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LAW OF PROPERTY (INCLUDING MORTGAGE AND PLEDGE) By D J

PAVLICH*

A LEGISLATION
DEEDS REGISTRY

Of the several amendments made to the Deeds Registries Act 47 of 1937 by the General Law Amendment Act 62 of 1973, the most important is contained in s 10, which amends s 63 of the principal statute. The erstwhile provision enacted simply that '[n]o deed, or condition in a deed, purporting to create or embodying any personal right, and no condition which does not restrict the exercise of any right of ownership in respect of immovable property, shall be capable of registration'. The effect of this section, read with s 3(r) of the Act, was to ensure that as far as immovable property is concerned 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 of immovable property. And if a right, essentially personal, was erroneously registered, this did not change its character (Odendaalsrus Gold, General Investments & Extensions Ltd v Registrar of Deeds 1953 (1) SA 600 (0) at 608). The change introduced by the new amendment is the addition to the old section of a proviso which states that a deed containing a condition not restricting the exercise of any right of ownership but which, in the opinion of the registrar, is

'complementary or otherwise ancillary to a registrable condition or right contained or conferred in such deed' is capable of registration. It seems unfortunate that the legislature has failed to clarify whether these ancillary, personal rights will assume the status of real rights on registration because, from a practical point of view, whether these rights retain or lose their personal character will determine whether they bind successors in title to the land to which they pertain. Section 102, which defines a real right, rather cryptically, as 'including any right which becomes real on registration', does not seem to take the matter any further. However, it is arguable that, since in any event one of the purposes of a deeds registry is to convert personal rights (eg the jura in personam ad rem acquirendam arising 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.

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extended the class of personal rights that may be registered and thereby 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 servitudes vested by statute) by adding a new ss (5A). In terms of the enactment, where any right of servitude or right to minerals over land has been expropriated, but a formal cession of these rights has not been effected, the registrar is obliged, on written application by the cessionary and the owner of the land or right to minerals, to cancel any note of the expropriation in his registers or endorsement on the title deed of the land, with the result that the expropriated right of servitude or right to minerals vests in such owner. 1 of the This provision, as in the case of s 32(5), does not affect s I Railways Expropriation Act 37 of 1955 (s 9(b) of the amending statute). In order to facilitate certain administrative arrangements contained in ss 2 and 9(4) of the principal Act, ss 7 and 8 have been enacted. Section 8(1) increases the tenure of office of the member appointed by an incorporated law society to serve on the regulations board from one to .three years. This last-mentioned provision is 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 extensively amended 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 of 1971 by s 44 of the General Law Amendment Act-62 of'1973 remedies an important deficiency in the former provision. In terms of the amendment any person who occupies any part of a building in perpetuity by virtue of a shareholding in a company can have those rights of occupancy converted into ownership of the parts in question. Previously, as the old wording read, even persons who had rights of occupancy for only a limited period qualified for conversion. Regulations in terms of s 40 of the Sectional Titles Act 66 of 1971 have been promulgated under GN R475 GG 3822 of 30 March 1973 (Reg Gaz 1765). These regulations set out the procedure to be followed in respect of applications for approval of a development scheme (s 2); appeals to the administrator (s 3); the form in which certificates 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 be made (s 7); and the mode in which registration of transfer of

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ownership and registration of other rights in respect of parts of buildings are to be effected (s 8). Section 6 deals with procedures relating to sectional title registers. Proc R18 GG 3776 of 2 February 1973 (Reg Gaz 1733) brought the Sectional Titles Act 66 of 1971 into operation with effect from 30 March 1973.
THE ENVIRONMENT

Soil Conservation The effect of the amendment to s 3 (1)(a) of the Soil Conservation Act 76 of 1969 by s 1(a) of the Soil Conservation Amendment Act 11 of 1973 is to enable the Minister of Agriculture to issue a direction pertaining to certain land with the result that that land will be withdrawn permanently from cultivation. Section 1(b) of the amending statute, by altering s 3(3) of the principal Act, empowers the Minister to withdraw, amend or suspend, subject to such 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 the Minister is now entitled to pay subsidies to persons who incur costs, not only in connection with the construction of any soil conservation works 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 is applicable 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 General The Atmospheric Pollution Prevention Act 45 of 1965 has been extensively amended by the Atmospheric Pollution Prevention Amendment Act 17 of 1973 which, apart from s 9(c), came into operation on 4 April 1973. Many of the amendments were aimed at eliminating certain inconsistencies that prevailed under the principal Act (hence there is a new definition of 'fixed date'; see also, on the subject 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, transmit, consign, convey, or deliver for sale, or exchange, or dispose of to any person in any manner, whether for consideration or otherwise . . .

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In terms of the principal Act certain enforcement measures may be given effect to by local authorities. Realizing that this may cast a heavy financial burden on local authorities (in connection with the employment of expert staff, the purchase of costly, specialized equipment and investment in research projects), the legislature has amended ss 20, 44 and 45 of the principal Act (by ss 9(c), 17 and 19 respectively) in order to cater for adequate funding by appropriations from the central government. Section 21(a) amends s 47 of the principal Act and renders the State subject to all its provisions with the exception of ss 14-26 inclusive (relating to air pollution caused by smoke), which may be administered by local authorities. With the exception of the railways and harbours administration (but see s 21(c) of Act 45 of 1965), where a department of state or a provincial administration is 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 in relation to works involving cement production, asbestos, lead, power stations, ceramic, chemical incineration, metal spray (GN R212 GG 3783 of 16 February 1973 (Reg Gaz 1739)) and macadam preparation (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 of Dundee, Meyerton and Standerton (GN R1728 GG 4031 of 28 September 1973 (Reg Gaz 1842)). Regulations governing the appeal board and regional appeal boards appointed in terms of Act 45 of 1965 have been promulgated under GN R2110 GG 4074 of 9 November 1973 (Reg Gaz 1871). Control of Noxious and Offensive Gases The 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 a person on any premises within a controlled area shall not erect, alter or extend any building or plant used for carrying on a scheduled process unless he holds a provisional registration certificate; or, if he holds a current registration certificate, such a person shall not alter or extend an existing plant or building unless he has, prior to the proposed alteration or extension, applied to the chief officer for provisional registration. The last-mentioned application will not be necessary if the proposed alteration or extension will not affect the escape into the atmosphere of noxious or offensive gases produced by the scheduled process in question. The 30-day time limit, within which the chief officer had to give a decision under s 10(2) of the principal Act, has been deleted

