Van Rensburg NO and Another v MEC for Housing, Local Government and Traditional Affairs, Eastern Cape Province and Others (687/2008) [2009] ZAECPEHC 27 (2 June 2009)

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[2009] ZAECPEHC 27
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Van Rensburg NO and Another v MEC for Housing, Local Government and Traditional Affairs, Eastern Cape Province and Others (687/2008) [2009] ZAECPEHC 27 (2 June 2009)

FORM
A
FILING
SHEET FOR EASTERN CAPE HIGH COURT, POR ELIZABETH JUDGMENT
PARTIES
:
WILMA
EMMERENTIA VAN RENSBURG
NO
FIRST APPLICANT
PHILIPPUS
STEPHANUS VAN RENSBURG
NO
SECOND APPLICANT
and
MEC
FOR HOUSING, LOCAL GOVERNMENT
AND
TRADITIONAL AFFAIRS, EASTERN
CAPE
PROVINCE AND SEVEN OTHER RESPONDENTS
Registrar:
CASE NO: 687/2008
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, PORT ELIZABTH
DATE
HEARD:
1
December 2008
DATE
DELIVERED: 2 June 2009
JUDGE(S):
DAMBUZA J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s)/Applicant(s)/ Appellant(s):
Adv
J W Eksteen SC
Adv T M G Euigen
for
the Defendant(s)/1
st
Respondent(s):
Adv
S M Mbenenge SC
Adv N Gqamana
for
2
nd
to 6
th
Respondent: Adv H J Van der Linde SC
Adv
J D Huisamen
Instructing
attorneys:
Plaintiff(s)/
Applicant(s)/
Appellant(s):
De Villiers & Partners
Defendant(s)/1
st
Respondent(s):
State Attorney
2
nd
to 6
th
Respondent’s Attorneys:
Greyvensteins
Nortier Inc.
7
th
Respondent’s Attorneys: Rushmere & Noach Inc
CASE
INFORMATION -
Nature
of proceedings
:
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT ELIZABETH)
CASE NO: 687/2008
Date delivered: 2 June 2009
In the matter between:
WILMA EMMERENTIA VAN RENSBURG
NO
FIRST APPLICANT
PHILIPPUS STEPHANUS VAN RENSBURG
NO
SECOND APPLICANT
and
MEC FOR HOUSING, LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS, EASTERN
CAPE PROVINCE FIRST
RESPONDENT
PERAPANJAKAM NAIDOO
NO
SECOND
RESPONDENT
PURSOTHAM NAIDOO
NO
THIRD RESPONDENT
SHASHI NAIDOO
NO
FOURTH
RESPONDENT
SESHAMMAN MOODLEY
NO
FIFTH RESPONDENT
ANTHOSH NAIDOO
NO
SIXTH RESPONDENT
NELSON MANDELA METROPOLITAN
MUNICIPALITY SEVENTH
RESPONDENT
REGISTRAR OF DEEDS
EIGHTH RESPONDENT
JUDGMENT
______________________________________________________________
DAMBUZA J:
In this
application the two applicants seek
an
order reviewing and setting aside a decision of the first
respondent, purporting to remove certain restrictive conditions
applicable to Erf 105 (No 3 Seventh Avenue Summerstrand), Port
Elizabeth. This property is owned by the Shan Trust of which the

second to the sixth respondents are trustees.
The applicants
f
urther
seek that the decision sought to be reviewed should be substituted
with a decision that the application by the Shan Trust
dated 27 June
2007 for amendment or removal of the conditions referred to above is
refused and that the eighth respondent give
effect to the order
reinstating the conditions to Title Deed No.T26430/1996 in respect
of Erf 105 Summerstrand as they were prior
to the decision referred
to above being taken by the first respondent.
There is also an
application in which the applicants seek an order that certain
portions in the answering affidavits of the first
respondent and the
Shan Trust be struck out.
An application by
the Shan Trust for condonation of the late filing of an affidavit by
Cindy Jonker, an attorney and a director
of the seventh respondent’s
firm of attorneys be condoned, is also before me;
The
applicants
are the trustees
of
the Hobie Property Trust which owns Erf 104 (No 4 Sixth Avenue)
Summerstrand. Erven 104 and 105 Summerstrand are adjoining

