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[2017] ZAGPPHC 1
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Van Wyk and Others v Topaz Sky Trading 146 (Pty) Ltd and Others (50235/15) [2017] ZAGPPHC 1 (3 January 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
Case
No. 50235/15
Reportable:
YES
Of
interest to other judges: YES
Revised.
3/1/2017
MARIE-LOUISE
VAN
WYK
First
Applicant
JOHANN
VAN
WYK
Second
Applicant
JOHRHEMAR
ARABIAN
STUD
Third
Applicant
and
TOPAZ
SKY TRADING 146 (PTY)
LTD
First
Respondent
REVELINE
PROPERTIES 8
CC
Second
Respondent
THE
MINISTER OF
AGRICULTURE
Third
Respondent
JUDGMENT
MAIER-FRAWLEY
AJ
Introduction
1.
This matter concerns an agreement of sale, subject to a suspensive
condition, of a portion of agricultural land, which was concluded
without the Minister of Agriculture's (the Minister) consent. The
owner of a farm sold an undivided portion of farmland subject
to the
suspensive condition of the Minister's consent being obtained for the
proposed subdivision of the land. At the time of the
agreement, the
farm was not divided into portions nor had the consent of the
Minister for the sale as required by section 3{e){i)
of the
Subdivision of Agricultural Land Act No. 70 of 1970 (the Act), been
obtained.
Background
2.
The first and second applicants have been farming and breeding
Arabian horses for over 30 years on their family farm located
in the
district of Klerksdorp, being Portion 19 of the farm Reebokfontein
Wes 393 Registration Division l.P., North West Province
(the farm).
During the course of their farming activities they established an
Arabian Horse Show and Breeding Stud known as the
'Johrhemar Arabian
Stud', which they conducted in partnership on the farm. In 2008 they
resolved to reduce the size of the Stud,
subdivide the farm, move the
Stud to a lower portion of the farm and to sell the larger subdivided
portion to provide for their
retirement and future income.
3.
On 30 April 2008, the first respondent purchased the larger undivided
portion of the farm from the first applicant as registered
owner for
a purchase price of R20 million (the sale). At the time of the sale,
no application for the subdivision of the farm had
been made to the
Minister, as envisaged in section 4 of the Act. In the deed of sale,
the property sold was described as a certain
Portion A of the
proposed subdivision of Portion 19 of the farm. The sale was subject
to the suspensive condition that the subdivision
be approved. The
sale included a sale by the Johrhemar Arabian Stud (third applicant)
of its movable property on the farm including
all game thereon. The
sale was a joint and indivisible one in respect of immovable and
movable property.
4.
The subdivision of Portion 19 of the farm into 'Portion 43 (a portion
of Portion19)', being the larger portion of the farm that
was
purchased by the first respondent, and the remainder of Portion 19,
being the smaller portion of the farm that was retained
in ownership
by the first applicant,
,
was allegedly approved by the local Municipality
[1]
according to the applicants' initial version, during November 2009,
whereafter the subdivided portion purchased became known as
Portion
43 (a portion of Portion 19) of the farm Reebokfontein Wes 393
Registration Division l.P., North West Province (Portion
43) and the
subdivided portion retained became known as the Remainder of Portion
19 of the farm Reebokfontein Wes 393 Registration
Division l.P.,North
West Province.
5.
The first respondent paid a non-refundable deposit of R1 million and
a further amount of R2.5 million against registration of
transfer of
the property into its name in accordance with the provisions of the
sale agreement. The first respondent, however,
failed to pay the
balance of the purchase price in terms of the agreement and
repudiated its remaining obligations under the sale
agreement as a
result of which the first applicant purported to cancel the sale
agreement on 21 April 2005.
Parties
6.
The first applicant is the registered owner of the Remainder of
Portion 19 of the farm. The first applicant is cited both in
her
capacity as seller of the immovable property and as member of the
third applicant.
7.
The second applicant is cited in his capacity as member of the third
applicant.
8.
The first respondent is the purchaser under the sale agreement and
the entity in whose name Portion 43 is currently registered.
It is
also the applicant in the counter-application.
9.
The second respondent is the entity to which the first respondent
granted a bond over the property purchased in order to raise
funds.
The second respondent is cited as an interested party and no relief
is sought against it by the applicants. The second respondent
has not
opposed the application or the counter-application.
10.
The third respondent was joined to the proceedings at the instance of
the first respondent by virtue of his interest in the
proceedings as
the official designated in terms of the Act to consider whether a
subdivision of agricultural land
[2]
falls to be authorised or not..
Initial
relief sought in Application and Counter-Application
11.
The applicants seek an order for the re-transfer of Portion 43 into
the name of the first applicant consequent upon the cancellation
of
the sale agreement, including an order for:
11.1. cancellation of
mortgage bonds registered over the property;
11.2. signing of transfer
documents by representatives of the first respondent;
11.3. declaring 'insofar
as may be necessary' that all game and movables on the property
revert back to the third applicant in ownership;
11.4. costs against such
party(s) opposing the application jointly and severally.
12.
The first respondent opposes the application and counter-applies for
an order to declare the deed of sale null and void
ab initio
for
contravening the provisions of the Subdivision of Agricultural Land
Act 70 of 1970 ("the Act"), including an order
for:
12.1. a refund by the
applicants to the first respondent of the amount of R3.5 million paid
by the first respondent pursuant to
the deed of sale;
12.2. that the refund
ordered be made
pari passu
with the re-transfer of Portion 43
from the first respondent to the first applicant;
12.3. costs against such
party(s) opposing the application jointly and severally.
13.
The third respondent indicated in his answering affidavit (delivered
belatedly on 16 November 2016) that he does not oppose
the relief
claimed in the Notice of Motion or in the Counter-Application. The
third respondent however contended in his written
heads of argument
that the relief sought in the counter-application should be granted
and that the main application should be dismissed
with costs.
Events
preceding the hearing of the Application and Counter-Application
14.
It was initially common cause
[3]
between the parties that the farm comprised agricultural land, which
the third respondent had not excluded from the provisions
of the Act
by notice published in the Government Gazette of the Republic.
[4]
In their replying affidavits however, the applicants contended that
the farm did not comprise agricultural land
[5]
on grounds that it had been excluded from the provisions of the Act
by prior agreement between the National Department of Agriculture,
the Department of Development, Local Government and Housing, North
West Province, and the local Municipality prior to the sale
agreement
on 30 April 2008.
The
legal challenge by First and Third Respondents
15.
