Staufen Investments (Pty) Ltd v The Minister of Public Works, Eskom Holdings SOC Ltd & Registrar of Deeds, Cape Town (200/2019) [2020] ZASCA 18; [2020] 2 All SA 738 (SCA); 2020 (4) SA 78 (SCA) (25 March 2020)

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[2020] ZASCA 18
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Staufen Investments (Pty) Ltd v The Minister of Public Works, Eskom Holdings SOC Ltd & Registrar of Deeds, Cape Town (200/2019) [2020] ZASCA 18; [2020] 2 All SA 738 (SCA); 2020 (4) SA 78 (SCA) (25 March 2020)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 200/2019
In the
matter between:
STAUFEN INVESTMENTS (PTY)
LTD

APPELLANT
and
THE
MINISTER OF PUBLIC
WORKS

FIRST RESPONDENT
ESKOM
HOLDINGS SOC
LTD

SECOND RESPONDENT
REGISTRAR
OF DEEDS, CAPE TOWN

THIRD RESPONDENT
Neutral
citation:
Staufen Investments (Pty) Ltd v The Minister of
Public Works, Eskom Holdings SOC Ltd & Registrar of Deeds, Cape
Town
[2020] ZASCA 18
(25 March 2020)
Coram:
CACHALIA, SWAIN and NICHOLLS JJA and LEDWABA and KOEN AJJA
Heard:
28 February 2020
Delivered:
25 March 2020
Summary:
Immovable property – expropriation of servitudes –
administrative law – private property owned by appellant
unlawfully
occupied by second respondent - first respondent lawfully
approving expropriation of servitude rights – second
respondent’s
occupation no longer unlawful –
Promotion of
Administrative Justice Act 3 of 2000
– appellant’s review
of first respondent’s expropriation decision dismissed –
decision procedurally fair
and unbiased.
ORDER
On
appeal from
: Eastern Cape High Court, Port Elizabeth (Revelas J
sitting as a court of first instance):
(a) Save insofar as the order of the high court is
varied, as set out in paragraph (b) below, the appeal is dismissed.
(b) Paragraph 1 of the order of the high court is
amended, paragraph 2 thereof is set aside, and paragraphs 3 and 4 are
renumbered,
resulting in the order of the high court, as amended,
reading as follows:
‘
1
The application to review the first respondent’s decision of 30
September 2016 expropriating certain rights over the farm

Nooitgedacht, is dismissed.
2. The applicant is directed to pay 80% of the costs of
the application including the costs of two counsel;
3. The applicant is directed to pay the reserved costs
of 19 September 2017, including the costs of two counsel.’
(c) The appellant is directed to pay the first and
second respondents’ costs of the appeal, including the costs of
two counsel
where employed.
JUDGMENT
Koen
AJA:
(Cachalia, Swain and Nicholls JJA and Ledwaba AJA
concurring):
[1]
The issue in this appeal is whether the first respondent’s
decision of 30 September 2016 (the decision), to expropriate
certain
servitudes over the appellant’s farm ‘Nooitgedacht’
in favour of Eskom Holdings Soc Ltd (Eskom), is lawful.
The parts of
the decision, material to this appeal, provide as follows: ‘Further
to my letter dated 09 December 2015 and
the Minister of Energy’s
recommendations contained in her letter dated 04 February 2016, I
wish to confirm that as requested
by Eskom Holdings’s SOC
Limited I have approved that the following servitudes (the total
extent of which appear more fully
in SG Diagram No 1232/2014 dated 21
January 2015) across land being part of the Farm Nooitgedacht 664,
Uitenhage Registration Division,
Eastern Cape Province, held under
Title Deed T 27811/2014 and owned by Staufen Investments (Pty) Ltd -
(1)
An electrical sub-station, in extent 1,0000 Hectare;
(2)
The right to convey electricity over the property by means of 132 kV
and 22 KV overhead power lines; and
(3)
A right of way (access road) 6 meters wide.
. . .
Once
just and equitable compensation
[1]
for the property rights has been determined, a notice of
expropriation will be served on the property owner and all affected
parties.
[2] The
appellant unsuccessfully sought to review the decision in the Eastern
Cape High Court, Port Elizabeth (the high court).
The high court
granted the following order:
‘
1. The application to review the first
respondent’s decision to expropriate the substation area on the
farm Nooitgedacht,
one hectare in extent, is dismissed.
2. The first respondent’s expropriation decision
aforesaid is amended by the addition of the following to its decision
as
conveyed to the second respondent (Eskom):
“
(4)The right to convey electricity over the
property by means of 132 kv and 22 kv overhead power lines is limited
to the existing
power lines and no power lines may be erected in
addition thereto, if such power lines will traverse the applicant’s
property
beyond the parameters of the electrical substation area, 10
0000 square meters in extent.
(5)The electrical substation area may not be expanded
upon beyond the parameters of the existing 10 000 square meter area.”
3. The applicant is to pay 80% of the costs of the
application, including the costs of two counsel;
4. The applicant is to pay the reserved costs of 19
September 2017, including the costs of two counsel.’
[3] The
high court granted the appellant leave to appeal against its order.
The appellant maintains that the high court erred as:
(a) the expropriation decision was taken for an improper
and unlawful purpose, and in bad faith;
(b) the description of what was to be expropriated was
unclear;
(c) the expropriation decision contravened s 6 of the
Promotion of Administrative Justice Act 3 of 2000 (the PAJA);
(d) the expropriation decision was procedurally unfair;
(e) the facts material to the circumstances in which the
expropriation decision was given, gave rise to a reasonable
apprehension
of bias;
(f)
the
amendment of the expropriation decision by the court a quo was
irregular.
[2]
Background
[4]
The land known as portion 4 of the Farm 119
Nelson Mandela Bay Municipality, Division of Uitenhage, Eastern Cape
Province (portion
4), was previously owned by Mr Archibald Fenton
Hitge and registered in his name in terms of Deed of Transfer
T77935/91. On 23
November 1992 a portion thereof, in extent 42,0879
hectares, was excised from portion 4, renamed as ‘portion 5 (a
portion
of portion 4) of the Farm no 119’ (portion 5), and
transferred into the name of the Republic of South Africa
[3]
in terms of Deed of Transfer 74981/92, leaving Mr Hitge with the
ownership of ‘the remainder of portion 4’.
[5] On
11 September 1997 Mr Hitge concluded a notarial deed of servitude
with Eskom. This deed granted to Eskom and its successors
in title
and assigns, the perpetual right to a right of way (6 meters wide)
over the remainder of portion 4; the perpetual right
to a part of
portion 4 not exceeding 1240 square meters for the purpose of
erecting an electrical substation; and an exclusive
perpetual right
to lead electricity over portion 4. The notarial deed was
subsequently registered in the Deeds registry on 4 September
1998
designated as K884/98S. An endorsement was appended simultaneously,
in accordance with standard Deed’s registry practice,
against
title deed T77935/91, being the holding title in respect of the
remainder of portion 4. The endorsement identified the
notarial deed
of servitude by its number, namely ‘K884/98S’, and
recorded that it created a right of way six meters
wide in favour of
Eskom. It however made no mention of the right to erect an electrical
substation, or the right to lead electricity
over the land.
[6]
Towards the end of September 1997
[4]
Eskom, as it was entitled to do in accordance with the terms of the
notarial deed, commenced the construction of an electrical
substation
on the remainder of portion 4. During 1999 the remainder of portion 4
was subdivided further by excising an area measuring
44,8915 hectares
in extent, which was renamed ‘portion 7 (a portion of portion
4) of the Farm 119’ (portion 7), as
identified on SG diagram
5558/1998.
[5]
Portion 7 is the subdivision, previously part of the remainder of
portion 4, on which the substation had been erected, over which
the
right of way (6 meters wide) was exercised, and which was traversed
by the incoming and outgoing overhead power lines. None
of these
servitudes was depicted on the sub-divisional SG diagram 5558/1998.
[7]
On 23 July 1999, portion 7 was consolidated with
portion 4 of the Farm Nooitgedagt No 118 adjoining it, to form the
Farm 664, in
extent 249,3714 hectares, as reflected on the
consolidation SG diagram 5561/1998. This is the property referred to
in the first
respondent’s decision as Nooitgedacht.
[6]
The Certificate of Consolidated Title,
[7]
which gave effect to that consolidation reflected as a condition of
title, as far as the component thereof previously known as
portion 7
was concerned, provided that:
‘
By Notarial Deed of Servitude No. K884/98S the
within mentioned property, 44,88915 hectares in extent, is subject to
a servitude
right of way 6 (six) meters wide, in favour of ESKOM, as
will more fully appear from the said Notarial Deed.’
As
with the endorsement appended by the Deeds Office previously to the
parent deed, that was the only servitude carried forward
as a title
condition. The other two servitudes created in the notarial deed were
again not recorded in the title conditions. They
were also not
depicted on the SG diagram 5561/1998 depicting the consolidation.
[8]
[8]
Portion 5, the first subdivision excised from portion 4, adjoins
Nooitgedacht in the east. It was described by the appellant
as being
‘a stone’s throw away’ from the electrical
substation on Nooitgedacht. Approximately 50% of portion
5 is used by
the Department of Water and Sanitation and the Nelson Mandela Bay
Municipality for the Nooitgedacht Water Treatment
Plant. The
remaining 50% comprises undeveloped bushveld.
[9]
Nooitgedacht was subsequently sold at a sale in
execution on 20 May 2005 to Mr Waldemar Burger Grundling. On 22 June
2005 he sold
it to Mr Jan Jakobus Lewies Lingenfelder, who in turn
sold it to Amber Bay Investments 34 (Pty) Ltd
[9]
(Amber Bay) on 23 June 2007. Amber Bay sold it to the appellant on 20
January 2014, transfer of ownership being effected in the
appellant’s
name on 3 June 2014. In each title deed giving effect to these
successive transfers, only the right of way servitude
created in the
notarial deed, described as set out in 7 above, was carried forward
as a title condition. Neither of the other two
servitudes in the
notarial deed in favour of Eskom was recorded in any of the
conditions of title.
[10] Mr
Wallace Barnes, the deponent to the founding affidavit in the review,
is a director of both Amber Bay and the appellant.
By the time the
appellant purchased Nooitgedacht in 2014, the substation had existed
on that farm, specifically the component thereof
previously known as
portion 7, for some 17 years. The substation had however expanded
beyond the area originally provided for in
the notarial deed, and
came to occupy approximately 10 000 m² (1 ha) of Nooitgedacht.
There was a 132 kV overhead power line
providing electricity to it
running from the south east, there were various 22 kV high-voltage
overhead power lines exiting the
substation and leading electricity
away from it to end consumers down the line, and there was a right of
way six meters wide, providing
access for employees of Eskom to the
substation. A comparison of the configuration of Nooitgedacht on the
aerial photographs annexed
by the appellant to the founding affidavit
showing the substation, the overhead power lines and the right of
way, with Surveyor
General’s diagram SG 5561/1998 relating to
the consolidation, and SG diagram SG 1232/2014 with reference to
which the decision
to expropriate the servitudes was granted,
confirms that the substation, the overhead lines and the right of way
are all on, and
lead over, the component portion previously known as
portion 7 (of 4).
[11]
After Amber Bay had purchased Nooitgedacht, Mr Barnes raised the
issue of Eskom’s entitlement to occupy and conduct the