properties.
The first respondent is the
Provincial Member of the Executive Council (MEC) responsible for the
Department of Housing, Local
Government and Traditional Affairs in
the Eastern Cape.
The second to
sixth respondents who are the trustees for the time being of the
Shan Trust shall, for the sake of convenience,
be referred to in
this judgment as the Shan Trust. The second respondent
Perapanjakam Naidoo has deposed to the main answering
affidavit on
behalf of the Shan Trust.
The seventh
respondent is the Nelson Mandela Bay Municipality
(the Municipality). It does not oppose these proceedings and has
filed a Notice to Abide by the decision of the Court.
The eighth respondent is the
Registrar of Deeds in Cape Town.
The
Hobie
Trust acquired Erf 104 Summerstrand Extension 1 (erf 104) in 1989.
The Shan Trust acquired Erf 105 in 1996. When the Shan
Trust
acquired Erf 105 there was one main building and a double garage on
the property. Soon after acquiring Erf 105, the Shan
Trust started
effecting improvements and erecting additional buildings on the
property. At the time of the launch of this application
there were
three separate double storey buildings on the property. It is common
cause that a business of a guest house is conducted
on erf 105. The
buildings on the property, or some of them, have been the subject of
other court cases between the two Trusts.
Of relevance in these
proceedings is Case No. 1668/06 wherein the Hobie Trust sought and
obtained an order for,
inter
alia
,
demolition of some offending buildings on erf 105.
In Case No.:
1668/06 the applicants challenged the lawfulness of some of the
buildings and building extensions erected on erf
105 by the Shan
Trust and the lawfulness of use of these buildings as a guesthouse.
The municipality had granted the Shan Trust
special consent to
operate the guesthouse. The consent was initially granted in
respect of four rooms and later in respect
of seven more rooms (a
total of 11 rooms). The consent was granted subject to certain
conditions which included the Shan Trust
not occupying more than one
bedroom on the property, a site development plan being submitted
and, prior to the exercise of the
rights flowing from the consent,
submissions to the municipality of building plans showing the use of
the buildings and the layout
of the parking area. At some stage
prior to the hearing of the matter (Case No.: 1668/06) the
Municipality withdrew the consent
granted to the Shan Trust to
operate on erf 105 a guesthouse with 11 rooms. The Municipality
then demanded that the Shan Trust,
amongst others, remove any
unlawful dwelling units on the property, demolish a staircase
leading to the roof area of the “western
building” and cease all
unlawful usage of the property, including the operation of the
guesthouse.
On the day the
hearing
of the application (case no 1668/06) the Shan Trust, which, up to
that stage, had not opposed the application, sought
to to have the
matter postponed. The application for a postponement was refused
and the matter proceeded without representation
for the Shan Trust.
In the judgment Froneman J set aside an approval that had been
granted to the Shan Trust by the Municipality
for erection of a
building that had already been erected (the “northern building”),
ordered demolition (within 60 days of
the court order), of that
entire building, and ordered demolition and removal (within 60 days
of the court order) of the top
storey and the staircase of a
building situated on the north western corner of Erf 105.
Leave to appeal
against the judgment in
case
no 1668/06 having been refused by Froneman J, the Supreme Court of
Appeal and the Constitutional Court (the last two Courts
on
petition), the Shan Trust, through its attorneys, in a letter dated
27 June 2007, applied to the Premier of the Eastern Cape
for removal
or amendment of the restrictive conditions in the title deed
relating to erf 105, which the offending buildings were
erected in
contravention of. It appears from the papers that two letters of
application were forwarded to the Premier in this
regard, the first
one on 21 June 2007 and the second one on 27 June 2007. The two
letters are identical save for an omission
in the application dated
27 June 2007 of an alternative prayer contained in the application
dated 21 June 2007. The prayer
contained in the application dated
27 June 2007 is substantially the amendment which was ultimately
effected to the restrictive
conditions in question.
P
ending
a decision on the application made to the Premier, the Shan Trust
successfully brought an application before this court
(Case No.:
29/08) for suspension of execution of the demolition order. It was
common cause, when this matter was heard, that
the offending
buildings had not been demolished.
The
approval
of the application made to the Premier came from the first
respondent. That decision prompted these proceedings. After
the
decision was communicated to the relevant parties, the Shan Trust
obtained a Court order (Case No.: 2416/07) declaring the
Court
order granted in Case No.: 1668/06 to be of no force and effect and
suspending the demolition order pending consideration
of the site
development plan and building plans which had been submitted to the
Municipality by the Shan Trust on 7 June 2006.
An appeal by the
Hobie Trust against the judgment in Case No.: 2416/07 is pending to
the Full Court of this Division.
The restrictive
condition
s
of title to which the decision by the first respondent relates
appear in Deed of Transfer T1678/99 as follows:
“
C.
SUBJECT
FURTHER to the following conditions contained in Deed of Transfer
T999/1944 IMPOSED BY THE MUNICIPALITY OF THE City of Port
Elizabeth
in terms of the provisions of Township Ordinance No 13 of 1927 in
favour of itself and any erf-holder in the Summerstrand
extension
township and subject to alteration and amendment by the
administrator:
that this erf shall be
used for residential purposes only.
t
hat
only one house designed for the use as a dwelling for a single
family, together with such outbuildings as are ordinarily required

to be used therewith, be erected on this erf.
t
hat
no more than half the area of this erf shall be built on.
t
hat
no building or structure or any portion thereof except boundary
walls and fences shall be erected nearer to the street line
which
forms a boundary of this erf than the building indicated on the
diagram of this erf.”
T
he
first respondent granted consent for amendment of the restrictive
conditions on 11 October 2007. The approval is to the effect
that
these conditions are to read as follows:
“
That
this erf shall be used for residential purposes, including for a
guesthouse, only subject to the provisions of the municipality’s

