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[2010] ZAWCHC 130
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Dolpire v South African National Road Agency Ltd and Another (19661/2009) [2010] ZAWCHC 130 (17 June 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
CASE
NO. 19661/2009
In
the matter between:
GLENN
YVES JAMES DOLPIRE
APPLICANT
AND
THE
SOUTH AFRICAN NATIONAL
ROAD
AGENCY LIMITED
FIRST
RESPONDENT
THE
MINISTER OF TRANSPORT
SECOND
RESPONDENT
JUDGMENT
DELIVERED ON 17 JUNE 2010
DLODLO,
J
[1]
This is an opposed application brought on urgent basis by the
Applicant wherein the following relief is sought:
a) An
order directing the First Respondent to remove the encroachment
constituted by the National Road N2 constructed over the Applicant's
property described as
"Erf1982,
Wilderness, Township Extension, Municipality and administrative
district of George, measuring 2846 square meters"
transferred
to the Applicant under Deed of Transfer number T27558/2004 dated 20
January 2004, within 120 days of the date of this
order.
b) in
the alternative to the above (in the event that the Court is to find
that relief sought above is not competent, an order directing
the
Second Respondent to;
expropriate
the land encompassed by the above encroachment in terms of the
provisions of section 41 (1) (a) of the South African
National Roads
Agency Limited and the National Roads Act 7 of 1998 ("the
Act"); and
(ii)
provide
to the Applicant an undertaking to pay compensation calculated in
terms of the provisions of,
inter
alia,
section
12 of the Expropriation Act 63 of 1973 ("the Expropriation
Act"), and without derogating from the above, upon
the basis
that the value of the Applicant's land without any encroachment
thereon, be taken as the pre-expropriation value thereof.
[2]
The Applicant is an adult businessman resident in Aandblom Street,
Durbanville, Western Cape and conducting business from corner
of
Third Avenue and Nineteenth Street, Elsies River, Western Cape. The
First Respondent (the South African National Road Agency
Limited) is
an agency incorporated as a public company with share capital in
terms of the provisions of section 3 of the South
African National
Roads Agency Limited and National roads Act 7 of 1988 (hereinafter
"the Act") with registered address
at Ditsela Close, 124
Park Street, Hatfield, Pretoria. The Second Respondent is the
Minister of Transport in the National sphere
of Government in his/her
capacity as contemplated by the Act. Mr. Barnard appeared on behalf
of the Applicant, Mr. Tredoux, assisted
by Mr. Cutler, appeared on
behalf of the First Respondent and Mr. Masuku appeared on behalf of
the Second Respondent respectively.
BACKGROUND
[4]
The Applicant bought the land described as Erf 1982, Wilderness, in
2004 for an amount of Eight hundred and sixty thousand rand
(R860
000.00). At the time he so purchased the extent thereof was set out
in the title deed as 2846m
2
.
The residence on such property and its immediate surroundings occupy
approximately 800m
2
of the Erf. It appeared to the Applicant that apart from the
approximately 800m
2
of such Erf, a further approximately 2000m
2
thereof would represent undeveloped land. The Applicant states that
he assumed that the undeveloped portion of the land extended
to an
easterly direction. The title deed of the property made no mention of
any encroachment thereon.
[5]
During the course of 2006 the Applicant established that the
undeveloped portion of the Erf did not extend to an easterly
direction
(as he had until then believed was the case), but to a
southerly direction. He also established that approximately 2025m
2
of the Erf that extended to a southerly direction was affected by an
encroachment caused by the N2 National Road between George
and
Wilderness. He sought to reach an amicable settlement with the First
Respondent relating to such encroachment.
[6]
According to the Applicant the Respondent adopted what he termed "the
bizarre" attitude that the encroachment over
Erf 1986 had
existed since approximately October 1986 and that since the "National
Road" had no value to the Applicant,
the First Respondent
intended expropriating such property without payment of any
compensation. Since such attitude was allegedly
taken in 2008, the
First Respondent has not relented in the attitude. Paradoxically, and
despite intimation from it that necessary
steps would be taken to
expropriate the Applicant's land, nothing in such regard has
eventuated to date hereof.
[7]
Arising from the above, the applicant launched an application against
the Respondents seeking the removal of the encroachment,
alternatively an order directing the Second respondent to expropriate
the land affected by the encroachment. It is common cause
that upon
the filing of Opposing papers the Applicant somewhat changed his
relief. Accordingly the Applicant does not persist with
the prayer
for the removal of the encroachment (being the N2 National Road). He
now seeks the remaining prayer identified in the
Notice of Motion as
prayers 3.1, 4, 5 and 7:
a)
Directing the Second Respondent to expropriate the land encompassed
by the encroachment in terms of the provisions of section
41 (1) (a)
of the South African national roads Agency Limited and National Roads
Act 7 of 1998 (prayer 3.1);
b)
Declaring that the Applicant's letter dated 13 February 2009
(Annexure "A" to the Founding papers) constituted the
demand required by section 14 (3) (b) of the Expropriation Act 63 of
1975, and declaring the Applicant entitled to forthwith institute
the
actions contemplated by section 14 (3) (a) of such Act (prayer 4).
c)
Directing that, in the event that the Second Respondent
fails/neglects to expropriate the land within sixty (60) days of the
date of this order, prayer 1 of the Notice of Motion (directing the
removal of the encroachment) shall serve as an order of Court
(prayer
5);
(d)
Directing the Respondents to pay the costs of this application
(prayer 7).