substation on Nooitgedacht. It was then discovered that Eskom’s
entitlement to the substation was tenuous, if not non-existent.

Whatever rights it had enjoyed in respect of the substation and power
lines in terms of the notarial deed were personal in nature,
arising
from its relationship with Mr Hitge, which some subsequent owners may
have acquiesced in, but not Amber Bay and the appellant.
As the
rights to erect the substation and to lead the overhead power lines
over Nooitgedacht had never been registered against
the title deeds,
they did not constitute enforceable real rights. That these rights
never became enforceable was due to the title
deed of Mr Hitge not
having been properly endorsed initially, and the subsequent deeds of
transfer having perpetuated that omission.
[12]
That the area occupied by the substation had
grown,
[10]
together with the presence of the overhead high voltage lines and the
right of way used by Eskom, was known to Amber Bay and Mr
Barnes,
from at least the time that ownership of Nooitgedacht was transferred
to Amber Bay on 11 October 2007. The parties accepted
as common
cause, that the substation and the overhead power cables across
Nooitgedacht were erected unlawfully.
[11]
[13]
The appellant alleged that the continued unlawful
operation of the substation on Nooitgedacht impacted negatively on
its farming
activities, inter alia as the substation was situated in
the middle of the part of the farm that could be farmed intensively
by
cultivating crops.
[12]
It further complained that the location of the substation had
resulted in increased vehicular and pedestrian traffic with an
attendant
increased security risk. In addition, the land below the
power lines had become sterilised by their presence, limiting pecan
nut
cultivation. The installation had also become aesthetically
unattractive as building rubble was dumped in the area, and the
perimeter
fence was not maintained properly.
[13]
[14]
On 13 August 2014 the appellant demanded that
Eskom cease its unlawful occupation. It proposed that to normalise
the situation Eskom
should compensate it for the area occupied, that
the area and overhead power lines be properly identified in a
servitude diagram,
that an access route with a gate be maintained,
and that proper servitudes be registered. An alternative solution
suggested was
for Eskom to relocate the substation and entire
infrastructure to portion 5.
[14]
Eskom demurred maintaining that it would take six years to relocate
the substation, that it would cost in excess of R120 million
[15]
to do so, and that such relocation would result in an interruption of
electricity supply to various consumers.
[15]
When the negotiations reached an impasse, the appellant demanded that
Eskom vacate Nooitgedacht within a reasonable period.
This demand was
not complied with. The appellant then launched an application to
evict Eskom from Nooitgedacht, which was opposed.
[16]
After the eviction application was launched, Eskom launched its
application for expropriation dated 2 December 2014 (the
application).
The rights to be expropriated were described in the
application as:
‘
A servitude for a substation over 8,812 ha of
land, and to convey electricity by means of 132 kV and 22 kV lines
across land, and
a right of way 6 m wide across land being part of .
. . the Farm Nooitgedacht . . .’
The
application further specified that Eskom required:
‘
. . . the registration of an extended servitude
area for the Nooitgedacht substation and the regularising of the
existing servitudinal
rights in respect of a portion of the
sub-station; a servitude to convey electricity for an existing 132 kV
line; a servitude to
convey electricity for the existing 22 kV
network on the Property and to regularise the rights in respect of a
right of way 6 metres
wide. A draft diagram, which will be submitted
to the Surveyor General for approval, is attached hereto and marked
Annexure 1.’
The
draft diagram, annexure 1, referred to 8 ‘electric power line
servitudes’, seven being 18 meters wide and one to
the south
east of the substation being 31 meters wide.
[17]
The appellant delivered comprehensive written objections to Eskom’s
expropriation application on 9 March 2015. No comments
were received
from the Regional Land Claims Commissioner or the Director-General
Land Affairs. Eskom thereafter prepared its reply
to the appellant’s
objections. It did not provide the appellant with a copy thereof. The
expropriation application and all
the subsequent responses were
thereafter lodged with the first respondent on 24 April 2015.
[18]
The eviction application concluded with an order
being granted by consent on 30 April 2015. Paragraph 1 of the order
provided that
Eskom would terminate its occupation of the substation
area of approximately 1 hectare on Nooitgedacht, vacate the property
and
rehabilitate the area.
[16]
The order also provided:
‘
2. That the implementation of the Order in 1
above is suspended pending the finalisation of the procedures
referred to below. Should
the First Respondent’s application
for expropriation (and any legal proceedings arising therefrom) fail
then the Order in
1 above will become operative immediately. Should
the First Respondent’s application for expropriation (and any
legal proceedings
arising therefrom) be successful, then this Order
will fall away.
3. That the First Respondent is required to pursue its
application for expropriation
[17]
and secure a decision in respect thereof within a period of six
months from the date of the Order in 1 above, save that the First

