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[2016] ZAGPPHC 674
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Mbombela Local Municipality v The Premier, Mpumalanga Province and Others (47407/2015) [2016] ZAGPPHC 674 (28 July 2016)
IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO:
47407/2015
DATE:
28 JULY 2016
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
IN THE MATTER BETWEEN:
MBOMBELALOCAL
MUNICIPALITY
….............................................
Applicant
And
THE
PREMIER, MPUMALANGA
…...................................................
1
st
Respondent
PROVINCE
THE
REGISTAR
OF
DEEDS,
MPUMALANGA
…..............................
2
nd
Respondent
THE LOWVELD SHOW
S
OCIETY
.......................................................
3
rd
Respondent
NGHWAZI
IT INVESTMENT (PTY)
LIMITED
......................................
4
th
Respondent
JUDGMENT
KOLLAPEN
J:
Introduction
1.
This application involves a challenge brought by the
applicant to the legality of Proclamation No. 80 of 1983
published in
the Provincial Gazette of 16 February 1983. The
application is opposed by the third respondent and it does appear
that the essential
facts underpinning the application are not in
dispute. They may be summarised as follows:
a)
Portion 39 of the Farm Nelspruit 312 JT ('the property') was
donated by the applicant to the third respondent on the 25th of
November
1950 and subsequently transferred to the third respondent
in terms of Deed of Transfer No 12164/1953.
b)
The
Deed of Transfer incorporated numerous conditions of title and they
include the following which are relevant for the purpose
of this
application:
i.
The property shall be used by the transferee for the sole purpose of
conducting thereupon Agricultural shows.
ii.
No trade or business for which any licence shall be required shall
be conducted upon the said property nor shall any
Co-operative
society as visualised by the Co-operative Societies Act No. 28 of
1922, or any amendment thereof, in any
manner whatsoever,
function upon the said property.
iii. The
property shall be used for Agricultural Show purposes only.
iv.
The property shall not be leased, except for sporting purposes, to
any persons or concerns without the consent in writing
of the Town
Council of the Municipality of Nelspruit (hereinafter referred to
as "The Council"), which said consent
shall not be
withheld unreasonably.
v.
No residence, except such as may be required for the occupation by
the Supervisor employed by the transferee shall be erected
upon
the property.
vi.
No sale of intoxicating liquor of any description whatsoever, shall
be permitted upon the property.
vii.
The foregoing conditions (ii) to (vi) inclusive shall not apply
during the period when any Agricultural show is being
held or
conducted by the transferee upon the property.
viii.
The transferee shall not be permitted in any manner whatsoever to
alienate the said property to any person or organisation,
save for
the purpose of conducting thereon of Agricultural Shows and
further subject to the conditions aforegoing.
c)
On the 1st day of February 1983, the then Administrator of the
Transvaal, Mr Willem Cruywagen acting in terms of Section 2 of the
Removal of Restrictions Act No 84 of 1967 removed conditions
B(i), (ii), (iii), (iv) and viii) in Deed of Transfer No
12164/1953.
The decision of the Administrator was published on the
16th of February 1983 in the Provincial Gazette.
d)
Given the considerable passage of time that has elapsed from
the publishing of the decision in 1983, no copy of the record
evidencing
the decision, or any application that may have preceded
it and the deliberations that may have led to the decision, has
been
traced. Accordingly no record has been filed in terms of the
provisions of Rule 53(1)(b). Affidavits by officials of the
applicant
have been filed attesting to the attempts made, without
success, in locating the record of the decision.
2.
Section 2 of the Removal of Restrictions Act No 84 of 1967
('RORA') provided the then legal framework within which the
Administrator
was empowered to alter, suspend or remove restrictions
in respect of land.
It
provided as follows:
'2.
