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[2011] ZASCA 246
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Erf 16 Bryntirion (Pty) Ltd v Minister of Public Works (914/10) [2011] ZASCA 246 (1 December 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:
914/10
In the matter between:
ERF
16 BRYNTIRION (PTY) LTD
Appellant
and
MINISTER
OF PUBLIC WORKS
Respondent
Neutral citation:
Erf
16 Bryntirion (Pty) Ltd v Minister of Public Works
(914/10)
[2011] ZASCA 246
(1December 2011)
Coram:
LEWIS,
SNYDERS AND THERON JJA
Heard:
22
November 2011
Delivered:
1
December 2011
Summary:
Administrative
law –
Promotion of Administrative Justice Act 3
of 2000
–
rationality – procedural compliance. Expropriation -
Expropriation Act 63
of 1975 –
information required to make representations.
_________________________________________________________________
ORDER
_________________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria, (Ranchod J sitting as a court of first
instance):
The appeal is dismissed
with costs, including costs of two counsel where so employed.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
THERON JA (LEWIS AND
SNYDERS JJA concurring)
[1] On 3 January 2008,
the respondent, the Minister of Public Works (the Minister), issued a
notice reflecting her decision to expropriate
Erf 16 Bryntirion (the
property), being immovable property owned by the appellant, Erf 16
Bryntirion (Pty) Ltd (Bryntirion), and
situated within the Bryntirion
Estate which incorporates the Presidential Residence, the
Presidential Guesthouse and the houses
of cabinet ministers.
Bryntirion instituted proceedings in the North Gauteng High Court,
Pretoria, for an order, inter alia, reviewing
and setting aside the
Minister’s decision. The court below (Ranchod J) dismissed the
application. Bryntirion, with the leave
of the court below, appeals
to this court against the dismissal of the application.
[2] During September
2005, the Department of Public Works (the department) approached
Bryntirion with an offer to purchase the property.
The letter
recording the offer stated the reason for the intended purchase as
follows:
‘
The intention to purchase your
property has been informed by the fact that all properties within the
estate boundaries are government
owned except for the one land parcel
viz. Erf 16 Bryntirion which is owned by your company Erf 16
Bryntirion Pty LTD.
As the government is intending to
upgrade the estate, your property is situated on the main entrance to
the Bryntirion estate and
if not purchased will have a detrimental
impact on the security planning for the estate as a whole.’
Bryntirion, through its
attorneys, advised the department that it had no intention of selling
the property. On 22 September 2005,
the department again addressed a
letter to Bryntirion, asking it to reconsider its position and
requesting a meeting of the parties
in order to discuss the reasons
for the proposed acquisition of the property by the department.
Bryntirion did not take the department
up on this suggestion.
[3] During October 2005,
notice was given to Bryntirion of the intention of the City of
Tshwane Metropolitan Municipality to close
Nassau Street (a street
running through Bryntirion Estate) and to consolidate a number of
erven and the internal road network to
form the Bryntirion
Presidential Estate. In terms of a letter dated 26 January 2006, the
department advised Bryntirion that it
had 21 days to make
representations and be heard before the property was ‘finally
expropriated’. On 8 February 2006,
Bryntirion advised the
department that it intended to object to the expropriation and
requested certain information to enable it
to make representations.
After initially agreeing to furnish the information requested by
Bryntirion, the Minister, by letter dated
4 August 2006, advised
Bryntirion that its request for information was premature in that a
decision had not yet been made to expropriate
the property. In the
same letter, the Minister set out the purpose of the intended
expropriation:
‘
You are well aware that the
property … lies within the proximity of the residential
complex for Senior Government Officials
including Ministers. The
Government intends to upgrade the estate with a view to, amongst
others, enhancing the security planning
for the estate as a whole.
The property to be acquired in giving effect to this objective will
be so acquired for public purpose
and in the public interest.
…
You are therefore granted an
opportunity in terms of Section 3 of PAJA to respond in writing to
our Department as to why your property
should not be acquired for
public purposes and in the public interest.
Kindly send your representations
within 14 days from the date of receipt of this letter to our
Department.’
[4] In terms of a letter
dated 13 September 2006, Bryntirion’s attorneys repeated their
request for certain information in
order to enable Bryntirion to make
representations and further stated that there appeared to be a
contradiction as to whether or
not a decision had already been taken
to expropriate the property. The department, in its response dated 10
October 2007, set out
the reasons for the intended expropriation in
the following terms:
‘
1. Your client’s
property is the only private property within the Bryntirion Estate;
2. The positioning of your client’s
property on the estate makes it impossible to cordon off the entire
estate for effective
security measures; and
3. The Government intends to upgrade
the estate with a view to, amongst others, enhancing the security
planning for the estate
as a whole.’
The letter proceeded to
furnish answers to some of the questions posed while withholding
information which, in the view of the department,
would compromise
matters of security. Information was withheld in relation to, inter
alia, the plans to upgrade the Estate, alternative
entrances to the
Estate and the fate of the property after expropriation. Bryntirion
was also called upon to file representations,
if any, within seven
days of receipt of the letter.
