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[2018] ZAECPEHC 51
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Staufen Investments (Pty) Ltd v Minister of Public Works and Others (756/2017) [2018] ZAECPEHC 51; 2019 (2) SA 295 (ECP); [2019] 2 All SA 258 (ECP) (25 September 2018)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
–
PORT ELIZABETH
Case
No.: 756/2017
In
the matter between:
STAUFEN
INVESTMENTS (PTY)
LTD
Applicant
and
THE
MINISTER OF PUBLIC
WORKS
First
Respondent
ESKOM
HOLDINGS SOC
LTD
Second
Respondent
REGISTRAR
OF DEEDS, CAPE
TOWN
Third
Respondent
JUDGMENT
REVELAS
J
:
1.
This is an application brought in terms of
Rule 53 of the Uniform Rules of Court, to review and set aside a
decision taken by the
first respondent to expropriate certain rights
over a portion of the applicant’s farm, Nooitgedacht (or, the
farm), in favour
of the second respondent (Eskom), and with regard to
an existing electrical substation on the relevant portion. The
expropriation
decision constitutes administrative action. Accordingly
the application is also brought in terms of section 6 of the
Promotion
of Administrative Justice Act, 3 of 2000 (PAJA). The
applicant relies on several grounds of review under PAJA.
2.
During November 2015 the applicant brought
an application (the application for eviction) to terminate Eskom’s
occupation of
the electric substation area which is approximately one
hectare of Nooitgedacht presently occupied by Eskom, and has been so
occupied
for the last two decades by Eskom. The applicant also sought
orders directing Eskom to remove all plant equipment and material
from the substation area and to rehabilitate such area to accord with
surrounding vegetation and topography, as well as an order
directing
Eskom to remove all five outgoing high voltage power lines on
Nooitgedacht and to rehabilitate the land traversed by
these lines.
3.
The application for eviction was premised
on the applicant’s assertion, borne out to be correct, that
Eskom’s occupation
of the substation area was illegal (the
applicant termed it ”unlawful”) in that no servitude in
respect of its use
of a portion of Nooitgedacht was ever registered
in the offices of the third respondent (the Registrar of Deeds, Cape
Town). Eskom
opposed the application and filed a counter-application
seeking relief to the effect that an existing, but unregistered deed
of
servitude be registered.
4.
On 15 April 2016, and by agreement between
the parties, orders were made on the terms following terms:
1.
Eskom shall terminate its occupation of the
substation area of approximately 1 hectare on the farmland to vacate
the farm;
2.
all plant equipment and material shall be
removed from the substation area and the area shall be rehabilitated
to accord with the
surrounding vegetation and topography;
3.
Eskom shall remove the five outgoing high
voltage power lines on the farm and rehabilitate the surrounding
areas traversed by such
power lines to accord with the surrounding
vegetation and topography. However, the implementation of those
orders (eviction orders)
was suspended pending the finalisation of
Eskom’s application for expropriation of certain rights over
the substation area.
Consequently, in the event that the application
for expropriation failed, the eviction orders would become operative
immediately.
Should the application for expropriation succeed, the
eviction orders would fall away. Eskom was further ordered to bring
its application
for expropriation within a period of six months from
the orders granted, but was given the right to approach this court
for an
extension of that period on good cause shown.
5.
Eskom
sought two extensions of the aforesaid period (one on application to
this court and opposed by the applicant). It was also
necessary for
Eskom to launch an application to compel the first respondent to take
a decision. After these and other delays the
expropriation decision
was taken on 30 September 2016. The application for expropriation
submitted to the first respondent by Eskom
was made in terms of
section 26(1) of the Electricity Regulation Act
[1]
and the
Expropriation Act
[2]
.
The first respondent’s decision as communicated to Eskom read:
“
Further
to my letter dated 9 December 2015 and the Minister of Energy’s
recommendations contained in her letter dated 4 February
2010, I wish
to confirm that Eskom Holding SOC Limited, that I have approved that
the following servitudes (the extent of which
appear more fully in SG
Diagram No 1232/2014 dated 21 January 2015) across land being
part of the farm Nooitgedacht 664,
Uitenhage Registration Division,
Eastern Cape Province, held under Title Deed T27811/2014 owned by
Staufen Investments (Pty) Ltd:
(1)
An electrical
substation in extent 10 000 square meters;
(2)
The right to
convey electricity over the property by means of 132kv and 22 kv
overhead power lines; and
(3)
A right of way
(access road) 6 meters wide.
An Independent
Professional Valuer, Mr John Henry Boshoff of Jeffreys Bay, has
finalized his assessment of the compensation payable
to the property
owner. This assessment will shortly serve before the Land
Affairs Board (established in terms of the Land
Affairs Act, 1987 to
advise the State on the value of immovable property and the rights
therein).
Once just and
equitable compensation for the property rights has been determined, a
notice of expropriation will be served on the
property owner and all
affected parties.”
6.
It is necessary to set out in some detail
the history and background which preceded the present application.
7.
The farm Nooitgedacht is 249,374 hectares
in extent and situated about 10km from the town of Addo. It was
purchased by the
applicant from a company called Amber Bay
Investments 34 (Pty) Ltd (Amber Bay). The deponent to the applicant’s
founding
affidavit, Mr Wallace Barnes, a farmer, was at all relevant
times a director of Amber Bay and the applicant. Amber Bay had
purchased
Nooitgedacht from a Mr Lingenfelder in 2007. Mr
Lingenfelder had purchased the farm in 2005 from a Mr. Grundling who,
in the same
year, purchased the farm from a Mr Mr Hitge. Transfer of
the farm from Amber Bay to the applicant took place on 11 October
2014.
8.
The current proportions (249,3714 hectares)
of Nooitgedacht was originally part of a farm described as portion 4
of farm 119,
Nelson Mandela Bay Municipality, Division of
Uitenhage, Eastern Cape Province (the original farm). This farm was
owned by a Mr
Hartman. The original farm measured 149, 8943 hectares
and was held under title T30430/81. The original farm was sold
to
a Mr Hitge in 1991 and subsequently subdivided into three
portions.
9.
