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[2009] ZASCA 85
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Oudekraal Estates (Pty) Ltd v The City of Cape Town and Others (25/08) [2009] ZASCA 85; 2010 (1) SA 333 (SCA) (3 September 2009)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 25/08
OUDEKRAAL
ESTATES (PTY) LTD
Appellant
and
THE
CITY OF CAPE TOWN
First
Respondent
THE SOUTH AFRICAN HERITAGE
RESOURCES
Second
Respondent
AGENCY
SOUTH
AFRICAN NATIONAL PARKS
Third
Respondent
________________________________________________________________
Neutral citation:
Oudekraal
Estates (Pty) Ltd v The City of Cape Town and others
(25/08)
[2009] ZASCA 85
(3 September 2009)
CORAM:
NAVSA,
VAN HEERDEN, PONNAN, MHLANTLA JJA and WALLIS AJA
HEARD:
18
August 2009
DELIVERED:
3
September 2009
CORRECTED:
SUMMARY: Application for review â
to set aside decision to approve township in 1957 â failure to take
into consideration religious
and cultural rights of Muslim community
â application of delay rule â unprecedented time lapse â unique
circumstances â
discretion exercised to set aside decision.
________________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
High
Court, Cape Town (Van Reenen J (Yekiso J concurring) sitting as a
court of first instance).
The following order is made:
1. The appeal is dismissed with costs.
2. The costs in paragraph 1 will
include in the case of the first and third respondents jointly the
costs of two counsel as if they
had been represented collectively by
two counsel and in the case of the second respondent the costs of one
counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________
NAVSA JA (VAN HEERDEN, PONNAN,
MHLANTLA JJA and WALLIS AJA concurring):
[1] There is no natural or other
phenomenon in South Africa quite as iconic as Table Mountain, which
stands like a sentinel overlooking
the Mother City. The Cape
Peninsula National Park, now renamed the Table Mountain National Park
(the Park), comprising the mountain
and tracts of land beyond it, was
established in terms of the National Parks Act 57 of 1976. It borders
the northeast corner of
portion 7 of the farm Oudekraal (portion 7)
and surrounds it on its eastern and southern sides. The development
of portion 7 as
a township by the appellant, Oudekraal Estates (Pty)
Ltd (Estates), is in issue in the present appeal. The local authority
within
whose jurisdiction portion 7 is located and which is
responsible for urban planning is the first respondent, the City of
Cape Town
(the City).
[2] The second respondent, the South
African Heritage Resources Agency (SAHRA), established in terms of
s
11
of the
National Heritage Resources Act 25 of 1999
, is the
successor to the National Monuments Council and is statutorily
charged with the responsibility of protecting South Africaâs
heritage resources which are of cultural significance or other
special value for the present community and for future generations.
[3] The third respondent, South
African National Parks (SANPARKS), is a statutory body charged with
the protection of our countryâs
natural and cultural heritage.
1
One of its stated goals is to establish and consolidate the Park to
ensure its long-term ecological, economic and social sustainability.
The attainment of this goal is premised on a number of objectives,
the first of which is to incorporate into the Park all land
within
the Cape Peninsula Protected Natural Environment (CPPNE), as well as
other conservation-worthy areas outside of it.
[4] The CPPNE covers an area of
approximately 30 000 hectares, running from Signal Hill all the way
to Cape Point. The bulk of the
CPPNE has already been incorporated
into the Park. A part of portion 7 of Oudekraal falls within the
cadastral boundaries of the
CPPNE. SANPARKS considers it vital that
portion 7 be incorporated into the Park.
[5] The Park is one of eight areas
constituting the Cape Floral Region (the CFR) of South Africa. In
2004 the CFR was listed as
a World Heritage site, thereby achieving
renewed and elevated recognition as a site of outstanding
significance to humanity. The
CFR is regarded as the worldâs
âhottest hot spotâ for plant diversity and endemism. Covering
less than 0.5% of the continental
area of Africa, it contains nearly
20% of its flora and, in an area smaller than 4% of Southern Africa,
it has nearly 44% (comprising
some 20 000 species) of the
sub-continental flora. The CFR has more endemic species of plants
than any of the other 18 âhotspotsâ
in the world. In addition, it
has by far the highest species density and species rarity of any
Mediterranean-type climate region
in the world. It is indeed one of
the richest areas for plant diversity when compared with any similar
sized area in the world.
[6] The floral vegetation of portion 7
consists of (amongst other species) Coastal Renosterveld, which has
been identified as the
most critically endangered ecosystem in South
Africa.
[7] The farm Oudekraal represents one
of the few instances in the Peninsula where there is a preserved
connection between high altitude
zones and the coastline â in
conservation terms this is known as âcoast to crest conservationâ.
This is important not only
for aesthetic reasons, but also because it
provides protection for the complete set of what are referred to as
eco-tonal and habitat
changes which occur along steep gradients.
[8] Opposite Oudekraal is a deep reef
environment which is the breeding ground and habitat of rock lobster
and a fish species called
Cape Hottentot. Both species are under
moderate threat of over-exploitation. There is also a contiguous
marine reserve, approved
as such, in terms of the Marine Living
Resources Act 80 of 1988. The reserve stretches from portion 4 of
Oudekraal, which marks
the beginning of the CPPNE. At present the
portion of coast immediately opposite portion 7 is a buffer zone. It
is a conservational
imperative to have a buffer zone at the edges of
a fully protected nature area because of the natural movement of
species.
[9] Furthermore, parts of the land
around Table Mountain, particularly the ravines below the Twelve
Apostle peaks, are of great
historical, cultural and religious
significance. From the turn of the 18
th
century, the land was used as a refuge by slaves who had escaped from
their masters and the colonial authorities. Among them were
Muslim
spiritual leaders who had led uprisings against slavery in the Dutch
East Indies and who had been captured and brought to
the Cape. These
leaders taught their disciples in the seclusion and safety of these
ravines and in this way fostered and kept Islam
alive at the Cape.
Prominent leaders who attained spiritual levels equivalent to
Christian saints were buried there, these burial
places being known
as kramats. The kramats are visited regularly by members of the
Muslim community who regard that area as sacred.
A large number of
Muslim graves are also to be found in these parts.
[10] Portion 7 lies between Rontree
Estate and Llandudno, below the Twelve Apostles peaks and alongside
the Cape Atlantic coast.