[5] By letter dated 2
November 2006, Bryntirion’s attorneys set out ‘preliminary
representations’ as to why the
property should not be
expropriated. These included:
‘
The expropriation is not in the
public interest or for a public purpose.
The expropriation is not urgent.
No proper and rational consideration
has been given to the alternatives to expropriation.
The Bryntirion Estate can be
constituted without inclusion of our client’s property, and our
client’s property can therefore
not be said to be the only
private dwelling within the estate.
Security will not be more effective or
better managed by inclusion of our client’s property in the
estate.
…
The consolidated plan of the proposed
consolidated erf in Bryntirion Presidential Estate as prepared by
Metroplan excludes our client’s
property as part of the
consolidated erf.
…
Our client has occupied the property
for ten years with the State as his neighbour on all sides, except on
the street front with
Dumbarton Road. Our client’s presence has
at no previous time been suggested to constitute a security risk or
an impediment
to the effective security of the adjoining properties
occupied by Government officials.
No real threat to the security of
residents of Bryntirion Estate which is any greater than the security
risk to residents in the
adjoining residential areas in Pretoria has
manifested and which reasonably requires Government Ministers and
officials to be segregated
in a security estate from persons resident
in the adjoining areas.’
[6] On 13 February 2007,
the Minister advised Bryntirion, in writing, that she was required to
make a decision regarding the proposed
expropriation of the property.
Relevant portions of her letter state:
‘
Purpose of Expropriation
2.1 The property in respect of which
I have to make the aforementioned decision, is required for inclusion
into the Government
residential complex for members of Cabinet. It is
the only property within the complex under private ownership.
2.2 The acquisition of the property
is intended to effect adequate security measures within the complex.
3 Upon expropriation, the property
will form part of the Government complex to which it is presently
immediately adjacent.
4 You will be entitled to compensation
in respect of the property to be expropriated.
...
5.3 You are hereby afforded the
opportunity to comment, in writing, within 21 days of delivery of
this letter to you ….’
[7] On 13 March 2007,
Bryntirion’s attorneys made representations as to why the
property should not be expropriated. These
representations were
substantially similar to the representations made on 2 November 2006,
set out in para 5 above. There was further
correspondence between the
parties around the issue of expropriation of the property. On 3
January 2008, the Minister signed a
notice of expropriation which was
delivered to Bryntirion on 7 January 2008. Compensation in the amount
of R7 620 800 was offered
to Bryntirion.
[8] Bryntirion instituted
review proceedings on 27 February 2008 in terms of Uniform Rule 53.
On 12 August 2008, the Minister delivered
a record of what she had
considered before she took the decision to expropriate the property.
It was common cause that the documents
that were placed before the
Minister to enable her to make a decision regarding the property
consisted of legal opinions, correspondence
between the department
and Bryntirion’s attorneys and consultants’ reports. The
Minister did not include the legal
opinions in the record on the
grounds that they were privileged and included only an edited version
of a consultant’s report
titled ‘Department of Public
Works, Bryntirion Estate Preliminary Design Report on the Security
Electronic Systems’
(the Bryntirion Report). The Minister
refused to make full disclosure of the Bryntirion Report on the
grounds of state security.
Pursuant to the Minister’s refusal
to make available the three legal opinions and the full Bryntirion
Report, Bryntirion
applied to court, in terms of Uniform Rule 30A,
for an order directing her to deliver these documents. This
application was dismissed
by the high court (Seriti J) on 17 June
2009.
[9] Section 2 of the
Expropriation Act 63 of 1975 empowers the Minister to expropriate any
property for ‘public purposes’
subject to the obligation
to pay compensation. For present purposes, the requirements for a
valid expropriation are that it must
be for a ‘public purpose’,
comply with the procedural requirements set out in the Expropriation
Act, be the product
of a
bona fide
exercise of discretion and
not arbitrary or irrational and it must not be for an ulterior
purpose.
1
[10] Bryntirion argued
that the decision to expropriate was irrational. In order to
succeed, it must demonstrate that the decision
served ‘no
legitimate governmental purpose’.
2
There is, in my view, no basis upon which it could be found that the
decision to expropriate was irrational. The evidence clearly
demonstrates that the expropriation had a rational purpose relating
to legitimate security concerns. It has been held that expropriation
of land bordering on the official residence of the Prime Minister in
order to obtain a greater measure of security and privacy
for him is
an expropriation for ‘public purposes’.
3
The expropriation in the present case was clearly for ‘public
purposes’. In fact, it was not contended otherwise
by
Bryntirion.
[11] It was argued that
the decision of the Minister in expropriating the property was taken
because irrelevant considerations were
taken into account and
relevant considerations were not considered. It was further
contended, in support of this argument, that
incorrect facts
regarding the new entrance to the proposed Estate, were placed before
the Minister. The Minister, in her answering
affidavit, said the
following about the new entrance:
‘
21.2 The fact that it might be
possible to construct a perimeter fence or wall around the Bryntirion
estate without including the
property does not address the security
concerns that would be created thereby. It is clear from the
correspondence from Delport
Du Preez & Associates dated 24
October 2005, which forms part of the record, that the inability to
cordon off the entire estate
will raise a number of security issues
including:
21.2.1 In accordance with the new
proposed master plan for the Bryntirion estate, the new main entrance
for vehicles and pedestrians
will be in Colroyn Road and all traffic
will have to pass the Applicant’s property to reach the
entrance or leave the estate;
...’.