guest house policy and applicable zoning scheme”.
In response to a
request by the Hobie Trust for reasons for the decision to grant the
amendment of the conditions, the first respondent furnished
the
following reasons:
“
(i) The conditions are
obsolete to him that they are no longer required for land-use
management purposes;
The relevant town
planning scheme is more than adequate to control development of the
erf, Such controls include coverage, density,
use and building
lines;
A number of title deed
conditions have been removed/amended in the past as far as
Summerstrand is concerned;
There are no
exceptional or compelling reason(s) for maintaining the current
conditions; and
Duplication of controls
are therefore unnecessary.”
This
decision is challenged on the following grounds:
[19.1] that it was
taken without notice to the interested and affected persons;
[19.2] that it was
not made in terms of and does not accord with the first respondent’s
powers as contained in the
Removal
of Restrictions Act No 84 of 1967
;
1
[1
9.3] that
the application by the
Shan
Trust
to Premier of the Eastern Cape does not comply with the procedural
requirements stipulated in
Section
3 of the Removal of Restrictions Act
;
[1
9.4] that
as an administrative action in terms of the
Promotion
of Administrative Justice Act no 3 of 2000 (PAJA)
the decision falls to be reviewed and set aside for:
[19.4.1] procedural
unfairness as it was taken without affording the applicant a hearing;
[1
9.4.2] having
been taken in bad faith;
[1
9.4.3] having
been taken capriciously;
[19.5] that it is
so unreasonable that no reasonable person would have taken it;
[1
9.6] that
it is unconstitutional (for procedural unfairness) and unlawful (for
bad faith);
[19.7] that it has
caused the applicants financial prejudice and that it is prejudicial
to the interests of other erf-holders in
Summerstrand
extension 1
in whose favour the restrictive conditions were imposed; and
[19.8] that it is
not rational or justifiable in relation to the reasons given
therefore or the information before the first respondent.
For reasons that
will become apparent hereunder I deal
only
with some of these grounds; but first I shall consider the
ancillary/related applications before me.
THE
APPLICATION TO STRIKE OUT
:
The applicants
contend that certain portions in the answering affidavits of the
first respondent and the Shan Trust fall to be
struck out as
inadmissible hearsay evidence and irrelevant, scandalous and/or
vexatious averments.
The portions
complained of in the answering affidavit of the first respondent are
paragraphs 7 and 18. In these paragraphs the
first respondent states
that she has ‘since become aware’ that the applicants are
allegedly conducting guesthouse activities
on erven 85 and 104
Summerstrand. Regarding
the
answering affidavit of the Shan Trust the second defendant states
that if the applicants are correct in their contentions
regarding
the contraventions by the Shan Trust of the restrictive Conditions
of title, then the first applicant herself is in
contravention
thereof as she conducts a business in a guesthouse on erf 85
Summerstrand. The allegations complained of are made
by the
respondents in the context of their plea that the applicants should
be censured for approaching the court with “unclean”
hands.
The applicants
contend that the source of the allegations made by the first
respondent’s is not identified and no basis is made
to lay a basis
for its reception in terms of section 3 of the General Law Amendment
Act.
The second
respondent makes the same allegations in respect of erf 85
Summerstrand and adds that the applicants conduct a guesthouse

business in contravention of the same restrictive conditions under
consideration in this matter. He states that the same restrictive

conditions to which the first reapondent’s decision pertains are
applicable to erf 85 as erf 85 is one of the erven referred
to in
the Administrator’s Proclamation dated 6 June 1942. In this
regard the Shan Trust relies on an allegation in the applicant’s

letter of objection to the application (to the Premier) which states
that:
“
In
the present instance, it is not correct, as alleged in the Shan
application, that the title deed conditions which it seeks removed

from its title deed are binding on all erven in Summerstrand
Extension 1. These conditions were only made applicable to
specified
erven in Sum
merstrand
Extension 1. These are erven numbers 32 – 54; 58 – 68; 71 –
99; and 102 – 108 inclusive. This appears from
the original
proclamation issued by the then Administrator of the Cape Province
dated 6 June 1942, a copy of which is annexed hereto
marked “HF”.”
It is trite that
two requirements must be satisfied before an application to strike
out a matter from an affidavit can succeed;
first the matter
sought to be struck out must be scandalous, vexatious or irrelevant,
second the Court must be satisfied that
if such matter is not struck
out the parties seeking such relief would suffer prejudice.
Securefin
Ltd v KNA Insurance and Investment Brokers (Pty) Ltd
[2001]
3 All SA 15
(T). The meaning of scandalous, vexatious and
irrelevant matters has been stated as, allegations which may or may
not be relevant,
but are worded so as to be abusive and defamatory,
to convey an intention to harass or annoy and/or allegations which
do not
apply to the matter in hand and do not contribute in one way
or the other to a decision of such matter.
Vaatz
v Law Society of Namibia
1991
(3) SA 563
(Nm) at 566C-E;
Steyn
v Schabort en Andere NNO
1979
(1) SA 694
(O) at 698A.
Indeed the first
respondent merely states in her answering affidavit that sh
e
has since become aware of a guesthouse business allegedly conducted
by the applicant on erven 85 and 104. She does not state
how and
when she became aware of the business. I am unable to find evidence
on the record on which her conclusions regarding
the alleged
business are founded. During argument, Mr Van Der Linde who appeared
on behalf of the Shan Trust, referred me to
a letter dated 1 April
2008 from the General Manager: Special Planning and Development
addressed to the applicants. In that letter
the General Manager:
Special Planning and Development Administration states that a site
inspection carried out on 4 February
2008 and a subsequent search
revealed that there is no record of an application for the removal
of restrictive conditions pertaining
to “the abovementioned erf”
(erf 104) and No. 11 – 6
th
Avenue (erf 85). It is then stated in the letter that use of both
the erven as guesthouses is in violation of the title deed

conditions which state that the erven may only be used for
residential purposes, housing one family. It is further stated in

the letter that various buildings were erected over the 9.45m
building line stipulated in the title deed.
The applicant’s
attorneys in a letter responding to these allegations deny that an
inspection was conducted on the applicant’s
properties as alleged.
They also state that their clients have always obtained both their
neighbours’ consent and the consent
of the authorities.
T
he
allegations complained of were never established as a fact and the
applicants have always registered their denial of the alleged

contravention of conditions of title. No counter application based
on the alleged contravention on which the matter can be properly

determined, has been brought. Consequently the allegations do not
contribute in one way or the other to the matter and. I am
further
of the view that if the portions complained of are not struck out
form the record the applicants will suffer prejudice
as they will
have to defend themselves against the
clean
hands
arguments which the respondents strongly rely on. The portions
complained of in the answering affidavits of the first respondent