The first and third respondents (the respondents) contended that the
sale of an undivided portion of the farm as well as the
subdivision
of Portion 19 to form Portion 43 of the farm were invalid and void
ab
initio
for
lack of compliance with the provisions of section 3 of the Act, in
that written approval for the subdivision of Portion 19 of
the farm
and for the sale of an undivided portion of the farm had not been
obtained from the third respondent or his delegate in
the department
before the sale agreement was concluded and before the subdivision
was registered
[6]
. The
respondents further contended that the registration of the two
subdivided portions of the farm in the Deeds office as well
as the
registration of the transfer of ownership in respect of Portion 43 of
the farm to the first respondent by the Registrar
of Deeds was also
invalid.
16.
The first respondent challenged the validity of the sale on similar
grounds in its answering affidavit.
17.
The critical provisions of the Act are contained in sections 1,3 and
4 of the Act.
18.
The definition of 'agricultural land' is contained in section 1of the
Act. Section 1 reads:
"
'agricultural
land'
means any land, except-
(a) land situated in the
area of jurisdiction of a municipal council, city council, town
council...,but excluding any such land
declared by the Minister after
consultation with the executive committee concerned and by notice in
the Gazette to be agricultural
land for the purposes of this Act;
(f) land which the
Minister after consultation with the executive committee concerned
and by notice in the Gazette excludes from
the provisions of this
Act;
Provided that the land
situated in the area of jurisdiction of a transitional council a
defined in section 1of the Local Government
Transition Act 1993 (Act
no. 209 of 1993), which immediately prior to the first election of
the members of such transitional council
was classified as
agricultural land, shall remain classified as
such;
"
19.
The requirements for any subdivision of agricultural land are
contained in section 3 of the Act. Section 3 reads:
"
Prohibition of
certain actions regarding agricultural land
- Subject to the
provisions of section 2 -
(a) agricultural land
shall not be subdivided;
…
(3) (i) no portion of
agricultural land, whether surveyed or not, and whether there is any
building thereon or not, shall be sold
or advertised for sale, except
for the purposes of a mine...;and
…
unless the Minister has
consented in writing.
20.
Section 4 of the Act determines that any application for the
Minister's consent in terms of section 3 thereof shall be made
by the
owner of the land concerned. Section 4 reads:
"4. Application for
consent of Minister, and imposition, enforcement or withdrawal of
conditions by him -
(1)(a) Any
application for the consent of the Minister for the purposes of
section 3 shall-
(i) in the case where any
act referred to in paragraphs (a) to (e) of that section is
contemplated be made by the owner of the land
concerned;
…
(2) The Minister may in
his discretion refuse or-
(a) on such conditions,
including conditions as to the purpose or manner in which the land in
question may be used, as he deems
fit, grant such application;
…
"
21.
The legal challenge made by the first and third respondents holds
merit. It is trite that the requirements of the Act are peremptory
and that the sale of a portion of agricultural land
[7]
and the subdivision of agricultural land, without Ministerial
consent, contrary to the provisions of the Act, result in the sale
agreement being null and void.
[8]
The third respondent may not and cannot waive compliance with
imperative statutory requirements and the consequences which follow
upon non-compliance, as such
requirements
were laid down in the national interest.
[9]
22.
The purpose of the Act has been discussed in a number of
decisions.
[10]
In
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008] ZACC 12
;
2009
(1) SA 337
(CC) at para 13, the essential purpose of the Act was
identified 'as a measure by which the legislature sought in the
national
interest to prevent the fragmentation of agricultural land
into small uneconomic units. In order to achieve this purpose the
legislature
curtailed the common-law right of landowners to subdivide
their agricultural property. It imposed the requirement of the
Minister's
written consent as a prerequisite for subdivision which
would have the unwanted result of uneconomic fragmentation'.
23.
In
Adlem and Another v Arlow
2013 (3) SA 1SCA
para 12, the
following was stated:
'...what is sought to be
controlled is not both the subdivision and also the use of
agricultural land, but the subdivision and,
in connection therewith,
the use of such land. The Act does not confer on the minister the
power to control the use of agricultural
land absent a contemplated
subdivision, whether in the literal sense as envisaged in s3(a) and
(3)(i) or in the extended sense
as envisaged in s 3(d) (a lease for
10 years or longer) and 3(e)(ii) (a right for 10 years or longer)'
24.
The Minister's power to control the sale of agricultural land is
therefore limited to a contemplated
subdivision
thereof. If there is no proposed subdivision of agricultural land,
the minister does not have any control of the sale
of such land.
Applicants concede
sale agreement void ab initio
25.
After receipt of the third respondent's answering affidavit and
written heads of argument and shortly before the hearing of
the
application, the applicants filed a supplementary practise note in
which they indicated,
inter alia,
that 'It is now common cause
that, pursuant to the Third Respondent's answering affidavit and
having regard to the state of the
current applicable statutory
regimes and as applied by the courts, that the deed of sale was null
and void ab initio. The remaining
dispute is whether re-transfer of
the immovable property into the name of the First applicant should
now take place
pari passu
with the return of the initial part
of the purchase price of R3,5 million paid by the First Respondent or
whether such repayment
should stand over until finalisation of a
damages action separately launched by the Applicants and in respect
of which a partial
judgment had already been obtained. The Third
Respondent is not a party to this dispute. '
Events
following applicants 'concession
Applicant 's proposed
draft order
26.
The applicants indicated that they would seek an order in the
following terms at the hearing of the matter:
"1. The deed of sale
entered into between the First Respondent and the First Applicant
dated 30 April 2008 is declared null
and void
ab initio.
2. The First Respondent
is ordered to take all relevant steps to see to the transfer of the
property known as a portion of Portion
43 (a portion of Portion 19)
of the farm Reebokfontein West 393 Registration Division IP North
West Province back into the name
of the First Applicant.
3. The obligation to
re-transfer shall include the obligation to see to the cancellation
of the existing bonds over the property
and the payment of the
necessary rates and taxes and transfer duties in respect of the
aforesaid transfer by the First Respondent.
4. Should the directors
of the First Respondent fail to sign any required or prescribed
documents or affidavits or fail to take
the necessary resolutions to
effect the aforesaid transfer, the Sheriff of the Court of the
District of Matlosana is authorised
and ordered to sign all such
documents.
5. The Applicants are
ordered jointly and severally to refund the First Respondent the
amount of R3,5 million paid pursuant to the
deed of sale.
6. The payment of the
amount of R3,5 million referred to above or such portion thereof
which has not been extinguished by the Applicants'
claim in case no.
28307/2016 is postponed
sine die
and to be paid after
finalisation of that action.
7. The First Respondent
is ordered to pay the Applicants' costs of the application. "
27.