Respondent will on reasonable cause shown, be entitled to approach
this Honourable Court for an extension of that period.
4. That upon a decision in respect of the First
Respondent’s application for expropriation being given, either
party will
be entitled to pursue any further legal proceedings which
may arise therefrom. Both parties undertake in pursuing such legal
proceedings
to act promptly and not in any way to delay the
institution of such proceedings.’
[19]
The six month period provided for in the consent order was
subsequently extended on two occasions. Eskom also had to launch
an
application to compel the first respondent to take a decision in
respect of its application for expropriation. During the evaluation

of Eskom’s application, correspondence was exchanged between
the department of the first respondent and that of the Ministry
of
Energy, which the appellant complained it was not privy to. However,
some of the correspondence was annexed to the answering
papers in the
eviction application, which the appellant complained contained
inaccurate statements. But these statements were not
material. The
appellant also complained that the first respondent had waited unduly
for the Minister of Minerals and Energy to
respond, that the first
respondent then considered the response from the Ministry of Energy
without having given the appellant
an opportunity to respond thereto,
and that documents were submitted under threat of a court action.
[20]
The processing of the application initially followed an abridged
business process, which the department of the first respondent
used
as a guideline in processing these kinds of applications. This
abridged process was however later abandoned by the first respondent.
[21] An
internal memorandum was also prepared in the department of the first
respondent by one of the employees, Mr Mahalingum Govender,
which
contained a recommendation to the first respondent as to what the
outcome of Eskom’s application should be. The appellant

complained that Mr Govender had been under the mistaken impression
that the expropriation had already been approved and merely
required
implementation, which the appellant suggested made Mr Govender biased
and which would have improperly influenced his recommendations
and
the views of other officials in the department on whose advice the
first respondent might have acted.
[22] On
30 September 2016 the first respondent communicated his decision
approving the expropriation with reference to SG Diagram
No
1232/2014, to Eskom.
Legislative framework
[23]
All expropriations occur against the background of s 25 of the
Constitution. The provisions relevant to this appeal read as
follows:
‘
(1) No one may be deprived of property except in
terms of a law of general application, and no law may permit
arbitrary deprivation
of property.
(2) Property may be expropriated only in terms of a law
of general application-
(a)
for a public purpose or the public
interest
; and
(b)
subject to compensation . . .
(3) . . .
(4) For the purposes of this section –
(a)
the public interest includes the
nation’s commitment to land reform, and to reforms to bring
about equitable access to all
South Africa’s natural resources;
and
(b)
property is not limited to land.’
(emphasis
added)
[24]
Section 2(1) of the Expropriation Act
[18]
(the Expropriation Act) provides that ‘(s)ubject to the
provisions of this Act the [first respondent] may, . . expropriate

any property for public purposes . . .’, defined
[19]
as ’as including . . . any purposes connected with the
administration of the provisions of any law by an organ of State.’
S 3
empowers the first respondent to expropriate immovable property on
behalf of certain juristic persons in the following terms:
‘
(1) If a juristic person… satisfies the
Minister
[20]
charged with the administration of the law mentioned in connection
therewith that it reasonably requires any particular immovable

property
for the attainment of its objects
and that it is unable to acquire it on reasonable terms, the
Minister
[21]
may, at the request of the first-mentioned Minister, . . .
expropriate such immovable property on behalf of that juristic person

or body as if it were required for public purposes.
(2) The juristic persons . . .contemplated in subsection
(1) are . . .
(h)
any juristic person . . . established by or
under any law for the promotion of any matter of public importance.
(3) If the Minister expropriates any immovable property
on behalf of a juristic person or body in terms of subsection (1),
such
juristic person or body shall become the owner thereof on the
date of expropriation in question.’
(emphasis
added)
[25]
Section 26(1) of the Electricity Regulation
Act
[22]
(the Electricity Act) under the heading ‘Expropriation’
provides that:
‘
(1) The State may, in order
to
facilitate the achievement of the objectives of this Act,
expropriate land, or any right in, over or in respect of land, on
behalf of a licensee
[23]
in accordance with section 25 of the Constitution and section 2 of
the Expropriation Act, 1975 (Act No 63 of 1975).
(2) The Minister must describe the procedure to be
followed in giving effect to subsection (1).
(3) The State may exercise the powers contemplated in
subsection (1) only if –
(a)
a licensee is unable to acquire land or a right in, over or in
respect of such land by agreement with the owner; and
(b)
the land or any right in, over or in respect of such land is
reasonably required by a licensee for facilities
which will
enhance
the electricity infrastructure in the national interest.’
(emphasis added)
Section
2 describes the objects of the Electricity Act to:
‘
(a)
achieve the efficient, effective,
sustainable and orderly development and operation of electricity
supply infrastructure in South
Africa;
(b)
ensure that the interests and needs of
present and future electricity customers and end users are
safeguarded and met, having regard
to the governance, efficiency,
effectiveness and long-term sustainability of the electricity supply
industry within the broader
context of economic energy regulation in
the Republic;
(c)
facilitate investment in the electricity
supply industry;
(d)
facilitate universal access to electricity;
(e)
promote the use of diverse energy sources and
energy efficiency;
(f)
promote competitiveness and customer and end
user choice; and
(g)
facilitate a fair balance between the
interests of customers and end users, licensees, investors in the
electricity supply industry
and the public.’
[26]
Regulation 2 of the Electricity Regulations for
Expropriation
[24]
prescribes the procedure to be followed by a licensee who requires
the state to expropriate land on its behalf. The procedure requires

the licensee to apply in writing to the first respondent to
expropriate the land or any right in, over or in respect of the land.

Regulation 2(2) provides that:
‘
The application contemplated in sub regulation
(1) must contain the following:
(a)
a full description of the land or right in, over or in respect of
land to be expropriated on behalf of the licensee;
(b)
the reasons and motivation why the licensee reasonably requires the
said land or right in, over or in respect of land with a full

description of the facilities for or in connection with which the
said land or right in, over or in respect of land is so required
by
the licensee;
(c)
full reasons why the said facilities will
enhance the electricity infrastructure in the national interest;
(d) …
(e) …
(f)
…
(g)
…
(h)
the practical alternatives which are open to the licensee if such
land or the right in, over or in respect of land is not expropriated