and the Shan Trust fall to be struck out from the record.
THE CLEAN
HANDS ARGUMENT
:
As I have stated
the first respondent and the Shan Trust contend that because the
first applicant herself is conducting a guesthouse
business on erven
85 and 104 Summerstrand contrary to conditions of title applicable
to that property which are similar to the
conditions under
consideration in this matter, she cannot expect “clean justice”
from the court. Having found that the
relevant allegations in the
respondents’ answering affidavits fall to be struck out, this
issue falls away.
APPLICATION
FOR
CONDONATION OF LATE FILING OF AN AFFIDAVIT BY CINDY JONKER
:
In this affidavit
Ms Jonker states that
attorneys
who represent the municipality in these proceedings received
instructions from the municipality to launch a wide a wide

application for removal of restrictive conditions of title from all
erven in Summerstrand Extension 1, including the conditions
which
are the subject of this application. A related allegation in the
papers appears in the second respondent’s answering
affidavit;
being that the municipality has instructed attorneys to prepare a
“blanket” application for the removal of all
similar
restrictions in Summerstrand. In this context Ms Jonker’s
affidavit confirms the allegation made by the second respondent
and
does not seek to introduce new matter. And I am satisfied that the
applicants stand to suffer no prejudice as a result of
the admission
of this affidavit.
I now turn to deal with the merits of
the application.
WHETHER
NOTICE
OF THE APPLICATION SHOULD HAVE BEEN GIVEN TO THE APPLICANTS (AND
OTHER INTERESTED OR AFFECTED PERSONS)
:
Th
e
applicants’ case is that the condition in question is in the
nature of a
praedial
servitude
registered in their favour and entitles them to enforce compliance
therewith without proof of prejudice. It also entiles them,
so they
contend, to notice or an opportunity of being heard before a
decision relating thereto is taken. As no notice of the

application made to the Premier was given to the, the decision falls
to be set aside. They contend further that in the circumstances
the
decision constitutes arbitrary deprivation of property contrary to
the provisions of section 25 (1) of the
Constitution
of Republic of South Africa Act, 108 of 1996
(the
Constitution).
It was submitted
on behalf of the applicants that the issue of the nature of the
rights emanating from the restrictive conditions
was determined in
the judgment of Froneman J in case no 1668/06.
Consequently,
so it was submitted, the issue was
res
judicata
and it was not open to the respondents to reopen it; alternatively
the respondents were
estopped
from raising the issue as a defence in this application.
It is common cause
or not in dispute that a copy of the application was sent to the
applicants’ attorneys by telefax without the consent of the

applicants. Nevertheless, written submissions in support of the
applicants’ objection to the application were forwarded to
the
Premier by the applicants’ attorneys subsequent to receipt of the
faxed application. It is common cause further that no
service was
effected on other erf-holders in Summerstrand Extension 1 whose
title deeds bear similar restrictive conditions.
Notice of the
application was also not given to the Municipality. Neither was the
application published in newspapers circulating
within Port
Elizabeth or a Government
Gazette
.
T
he
respondents take issue with the characterization of the conditions
in question as
praedial
servitudes.
They contend that they are entitled to raise this issue as a
defence in these proceedings and deny that the issue is
res
judicata. Mr Van Der Linde
who
appeared on behalf of the Shan Trust submitted that this application
is founded on a cause of action entirely different from
that in Case
No.: 1668/06. The relief sought by the applicants in this
application, so it was submitted, being
a
review of the decision of the first respondent
,
cannot be characterised as the same relief sought in case no
1668/06, which was an application for a relief that an approval

granted by the Municipality to the Shan Trust to erect a building
which had already been erected be set aside and that the offending

buildings be demolished.
On
res
judicata
the South African courts have followed the law as set out by
Grotius
2
and Voet
3
,
that the
exceptio
rei iudicatae
lies
when a dispute which has been brought to an end (
lis
terminata)
is
again set in motion between the same persons, about the same thing
(
de
eadem re)
and
on the same “cause for claiming” (
ex
eadem petendi causa).
4
In
Betram
v Wood
1893 10 SC 177
at 180-181 the Court held that in determining whether
a defendant was entitled to raise an earlier judgment as
res
judicata
it
was necessary to establish whether that judgment was given in an
action with respect to the
same
subject matter
,
based on the
same
ground
and
between
the same parties
.
Voet adds that if any of the three requisites, namely the same
persons, the same thing and the same cause for claiming, is
absent,
the
exceptio
does not apply.
In
Boshoff
v Union Government
1932
TPD 345
, Greenberg J quoted with approval the judgment in
Mitford’s
Executor v Ebden’s Executors and Others
1917,
AD 682
in
which the Court held that for a plea of
res
judicata
to succeed it is not necessary that the cause of action, in the
narrow
sense
in which the phrase is sometimes used, should be the same in the
later case as in the earlier case. If the earlier case necessarily

involved a judicial determination of the same some question of law
or issue of fact, in the sense that a decision could not have
been
legitimately or rationally pronounced without at the same time
determining that question or issue, then such determination,
though
not declared on the face of the recorded decision, is deemed to
constitute an integral part of it, and will be
res
judicata
in any subsequent action between the same parties in respect of the
same subject matter.
In
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995
(1) SA 653
AD it was held that the true significance of Boshoff’s
case is that the strict common law requirements for the defence of
res
judicata
(in
particular
eadem
res
and
eadem
petendi causa
)
should not be taken literally and in all cases applied as flexible
rules, but that there was, in the light of the underlying