The first was portion 5 of the original
farm. The second and third portions were consolidated with portions
of surrounding farms
to form the farms Nooitgedacht and Hitgeheim
respectively, both owned by Mr Hitge, who bought the original farm
from Mr Hartman
in 1991. Portion 5 is owned by the State
pursuant an expropriation application and is used by the Department
of Water and
Sanitation and the Nelson Mandela Bay Municipality with
regard to the Nooitgedacht Water Treatment Plant. Portion 5 abuts
Nooitgedacht
and 50% thereof is undeveloped. The significance
of this property, in so far as the applicant is concerned, will
become apparent
later herein.
10.
During 1997, Eskom began the construction
of the electrical substation on the farm Nooitgedacht, when it was
still owned by Mr Hitge.
According to the applicant, it can be
inferred that Eskom and Mr Hitge actually intended the substation to
be constructed on Hitgeheim,
and not Nooitgedacht. By the time
the applicant bought the farm in 2014, the substation had been in
existence on Nooitgedactht
for seventeen years. The substation site
occupies approximately 10 000 square meters (one hectare) of the farm
and has a 132 kilovolt
line providing electricity to it, and five 22
kilovolt lines which exit the substation and providing electricity,
via its high
voltage overhead power lines, to several farms,
townships, and the National Addo Elephant Park.
11.
After Amber Bay purchased Nooitgedacht, in
2007, it became evident that Eskom’s legal entitlement to
maintain a substation
on Nooitgedacht was tenuous. Eskom first
noticed that there was an omission on the part of the land surveyor
concerned to
ensure that servitude rights were captured on diagram of
the subdivided properties. Consequently the substation and power
lines
were not reflected on the diagram attached to the relevant
title deed and the error was thereafter repeated in each subsequent
transfer.
12.
When the application for Eskom’s
eviction was in progress, the applicants attorneys instructed Mr
Gerhard Joshua Britz, a
conveyancer and property law specialist, to
establish from the records of the third respondent (the Registrar of
Deeds) in Cape
Town, whether a notarial deed of servitude was ever
registered, and if so whether it was endorsed against the title
deed
of the servient property (Nooitgedacht).
13.
Mr Britz found that:
“
A
servitude K884/985 was endorsed on page 9 of the title deed No
T77933/1991 of Portion 4 of the Farm 119 on the 4
th
of September 1998 in the following terms:
“
Remainder
Kragtens serwituut
K884/98S gedateer 3/2/97 is die binnegemelde eiendom onderhewig aan
‘n reg van weg 6 (ses) meter wyd tgv
ESKOM.
Soos meer volledig sal
blyk uit gesegde Not Akte
Akteskantoor
KAAPSTAD
1998-09-04”
14.
Mr Britz further found that the aforesaid
original endorsement only records the servitude of a right of way
(contained in paragraph
1 of the notarial deed of servitude K884/98S)
and not the right to use an area of 1 240 spare meters in extent or
the right to
lead electricity on or over Portion 4 of the Farm 119
(contained in paragraphs 2 and 3 of the notarial deed of servitude
K884/98S).
The last mentioned two servitudes were not endorsed
against the title deed of the servient land.
15.
The omission to carry forward the reference
to the last mentioned two servitudes was apparently due to a mistake
or oversight.
The endorsement in respect of the right of way
servitude referred to above, was carried forward as a condition in
all the subsequent
title deeds, but the servitudes created in
paragraphs 2 and 3 of the notarial deed of servitude K884/98S were
not endorsed against
or carried forward in any subsequent deed.
16.
Mr Britz also established that a servitude
K723/1999S referred to in paragraph II.D of the title deed of
Nooitgedacht is a servitude
in favour of the Republic of South Africa
– thus the State, and therefore irrelevant insofar as Eskom’s
rights are
concerned.
17.
In terms of K884/985, a right of way, 6
meters wide was granted to Eskom over the original farm. In
terms of the same deed,
Eskom had the right to lead electricity over
the farm. The rights referred to, were purportedly derived from an
option granted
by Mr Hitge and purportedly exercised by Eskom on 27
September 1991. Eskom was unable to provide any proof that the
option
was indeed exercised. In terms of the written option, the
option to acquire servitude would have lapsed in May 1992.
18.
In its application for its eviction, Eskom
relied on the option to register a servitude concluded with Mr Hitge
and an alleged way
leave agreement. Neither of these two agreements
were registered and Mr Hitge never deposed to an affidavit to confirm
that there
were such agreements, as the applicant points out, the
only right which Eskom ever enjoyed over the farm Nooitgedacht, was
an undefined
“reg van weg ses meter wyd” and at best gave
rise to personal rights against a prior owner of the farm. Any
such
agreement allowed the respondent to use an area of 1240 square
meters to construct a substation Portion 4 of farm 119, i.e. the
original portion 4 of the farm. Even before the conclusion of
the way leave agreement, construction of the substation commenced,
and power lines were erected across the farm. Since then the
area occupied and used by Eskom has grown to 10 000 square meters,
and, given the growing demand for electricity more extensive
occupation is expected.
19.
When the present review application was
argued all the parties accepted that Eskom had no legal right
entitling it to have access
to and maintain and operate the
substation on the portion of Nooitgedacht (0,4% of the farm)
currently under its control.
20.
The applicant gave a full account of what
it perceived as Eskom’s obtuse conduct and intractable approach
to the dispute therein.
The applicant firstly demonstrated that the
providence and authenticity of the way leave agreement and option
were dubious. With
the assistance of a handwriting expert, Ms Palmer,
who prepared a report in this regard, the applicant referred to
certain features
of these documents which tend to support the
applicant’s contention that someone had manipulated this
document in an attempt
to demonstrate that Eskom indeed had real
rights in the portion of the farm under consideration.
21.
Counsel for Eskom properly conceded that
such conduct was ‘indefensible’. None of the
respondents, sought to rely
on these documents in opposing the review
application. Regrettable as such conduct may be, on its own, it
does not render
the expropriation reviewable.
22.
The applicant contends that the continued
occupation of the substation site has impacted negatively on its
farming activities in
the following ways:
23.
The presence of the substation site causes
a continued high volume of vehicular and pedestrian traffic of Eskom
staff, the staff
of a security firm engaged by Eskom (Monoceros
Trading 155 CC) and their visitors. The applicant maintains that
locks on gates
had been cut on occasion and the security personnel
and their visitors walk around on Nooitgedacht as they please. In its
replying
affidavit, filed in opposition to Eskom’s
expropriation application, the applicant also informed the first
respondent that
the homestead on Nooitgedacht had been broken into.