In commercial terms the land in issue would
be described as exclusive and prime real estate. Translated into
potential monetary
value, and given the description of its environs
set out above, preceding and present litigation in relation thereto
is more readily
understandable. The background to that litigation is
set out hereunder.
[11] The farm Oudekraal was first
surveyed in 1818. On 18 August 1836 it was granted into exclusive
private possession by way of
perpetual quitrent to Michiel van Breda.
Thereafter, ownership passed to Dirk Geysbert van Breda. In 1954 it
passed from the latterâs
estate to Sir Henry Price (Price), an
English national with business interests in South Africa, for a
purchase consideration of
£60 000. Certificates of title to
portions 4, 5, 6, and 7 were issued to him on 1 November 1961.
Following his death, portion
7 was transferred to Estates, a
subsidiary of Castle Estate Agency (Pty) Ltd (Castle Estate), on 28
May 1965 for a purchase consideration
of £50 000. On the same
date portions 4 and 5 were transferred to Oudekraal Properties (Pty)
Ltd, another subsidiary of Castle
Estate, for a purchase
consideration of £2 500 and portion 6 was transferred to yet
another subsidiary of Castle Estate,
also for a purchase
consideration of £2 500.
[12] On 21 July 1954 Priceâs land
surveyors applied for the establishment of Oudekraal Township on
behalf of Price. In terms of
the then prevailing legislation, it was
envisaged to be a White group area, with an area close by reserved
for domestic workers.
In the application, what was proposed was a
development to be compatible with and to rival the âmuch admired
Riviera of the South
of Franceâ.
[13] Building regulations then in
force required an applicant for township development to disclose all
physical features such as
watercourses, dongas, pipelines etc. It is
of significance to the present litigation that, although all other
important physical
features of the land were set out in the
application on behalf of Price, the existence of two kramats and of
many other graves
on the land was not disclosed. The details and
importance of these kramats and graves will be dealt with later.
[14] The application for the approval
of the township was in respect of 1 109 erven, within a composite
township encompassing portions
4, 5, 6 and 7 of Oudekraal. On 17
September 1957 approval for four separate townships on each of
portions 4, 5, 6 and 7 was granted
by the then Administrator of the
Western Cape Province. The approval in relation to portion 7 and its
consequences are central
to this appeal.
[15] The approval was ultimately in
respect of 237 saleable erven on portion 7. It is common cause that
the approvals in respect
of the proposed extensions to the township,
on portions 4, 5 and 6, lapsed by virtue of Priceâs failure to
lodge a general plan
timeously or at all. They accordingly have no
bearing on this dispute.
[16] On 5 July 1960 a general plan was
submitted for approval to the Surveyor-General and was thereafter
approved on 10 April 1961.
There was a dispute about whether the
Administrator lawfully granted extensions of time within which the
owner could lodge a general
plan, subsequent to the approval of the
establishment of the township on portion 7. For present purposes, and
for reasons which
will become apparent, this is an issue with which
we need not be concerned. A notification of approved township was
published in
the Provincial Gazette on 19 January 1962. As indicated
above, Oudekraal Township was then acquired by Estates on 28 May
1965.
[17] Estates did nothing to develop
portion 7 until 1996, some 31 years later, and four years after the
advent of Constitutional
democracy in South Africa. In that year
Estates commissioned engineers to prepare drawings for civil
engineering services in relation
to the township on portion 7. These
were completed during August 1996 and civil engineering services
plans were submitted to the
City on 29 August 1996. These drawings
were circulated in the ordinary course within the Cityâs
engineering department for a
technical evaluation. At the same time
Estates announced to the media that it intended developing a township
on portion 7 of Oudekraal.
Predictably, that provoked a public
outcry.
[18] The announcement led to the
formation in early September 1996, at a public meeting attended by
approximately 2 000 people,
of a coalition called the âEnvironmental
and Mazaar Action Committeeâ. The coalition included members of
the Save the Mountain
Campaign, the Wildlife and Environmental
Society of South Africa, the Muslim Judicial Council, the Islamic
Council of South Africa,
the Islamic Unity Convention, the Cape
Mazaar Society
2
and other organisations. At a rally held on 15 September 1996,
speakers from the Muslim Community and environmental groups appealed
for united action against the development of portion 7 on religious,
cultural and environmental grounds. Thus commenced the journey
that
led to protracted litigation culminating in the present appeal.
[19] The public outcry, including a
flood of letters to and articles in the press, prompted the City to
investigate the history
of the Administratorâs September 1957
approval, before considering the engineering services drawings
submitted by Estates. It
also took legal advice on the validity of
the development rights claimed by Estates. The Cape Metropolitan
Council (the CMC) similarly
took legal advice.
3
[20] After receiving such advice, both
the City and the CMC concluded that the Administratorâs approval in
respect of portion
7 had lapsed and that he had acted beyond his
powers in granting Estates the extensions referred to in para 16
above.
[21] Accordingly, the CMC sent a
letter dated 11 November 1996 to Estates, which recorded the
following resolution from the Engineering
Services Committee:
â
That the Cape
Metropolitan Council be informed that, as the City Council has been
advised that development rights over Oudekraal
Townships...had
lapsed, it is not legally competent to approve the provision of
services related thereto.â
[22] In response, Mr Kasper Wiehahn,
the sole shareholder and director of the holding company of Estates,
stated publicly that he
intended to approach the Cape High Court for
appropriate relief. In the ensuing months, correspondence was
exchanged and Estates
took legal advice. In February 1997 Mr Wiehahn
publicly repeated his threat to take the battle to court. Ultimately,
however, this
only occurred after more than four and a half years had
passed. Estates launched proceedings in August 2001.
[23] The delay was explained by Mr
Wiehahn on the basis that he had spent the intervening time trying to
engage the relevant authorities
and other interested parties and had
made overtures that had been rebuffed, thereby compelling the
approach to court.
[24] In the Cape High Court, Estates
sought (inter alia) an order declaring the extensions granted by the
Administrator for the
lodging of the general plan to have been
lawfully granted and further, declaring the development rights for
portion 7 to be of
full force and effect. In his founding affidavit
Mr Wiehahn stated that he âunderstands that there are no graves and
kramats
on portion 7â and that graves and shrines are located on
other portions of the farm. This statement is patently incorrect. I
will in due course deal with Mr Wiehahnâs explanation for this
error, as provided in subsequent litigation. Its importance is
that
it prompted an in-depth investigation by the City, SAHRA and SANPARKS
into the question of graves and kramats on portion 7.
[25] In the short time allowed by the
litigation, a limited investigation located 20 graves on portion 7.