requirement of
eadem
quaestio
and the ratio of the defence of
res
judicata,
room
for the adaptation and extension thereof.
I
n
Case No.: 1668/06 the first respondent was the Nelson Mandela Bay
Municipality (the seventh respondent in this application),
the
second to the sixth respondents were the same second to the sixth
respondents herein, acting in the same capacity as they
do in this
matter and the seventh respondent was the first respondent in these
proceedings.
Mr Mbenenge
who
appeared on behalf of the first respondent submitted that because
Case No.: 1668/06 was essentially a matter between “
private
neighbours about buildings in an urban property”,
(these
being the words used by Froneman J in the opening sentence of the
judgment), the first respondent was not “hit” by
res
judicata
as
it was not a party in Case No.: 1668/06 but was merely cited out of
caution. I do not agree with this submission. In paragraph
6 of the
original Notice of Motion (Case No.: 1668/06) the applicants sought,
as an alternative, an order setting aside the decision
made by the
first respondent (then the seventh respondent) on
19 September
2005, dismissing an appeal by the Hobie Trust against the decision
of the Executive Mayor of the Municipality approving
building plans
submitted by the Shan Trust.
I am satisfied therefore that the
parties before court in this matter, with the exception of the
Registrar of Deeds, are the same
parties that were before court in
case no 1668/06.
Regarding the
cause for acting, at
paragraph
[6] of the judgment in Case No.: 1668/06 Froneman J held that:
“
The
Hobie Tust attacked the unlawfulness of the erection and extension of
these buildings, as well as the lawfulness of their subsequent
use
for leased accommodation. Initially the grounds for the attacks were
based on non-compliance with the National Building Regulations
and
Standards Act 103 of 1997, contraventions of Zoning Scheme and Land
Use Planning Regulations, and the irregular granting by
the
municipality of special consent to use the buildings as part of a
guest house. The ‘special consent use’ was subsequently
withdrawn
by the municipality,
and
in 2006 a more fundamental ground for the alleged unlawfulness came
to the fore, namely the existence of registered restrictive

conditions in the title deed of erf 105. In the face of these the
opposition to the application crumbled,
as
mentioned earlier”.
(M
y
emphasis)
5
The learned judge
then
held
further that:
“
It
is common cause that this type of a restrictive title takes
precedence over the municipality’s zoning scheme.
Generally
this follows from their characterization in our case law as praedial
servitudes in favour of other erf holders (
Ex
Parte Rovian Trust (Pty) Ltd
1983
(3) SA 209
(D) at 212 E-213F,
Malan
and another v Ardconnel Investments (Pty) Ltd
1988
(2) SA (A) at 40 B-1) and in this case also, particularly from the
wording of clause 1.6.5 of the Council Zoning Scheme Regulations.
Consequently any possible permission by the municipality to build or
use buildings contrary to the conditions cannot be lawful”.
I
t
seems to me that in this matter, although the cause of action or
relief sought may, on the face thereof, be phrased in terms

different from the cause of action in Case No.: 1668/06, this is a
difference in the narrow sense as stated in
Boshoff’s
case
(
supra).
A mere reading of the judgment In case No.: 1668/06 reveals that the
court made a finding on of the nature of the rights emanating
from
the restrictive conditions. The Learned Judge considered the issue
pertinently and conclusively. He considered the applicable
law
including relevant case law and made reasoned findings of fact and
law.
Further
,
as it was submitted by
Mr
Eksteen
on behalf of the applicants, the judgment of Froneman J being a
judgment in
rem
,
settled the issue in question whether one or more of the parties in
this matter was not a party in Case No.: 1668/06.
6
Even if I were to accept that the first respondent was not a party
before Froneman J as submitted by
Mr
Mbenenge
,
that would not take the issue any further.
The submissions by
Mr
Van der Linde
that
because the conditions have been removed, their nature cannot be a
subject matter of these proceedings cannot, in my view,
be correct
when it is the validity of the decision to remove the conditions
that is contested in these proceedings.
It bears mention
that the cases on which the respondents rely in their submissions
that the applicants and other erf owners in
Summerstrand derive no
rights from the restrictive conditions of title and further
submissions considered later on in this judgment,
were decided
before the Constitution was enacted. The following has been said
of that era:
“
The
doctrine of parliamentary sovereignty, also inherited from English
law, was a fundamental constraint on the powers of the courts
in the
pre-democratic era
―
and, what is worse, on their enthusiasm for protecting rights.
While the courts had the power to review the legality of
administrative
conduct, Parliament was free to decide what counted as
lawful and what did not. It could simply authorise administrative
officials
to interfere with people’s rights, either in so many
words or by conferring such wide discretionary powers on officials
that
it was difficult for the court to fault the exercise of the
discretion
―
assuming that it had the will to do so. Often that will was absent,
and the courts simply ‘capitulated to the force of a legislature

and executive bent on the abuse of power for racial end.
Furthermore, Parliament often ousted the courts’ jurisdiction, thus

attempting to prevent them from exercising their powers of review in
relation to certain statutory provisions.”
7
I consider these remarks relevant in
this matter.
In the end I am
satisfied that
the
respondents may not in these proceedings raise as a defence the
issue of the nature of the rights flowing from the restrictive

conditions. It further follows, in my view, from the judgment in
Case No.: 1668/06 that the applicants as holders of real rights
in
relation to erf 105, were entitled to a notice of the application
for removal of the restrictive conditions prior to the first