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(s 4 of Act 17 of 1973). If that officer makes an adverse decision which gives rise to an appeal to the board under s 13 of the principal Act, the scheduled process to which the appeal relates may continue subject to certain conditions. One of these conditions, a result of the amendment to s 13(1) (b) (by s 5 of the amending statute), is that the permission of the chief officer must first be acquired, and he may only give his consent if the process in dispute is unlikely to cause a danger to the 'health of man'. Atmospheric Pollution by Smoke Because technology has not been able to produce an effective grit-collecting appliance which may be attached to a fuel-burning appliance (see House of Assembly Debates vol 42 col 1745 (1 March 1973)), the purpose behind the amendment of s 15(l)(b) of the principal Act (see s 7) is to permit the attachment of 'effective appliances' that will 'limit the emission of grit and dust to the satisfaction of the local authority or the chief officer, as the case may be'. Section 18(l) (d) of the principal Act enables local authorities to .make regulations prohibiting the use or sale of solid fuel. By virtue of ss 8(a) and 17(b) of the amending statute .this has been extended to include the use or sale of fuel-burning domestic appliances. Smoke control zone orders in terms of s 20(1) .of Act 45 of 1965 as amended by s 9(a) of Act 17 of 1973 have been promulgated in respect of various municipalities (shown in parentheses): see. GNs R1006 (Witbank), R1007 (Germiston), R1008 (Alberton), R1009 (Springs), R1026 (Pretoria) GG 3927 of 15 June 1973 (Reg Gaz 1799); 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 4059 of 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). -Smoke control regulations in terms of s 1.8(5) of Act 45of 1965, as amended by Act 17 of 1973, have been promulgated in respect of several municipalities (shown in parenthesis): see GN RI010 GG 3927 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 R1729 GG 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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GN R2212 GG 4086 of 23 November 1973 (Reg Gaz 1878) (Kingwilliamstown); GN R2317 GG 4099 of 7 December 1973 (Reg Gaz 1887) (Carletonville). Dust Control Section 30(1) and (5) of the Act have been amended by s 1 (a) and (b) respectively in order to determine clearly 'the financial responsibility relating to the establishment of vegetation on mine dumps' (House of Assembly Debates vol 42 col 1746 (1 March 1973)). The effect of the amendment is to ensure that persons who are responsible for nuisances will contribute to the cost of establishing such vegetation. Because this vegetation, once established, requires careful maintenance to prevent veld fires and soil washaways and to protect it from the natural hazards of wind and water, s 12, by amending s 33 of the principal Act, constitutes a fund from which money will be applied for maintenance services. Moreover, the minister may, in terms of an amendment to s 33 (by s 13 of Act 17 of 1973), make regulations 'prohibiting damage to or regulating the removal of any means established for the abatement of a dust nuisance or potential dust nuisance, or any equipment which is used in connection with the establishment of such means'. Offenders will 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 gives effect to the conversion to the metric system. Air Pollution by Fumes Emitted by VehiclesThe procedures under s 37 of the Act have been found to be too cumbersome (House of Assembly Debates vol 42 col 1747 (1 March 1973)). Under the amended s 37 (see s 14 of Act 17 of 1973) a person authorized by a local authority may require the driver of any vehicle travelling on a public road within its area of jurisdiction to stop and there and then permit a prescribed examination of the vehicle to be carried out, or he may cause a notice to be served on the registered owner calling upon him to make the vehicle available within a specified period and at a specific place for a prescribed examination. If after either of the examinations it is found that noxious or offensive gases are being emitted, a notice shall be served on the registered owner calling on him to take the necessary steps to prevent the emission of the gases, and to make the vehicle available at a set time and place for a further examination. The necessary amendment to the relevant regulations is effected by s 16 (amending s 39 of the Act). Section 15, amending s 38, deals with appeals to the board arising from s 37(2) and abolishes the

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ormer right of an owner to use the vehicle in question pending a decision from the board. Offences Several amendments have been effected by Act 17 of 1973 (see ss 17 and 20, amending ss 44 and 46 of the principal Act) in order to impose more stringent penalties for offenders under the principal Act, and to make it an offence for persons to cause pollution by the domestic combustion of fossil fuels. Pollution of the Sea by Oil The Prevention and Combating of Pollution of the Sea by Oil Amendment Act 72 of 1973 effects a number of amendments to the principal Act (67 of 1971), many of which are designed to improve the administration of the Act and to enable the authorities to deal more effectively with oil spills. An important amendment is that contained in s 5 (f) (amending
s 5(10) of the principal Act). In terms of the old provision the

minister could cause the detention of a ship until the owner had paid the amount owing by him in respect of the prevention or removal of oil pollution, and, in default of payment, cause any goods of the owner on board the ship or held in South Africa to be seized and sold. By virtue of- the amendment the minister, after notice in the Gazette, may now also cause the ship itself to be seized and sold. Section 2(c) of the principal Act makes it an offence for the master or owner of a ship to discharge oil into the Republic's territorial waters and contiguous fishing zone unless he can prove, inter alia, that the oil escaped into the sea by reason of leakage not due to 'any want of reasonable care'. The amendment introduced by s 2 adds that for the master to escape liability on this ground it must also be shown that any delay in discovering the leakage is not due 'to want of reasonable care'. The new subsection (4) added to s 3 of the Act provides that in those circumstances where the State is partly responsible for an oil discharge, the provisions of the Apportionment of Damages Act 34 of 1956 will operate so that it will be liable for a portion of the clean-up and combating of pollution costs. Wildlife Conservation The Sea Birds and Seals Protection Act 46 of 1973 consolidates the provisions relating to the control and protection of sea birds, seals and certain islands.