The allegation by the
Minister that the new main entrance would be in Colroyn Road was
clearly based on incorrect facts having been
placed before her. In
any event, the main reason for the expropriation of the property was
that it could fall within the Estate
so that security concerns could
be effectively addressed. The fact that the Minister may have been
given incorrect information
as to where the main entrance to the
Estate would be situated is irrelevant.
[12] It
was common cause that the Minister’s decision to expropriate
the property was
‘
administrative
action’ as defined in s 1 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA) and which materially
and adversely
affected Bryntirion’s rights. Administrative action which
materially and adversely affects the rights or legitimate
expectations of any person must be procedurally fair.
4
In order to give effect to the right to procedurally fair
administrative action, an administrator must, inter alia, give the
affected
person notice of the nature and purpose of the proposed
administrative action and an opportunity to make representations.
5
Fair administrative procedure depends on the circumstances of each
case.
6
Adequate notice includes the duty to provide the affected person
with the essential information which motivates the impending
action,
and must indicate what the main considerations for the contemplated
action are in order to enable the affected person to
prepare a
response.
7
[13] It was contended
that Bryntirion was not given sufficient information in order to make
meaningful representations as to why
the property should not be
expropriated. It was further contended that Bryntirion was not given
adequate notice of the nature
and purpose of the proposed
administrative action, nor was it given a reasonable opportunity to
make representations in regard
to the proposed expropriation. The
effect of this, so the argument went, was to render the expropriation
process procedurally unfair.
[14] From the very first
communication to Bryntirion, and consistently thereafter, it was
advised that the ultimate purpose of the
expropriation was to make
the Bryntirion Estate a single geographic unit. Bryntirion was told
that the property was the only privately
owned property within the
Estate, that the government intended cordoning off the entire Estate
in order to enhance security and
that this could only effectively be
achieved if the property was to form part of the Estate. This was set
out in the various communications
referred to in paras 2, 3, 4 and 6
above. Bryntirion was left in no doubt that the reason for the
expropriation related to the
establishment of a secure estate.
Bryntirion was invited to make representations on four occasions.
Representations were in fact
made on two occasions. It is clear from
the representations made by Bryntirion that it had been given
sufficient information regarding
the underlying reasons for and the
purpose of the expropriation. Bryntirion has never been in any doubt
about the reasons for the
expropriation. It did not need to know
precisely what measures would be taken. In these circumstances, it
cannot be said that
the procedure adopted was unfair.
[15] The high watermark
of Bryntirion's case was that the security concerns could be met
without the expropriation. It had suggested,
inter alia, that a
perimeter fence could quite easily be erected around the Estate
without including the property in the new security
perimeter. It was
also argued that the security concerns raised by the Minister with
regard to the property could be raised against
all the residences on
the western side of Dumbarton Road.
[16] It is for the
expropriating authority to decide how best to achieve its purpose.
8
The evaluation of whether an expropriation is expedient or necessary
lies with the expropriating authority.
9
The fact that there are other ways to achieve the purposes of the
expropriation is irrelevant provided that the expropriation is
for a
‘public purpose’.
10
[17] The appeal is
dismissed with costs, including costs of two counsel where so
employed.
____________
L V THERON
JUDGE OF APPEAL
Appearances:
Appellant: N G D Maritz SC
Instructed by Michelle Horn Attorneys,
Pretoria
Naudés Attorneys, Bloemfontein
Respondent: M Sikhakhane
Instructed by State Attorney, Pretoria
State Attorney, Bloemfontein
1
Broadway Mansions (Pty) Ltd v
Pretoria City Council
1955
(1) SA 517
(A) at 522B-D.
Pharmaceutical
Manufacturers Association of
SA & another
:
In
re Ex Parte President of the RSA & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC).
2
Pharmaceutical
Manufacturers Association of
SA & another
:
In
re Ex Parte President of the RSA & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 24.
3
Slabbert v Minister Van Lande
1963 (3) SA 620
(T).
4
Section 3(1) of PAJA.
5
Section 3(2)
(b)
of PAJA.
6
Du Preez & another v Truth and
Reconcilation Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(A) at 231G-232E;
Nortje
& ‘n ander v Minister van Korrektiewe Dienste
2001 (3) SA 472
(SCA) para 17.
7
Du Preez
at 234I.
8
White Rocks Farm (Pty) Ltd &
others v Minister of Community Development
1984
(3) SA 785
(N) at 792.
9
Offit Enterprises (Pty) Ltd &
another v Coega Development Corporation (Pty) Limited & others
2010 (4) SA 242
(SCA) para 48 fn 24.
10
Fourie v Minister van Lande
1970 (4) SA 165
(O) at 169D-E and
176F-G. See also
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs & others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 48.