respondent’s decision on the application.
I d
o
not, however, on the facts of this matter, consider the failure by
the Shan Trust to give the applicants notice of the application,
on
its own, to be fatal to the case of the Shan Trust (or the decision
of the first respondent). The fact is that the application
was
brought to the attention of the applicants and submissions were made
by or on behalf of the applicants in support of their
objection to
the application. Until that stage there is no evidence of real or
substantial prejudice suffered by the applicants
as a result of the
failure by the Shan Trust to give the required notice to the
applicants. The matter on this issue, however,
does not end there.
The
applicants contend that the decision was made without having regard
to the submissions made in support of their objection to
the
application. The basis for the contention is that the Senior
Manager: Spatial Planning drew recommendations to the first

respondent regarding the application on or before 29 June 2007
whereas the submissions made by the applicants and forwarded to
the
Premier by registered mail were only collected from the Post Office
on 19 July 2007. In this regard a memorandum dated 29
June 2007
prepared by the Senior Manager: Spatial Planning addressed to the
Senior Manager: Municipal Development Administration
which is part
of the papers reveals that the following comments and recommendation
was made by the Senior Manager: Spatial Planning:
“
The
application for removal of the restrictive conditions is supported as
the title conditions have become obsolete and are no longer
required
for land use management purposes. Numerous applications have been
approved and the relevant Town Planning Scheme provides
adequate
control of all these provisions. The title conditions are absolutely
unnecessary. Furthermore these conditions inhibit
development
contrary to the Development Facilitation Act…….
It is
recommended that condition C in its entirety be removed from the Deed
of Transfer T26430/96.”
Another Memorandum from the Senior
Manager: Municipal Developmental Administration/Land Use Management
to the Deputy Director
General Housing, Local Government and
Traditional Affairs which is also part of the record reveals that
the following comments
and recommendations were made regarding the
application:
“
the
application for amendment of the restrictive conditions is supported
as the title conditions have become obsolete and are no
longer
required for land use management purposes. Numerous applications have
been approved and the relevant Town Planning Scheme
provides adequate
control of all these provisions. The title conditions are thus
unnecessary…..
It is thus recommended
that the consent from the MEC be granted for the amendment………to
read as follows:
‘
C That this erf shall
be used for residential purposes, including for a guesthouse, only,
subject to the provisions of the municipality’s
guesthouse policy
and the applicable zoning scheme.’ “
I am satisfied the
recommendation made by the Senior Manager: Spatial Planning was made
without having regard to the submissions
made on behalf of the
applicant. The Senior Manager: Municipal Developmental
Administration also makes no mention of such submissions.
I
can
only conclude in the circumstances that the recommendations made to
the first respondent and on which she must have relied
in making the
decision, were indeed made without taking into account the
submissions made on behalf of the applicants. The decision
was, in
my view, taken without affording the applicants a hearing.
WHETHER THE
DECISION
CONSTITUTES
AN ADMINISTRATIVE ACTION AS DEFINED IN THE PROMOTION OF
ADMINISTRATIVE JUSTICE ACT 3 OF 2000 (PAJA)
:
The
applicants
contend that the decision by the first respondent to remove or
interfere with the restrictive conditions and the real
rights
conferred thereby constitutes an “administrative action” as
defined in the
Promotion
of Administrative Act 3 of 2000 (PAJA).
The
decision therefore, so the argument goes, falls to be reviewed and
set aside for failure to comply with the requirements of
Administrative
Actions
.
8
The respondents’
denial that the decision constitutes an administrative action is
founded on their view that the applicants
derive no rights from the
conditions in question. On the finding I have made regarding the
issue of
res
judicata
the respondents’ contention that the decision does not constitute
administrative action must fail.
In this matter the rights that the
applicants had flowing from the restrictive conditions were affected
by the decision of the
first respondent.
DID THE FIRST
RESPONDENT HAVE THE POWER/AUTHORITY TO MAKE THE DECISION
?
Flowing from the
decision of the first respondent being an administrative action, t
he
applicants contend that the decision is
ultra
vires
and
that that, on its own, renders the decision unlawful. The basis for
this submission is that the power to make the decision
is conferred
upon the “
Administrator”
in terms of Township Ordinance No 13 of 1927. In this regard
Section 3(2)(b)(ii) of Schedule 6 of the Constitution Act 108 of

1996 (the Constitution) provides that any reference in the “
old
order legislation
”
to the “
Administrator
”
of a province is to be construed as referring to “
the
Premier
”
of such a province. The decision in this matter, so it was
submitted, and that much is clear from the record, was not made
by
the Premier who is the repository of whatever powers the
Administrator may have had in terms of the title deed. It was
submitted
further on behalf of the applicants that the delegation to
the first respondent relied upon by the respondents can only be the

one that applies in respect of the Removal of the Restrictions Act
84 of 1967.
The first
respondent plead
s,
however, that the decision was not made in terms of the Removal of
Restrictions Act or powers delegated under that Act. It
was
submitted on behalf of the first respondent that the Removal of
Restrictions Act only applies in respect of restrictive conditions

not framed in terms which render them expressly subject to future
cancellation or variation. In this case, so it was argued,
the
powers of the first respondent to consent to the amendment of the
conditions, was derived from the title deed itself. It
was
submitted that the first respondent, “as a repository of powers
duly
delegated to her by the Premier,
is the successor in title to the Administrator referred to in the
conditions”. (my emphasis). But I was not referred to any

instrument in terms of which such powers were delegated by the
Premier to the first respondent. Instead it was submitted that
it is
not only powers associated with the Removal of Restrictions Act that
were delegated by the Premier to the first respondent,
but all
powers relating to removal of conditions (including the powers
conferred to the Administrator in terms of the Title Deed).
I do not agree
that
when
the Premier delegated certain powers to the first respondent in
Proclamation 6, he also delegated to him/her other unspecified