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The main purpose of the Forest Amendment Act 45 of 1973 is to create a Forestry Council and a Forestry Industry Fund. The council will act as an advisory body to the minister and will have the power, inter alia, to cause research work affecting the forest or timber industry to be undertaken either by itself or in collaboration with'a state department, university or other institution or association (s 2, introducing s 1OD into the Forest Act 72 of 1968). Section 10C deals with the class of persons eligible for representation on the council. The Minister of Forestry is empowered (by s 10G), after consultation with the council, to impose a levy on any timber or imported timber derivatives. The amounts received from this source will be paid into the Forestry Industry Fund (established under s 10H) and applied to expenses incurred by the council in the performance of its functions and the exercise of its powers. Section 3 amends certain of the provisions in s 29 of the principal Act. Section 29(2)(a) enables the Minister of Forestry, in consultation with the Minister of Planning, to make regulations concerning the making and keeping of a comprehensive running survey of requirements in respect of forest produce in the Republic or of the potential productivity of plantations or forests therein. Section 29(2) (b) (iii) enables the minister to make regulations providing for the collection of data (by owners of plantations or forests and persons engaged in related industries) including returns dealing with costs, selling prices and profits. The only information, as a result of the amendment, which the minister may not insist upon is returns relating to processing techniques.
MISCELLANEOUS

Section 5 of the Abattoir Commission Amendment Act 30 of 1973 inserts s 31A, B and C into the Abattoir Commission Act 86 of 1967, 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 abattoir or for the 'handling, treatment, storage, packing, cooling, freezing, sale, distribution or processing of meat or products of animals slaughtered at any abattoir of which the commission is the owner'. With the exception of ss 4 to 13 inclusive the provisions of the Expropriation Act 55 of 1965 are to apply mutatis mutandis (s 5). In terms of s 31C the commission, or a person authorized by it, may, with the approval of the minister, enter upon the premises with the
necessary workmen, equipment and vehicles and 'perform . . . all

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acts which may be necessary to enable it or him to come to a decision in regard to the said contemplated acquisition'. Compensation for damage suffered is payable and is to be determined in accordance with the provisions of ss 7, 9 and 10 of Act 55 of 1965. Section 48 of the General Law Amendment Act 62 of 1973 repeals the Registration of Property in Deceased Estates Ordinance 9 of 1957 (SWA) and the Registration of Property in Deceased Estates Amendment Ordinance 28 of 1961 (SWA). B CASE LAW
OWNERSMP

It has always seemed trite that, in a cash sale, ownership of the merx does not pass on delivery but only if the price has been paid. Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (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 each case. It depends whether the totality of the circumstances shows, by inference or otherwise, that the parties intended ownership to pass or not to pass, as the case might be' (at 694). The court, in the context of its endorsement of the decision in Commissioner of Customs & Excise v Randles, Brothers & Hudson Ltd 1941 AD 369, appears to have extended the abstract theory for the passing of ownership to cash sales. However, it is difficult to imagine real circumstances where the parties will at one and the same time intend that the price has to be paid as against delivery (ie a cash sale) and nevertheless intend ownership to pass even if the price is, as a fact, not paid against delivery. A cash sale in which a seller intends to pass ownership 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 ownership will pass whether the price is paid or not, and, of course, in this situation ownership will pass on delivery. But it would be very odd to regard this as a cash sale. Again, in the absence of an express agreement of this kind, it is difficult to conceive of circumstances that would warrant the inference that, as a fact, the parties by implication intended ownership to pass even if the price were not 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 International Harvester (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 Purchase and Sale above. In Caledon Afdelingsraad v Mathee en andere 1973 (2) SA 398 (C), a case concerning co-ownership, the applicant divisional council had

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applied on notice of motion for the division of the farm Hartebeesrivier in Caledon. From the papers filed on record it transpired that the farm had been bequeathed in 1809 to nine persons (two whites and seven slaves) by one T and his wife. Two of the heirs had taken transfer of their portions of the farm; the other seven remained owners in undivided shares of the balance. At the time the application was brought 127 of the 627 persons (some of whom were white and the others coloured) who populated the undivided portion of the farm, known as Tesselaarsdal, claimed to be 'interested parties', so that the applicant, which had experienced difficulty in determining which persons were responsible for the payment of taxes, sought a court order, inter alia, (a) declaring the names of the interested parties in the farm; (b) determining the portion of the farm to which each interested party was entitled; (c) defining, in the absence of agreement, the portion to which each interested party was entitled. The application was opposed by 35 respondents and supported by 40 others who, however, also made a counterapplication in respect of, first, the manner in which the farm was to be divided and, secondly, the definition of certain water rights. At the hearing an objection in limine, taken by the opposing respondents on the basis that the applicant council lacked locus standi injudicio,was upheld. The court accepted that, while co-owners have the right to possess their property in undivided shares and the right to terminate this joint possession at any time, the authorities are clear that an outsider who has no interest in the co-ownership cannot demand that the property be divided among the owners (Voet 10.3.1, Van der Keessel Praelectiones 1507, Grotius Inleiding 3.28.6). Van Zyl J stated: ''n Buitestaander het geen reg om hom in te laat met 'n ander se saaklike reg nie. Die reg is geldig teenoor almal. As die afdelingsraad se eis dat die hof Tesselaarsdal onder die mede-eienaars moet verdeel toegestaan sou word, sou dit 'n inbreuk op die eiendomsreg-van elkeen van die mede-eienaars wees. Elke medeeienaar is eienaar van Tesselaarsdal in die geheel in die verhouding wat sy deel tot die geheel is. Deur 'n verdeling te vra, probeer die raad om 'n wesenlike verandering aan te bring in die saaklike regte van al die mede-eienaars. Dit kan die raad alleen doen as hy grond vind wat hom die reg gee om in te meng met die respondente se saaklike regte op 'n wyse wat hom in staat stel om 'n verdeling van Tesselaarsdal op die mede-eienaars af te dwing. Waar daar mede-eienaars is wat ie geregistreerde eienaars is nie, mag dit vir die raad moeilik wees om te bepaal wie hulle is, maar hierdie moeilikheid wat die raad ondervind