Because portion 7 comprises
50 hectares and is on steeply sloping
ground, part of which has been invaded by dense alien vegetation, it
was not possible to
locate all the graves. It is undisputed that
there are two particularly important kramats on portion 7.
4
The first is that of Sayed Jaffer who is regarded by Muslims as
having been amongst the most pious of men. The other is that of
Sayed
Ahmed Mahdi, an important teacher of Islam who contributed to the
religion being kept alive at the Cape. Muslims in their
numbers visit
the kramats of these leaders and the graves of their companions.
These kramats form part of the âCircle of Islamâ
made up of
kramats around Cape Town. Before going on pilgrimage to Mecca, many
Muslims make it their duty to visit these kramats
and graves. Cape
Muslims, in their inimitable manner, speak of this practice as
follows: âom die kramats te groetâ. Poor people,
without the
means to perform the Hajj, visit the kramats as a surrogate. Portion
7 and areas around it are referred to by the Muslim
community as
âBelsfonteinâ. This area and the mountainside as a whole are
regarded as sacred and a proper place for spiritual
reflection and
meditation.
[26] Against this background, SANPARKS
raised the defence that the approval by the Administrator in 1957 was
invalid because of
the non-disclosure of the kramats and graves. The
City and SAHRA aligned themselves with this defence.
[27] The Cape High Court (Davis J with
whom Veldhuizen J concurred), dismissed the application by Estates,
holding that the Administrator
had acted beyond his powers in
extending the time limit within which the general plan was required
to be lodged. The court did
not deem it necessary to deal with the
defence raised by SANPARKS referred to in the preceding paragraph.
[28] Estates appealed against the
decision to this Court. A judgment was delivered on 28 May 2004
(hereafter referred to as Oudekraal
1).
5
This Court found it unnecessary to deal with the question of the
validity of the extensions of time granted by the Administrator.
It
decided the matter on the basis of the non-disclosure of the kramats
and graves.
[29] Paragraphs 24, 25 and the
relevant part of 26 of Oudekraal 1, set out hereafter, are of
significance:
â
[24] There can be no
doubt, however, that the presence on the land of religious and
cultural sites of particular significance to
a sector of the Cape
Town community was a factor that should properly have been taken into
account and evaluated, also on pre-Constitutional
principles, in
coming to the decision whether to permit the establishment of a
township.
[25] Whether the
Administrator, as the ultimate decision-maker, was ignorant of the
graves and kramats or not, the inescapable conclusion
must be that he
either failed to take account of material information because it was
not all before him or if, in the unlikely
event that it was before
him, that he wrongly left it out of the reckoning when he should have
taken it into account. In either
situation his decision to lend
approval on the terms he granted was invalid. It was, in addition, in
either event
ultra
vires
for the reason that it permitted subdivisions and land use in
criminal disregard for the graves and kramats. It would be impossible
to avoid desecration or violation if one were to make a road over a
grave site or to build over it.
[26] For those reasons it
is clear, in our view, that the Administratorâs permission was
unlawful and invalid at the outsetâ¦But
the question that arises is
what consequences follow from the conclusion that the Administrator
acted unlawfully. Is the permission
that was granted by the
Administrator simply to be disregarded as if it had never existed? In
other words, was the Cape Metropolitan
Council entitled to disregard
the Administratorâs approval and all its consequences merely
because it believed that they were
invalid provided that its belief
was correct? In our view, it was not. Until the Administratorâs
approval (and thus also the
consequences of the approval) is set
aside by a court in proceedings for judicial review it exists in fact
and it has legal consequences
that cannot simply be overlooked. The
proper functioning of a modern State would be considerably
compromised if all administrative
acts could be given effect to or
ignored depending upon the view the subject takes of the validity of
the act in question. No doubt
it is for this reason that our law has
always recognised that even an unlawful administrative act is capable
of producing legally
valid consequences for so long as the unlawful
act is not set aside.â
[30] Oudekraal 1 went on to point out
that in any such subsequent application, when a court is called upon
to decide whether to
set aside the invalid administrative act, it
would no doubt take into account the long period of time that had
elapsed since the
approval but that this factor in itself need not be
decisive. Much would depend on the balancing of all the relevant
factors, including
the need for finality and the consequences for the
public at large and indeed for future generations, of allowing the
decision
to stand.
6
The following statement at para 46 is relevant:
â
On the material that
is before us it is by no means clear that the appellant â or any
third party for that matter â has in fact
acted in reliance on the
approval notwithstanding the elapsing of some 40 years.â
[31] Unsurprisingly, the judgment of
this court was followed by the litigation leading up to the present
appeal. The City and the
other two respondents launched review
proceedings in the Cape High Court in September 2004, in terms of
which they sought an order
setting aside the Administratorâs
approval and actions consequent thereon.
[32] In its judgment, the Cape High
Court (Van Reenen J, Yekiso J concurring), recorded that counsel for
Estates, properly, did
not endeavour to assail the findings of this
Court in Oudekraal 1. The Cape High Court stated that this was
understandable as a
total of 57 graves had by that stage been located
on portion 7. Thus, during proceedings in the Cape High Court, the
appellants
accepted the correctness of the principal finding in
Oudekraal 1, that the administrative act of approval by the
Administrator
was invalid from its inception.
[33] The âdelay ruleâ in relation
to administrative review was the sole basis advanced on behalf of
Estates to contest the application
by the three respondents. In
reviewing and considering whether to set aside an administrative
decision, courts are imbued with
a discretion, in the exercise of
which relief may be withheld on the basis of an undue and
unreasonable delay causing prejudice
to other parties,
notwithstanding substantive grounds being present for the setting
aside of the decision. The application of the
delay rule would in a
sense âvalidateâ a nullity. This rule evolved because, prior to
the Promotion of Administrative Justice
Act 3 of 2000 (PAJA), no
statutorily prescribed time limits existed within which review
proceedings had to be brought. The rationale
was an acknowledgment of
prejudice to interested parties that might flow from an unreasonable
delay as well as the public interest
in the finality of
administrative decisions and acts.
7
[34] Van Reenen J first considered,
whether there had been an unreasonable delay in the institution of
the review proceedings. This,
he stated, had to be predicated on a
value judgment, having regard to all the relevant circumstances, and
a resort to the facts
of other cases was unhelpful.