[8]
Due to the nature of this matter it is compellingly necessary to also
set out background information with regard to how and
by virtue of
which authorization did the N2 National Road which is described in
the Applicant's papers as constituting an encroachment
come about.
The National Roads Act 42 of 1935 applied when the National Road
which is built over Erf 1982, was constructed and
proclaimed during
1952. The National Roads Act 54 of 1971 repealed Act 42 of 1935 with
effect from 1 October 1971. This Act deemed
all National Roads
proclaimed in terms of previous legislation to have been so
proclaimed under it. The 1996 Constitution includes
public transport
and road traffic regulation in Schedule 4. This means that the
National and Provincial governments have concurrent
legislative
competence. A Provincial legislature has legislative competence in
respect of any matter outside these functional areas
which is
expressly assigned to a Province by national legislation. A Province
may make laws reasonably necessary for or incidental
to the effective
exercise of a power concerning any matter listed in Schedule 4. The
legislative competence of National government
includes the power to
pass legislation with regard to any matter including a matter which
falls within a functional area listed
in Schedule 4.
[9]
The South African National Roads Agency Limited and National Roads
Act No. 7 of 1998 ("the SANRAL Act") is a national
Act
which, inter alia, prescribes measures and requirements with regard
to the Government's policy concerning National roads, and
with regard
to the declaration of National Roads by the Minister of Transport,
and the use and protection of National roads. The
section 40 (5) of
the SANRAL Act, which came into effect on 1 April 1998, expressly
provides that all National Roads which were
in existence at the
commencement of the said Act "will be regarded and treated for
all purposes as if it had been declared
a national road under section
40 (1) of the SANRAL Act".
[10]
Consequently the road which has been constructed over Erf 1982 is a
National Road, and has enjoyed this status since 1952.
The SANRAL Act
established the South African National Roads Agency Limited (the
First Respondent in this application) on 19 May
1998. The First
Respondent (as mentioned
supra)
is
a public company wholly owned by the State, and its purpose is to
take charge of the financing, management, control, planning,
development, maintenance and rehabilitation of the South African
National Roads system. In terms of section 7 (2) of the SANRAL
Act
the First Respondent succeeded to all of the assets of the National
Roads Fund, including:
a)
the immovable property of the South African Roads Board consisting of
land, and any servitudes on or over land, on which National
Roads are
situated;
b)
land and any servitudes or other real rights with regard to land
(including any right to use land temporarily), acquired by the
South
African Roads Board or the state in terms of the National Roads Act
(the "previous Act") for the purposes of or
in connection
with National Roads;
c)
any other immovable property of the South African Roads Board
acquired in terms of the National roads Act from moneys made
available
from the National Roads Fund;
d)
any state land on which a National Road is situated, or any servitude
or other real right with regard to land held by the state
for the
purposes of or in connection with a National Road situated on the
latter land.
In
addition to the First Respondent's main powers and functions it is
empowered to purchase, hire or otherwise acquire, and hold,
and sell,
exchange or let, or, with the minister's approval, donate or
otherwise dispose of or deal with, movable or immovable
property for
the purposes of the SANRAL Act.
THE
DECLARATION OF A ROAD TO BE A "NATIONAL ROAD"
[11]
For the importance of the present litigation the distinction between
a National Road which was in existence before the SANRAL
Act was
promulgated, and the establishment of a new National Road cannot be
stressed too much. The procedure for the establishment
of a new
National Road is set out in section 40 (3) of the SANRAL Act. In
essence:
(a)
The minister may from time to time by notice in the Government
Gazette in terms of section 40 (3) of the SANRAL Act declare
any
existing road, or any route of which the boundaries have been fixed
by survey, to be a National Road.
b)
Such declaration must be on the recommendation of the First
Respondent, with the agreement of the Premier of each Province in
which the road is situated, in the case of an existing road that is
to be declared a National Road.
c)
Within a prescribed period after the date of which a National Road
was declared, the First Respondent must in writing request
the
registrar of deeds who has jurisdiction to endorse the fact of that
declaration on the titled deeds of the land affected by
the
declaration.
d)
Such an endorsement may be made in any manner considered fit by that
registrar of deeds.
[12]
Section 40 (5) of the SANRAL Act preserves existing National Roads.
In other words, existing National Roads do not have to
be declared to
be such in terms of section 40 (3) of the SANRAL Act. Instead section
40 (5) provides that any road or route which
under section 4 (1) (a)
of the National Roads Act 54 of 1971 had been declared a National
Road for the purposes of that Act, and
which immediately before the
incorporation date - i.e. 19 May 1998 -existed as a National road
under the National roads Act, will
be regarded and treated for all
purposes as if it had been declared a National Road under section 40
(1) of the said Act. This
is the case insofar as the National road
built over Erf 1982 is concerned: it was
in
situ
when
the SANRAL Act was promulgated. However, the road in question was
built before the National Roads Act 54 of 1971 was promulgated,
at a
time when the National Roads Act 42 of 1935 applied. Section 29 of
the National Roads Act 54 of 1971 contained a similar saving
provision which deemed
inter
alia
National
Roads proclaimed prior to the promulgation of the 1971 Act to have
been proclaimed under that Act.
[13]
The chain is therefore unbroken: the National Road over Erf 1982 was
built in terms of the 1935 Act, and it functioned as such
thereafter.