Pursuant to the delivery of the applicant's proposed draft order, the
first and third respondents availed themselves of the
opportunity to
file supplementary practise notes and heads of argument.
28.
In his supplementary practise note, the third respondent indicated
that he had reconsidered his position in respect of the relief
claimed by applicants and by the first respondent, has decided to
oppose the relief claimed by the applicants and that he intends
to
move for an order: condoning the late filing of his answering
affidavit, practise note and heads of Argument; declaring the
deed of
sale invalid and void
ab initio;
declaring the subdivision of
Portion 19 of the farm and the Remainder of Portion 19 of the farm to
be invalid and that the applicants
be ordered to pay the Third
Respondent's costs.
29.
The third respondent specified the following issues as remaining in
dispute between the third respondent and the applicants:
29.1. Whether the
subdivision of Portion 19 of the farm Reebokfontein Wes 393 IP to
form Portion 43 of the farm Reebokfontein Wes
393 IP was invalid;
29.2. Whether the
registration of the transfer of ownership of Portion 43 of the farm
Reebokfontein Wes 393 IP was invalid; and
29.3. Whether the Court
should order that first respondent take steps to have Portion 43 of
the farm Reebokfontein Wes 393 IP transferred
back to first
applicant.
30.
The first respondent indicated in its supplementary practise note
that the following issues remain to be decided:
30.1. "Despite the
concession, the Court has to be convinced that the farm constitutes
'agricultural land'
for purposes of the Subdivision of
Agricultural Land Act 70 of 1970 ("SALA") and that the deed
of sale offends its provisions;
30.2. The issue whether
the subdivision was approved by the Third Respondent in terms of the
provisions of SALA;
30.3. The appropriate
remedy following a finding that the deed of sale and subdivision
offend against the provisions of SALA;
30.4. The appropriate
process to be followed in undoing the unlawful subdivision and
transfer;
30.5. The possible
postponement of the First Respondent's claims for repayment and
retransfer."
First and third
respondents proposed draft orders
31.
The first and third respondents each submitted a draft order in
respect of the relief to be sought at the hearing.
32.
In terms of the third respondent's proposed draft, an order is sought
in the following terms:
"1. The late filing
of the First Respondent's set of heads of argument is condoned;
2. The late filing of the
Third Respondent's answering affidavit and heads of argument be
condoned;
3. The deed of sale
entered into between the First Applicant and the First Respondent,
dated 20 April 2008, in respect of a Portion
of Portion 19 of the
Farm Reebokfontein Wes 393, Registration Division 1.P., North-West
Province is hereby declared null and void
ab initio
and the
subdivision pursuant thereto is also hereby declared invalid;
4. Prayers 2 and 3 of the
First Respondent's counter-application are postponed
sine die;
5. The Third Respondent
is ordered to, within 60 (sixty) days hereof, make application for an
order:
5.1. That the invalid
subdivision of Portion 19 of the Farm Reebokfontein Wes No. 393,
Registration Division l.P., North-West Province
into portion 43 (a
Portion of Portion 19) and the Remaining Extent of the said Farm, be
set aside;
5.2. That the subdivision
diagram depicting Portion 43 (a Portion of Portion 19) of the Farm
Reebokfontein Wes No. 393, Registration
Division 1.P., North-West
Province as approved by the Surveyor-General ,be cancelled;
5.3. That the title deed
purporting to transfer ownership of Portion 43 (a Portion of Portion
19) of the Farm Reebokfontein Wes
No. 393, Registration Division
l.P., North-West Province to the First respondent and all bonds
registered there against, be cancelled;
5.4. That the Registrar
of Deeds be ordered to cancel the endorsements on the title deed of
Portion 19 of the Farm Reebokfontein
Wes No. 393, Registration
Division 1.P., North-West Province depicting the subdivision thereof
and the transfer of Portion 43 (a
Portion of Portion 19) of the said
Farm therefrom; and
5.5. Costs.
6. The Applicants'
application is dismissed with costs, such costs to include the costs
of the First and Third Respondents;
7. The Applicants are
ordered to pay the First Respondent's costs in the counter-
application. "
33.
The first respondent's proposed draft order is in similar terms, save
that it seeks that the third respondent be ordered to,
within 60
(sixty) days of the order, make application for an order (in slightly
different phraseology):
"5.1. That the
subdivision diagram SG 1212/2009 depicting Portion 43 (a Portion of
Portion 19) of the Farm Reebokfontein
Wes No. 393, Registration
Division l.P., North-West Province("the property") be
cancelled;
5.2. That certificate of
registered title T01209310/2009 be cancelled;
5.3. The deed of transfer
T12094/2014 in respect of the property and all bonds registered there
against be cancelled; and
5.4. That upon
cancellation of deed of transfer T12094/2010,deed of transfer
Tl3146/1979 shall be revived to the extent of such
cancellation and
the Registrar of Deeds shall cancel the relevant endorsement thereon
evidencing the registration of the cancelled
title deed."
Condonation
34.
The first respondent seeks condonation for the late filing of its
heads of argument. These were received by me only on Wednesday
the
23'd November 2016, some 3 court days before the commencement of my
opposed motion court roll on 28 November 2016.
35.
The third respondent seeks condonation for the late filing of his
answering affidavit as well as for the late filing of his
practise
note and heads of argument. The third respondent's answering
affidavit was delivered to the parties on 17 November 2016.
However,
the answering affidavit, practise note and heads of argument were
only received by me on 23 November 2016.
36.
The applicants did not oppose the applications for condonation. I do
not intend to set out the grounds for condonation relied
on by the
first and third respondents respectively, save to state that I am
satisfied that each made out a proper case for condonation,
both in
fact and in law, for the grant of condonation.
Evaluation
of the remaining triable issues
Whether
the subdivision was invalid
37.
The first applicant's pleaded case was premised upon the conclusion
of a valid sale agreement. The applicants contended that
Portion 19
of the farm had been excluded from the provisions of the Act by
agreement with the department of Agriculture, therefore
obviating the
need for Ministerial consent to the proposed subdivision of Portion
19 of the farm
[11]
and the
sale
[12]
of an undivided
portion thereof to the first respondent.
38.
It was apparent from the papers that:
38.1. Absent the Minister
authorising the exclusion of the farm from the provisions of the Act,
Portion 19 of the farm comprised
agricultural land
[13]
and as such would remain subject to the requirements of section 3 of
the Act;
38.2. The Minister had
not by notice published in the Government Gazette, excluded the said
property from the provisions of the
Act
[14]
and
38.3. Albeit that the
local authority had consented to the proposed subdivision of the
farm, no application as envisaged in section
4 of the Act was ever
made to the Minister or his nominated delegate(s) in the Department
of Agriculture for written approval of
the proposed subdivision of
portion 19 of the farm, nor was such consent ever furnished by the
Minister or his nominated delegate
prior to the sale of an undivided
portion of the farm to the first respondent.