[35] In determining whether there had
been an unreasonable delay, the High Court had regard to the conduct
of each of the three
applicants from 1957 to 1996. It held that,
whilst the validity of the Administratorâs decision might not,
during the apartheid
era, have been of any concern to the Cityâs
predecessors, its attention to relevant matters such as the kramats
and the graves
would at the very least have been brought to its
attention when the engineering drawings submitted on behalf of
Estates during
1996 indicated some graves.
[36] According to Van Reenen J, the
City had adopted a supine attitude, deliberately failed to take any
positive steps to have the
Administratorâs decision reviewed and
set aside and had been content merely to align itself with the
defence taken by SANPARKS
during the application brought by Estates.
The explanation by the City that Mr Wiehahn had made a number of
public announcements
to the effect that he intended approaching the
courts for relief â suggesting that the city was waiting for him
and that this
somehow excused the delay â was unacceptable. The
learned judge concluded that the City had delayed unreasonably.
[37] In respect of SAHRA, the court
took into account that
it
had only been established on 1 April 2000 by the
National Heritage
Resources Act 25 of 1999
and that there was no evidence that either
it or SANPARKS had any knowledge of the graves and kramats prior to
the inspection conducted
during December 2001 on behalf of the City.
However, SANPARKS had not instituted separate review proceedings, but
had instead contented
itself with what the court termed âa
collateral challengeâ to the validity of the Administratorâs
decision. The City and
SAHRA had aligned themselves with SANPARKSâ
defence both in the Cape High Court and before this court in
Oudekraal 1. Van Reenen
J then took into account that the proceedings
before him were launched approximately 30 months after the
respondents had become
aware of the fact that the kramats and graves
were a basis for invalidating the Administratorâs decision. He
regarded the fact
that four months had passed since the decision in
Oudekraal 1 as an aggravating feature. Thus, he concluded there was
also an unreasonable
delay by SAHRA and SANPARKS in bringing the
application.
[38] Having decided that question, the
court below went on to the second leg of the enquiry, namely, whether
in the exercise of
its discretion it should âcondoneâ the delay.
The learned judge agreed that this exercise was to be conducted in a
manner so
as to promote the spirit, purport and objects of the Bill
of Rights. In accordance with the judgment in Oudekraal 1, he was
careful
to consider the period of time that had elapsed since the
Administratorâs decision, the extent to which Estates or third
parties
might have acted in reliance on the decision and, finally,
the consequences for the public at large, including future
generations,
if the decision were allowed to stand.
8
[39] The court took into consideration
the right to freedom of religion and culture of members of the Muslim
community, as well
as the right of the broader community to have a
heritage and environmental area of high significance preserved. In
this regard
ss 15
,
24
and
31
of the Bill of Rights are of importance.
Against the historical and religious background referred to above,
Van Reenen J considered
the decision by the Administrator to approve
the Township without reference to these sensibilities to be
egregious.
[40] Having regard to the
environmental importance of portion 7, in its undeveloped state, the
High Court concluded that it was
without doubt conservation-worthy,
not only for South Africans but for all humanity. The submission on
behalf of Estates, to the
effect that urban development would not
have the adverse effects contended for by the respondents and that
legislation regulating
Township development and the environment could
be applied so as to address religious, cultural and environmental
concerns notwithstanding,
Van Reenen J concluded that the proposed
development would indeed severely devalue Table Mountain as a
heritage resource.
[41] The learned judge balanced
Estateâs asserted rights in relation to portion 7, against the
invalid decision by the Administrator.
He also took into account the
fact that Muslims have since time immemorial paid homage to the
kramats and graves, that graves sites
are sacred to Muslims and that
the Muslim faith abhors exhumation. It was not insignificant that,
given the overgrowth on some
areas of portion 7, the full extent of
graves is as yet unknown. An additional consideration was that the
Muslim community considered
the entire area to be sacred.
[42] Regard was also had to the fact
that much of the presently applicable regulatory framework in
relation to the environment and
township development is of recent
origin and was not in existence at the time of the Administratorâs
impugned approval. The suggestions
on behalf of Estates, about a
restricted development to address the concerns referred to, were in
the courtâs view, too vague
and speculative.
[43] Dealing with the prejudice to
Estates, the court noted that, according to the expert evidence
adduced on Estatesâ behalf,
the value in 2004 of portion 7 with and
without development rights was R570 m and R20 m respectively. If the
development were to
go ahead, the windfall for Estates would be
astronomical. Evidently, even without development rights, the return
on its initial
investment is substantial.
[44] The court measured prejudice with
reference to actions taken based on the Administratorâs decision.
After the approval, Price
appointed land surveyors to draw up and
submit a general plan. Mr Wiehahnâs father, who had acquired the
land in question, had
purchased it with the intention of subdividing
and developing it at the most opportune time. It was submitted before
the court
below that he would not have done so had he known the
Administratorâs decision was liable to be set aside and that his
capital
could have been better employed elsewhere.
[45] Van Reenen J accepted the
submission on behalf of the three respondents, that the land had not
been acquired by Mr Wiehahnâs
father solely on the basis of the
layout of the township as embodied in the Administratorâs approval.
This is evidenced by correspondence
emanating from Mr Wiehahnâs
father as far back as the 1960âs and subsequently by Mr Wiehahn
himself, during 1996, in which
the approved township plans were
described as being presently unsuitable for the purposes of
beneficial exploitation of the land.
[46] A submission by Estates that the
three respondents had acquiesced in the Administratorâs decision
and had therefore forfeited
the right to challenge it in the present
proceedings was rejected. In this regard, the court below took into
account the fact that
the three respondents were public bodies acting
in the public interest, seeking to set aside an invalid decision
taken at the height
of apartheid, on the basis of its momentous and
deleterious implications for present and future generations.
[47] A further important consideration
was that the Constitution and the rule of law, of which the principle
of legality is an incident,
required that as few invalid
administrative decisions as possible should be allowed to remain
intact.
[48] It had to be borne in mind that
the overwhelming majority of Muslims were previously politically,
socially and economically
disadvantaged because of repressive and
disempowering apartheid policies and were therefore unable to
effectively assert and protect
their interests. To refuse the order
sought would be to keep intact an invalid decision, the
implementation of which would violate
the Muslim communityâs
fundamental rights and offend against present-day conservation
principles.
[49] Exercising the courtâs
discretion in favour of the respondents, Van Reenen J disregarded the
delay in launching the application
and made an order reviewing and
setting aside the Administratorâs decision to approve the township.
It is that order that is
appealed against, with the leave of the
court below.