…’
As
there was no complaint that the application submitted to the first
respondent did not comply with the remaining sub-regulations
of
regulation 2, the provisions of this sub-regulation are not
considered in this judgment.
[27]
The appellant argued that the first respondent did not apply his mind
properly to the matter as he had indicated in his reasons
that he
acted in terms of s 26 of the Electricity Act, but in his answering
affidavit had relied on s 3 of the Expropriation Act
instead. This
argument is without substance. The various legislative provisions are
inter-related. The Electricity Act requires
a request to initiate the
process. The first respondent clearly had to act within the
parameters of the entire legislative regime,
that is, all the
statutory provisions which applied. He understood his powers. The
important issue was that his decision had to
have a legal foundation,
which it did.
What was reviewed by the high court?
[28]
The decision of 30 September 2016 sought to be
reviewed entailed the expropriation of the electric substation area,
the right to
convey electricity over the property, and a right of
way. The relief claimed in the notice of motion in the review was for
the
first respondent’s decision dated 30 September 2016 to be
reviewed and set aside.’ The high court order, in express

terms, however dismissed the review in respect of the ‘substation
area’ only. The appeal was nevertheless correctly
approached by
the parties on the basis that what was dismissed, was the review
contemplated in the notice of motion, that is, the
expropriation of
servitudes not only for the substation area, but also for the
overhead power lines and the right of way. That
clearly was what the
high court intended in dismissing the application.
[25]
Paragraph 1 of the high court order should therefore be amended to
make this clear.
[29]
The grant of rights, allegedly ancillary to the
servitudes which had been expropriated in the decision of 30
September 2016, alluded
to by the first respondent in his reasons for
his decision
[26]
when those were requested, were not the subject of the review, and
accordingly did not arise for consideration before the high
court or
before this court. These ‘rights’ were not referred to in
the first respondent’s decision, and their
status remains
uncertain. Consequently, the appellant’s argument on appeal,
that these rights went beyond what was required
to regularise Eskom’s
encroachment on Nooitgedacht and hence violated its right to
procedural and substantive fairness, need
not be considered.
Was the expropriation decision taken for an improper or
unlawful purpose?
[30]
This was the primary attack on the first
respondent’s decision, both in the review before the high court
and in this court.
[27]
Applications for expropriation usually precede the occupation of the
property sought to be expropriated. The first respondent’s

decision to expropriate was however in respect of a portion of
property already used unlawfully by Eskom. The expropriation
therefore
had as its purpose to regularise Eskom’s unlawful use
of part of Nooitgedacht, instead of permitting it to occupy the
property.
The appellant argued that the unlawful use by Eskom could
not be ‘regularised’ by another organ of state, the first

respondent, by expropriation, as to do so would not constitute a
‘public purpose’ or be in the ‘public interest’,

being the only objects which the Electricity Act sought to
facilitate. Instead, it would seek to condone or legalise Eskom’s

unlawful occupation. Specifically, the complaint was that the
application fell short of the requirements of regulation 2(2)(
b
)
[28]
as the reasons and motivation did not mention Eskom’s unlawful
occupation.
[31]
No authority was cited for the novel proposition
that an expropriation could not occur, if there was a pre-existing
unlawful use
and occupation. And I am aware of none. The sole
consideration is whether the expropriation is for a public purpose,
or in the
public interest. The expression ‘public purposes’
is a broad one. It has been held to include matters where the whole

population, or the local public are affected and not only matters
pertaining to the State or the Government.
[29]
It is not in dispute that the substation on Nooitgedacht
[30]
serves the local public by providing electricity, to amongst others,
residential communities and townships, the town of Addo, the
Sundays
River Valley, several farms including citrus farms in the surrounding
area, and the National Addo Elephant Park, an important
tourist
attraction.
[32]
The application to expropriate was clearly for a
‘public purpose’ or in the ‘public interest’,
[31]
namely the provision of electricity. This purpose was served by the
substation continuously since its construction in 1997. It
should
continue serving that public purpose. The fact that there was an
ancillary purpose, to regularise the pre-existing unlawful
use and
occupation, cannot detract from its main purpose, which was to
continue to supply electricity to the public through the
substation
for which a definite need was established.
[33]
The expropriation would result in Eskom acquiring
servitude rights in respect of certain aspects
[32]
of the appellant’s dominium
[33]
in Nooitgedacht, which as a matter of law vested in it, but as a
matter of fact were used by Eskom. In that respect too, the
expropriation
would serve the public interest and purpose, as it
would ‘enhance the electricity infrastructure in the national
interest.’
[34]
[34] It
cannot be disputed, having regard to the terms of the notarial deed,
as the first respondent had concluded, that Eskom bona
fide but
erroneously believed that it had initially acquired real rights. It,
in fact, had only acquired personal rights, or limited
real rights,
in respect of the right of way. Eskom had not deliberately occupied
the property unlawfully. It conducted its operations
on the property
in the bona fide belief that it had a legal entitlement to do so. It
was allowed to use the property, by the various
predecessors in title
to Amber Bay and the appellant, in the mistaken belief that it was
entitled to do so. All the owners since
Mr Hitge, Amber Bay and the
appellant duly represented by Mr Barnes, were aware of the presence
of the substation installation
on Nooitgedacht. They acquired
ownership of the land in each instance aware of the substation, the
overhead lines leading to and
from it, and the access route to the
substation. They accepted transfer of ownership in each instance
aware that the substation
and power lines detracted from their rights
of ownership.
[35]
With this knowledge the appellant accepted in the consent order in
the eviction application, that this oversight, would be
addressed by
appropriate servitudes being considered for expropriation. If
expropriation followed, compensation would address the
prejudice to
the appellant, whilst Eskom’s tenure would be secured, its
eviction would be averted, and the electricity supply
to the public
would continue uninterrupted in the public interest.
[36]
Expropriation was correctly contemplated as a remedy to regularise
the position. The appellant’s subsequent argument
that it was
legally incompetent to regularise this ‘unlawful’
position, was without legal substance.
Was the description of what was to be expropriated
clear?
[37]
Regulation 2(2)(a) requires that Eskom’s application had to
contain a ‘full description’ of the land or right
it
wished to acquire. The appellant’s complaints were:
(a) the expropriation application referred to a
servitude for the substation ‘over 8,812 hectares of land’,
whereas
the Surveyor General’s diagram annexed to the
application indicated that the area required for the substation was
1ha, the
approximate area actually occupied by the substation;
(b) although the application stated that Eskom required
servitudes ‘to convey electricity by means of 132 kV and 22 kV
lines
across land’, it was not stated how many lines were
required and exactly what these rights would entail;
(c) the high court’s qualification, in paragraph 2
of its order, introduced further uncertainty by confining the
overhead
power lines servitudes to those in existence, which could
present difficulties on registration thereof, as the registrar of
deeds
would have no knowledge, in the event of a dispute, as to which
power lines were in existence.
[38]
What was reviewed before the high court was not
Eskom’s expropriation application, but the first respondent’s
decision.
The decision described the servitudes to be expropriated
with express reference to SG diagram No 1232/2014 dated 21 January
2015,
a copy of which was provided to the appellant’s
attorneys.
[35]
[39]
Reading the decision with the diagram referred to therein, which
formed an integral part thereof, the substation was identified
as a
servitude area ‘1,0000 hectare in extent’, with reference
to specific co-ordinates reflected on the SG diagram.
The reference
to 8,812 ha in Eskom’s application was clearly an error, which
was correctly recognised as such by the first
respondent. This
resulted in the decision to expropriate being granted with reference
to the extent as per the Surveyor Generals
dimensions, which accorded
with the factual position on the ground, even on the appellant’s
version.
[40]
The ‘right to convey electricity over the
property by means of 132kV and 22 kV overhead power lines’, was
similarly
described, as regards location and width, with reference to
the servitudes depicted on and described ‘more fully in SG
Diagram
No 1232/2014’ identified by determinable co-ordinates.
That made the overhead power lines objectively determinable, and left