39.
The applicants relied on factual allegations in support of the
conclusion that the Portion 19 of the farm was excluded from
the
provisions of the Act as contained in:
39.1. correspondence
exchanged between the local municipality
[15]
and various national, provincial and local government structures
confirming a 'gentleman's agreement' allegedly concluded between
the
first applicant's land surveyor, the local municipality and the
National Department of Agriculture to the effect that the property
would be excluded from the provisions of the Act; and
39.2. a letter from a
representative in the department of agriculture in which he expressed
the view that because the farm was included
into the Town Planning
Scheme of Klerksdorp, it was therefore no longer subject to the
provisions of the Act.
40.
The third respondent dealt comprehensively in his answering affidavit
with all the facts why the sale of a portion of Portion
19 of the
farm was void
ab initio
as well as why the subdivision of
Portion 19 to form Portion 43 (a portion of Portion 19 of the farm)
was invalid. In my view, the
factual allegations relied on by the
applicants in support of their pleaded case were comprehensively
refuted by way of uncontestible
evidence tendered by the third
respondent in his answering affidavit.
41.
The first respondent likewise dealt comprehensively with the legal
position pertaining to the functions, powers and autonomy
of
the national, provincial and local spheres of Government, as
delineated in section 40 of the Constitution
[16]
and in particular, the powers of municipalities as provided in
section 156(1) of the Constitution.
[17]
The executive authority of municipalities is limited to functional
areas listed in Part B of Schedules 4 and 5 of the Constitution
and
it is not
exclusive
executive authority See
Johannesburg
Metropolitan Municipality v
Gauteng
Development Tribunal and others
2008{4)SA
572 (W) at paras 48 and 49.
42.
At the time of the conclusion of the deed of sale on 30 April 2008
the farm was located within the municipal area of the Matlosana
Local
Municipality (the municipality). The applicants also sought to
contend that the farm fell within the municipality's urban
edge and
by virtue of that fact, was excluded from the definition of
'agricultural land'
in the Act, and therefore not subject to
the requirement of the Minister's consent to its subdivision in terms
of section 3 of the
Act.
43.
The first respondent submitted that the fact that a municipality
delineates an urban edge as indicated on the Spatial Development
Framework of the municipality that includes
'agricultural
land'
(as
defined in section 1of the Act) within such delineation, does not
result in agricultural land being removed from the ambit of
the Act
and hence the Minister's control over its subdivision.
[18]
44.
The submission has merit. Whilst the authority to determine an urban
edge is a constitutional prerogative of a municipality
(and not the
Minister),
[19]
when regard is
had to the provisions of Municipal Planning Regulations
[20]
,
particularly, Regulations 2(4) (a)-(c) and 2(4)(i) as well as the
purpose of a municipality's Integrated Development Plan,
[21]
it is apparent that a municipality's spatial development framework
and the urban edge forming part of it is intended as a statutory
planning instrument that binds a municipality when it considers
planning applications, such as
inter
alia,
applications
for township development. In
Wary
Holdings (Pty) Ltd v
Stalwo
(Pty) Ltd and another
[2008] ZACC 12
;
2009
(1) SA 337
(CC) the court held that the enhanced status of
municipalities and the fact that municipal ordinances accorded them
various powers,
including
inter
alia,
those
of planning, zoning and rezoning of land, was not a ground for
ascribing to the Legislature the intention that national control
over
'agricultural land' through the Act was a thing of the past.
45.
As indicated earlier, the applicants conceded that the deed of sale
was invalid and void
ab initio.
This concession could only
have been made on the basis that there was a failure to comply with
section 3 of the Act, bearing in
mind that the land was 'agricultural
land' (as defined in section 1of the Act) which had not been excluded
from the provisions
of the Act by notice published in the Gazette.
46.
The concession was correctly made as earlier revealed. That being so,
there can certainly no longer be any dispute or
/is
between
the parties on whether or not the land constituted agricultural land
(as defined in the Act) or whether or not the subdivision
was
invalid.
47.
The underlying question of law at issue, namely, the mandatory
requirements of publication in the Gazette of notice
[22]
of any exclusion of agricultural land from the provisions of the Act
in section 1(f) of the Act and Ministerial consent in terms
of
section 3 of the Act to any subdivision of 'agricultural land' (as
defined in section 1of the Act), has long been established
by
judicial precedent
[23]
and
requires no restatement.
Whether the
registration of transfer of ownership of Portion 43 of the farm was
invalid
48.
The third respondent submits that the invalidity of the sale
agreement carries the consequence that the registration of the
two
subdivided portions of Portion 19 in the Deeds Office as well as the
registration of the transfer of ownership in respect of
Portion 43 of
the farm to the first respondent by the Registrar of Deeds are
likewise invalid.
49.
When regard is had to the main purpose of the Act, namely, to prevent
the fragmentation of agricultural land by the subdivision
thereof
into uneconomic units
[24]
and
that it was the intention of the legislature to accord the minister
wide-ranging and flexible powers of regulation and control
under the
provisions of section 4 of the Act in order to achieve the purpose of
the Act
[25]
it follows that
the substantive validity of the sale and subdivision of the farm is a
necessary precondition for the validity of
consequent acts such as
registration by the Registrar of Deeds. Since the sale agreement is
void
ab
initio,
therefore
all acts performed on the basis that the deed of sale was valid and
all acts that followed to give effect to it, will
be of no force and
effect. Stated differently, if the first act is declared invalid then
a second act which depends for its validity
on the first act must be
invalid as the legal foundation for its performance no longer
exists.
[26]
The effect of such
an order is retrospective.
[27]
The acts which were performed to give effect to the invalid sale
agreement include the subdivision of Portion 19 to form Portion
43 (a
portion of Portion 19) of the farm and the Remainder of Portion 19 of
the farm, and the registration of transfer of ownership
of Portion 43
of the farm from the first applicant to the first respondent.
Should Portion 43 of
the farm be transferred back to the First Applicant in these
proceedings?
50.
As pointed out in his supplementary heads of argument, the third
respondent has no objection to restitution taking place between
the
first applicant and the first respondent so as to put the parties
back to the position which existed before the illegal and
invalid
subdivision of Portion 19 of the farm, and before the illegal sale of
the proposed subdivision of portion 19 took place.
The first and
third respondents contend however that the relief cannot be ordered
until a review court sets aside all illegal and
invalid acts
consequent upon the illegal and invalid sale.