Conclusions
[50] The parties were agreed that, in
considering the correctness of the decision of the court below, the
principles enunciated
in
Wolgroeiers
Afslaers v Munisipaliteit van Kaapstad
1978 (1) SA (AD) 13 at 39C-D had to be applied. The following is the
relevant passage:
â
Word beweer dat die
aansoekdoener nie binne redelike tyd die saak by die Hof aanhangig
gemaak het nie moet die Hof beslis (
a
)
of die verrigtinge wel na verloop van ân redelike tydperk eers
ingestel is en (
b
),
indien wel, of die onredelike vertraging
oor
die hoof
gesien
behoort
te word
.
Weereens, soos dit my voorkom, met betrekking tot (b), oefen die hof
ân regterlike diskresie uit, met inagneming van al die
relevante
omstandighede.â (My emphasis).
[51] In
Setsokosane
Busdiens v Nasionale Vervoerkommissie
1986
(2) SA 57
(A) at 86D-E, with reference to
Wolgroeiers
,
the following was stated:
â
Die ondersoek, wat (
a
)
betref, het niks temake met die Hof se diskresie nie; dit behels ân
blote ondersoek na die feite ten einde te bepaal of die
tydperk wat
verloop het, in die lig van al die omstandighede, redelik of
onredelik was.â
As stated by Van Reenen J, this
entails a value judgment by the court in relation to its view of the
reasonableness of the time
that has elapsed in the light of all the
circumstances. This should not be equated with the exercise of a
discretion, which forms
the subject of the second leg of the
exercise. See in this regard
Setsokosane
at 86E-F and
Associated
Institutions Pension Fund
at 321G-H.
[52] Before us it was contended on
behalf of Estates that, in determining the reasonableness of the
delay and, later, in exercising
its discretion whether to disregard
the time lapse, the court below had incorrectly had regard only to
the period post 1996. It
was submitted that the supine attitude of
the City, SAHRA and SANPARKS and their predecessors should have been
taken into consideration
and that the period of delay should have
been regarded as having commenced a short while after the approval of
the township in
1957.
[53] It is true that, had the
predecessors of these entities acted properly and in the interest of
the broader community, rather
than only in the narrow interests of
the dominant White minority, they would have alerted themselves to
the presence of graves
and kramats by that early stage. This was
conceded by counsel for SAHRA. Similarly, even though they were
operating in an era in
which environmental concerns were not a
priority, they ought, in any event, to have been more concerned with
the conservation of
Table Mountain and its surrounds. As far back as
1923 General J C Smuts said the following:
â
We, as a nation,
valuing our unique heritage, should not allow (Table Mountain) to be
spoiled and dispoiled, and should look upon
it as among its most
sacred possessions, part not only of the soil, but of the soul of
South Africa. For centuries to come, while
civilisation lasts on this
subcontinent, this national monument should be maintained in all its
natural beauty and unique setting.
It should be symbolic of our
civilisation itself, and it should be our proud tradition to defend
it to the limit against all forces
of man or nature to disfigure it.â
[54] Ironically, this statement by
General Smuts was quoted by Mr J F Otto, the Director-General of the
Department of Water Affairs,
Forestry and the Environment, in a
speech made in October 1980 to an interim management committee for
Table Mountain and the Southern
Peninsula mountain chains, at a
meeting held under the auspices of that department. The management
committee had a number of subcommittees
and Mr P N Tomalin, the chief
planner of the Divisional Council of the Cape was a member of the
boundary subcommittee.
[55] This inactivity and lack of
concern in relation to the Muslim community and their cultural
heritage and religious beliefs,
and further, in regard to the
environment, by the predecessors of the respondents, insofar as this
case is concerned, stretches
at least as far back as 1957. In my
view, it does not matter that the Administrator was the legal
personality that made the decision
to approve the township. At that
time, portion 7 was within the jurisdiction of the Divisional
Council. Clearly, if portion 7 had
been of religious significance to
members of the White community and had held historical and cultural
significance for them, the
predecessors of the three respondents
would in all probability have been alert and prompt in either their
opposition to the proposed
township, or in the undoing of the
decision to approve it.
[56] In my view, it is not necessary
to engage in any further debate concerning the question of
unreasonable delay. I am willing
to accept, for present purposes, in
favour of Estates that there was an unreasonable delay commencing
shortly after the grant of
township approval in 1957.
[57] Before proceeding to the next leg
of the enquiry it is necessary to pause briefly to reflect on the
appropriate terminology.
As can be seen from the highlighted part of
the dictum from
Wolgroeiers
referred to in para 52 above, this court initially stated that in
exercising its discretion a court had to consider whether the
unreasonable delay âoor die hoof gesien behoort te wordâ. This
was repeated in
Setsokosane
at 87H. This phrase could be translated to mean âdisregardedâ or
âexcusedâ or âcondonedâ. This court has in subsequent
decisions repeatedly referred to the delay being condoned.
9
In my view, there is ultimately no substantive difference between
those expressions, and all amount to saying that a court has
a broad
discretion to be exercised in the light of all relevant facts.
[58] I now turn to deal with the
relevant factors in relation to the second leg of the enquiry,
namely, whether the delay should
be disregarded. It was submitted
before us on behalf of Estates that, when it purchased portion 7, it
relied on the fact of the
approved township. The following was said
in Oudekraal 1 at para 46:
â
The appellant does not
allege that it purchased the land in reliance on the fact that the
township had been established. On the
contrary, the deponent to the
founding affidavit suggests that it was the location of the land,
rather than the approval of the
township, that caused the land to be
purchased. At the time of the purchaseâ¦the deponentâs fatherâ¦held
the view that âland
is close to, or on the slopes of Table Mountain
is valuable land and should be acquired if and when possibleââ¦Nor
does the
deponentâs father appear to have had any intention of
developing the land in accordance with the approval that was granted
because
he was âalso of the view that the single residential grid
layout of the township on portion 7â¦had already become outdated
since
being approved.â It is difficult to see in those
circumstances in what way the appellant, or any other person for that
matter
(other than the functionaries who played a role in the
establishment process), can be said to have placed reliance on the
Administratorâs
approval in the time since it was granted.â
These findings are apposite.
[59] It is significant that it was Mr
Wiehahnâs practice to invest in land for the long term and to
develop it when it was the
optimum time to do so. Attendant upon this
is the risk that all long-term property investors take, namely, that
of changed market
conditions, social and political changes, changing
urban planning norms and strategies, shifting institutional
attitudes, new scientific
evidence and accumulating and incremental
new found wisdom.