When the National Roads Act 54 of 1971 was promulgated the status of
the road as a National Road was preserved. When
the SANRAL Act was
promulgated the status of the road in question was again preserved.
It is still a National road, and is an important
road as it is the
main route along which traffic travels from George to Knysna and
beyond.
EXPROPRIATION
FOR THE PURPOSES OF A NATIONAL ROAD
[14]
If the Minister is satisfied on reasonable grounds that the First
Respondent reasonably requires any land for a National Road
or for
works or other purposes connected with a National Road he may
expropriate same for the First Respondent, subject to certain
restrictions. The First Respondent becomes the owner of expropriated
land on the date of expropriation in terms of section 41 (4).
Section
41 (2) provides that the Minister may not exercise the said powers of
expropriation unless the First Respondent is unable
to acquire the
land etc by agreement with the owner.
[15]
The provisions of subsections 7-24 of the Expropriation Act 63 of
1975 apply to the expropriation. Section 25 (2) of the Constitution
of the Republic of South Africa, 1996 provides that expropriation of
land must be effected in terms of a law of general application,
for a
public purpose and in the public interest and against payment of
compensation. It is in terms of the above legislation that
the
Applicant seemingly sought the relief that either his whole property
or portion thereof (on which there is an encroachment)
must be
expropriated. It is so that he initially sought closure or diversion
of a National Road. Sanity prevailed indeed now that
such a drastic
remedy has been abandoned. Closure of a National Road like the N2 is
indeed very serious in that it would impede
the flow of traffic along
the N2 and that would most certainly cause a great deal of
inconvenience quite apart from the fact that
it would occasion much
expense with concomitant strain on the public purse.
[16]
I hasten to mention that closure or diversion of a National Road is a
power which is reserved to the First Respondent. In terms
of section
45 (2) of the SANRAL Act the First Respondent may close a National
Road to traffic or divert the roadway of a National
Road whenever in
its opinion it is necessary or desirable to do so; it is a criminal
offence for any other person to do so. It
is only the First
Respondent which is entitled to take such a drastic step, and then
only if in the exercise of its discretion
this is "necessary or
desirable".
[17]
Insofar as the Applicant's property, Erf 1982, Wilderness is
concerned, Mr. Tredoux submitted that it is neither necessary
nor
desirable for the National Road to be closed. Indeed, the contrary is
true, as there is no practicable alternative route, and
the question
of the entitlement of the authorities to utilize the Applicant's
property for the purposes of a National Road appears
to have been
settled long ago, during or about 1952, and the then owner was
provided with such compensation as he was entitled
to.
[18]
It would appear that the property which now comprises Erf 1982 once
formed part of a large tract of land which belonged to
the State. The
said property was of cause released into private ownership in terms
of an original Deed of Grant which is available
for anyone's
inspection in the Deeds Office, Cape Town.
DISCUSSION
AND CONSIDERATION OF SUBMISSIONS
[19]
Mr. Barnard submitted that the first Respondent made a concession in
its Answering Affidavit namely that
"The
request to expropriate will, in due course, be directed on the
appropriate authority ".
On
basis of this, according to Mr. Barnard, no attempt has been made to
dispute the Applicant's entitlement to the relief set out
in prayer
3.1 of the Notice of Motion. We now know that in prayer 3.1 the
Applicant sought an order directing the Second Respondent
to
expropriate the land encompassed by the encroachment. According to
Mr. Barnard, once the obligation/undertaking to expropriate
is
conceded, the compensation payable to the Applicant falls to be
determined by the tribunal provided for by section 14 of the
Expropriation Act.
[20]
Mr. Barnard also quotes paragraph 6 of the Answering Affidavit filed
on behalf of the Second Respondent where the following
inter alia
appears:
"I...am
advised that the only issue in contention as far as relief is sought
against the Second Respondent is whether the Applicant
is entitled to
be compensated at all for the encroachment to the land and if so the
correct approach to this compensation. "
[21]
From the aforegoing quoted portions of the Answering Affidavit Mr.
Barnard submitted that since the question whether the Applicant
"is
entitled to be compensated postulates that there has to be a prior
expropriation, it is evident that the Second Respondent
has now
accepted that the expropriation procedures have been invoked. The
Applicant in effect approaches this Court for
a
mandamus
directing
the First Respondent to expropriate the property and to pay the
compensation in accordance with the provisions of the
Expropriation
Act. There are legal requirements in place to be met before a Court
can make a mandamus order.
[22]
It is perhaps appropriate to quote Mr. Tredoux in his submission
particularly concerning Mr. Barnard's contention I have set
out
above.
"The
Applicant has attempted to jury-rig its argument by — unfairly
and facilely, with respect — latching onto
a statement made by
the Second Respondent in paragraph 6 of his Answering Affidavit. The
Applicant contends — in paragraph
19 of his Heads of Argument
that
the
Second Respondent has accepted that expropriation procedures have to
be invoked. This contention is facile, and is the equivalent
in the
Heads of Argument of the primary relief which was sought in the
application at the time when the application was instituted.
The
Applicant's contention moreover ignores what was actually said: the
words of the Second Respondent's deponent have been distorted
and
taken out of context. "
[23]
I personally would be slow in accepting that there are any
concessions made by the parties in this litigation and particularly
on the aspect dealt with
supra.