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gee nog nie aan die raad die reg om te eis dat elke eienaar sy aandeel in die geheel moet prysgee deur te verdeel en sy deel in alleenbesit moet neem en daarvan transport neem nie' (at 406). Although 40 of the respondents had supported the applicant's prayer for subdivision, the court refused to grant an appropriate order and held that motion proceedings are unsuitable for settling disputes of this nature because the court would have to resolve conflicting and complicated factual issues. OK Bazaars (1929) Ltd v Universal Stores 1973 (2) SA 281 (C) and the appeal, Universal Stores Ltd .v OK Bazaars (1929) Ltd 1973 (4) SA 747 (AD), concerned the availability of the defences of estoppel and the exceptio doli to the true owner's right, not to vindicate, but to claim compensation against bona fide intermediaries who have been in possession of a lost or stolen crossed cheque in terms of s 81(1) of the Bills of Exchange Act 34 of 1964. The cases are more fully discussed in the section on the Law of Negotiable Instruments below. Where the circumstances of a case warrant the issue of a vindicatory interdict pendente lite restraining the use of the thing in question by the respondent, such an order may be combined with an injunction authorizing an attachment pendente lite so that a restraint against use 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: v Hendricks 1973 (1) SA 931 (C) the court decided that in terms of the Road Traffic Ordinance 21 of 1966 (C) the registered owner of'a motor vehicle who has transferred it to another person remains the 'owner' for the purposes of the ordinance until all steps have been completed that have the effect of rendering his registration as owner null and void. Once the registration has been abrogated the common-law owner, even before he becomes registered as owner, is regarded as such for the purposes of the ordinance. It should be noted that in S v Wana 1973 (3) SA 209 (C) at 211 the court stated that the word 'owner' does not appear to have a single consistent meaning attached to it throughout the ordinance. Wana's case is also authority for the proposition that proof of common-law ownership (and not necessarily registered ownership) is sufficient to bring the presumption created by s 155 of the ordinance into operation. The word 'owner' in s 1(1) of the Community Development Act 3 of 1966 includes any person who is legally competent and has the capacity to transfer property: Gemeenskapsontwikkelingsraadv Maxim Township Development (Pry) Ltd 1973 (2) SA 71 (AD) (also considered in last year's Survey at 186).

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A few cases dealt with delivery or transfer. Wagenaar v Minister van Landboukrediet en Grondbesit 1973 (2) SA 496 (0) is authority for the proposition that the expression 'transfer' or 'to transfer' in relation to land, contained in s 11 (9) of the Land Settlement Act 12 of 1912, means transfer by registration coram lege loci according to the provisions of the Deeds Registries Act 47 of 1937. In S v Maseko 1973 (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 the goods are physically handed over at the address on the invoice. A case considering the question of transfer of shares in relation to s 24bis(2) of the Companies Act 46 of 1926 (now s 39 of the new Act 61 of 1973) is Inland Property Development Corporation (Pty) Ltd v Cilliers 1973 (3) SA 245 (AD). In S v Abraham 1973 (1) SA 697 (RAD) it was stated that the term 'deliver' need not always bear its specialized, legal meaning in the context of the passing of ownership. Where circumstances so require, it can have the 'common lay meaning' of 'to hand over'. Finally, the following remarks of BoshoffJ in ConsolidatedFactorsof SA (Pty) Ltd v National Cash Register Co SA (Pty) Ltd 1973 (4) SA 486 (T) in connection with traditio brevi manu may be noted: 'Two different matters are meant by the expression traditio brevi manu. One is the delivery of property when the possession has already been handed over and the other is the delivery of possession where the person to whom delivery is to be made already has the detention of the article. Since the passing of ownership in the [cash] register was reserved in the hire-purchase agreement until all the instalments were paid, we are only concerned with the delivery of the possession. The principles involved in 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 the rectification of a company share register is primarily a matter involving title to be on the register rather than title to (ie ownership of) the shares in question. However, according to Verrin Trust & Finance Corporation (Pty) Ltd v Zeeland House (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 applicant enabling it to recover from a bona fide purchaser scrip which had been 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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73(a) of Proc R188 of 1969, and it is necessary to establish ownership of land, this must be done by the-best evidence -usually the production of the tide deeds: S v Ndlovu 1973 (2) SA 238 (N) at 239.
EXPROPRIATION

An interesting case dealing with the assessment of compensation for the expropriation of land is Bestuursraad van Sebokeng v M & K Trust & Finansiele Maatskappy (Edms) Bpk 1973 (3) SA 376 (AD). By a proclamation of 1957 issued under the Group Areas Act 41 of 1950, the land in question had been zoned for occupation by members of the Bantu group and land tenure by Whites. In terms of a government notice issued in 1965 the land also fell within a district to be controlled and administered by the appellant management'board, which had been. created for the purpose of developing the area and establishing dwellings to meet the residential requirements of those Bantu 'working within the environs of certain neighbouring local authorities. In 1969 the appellant had expropriated certain of the respondent's land under the Expropriation Act 55 of 1965, and tendered: the sum of R200per. morgen as compensation. This figure was rejected by the respondent, which had applied for a. determination under s 8(1) (a) (i) (the fair market value provision) of the Act. It was established that the land had an agricultural and a Bantu housing potential, and that it also had deposits of sand and clay. Addressing its mind to the measure of compensation due under s 8(1) (a) (i) of the Act, the court stated:. 'Die gewillige verkoper en die' gewillige koper .waarna in art 8(1)(a)(i) verwys word in verband met die bepaling van die billike markwaarde, is nie die onteiende en die onteienaar nie, miar 'n denkbeeldige gewillige verkoper en 'n denkbeeldige gewillige koper wat met mekaar op gelyke voet onderhandel, en wat albei ten volle ingelig is oor. die op die datum van onteiening bestaande voor- en nadele en potensialiteite van die grond en oor alles wat dit affekteer.... Om die billike markwaarde van. die onteiende grond .te bepaal is dit dus in die eerste plek nodig om vas te stel wat die potensialiteite van die onteinde grond op die datum van onteiening was, ie.as gerealiseerde werklikhede nie maar 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 the establishment of the appellant board. Therefore this value had to be excluded in determining the compensation payable because of the provisions of s 8(4)(f). Since the clear purpose underlying this section, said Botha JA, is that