no room for uncertainty. It is not surprising that these servitudes,
approved by the first respondent, correspond in number and
position
to those identified by Mr Barnes in the founding affidavit in the
review, as being in existence when the decision was
made.
[36]
[41]
The appellant’s title deed already contained the following
condition of title:
‘
By Deed of Cession of Servitude K723/1999S, the
within mentioned property, in extent 44,8915 hectares, is subject to
that it was
subject to:
I . . .
II A perpetual servitude to lead an overhead power
supply (Power Line Servitude) 10 metres wide, the centre line of
which is depicted
by the DEF on Servitude Diagram No 7799/95 attached
to the above Deed of Servitude (the middle line of which servitude is
depicted
by the line NPQ on Diagram SG No 5561/1998 annexed hereto).’
It
appears that this power line servitude might correspond with the
servitude expropriated and reflected on SG Diagram No 1232/2014
as j-
K- L, save that the latter is reflected in that diagram as 18, not
10, metres wide and, in terms of the decision would operate
in favour
of Eskom as an identified beneficiary, whereas according to the
cession, no dominant owner of the servitude was identified.
I comment
no further on this issue as it was not canvassed in the affidavits.
To the extent that the servitude in the cession might
coincide with
any power line servitude expropriated in accordance with the first
respondent’s decision, it, being the less
burdensome servitude,
would lapse by merger with the servitude expropriated. The
significance of this is that it might possibly
affect the
compensation payable pursuant to the expropriation. Any such
duplication would not affect the validity of the decision.
[42]
What was expropriated, was determined in the
decision with cadastral accuracy. The Registrar of Deeds raised no
objection to the
description of what was expropriated and was to be
registered in due course. The high court however erroneously added
the qualification
to paragraph 2 of its order. It may have been
influenced by the allegations in the appellant’s supplementary
affidavit that
there was one incoming line and five outgoing lines,
which Eskom identified as the Nanaga line,
[37]
the Barkly Bridge line,
[38]
the Addo Park line,
[39]
the Skilpad line,
[40]
and the Dunbrody line.
[41]
Eskom had also referred elsewhere to the incoming line, five outgoing
lines and a bypass line (which probably comprised two power
line
servitudes depicted as c1-B1-C1-D1-E1 and F1-G1-H1 which branched
from it, on SG Diagram No 1232/2014). It appears that the
high court
sought to clarify matters by confining the overhead lines to the
lines ‘in existence’. By doing so it introduced

uncertainty, as on registration of the servitudes, the Registrar
would query what was meant by ‘in existence’. There
was
no need for paragraph 2 of the order which should be set aside.
[43]
The appellant also submitted that the power line servitudes were
contradictory and not in compliance with the regulation, as
the width
of the outgoing power line servitudes were to be 18 m wide,
considerably more than the nine metres width referred to
in the way
leave agreements. This, it was argued, would result in ‘substantial’
portions of Nooitgedacht being covered
by the servitudes, thus
rendering farming activities extremely difficult if not impossible,
especially as these power lines would
criss-cross the farm
‘Nooitgedacht randomly’.
[44]
The power line servitudes however do not criss-cross the farm
‘randomly’, but run along specific routes identified
by
co-ordinates on the Surveyor General’s diagram No 1232/2014.
Although the appellant complained about the width of the
power line
servitudes, it did not allege what the actual width occupied by the
existing power lines were. The second respondent’s
answering
affidavit pointed out that the way leave agreements provided that no
structure could be erected within nine meters of
the centre line of a
power line. In addition, any vegetation below the power lines had to
be cleared, and that Eskom had done this
before the appellant or its
predecessor had purchased Nooitgedacht. It is self-evident that a
distance of nine meters on either
side of the centre line of a power
line, equates to 18 meters in width.
[45] I
turn to consider the right of way, six metres wide, expropriated in
terms of paragraph 3 of the decision. The start and end
points
(S1-S2) are identified in the decision with reference to co-ordinates
on Surveyor General’s diagram No 1232/2014.
However, it remains
a general right, to the extent that it is represented by a curved
line (not identified with reference to further
co-ordinates), between
those points. A general right of way servitude, six metres wide, had
been created by the notarial deed.
That right of way was registered
and carried forward as a real right in all subsequent deeds. It seems
from the photographs of
the actual right of way, attached to the
appellant’s founding affidavit, that the registered right of
way might correspond
with the right of way expropriated. As the
purpose of the application to expropriate was to regularise what was
already in existence,
the intention was plainly not to create an
additional separate right of way. The benefit offered by the
expropriation and its description
with reference to Surveyor
General’s diagram No 1232/2014 is that the start and end
co-ordinates are now fixed. To the extent
that the right of way
expropriated corresponds with the right of way already extant and
recorded in the title deed of the appellant,
the latter will lapse by
merger. At best, again, this might be a consideration affecting the
quantum of any compensation payable.
Does the expropriation decision contravene s 6 of the
PAJA
[46]
The decision by the first respondent to approve
Eskom’s application for expropriation plainly constituted
administrative action
to which the provisions of the PAJA applied.
What constitutes fair administrative action will depend on the facts
of each case.
[42]
Generally it would require providing any person whose rights or
legitimate expectations were materially and adversely affected
with
adequate notice of the proposed action, a reasonable opportunity to
make representations, a clear statement of the administrative
action,
adequate notice of any right of review or internal appeal and to
request reasons.
[43]
Where, as in this instance, the first respondent was empowered in
terms of the relevant legislation to follow a procedure which
might
differ from some of these general requirements for administrative
action prescribed in the PAJA, no complaint could be raised,
provided
the procedure adopted, was fair.
[44]
[47]
The appellant raised a plethora of issues in regard to substantive
and procedural fairness, which it maintained contravened
s 6(2) of
the PAJA. I only deal with those which are relevant to the outcome of
the appeal.
[48]
Before considering these grounds it is important
to note that the first respondent’s decision was a
multi-faceted and polycentric
decision
[45]
requiring ‘. . . an equilibrium to be struck between a range of
competing interests and considerations and which is to be
taken by a
person or institution with specific expertise in that area . . .’
[46]
An evaluation as to whether an expropriation was expedient would
necessarily lie within the domain of the expropriating authority.
[47]
Although not immune from judicial review
[48]
it was a decision to which the principle of ‘deference’,
which required that the decision should be ‘shown respect
by
the courts’, applied.
[49]
The appellant’s main complaints appeared to relate to the
following:
(a) That the first respondent made use of a 30 step
internal procedure, which subsequently was abandoned, which the
appellant maintained
deprived it of an appropriate public notice and
comment procedure.
(b) That the appellant was not afforded a right of reply
to Eskom’s reply to its objections and representations.
(c) That the appellant was not given full discovery of
all documents.
(d) That the first respondent did not apply his mind
independently to the application but simply followed the
recommendation in
the internal memorandum which was prepared by
officials of the first respondent.
(e) That the first respondent’s view that the
‘alternative suitable land’ argument, entailing that the
substation
be relocated to portion 5, could not be sustained, was
influenced by a material factual misdirection.
The abridged process
[50]
The 30 step ‘abridged business process’ was explained by
the first respondent to be an ‘internal mechanism’
with
no legislative or regulatory status. It was a process developed to
broadly embody the principles of the Constitution (in particular
s
25) and the provisions of the PAJA, with it being reviewed as the
legislative framework was revised. The first respondent explained

that it merely served as ‘a guideline to the Department and
(the first respondent) in respect of evaluating, assessing and

determining an expropriation application.’ It was not a
mandatory procedure and in ‘no way determinative or
prescriptive’
of the first respondent’s statutory
obligations. The latter would prevail over the internal guideline,
and the internal procedure
would not hamper the first respondent’s
obligation to consider and decide applications for expropriation, in
accordance with
the legal framework outlined earlier in this
judgment.
[51]
The specific complaint was that if the guidelines
had been adhered to, an opportunity after publication for comments
and objections
by the public, would have followed. It was not alleged
that there was any person other than the appellant, who would have an
interest
in objecting following publication. The procedure prescribed
in terms of regulation 2(3)(
a
)
[49]
which required that the licensee ‘publish a notice of intention
to apply for the expropriation. . .’, was complied
with. The
appellant was the only person that objected to the application and
its objections and representations were considered.
There was no
suggestion of any prejudice suffered. Furthermore there was no
suggestion that the procedure followed was otherwise
unlawful or
unfair.
Should the appellant have been afforded an opportunity
to reply?
[52]
After the appellant had lodged its representations and objections to
Eskom’s application to expropriate, Eskom had the
right to
reply to the objections of the appellant. Regulation 2(6) provides
that:
‘
The original application must be delivered by the
licensee to the Minister of Public Works after the expiry of all the
time periods
or extended time periods, accompanied by proof of the
advertisements contemplated in subsection 3(a) and of delivery of the
documentation
contemplated in subsection 3(b), as well as –
(a)
objections and comments;
(b)
information supplied to the licensee
by the Regional Land Claims Commissioner and the Director-General:
Land Affairs; and
(c)
the reply of the owner to the
application;
if any, received by the licensee within the time periods
or extended time periods set therefore, and
the licensee may
include such comment or reply as it may deem necessary to such
objections, comments, information and the reply of the owner
.’
(emphasis added)
The
reply by Eskom was thus expressly provided for.
[53]
There was no express right accorded to the
appellant to reply to Eskom’s reply. Neither does the PAJA
recognise such a right
of reply. At best, considerations of fairness
might require a further reply, if for example, new facts had been
raised in Eskom’s
reply. In the absence of new facts being
raised the appellant could not insist on a further reply, otherwise
the process would
become endlessly protracted.
[50]
The reply by Eskom did not contain any new material but was simply a
response to the objections raised by the appellant.
[51]
There were no other compelling circumstances present in this matter
which required the appellant to be afforded a right of reply.
Discovery of documents
[54]
The appellant complained that copies of Eskom’s reply, the
cover letter to the application from Eskom to the first respondent,