To
hold like that would be to take a simplistic approach to the whole
matter. The fact of the matter is that unlike in the usual
matters,
the Applicant's contention apparently also overlooks the fact that
the First Respondent already has the right to use the
portion of Erf
1982 on which the National road has been constructed and therefore
possibly, does not need to acquire the property
for this purpose. I
have endeavoured to capture the historical synopsis with regard to
this road
supra.
The
other defence raised against the Applicant's application is that no
notice was given in terms of the Institution of Legal Proceedings
against certain organs of State Act 40 of 2002. According to Mr.
Barnard the legislation upon which this defence is based relates
to a
"debt" as set out in section 1 of the relevant Act. A
"debt" is defined in such section as "any Debt
arising
from any cause of action...for which an organ of State is liable for
payment of damages." Whilst it may be legitimately
argued that
the Applicant does not seek a payment of damages, it can also be
legitimately argued that seeking expropriation goes
hand in glove
with payment of compensation once the expropriation procedures have
been gone through. It is, in my view, not necessary
to decide this
matter on this defence. It suffices to merely mention whether or not
such a defence can be properly raised and be
sustained remains
debatable.
JURISTIC
NATURE OF THE RIGHT TO USE LAND FOR ROAD PURPOSES
[24]
In
Apex
Mines Ltd v Administrator, Transvaal
1988
(3) SA 1
(A) Nicholas AJA held as follows at 17 H-I: G
"The
right to "enter upon and take possession of land is, it is true,
a right of expropriation, but it is a right of expropriation
of the
necessary road-rights, not of the dominium of the land. (Cf Nel v
Bomman
1968 (1) SA 498
(T) at 501 F-G; and Thorn en 'n Ander v
Moulder
1974 (4) SA 894
(A) at 905 C-D). In other words, it is an
expropriation of something in the nature of a road servitude: a via
publica created by
proclamation by lawful authority, via being "The
right of passage over land belonging to another person for people,
their
animals and their vehicles " (Shenker Bros v Bester
1952
(3) SA 655
(C) at 659). "
It
was held in
Fink
and another v Bedfordview Town Council and Others
1992
(2) SA 1
(A) that:
"To
acquire 'the use of the land' for road purposes is to acquire
'something in the nature of a road servitude' (per Nicholas
AJA in
Apex Mines Ltd v Administrator, Transvaal
1988 (3) SA 1
(A) at
171-J), or 'the necessary road-rights' (per Trollip J in Nel v Bomman
1968 (1) SA 498
(T) at 501 F-H).
It
was recognized in Tansvaal Investment Co Ltd v Springs Municipality
1922 AD 337
at 341 that the word 'acquire', when used in relation to
fixed property, need not necessarily mean the acquisition of the
dominium
of the land, but may also be used in a wider sense so as to
include the acquisition of a right to obtain the dominium. (Cf
Corondimas
and Another v Badat
1946 AD 548
at 558). The word
'acquired' is used in s 3 (2) (a) (ii) of the 1971 National roads Act
in relation to the use of the land. In
my view, that connotes the
acquisition of a right in the nature of a road servitude, and not of
the dominium of the land. "
[25]
The Court in
Fink's
case
supra
went
on to point out that:
It
was held by Rumpff CJ in
Thorn
en
(
n
Ander v Moulder
1974
(4) SA 894
(A)
that
the proclamation of a public road was essentially an act of
expropriation of certain rights. The learned Chief Justice remarked
as follows at 905 C-D:
"Die
bevoegdheid van die Administrateur om 'n openbare pad te verklaar oor
die eiendom van 'n privaat person is in wese 'n
onteieningshandeling
van sekere regte, vgl Nel v Bomman
1968 (1) SA 498
(T), en Mathiba
and Others v Moschke
1920 AD 354
te 363. "
Fink's
case
supra
has
more recently been considered as authority for the proposition that
what had been 'acquired' in terms of the relevant statutory
provisions was right in the nature of a road servitude. No preceding
act of expropriation per se was necessary. See:
Wasserman
Bate Trust and Another v Premier, Free State Provincial Government
(384/03)
[2004] ZASCA 88
;
[2004] 4 All SA 511
(SCA) (29 September 2004)
THE
LEGAL BASIS ON WHICH THE SECOND RESPONDENT MAY BE COMPELLED TO
EXPROPRIATE LAND IN TERMS OF SECTION 41 (1) (A) OF THE SANRAL
ACT:
[26]
It is perhaps apposite to quote the relevant sections of SANRAL Act.
The order sought by the Applicant is based on section
41 (1) (a) of
the SANRAL Act which provides the following:
"(1)
Subject to subsection (2) and to the obligation to pay compensation,
for which the Agency will be responsible, the Minister,
if satisfied
on reasonable grounds that the Agency reasonably requires-
(a)
any land for a national road or for the works or other purposes
connected with a national road, including any access road, the
acquisition, excavation, mining or treatment of gravel, stone, sand,
clay, water or any other material or substance, the accommodation
of
road building staff and the storage or maintenance of any plant,
vehicle, machines, equipment, tools, stores or material, may
expropriate that land for the Agency. "
[27]
The Minister's power to expropriate land in terms of section 41 (1)
(a) of the SANRAL Act is discretionary. The jurisdictional
requirement for exercising the power is that the Minister must be
satisfied on reasonable grounds that the Agency reasonably requires
the land. Section 41 (1) (a) must be read together with subsection 2
which provides the following:
"(2)
the Minister may not exercise a power in terms of subsection (1)
unless satisfied on reasonable grounds that the Agency
is unable to
acquire the land or anything mentioned in paragraph (b) of that
subsection, or the right to use the land temporarily,
by agreement
with the owner of the land or the holder of any relevant right in
respect of the land, as the case may be. "
[28]
The power to expropriate which the Minister may exercise under
section 41 (1) (a) cannot be exercised unless the Minister is
satisfied on reasonable grounds that the First Respondent is unable
to acquire the land. This means that reasonable grounds must
be
advanced showing why and in what way the Agency is unable to acquire
the land before the Minister may exercise the power to
expropriate.