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''n onteiende nie vergoed moet word nie vir enige verhoging in waarde van die onteiende goed wat toe te skryf is bloot aan die doel waarvoor of in verband waarmee die goed onteien is, is die gevolgtrekking dat die respondent op geen vergoeding ten opsigte van die Bantoebehuisingspotensiaal van sy grond geregtig is nie, onvermydelik' (at 386). However, if the evidence had shown that the effect of the relevant group area proclamation had been to characterize the expropriated land- with a Bantu township potential, thereby augmenting its value, this increase would not have fallen within the ambit of s 8(4) (f) and would have been relevant in determining the measure of compensation. It was established that the expropriation had not arisen through the publication of the 1957 proclamation but through the publication of the 1965 government notice. It was accepted that at the date the land in question had been expropriated it had had an agricultural potential. However, determination of the compensation payable in thisregard was extremely difficult as the use of this potential had been seriously circumscribed. It was doubtful that a. willing purchaser would want to buy the land for agricultural purposes because of its inclusion within the aforementioned group area and within the jurisdiction of the appellant board. The court observed: 'Dit is trouens duidelik, meen ek, dat die appellant die enigste moontlike koper van die grond was, en nie as landbougrond nie maar vanwe8 sy Bantoebehuisingspotensiaal, die waarde waarvan egter by the [sic] vasstelling van die betaalbare vergoeding buite rekening gelaat moet word' (at 388). The business potential of the expropriated ground was entirely dependent on the discretionary approval of the authorities. For example, a purchaser could not, without the permission of the State President in consultation with the appellant (see s 6 of Act 25 of 1945), establish a business in the area. And it was obvious from the evidence that the necessary consent was unlikely to be given since it would clash with the planning of the area as a regional Bantu housing area. This and other statutory restrictions would discourage a reasonable purchaser. Accordingly, the court dismissed the 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 geen ander potensiaal as 'n landboupotensiaal, op die datum van onteiening, verkry sou geword het indien dit deur 'n gewillige

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verkoper aan 'n gewillige koper verkoop was wat met mekaar op gelyke voet onderhandel het, en wat albei ten volle ingelig was oor die waarde van soortgelyke landbougrond in die omgewing, soos blyk uit, onder meer vergelykbare transaksics en die waardasies van geswore taksateurs, en oor die beperkings wat daar op die gebruik van die grond bestaan het vanwee die insluiting daarvan in groepsgebied N3 en die regsgebied van die appellant' (at 391). As far as compensation for the sand deposits was concerned, the appellant contended that these would have been unexploitable because of the statutory restrictions already referred to. The argument was rejected by the court on the basis that its acceptance would lead to the anomaly that expropriation of a small piece of land, placed in a similar group area with no potential other than the exploitation of sand, would result in no compensation for the owner. Such a conclusion would frustrate the object of Act 55 of 1965 which is 'dat die ekwivalent in waarde aan die onteiende toegeken moet word om die plek in te neem van die goed wat horn ontneem is' (at 393). (See also Estate Marks v PretoriaCity Council 1969 (3) SA 227 (AD) at 242-3). In the circumstances the value of exploitable sand deposits had to be taken into account in assessing the compensation due on expropriation. In Bonnet v Department of Agricultural Credit and Land Tenure 1973 (2) SA 560 (T) it was held that, where there has been an expropriation 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 inconvenience must prove his claim by discharging the civil law onus. The case also decided that the question of a cash payment as against payment by instalments is not a proper factor to be considered. It should 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 specific purpose for which the property was expropriated, so that any enhancement in its value which is due to such purpose must be disregarded.
IMPROVEMENTS

A claim by an alleged bona fide possessor that it was entitled to retain possession of the premises until it had been compensated for the useful improvements it had effected to the property arose in Eduan Hoogtes (Pty) Ltd v Charin Electronics (Py) Ltd 1973 (2) SA 795 (T). The court held that useful improvements in the form of buildings will, as a general rule, not entitle the bona fide possessor to compensation where the costs of such improvements are large,

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or where the true owner himself would never have incurred them. The proper course for such a possessor is to remove the improvements in so far as this is possible. The court stressed its discretion in these matters, and held that in determining a solution it would decide on a result that would be equitable to both parties, having regard to all the circumstances of the case. Hill J stated: 'Hierdie omstandighede behels 'n verskeidenheid faktore, onder andere, die finansi~le status van die eienaar, die vraag van of die eienaar die eiendom wil verkoop of self okkupeer, die uitvoerbaarheid van verwydering, die vraag van of die verbeterings geskei kan word, of die eienaar self sodanige koste sou aangegaan het en dies meer' (at 796).
SPOLIATION

The appellant in Pieterv Muller 1973 (4) SA 126 (E) had unsuccessfully sought a spoliation order in the court a quo in respect of a motor truck. On appeal the trial court's decision was confirmed on the basis that the respondent's purported acts of interference had not 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 of an applicant's establishing that prior to dispossession he had actual, and not necessarily juristic, possession of the thing concerned. It would be sufficient if the applicant's holding was with the intention of securing some benefit for himself. Moreover, it matters not that the occupation has been acquired secretlyor even fraudulently, for this 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 concerns contra spoliation which is instanter resorted to, thus forming part of the res gestae in regard to the despoiler's appropriation of possession, as would be the immediate dispossession of a thief of
stolen goods when he was caughtflagrantedelicto' (at 739).