51.
The first and third respondents submit that the effect of granting
the applicants' claim to transfer Portion 43 of the farm
back to the
first applicant in these proceedings will result in the anomaly that
the court would be recognising the subdivision
of Portion 19 of the
farm (to become Portion 43) as valid and enforceable, well knowing
that it is illegal and invalid. The court
will thereby be giving
legal sanction to the very situation which section 3(a) of the Act
prohibits and seeks to prevent, namely,
the subdivision of portion 19
of the farm as agricultural land without the written consent of the
Minister. I agree for reasons
that follow.
52.
The subdivision of Portion 19 of the farm is invalid and
unenforceable not only because the preceding sale was invalid
[28]
but also because the subdivision was not approved by the third
respondent in writing.
[29]
53.
The relationship between consent by the Minister for the sale of an
undivided portion of agricultural land
[30]
and the approval by the Minister of the subdivision of agricultural
land
[31]
is of significance in
the light of what was said in
Gueue's
case at
par 15, namely, that '...it is by no means absurd to infer that the
Legislature intended to prohibit any sale of an undivided
portion of
farmland, whether conditional or not, unless and until the
subdivision has actually been approved by the Minister.'
54.
It follows therefore that the approval of the subdivision of such
land by the Minister must precede the Minister's approval
of the
proposed subdivision, and that approval of the proposed subdivision
by the Minister is a prerequisite before the Minister
approves of
such sale.
55.
At the risk of repetition, the sale agreement is void
ab initio
for two reasons, the first being because the Minister did not
approve of the proposed subdivision before the sale and the second
being because the Minister did not approve of the sale of the
proposed subdivision.
56.
Both first and third respondents challenged the enforceability and
validity of the sale agreement on the basis that the sale
was for an
undivided portion of agricultural land which was concluded without
the written consent of the Minister as prescribed
by section 3(e)(i)
of the Act. Both respondents also challenged the validity of the
subdivision of portion 19 of the farm to form
portion 43 of the farm
on the basis that it was not approved in writing by the Minister as
prescribed by section 3(a) of the Act.
57.
It was therefore incumbent upon the first applicant to prove that the
sale agreement, the subdivision of Portion 19 of the farm
to form
Portion 43 of the farm and the registration of transfer of ownership
of Portion 43 of the farm to the first respondent
were all valid,
legal and enforceable in order to succeed with her claim for the
transfer back to her of ownership of Portion 43
of the farm. So far
from establishing the aforesaid prerequisites for the relief sought
by the applicants, they not only conceded
that the sale was void
ab
initio,
but
they also failed to provide proof of the validity and enforceability
of the subdivision of portion 19 and the registration of
transfer of
Portion 43 to the first respondent thereafter
[32]
.
58.
The applicants had to show that they complied with the provisions of
section 3(a) of the Act in respect of the subdivision,
that the
subdivision was valid and that the registration of transfer of
ownership of Portion 43 was valid and enforceable.
[33]
The applicants failed to do so. The application was therefore doomed
to failure. Since the agreement of sale was void
ab
initio,
it
was not capable of being breached and cancelled, being the whole
cause of action relied on by the applicants. The application
falls to
be dismissed for this reason alone.
Further
reasons why the Applicants' Application ought to be dismissed
59.
Counsel for the first respondent correctly submitted that illegal
agreements are void in the sense that they are not contracts
and do
not create obligations.
[34]
That submission is correct. See
Kudu
Granite
Operations
(Pty.) Ltd v. Caterna Ltd
2003(5)
SA 193 (SCA) at 202 E-F (paragraph [16]). In that case Navsa, J.A.
and Heher, A.J.A., as he then was, said at 201 D-J (paragraph
[15]):
"There is a material
difference between suing on a contract for damages following upon
cancellation for breach by the other
party (as in
Baker v. Probert
1985(3) SA 429 {A), a judgment relied on by the Court a quo) and
having to concede that a contract in which the claim had its
foundation, which has not been breached by either party, is of no
force and effect. The first-mentioned scenario gives rise to a
distinct contractual remedy:
Baker
at 439A, and restitution
may provide a proper measure or substitute for the innocent party's
damages. The second situation has
been recognised since Roman times
as one in which the contract gives rise to no rights of action and
such remedy as exists is to
be sought in unjust enrichment, an
equitable remedy in which the contractual provisions are largely
irrelevant. As
van den Heever. J
. said in
Pucilowski v.
Johnston's Executors
1946 WLD 1at
6:
'The object of condiction
is the recovery of property in which ownership has been transferred
pursuant to a juristic act which was
ab i nitio
unenforceable
or has subsequently become inoperative
(causa non secuta: causa
finita)
.' "
"
60. The first
applicant persists in seeking retransfer of Portion 43 of the
property into her name. The first applicant claimed
retransfer on the
basis of her alleged cancellation of the agreement as a result of
first respondent's repudiation thereof. Since
breach and repudiation
of a null and void contract is not possible, the first applicant
failed to establish any cause of action
entitling her to retransfer
of the property. To paraphrase what was stated by Coetzee J in
Marais
v Standard Credit Corporation Limited
2002 (4) SA 892
(W),
without a cause of action, there is nothing to sustain a judgment.
61.
In the applicants' heads of argument, they submit that prayers 2 and
3 of the first respondent's counter-application ought to
be postponed
pending the finalisation of the applicants' damages claim already
instituted, or to be heard simultaneously therewith.
In their
proposed draft order they seek an order compelling the first
applicant to make repayment of the portion of the purchase
price paid
by the first respondent, but seek that such repayment be postponed
sine die
pending the finalisation of the damages claim under
case no. 28307/2016. However, that claim is premised upon damages
resulting
from the first respondent's alleged repudiation of a
valid
deed of sale and not restitution that follows upon a deed of sale
which was null and void
ab initio.
62.
For all the reasons given, the applicants are therefore not entitled
to the relief sought in prayers 2 to 6 of their draft order.
Submissions
in regard to the appropriate remedy and process to be followed in
undoing the unlawful subdivision and transfer
63.
The first and third respondents submit in their supplementary heads
of argument that this court is empowered and obliged to
declare the
subdivision of Portion 19 of the farm invalid since the subdivision
was done without the Minister's written consent
in terms of section
3(a) of the Act.
64.
As I have found that the subdivision is invalid, I have no discretion
to withhold the declaration of invalidity sought. This
is so because
section 172(1)(a) of the Constitution compels every court to declare
invalid any conduct that is inconsistent with
the Constitution and
the principle of legality.
[35]
65.