Alteration, suspension or removal of restrictions or obligations in
respect of land by the Administrator
(1)
Whenever the Administrator of a province in which the land in
question is situate, is satisfied -
(a)
that it is desirable to do so in the interest of the establishment or
development of any township or in the interest of
any area,
whether it is situate in an urban area or not, or in the public
interest; or
(b)
that the land in question is required -
(i)
for ecclesiastical purposes by the owner or purchaser thereof;
or
(ii)
for public purposes by the State or a local authority; or
(iii)
for the use or erection of any building by the State or a local
authority; or
(iv) for purposes
incidental to any purpose mentioned in s subparagraphs (i) to
(iii), inclusive,
he
may, subject to the provisions of this Act, of his own accord or on
application of any person in terms of Section 3, by proclamation
in
the Official Gazette of the province, alter, suspend or remove
either permanently or for a period specified in such proclamation,
and either unconditionally or subject to any condition so specified,
any restriction or obligation, which is binding on the owner
of the
land by virtue of -
(aa)
a restrictive condition or servitude registered against the title
deed of the land; or
(bb)
a provision of a law relating to the establishment of townships or to
townplanning; or
(cc)
a provision of a by-law or of a regulation or of a town planning
scheme; or a provision of a town planning scheme and a restrictive
condition or servitude registered against the title deed of the
land; or
(dd)
a provision of a town planning scheme and a provision of a law
relating to the establishment of townships or to town planning,and
which relates to -
(aaa)
the subdivision of the land; or
(bbb)
the purpose for which the land may be used; or
(ccc)
the requirements to be complied with or to be observed m connection
with the erection of buildings or the use of the land.
3.
It appears to be common cause between the parties that RORA
does not provide for the removal of a restriction that relates to
the
alienation of land and that if one has regard to the wording of
Section 2 (b)(aaa),(bbb) and (ccc) the restrictive condition must
relate to either the sub-division of land, the purpose for which the
land may be used, or the requirements to be observed in connection
with the erection of buildings or the use ofland.
4.
The stance of the applicant in challenging the lawfulness of
the Administrator's decision is that Condition B(viii) relates to
the alienation of land and therefore falls outside of Section 2 of
RORA. To that extent it submits that the Administrator acted
unlawfully and to that extent the Court should review and set aside
Proclamation No 80 of 1983 alternatively such portions of
the
Proclamation that remove conditions relating to the alienation of
the property.
5.
In
opposing the relief claimed, the third respondent has firstly placed
in issue whether the application was brought within a reasonable
time and then on the merits its stance is that there is no basis to
challenge the lawfulness of the Proclamation and in particular
the
removal of Condition B(viii) as that condition did not relate to the
alienation of the land but rather the purpose for which
the land may
be used and thus fell within the remit of the Administrator as
contemplated in Section 2(b)(bbb).
The
issues in
dispute
The
delay
principle
6.
The decision challenged in these proceedings was made in 1983
and a considerable time has elapsed since then. The stance of the
applicant is that it acquired knowledge in February 2015 that the
third respondent had entered into an agreement of sale in respect
of
the property and that the implications and effect of the
proclamation have only now manifested themselves
7.
The
applicant states further in its founding affidavit that it
'was
not alive to
the consequences of the Proclamation and
did not appreciate its effect, and
could not therefore
reasonably have brought the application before now. It
is
respectfully submitted that it has brought the application within a
reasonable time, given the facts as set out above. To the
extent
that condonation
is required, same is sought'
.
8.
The third respondent disputes when the applicant would have
become aware of the conditions in question and their effects. It
points
out that in 1998 the applicant advised the third respondent
that it had no objection to the lifting of the remaining conditions
when the property is sold to a third party and therefore the third
respondent must have become aware of the conditions, their
removal
and the effect thereof and should have brought these proceedings
then already if it felt aggrieved.
9.
In
reply however, and the correspondence between the parties exchanged
in 1998 clearly demonstrates that at the time, what in effect
occurred was that the third respondent was desirous of selling the
property and acquiring an alternate site to which it could
relocate.
The applicant was under those circumstances willing to consent to
the sale provided that its interests were protected
by including
similar conditions in the title deed of the new showgrounds property
with the same conditions of title.
10.
Clearly a relocation was what in reality was being considered and
the applicant would not have been required to consider the
impact
and implications of the
1983 Proclamation at
that time.
The
circumstances that prevailed in February 2015 were certainly
distinguishable from those that prevailed in 1998 and I am
satisfied that the applicant would not have had cause to
interrogate the conditions of title then.
12.
Thus while a long time has passed, the clock as it were,
only started ticking in February 2015 and these proceedings were
launched
in June 2015. There has in my view been a satisfactory
explanation advanced to account for the timeline.
13.