The alleged dispossession had occurred in respect of certain trading premises in which neither the appellant (who owned the property) nor the respondent (who alleged he had had detention of the property in terms of a lease and had commenced trading) had a licence to trade. The Bantu affairs commissioner before whom the matter first arose discharged the rule on the basis that a restoration to the status ante quo would have resulted in both parties' committing an
offence. Rejecting this argument, and thus finding that the trial court had erred in discharging the rule on this basis, the Appellate Division stated that

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'[a]n order that possession be restored to the respondent is not an order permitting him to trade on the premises and, even if it could be regarded as creating an opportunity of contravening the relative statutory provision, it can hardly be said that the court will be permitting or countenancing the commission of an offence' (per Van Blerk JA at 739).
ENCROACHMENTS

The Rhodesian Appellate Division, affirming Malherbe v Ceres Municipality 1951 (4) SA 510 (AD), has held that where the branches of trees encroach on to neighbouring property by overhanging the common boundary, the owner of the neighbouring property is entitled to claim that the owner of the delinquent tree trim its branches so as to prevent the encroachment: Francis v Roberts 1973 (1) SA 507 (RAD).
PRESCRIPTION

Ex parte Glendale Sugar Millers (Pty) Ltd 1973 (2) SA 653 (N) contains a clear pronouncement from the full bench that one of two procedures may be followed by a claimant wishing to obtain registration of title acquired by prescription. The first is by action at common law; the second is on application by way of a petition in terms of s 33 of the Deeds Registries Act 47 of 1937 as amended. In Stadsraad van Pretoria v Van Wyk 1973 (2) SA 779 (AD) the court held that s 63 of the. Local Government Ordinance 17 of 1939 (T) did not preclude the acquisition of ownership in a portion of certain streets by prescription. Although according to RomanDutch law prescription could not run against the State in respect of land not capable. of private ownership and not susceptible of alienation, this did not apply to streets which the public had the right to use. Endorsing the decision in Jones v Town Council of Cape Town (1895) 12 SC 19, Van Blerk JA stated: 'Alhoewel die publiek nie deur nie-gebruik sy reg op 'n publieke pad kan verloor nie, kan dit volgens Voet 13.7 wel die reg verloor deur strydige gebruik (vir die destydse vereiste tydperk vir verkrygende verjaring, naamlik 40 jaar) deur enig iemand wat sonder beswaar van ander die publieke pad as sy eie gebrulk het deur 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 die deurgang van padgebrukers' (at 784). This was followed in Glaston House (Pty) Ltd v Cape Town Municipality 1973 (4) SA 276 (C), which concerned a claim brought by the registered owner of a property for the transfer to it of land under-

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lying 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 built in 1790, and since 1910, at least, the stoep had abutted on to the street inhibiting ordinary users from traversing the land occupied by the encroachment. The court granted the application and in its judgment reiterated the requirements for acquisitive prescription. It rejected the contention that, because the various users of the premises had been tenants rather than successive owners of the house, the possession of these owners had been largely of the possessio naturalistype which could not found a claim by prescription. Corbett J said that '[w]here a person erects or acquires a building which wholly or partially encroaches upon the land of another, then, in my opinion, he legally possesses the land taken up by the encroachment irrespective of whether he occupies the building himself or whether 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 of occupation exercised by a tenant of a farm in respect of land constituting portion of a neighbouring farm and falling outside .the leased property, which acts were neither authorized by the landlord 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 merely established a servitude, was also rejected. The court drew an analogy with the person who builds on another's land and uses the building with full juristic possession: here the user will obtain full title to the land concerned provided, of course, that there has been compliance with all the other requirements for prescription.
GROUP AREAS

Section 35 of the Group Areas Act 36 of 1966 applies to a company which is a 'disqualified person' in relation to the occupation
of land even though the company may not be disqualified in relation to the ownership of such land: Bestuursraad van Sebokeng v

M & K Trust & Finansifle Maatskappy (Edns) Bpk 1973 (3) SA 376 (AD). The power of the State President to attach conditions that affect the application of the exemption provisions under s 26(2)(c) of the Act in respect of a particular group area, excludes the power to

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require the granting of a permit under s 21 of the Act as one of those conditions: S v Ockers 1973 (3) SA 684 (C).
MORTGAGE AND PLEDGE

The issue that the court in Bro-Trust Finance (Pty) Ltd v Pieters 1973 (3) SA 520 (T) had to determine was whether a covering bond passed 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 proper ground for provisional sentence. After examining the decided cases on the point, the court accepted as authoritative Inglestone v Pereira 1939 WLD 55, and answered the question in the affirmative. William Bain & Co (Pvt) Ltd v Pringle-Wood NO 1973 (4) SA 443 (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 . . . shall be registered within the space of 60 days next after the day of execution or within such extended period as the court may on application 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 retrospectively a late registration. In Wessels NO v Standard Bank van SA Bpk 1973 (4) SA 716 (0) a mortgage bond had been passed by C in favour of H, who thereafter ceded the bond to R. R, in turn, ceded all his rights and interests in the bond to the respondent as security for an overdraft. The cession together with the deed of transfer relating to C's property had been handed over to R's attorney so that he could effect registration of the cession. However, the registration had been stultified because H had refused to sign any documents. R's estate was then sequestrated. The trustee of his estate, the applicant in the action, asserted rights to the mortgage bond on the basis that it had never been registered in the name of the respondent, and soight an order compelling delivery of the bond to him so that the cession in favour of R could be properly registered in the deeds registry. Granting the application, Klopper J stated: 'Human het alreeds op twee geleenthede die verbandakte en meegaande regte aan die insolvent sedeer en hy het ook reeds die verbandakte oorhandig. Daar is niks wat hy verder kan doen om registrasie van die sessie te bewerkstellig nie. Dat applikant 'n plig teenoor die skuldeisers het om registrasie te bewerkstellig is ook duidelik. Al wat vir registrasie nog nodig is, is die verbandakte wat in die besit van die respondent is. Sonder registrasie is hierdie dokument vir die respondent ook nutteloos. Wat die respondent se regte behels na die verbandakte aan die applikante

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gelewer is, word ek nie gevra om nou te beslis nie, maar ek is van oordeel dat die applikant in die omstandighede wel op die dokument geregtig is' (at 720). It was held in Barclays Nasionale Bank 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 first mortgage bond is not 'disposable property'.
TOWNSHIPS