Both respondents submit that after the court makes a declaration of
invalidity as to the sale and subdivision of Portion 19
of the farm,
a review application in terms of either PAJA
[36]
or a rule of law review
[37]
will have to be brought to regulate the consequences of the invalid
subdivision in a just and equitable manner.
66.
A transfer of a portion of land and part payment therefore, have
taken place without a lawful causa. I am not entirely convinced
of
the suitability of review proceedings. That which would have to be
undone is simply the registration of transfer and the part-payment
of
the R3.5 million pursuant to a void causa.
67.
It is clear that all necessary or interested parties are not before
the court in these proceedings
[38]
.
The Registrar of Deeds ought to have been joined as a party as he
will have to implement any court order regulating the consequences
of
the invalidity.
Postponement of
prayers 2 and 3 of the First Respondent 's Counter-Application
68.
In my view, any claim based on enrichment
[39]
under one or other
condictio
and
which the applicants may enjoy against the first respondent in
consequence of the invalidity of the sale agreement or any claim
for
damages caused by the decimation of pristine bushveld and removal of
game during the period that the first respondent had possession
of
Portion 43 of the farm, ought appropriately to be determined in
separate proceedings. Because of the abrupt and last minute
turn-around by the applicants, all the pertinent issues have not been
canvassed in these proceedings. It is therefore apposite
to postpone
the hearing of prayers 2 and 3 of the first respondent's
counter-application.
For
all the reasons given, I conclude that the application must fail and
the first respondents' counter-application must succeed,
in part.
Costs
69.
In
Germishuys v Douglas Besproeiingsraad
1973 (3) SA 299
(NC)
at 300 D E, Van Rhyn J stated the following:
"Where a litigant
withdraws an action or in effect withdraws
it,
very sound reasons {baie gegronde redes) must
exist why
o
defendant
or respondent should not be entitled to his costs. The plaintiff or
applicant who withdraws his action or application
is in the same
position as an unsuccessful litigant because, after all, his claim or
application is futile and the defendant, or
respondent, is entitled
to all costs associated with the withdrawing plaintiffs or
applicant's institution of proceedings. "
70.
The court retains an overall discretion as to the award of costs. As
stated by Holmes JA in Ward v Sulzer
1973 (3) SA 701
A at 706G: ' In
awarding costs the Court has a discretion, to be exercised judicially
upon a consideration of all the facts; and,
as between the parties,
in essence it is a matter of fairness to both sides.' In
Mcpherson
v Teuwen and Another,
[40]
Kgomo J
held:
" [53) It is so that
when awarding costs, a court has a discretion which it must exercise
judiciously and after a due consideration
of the salient facts of
each case at that moment. The decision a court takes is a matter of
fairness to both sides.
[54] The court is
expected to take into consideration the peculiar circumstances of
each case, carefully weighing the issues in
each case, the conduct of
the parties as well as any other circumstance which may have a
bearing on the issue of costs and then
make such order as to costs as
would be fair in the discretion of the court. No hard and fast rules
have been set for compliance
and conformity by the court unless there
are special circumstances. See: Fripp v Gibbon and Co
1913 AD 354
at
364."
71.
Counsel for the applicants urged me to make no order as to costs,
thereby effectively compelling the parties to each pay their
own
costs. He contended that it would be inimical to order the applicants
to pay the first and third respondents costs in that
the 'poor
applicants' have lost a substantial asset, have expended a lot of
money in seeking to exact payment by the first respondent
or to get a
portion of their farm back and for a long time, the first respondent
performed in terms of the sale agreement and also
opposed prior
proceedings between the parties on the basis of a valid sale.
72.
Counsel for the first respondent submitted that the conduct of the
applicants has been inexcusable. This is because the correspondence
attached to the third respondent's answering affidavit indicates that
the second applicant has been aware (which knowledge is to
be
attributed to the first and third applicants) since 19 October 2012
of the fact that the Minister's consent was required, as
the farm
constituted 'agricultural land' for purposes of the Act. Yet, despite
such knowledge, the applicants mounted various applications
to court
for specific performance of a deed of sale which had been void
ab
initio.
73.
Counsel for the third respondent submitted that the applicants have
at all relevant times been fully aware that Portion 19 of
the farm
was subject to the provisions of the Act, that the Minister had not
excluded Portion 19 of the farm by notice in the Gazette,
nor had he
approved of the sale or subdivision in writing. The third respondent
was obliged to challenge the validity of the sale
due to
non-compliance with section 3 of the Act in the national and public
interest, having regard to the essential purpose of
the Act. What
compounded matters, is that the applicants persisted with their
relief even after having conceded that the sale was
void
ab
initio.
74.
The applicants contended that vast sections of pristine bushveld on
Portion 43 of the farm (the property) have become decimated
by the
conduct of the first respondent, who also caused the unlawful removal
of game from the farm and
inter
alia,
failed
to maintain the property, the boreholes, electrical reticulation and
the fences and gates. Even after the first respondent
raised the
issue of voidness of the sale agreement in prior proceedings
[41]
(in which the applicants sought to enforce payment of the balance of
the purchase price in terms of the sale agreement), the directors
of
the first respondent continued acting and dealing with Portion 43,
relying on the validity of the agreement, by
inter
alia,
making
applications for the establishment of a township thereon and
marketing of the Nyala Eco Estate (which the proposed township
would
be called).
75.
I am not persuaded that good grounds or sound reasons have been shown
to exist such as would constrain me to exercise my discretion
against
any award of costs.
Inter alia,
because the applicants
persisted in seeking relief on a
causa
which was not
established, I intend to make an appropriate award of costs, having
regard to all the peculiar circumstances, however
taking the conduct
of the first and third respondents into account.
76.
The court would ordinarily order costs to follow the result. In the
circumstances of the present matter, the first respondent
has
obtained some limited success. From a costs perspective, the court
can nevertheless deprive it of the benefit of costs for
substantial
reasons such as unconscionable conduct. As regards the third
respondent, the same can be done by virtue of the manner
in which
that particular party conducted itself in the proceedings.
77.
As regards the conduct of the first respondent: The applicants'
allegations of the first respondent having breached and repudiated
the agreement are but faintly denied, but what is indisputable, is
that the first respondent retained the benefit of its ostensible
title in respect of the property, despite its own concession as to
the invalidity of the
causa
for the transfer. The first
respondent furthermore brought about substantial damage to the
property during the course of its tenure
which, at the risk of
sounding cyclic, was a tenure that the first respondent itself
concedes is unsupported by any legal
causa.
78.