The applicant also contended that there would be no prejudice
occasioned to the third respondent by the effluxion of time as no
other party was affected by the Proclamation in organising their
affairs. In essence it impacted only upon the applicant and
the
third respondent as a result of the donation of the property and the
conditions attached to it. The respondent took the view
that not only
the parties but the public at large were affected by the
Proclamation. I am not convinced that such a broad characterisation
is accurate. While the conditions related to the land which was
intended to be used for public purposes, its scope and operations
largely operated as between the parties.
14.
In
GQWETHA
v
TRANSKEI DEVELOPMENT CORPORATION
LTD
AND
OTHERS
2006 (2) SA 603
(SCA)
the court set out the following as the approach in dealing
with delay:
'
Whether there has been undue delay entails a factual enquiry
upon which a value judgment is called for in the light of
all the relevant circumstances including any explanation that is
offered for the delay.
A material fact to be taken
into account in making that value judgment
-
bearing in
mind the rationale
for the rule
-
is the
nature of the challenged provision. Not all decisions have the
same potential
for prejudice
to
result
from
their being set
aside.'
15.
In addition the sale of the property was also subject to the
condition that restrictive condition B(ix) be removed. Under those
circumstances any possible prejudice to the third respondent is
limited given the residual rights that vest in the applicant in
terms of condition B(ix).
16.
In conclusion, I am, for the reasons given, not satisfied
that the delay principle is applicable in the circumstances or that
the
application should fail purely on account of it.
Merits
17.
The core of the dispute is whether condition B(viii) of the
conditions of title is a condition which relates to 'the purpose for
which land may be used' as contemplated in Section 2(1)(b)(bbb) of
RORA or whether it is a condition which relates to the alienation
of
land.
If
it is the former then it would have fallen within the remit of the
Administrator's powers while on the other hand if it was
essentially characterised as a condition that related to the
alienation of the land then it would fall outside of the
Administrator's
remit and render that part of the exercise of his
power
ultra
vires.
19.
The relevant condition reads as follows:
viii.
The transferee shall not be permitted in any manner whatsoever to
alienate
the
said property to any
person or
organisation,
save for
the
purpose of conducting
thereon
of Agricultural
Shows
and further
subject
to the conditions aforegoing.
20.
The applicant takes the view that if one has regard to the
language used then it is clear that the condition pertains to the
alienation
of the property and is therefore not a condition capable
of being removed, altered or suspended under Section 2 of RORA.
26.
The stance of the third respondent is that while the condition in
question created a prohibition on alienation, it did not
constitute
a blanket prohibition. The prohibition on alienation contemplated by
the condition would not apply where the alienation
would result in
the property being used for the purpose of conducting agricultural
shows. Its stance therefore is that the condition
is essentially one
relating to use rather than to alienation and as such falls within
the scope of RORA.
Analysis
21.
In
NATAL JOINT
MUNICIPAL PENSION
FUND
v
ENDUMENI
MUNICIPALITY
2012 (4) SA 593
at
603F-604D, the Supreme Court of Appeal described the present state
of the law with regard to the interpretation of documents
as follows:
"The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words
used in a
document, be
it legislation, some other statutory
instrument, or contract, having regard
to the context
provided by reading the particular provision or provisions in the
light of the document as a whole and the circumstances
attendant
upon its
coming into existence. Whatever the nature
of the
document, consideration must be given to the
language used in the light of
the ordinary rules of
grammar and syntax; the context in which the
provision
appears; the apparent purpose to which it is directed and the
material known to those responsible for its production.
Where more than
one meaning is possible each
possibility must be weighed in the light of all these factors. The
process is therefore objective,
not subjective. A sensible meaning
is to be preferred to one that leads to insensible or
unbusinesslike results or undermines
the apparent purpose of the
document. Judges must be alert to, and guard against, the
temptation to substitute what they
regard as reasonable,
sensible
or
businesslike for
the words actually
used.
To do so
in regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation; in
a
contractual context it is to make a contract for parties other than
the one they in fact made. The
'inevitable point of
departure is the language of the provision itself', read in context
and having regard to the purpose of
the provision and the
background to the
preparation and
production
of the documen
t.
22.