The growing importance of this branch of the law is indicated by the many cases relating to townships reported during the year under review. W's premises in Port Elizabeth Municipality v Wade 1973 (1) SA 79 (E) had been zoned for 'special residential purposes' in terms of the Port Elizabeth town-planning scheme. Although the scheme gave no definition of the phrase 'special residential purposes', it provided that land falling within such a zone 'may be- used for the purpose of erection thereon of dwelling houses and with the special consent of the council, may be used as a place of assembly or public worship or as an educational institution, but that save for the aforegoing purposes it may not be used for any other'. It transpired that W's business, a 'blasting company', was listed in the telephone 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 local authority applied for an interdict requiring, inter alia, the respondent, W, to remove 'all motor vehicles, plant, equipment and supplies which may be kept or stored on the premises and which relate to the respondent's business' (at 79). The prayer was refused on the basis that there was no provision in the scheme that permitted the court to determine whether the respondent's acts went beyond the use of the premises for 'special residential purposes'. It was true that the scheme stated that the premises in question might be used only for the purpose of the erection of a dwelling house (and other enumerated uses with the consent of the council), but it did not specifically provide for the manner of use to which the property might be put once erected-except by the mere general limitation of 'special residential purposes'. The applicant in Johannesburg Consolidated Investment Co Ltd v Elfruci Investments (Py) Ltd & others 1973 (1) SA 494 (W) was the owner of a township, and the first respondent was the registered owner of three lots upon which building operations were being

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conducted by the third respondent. Against the title deeds of each erf the following conditions were registered: (a) that no place of business of any description could be erected or opened, nor might more than one house with the necessary outbuildings and accessories thereto be built, thereon, unless the consent in writing of the township owner was obtained; and (b) that no building might be erected until the plan had been submitted and approved by the township owner. In an endeavour to comply with condition (a) the second and third respondents negotiated with the applicant for the latter's consent in regard to the erection of a block of flats on the three erven. However, although a price was fixed by the applicant, the matter was not taken any further. Thereafter the applicant learned that plans for the construction of a block of flats extending over various erven, including the lots in question, had been submitted to the Johannesburg City Council, and that building operations were about to commence. It applied for an interim interdict restraining 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 circumstances because the price for the applicant's consent had been exorbitant: indeed, the applicant had not been obliged to give its consent at all unless so ordered pursuant to a successful application under the Removal of Restrictions Act 84 of 1967. Nor could the respondents' further submission that the applicant's proper redress lay in damages be aceepted. The court found the respondents' conduct to have been, prima facie, high handed; nor had they made a bona fide offer of security in respect of the applicant's rights. The case may be compared with Johannesburg Consolidated Investment Co Lid v Mitchmor Investments (Pty) Ltd 1971 (2) SA 397 (W); (see 1971 Annual Survey 208), where a similar application was dismissed but where the block of 40 flats in question had been almost completed and 32 units sold. In terms of a town-planning scheme, six small stands in Arcadia, Salisbury, had been zoned 'suburban commercial'. Resultantly, the only permitted use of these stands was the establishment of shops, although a petrol filling station could be erected if the special consent of the Salisbury Municipality had been obtained for this purpose. Shops had been constructed on three of the six stands; and the city council, as owner of the other three stands, successfully applied to itself for special consent to erect a filling station. In respect of this decision an unsuccessful appeal was made by one Jones, a resident of the suburb, to the town-planning court of Rhodesia; but in Jones v City ofSalisbury 1973 (1) SA 548 (RAD), the applicant's further appeal was allowed. It had been shown that there were no

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other stands available for shops which were more urgently required. Although the town-planning court had found this to be an immaterial consideration, the Rhodesian Appellate Division held that it was unreasonable to grant special consent for a use that had not been shown to be a present necessity, whether for the benefit of the public at large or the inhabitants of Arcadia. It was incumbent upon any relevant authority first to satisfy itself that a suitable alternative site for shops could be provided in the suburb before it gave its special consent. Macdonald JP stated that town planning 'is concerned more with the future than with the immediate present and it is of the greatest importance that a present need should not be satisfied at the cost of long-term planning, more particularly if the present need is not a pressing one .... It is obviously the antithesis of good town planning to solve a present need at the expense of future amenity, the more so if the need is doubtful' (at 551). In the circumstances the town-planning court had erred in confining its enquiry 'to ascertaining whether there is a need for a filling station or filling station site in Arcadia, and, if so, whether the three stands are suitable for that purpose'. In any event motorists are mobile-this is the very purpose of possessing a motor-carunlike 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 application for the establishment of a .funeral parlour in the suburb of Avondale be rejected. The appellant's business had operated inthe central business area but a move had become necessary because its landlord, at the expiration of a lease, had wanted the property for himself. The town-planning court, from whose opinion the Rhodesian Appellate Division did not dissent, had based its findings on two main grounds. First, that Avondale had a residential character which it was likely to retain for the foreseeable future. Secondly, a commercial use that involved the 'storing and handling of dead bodies' 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 add to the traffic hazards in the area in view of the inevitable processions that would occur. The appellant's application had also received an adverse reaction from many objectors whose opinion, the court stated, constituted an 'essential: point'. Lewis JA, alluding to the plight in' which the appellant found itself, said:

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'It provides an essential service for the public as a whole, yet nowhere in the scheme is there any provision freely permitting the conduct of such a business. It appears that even in the commercial and light industrial zones such a business may only be conducted with special consent. From the very nature of its business, the appellant is almost bound to encounter some opposition in whichever area it applies for such special consent, and it has already made a number of abortive attempts to find an alternative 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 of development contribution. Although the Townships Ordinance 33 of 1934 (C), as amended, contains no definition of this phrase, Van Winsen J held that it seemed clear from the context of s 35ter that 'it was intended to represent a sum of money to be paid by the
owner of property beneficially affected . . . and others similarly advantaged. . . . As I understand the ordinance it was not the