[60] In the period between the
acquisition of portion 7 and 1996, Estates had tentative discussions
and interactions with at least
one contractor and at least one
potential co-developer. No proof has been supplied, however, to show
that there was any substantial
monetary outlay by Estates in this
regard. Although engineers submitted engineering services diagrams on
Estatesâ behalf in 1996,
it is also unclear whether this entailed
any expenditure.
[61] We were urged to consider the
loss in value of portion 7 in the event of a setting aside of the
Administratorâs approval.
As pointed out above, according to the
expert on behalf of Estates, the value of portion 7 with development
rights was estimated
at R570 m and R20 m without such rights. This of
course does not even take into consideration the potential profits in
the event
of a successful marketing of the erven in what would
potentially be the most exclusive of suburbs. It was submitted on
behalf of
Estates that, had it known of the problems that have now
surfaced, it would have invested the amount paid for portion 7
elsewhere
and its return on that investment would have been
considerably more than R20 m.
[62] There appears to be some
substance to the submission on behalf of the City that the
patrimonial loss that might be occasioned
by the Cityâs delay in
reviewing the Administratorâs decision, should not be calculated
with reference to the present market
value of portion 7 with
development rights, namely R570 m, but should be calculated in
accordance with the return on an investment
of £50 000 in
comparable property.
[63] Expert evidence was marshalled on
behalf of the respondents to show that the return of R20 m on £50
000 was an even better
return than would have materialised had the
latter amount been invested in comparable property in nearby Camps
Bay. In addition,
we were urged by the respondents to consider that
portion 7 had been acquired by Estates for a purchase consideration
less than
that paid for the property by Price. It is in fact evident
from a statement made by Mr Wiehahnâs father in a document before
us that the purchase of portion 7 from the deceasedâs estate
resulted in Estates acquiring the property not at a premium but at
a
discount.
[64] Whilst accepting that R20 m is
still a substantial return on an investment of £50 000, it
appears to me that it would
be churlish not to accept that Estates
will suffer some financial prejudice as a result of the respondentsâ
failure to act promptly.
However, the fact is that on any reckoning,
the return on its initial investment is substantial and this cannot
be disregarded.
[65] A further relevant factor in the
second leg of the enquiry is that the township approval was sought
without any disclosure
of the graves and of what must have been the
obvious significance of the site to scores of Cape Muslims. Even
though Price was
a British National and there is no evidence that he
had acquainted himself with the terrain, the fact remains that
township approval
was obtained without disclosure of material
information. At the very least, the professionals who had been
instructed by him to
submit the application for the approval of the
township were remiss in not supplying the necessary information.
Price ultimately
must bear the responsibility for the approval having
been obtained without proper disclosure.
[66] It is clear from Mr Wiehahnâs
founding affidavit in the first application in the Cape High Court
that he too sought to suppress
the presence and extent of the graves
and kramats on portion 7,
10
notwithstanding the full glare of publicity to which portion 7 was
exposed. His explanation, proffered in the present litigation
(at a
time when it was no longer possible to conceal that fact) that he had
denied the presence of the graves and kramats because
he had recently
undergone brain surgery and that his mental faculties must have been
affected thereby, lacks credibility. It discounts
the coherence and
emphatic nature of his founding affidavit and his positive statement
that the graves were located on other portions
of the farm.
Furthermore, it ignores the fact that he was assisted by attorneys
and other professionals and that they would in
all likelihood, in the
prevailing circumstances, have ensured that investigations were
properly conducted into the assertions by
interested and aggrieved
parties.
[67] However, even if one were to
accept his explanation for initially denying the presence of the
graves and the kramats, there
are other negative features in relation
to Mr Wiehahn. Subsequent to the public outcry and in exchanges with
officials representing
the City and with influential people,
including the African National Congress and representatives of the
Muslim community, Mr Wiehahn
sought to achieve a political
solution and, in the process, held out that he had development
approvals for the other portions of
Oudekraal. In the present case Mr
Wiehahn, despite his attention being repeatedly and emphatically
drawn to the fact, displays
insensitivity to the abhorrence felt by
Muslims for exhumation. As late as 9 March 2005, when he deposed to
his answering affidavit,
he stated the following:
â
The only other reason
advanced as to why the graves and shrines are located in Portion 7
pertains to âreligious peaceâ in the
mountain area. But such
religious peace may be obtained in a range of other natural
environments to which the shrines and graves
may be relocated. It can
also be preserved
in
situ
by
appropriate and sensitive development. That consideration accordingly
does not justify the relief sought in the present application.
I emphasize that I do not
in any way dispute the value and significance that these graves and
shrines hold for sectors of the Muslim
community. However, that value
need not necessarily be diminished by relocating the graves and
shrines to alternative sites or
protecting them where they are. That
is, however, a matter that can be discussed with the Muslim community
and its leaders at the
appropriate time.â
It is, however, clear from the
affidavits by experts and Muslim religious leaders in support of the
respondentsâ case that exhumation
is not a negotiable option.
[68] It was submitted on behalf of
Estates that the application brought by the respondents and in
particular SANPARKS, was no more
than a thinly disguised effort to
expropriate portion 7 without having to pay appropriate compensation.
It was argued that, if
this court were to set aside the
Administratorâs approval, it would have that effect. This, of
course, ignores the fact that
the three respondents were spurred into
action because of public opposition and pressure and that legal
advice from a number of
sources and court decisions are what
ultimately determined the litigation route up to this point.
Furthermore, this litigation
is not about expropriation and this
court should not speculate on future developments but should rather
devote itself to the task
at hand. In appropriate circumstances s 25
of the Constitution affords protection to property holders.
[69] We were exhorted to guard against
the emotive issues raised in this appeal and to seriously consider
whether, as counsel for
Estates put it, less invasive means could
result in a âwin-winâ situation for all interested parties. In
this regard we were
referred to the provisions of the Environment
Conservation Act 73 of 1999, the
National Environmental Management
Act 107 of 1998
, the Land Use Planning Ordinance 15 of 1985 and other
related legislation which, it was submitted, provided mechanisms for
the
accommodation of environmental, religious, cultural and heritage
concerns.
[70] It appears to me to be clear that
the entire area is regarded as sacred by Muslims. The full extent of
graves is as yet unknown.