the ‘summary of the matter’ provided by Eskom to the
Minister of Energy, and the Minister of Energy’s comments
and
recommendations, were not provided to it.
[55]
There are no provisions in the Expropriation
regulations providing that copies of these documents had to be
furnished to the appellant.
The principles of natural justice and the
right to be heard, do not include a right to discovery of all
documents as an automatic
feature. It has been held that the ‘right
to know’ does not mean to be given ‘chapter and
verse’.
[52]
[56]
The appellant maintained that had it been provided with access to
this documentation it would have had the opportunity to assess

whether new information or averments were demonstrably false, to
which it could have responded. The appellant however had a full

opportunity to set out its objections and contentions, which it did.
Its notice of objection set out extensively the grounds upon
which it
objected to the application for expropriation. It was not suggested
that there were additional grounds or facts, which
should have been
considered or taken into account, by the first respondent. The
complaint was accordingly without merit.
Whether the first respondent simply adopted the
recommendation in the internal memorandum and did not apply his mind
to the application?
[57]
The first respondent appointed Mr Govender in his department to
‘manage the processing of the expropriation’. Mr

Govender, being under the erroneous impression that the Minister of
Energy had ‘authorised the expropriation’, sought
to work
collaboratively with Eskom ‘to process and execute the
expropriation’. He inter alia also prepared a report
for the
first respondent’s consideration.
[58]
Having regard to the various line functions in the department of the
first respondent, it was only reasonable and a matter
of sound
administrative practice that an internal memorandum would be prepared
by officials of the first respondent commenting
on the application
and the submissions advanced to assist the first respondent in his
decision. The memorandum correctly cautioned
that ‘(o)nly the
(first respondent) is empowered by Section 2 of the Expropriation Act
to make a decision on Eskom’s
application’.
[59]
The first respondent was acquainted with the matter prior to
receipt of the internal memorandum. Given the unique nature of the
application, the first respondent had attended various meetings and
briefing sessions with relevant officials of his department,
to
obtain clarity in respect of the relevant legal and factual issues
raised by the application. Regardless of the contents of
the internal
memorandum, the first respondent properly and personally considered
the application, which included the appellant’s
detailed
representations and objections in their entirety. No basis was
advanced for rejecting his statement that the decision
was his and
his alone, or for finding that he was improperly influenced or did
not apply his mind fully to the issue he had to
decide.
The alternative suitable land argument
[53]
[60]
The first respondent had concluded that a relocation of the entire
substation installation to portion 5 was not a viable alternative

because of the substantial costs involved and the interruption in
electricity supply that would result. The appellant argued that
the
first respondent’s reliance on an interruption of electricity
supply, constituted a material misdirection of fact, as
the appellant
had always tendered to allow Eskom time to facilitate such a
relocation, which would avoid ‘severely detrimental’

interruptions.
[61]
The appellant pointed to Eskom’s application for expropriation
in which it was stated that ‘a prolonged outage
. . . (would)
be detrimental to the consumers in the area’, as if a prolonged
outage was a given fact. It also referred to
the letter from Eskom’s
chairman dated 11 November 2015 to the first respondent, which
likewise had referred to the substation
supplying electricity to ‘the
town of Addo and Sundaysriver Valley and citrus farms in the
surrounding area . . . (and that
a) prolonged outage for the existing
line will be severely detrimental to the customers in the said
areas’. It pointed out
that a letter from the Minister of
Energy to the first respondent dated 4 February 2016 was to similar
effect in commenting that
a ‘prolonged outage . . .will be
severely detrimental to the consumers in the area’. The
appellant argued that these
comments created the incorrect impression
and that Eskom’s comment that ‘the eviction order does
not provide for any
option that Eskom may continue operating the
infrastructure until it has built a new sub-station and related
infrastructure’
was wrong. It pointed to the allegation in its
replying affidavit that ‘(if) Eskom plan properly, there should
not be any
interruptions in the supply of electricity . . .’
and referred to it being possible for extensions of time to be
granted
in the terms of the court order, albeit that these were
extensions of time for the processing of the expropriation
application.
[62]
Properly construed, these statements all simply recorded that a
prolonged outage would be detrimental, which would be factually

correct. The internal memorandum prepared in the first respondent’s
department however did motivate for an approval of the
application by
stating that ‘Demolition of the substation will cause a
prolonged outage of electricity which will be severely
detrimental to
the customers in the said area’. It was contended that this
statement amounted to ‘a material misdirection
of fact’
which Eskom failed to point out to the first respondent. According to
the founding affidavit it seems that the more
correct position was
that the appellant did draw attention to this misdirection but that
the appellant’s complaint more specifically
was that ‘. .
. the First Respondent clearly had no regard thereto’.
[63]
The appellant’s tender to allow Eskom
sufficient time to relocate the infrastructure might reduce the
duration of an interruption
in the electricity supply during the
relocation process, thus avoiding an interruption of ‘severely
detrimental’ proportions
or ‘prolonged’ duration.
Nevertheless, as a matter of practical reality, some interruptions
would be inevitable during
the relocation process. That would also be
consistent with the probabilities and what one would reasonably
expect. Indeed, the
version of the first respondent and Eskom, which
must prevail in regard to any factual dispute on this issue,
[54]
was that a relocation to portion 5 would disrupt the electricity
supply.
[64]
But even if the duration of any interruptions might have been
overstated, an interruption in the supply was not the only, or

dispositive consideration which caused the first respondent to reject
the option of relocation in favour of expropriating the servitudes
on
Nooitgedacht. The first respondent in his answering affidavit stated
that:
‘
The fact that the Applicant may have offered the
Second Respondent “sufficient time to relocate its
infrastructure”,
is but one factor that I considered. There was
obviously the costs associated with such relocation that also had to
be considered.’
The
first respondent’s decision against relocation was correctly
and decisively, informed by the substantial costs which would
be
incurred to relocate an existing installation, to within ‘a
stones’ throw’ from where it was already operating

effectively. To demolish and rebuild the substation and related
infrastructure would take six years and cost over R120 million,
even
if built in the immediate vicinity. To the extent that there might be
a dispute as to the actual costs of relocation, Eskom’s
version
would prevail.
[55]
[65] To
have opted for a relocation at those costs, would be irrational. Such
funds would be wasted and would probably better serve
the public
interest if applied to constructing a new substation elsewhere in an
area where there may be a greater demand or, alternatively,

maintaining and improving the existing infrastructure on the national
electricity grid. Having regard to the deference which must
be
accorded to the decision of the first respondent, it was not shown
that his decision fell to be impeached.
[66] In
this context, the first respondent also considered that the
substation and infrastructure had existed on the property prior
to
the appellant’s acquisition thereof and that the appellant
must, accordingly, at all times, have been aware of the existence

thereof and that the land on which it encroached, could not be used
for farming.
Eskom’s summary to the Minister of Energy
[67] In
addition, the appellant also complained that Eskom, contrary to the
peremptory provisions of regulation 2(7) of the Expropriation