intention to provide for added-value tax on land but was rather an attempt upon the part of the legislature to lighten the financial burden imposed upon a local authority which results from expense of supplying facilities to the rezoned land allowing it to be put to a more service-intensive use than was the case before rezoning. Since this extension of services to such property is of special benefit to the owner thereof it is only fair that he should contribute towards the relief or partial relief of such burden. If no such burden is placed upon the local authority this factor is no longer relevant to the decision whether or not to levy a contribution' (at 812-13). In this case the administrator, the first respondent, had caused certain farm land to be rezoned industrial and had levied a development contribution on the applicants' property, which fell within the area, on the basis of information supplied to him, by the local authority concerned (the second respondent). It was found that this information had not been made available to the applicants, nor had they been afforded an opportunity of making representations to the administrator prior to his decision. Hence there had been no fair hearing, in circumstances where it was required, since the audi alteram partem rule had not been complied with. Accordingly, the first 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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by prescribing as a general policy a contribution of 50 per cent of the increase in value of land arising through a rezoning. The first applicant in Coin Operated Systems (Pty) Ltd & another v J7ohannesburg City Council 1973 (3) SA 856 (W) had, pursuant to its business operations of 'supplying . . . and installing automatic laundering machines', installed a coin-operated machine in the second applicant's block of flats which was situated in an area zoned 'general residential'. The machines were to be for the use of the building's tenants or their servants only. The question which the court had to decide was whether this use conflicted with the use restrictions contained in the respondent's town-planning scheme. In finding for the applicants the court declared that the operation did not breach the provisions of the scheme because there had been no conflict with the applicable test, viz whether 'the use in question is legitimately part of, or incidental to one or other of the uses or activities included in the definition of "residential building" ' (at 860). The submission of the respondent that the conduct of any business is a use prohibited by the scheme in respect of a 'general residential' zone was rejected by the court, since the business of running an hotel or boarding house, or of letting and hiring flats, and all that was reasonably incidental thereto, was a permitted use. And in the case of a block of flats the occupants as 'a reasonable incident of the use of the building for human habitation' required laundering amenities. The court added, obiter, that the operation of a petrol filling station, however, would not satisfy the test. The three applicants in CD of Birnam (Suburban) (Pry) Ltd & others v Falcon Investments Ltd 1973 (3) SA 838 (W) had obtained an interdict restraining the respondent from using its property for the purpose of quarrying andesite, a type of rock, until it had obtained the necessary consent formally required by the provisions of the Southern Johannesburg Region Town-Planning Scheme 1962, which had zoned the area for special residential use. However, on appeal in Falcon Investments Ltd v CD of Birnam (Suburban) (Py) Ltd & others 1973 (4) SA 384 (AD), the respondent obtained a reversal of the trial court's decision. Although the quarrying operation was conducted in an area zoned for special residential use, the respondent argued that the dispensation contained in s 18(a) of the scheme, viz 'the winning of minerals by underground working, or ... by surface working' and the carrying out of work incidental thereto, applied to its business. In supporting this contention, the Appellate Division accepted that the word 'mineral' in s 18(a) had to be given a wide meaning, and that in the circumstances it included 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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of minerals of any kind on land not included in an established township or an agricultural holding' (per Rumpff JA at 405). The applicant's actual quarrying operation (ie conveying extracted andesite to a crusher plant and crushing it) was found to be incidental 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 the amendments contemplated in s 58(13) of the Town-planning and Townships Ordinance 25 of 1965 (T) relate only to minor amendments which do not fundamentally affect the layout of a proposed township. In the circumstances, provisions in a contract of sale of unproclaimed land which gave a seller rights to effect amendments pursuant to s 58(13) did not -render the contract uncertain or offend against the provisions of s 1(1) of the Formalities in respect of Contracts of Sale of Land Act .71 of 1969. On appeal it was decided, on. a finding of fact, that the contract in question had not incorporated the provisions of s 58(13): Tuckers Land & Development Corporation (Pty) Ltd v Kruger 1973 (4) SA 741 (AD). A case dealing with the :question of endowment payable under the same ordinance is Sandton Town Council v Gwendoline Properties 1973 (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 the valuation court unless.made in the form and within the time prescribed', is -peremptory. Accordingly, if an objection is out of time neither the. valuation court nor a court of appeal has the power to condone the delay or-to afford any other relief: Salisbury Hellenic Co v City of Salisbury 1973 (1) SA 534 (RAD). In Divisional Council, Cape v Mohr 1973 (2) SA 310 (C) it was held that the definition of the word 'building' contained in the regulations framed under the Divisional Councils and Roads Ordinance 13 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 public roads. It was held that where a sandy beach is connected with a public road and is habitually used by the public in their vehicles, the beach constitutes a public road within the framework of the definition of that phrase contained in the Road Traffic Ordinance 21 of 1966 (C): S v Rabe 1973 (2) SA 305 (C). (See also S v Kaffer 1973 (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 Roads Ordinance 22 of 1957 (T). In terms of this section the administrator

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is empowered to declare, after an investigatory report made by a roads board has been submitted, inter alia, that a public road with a defined course should run on a strip of land across a farm. The court held that the fact that at the time of the publication of the relevant notice in the Gazette a new road had existed previously, and was then closed, and the fact that an old road, but not a public road, existed on the same farm and was still open, did not limit the administrator's powers under the section. In Indurith v Xaidoo 1973 (1) SA 104 (D) the registrar of deeds had refused to register the conveyance of certain land, falling in a deceased estate, to the Community Development Board because of caveats registered against the title deeds in favour of two creditors who could not be traced. However, the estate itself could not be wound up by the executors until transfer of the land had been made to the board. In the circumstances the court granted an appropriate rule nisi and ordered publication thereof in two daily newspapers and service on the attorneys who had acted for the two creditors. Where a testator had directed in his will that his executors grant an option to his nephew to purchase certain immovable property in the estate, and the nephew had then exercised the option, it was held that no transfer duty was payable in terms of s 9(l)(e) of the Transfer Duty Act 40 of 1949, since the property had been acquired by testamentary succession: Estate Roadknight v SIR 1973 (2) SA 339 (D). Two cases setting out the law in connection with possession in criminal matters are S v Skhosana 1973 (1) SA 322 (0) and S v Cain 1973 (2) SA 522 (N). C LITERATURE The 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 C Thomas. (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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'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 Andr6 Rabie. (1973) 6 CILSA 63. 'Wildlife Conservation and the Law.' By M Andr6 Rabie. (1973) 6 CILSA 145. 'South African Legislation for Protection against Ionizing Radiation.' 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) 1 Natal University Law Review no 2, 71.

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