powers related to the powers specifically stated in the
Proclamation. That, in my view, contradicts the fundamental
principles
of Administrative Law that public authorities possess
only so much power as is lawfully authorized and that every
administrative
act must be justified by reference to some lawful
authority for that act. Delegation of power in as vague a manner
as suggested
by the first respondent would, in my view result in
chaotic public administration.
As it was
submitted on behalf of the applicants, since the title deed only
empowers the Administrator (read “the Premier”)
to effect
alterations and amendments to the conditions of title, the first
respondent could only have undertaken the act or decision
complained
of in terms of powers delegated to her by the Premier. And the
only instrument in which power to alter, suspend
or remove
restrictions and obligations in respect of land was delegated to the
first respondent is Proclamation 6, in which certain
of the
Premier’s powers under the Removal of Restrictions Act were
delegated to the first respondent. The application by the
Shan
Trust, however, did not comply with the provisions of sections 2 and
3 of the Removal of Restrictions Act.
The Shan Trust traces the power of
the first respondent as follows:
[60.1] The title
conditions were purportedly introduced in terms of the Township
Ordinance 13 of 1927 which was repealed by the
Townships Ordinance 33
of 1934 ( both of these being Ordinances of the Cape Province);
[60.2] But as the
original title deed relating to erf 105 is dated 1944 the title
conditions in question must have been imposed
by the Proclamation of
the then Administrator of the Cape Province dated 6 June 1942;
[60.3] The
Townships Ordinance, 33 of 1934 was repealed by the Land Use Planning
Ordinance, 15 of 1985 the administration of which
has been delegated
by the Premier to the first respondent (in Proclamation 6
supra
);
[60.4] Consequently
the administration of all legislation relevant to the title
conditions in question has been delegated to by
the Premier to the
first respondent in Proclamation 6.
Firstly,
the
title deed states that the restrictive conditions were imposed by
the Municipality in terms of Township Ordinance 13 of 1927.
If
there is an error in the title deed a proper procedure to amend the
title deed must be followed. And as it was submitted
on behalf of
the applicants, this submission does not assist the respondents in
any way as the applicants would still have to
be notified if an
amendment is to be effected to the title deed regarding the law in
terms of which the restrictive conditions
were imposed.
It has been held
that notice to all dominant tenement owners is an essential
requirement for proper exercise of the discretion
of an MEC in terms
of the Removal of Restrictions Act. See:
Beck
and Others v Premier Western Cape and Others 1998 (3) SA
487
(C
) at 511 E-G.
Further
,
in
Ronnie’s
Motors (PTY) LTD v Van Der Walt
1962
(4) 660 it was held that section 18(3) of Ordinance 33 of 1934 did
not empower the Administrator to alter, suspend or remove
a
restrictive condition against the title deed of an erf on the
application of the owner of that erf and for
his
benefit
.
In that case the Administrator had under section 35
bis
of
Ordinance 33 of 1934 granted an application for amendment of certain
conditions of title which had prohibited use of the three
erven in
question as a service station and a garage. By granting the
application the Administrator enabled the erven concerned
to be used
as a “garage/filling station”. Hoexter JA held that if the
Provincial Council had intended to confer such powers
to the
Administrator, the provisions of section 18(3) would be repugnant to
those of sections 1(1), (3) and (4) and 2(1) and
(2) of Act 48 of
1946.
9
At 668 the learned Judge of Appeal held:
“
If
an application is made in terms of the Act, the applicant must make
the deposit and give the undertaking referred to in subsection
2(2),
the Administrator must refer the application to the townships board
concerned for investigation and report, and the alteration
may be
made only if the Administrator is satisfied as required by para. (a)
of subsec. (3) of sec. 1. And if all these requirements
of the Act
have been complied with, it is still necessary to secure the approval
of the State President (in 1946 it was the Governor
General) to issue
a Proclamation in the
Government
Gazette
.
What is more the section empowers the Administrator to alter, amend
or delete a restrictive condition even if such alteration,
amendment
or deletion would be in conflict with a town planning scheme in
operation in respect of the township in question…..
This
view is supported by the fact that the Act refers to an application
made by an individual owner whereas the Ordinance does
not do so and
the fact that sec. 18
bis
of
the Ordinance contains the words “with the consent of the owner”,
words which would be quite inappropriate to an application
by an
individual owner.
In my
opinion, therefore, sec.18(3)
bis
of
the Ordinance does not cover the case of an application made by an
individual owner for his own benefit, and the decision of
the
Administrator, professedly acting in terms of that section, was
therefore invalid.”
In this matter the
application for removal of the restrictive conditions was made by or
on behalf of the Shan Trust for the benefit
of the Trust.
10
Even further,
the
powers conferred upon the Administrator in terms of Township
Ordinance No 13 of 1927 (which was repealed by Ordinance 33 of
1934)
only empowered the Administrator to amend or alter the conditions of
title prior to approval of the Township plan. The
writers Donges &
van Winsen in Municipal Law; 2
nd
ed at 616 state that:
“
Section
18 (3) of the Townships Ordinance provides that notwithstanding
anything to the contrary in that section the
Administrator
,
after the granting of the application may, with the consent of the
owner, alter or amend any of the conditions under which the