It is of paramount importance to also set out section 41 (3) of the
SANRAL Act on which the Applicant placed heavy
reliance. It reads:
"41
(3) Subject to the obligation to pay compensation, and if satisfied
on reasonable grounds that any land is or will be divided
by a road
contemplated in paragraph (a) of subsection (1) in such a manner that
the land or any part of it is or will be useless
to its owner, the
Minister may expropriate that land or the relevant part thereof. "
Section
41 (4) of the SANRAL Act provides that where the Minister
expropriates any land for the First Respondent, it becomes the
owner
thereof from the date of expropriation of the land concerned. When
the Minister expropriates land under section 41 (1) (a)
of the SANRAL
Act it is an expropriation in the public interest. The power to
expropriate in section 41 (1) of the SANRAL Act is
subject to section
25 (2) of the Constitution which provides the following:
"25
(1)..............
Property
may be expropriated only in terms of law of general application-
(a)
for a public purpose or in the public interest; and
(b)
subject to compensation, the amount of which and the time and
manner of payment of which have either been agreed to by those
affected or decided or approved by a court.
[29]
The Expropriation Act contains a definition of "public purpose"
which covers more than what is allowed by "public
purposes"
and "in the public interest" in the Constitution. The word
expropriation in South Africa is taken to mean
the process by which
an owner is deprived of all or some of his rights to his property,
which rights become vested in the state
or some other public
persona
that
is authorized to acquire those rights. See
Tongaat
Group Ltd v Minister of Agriculture
1977
(2) SA 961
(A);
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998
(1) SA 300
CC 314.The expression "for public purpose" for
which property may be expropriated has been interpreted by our Court.
The late Innes JA in
Rondebosch
Municipal Council v Trustees of the Western Province Agricultural
Society
1911
AD 271
at 283-284:
"The
word public is one of wide significance, and it may have several
meanings, between some of which, in spite of their common
origin,
there are very real differences. In a broad sense it is commonly
applied to things which pertain to or affect the people
of a country
or a local community. The expression public opinion, public road,
public place, public hall, are instances of the
use of a word in that
general way. On the other hand it is frequently employed in a more
restricted sense to denote matters which
pertain not to the people
directly but to the state or the government which represents the
people. Thus the public accounts signify
the government accounts,
public revenue and public lands denote the revenue and the lands of
the state; and the public service
means the government service.
Hence, as it seems to me, public purposes may either be all purposes
which pertain to and benefit
the public in contradistinction to
private individuals, or they may be those more restricted purposes
which relate to the state
and the government of the country- that is,
governmental purposes. "
[30]
South African Courts have considered the expression where statutes
have authorized legislation to expropriate for 'public purposes'.
The
Courts have explained the term to mean
'purposes
which pertain to and benefit the public in contradistinction to
individuals'.
See:
African
Farms and Townships Ltd v Cape Town Municipality
1961
(3) SA 392
(C) 396-7;
Fourie
v Minister van Lande en
(
n
Ander
1970
(4) SA 165
(O) 171-4;
Ex
parte Minister of Justice: in re Bolon
1941
AD 345
359-60. The expression "in the public interest" is
different to "for the public purposes". The word public can
have both a narrow and broad meaning. In the broad sense it means
things that pertain to or affect the people of a country or
community. In the narrow sense it means matters that pertain to the
state or the government. In
Administrator,
Transvaal, and Another v J van Streepen (Kempton Park (Pty): Ltd
[1990] ZASCA 78
;
1990
(4) SA 644
(A) 661B-G.
Smalberger
JA considered a Transvaal ordinance that authorized expropriation
'for purposes in connection with the construction...of
any road and
where property was expropriated as part of a scheme for road
alterations and was expropriated to be given to a parastatal
company,
Sentrachem, producing strategically important materials, for its
railway line, which it would otherwise lose and without
which it
could not operate. He said:
"The
fundamental problem, however, still remains - is the Administrator
empowered under section 7 (1) to acquire or expropriate
the property
of one person for what is essentially the benefit of another?