Mr Barnes believes that the uncontrolled human and vehicular traffic
on the
farm poses a serious security risk not to mention a
substantial nuisance factor.
24.
In the review application the applicant
alleges that the substation site is right in the middle of an area
which comprises 14% of
the farm’s high quality arable land,
suitable for planting crops. The remainder of the farm consists of
bush veld suitable
to game only. The applicant wishes to introduce
larger game in addition to small game (Duiker etc) on the farm, such
as Zebras,
Impala, Blesbuck and Red Hartebees. It intends to plant
crops such as Pecan Nut trees as well as introducing the Zebra to
graze
in between the Pecan nut trees in a pastoral setting
on
the piece of arable land presently occupied by Eskom.
25.
The applicant explained that its farm
vehicles have to move around the substation site to gain access to
the unoccupied portions
of the farm, causing unnecessary
inconvenience. In addition, the land below and around the power lines
have become useless for
planting crops, in particular the planting of
Pecan Nut trees because, according to the applicant, the land in the
areas mentioned
has become sterilized by the overhead electric lines.
26.
Building rubble is stored on the site and
fences surrounding it, are in a dilapidated state, all of which
causes an aesthetically
unpleasing sight. The applicant contends that
this has reduced the farm’s commercial value particularly since
the substation
site is very visible from all the relevant borders of
the farm. There is a road over the farm to gain access from the road
to the
substation site which is used by Eskom personnel, their
visitors, and the employees of a security company engaged by Eskom.
At
times a fleet of motor vehicles are parked on the site, according
to Mr Barnes. Since its construction, the site occupied by the
substation has steadily increased in size and usage by Eskom. That
has was demonstrated by photographs and Google Earth depictions
taken
over a number of years. More brick built structures have been erected
by Eskom on the substation site since it was occupied
by Amber Bay
and the applicant
27.
Mr Barnes became increasingly uneasy with
the high volume of vehicular and human traffic over the farm, the
area on and around the
substation. The applicant requested Eskom to
install fences and around the substation site, and gates at
appropriate places. At
some point one of Eskoms’ officials
engaged in correspondence with the applicant regarding the
applicant’s concerns,
and offered to put in locks on the gates.
The applicant contends that nothing was done by Eskom to alleviate
the situation. Ultimately
the parties were unsuccessful in their
attempts to resolve the dispute in fruitless meetings to conclude
practical fencing, access
and security arrangements.
28.
On 13 August 2014, the applicant wrote to
Eskom with the request with a written undertaking to cease its
unlawful conduct proposed
the following:
“
In
order to normalize the situation, the following steps need to be
taken:
8.1 You will need to
compensate our client for the area that you are occupying unlawfully;
8.2 The area including a
right of way to the area, and the overhead power lines will need to
be properly identified in a servitude
diagram;
8.3 You must build your
own exclusive access gate at the first entrance from the main
servitude road at a place mutually agreed
upon, which gate must be
kept closed and locked;
8.4 You must maintain the
access road, 3 meters wide, from this gate to the Eskom servitude
gate;
8.5 You must maintain a
proper fence around the Eskom servitude area;
8.6 You may not encroach
on any other part of our client’s property or cause a nuisance
to our client;
8.7 A proper servitude
will need to be registered; and
8.8 You will need to
carry the cost of all the aforesaid.”
29.
Eskom resolved that it would obtain a
proper servitude registered over Nooitgedacht to legalize its
occupation of a portion of the
farm and offered the applicant a sum
of just over R220 000,00 as compensation for its granting Eskom the
option to acquire such
a servitude. The applicant was not
amenable to consent to the registration of any servitude over its
property in favour of
Eskom or to grant the option desired by Eskom.
The parties had reached an impasse. The applicant therefore
demanded
that Eskom vacate the farm within a reasonable period and
make good any damage caused to the farm. Eskom had no intention
of leaving, and on 7 November 2014, the applicant launched its
eviction application.
30.
Eskom opposed the application on the basis
that it had until recently believed it had real rights over the farm
to maintain and
have access to its substation site, and that its
usage of the farm had been in practice for many years. Eskom also
argued the obvious
point, that the evacuation of the substation would
have an enormous impact on the citrus and tourism industry and all
the townships
that relied on the electricity supplied to them by this
particular substation.
31.
The solution suggested by the applicant to
Eskom’s problem, was that the entire substation be relocated to
another site, on
the adjacent farm (Portion 5) already owned by the
State. The applicant points out that 50% of portion 5 (the
Government’s
farm), abutting the farm Nooitgedacht, has an
undeveloped portion within meters from the substation.
According to the applicant
the inconvenience of Eskom moving the
substation to that farm could be accommodated by allowing for a
reasonable period (four years)
to effect such a move. Eskom
maintained it would take six years to move the substation at a cost
of R112 million. In
addition the electricity supply to various
consumers would be interrupted. Eskom’s position, as upheld by
the first respondent,
is that the proposed solution is impractical
and far too costly. These arguments were also ventilated in the
present review application
still and goes to the heart of the
expropriation dispute between the parties.
32.
The applicant opposed the application for
expropriation and raised several of the complaints set out above.
Herein the applicant
also relies on these aspects in the review
application presently under consideration.
Expropriation
Applications
:
The Applicable Legislation and
Legal Principles
33.
Section 2(1) of the Expropriation Act, 63
of 1975, gives the Minister the power to expropriate “any
property for public purposes”
and to either approve or decline
an application for expropriation.
34.
The State (as represented by the first
respondent in the present matter) may expropriate land or a right in
land in terms of s26
of the Regulation Act only:
(1)
to
facilitate the achievement of the objectives of the Electricity
Regulation Act; and then only
(2) if a licensee (in this instance
the second respondent) is unable to acquire that land or the right
therein by agreement with
the owner and
(3) the land or such right is
reasonably required by a licensee for “facilities which will
enhance the electricity infrastructure
in the national interest”.
35.
The expropriation powers of the first
respondent are further regulated by the Expropriation Act in terms of
which that power is
(subject to an obligation to pay compensation) to
expropriate any property for public purposes.
36.
The above statutory provisions remain
subject to section 25 of the Constitution in terms of which:
“
(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”;
(2) 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.
(3) The amount of the
compensation and the time and manner of payment must be just and
equitable, reflecting an equitable balance
between the public
interest and the interests of those affected, having regard to all
relevant circumstances, including –
(a)
the current use of the property;
(b)
the history of the acquisition and use of the property;
(c)
the market value of the property;
(d) the extent of direct
state investment and subsidy in the acquisition and beneficial
capital improvement of the property;
and
(e)
The purpose of the expropriation.