Regulations, provided the Minister of Energy, (with whom it contended
Eskom had a direct relationship and to whom it was accountable
as a
state monopoly for the provision of bulk electricity), with a summary
of the matter without providing the appellant with an
opportunity to
comment on the summary.
[68]
Regulation 2(7) provides that:
‘
The licensee must deliver a copy of the
application and accompanying documents contemplated in sub-regulation
(6) to the Minister
[of Energy] within seven days of the delivery of
the application to the Minister of Public Works and the Minister [of
Energy] may
within 21 days of the delivery thereof, or such extended
period as the Minister may, in his or her discretion, allow, comment
upon
the said application and documents to the Minister of Public
Works.’
The
regulation does not contain a peremptory requirement that the summary
had to be provided to the appellant. The appellant complained
that
the summary was based solely on the version of Eskom, that it
contained inaccurate or incomplete assertions, and that Eskom
made no
attempt to draw attention to material disputes raised by the
appellant, or to refer to the appellant’s version at
all.
[69]
What had in fact occurred was that after an extended delay, during
which the first respondent had not taken a decision whilst
awaiting a
request from the Minister of Energy, the latter requested the first
respondent to expropriate the property ‘as
requested by Eskom’.
[70]
This request, the appellant argued, indicated that the Minister of
Energy had merely parroted the submissions of Eskom, made
no
reference to the appellant’s submissions at all, and did not
analyse and engage with the contrary positions of the parties.
From
this the appellant sought to infer that the submission of the
Minister of Energy was entirely one-sided, offered no analysis
of the
competing facts, accordingly provided nothing new, and that this
influenced the decision of the first respondent.
[71]
That inference was not justified. The first respondent had the
appellant’s detailed objections before him and he considered

these with reference to the application by Eskom in reaching his
decision.
Perceived bias
[72]
The appellant contended that there was a
reasonable apprehension of bias on the part of the first respondent
and his officials,
based on certain views expressed by one of his
senior officials, Mr Govender, in relation to the procedure
followed,
[56]
in relation to the expropriation decision,
[57]
and the entire process.
[58]
Internal correspondence exchanged contained proposals in regard to
Eskom’s application which were circulated to at least
twelve
other officials in the department of the first respondent, including
the majority of those who ultimately recommended to
the first
respondent that he should approve the expropriation. The appellant
also referred to the fact that Eskom was required
during February
2016 to launch court proceedings against the first respondent, and
alleged that this exerted pressure on the first
respondent to approve
the application.
[73]
Whatever possible bias might have been displayed by Mr Govender
because of his erroneous understanding of the true position,
was
unintended. The issue was moreover not whether the first respondent’s
officials were biased, but whether the first respondent
could
reasonably be perceived to be biased. If his officials were biased
and he simply adopted their recommendations then he could
at best be
guilty of not deciding the matter himself, but that would not make
him biased. Although the first respondent no doubt
would have
consulted with Mr Govender and the other officials, Mr Govender’s
erroneous understanding ultimately was of no
significance, as the
unequivocal evidence of the first respondent was that the
expropriation decision was solely his.
[74]
The appellant also alleged that the chairperson of Eskom, by
addressing a personal letter to the first respondent during November

2015 demanding that he make a decision but also incorporating
representations dealing with the expropriation application, created

‘institutional pressure’ between very senior
representatives of the state. It submitted that an objective
assessment
of these facts supported the conclusion that Eskom, the
Minister of Energy, and the first respondent did not follow an
objective
at arms-length process. This left at least a reasonable
suspicion that the entire process followed by the first respondent
and
his final decision, were biased and the expropriation decision
procedurally unfair.
[75]
The high court correctly concluded that these complaints did not
support an inference of bias, as the correspondence was only
about
pressing the first respondent to make a decision. The appellant’s
argument that the learned judge in reaching that
conclusion failed to
assess whether a reasonable, objective and informed person would on
those facts reasonably have apprehended
that the first respondent did
not bring an impartial mind to bear in considering the expropriation
application, was without merit.
[76]
Whatever views were held and promoted by officials in his Department,
including Mr Govender, these did not necessarily reflect
the views of
the first respondent in the final decision. The final decision was
solely that of the first respondent after taking
into account the
contents of the application for expropriation and the detailed
objections, comprising some 700 pages, raised thereto
by the
appellant. Given these facts, it cannot be concluded that the
expropriation decision was tainted.
The amendment of the expropriation decision
[77]
The ‘amendment’ to the expropriation decision effected by
the high court in paragraph 2 of its order should not
have been
granted, for reasons set forth earlier in this judgment. It
accordingly falls to be set aside. The argument of the appellant
in
this respect, and specifically the effect of s 8 of the PAJA,
accordingly need not be considered.
Costs
[78]
Although the order of the high court will be varied by the deletion
of paragraph 2, the respondents were substantially successful
in the
appeal. There is no reason why the appellant should not be directed
to pay the costs of the first and second respondents.
All the parties
employed two counsel. The employment of two counsel was justified
having regard to the complexity and nature of
the matter. The costs
awarded will accordingly include the costs of two counsel, where
employed.
Order
[79]
The following order is granted:
(a)
Save insofar as the order of the high court is varied, as set
out in paragraph
(b)
below, the appeal is dismissed.
(b)
Paragraph 1 of the order of the high court is amended,
paragraph 2 thereof is set aside, and paragraphs 3 and 4 are
renumbered,
resulting in the order of the high court, as amended,
reading as follows:
‘
1.
The application to review the first respondent’s decision of 30
September 2016 expropriating certain rights over the farm

Nooitgedacht, is dismissed.
2. The applicant is directed to pay 80% of the costs of
the application including the costs of two counsel;
3. The applicant is directed to pay the reserved costs
of 19 September 2017, including the costs of two counsel.’
(c)
The appellant is directed to pay the first and second
respondents’ costs of the appeal, including the costs of two
counsel
where employed.
_______________________
P
A Koen
Acting
Judge Of Appeal
APPEARANCES
For
appellant: E A S Ford SC and J G Richards
Instructed
by: Schoeman Oosthuizen Inc
Symington
& De Kok Attorneys, Bloemfontein
For
first respondent: R G Buchanan SC and G Gajjar
Instructed
by: State Attorney, Port Elizabeth
State
Attorney, Bloemfontein
For
second respondent: S C Rorke SC and K.D. Williams
Instructed
by: Smith Tabata Inc
Webbers,
Bloemfontein
[1]
The final determination of the compensation payable pursuant to a
lawful expropriation, is not a condition precedent to a decision
to
expropriate being otherwise final – Hafferjee and Others v
Ethekwini Municipality and Others
2011 (6) SA 134
(CC) para 33.
[2]
The founding affidavit raised a plethora of grounds of review. The
grounds stated in paragraph 3 above were, in the main, the
arguments
persisted with before this court.
[3]
It was suggested that portion 5 was expropriated.
[4]
The appellant accepted that construction of the infrastructure
commenced at the earliest from then.
[5]
The remainder of the original portion 4 was consolidated with other
land adjoining it to form the Farm 663 in extent 195,714
hectares,
which is apparently known as Hitgeheim. It does not feature in the
appeal.
[6]
Described as the Farm 664, Nelson Mandela Metropolitan Municipality,
Division Uitenhage, Eastern Cape Province as depicted on
SG diagram
5561/1998.
[7]
Certificate of Consolidated Title T 58088/99 dated 23 July 1999.
[8]
The Certificate of Consolidated Title also included a title
condition recording that by Deed of Cession of Servitude K723/1999S

