act .71 of 1969. On appeal it wasdecided, on. a finding of fact, that the contract in question had notincorporated the provisions of s 58(13): Tuckers Land & DevelopmentCorporation (Pty) Ltd v Kruger 1973 (4) SA 741 (AD). A case dealingwith the :question of endowment payable under the same ordinanceis Sandton Town Councilv Gwendoline Properties1973 (1) SA 136 (AD).The provision, in s 149(4) of the Municipal Act Ch 125 (R),that 'no objection-to the valuation roll shall be considered by thevaluation court unless.made in the form and within the time pre-scribed', is -peremptory. Accordingly, if an objection is out of timeneither the.valuation court nor a court of appeal has the power tocondone the delay or-to afford any other relief: SalisburyHellenic Cov City of Salisbury 1973 (1) SA 534 (RAD).In DivisionalCouncil, Cape v Mohr 1973 (2) SA 310 (C) it was heldthat the definition of the word 'building' contained in the regula-tions framed under the Divisional Councils and Roads Ordinance13 of 1917 (C).and the Divisional Council Ordinance 15 of 1952 (C)includes any. structure whatsoever, irrespective of its purpose.MISCELLANEOUS

A number of cases in the year under review dealt with publicroads. It was held that where a sandy beach is connected with apublic road and is habitually used by the public in their vehicles,the beach constitutes a public road within the framework of thedefinition of that phrase contained in the Road Traffic Ordinance21 of 1966 (C): S v Rabe 1973 (2) SA 305 (C). (See also S v Kaffer1973 (2) SA 584 (C) and S v Small 1973 (3) SA 292 (C) at 294.)Moulder v Thom 1973 (3) SA 1 (T) concerned s 5(1) of the RoadsOrdinance 22 of 1957 (T). In terms of this section the administrator



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LAW OF PROPERTY ZZIis empowered to declare, after an investigatory report made by aroads board has been submitted, inter alia, that a public road witha defined course should run on a strip of land across a farm. Thecourt held that the fact that at the time of the publication of therelevant notice in the Gazette a new road had existed previously, andwas then closed, and the fact that an old road, but not a publicroad, existed on the same farm and was still open, did not limit theadministrator's powers under the section.In Indurith v Xaidoo 1973 (1) SA 104 (D ) the registrar of deedshad refused to register the conveyance of certain land, falling in adeceased estate, to the Community Development Board because ofcaveats registered against the title deeds in favour of two creditorswho could not be traced. However, the estate itself could not bewound up by the executors until transfer of the land had been madeto the board. In the circumstances the court granted an appropriaterule nisi and ordered publication thereof in two daily newspapersand service on the attorneys who had acted for the tw o creditors.

Where a testator had directed in his will that his executors grantan option to his nephew to purchase certain immovable propertyin the estate, and the nephew had then exercised the option, it washeld that no transfer duty was payable in terms of s 9(l)(e) of theTransfer Duty Act 40 of 1949, since the property had been acquiredby testamentary succession: Estate Roadknight v SIR 1973 (2) SA339 (D).

Two cases setting out the law in connection with possession incriminal matters are S v Skhosana 1973 (1) SA 322 (0) and S vCain 1973 (2) SA 522 (N).

C LITERATUREThe Land Surveyor and the Law. By K W Simpson & G M J Sweeney.Pietermaritzburg: University of Natal Press. 1973.'Institutes 2.1.41 and the Passage of Property on Sale.' By J A CThomas. (1973) 90 SALJ 150.'Caledon & Suid-Westelike Distrikte Eksekuteurskamer v Wentzel 1972(1) SA 270 (A).' By C G van der Merwe andJ Neethling. (1973)36 THR-HR 86.'The Water Act and Private Water.' By George Findlay QC.(1973) 36 THR-HR 140.'"Adverse User" en die Nuwe Verjaringswet.' By J T Delport.(1973) 36 THR-HR 289.'Regskoste en Vergoedingsake Voonritspruitende uit Onteiening.'By K Neethling. (1973) 36 THR-HR 294.



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222 ANNUAL SURVEY OF SA LAW'The South African Sectional Titles Act in Historical Perspective:An Analysis and Evaluation.' By D V Cowen. (1973) 6 CILSA 1.'South African Air Pollution Control Legislation.' By M Andr6Rabie. (1973) 6 CILSA 63.'Wildlife Conservation and the Law.' By M Andr6 Rabie. (1973)

6 CILSA 145.'South African Legislation for Protection against Ionizing Radia-tion.' By M Andr6 Rabie. (1973) 6 CILSA 403.

'Die Verkryging deur Verjaring van ,,My Eie".' By J D M Swart.(1972) 5 Scintilla Iuris 8.'Two Cases on Property.' By A S Mathews. (1973) 1NatalUniversity

Law Review no 2, 71.

Documents

1973AnnSurvSAfricanL196