In Oudekraal 1 this court stated
unequivocally that Estates is not entitled to proceed with the
development of the land in accordance
with the general plan
registered as part of the township approval process. This was because
the plan contemplates the development
of residences and roads on
various burial sites. In my view, there is no basis on which this
court can now engineer the âwin-winâ
situation postulated by
Estates. It is our task to exercise our discretion either in favour
of or against the application for review.
The fact that the present
development cannot continue as per the approved township plan as
already determined in Oudekraal 1 is
a significant factor to be
considered in the exercise of that discretion.
[71] The description of Table Mountain
and its surrounds set out at the commencement of this judgment,
including the nature of the
flora in the Park and the threatened
species of Coastal Renosterveld and its importance to the country and
humanity at large, is
obviously also a vital feature. Portion 7 is
situated on the uniquely beautiful western slopes of Table Mountain.
It fronts on
Victoria Drive, a scenic drive comparable to the most
exquisite drives anywhere in the world. It has been likened to the
Big Sur
Drive in San Francisco, California. It offers integrity of
scenery from mountain crest to sea, not easily found in such close
proximity
to major metropolitan areas elsewhere in the world. Its
aesthetic value heightens its value for tourism.
[72] The momentous change brought
about by the advent of constitutional democracy in our country is a
further important factor.
In
Amod
v Multilateral Vehicle Accidents Fund
1999 (4) SA 1319
(SCA) Mahomed CJ, in dealing with the right of a
Muslim widow to compensation from the Fund, had regard to the fact
that, previously,
marriages solemnised in terms of Islamic law were
held not to be deserving of legal protection. He contrasted this with
the position
of the recognition of marriages solemnised according to
one faith or philosophy â marriages solemnised in church by a
marriage
officer or civil marriages concluded in terms of prevailing
law. The following was stated:
â
This is an untenable
basis for the determination of the
boni
mores
of society. It is inconsistent with the new ethos of tolerance,
pluralism and religious freedom which had consolidated itself in
the
community even before the formal adoption of the interim Constitution
on 22 December 1993. The new ethos had already begun
in 1989 with the
publication of the report on Group and Human Rights by the South
African Law Commission, recommending repeal of
all legislation
inconsistent with the negotiated bill of fundamental rights; it
accelerated with the speech of the former State
President on 2
February 1990 and the unbanning and the visibility of the previously
prohibited political movements and finally
became irreversible with
the commencement and conclusion of negotiations at CODESA from 1991
until 1993. The new ethos was firmly
in place when the cause of
action in the present matter arose on 25 July 1993.â
[73] It is not insignificant that
insensitivity to the religious rights and cultural practices of
persons other than those of the
dominant political group has in the
past regrettably received judicial sanction. The Cape Province was
not an exception. Indeed,
in
Bronn
v Fritz Bronnâs Executors and others
11
the following was said by
one judge:
â
I trust that in a
short timeâ¦the sacred institution of marriage will be brought by
some well devised law within the reach of the
people of this Colony
who have not yet embraced the greater blessings which they would
obtain by Christian marriage, by which I
mean of course marriage to
one wife, which, among the
heathen
ought to be sanctioned and encouraged by law. It is, even amongst
them, an institution of a divine character â a glimmer of the
light
once shining in Paradise, which is still vouchsafed to them.â
and this by another:
â
Equally so with the
Mohammedans. If what they call marriage is not what we call marriage,
in its essential requirements, but what
the jurisprudence even of
Christian Rome under the Emperors, up to the time of Leo the
Philosopher,
would
call a recognised concubinage â we cannot, because of the ambiguity
of the expression, make that marriage which is a wholly different
relation.â
[74] In the
Amod
case, Mahomed CJ indicated
the manner in which our law should evolve. At 1319-1330B the
following appears:
â
This important shift
in the identifiable
boni
mores
of
the community must also manifest itself in a corresponding evolution
in the relevant parameters of application in this area.
âThe common
law is not to be trapped within the limitations of its past.â If it
does not do this it would risk losing the virility,
relevance and
creativity which it needs to retain its legitimacy and effectiveness
in the resolution of conflict between and in
the pursuit of justice
among the citizens of a democratic society. For this reason the
common law constantly evolves to accommodate
changing values and new
needs.â
[75] The right to exercise oneâs
religion and culture, the recognition of the value of diversity and
the obligation to be tolerant
of the views and beliefs of others is
now enshrined in the Bill of Rights. Section 15 of the Constitution
guarantees everyone the
right to freedom of conscience, religion,
thought, belief and opinion. Section 31(1) of the Constitution
provides:
â
(1) Persons belonging
to a cultural, religious or linguistic community may not be denied
the right, with other members of that community
â
(a) to enjoy their
culture, practise their religion and use their language; and
(b) to form, join and
maintain cultural, religious and linguistic associations and other
organs of civil society.â
[76] Furthermore, the right to have
the environment protected for the benefit of present and future
generations through reasonable
and other measures that prevent
pollution and ecological degradation, promote conservation, and
secure ecologically sustainable
development and use of natural
resources while promoting justifiable economic and social development
is also provided for in s
24 of the Constitution.
[77] Regrettably, humankind has not
always been aware of the importance of treading softly on this
planet. Environmental concerns
have only recently begun to receive
the necessary attention and, even then, humankind is not always
sufficiently aware of the environmental
perils consequent upon deeds
or inaction. In
Fuel
Retailers Association v Director-General: Environmental Management
and others
2007 (6) SA 4
(CC) the Constitutional Court referred with approval to the following
dictum of the International Court of Justice in
GabÄ
Í
kovo-Nagymaros
Project (Hungary/Slovakia)
37
ILM
162 (1998) 200 in para 140:
â
Throughout the ages,
mankind has, for economic and other reasons, constantly interfered
with nature. In the past, this was often
done without consideration
of the effects upon the environment. Owing to new scientific insights
and to a growing awareness of
the risks for mankind â for present
and future generations â of pursuit of such interventions at an
unconsidered and unabated
pace, new norms and standards have been
developed, set forth in a great number of instruments during the last
two decades. Such
new norms have to be taken into consideration, and
such new standards given proper weight, not only when States
contemplate new
activities but also when continuing with activities
begun in the past. This need to reconcile economic development with
protection
of the environment is aptly expressed in the concept of
sustainable development.â
[78] Of course Estatesâ property
rights deserve recognition. But, property rights have never been
absolute. Estates has not been
deprived of its property. Nor is
portion 7 valueless without development rights. As pointed out above,
this property, even without
development rights, has considerable
value. Estatesâ concerns in relation to future expropriation and
adequate compensation can
be met by resort to its rights set out in s
25 of the Constitution referred to earlier.