(4) For the purposes of
this section-
(a) the public interest
includes the nation’s commitment to land reform, and to reforms
to bring about equitable access to
all South Africa’s natural
resources; and
(b)
property is not limited to land.
(5) The state must take
reasonable legislative and other measures, within its available
resources, to foster conditions which enable
citizens to gain access
to land on an equitable basis.
(6) A person or community
whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices
is entitled, to the extent provided
by an Act of Parliament, either to tenure which is legally secure or
to comparable redress.
(7) A person or community
dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices
is entitled, to the extent
provided by an Act of Parliament, either to restitution of that
property or to equitable redress.
(8) No provision of this
section may impede the state from taking legislative and other
measures to achieve land, water and related
reform, in order to
redress the results of past racial discrimination, provided that any
departure from the provisions of this
section is in accordance with
the provisions of section 36 (1).
(9) Parliament must enact
the legislation referred to in subsection (6).”
37.
Expropriation, even if it is carried out in
terms of a law of general application, remains a deprivation of
property and any such
deprivation must not be arbitrary. If an
expropriation is arbitrary, the resulting limitation or deprivation
falls to be
assessed in terms of s36 of the Constitution which reads
as follows:
“
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account
all relevant
factors, including-
(a)
the nature of the
right;
(b)
the importance of the
purpose of the limitation;
(c)
the nature and the
extent of the limitation;
(d)
the relation between
the limitation and its purpose; and
(e)
less restrictive means
to achieve the purpose.
(2) Except as provided in
subsection (1) or in any other provision of the Constitution, no law
may limit any right entrenched in
the Bill of Rights.”
38.
By virtue of section 33 of the
Constitution, the applicant has the right to administrative action
that is lawful, reasonable and
procedurally fair. This right is
given effect to in PAJA (being the national legislation referred to
in section 33(3) of
the Constitution) which imposes on the State a
duty to give effect to the above right. The State nevertheless
has an obligation
in terms of section 7(1) of the Constitution to
“respect, protect, promote and fulfil the rights in the Bill of
Rights”.
That obligation falls to both the first
respondent and Eskom since both of them fall within the definition of
“organ of state”
in the Constitution.
39.
A decision resulting in a deprivation of
property is arbitrary if it does not provide sufficient reasons for
the deprivation, or
if it is procedurally unfair. The fact that
there may be less restrictive means to achieve the same purpose is a
factor to
be taken into account.
40.
Section 195 of the Constitution is also
relevant. It reads as follows:
“
(1)
Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the
following
principles:
(a)
A high standard of
professional ethics must be promoted and maintained.
(b)
Efficient, economic and
effective use of resources must be promoted.
(c)
Public administration
must be development-orientated.
(d)
Services must be
provided impartially, fairly, equitably and without bias.
(e)
People’s needs
must be responded to, and the public msut be encouraged to
participate in policy-making.
(f)
Public administration
must be accountable.
(g)
Transparency must be
fostered by providing the public with timely, accessible and accurate
information.
(h)
Good human-resource
management and career-development practices, to maximize human
potential, must be cultivated.
(i)
Public administration
must be broadly representative of the South African people, with
employment and personnel management practices
based on ability,
objectivity, fairness, and the need to redress the imbalances of the
past to achieve broad representation.
(2) The above principles
apply to-
(a)
administration in every sphere of government;
(b)
organs of state; and
(c)
public enterprises.
(3) National legislation
must ensure the promotion of the values and principles listed in
subsection (1).
(4) The appointment in
public administration of a number of persons on policy considerations
is not precluded, but national legislation
must regulate these
appointments in the public service.
(5) Legislation
regulating public administration may differentiate between different
sectors, administrations or institutions.
(6) The nature and
functions of different sectors, administrations or institutions of
public administration are relevant factors
to be taken into account
in legislation regulating public administration.”
The Expropriation Decision
41.
The reasons advanced by the first
respondent for his decision were the following:
“
5.
After scrutinizing the expropriation application of Eskom, and after
having due regard to the legal framework outlined above,
I was
satisfied that Eskom’s application complies in all respects
with the applicable legal prescripts. More in particular,
I
consider that:
5.1 All the formal and
procedural requirements stipulated in the Regulations have been met.
5.2 The expropriation of
the land rights on behalf of Eskom will facilitate the achievement of
the objectives of the Electricity
Act. The facilities for which
the land rights are required have been in operation for nearly 20
years, and supply the electricity
infrastructure needs of consumers
in the towns of Addo and the Sundaysriver Valley and all the farmers
who contribute to the commerce
and output of the surrounding area.
The expropriation of the land rights well ensure that the security of
the electricity
supply to the consumers in those areas will be
safeguarded.
5.3 Eskom has been unable
to acquire the land rights by agreement, despite the fact that it has
offered compensation to the owner.
5.4 The facilities
enhance the electricity infrastructure in the national interest; as
it could impact on the National Gross Domestic
Product (GDP) if local
farmers were compromised by the demolition of the facilities.
5.5 The expropriation of
the land rights is required for a public purpose and in the public
interest; in that it is in the interest
of the public at large that
electricity supply to the electricity consumers in the areas of the
town of Addo and the Sundays River
Valley remains stable and secured.
6. In considering the
deciding on Eskom’s application, I took into consideration the
objections by Staufen as contained in
pages 93 to 143 (the reply) and
144 to 820 (the annexures) of the application and weighed it up
against the motivation provided
by Eskom in the application.
7. Despite Staufen’s
objection that the description of the land rights is vague, I was
satisfied that the application contained
a full description of the
land rights required to be expropriated. More in particular, I
took into account that Eskom has
attached a draft diagram to the
application, which has subsequently been approved by the
Surveyor-General, from which the full
extent and location of the
required land rights can be determined.
8. The objection raised
by Staufen that alternative suitable land exists (Portion 5 –
which already belongs to the State),
cannot be sustained as it will
entail the demolition and re-erection of existing infrastructure at
an estimated costs of R120 000
000 resulting in prolonged outage of
electricity to the town sand farms of Addo and the Sundays River
Valley area, which will be
severely detrimental to the customers of
that area.