The first respondent seeks a postponement of prayers 2 and 3 of its
counter-application. All facts relevant to a determination
of those
prayers have not been properly canvassed in these proceedings and in
any event, all necessary and interested parties were
not joined to
the present proceedings so as to entitle the first respondent to the
eventual adjudication of prayers 2 and 3 of
its counter-application.
The applicants should not have to bear the wasted costs associated by
any such postponement. Furthermore,
the first respondent relied on
one composite affidavit, both in opposition to the application and in
support of the counter-application.
79.
As regards the third respondent: The third respondent must bear
responsibility for the conduct of one of its officials in the
Department of Agriculture Forestry and Fisheries, a delegate of the
Minister: Land use and Soil Management, whose conduct had a
material
bearing, on the misconception of the applicants, in imbuing the
erroneous belief that the land did not need to be subdivided
on the
authority of the Minister. What is more, the third respondent
initially took the view not to oppose the relief sought in
the
application or counter-application but at the twelfth hour, resolved
to change its mind by supporting the amended relief sought
by the
third respondent and seeking its own relief. In these circumstances,
it would be apposite for each party to pay his/her/its
own costs
80.
The parties in the application and counter-application accumulated a
record of some 446 pages in these proceedings, excluding
heads of
argument and supplementary heads of argument. The third respondent's
answering affidavit and the first and third respondent's
respective
heads of argument (including supplementary heads of argument) arrived
at my doorstep shortly before the hearing and
in piecemeal fashion,
contrary to the provisions of the Practise Manual of the North
Gauteng Division, placing additional pressure
upon an otherwise very
loaded and very busy opposed motion court roll for the allocated
week. Yet the third respondent was joined
as a party to the
proceedings already on 15 July 2016 at the instance of the first
respondent. The court order joining him as a
party was served on
third respondent on 3 August 2016.
81.
In
Licinio and Others v lmvula Quality Protection (Pty) Ltd
(2009/15228) [2015] ZAGPJHC 82 (20 March 2015) at para 21 Makume
J pointed out that
'...The rules and
directives contained in the Practice Manual are there to assist
judges to prepare for and hear matters expeditiously.
The rules and
directives were introduced to assist the judge who is to hear matters
to be able to properly prepare for the hearing...'
In
Rossitter
&
others v Nedbank Ltd
{96/2014) ZASCA 196 (1 December 2015) at
para 15, the Supreme Court of Appeal agreed that '...a practice
manual or directive duly
promulgated by the Judge President of a
division of the High Court, has the same force and effect as the
Uniform rules -
National Pride Trading
452 v Media 24 Ltd
2010 (6) SA 587
(ECP) para 31..'
82.
In these circumstances, the costs of the third respondent's answering
affidavit and the costs of the heads of argument of the
first and
third applicants ought not to be recoverable from the applicants.
83.
In the result, I grant the following order:
ORDER
1.
The applicants' application is dismissed with
costs, such costs to include the costs of the first and third
respondents but excluding
the costs of the third respondent's
answering affidavit and the heads of argument, including the
supplementary heads of argument
of the first and third respondents;
2.
On
the first respondent's counter-application, an order is granted that:
2.1. The late filing of
the First Respondent's set of heads of argument is condoned;
2.2. The late filing of
the Third Respondent's answering affidavit and heads of argument is
condoned;
2.3. The deed of sale
entered into between the First Applicant and the First Respondent,
dated 20 April 2008, in respect of a Portion
of Portion 19 of the
Farm Reebokfontein Wes 393, Registration Division l.P., North-West
Province is hereby declared null and void
ab initio
and the
subdivision pursuant thereto is also hereby declared invalid;
2.4. Prayers 2 and 3 of
the First Respondent's counter-application are postponed
sine
dies;
2.5. The Third Respondent
is ordered, within 60 (sixty) days hereof, to make application for an
order:
(i) That the invalid
subdivision of Portion 19 of the Farm Reebokfontein Wes No. 393,
Registration Division l.P., North west
Province into portion 43
(a Portion of Portion 19} and the Remaining Extent of the said Farm,
be set aside;
(ii)
That the subdivision diagram depicting Portion 43 (a Portion of
Portion 19} of the Farm Reebokfontein Wes No. 393, Registration
Division 1.P., North-West Province as approved by the
Surveyor-General,be cancelled;
(iii)
That the title deed purporting to transfer ownership of Portion 43 (a
Portion of Portion 19) of the Farm Reebokfontein Wes
No. 393,
Registration Division l.P., North-West Province to the First
respondent and all bonds registered there against, be cancelled;
(iv)
That the Registrar of Deeds be ordered to cancel the endorsements on
the title deed of Portion 19 of the Farm Reebokfontein
Wes No. 393,
Registration Division l.P., North west Province depicting the
subdivision thereof and the transfer of Portion
43 (a Portion of
Portion 19) of the said Farm therefrom; and
2.6.
Costs.
___________________
MAIER-FRAWLEY
AJ
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing:
1 December 2016
Date
of judgment:
30 December 2016
Judgment
delivered
3 January 2017
Counsel
for the Applicants:
Adv N. Davis SC 082 653 2010
Attorneys
for the Applicants:
Jassat Mitchell Inc
c/o
Serfontein Viljoen & Swart (012) 362 2556
Counsel
for the First Respondent :
Adv. A. Liversage 082 490 1549
Attorneys
for the First Respondent:
Prinsloo Bekker Attorneys (Mr A. Bekker)
(012)
348 3906
Counsel
for Third Respondent
Adv.
LB Van Wyk SC 082 774 7017
Attorneys
for Third Respondent:
State Attorney (Mr
SL Botes) (012) 309 1578
[1]
At the time of the conclusion of the deed of sale on 30 April 2008
the farm was located within the municipal area of the Matlosana
Local Municipality
[2]
being 'agricultural land' as defined in section 1of the Act
[3]
This is clear from inter alia, the contents of para 12 of the
founding affidavit read with para 40.3 of the third respondent's
answering affidavit and acknowledged in paragraph 14 of the third
respondent's written heads of argument dated 21 November 2016.
[4]
Section 1(f) of the Act read together with section 2 of the
Interpretation Act 33 of 1957.