Expropriation, generally speaking, must take place for
public
purposes or in the public interest. The acquisition of land by
expropriation for the benefit of a third party cannot conceivably
be
for public purposes. Non constat that it cannot be in the public
interest. It would depend upon the facts and circumstances
of each
particular case. One can conceive of circumstances in which the loss
and inconvenience suffered by A through the acquisition
of portion of
his land to relocate the services of B, who would otherwise have to
be paid massive compensation, could be justified
on the basis of it
being in the public interest. The present instance affords an example
of such a situation. In planning the construction
of the new road 51,
the Administrator would needs have had to take an overall view of all
the practical and economic implications
of the project as a whole in
deciding what would best serve the public interest. He would be
entitled and obliged to have regard
to the fact that Sentrachem
conducted an undertaking which was in the national interest, and what
the effect on the national interest
would be if Sentrachem lost its
rail connection with its sources of raw material, thereby disrupting
its production of strategically
important products. In principle,
therefore, the Administrator's power under section 7 (1) can extend
to the acquisition of land
for what may include the benefit of a
third party. "
[31]
In
Clinical
Centre (Pty) Ltd v Holgates Motor Co (Pty) Ltd
1948
(4) SA 480
(W), Roper J in construing section 2 (j) of the Rents
Amendments Act 53 of 1947 held:
"In
my view a scheme is "in public interest" if it is to the
general interest of the community that it should be
carried out, even
if it directly benefits only a section or class or portion of the
community. "
Section
41 (1) (a) provides the Minister with the power to expropriate 'if
satisfied on reasonable grounds that the Agency reasonably
requires
the land'. The expropriation is for the benefit of the Agency, which
must provide the minister with a reasonable basis
to exercise the
power to expropriate. The question is therefore whether the
reasonable grounds requirement must relate to public
interest. In
other words does the Agency have to show that the expropriation of
land is in the public interest or is required for
public purposes?
Does public interest or public purpose qualify as reasonable grounds
to trigger the Minister's discretion to expropriate
the land?
[32]
The answer lies in the SANRAL Act itself. The Agency is a national
roads agency for the Republic for the purpose of taking
charge of the
financing, management, control, planning, development, maintenance
and rehabilitation of the South African national
roads system as I
mentioned
supra.
The
functions of the Agency are set out in section
25.
It is responsible for and has the power to perform all strategic
planning with regard to the South African national roads system,
as
well as planning, design, construction, operation, management,
control, maintenance and rehabilitation of national roads for
the
Republic. Additional functions of the Agency are set out in terms of
section 26 of the SANRAL Act. It is clear from the provisions
of
section 41 (1) (a) of the SANRAL Act read together with sections 25
and 26 that only the expropriation of land under the SANRAL
Act must
reasonably be needed by the Agency. This means that only the Agency
has the standing to seek an order of expropriation
from the Minister.
The Minister cannot expropriate land where such an expropriation is
not reasonably needed by the Agency. That
also means that the
Minister cannot expropriate the land for the benefit of a private
entity, like the Applicant. Even if the Applicant
had the standing to
seek an order compelling the Minister to expropriate the land, the
Applicant has failed to meet the jurisdictional
requirements for the
exercise of discretion to expropriate in that:
a)
The reasons given by the Applicant for the order compelling the
Minister to exercise her/his discretionary powers of expropriation
are not reasonably related to the purpose for which an expropriation
under the Act is done. The Applicant wants an order of expropriation
in order to obtain compensation to the value of the property.
b)
The Applicant and not the Agency as contemplated and required by the
Act requires the expropriation.
c)
The expropriation is not required for a national road or for works or
other purposes connected with a national road. A national
road
already exists on the land. It existed probably before the Applicant
was born. The Applicant became the owner of Erf 1982
only in 2004.
Previous owners of this property never sought to obtain the relief
the Applicant prays for.
[33]
In addition to the above, the Minister may only exercise the power of
expropriation if he is satisfied on reasonable grounds
that the
Agency not only requires the land, but, is also unable to acquire it
for purposes related to its core legislative mandate.
Since it is the
Applicant that wants an order of expropriation, it bears the burden
of showing reasonable grounds that the Agency
is unable to acquire
the land. On the facts relied on by the Applicant, no reasonable
grounds have been shown to exist which would
justify the Minister to
exercise the powers of expropriation in favour of the Agency. The
fact that the Applicant purchased the
land on inaccurate and
incorrect assumptions as regards its commercial viability cannot be a
reasonable basis on which the Minister
should lose his discretion and
be compelled to exercise his power of expropriation under section 41
(1) (a) of the SANRAL Act.
[34]
Moreover if one has due regard to the comprehensive Answering
Affidavit, it is patently clear that a claim for expropriation
by the
Applicant is incompetent for the following reasons which do not
appear to be in dispute:
(a)
In terms of the Original Deed of Grant, appearing as Annexure "AA.2"
in the Answering Affidavit filed on behalf of
the First Respondent,
Erf 1982 was granted in Freehold with the State reserving its rights
to construct a national road over the
property without compensation;
(b)
The National Road was established on Erf 1982 in 1952. When the
Applicant bought the land, the National road was already in
existence.
[35]
Compensation was aggressively pursued by the previous owner of the
property, Wilderness (1921) Ltd and paid by the State for
the land on
which the national road was established. The State did not take
formal transfer of the land at the time. Expropriation
at the time
was not legally possible. For this reliance is made on Annexure
"AA.4" to the Answering Affidavit of the
First Respondent.
Paragraph 5 of "AA.4" records that legal opinion had been
obtained at the time to the effect that section
4 of Act 42 of 1935
could not be applied to expropriate isolated areas of land such as
the ones at issue. Annexure "AA.5"
is a memorandum
addressed to the Secretary of Transport dealing with the issue of
expropriation. It concluded that expropriation
was not possible to do
at the time given the state of the legislation. As mentioned above
under "Background" the Applicant's
property was once part
of a large tract of land, which belonged to the State. The property
was then released into private ownership
in terms of an Original Deed
of Grant, which is available for inspection in the Deeds Office, Cape
Town. The Applicant does not
deny that an original Deed of Grant is
available for inspection in the Deeds Office.