9. In my view,
demolishing the exiting facilities, just to re-erect same facilities
on alternative land will be fruitless and wasteful
and will be
defeating the objectives of the Electricity Act.
10. I have considered the
history of the negotiations between the parties as detailed by Eskom
and by Staufen in its reply.
While there are factual disputes
about what exactly caused the breakdown in negotiations between the
parties, it is not in dispute
that negotiations indeed broke down,
that Eskom offered to purchase the land rights in question and that
Staufen rejected Eskom’s
offer without submitting a
counteroffer. I am therefore satisfied that Eskom is unable to
acquire the land rights by agreement
with the owner as required by
Section 27(3) of the Electricity Regulation Act, 2006.
11. In considering the
objection relating to the negative impact on the farming activities
of the property as alleged by Staufen,
I considered that the
facilities existed on the property prior to the acquisition of the
property by Staufen and that Staufen was
at all times aware of the
existence thereof at the time it purchased the property.
Consideration was also given to the fact
that the Electricity Act
requires the facilitation of a fair balance between the licensee and
the public. In balancing the
rights of the licensee and the
public, it is essential to have regard to the rights and interest of
the public at large, which
includes customers, end users and
investors in the electricity supply industry-not only the specific
landowner affected by the
expropriation.
12. Finally, I have
considered that the interference on Staufen’s farming
activities is not unreasonable given the important
public purpose
served by the facilities. In any event, Staufen will be offered just
and equitable compensation for the actual financial
loss it has
suffered as a result of the interference caused by the facilities (if
any).”
42.
The applicant raised a very comprehensive
list of grounds for review in its very long founding affidavit.
The list covers
four pages and I do not intend to list them all
here. In view of the approach I adopt to the matter, I will
deal with those
grounds which can be regarded as directly pertinent
to the question at hand and which were raised in argument.
43.
The two main arguments and grounds of
review advanced on behalf of the applicant are:
(1)
that the purpose of the expropriation
application was not to facilitate the objects of the Electricity
Regulation Act, but to
ex post facto
regularize and legalize Eskom’s unlawful occupation of
Nooitgedacht which is not an objective envisaged in the aforesaid
Act.
(2)
that the decision to expropriate is in
conflict with the Constitutional principle of legality and the common
law and constitutes
a deprivation of the applicant’s rights in
Nooitgedacht and could never be regarded as a legitimate public
purpose.
44.
The applicant argued that the relevant
“public purpose” being the efficient, effective and
sustainable supply of electricity
envisaged in section 2 of the
Electricity Regulation Act, had been met by the unlawful erection of
the substation, power lines
and attendant infrastructure on
Nooitgedacht. in this regard the applicant relies on its
undertaking that it would allow
Eskom sufficient time (approximately
four years was mentioned in argument) to ensure the continued
efficient and sustainable supply
of electricity from portion 5 and
all that remains to be determined by the parties would be the costs
of establishing an alternative
substation.
45.
The applicant submitted that the first
respondent misdirected himself by conflating the regularisation of
Eskom’s unlawful
and unconstitutional conduct with a “public
purpose” or “in the public interest”.
Accordingly the
expropriation decision was materially influenced by
an error of law was not rationally connected to purposes for which it
was taken
for a reason not authorized by the empowering provision,
for an ulterior purpose and rationally disconnected from the
empowering
provision, being the purposes of section 25(2) of the
constitution and was therefore constitutional and unlawful.
46.
The
First respondent and Eskom argued in response to this argument that
regularising Eskoms’ legal entitlement to the piece
of land,
Eskom currently occupies through expropriation “will enhance
the electricity infrastructure in the national interest”
[3]
,
“is for a public purpose or in the public interest”
[4]
and
therefore serves the purposes required by the applicable legislative
frame work already referred to.
47.
The
first respondent relied on the decision by S Ebrahim J in
Bartsch
Consult (Pty) Limited v Mayoral Committee of the Maluti-A-Phofung
Municipalit
y
[5]
.
In that matter the applicant was unsuccessful in its application for
review on the grounds that, on the respondent’s
own version,
the applicant’s land would not be used for the stated reasons
but for the unauthorised purpose of making the
land available to a
private land developer so as to be part of a shopping complex.
The court concluded that it has been established
that the
expropriation is a
bona
fide
one for a public purpose, the motives behind the decision to
expropriate are irrelevant to the question of whether the power to
expropriate was validly exercised
[6]
.
48.
Section 26 of the Electricity Regulations
pertinently requires the decision maker to have regard to section 25
of the Constitution,
whereas the Expropriation Act has of course no
such requirement, being promulgated before the advent of the
constitution.
49.
The applicant submits that the selection of
the substation site on what would become Nooitgedacht was entirely
arbitrary.
In its expropriation application Eskom stated that
the site has always been the ‘most ideal’ but did not
advance a
factual basis for that assertion.
50.
It was also argued on the applicant’s
behalf that the expropriation decision was procedurally unfair. Only
six weeks after
the expropriation application had been lodged, the
applicant became aware that the first respondent and his department
supplemented
the requirements of the Expropriation Regulations by
adopting an “abridged business process for expropriation
(abridged process)”
which had been developed with the
Department of Public Enterprises, the Department of Energy and
Eskom. In terms of that
procedure 30 steps has to be taken
before implementing the expropriation decision. However, one
day before the application
to compel him to take a decision, the
first respondent announced that he would not follow the abridged
process any further.
This the applicant contends, deprived it
of the benefit of a fundamentally important step, being the
provisional consideration
by the first respondent of the application
and whether the State’s intention to expropriate should be
advertised for public
announcement. This conduct, the applicant
submits, is materially procedurally unfair and this fell foul of
section 3 of PAJA.
51.
The applicant also objected to the fact
that in terms of the Expropriation Regulations, Eskom was permitted
to comment on the applicant’s
reply to Eskom’s
application, and the applicant was not given a copy of Eskom’s
comments and it was thus deprived from
commenting thereon.
52.
The procedure prescribed in the
Expropriation Regulations imposes several requirements to be
addressed and motivated in an application
by a licensee (in this
instance Eskom) for an expropriation by the first respondent (and
which factors must accordingly be taken
into account by the first
respondent in considering that application) which include:
1. the reasons and motivation why the
licensee reasonably requires the land or right it is sought to
expropriate with a full description
of the facilities in connection
with which the land or right is required;
2. full reasons why the said
facilities will “enhance the electricity infrastructure in the
national interest”;
3. a full motivation why the requested
expropriation “will be in
the public interest as contemplated by
section 25(2) of the
Constitution”;
4. the history of negotiations between
the licensee and the owner for the acquisition of the land or the
right and reasons why the
licensee is unable to acquire such land or
right by agreement;
5. the practical alternatives which
are open to the licensee if such land or right is not expropriated.