the same component of Nooitgedacht was subject to a perpetual
servitude to lead an overhead power supply (power line servitude)
10
meters wide, the middle line of which servitude is depicted by the
line NPQ on SG diagram no 5561/1998 annexed thereto. That
condition
did not however state in whose favour it operated.
[9]
Subsequently converted to Amber Bay Investments 34 CC.
[10]
The substation is close to ten times larger than the 1 240 square
meter substation contemplated in the Notarial Deed. The Appellant

alleged that Eskom continued with the further development of the
substation even after it had obtained transfer of the property
into
its name.
[11]
The appellant maintained that Eskom also had accepted that its right
of way six meters wide across was unlawful and required
to be
regularised. IF correct, that stance was legally incorrect.
[12]
This comprised approximately 14% of Nooitgedacht, the remaining 86%
comprising natural valley and bushveld suitable for game
farming. If
that assessment is correct, then the respondents point out that the
substation would occupy one ha of the 14% (34ha),
which would be
only 2,9% of the high quality prime agricultural land.
[13]
On the respondents’ version, which prevails, the latter
allegations are denied.
[14]
Although Eskom is an organ of state, being state owned, its
personality is distinct from that of the state and it would be

required to purchase land owned by the state from the state.
[15]
In 2014 monetary terms. This estimate was essentially not disputed
in reply.
[16]
These orders were all contained in paragraph 1 of the consent order.
[17]
That is the application then already in existence.
[18]
Expropriation Act 63 of 1975.
[19]
Section 1 of the Expropriation Act.
[20]
That will be the Minister of Energy Affairs, who is responsible for
the administration of the Electricity Regulation Act 4 of
2006.
[21]
The first respondent.
[22]
Act 4 of 2006.
[23]
Eskom is a licensee as defined in section 1 of the Electricity Act.
[24]
Electricity Regulations for Expropriation, GN R147, GG30754, 8
February 2008.
[25]
If the intention was different then there was no need for paragraph
2 of the order.
[26]
These additional ‘rights’ were contained in paragraph 3
of the first respondent’s reasons dated 4 February
2017 and
included all kinds of ancillary rights, some of which may in any
event be implied by law as incidental to the three
categories of
servitudes granted in the decision of 30 September 2016, but others
possibly going wider.
[27]
The appellant advanced, what it termed ‘the Second
respondent’s modus operandi’ argument, that Eskom seemed

to resort to a practice of occupying land without ensuring that it
has security of tenure, and when the unlawfulness of its occupation

is challenged then it falls back on expropriation to secure its
position. The difficulty with that argument was that Eskom had
not
been proved to have acted other than bona fide in relation to its
occupation of Nooitgedacht. It falls beyond the scope of
this
judgment to evaluate other possible similar instances. The public
interest, not good faith, is the decisive consideration.
[28]
See paragraph 26 above.
[29]
Administrator, Transvaal v Van Streepen (Kempton Park) (Pty) Limited
[1990] ZASCA 78
;
1990 (4) SA 644
(A) 656-657.
[30]
Nooitgedacht is situated approximately 10 kilometers north west of
the town Addo.
[31]
Fourie v Minister van Lande en ‘n ander
1970 (4) SA 165
(O)
169 D-E and 176 F-G; Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others 2004 (4) SA 490 (CC).
[32]
Notably the right to possession, use and enjoyment of those portions
of the property occupied by the substation, or traversed
by the
overhead power lines and the right of way.
[33]
Thus detracting from the appellant’s dominium of Nooitgedacht
– Schwedhelm v Hauman 1947 (1) SA 127 (E).
[34]
The word ‘enhance’ is defined in the South African
Concise Oxford Dictionary (2002) as improving ‘the quality,

value or extent of…’ There can be no doubt that the
expropriation would have that effect.
[35]
The appellant alleged that SG diagram 1232/2014 was not annexed to
the Expropriation decision, but accepted that it was subsequently

provided to its attorneys, and that it is the same diagram. The
apparent omission to have annexed the diagram is accordingly
without
significance as there is no dispute as to the SG diagram the
Expropriation decision intended to refer to.
[36]
Their location on Nooitgedacht were indicated by Mr Barnes in orange
on a Google aerial photograph attached to his founding affidavit
in
the review. He also indicated the position of the substation and the
right of way in red and green respectively on another
Google photo,
which showed their position in relation to the boundaries of
Nooitgedacht.
[37]
The Nanaga line conveys electricity to all farms in the Nanaga area.
[38]
The Barkly Bridge line conveys electricity to the town of Addo, the
National Addo Elephant Park, and farms in the Barkly Bridge
area and
the Valencia Township.
[39]
The Addo lone conveys electricity to citrus farmers in the Sundays
River Valley and the Nomthamsanqa township.
[40]
The Skilpad line conveys electricity to farmers in the Sundays River
Valley (not serviced by the Addo line) and three major townships
in
the area namely Batsheba, Enon and Moses Mabhida.
[41]
The Dunbrody line conveys electricity to farms in the directions of
both Kirkwood and Uitenhage.
[42]
Section 3 (2)(a) of the Promotion of Administrative Justice Act 3 of
2000 (the PAJA).
[43]
Section 3 (2)(b) of the PAJA.
[44]
Section 3(5) of the PAJA.
[45]
Offit Enterprises (Pty) Ltd and another v Coega Developmental
Corporation (Pty) Ltd and Others
[2010] ZASCA 1
;
2010 (4) SA 242
(SCA) 260 para 48.
[46]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 48.
[47]
It is generally for the expropriating authority, in this instance
the first respondent, to decide how best to achieve the purposes
of
the Expropriation Act - White Rocks Farm (Pty) Ltd and Others v the
Minister of Community Development
1984 (3) SA 785
(N) at 792.
[48]
MEC for Environmental affairs & Developmental Planning v
Clairison’s CC
[2013] ZASCA 82
;
2013 (6) SA 235
(SCA) para 18.
[49]
Regulation 2(3)(a) required that the licensee ‘publish a
notice of intention to apply for the expropriation in English
and in
another official language commonly used in the area in which the
property is situated, once in the government Gazette
and
simultaneously therewith or not more than one week thereafter, once
in the said languages in two newspapers of different
languages
circulating in the area in which the property is situated’.
[50]
In Chairman, Board on Tariffs and Trade and Others v Brenco Inc and
Others
2001 (4) SA 511
(SCA) para 44 it was held that no new matter
had been established which would have required a further right of
reply, and that
the process of allegation, answer, reply and
rejoinder could have gone on without end.
[51]
In Huisman v Minister of Local Government, Housing and Works (House
of Assembly)
[1995] ZASCA 151
;
1996 (1) SA 836
(A) at 845-846 it was held that it was
only where new facts had been placed before the Minister, that there
would be a right
to counter them.
[52]
Nisec (Pty) Ltd v Western Cape Provincial Tender Board
1998 (3) SA
228
(C) at 235B.
[53]
This was raised by the appellant in the context of regulation
2(2)(h) as a practical alternative open to Eskom if the rights
in,
over or in respect of Nooitgedacht were not expropriated. This
discussion encompasses what the appellant named it’s

‘Black-out in the valley’ argument.
[54]
Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623 (A).
[55]
In the opinion of George Frederick Ferreira, an electrical engineer,
expressed in an affidavit apparently filed in support of
an
application for an extension of the time allowed by the court order
in the eviction application, Eskom’s ‘estimate
that the
cost of construction of a substation of this nature would be in the
order of R120,000,000 is reasonably accurate’.
[56]
Hence contending that the expropriation decision was procedurally
unfair in terms of s 6(2)(c) of the PAJA.
[57]
Accordingly that s 6(2)(a)(iii) of the PAJA was applicable.
[58]
BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers’ Union and Another
[1992] ZASCA 85
;
1992 (3) SA 673
(A) at 692-3;
President of the Republic of South Africa & Others v South
African Rugby Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) paras
35-38 and 45-48.