[36]
At the risk of repeating myself, the Original Deed of Grant reserved
the right to the State to build, without compensation,
a National
Road over what is now the Applicant's property. During 1940s and
1950s, when the National Road was being planned, the
then owner of
the property (Wilderness 1921 (Pty) Ltd) received
ex
gratia
compensation
for damage to improvements. In paragraph 85 of the First Respondent's
Answering Affidavit, details of ownership are
provided as follows:
"Annexure
AA.3 hereto is a letter of 3 June 1944 which is addressed
to
the Resident Engineer, George by Mr. PF Retief the Acting
Provincial
Roads Engineer. I quote from this document:
("The
property of Messrs. Wilderness (1921) Limited consists of a
sub-divided
portion of the Crown Land deemed to be part of Lot H
828
morgen, held by G.F. 12.7
The
property is subject to the following conditions:
Full
power and authority henceforth to possess the same in perpetuity.
Permission
to dispose of or alienate the same, with the approbation of
Government in such manner as he may think proper.
Subject
to all such Duties and Regulations as are either already or shall in
future be established in regard to such lands.
Under
such conditions as are stipulated in the Deed of Sale.
(i)
The
land will be sold in Freehold;
(ii)
All
roads and thoroughfares running over the said land shall
remain
free and uninterrupted;
(iii)
The said land shall be liable without compensation to its proprietor
to have any road made over it for public good by order
of
Government.)
In
view of the above the proprietors are precluded from claiming
compensation for the damages arising out of the construction of
the
National Road over the property. In accordance with the usual
practice the Administrator may however be prepared to consider
a
reasonable ex gratia payment for damage to improvements but a claim
in respect of unimproved land will definitely not be entertained.
"
It
follows that the then owner of the property, Wilderness (1921) Ltd
was aware of the fact that it was not entitled to compensation
for
damages caused by the construction of the National road over the
property. It was only entitled to an
ex
gratia
payment
in respect of damage to improvements (which was paid.)
[37]
Annexure "AA.4" to the Answering Affidavit of the First
Respondent is a letter from the Resident Engineer, Cape Town
dated 28
August 1944. Paragraph 1 indicates that it was necessary to excavate
the rock on the property in order to build the National
road. The
paragraph reads:
"It
is understood that Mr. Grant, Director of the Wilderness Estates will
not permit any construction on the Estates before
the Compensation
had been satisfactorily disposed of. It is of course certainly to be
very complicated and knowing Mr. Grant as
I do, negotiations will be
very protracted before they be finally accepted by him, and this, if
Mr. Grant's contention is correct,
will definitely result in delays
to the department. In the light, however, of the conditions of grant
as quoted in paragraph (4)
of your memo N.55/6576 dated 3.6.44, Mr.
Grant's contention is not correct and construction would appear to be
legally permitted
before Compensation is settled, although the Estate
is issued in freehold. "
[38]
Thereafter a notice was served on Mr. Owen Grant of Wilderness (1921)
Ltd, which appears in the Answering Affidavit as Annexure
"AA.5".
In it the following paragraph bears emphasis
"Your
memo N. 23/1/496/10716 has had a vey sobering effect." A
series
of communication is established between Wilderness (1921) Ltd and the
Provincial Roads Engineer about the construction of
the National Road
and Compensation. On 20 February 1945, and on behalf of Wilderness
(1921) Ltd, Raubenheimer and Hartnady Attorneys
addressed Annexure
"AA.8" to the Provincial Roads Engineer advising that they
would be approaching the Administrator
under section 198 of Ordinance
13 of 1917 for reasonable compensation in respect of land and
materials used. After much correspondence
between the parties on the
issue of compensation was exchanged, on 10 August 1945 in a letter
attached to the Answering Affidavit
as Annexure "AA. 18" it
is recorded:
"We
find it extremely difficult to formulate a claim equitable and
commensurate with the losses sustained. At the outset, we
desire to
stress the inequity that private owners should be under the same
conditions of title be compensated to the full value
of loss
sustained whereas, due to the exigencies of current legislation, the
treatment allowable to the Company will be on a basis
far less
generous and much to its advantage... In consequence it appears to us
wise to pray the Board to grant a sum as ex gratia
compensation
rather than endeavour to compensate in detail which, at its best
would be extremely difficult for both sides to frame
and assess. "
[39]
On that, Mr. Grant for Wilderness (1921) Ltd made a proposal for an
ex
gratia
payment
of 10 000.00 pounds. In September 1946 an agreement was signed with
Wilderness (1921) Ltd relating to compensation. It appears
as
Annexure "AA.28" in the First Respondent's Answering
Affidavit. It states in part that
"on
the basis that compensation would be paid 'in the sum of4433.15
pounds...' in full and entire satisfaction and settlement
of all and
every claim as and for compensation in respect of the damage arising
out of the proposed construction of the National
Road through the
township of Wilderness subject to the terms of the Provincial Roads
Engineers minute N23/1/496/11440D15.8.46 to
the Secretary, Divisional
Council of George. "
[40]
Annexure "AA.29" to the First Respondent's Answering
Affidavit is a copy of the resolution, which was passed by the
Expropriation Committee in terms of which it was resolved to
compensate Wilderness (1921) Ltd the amount of 4433.15S.OD. This was,
by agreement, compensation on an ex gratia basis. The National road
was constructed during or about 1950 as seen in Annexure "AA.42"
in which the Administrator specifically informs Wilderness (1921) Ltd
about the construction by virtue of section 198 of Ordinance
No. 13
of 1917 read together with the Conditions of Title including that:
"4.