53.
In paragraph one of its application for
expropriation, Eskom states that the purpose of the expropriation was
“to extend the
existing land rights with regard to existing
Eskom Infrastructure across the property”. The applicant
infers therefrom
that Eskom sought rights to establish infrastructure
beyond that which currently exists. In this regard the diagram
annexed
to Eskom’s application is significant. Eight
power line servitudes are required ranging in width between 18 and 31
metres which envisages a much larger area than Eskom is entitled to.
54.
The further, ancillary rights sought are
very broadly stated as to “erect structures conductors, cables…
and without
limitation, everything else as may be necessary
convenient in exercising the right of servitude and that the
structure supporting
mechanisms may reasonably extend beyond the
servitude area.”
55.
The applicant also alleges that certain
facts give rise to a reasonable apprehension of bias both in relation
to the procedure followed
and in relation to the expropriation
decision.
56.
In support of it contention that the
expropriation decision was bias the applicant referred to the
appointment of a senior official
in the Department of Public Works,
(Mr Govender). This official was appointed by the first
respondent, after Eskom launched
its application to compel the first
respondent to take a decision in the expropriation application.
Mr Govender stated in
an e-mail that he was to “manage the
processing of the expropriation” and believed that the Minister
of Energy had
“authorized the expropriation”. Later
in an affidavit, he conceded that his e-mail could have given the
impression
that the first respondent had already taken a decision,
but explained that this was not the case.
57.
The applicant complained that its request
for correspondence between Eskom and the first respondent’s
department was not adhered
to.
58.
The applicant also made reference to the
fact that a valuer appointed by the first respondent, Boshoff had
visited Nooitgedacht
to conduct a valuation which he did not carry
out. After engaging the applicant’s representative on the
possibility
of settlement, Mr Boshoff reported their no prejudice
discussions to Eskom and the first respondent.
59.
Eskom also provided the Minister of Energy
with a summary of the matter with giving the applicant an opportunity
to also comment
thereon. Since the summary contained inaccurate
facts, the applicant was prejudiced in that it had no opportunity to
set
the record straight in this regard. The latter then advised
the first respondent to expropriate. The applicant contends
that if it was given the opportunity, it could also have alerted the
Minister of Energy of the fact that Portion 5 was available
as an
alternative site of the applicant’s had undertaking to afford
sufficient time to relocate the substation to Portion
5.
60.
The applicant submitted that Eskom, the
Minister of Energy and the first respondent did not, interact
objectively and at arms length
during the process of expropriation
and the outcome was to them a
fait
accompli
resulting in the decision to
being a bias one.
61.
According to the applicant, the Minister of
Energy merely repeated Eskom’s submissions and made no
reference to the applicant’s
objections. The applicant
was critical of the assertions by the Minister of Energy that:
(1)
the location of the substation was ideal;
(2)
that fair compensation was rejected by the
applicant; and
(3)
that a prolonged outage would be severely
detrimental to the consumers of the area.
62.
Officials of the first respondent’s
department prepared an Internal Memorandum with regard to Eskom’s
expropriation
application; put it before the first respondent for
consideration. It included a recommendation signed by five
officials
who received the correspondence from Mr Govender referred
to earlier.
63.
The applicant pointed out that the Internal
Memorandum represents only Eskom’s position which was repeated
in the recommendations
and that the first respondent’s reasons
for his decision, echoes the internal Memorandum which contains
inaccuracies.
The applicant alleges that its case was hardly
given any consideration, particularly that there was a viable
alternative to expropriation,
i.e. relocation to Portion 5 and that
Eskom would be given sufficient time to do so and therefore “no
harm will come to any
consumer”.
Discussion
64.
The applicant’s argument that the
expropriation decision was not made for any of the limited purposes
set out in the Electricity
Regulation Act, or in the ‘public
interest’ as envisaged in the Constitution and Expropriation
Act must be considered
first. In my view this argument tends to
place an artificially restrictive construction on what is meant by
“will enhance
the electricity infrastructure in the national
interest.” Quite plainly, if Eskom’s current
occupation of the
substation site is not regularized – and
expropriation is the only route available to achieve that –
Eskom will be
evicted. The very substantial negative impact the
eviction will have on the electricity infrastructure of the area is
obvious.
There is an eviction order in place, although subject
to the overall suspension referred to. If Eskom’s
occupation
is regularised, albeit
ex
post facto
, logically the
infrastructure would be enhanced thereby. The alternative would
be disastrous for the supply of electricity.
65.
This brings me to the applicant’s
next proposition, that the first respondent did not consider its
proposal that the substation
be relocated to Portion 5, the adjacent
farm, and to area only metres away from its current position.
66.
According to the applicant such an exercise
is feasible and repeatedly mention was made of the applicant’s
undertaking to
give Eskom the opportunity to relocate within a
reasonable time a period of four years was mentioned.
67.
Eskom’s
objection that the relocation which the applicant had in mind would
costs about R112 million and take six years to
implement, coupled
with a disruption in electricity supply was met with the applicant’s
argument that these problems were
of Eskom’s own making and the
arbitrary deprivation of the applicant’s property rights
trumped such considerations.
The applicant argued that
considerations of substantial expenditure were not bar to the
enforcement and protection of the property
rights protected in
section 25 of the Constitution. In this regard the applicant
relied on the judgment of the Constitutional
Court in
Allpay
Consolidated Investment Holding and Others VCEC, SASSA and
Others
[7]
.
The applicant amplified this argument with by pointing out that no
proper costing of the relocation exercise was ever done.
An
expert was to be engaged in this regard but no costing figures were
presented in evidence.
68.
The absence of proper costs estimated for
the proposed relocation does not assist the applicant. The
dismantling and relocation
of an entire substation and its overhead
power lines would certainly entail enormous expenditure. It
would also be naïve
to suggest that such an undertaking could be
achieved without substantial and highly prejudicial interruptions and
power outages
to be suffered by the consumers dependent on the
substation.
69.