If one has regard to the document as a whole (including the other
conditions of title as well as the circumstances under which
it came
into existence) then the following is evident:
22.1
The property was donated to the third respondent with the
object of holding agricultural shows thereon and the applicant in
condition
B(ix) reserved the right to retake possession of the
property if it was not used for this purpose.
22.2
In so far as the conditions explicitly provided for the use
that the property was to be put to, conditions B(i) and B(iii)
provide
for this firstly in relation to the position of the
transferee (B(i)), and then in relation to the property itself in
(B(iii)).
22.3
From this it would follow that those two conditions in their
totality deal comprehensively with the question of the use of the
property.
22.4
That
being the case the scope and purpose of condition B(viii) falls to be
determined. If it is, as was contended for by the
third
respondent, a condition relating to use then the obvious question
that arises is what purpose it could conceivably serve
given the
existence of conditions B(i) and B(iii). In this regard if B(viii)
is a condition that relates to use rather than alienation,
then it
would appear to be a superfluous, unnecessary and an irrelevant
condition to the extent that what the applicant contends
is the
scope of the condition, is already covered by existing conditions
in the form of B(i) and (ii).
22.5
In this regard it should therefore follow that for the
condition to have any relevance and to distinguish it from the
other conditions
of title it must be construed as a condition
relating to the alienation of the property. In any event when one
has regard
to the language used, which is essentially a prohibition
on alienation, and the rest of the conditions, then the conclusion
must follow that it is a condition that relates to alienation
rather than to use.
22.6
Given that the property was donated to the third respondent,
then it is also sensible and reasonable for the third respondent to
wish to have an interest in any proposed alienation of the property
and to ensure that in such event its use would continue
in the
light of the purpose of the grant. This in my view fortifies the
position that the condition relates to alienation and
as such
would have fallen outside of the powers of the Administrator.
22.7
The legal nature of an act of alienation of immovable property
stands apart from the question of the legal nature of the use the
property may be put to. While, as in this case, the conditions that
would apply to the alienation of the property are associated
with
its use, that in itself does not change the nature and the
characterisation of the condition. Put simply, it hardly matters
that
the scope of the alienation of the property is associated with the
use to which it is put; it remains a condition that
relates to
alienation.
22.8
In addition and as indicated the property was donated to the third
respondent for specific purposes. Condition B(viii)
contemplates a
sale to a third party and it will make business sense that such a
condition may well stand on a different footing
than the conditions
that relate to use as found in B(i) and (ii) and (iii) simply on
account of the fact that a transfer of dominium
is contemplated.
Therefore to simply conflate it as a condition related to use loses
sight of this historical reality and
the circumstances that would
have existed when the condition came into existence.
23.
I would for these reasons conclude that Condition B(viii) is a
condition that relates to the alienation of the property, that
it
falls outside of the scope of Section 2 of RORA and that it was
therefore not competent for the then Administrator to
remove it
as Proclamation 80 of 1983 does. The applicant would accordingly be
entitled to relief.
The
remedy
24.
Given that the challenge is these proceedings relates exclusively to
the removal of Condition B(viii), my view is that the
relief need
not go beyond that which is required to address the mischief. In
this regard setting aside the Proclamation in its
entirety is
neither required nor desirable to the extent that the removal of the
other conditions is not in contention.
My
view is that reviewing and setting aside the removal in Proclamation
No 80
of
1983 of Condition B(viii) would suffice and be legally permissible.
ORDER
26.
I would make an order in the following terms:
I.
That
portion of Proclamation No. 80 of 1983 that effects the removal of
Condition B(viii) from Deed of Transfer No 12164/1953
is hereby
reviewed and set aside;
II
The
second respondent is interdicted from
transferring
Portion 39 of
the Farm
Nelspruit
312
JT
held
by
Title
Deed
T12164/1953
from
the
third
respondent to the fourth respondent.
III The
third
respondent is
ordered to
pay the
costs
of
the
application.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
47407/2015
HEARD
ON:
25 MAY 2016
FOR THE APPLICANT:
ADV. D VETTEN
INSTRUCTED BY: BDK
ATTORNEYS (ref.: R C Krause/ag)
FOR THE THIRD
RESPONDENT: ADV. P G CILLIERS SC (appearing with ADV. J H ROELOFSE)
INSTRUCTED
BY: KRUGER AND PARTNERS INCORPORATED
(ref.:AVN/nm/00002309)