(i) The land will be sold in freehold;
(ii)
All roads and thoroughfares running over the said land shall
remain
free and uninterrupted; (Hi) The said land shall be liable without
compensation to its Proprietor to have any road made
over it for the
public good by order of Government. "
[41]
On 26 February 1945, the Provincial Secretary addressed a memorandum
attached to the Answering Affidavit of the First Respondent
as "AA.9"
to the Acting Provincial Roads Engineer, George Division: The
National Road was constructed over Erf 1982,
Wilderness during or
about 1952 and at all material times remained
in
situ.
As
part of a development conducted by Wilderness (1921) Ltd certain
plots were sold off. The relevant title deeds recorded that
the
roads, which had been constructed were not included in the land. The
Applicant's Title Deed has a similar condition. During
1986
improvements to the National Road across Erf 1982 were effected and
prior to 1986 no claim for compensation would have been
competent.
INCOMPETENT
RELIEF SOUGHT
[42]
The Applicant's relief against the Second Respondent is incompetent
in terms of section 41 (1) (a) of the SANRAL Act. The Applicant
wants
this order in exchange for a huge payment, which the Applicant
conveniently terms "compensation". On the facts
relied on
by the Applicant, the order sought would essentially enable him to
claim an amount of R4.5 million against the Respondent
as
'compensation', which he considers to be the value of the land
without the alleged encroachments. It is also unclear on the
Applicant's
papers whether the order sought relates to the entire property, Erf
1982 or just the portion that constitutes the national
road running
through his property. The Applicant, has, however, not specified any
details on what form or shape or size the expropriation
must take.
The relief is simply too vague in its terms and therefore
incompetent. The Applicant has also made the assumption in
seeking
the relief in terms of section 41 (1) (a) of the SANRAL Act against
the Second Respondent that the First Respondent needs
the land for
purposes related to the National Road but is unable to acquire it.
The assumptions are incorrect both in fact and
law.
[43]
Apart from the undeserved commercial benefits, the Applicant has not
set out any reasonable grounds on which the Second Respondent
should
be compelled to exercise powers of expropriation in favour of the
First Respondent. The only basis, which can be gleaned
from the
Applicant's papers, which the Applicant relies on for an order
compelling the Second Respondent to expropriate Erf 1982,
is the
commercial one. An order compelling the Second Respondent to
expropriate the land would usurp the discretionary powers of
the
Minister and in the most intrusive manner encroach into the terrain
of the executive sphere of government. The Courts have
emphasized a
great many times the importance of the principle of separation of
powers. This is a manner for which the executive
must be left alone
to implement its policy involving the expropriation of land.
Hoexter
2000 SALJ
484
has urged Courts to give due deference in matters which involves the
implementation of policy. She states that such an approach
would
entail "a judicial willingness to appreciate the legitimate and
constitutionally-ordained province of administrative
agencies; to
admit the expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretations of fact
and law due respect;
and to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical
and financial constraints
under which they operate."
[44]
Mr. Masuku has made sound submissions which demonstrated how
ill-conceived is the relief sought by the Applicant in the instant
matter. In my view, regard being had to all the aforegoing, the
Applicant has clearly failed and/or omitted to appreciate the
requirements of section 41 (1) (a) of the SANRAL Act in that the
Minister has a discretion to exercise his powers to expropriate.
The
exercise of the discretion is on reasonable grounds shown by the
First Respondent (the Agency) that it reasonably requires
the land
and cannot itself acquire the land in question. An order compelling
the Second Respondent to expropriate the property
would clearly usurp
(or is intended to have such effect) the Second Respondent of its
discretionary powers under section 41 of
the SANRAL Act. In my
judgment, the Applicant has failed to establish a basis on which an
order compelling the Second Respondent
is reasonably required by the
First Respondent. The Applicant has also failed to establish a basis
on which an order compelling
the Second Respondent to expropriate the
property in question is justified under the provisions of section 41
(2) of the SANRAL
Act in that there are reasonable grounds that the
First Respondent
"is
unable to acquire the land or anything mentioned in paragraph (b) of
that section 4F (1), or to use the land temporarily,
by agreement
with the owner of the land or holder of any relevant right in respect
of the land. "
[45]
Mr. Barnard relied as well on the Property clause contained in the
Constitution. This was an apparent reference to section
25 (1) of the
Constitution reading:
"25
(1) No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation
of
property."
The
Property clause in the Constitution is intended to protect an
individual's or and entity's right of ownership of that particular
property. The property at issue in the instant matter, that is Erf
1982, has not been interfered with since the Constitution came
into
force. The protection contained in the Property clause serves to
protect and guarantee property owners that not even State
organs will
interfere with the status of their properties without following due
process. I am not so certain that Mr. Barnard can
safely invoke this
section in this instance. When the Constitution and its Bill of
Rights (which includes the Property clause)
were enacted, the N2
National Road was long in existence on Erf 1982. Nobody has sought to
change or alter the status of Erf 1982.
Nobody therefore may be said
to have contravened the Property clause.
[46]
On the question of costs, there is no basis why this Court should
depart from the general rule namely that the successful
litigant is
entitled to its costs. In the circumstances I make the following
order: (a) The application is dismissed with costs.
DLODLO,
J