application has been granted or add further conditions, provided that
the
Administrator
shall
consult the board before making any such alteration, amendment or
addition.
It
seems clear that this provision,
unlike
the equivalent provision in Ordinance no 13 of 1927, purports to
confer on the administrator the power to alter or amend
conditions or
to add further conditions at any time even after a township or
sub-divided estate has been notified as an approved
township or
sub-divided estate.
”
11
Mr Van der
Linde
submitted
to the contrary,
12
relying on the decision in
Garden
Cities v Registrar of Deeds
13
wherein Steyn J held that :
“
Section
18(3)
(
which
is worded in the same terms as section 15(b) of Ordinance No 13 of
1927)
is in general terms and there is nothing in the Ordinance which
expressly or by implication limits its application to an extent
that
the alteration or amendment of the conditions must be made or sought
prior to the approval of the township plan and diagram
by the
Surveyor General under sec.19 of the Ordinance…”
I do not
consider
myself bound by this decision. In my view a mere reading of the
two relevant provisions reveals the difference referred
to by Donges
and Van Winsen. I can only conclude therefore that the intention
of the wording in Section 15(b) of Ordinance
13 of 1927 was that the
powers of the Administrator to alter conditions of title in terms of
the title deed, be limited to prior
to approval of the township
plan.
Section 33 read
with item 23(2)(b) of Schedule 6 of the Constitution requires that
administrative action be lawful, procedurally
fair and justifiable
in relation to the reasons given for it.
14
In this case I am satisfied that the decision of the first
respondent was not lawful as the first respondent had no power
to
make the decision in question. I am also satisfied that the
decision was not procedurally fair as already reasoned above.
The
decision therefore falls to be set aside.
There is no evidence on the papers
that the restrictive conditions have been amended in the title deed
in line with the first
respondent’s decision. The applicants,
however, seek an order that the Registrar of Deeds reinstate the
conditions. I shall
grant the order as sought as it is a natural
consequence of this judgment.
The following order shall therefore
issue:
The decision of
the first respondent dated 11 October 2007, in which he purported
to grant consent for the amendment of Conditions
C (a), (b), (c)
and (d) from Title Deed No. T26430/1996 in respect of Erf 105
Summerstrand, Port Elizabeth, being the property
of the second to
sixth respondents inclusive, in their capacities as trustees of
the Shan Trust is set aside.
Such decision is substituted by a
decision that the Shan Trust’s application dated 27 June 2007,
purportedly made in terms
of the title deed application to erf 105
Summerstrand (annexure “VR 11” to the founding affidavit), is
refused.
The eighth respondent is ordered to
give effect to the order made above by reinstating the said
conditions C (a), (b), (c)
and (d) to Title Deed No. T26430/1996
in respect of Erf 105 Summerstrand, Port Elizabeth, as they stood
prior to the decision
referred to above being taken by the first
respondent.
The first to sixth respondents
inclusive are ordered to pay the costs of this application,
jointly and severally, the one
paying the other to be absolved,
including those costs consequent upon the employment of two
counsel.
__________________________
N DAMBUZA
JUDGE OF THE HIGH COURT
Applicants’ Counsel:
Adv
J W Eksteen SC
Adv T M G Euigen
Applicants’ Attorneys: De Villiers
& Partners
62 Erasmus Drive
Summerstrand
PORT ELIZABETH
Ref.: MR E. DE VILLIERS
1
st
Respondent’s Counsel: Adv S M Mbenenge SC
Adv N Gqamana
1
st
Respondent’s Attorneys: State Attorney
29 Western Road
PORT ELIZABETH
Ref.: 22/2008/B
2
nd
to 6
th
Respondents’ Counsel: Adv H J Van der Linde SC
Adv J D Huisamen
2
nd
– 6
th
Respondents’ Attorneys: Greyvensteins Nortier Inc.
St. Georges House
104 Park Drive
PORT ELIZABETH
Ref.: Mr G Parker/dvs/R02638
7
th
Respondent’s
Counsel:
7
th
Respondent’s Attorneys: Rushmere & Noach Inc
5 Ascott Office Park
Cunningham Road
PORT ELIZABETH
Ref.: Ms C
Jonker/mt/W31405
Heard on: 1 December 2008
Delivered on: 2 June 2009
1
Section 2
of the Removal of Restrictions Act No 84 of 1967 sets out the
powers conferred upon the first respondent; section
3 of that Act
sets out the procedural requirements for an amendment to conditions
of title.
2
Grotius
3
Voet
Commentaries 42. 1. 47 and 44.2.3
4
LAWSA at
266-267.
5
The
condition referred to is the same condition which is under
consideration in this judgment.
6
Le Roux
v Le Roux en ’n Andere
1967 (1) 446
7
Administrative Law in South
Africa, Cora Hoexter 13 – 14.
8
See Section 6 of PAJA.
9
The
relevant sections of Act 48 of 1946 provide that :
“1.
(1) Upon the written application of any owner of land in a township…
10
Compare with the provisions of sections 2 of the Removal of
Restrictions Act which provides that the Administrator may alter,

suspend or remove conditions if he/she is satisfied that it is
desirable to do so in the interests of the establishment or

development of a township or if the land is required for
ecclesiastical or public purposes or for use or erection of a
building
by the state or local authority or for purposes incidental
thereto. Section 3 of the Removal of Restrictions Act prescribes
the procedure to be followed for making such application.
11
Section
15(b) of Ordinance No 13 of 1927 provided that:
“
Notwithstanding
anything to the contrary in this section the Administrator, after
the granting of the application and before the
owner has complied
with all the provis
ions
of the next succeeding section, may, with the consent of the owner,
alter or amend any of the conditions under which the
application has
been granted or add further conditions, provided that the
Administrator shall consult the Board before making
any such
alteration, amendment or addition.”
12
i.e. that the power of the Administrator was not limited in the
manner suggested by the applicant.
13
1950 CPD
239
at 244 G
14
Campsbay Ratepayers
Association v Minister of Planning, Western Cape
2001
(4) SA 294
(C).