[79] It is true that the degree of
delay in this case is unprecedented. The other circumstances are,
however, equally unique. The
ecology of the area, as has been
described, is unequalled. Moreover, the entire area is regarded as
sacred by a formerly marginalised
section of South African society.
[80] I am mindful of the public
interest in the finality of administrative decisions and acts. The
other side of the coin is the
public interest in portion 7 and its
surrounding areas. In
Ras
Behari Lal and others v The King Emperor
[1933] All ER Rep 723
[PC] the Privy Council set aside the
convictions and allied death sentences as well as the sentences of
imprisonment imposed by
the High Court of Patna on the basis that one
of the jurors did not understand English, the
language in which some of the evidence
was adduced, the addresses of counsel were made and the judgment was
delivered. Lord Atkin
said the following:
â
It would be remarkable
indeed, if what may be âa scandal and perversion of justiceâ may
be prevented during the trial, but after
it has taken effect the
courts are powerless to interfere.
Finality
is a good thing, but justice is a better
.â
(My emphasis).
[81] I agree with the court below that
the result in this case should be driven by the principle of
legality. In
Fedsure Life
Assurance Ltd and others v Greater Johannesburg Transitional
Metropolitan Council and others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para 56 the following is stated:
â
[A] local government
may only act within the powers lawfully conferred upon it. There is
nothing startling in this proposition â
it is a fundamental
principle of the rule of law, recognised widely, that the exercise of
public power is only legitimate where
lawful. The rule of law â to
the extent at least that it expresses this principle of legality â
is generally understood to
be a fundamental principle of
constitutional law.â
[82] In the present case it is in my
view possible to correct the monstrous wrongs and injustices of the
past without doing violence
to the property rights of Estates. It
appears to me that, in the totality of the circumstances referred to
above, to incline in
favour of the respondents would be to exercise
our discretion so as to promote the spirit, purport and objects of
the Bill of Rights.
In the circumstances of this case, by ensuring
that an invalid decision does not stand, the principle of legality
and the interests
of justice will be advanced. For all the reasons
set out above, the conclusion reached by the court below cannot be
faulted and
accordingly the appeal must fail.
[83] Costs is the remaining issue. The
court below was generous in the cost order it made. The City was
afforded the costs of three
counsel and the other two respondents
were each afforded the costs of two counsel. It was submitted on
behalf of Estates that the
order of the court below should be set
aside and substituted with no order as to costs on the basis that the
opposition to the
application was reasonable and justified. It was
submitted in the alternative that
all of the respondents should not be
entitled to the costs of more than one legal team consisting of two
counsel.
[84] Costs is a matter within the
discretion of a court. The court below in para 48 set out in detail
its reasoning for the order
made by it. It took into account the
complexity of the issues and the voluminous record. It reasoned that
each of the respondents
were different statutory organisations and
operated in different spheres and that the use of three separate
teams was justified.
There appears to me to be no basis upon which to
interfere with the costs order by the court below.
[85] Before us the respondents were
represented by three legal teams even though the first and third
respondents presented a consolidated
set of heads. The City was
represented by three counsel, SANPARKS by two and SAHRA by one.
Subsequent to the decision in the court
below, the legal issues had
crystallised and the respondents had made common cause. Having regard
to the history of the protracted
litigation, the nature and extent of
the case and documentation all of which was well known to everyone,
as were the relevant parts
of the record. In my view, the alternative
submission on behalf of the appellant, insofar as they pertained to
costs in the present
appeal, are justified in relation to the City
and SANPARKS, who made common cause. SAHRA acted separately but
should only recover
the costs of one counsel. That means that the
appellant will have to pay the costs of three counsel which matches
the size of its
own legal team.
[86] The following order is made:
1. The appeal is dismissed with costs.
2. The costs in paragraph 1 will
include in the case of the first and third respondents jointly the
costs of two counsel as if they
had been represented collectively by
two counsel and in the case of the second respondent the costs of one
counsel.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: A Binns-Ward SC
P
Farlam
K
Pillay
Instructed
by
Miltons
Matsemela Inc Table View
Webbers
Bloemfontein
For
First Respondent: M Seligson SC
I
J Muller SC
M
Edmunds
Instructed
by
Fairbridge
Arderne & Lawton Cape Town
McIntyre
& Van der Post Bloemfontein
For
Second Respondent: A M Breitenbach SC
Instructed
by
Herold
Gie & Broadhead Cape Town
Pike
& Alberts Bloemfontein
For
Third Respondent: R O Petersen SC
E
W Fagan SC
Instructed
by
Edward
Nathan Sonnenbergs Cape Town
Lovius
Bloch Bloemfontein
1
It was established in terms of s 5 of the National Parks Act 57 of
1976, with effect from April 1976. The National Parks Act
was
repealed on 1 November 2004 by
s 90(1)
of the
National Environmental
Management: Protected Areas Act 57 of 2003
, but SANPARKSâ
continued existence was provided for in
s 54
of the latter Act.
2
The Cape Mazaar Society was founded in 1982 to protect and preserve
kramats and Muslim graves in the Western Cape.
3
At the time
of the approval of the township, the Cape Divisional Council, was
the authority within whose jurisdiction portion
7 was located. It
was
a predecessor of
the CMC. The City ultimately was a successor to the CMC.
4
It is in fact common cause that there are three kramats on portion
7.
5
Reported as
Oudekraal
Estates (Pty) Ltd v The City of Cape Town and Others
2004
(6) SA 222
(SCA).
6
See para 46.
7
Harnaker v Minister of the
Interior
1965 (1) SA 372
(C) at 380B-381D;
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41;
Mamabolo
v Rustenburg Regional Local Council
[2000] ZASCA 133
;
2001 (1) SA 135
(SCA) para 13;
Associated
Institutions Pension Fund and others v Van Zyl and others
2005
(2) SA 302
(SCA), para 46.
8
See para 32 above, referring to para 46 of the judgment in Oudekraal
1.
9
In this regard see
Mamabolo
v Rustenburg Regional Local Council op cit
141I-142A;
Associated Institutions Pension Fund v Van Zyl op cit
at 321G-H;
Gqwetha v
Transkei Development Corporation Ltd and others
2006
(2) SA 603
(SCA) at 609G-I;
10
In his founding affidavit, Mr Wiehahn stated that graves were
present on other portions on Oudekraal but not on portion 7.
11
(
1860)
3 Searle 313
at 318, 320-321 and 333.