[5]
As defined in section 1 of the Act
[6]
In terms of paragraph (f) of the definition of 'agricultural land'
in section 1 of the Act, such land remains agricultural land
until
the Minister has excluded the land from the provisions of the Act by
notice in the Gazette. In terms of section 3(a) and
(e)(i) of the
Act, agricultural land may not be subdivided and no portion of
agricultural land, whether surveyed or not, may
be sold unless the
Minister has consented thereto in writing. In terms of section 4(2)
of the Act, the Minister may in his discretion
refuse or grant any
such consent on any conditions as he deems fit
[7]
That is, land which has not been exempted from the provisions of the
Act by notice of the Minister as published in the Gazette
[8]
See: Geue and Another v Van Der Lith and Another
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) at para 19; Four Arrows Investments 68 v Abigail Construction
(2047012014)
[2015] ZASCA 121
(17 September 2015); Wary Holdings
(Ply) Ltd v Stalwo (Ply) Ltd and Another
[2008] ZACC 12
;
2009 (1) SA 337
(CC) at
paras [6] read with para [94]
[9]
See: Portwig v Deputation Street Inv (Pty) Ltd
1985 (1) SA 83
(D) at
90 A-F; SA Co-op Citrus Exchange Ltd v D-G: Trade & Industry
[1997] ZASCA 6
;
1997 (3) SA 236
(SCA) at p244F and 2450
[10]
See: Adlem and Another v Arfow
2013 (3) SA 1
SCA para 9 and the
authorities there cited; Blue Crane Country Estate (Ply) Ltd v
National Minister of Agricultural, Forestry
and Fisheries and Others
[2015] ZAGPPHC 149 (23 March 2015)
[11]
As prescribed by section 3 (a) of the Act
[12]
As prescribed by section 3 (e)(i) of the Act
[13]
In terms of the definition of 'agricultural land' in section 1 of
the Act, all land is agricultural land unless such land falls
under
one of the exclusions which are listed in sub-paragraphs (a) to (f)
thereof. The first applicant expressly acknowledged
in paragraph 12
of her founding affidavit that the farm 'is still agricultural
land'. Lest there be any misconception about this
concession, the
fact that the first applicant, as owner, on 1 November 2005 lodged a
formal application for the exclusion Of
the property from the
provisions of the Act, indicates unequivocally that she knew that
portion 19 of the farm comprised agricultural
land and that in the
absence of notice by the Minister in the Gazette, the provisions of
section 3(a) and (e)(i) of the Act would
be applicable to the sale
of a portion of the farm or any subdivision thereof. Surprisingly,
the said application for exclusion
has to date hereof, not been
determined.
[14]
As prescribed in section 1(f) of the Act
[15]
At the time of the conclusion of the deed of sale on 30 April 2008
the farm was located within the municipal area of the Matlosana
Local Municipality (Municipality)
[16]
The Constitution of the Republic of south Africa 1996, (Act No. 108
of 1996)
[17]
Section 156(1) of the Constitution affords municipalities' original
constitutional powers. It reads:
"(1) A municipality has
executive authority in respect of, and has the right to administer-
(a) the local government matters
listed in Part B of Schedule 4 and Part B of Schedule 5; and
(b) any other matter assigned to it
by national or provincial legislation"
Part
B of schedule 4 includes 'municipal planning' as a functional area
preserved for municipalities, which includes township
establishment,
rezoning, land use and like functions. Part A of Schedule 4
preserves the functional area of 'agriculture' as
a concurrent
national and provincial legislative competence, not as a municipal
competence. More significantly, the administration
of the
Sub-Division of Agricultural Land Act 70 of 1970 has never been
assigned to municipalities. Its administration remains
with the
Minister who may delegate certain functions to officials within the
National Department of Agriculture, Forestry and
Fisheries. The
sub-division of 'agricultural lane! is specifically excluded from a
municipality's powers by virtue of the provisions
of section 2(1)(d)
of the Division of Land Ordinance 20 of 1986
[18]
In terms of section 25 of the Local Government: Municipal Systems
Act 32 of 2000 (the Systems Act), every municipality is required
to
adopt an Integrated Development Plan (IDP). In terms of section
35(1)(a) of the Systems Act, the IDP 'binds a municipality
in the
exercise of its executive authority, except to the extent of any
inconsistency between the municipality's integrated development
plan
and national or provincial legislation, in which case such
legislation prevails.'(own emphasis) In terms of section 26(d)
of
the Systems Act, 'a spatial development framework' must include the
provision of basic guidelines for a land use, management
system for
the municipality.' The spatial development framework (SDF) forms
part of the municipality's IDP. The SDF and the urban
edge forming
part of it, is a statutory planning instrument that binds a
municipality when it considers planning applications
such as
applications for townhship development.
[19]
Dee: Blue Crane Country Estate (Ply) Ltd v National Minister of
Agricultural, Forestry and Fisheries and Others 12015] ZAGPPHC
149
(23 March 2015)
[20]
'The Local Government: Municipal Planning and Performance
Administration and Management Regulations' published in GNR 796
of
24 August 2001
[21]
in sections 25, 35(1)(a) and (b) and section 26(d) of the Systems
Act
[22]
In Section 1(f) of the Act
[23]
In which regard, see authorities quoted in fn 4 above
[24]
Ibid Geue at paras (5] and [15]
[25]
Ibid Wary Holdings at para [13]
[26]
See: Seale v Van Rooyen NO and Others; Provincial Government, North
West Province v Van Rooyen NO and Others
2008 (4) SA 43
(SCA) at
para [13]
[27]
See: Escom Holdings Ltd v New reclamation Group (Ply) Lid
2009 (4)
SA 628
(SCA) at para [9]
[28]
As a result of non-compliance with section 3(e)(i) of the Act
[29]
As a result of non-compliance with section 3(a) of the Act
[30]
which is subject to the provisions of the Act in terms of section
3(e)(i)
[31]
In terms of section 3(a) of the Act
[32]
The applicants had to show that they complied with the provisions of
section 3(a) of the Act in respect of the subdivision
[33]
See too: South African Local Authorities Pension Fund v Msunduzi
Municipality
2016 (4) SA 403
(SCA) at paras 33-35, 37, 39 and 40.
[34]
See: Contract General Principles, Van Huyssteen et al, Juta, 51
Edition, p187 para7.1; LAWSA vol 9 "Contract', para 334
et seq
[35]
See: MEC for Health, Eastern Cape and Another v Kirkland Investments
(Ply) Ltd t/a Eye & Lazer Institution
2014 (3) SA 481
(CC) at
para [46]
[36]
Promotion of Administrative Justice Act 3 of 2000
[37]
Constitutional review in terms of section 172(1)(b) of the
Constitution
[38]
Other affected or interested parties may include the Registrar of
Deeds, the local Municipality and all bondholders over the
property.
[39]
It is settled law that where there is no contract, the appropriate
remedy is to be found in unjust enrichment. See: Kudu Granite
operations (Ply) Ltd v Catema Ltd
2003 (5) SA 193
(SCA at 201 E-F
[40]
(2009/27002) [2012) ZAGPJHC 18 (22 February 2012).
[41]
instituted under case no. 34758/2012