Eskom undoubtedly provides a public service
and the consumers of the electricity it provides, are vast in number
and cover several
areas: eg. Uitenhage, Kirkwood, Sundays River
and Addo. Eskom thus provides a service for a very important
and vital
public purpose.
70.
The applicant’s insistence that Eskom
vacate its farm and move its whole infrastructure to an adjacent farm
must be scrutinized
against the following background in order to
strike a fair balance between the applicant’s property rights
and the aforesaid
public purpose.
71.
During argument Mr Ford for the applicant
stressed that Mr Barnes, the sole director of the applicant is a
farmer and that he would
be affected by expropriation. How the
farming operations are affected by Eskom’s operations on
Nooitgedacht have been
set out in some detail above.
72.
When Amber Bay bought Nooigedacht in 2007,
the substation had already been there for ten years. Eskom’s
failure to establish
real rights in respect of the substation was
most certainly a
bona fide
error. It conducted its operations on Nooitgedacht in the
bona
fide
belief that it had a legal
entitlement to do so. At that point Mr Barnes could not have
been aware that Eskom had no real
rights on Nooitgedacht. Amber Bay
purchased Nooitgedact. Its predecessors in title also accepted the
substation without demur.
At that point Mr Barnes could not
seriously have contemplated that it was possible to get rid of the
substation and let Zebra roam
under Pecan trees where the substation
used to stand. If he bought the farm because he knew Eskom had no
legal entitlement, he
took a serious risk.
73.
Eskom’s lack of rights was the result
of an error. Eskom did not willfully and grossly violate the
principle of legality and
the applicant’s property rights or
“seize” the land as the applicant contended.
74.
The decision to expropriate was the correct
decision to take in the circumstances. The substation serves
the public.
The costs and effort involved in dismantling,
relocating and installing a new substation a short distance away on a
neighboring
farm could rather be applied elsewhere on building a new
substation where there is a greater demand for electricity.
75.
The first respondent considered the
aforesaid factors and his decision to expropriate was not irrational
given the facts before
him, albeit that his decision had the effect
of regularising Eskom’s unlawful occupation of the farm. His
decision therefore
does not fall foul of sections 26(1) and (3) of
the Electricity Act. The expropriation is a
bona
fide
one, for a public purpose and
enhances the electricity infrastructure for the benefit of the
public. Given the reasons provided
by him, I am unable to find the
first respondent’s decision was arbitrary.
Procedural Matters
76.
The Minister of Energy and first respondent
were criticised for stating that the current substation area was the
ideal site for
the substation. This observation is correct if seen in
the context of what it will cost if the substation would be relocated
and
the disruption that that would entail. The applicant sees it
differently for his own reasons which do not coincide with the public
interest. It is a matter of opinion based on vested interests, not a
flaw in the proceedings.
77.
Nothing ought to be read in the first
respondent’s decision not to follow the abridged process. This
was not a case where
a substation was to be installed anew and for
the first time on the applicant’s property. It has been there
for years. No
purpose would be served by inviting the public to
comment thereon.
78.
With regard to the complaint that the
applicant was not afforded an opportunity to respond to Eskom’s
reply to its response,
it must be noted that Eskom was entitled to
reply to the applicant’s response to its expropriation
application in terms of
the Electricity Regulations, Eskom was not
obliged to deliver to the applicant a copy of its reply to comment
on. This would
have led to further exchanges of complaints in
circumstances where all the issues between the parties have already
been crystallized.
In prior litigation where relevant parties gave
their versions on oath. Even if Eskom gave incorrect
information regarding
its rights on the farm to the first respondent,
that did not influence his decision. The first respondent made his
decision precisely
because of Eskom’s lack of real rights. The
same considerations should apply to the summary that was forwarded to
the Minister
of Energy who had an interest in the matter.
79.
The first respondent also gave
consideration to the applicant’s reply, setting out the
nuisance factor of the substation and
that was weighed up against the
public interest. Not only Eskom’s case was considered as
suggested. The first respondent
weighed up the interests of the
public against the applicant’s rights.
80.
The applicant’s complaints regarding
correspondence and communications between Eskom officials and
officials of the first
respondent’s department do not support
an inference of bias or “institutional pressure” placed
on the first respondent
by Eskom.
81.
Mr Smith, Eskom’s attorney indeed
corresponded with Mr Meyering of the first respondent’s
department. Mr Smith wanted
to know when Eskom could expect the
decision. Much has been said about delays in the matter. At
that Eskom had to bring an
application to compel the first respondent
to take a decision. Eskom had to apply for an extension in time
lodge its expropriation
application in the High Court. Roberson J
granted the extension, but in her judgment criticised the delays in
no uncertain terms.
In these circumstances it is understandable
that Eskom would wish to exert some pressure on the first respondent
to take a decision
and that was what the correspondence was about.
82.
Ms Brown, to which reference was made
earlier, insisted that Mr Govender of the first respondent contact
her in writing and not
telephonically. Eskom’s attorney
notified all parties that all future communications must be through
their attorneys. That
is a clear indication that there was an attempt
to dispel the perception of bias and that in itself makes it
difficult to find
bias.
83.
It is correct that the internal memorandum
and the recommendations to the first respondent echo the wording of
each other and deal
mostly with many of the points raised by Eskom,
However as said before, this application was brought after litigation
in which
the main issues were fully ventilated on oath. The
allegations made and the respective arguments of Eskom and the
applicant had
been well traversed before. Therefore, the wording of
these documents, in my view, is not an indication of bias.
84.
In the circumstances, and for all the
considerations set out herein, the applicant’s application to
review and set aside the
first respondent’s cannot succeed.
85.
In so far as the description of the rights
sought be expropriated are concerned the following is significant.
Annexure 1 to
the expropriation application accords with the
photograph (referred to earlier) relied up the applicant to reflect
the power lines,
substation and the road. That photograph was
attached to the founding affidavit. However, the rights that were to
be expropriated
set out in the letter conveying the first
respondent’s decision to expropriate and which was sent
to Eskom, cited earlier
herein, does not limit the amount of power
lines that can be erected.
86.
The applicant has set out facts, referred
to earlier which indicate that there are reasons to expect that Eskom
will encroach on
the applicant’s farm beyond the parameters of
the portion it currently occupies. Eskom applied for eight power
lines. Currently
there are five. More power lines will run over areas
of the farm beyond the substation area borders on areas of
Nooitgedacht not
covered by the expropriation decision. In that
regard the first respondent erred and his decision ought to have been
more specific
about what was sought to be appropriated and restrict
the use of the land by Eskom to the area expropriated which is one
hectare.
Eskom has no legal entitlement to or history of occupation
of such areas. The
Bartsch
case
does not assist Eskom or the first respondent in this regard.
Bartsch
dealt with an entire property. The
expropriation in the present case is in respect of a portion of a
property and extending the
expropriation beyond that would amount to
a gross infringement of the applicant’s property rights.
Eskom was also given
the right to bush clearing and other activities
which cold encroach on the applicant’s property. The first
respondent’s
decision ought to be augmented accordingly, and I
deem it appropriate that the order I make herein reflect that. It is
not necessary
to refer the matter back to the first respondent for
that purpose. Not an insignificant part of the applicant’s case
concerned
Eskom’s propensity to expand the area it occupies.
Since the applicant has achieved some success with its application,
that
must be reflected in the costs order I make.
Compensation
87.
No determination regarding just and
equitable compensation payable to the applicant has been made and no
formal Notice of Expropriation
has been served on the affected
parties by virtue of the present application.
88.
According
to the first respondent, the assessment of the compensation payable
will shortly serve before the Land Affairs Act, 1987,
to advise the
state on the value of immovable property and the rights therein.
Mr Barnes stated he had never spoken to Boshoff
about what proper
compensation would be. The applicant submitted that in consequence of
the fact that no notice of expropriation
was given no compensation
was determined as part of the first respondent’s decision, the
latter’s decision was not
a final decision. This
submission is in conflict with the decisions of the Constitutional
Court in
Haffejee
N.O. and Others v eThekwini Municipality and Others
[8]
where it was
held that although the obligation to pay compensation is a condition
of expropriation, as envisaged in section 2(1)
of the Expropriation
Act, but it is not a prerequisite for its operation. It was
also held that ‘the time and manner
of payment need not be
determined before expropriation takes effect.’
Consequently the fact that no determination has
been made does not
affect the validity of the applicant. What is of concern and
ought to have been dealt with more equitably
by the first respondent,
is the increased volume in human and vehicle traffic, its concomitant
security risks and general inconvenience
cause by Eskom’s
occupation by the substation site which is incompatible with the
applicant’s farming activities.
In my view this aspect
could be appropriately addressed in the determination of compensation
as the first respondent mentioned
in his reasons.
89.
Section
25(3) of the Constitution provides that the amount of compensation
and the time and manner may be just and equitable and
should reflect
“equitable balance between the public interest and the interest
of those affected.” Relevant circumstances
in this regard
include the current use of the property, the history of the
acquisition, the extent of direct investment by an organ
of state and
subsidy in the acquisition and beneficial capital improvement of the
property and the purpose of the expropriation
[9]
.
Reserved
Costs
90.
The
first respondent filed its answering affidavit in opposition to the
review applicant out of time. On 19 September 2017 the applicant
brought an application to strike out the first respondent’s
opposition. The applicant did not succeed in obtaining such an
order
and the costs of that application was reserved.. Rule
6(5)(f)(i) makes provision for the correct procedure to be followed
by an applicant in the position of the present applicant. The
applicant was at liberty to set the matter down on the unopposed
roll
if the first respondent did not comply with the prescripts of Rule
6(5)(f)
[10]
which has
with in it specified mechanisms set out to deal with its
non-compliance. Where no answering affidavit is delivered within
the
period referred to in subparagraph (ii) of paragraph 6(5)(d)
“…
the
applicant may within five days of the expiry thereof apply to the
Registrar to allocate a date for the hearing of the application.”
The
aforesaid rule has been held to be in mandatory terms in the
Nordberg
decision
[11]
.
91.
Accordingly the applicant, even though its
frustrations with previous delays by the first respondent and Eskom
were well founded,
on application to strike out the answering
affidavit was not competent and it is liable to pay the costs of that
application.
92.
Finally I wish to apologise for the delay
in delivering this judgment. It was a rather complex matter argued
over two days and in
addition, I suffered physical injuries in two
separate incidents (a month apart) which required surgery and was
followed by a slow
recovery. For many weeks I was not in a condition
to write judgments.
93.
The following order will issue:
1.
The application to review the first
respondent’s decision to expropriate the substation area on the
farm Nooitgedacht, one
hectare in extent, is dismissed.
2.
The first respondent’s expropriation
decision aforesaid is amended by the addition of the following
to its decision
as conveyed to the second respondent (Eskom):
“
(4) The
right to convey electricity over the property by means of 132 kv and
22 kv. overhead power lines is limited to the
existing power
lines and no power lines may be erected in addition thereto, if such
power lines will traverse the applicant’s
property beyond the
parameters of the electrical substation area, 10000 square
meters in extent.
(5)
The electrical substation area may
not expanded upon beyond the parameters of the existing 10 000
square meter area .”
3. The applicant is
to pay 80% of the costs of the application, including the costs of
two counsel;
4. The applicant is
to pay the reserved costs of 19 September 2017, including the costs
of two counsel.
____________________
E REVELAS
Judge
of the High Court
Appearances
:
For
the Applicant: Adv Ford SC and Adv Richards, instructed by
Schoeman Oosthuizen Inc., Port Elizabeth
For
the First Respondent: Adv Buchanan SC and Adv Gajjar,
instructed by State Attorney, Port Elizabeth
For the Second Respondent: Adv
Rorke SC and Adv Williams, instructed by Smith Tabata Inc., Port
Elizabeth
Date heard: 16 March 2018
Date delivered: 25 September 2018
[1]
Act 4 0f
2006
[2]
Act 63 of
1975
[3]
Section
26(3)(b) of the Electricity Regulation Act
[4]
Section 2
of the Expropriation Act, 63 of 1975 and section 25(2)(a) of the
Constitution (subject to compensation)
[5]
[2015] JOL
33984 (FB
[6]
At 31
paragraph [6]
[7]
2014 (4) SA
179
(CC) para [40].
[8]
2011 (12)
BCLR 1225
at paragraph [4]
[9]
Section
25(3)(a)-(e); see also Hafejee at paragraph [35].
[10]
Nordberg
Inc v AQTN Services CC and several other matters 1996(2) TPD SA 531
at 532 D-F; IBR Fire Protection CC t/a IBR
Fire v Minister of
Labour and Another Case No 70285/13 (GP) 7/8/2015
[11]
See
footnote 10