Oudekraal Estates (PTY) limited v City of Cape Town and Others (7699/01) [2002] ZAWCHC 36; [2002] 3 All SA 450 (C) (20 June 2002)

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[2002] ZAWCHC 36
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Oudekraal Estates (PTY) limited v City of Cape Town and Others (7699/01) [2002] ZAWCHC 36; [2002] 3 All SA 450 (C); 2002 (6) SA 573 (C) (20 June 2002)

REPORTABLE.
IN
THE HIGH COURT OF SOUTH AFRICA
(Cape of
Good Hope Provincial Division)
Case No. 7699/01
In the matter
between:
OUDEKRAAL
ESTATES (PTY) LIMITED
Applicant
and
THE CITY
OF CAPE TOWN
First Respondent
THE
MINISTER OF LOCAL GOVERNMENT AND
DEVELOPMENT
PLANNING, WESTERN CAPE Second Respondent
THE SOUTH
AFRICAN HERITAGE RESOURCES AGENCY Third Respondent
SOUTH
AFRICAN NATIONAL PARKS Fourth
Respondent
JUDGMENT DELIVERED: 20 JUNE 2002.
DAVIS
J
Introduction.
On 4
September 2001 applicant brought an application for relief in the
following form:
Declaring
that the extensions of the period for submitting to the Surveyor
General the General Plan for Erf 2802 Camps Bay in the
Municipality
of Cape Town, Western Cape Province (previously known as Portion 7
of the Cape Farm 902)(“Oudekraal”) that were
granted by the
Administrator of the erstwhile Cape Province from 1958 to 1960 were
intra vires
his powers under section 19(1) of the
Townships Ordinance, 33 of 1934 (“the Ordinance”) and of full
force and effect, and that,
as a consequence –
General
Plan T.P. 1781 L.D. for Portion 7 of Oudekraal was submitted to the
Surveyor General within the extended time period permitted
by
section 19(1) of the Ordinance;
the
approval of General Plan T.P. 1781 L.D. for Portion 7 of Oudekraal
by the Surveyor General in April 1961 was
intra vires
and of full force and effect;
the
application for the establishment of a township on Portion 7 of
Oudekraal did not lapse in or about 1958, 1959 or 1960 by
virtue of
non-compliance with section 19(1) of the Ordinance.
Declaring
that the extension of the period for lodging with the Registrar of
Deeds the approved General Plan T.P. 1781 L.D. for
Portion 7 of
Oudekraal that was granted by the Administrator in 1961 was
intra
vires
his powers under section 20(1), read with section
20(3), of the Ordinance and of full force and effect, and that, as a
consequence
–
the
application for the establishment of a township on Portion 7 of
Oudekraal did not lapse in 1961 by virtue of non-compliance
with
section 20(1) to (3) of the Ordinance; and
the
opening of a township register and the registration certificate of
title in respect of Portion 7 of Oudekraal in November
1961, in
terms of
section 46
of the
Deeds Registries Act, 42 of 1937
, was
intra vires
the powers of the relevant official and
of full force and effect.
Declaring,
in addition and in any event, that the Applicant’s development
rights over Oudekraal Township (General Plan T.P. 1781
L.D.), on Erf
2802 Camps Bay in the Municipality of Cape Town, Western Cape
Province (previously known as Portion 7 of the Cape
Farm 902),
notification of the approval of which was published in the
Provincial Gazette on 19 January 1962, under Public Notice
59 of
1962, are of full force and effect, and that the Applicant has the
right to subdivide the aforementioned land in accordance
with
General Plan T.P. 1781 L.D.
This
application was opposed by 1
st
, 3
rd
and 4
th
respondents.
Background
.
The nature
of this application necessitates a brief examination of the
history of the ownership of the land which is the subject
of this
application. In the 19
th
century and in the first quarter
of the 20
th
century the quitrent farm ‘Oudekraal’
extended around the Atlantic coast from Camps Bay to Hout Bay. At
the time of the
abolition of the Quitrent Act in 1934, the farm
Oudekraal (‘the farm’) belonged to Dirk Gysbert van Reenen van
Breda.
In September
1941 portion 1 of the farm was framed under title deed 9541 and
transferred to the State. Portion 2 of the farm was
framed under
title deed 10186 and transferred to the then City Council in June
1949. The remaining portions of the abolished Quitrent
land were
transferred from the Estate of G.D. van Reenen van Breda to Sir
Henry Philip Price under title deed 725 dated 28 January
1954.
On 10
February 1955 Sir Henry Price framed portion 3 of the farm under
title deed 9272 and sold that portion to one Emily Bolton.
Portion 3
was part of the farm that contained a dwelling erected in 1929 by the
van Breda family.
On 21 July
1954 an application was made on behalf of Sir Henry Price for
permission to lay out a township called Oudekraal on the
remainder
of the farm. This application was approved by the Administrator of
the Cape Province on 17 September 1957 subject to certain
conditions
in terms of section 18 of the Townships Ordinance 33 of 1934.(‘the
Ordinance’). On the same day , 17 September 1957
, approval was
also given for the establishment of townships on other portions on
the remainder of the farm, later described as portions
4, 5 and 6.
The townships on portions 4, 5 and 6 were to be called respectively
Oudekraal township (extension No.1) Oudekraal township
(extension No.
2) and Oudekraal township (extension No. 3).
On 14
November 1958 Stern and Korodetz, a firm of land surveyors, made
application to the Administrator on behalf of Sir Henry Price
for an
extension of time for the lodgment of the general plan of the
Oudekraal township in terms of a letter dated 11 November 1958
which
was received by the Provincial Administration of the Cape of Good
Hope on 14 November 1958. In terms of a letter of 22 November
1958
the Administrator extended the time period to 30 May 1959, within
which period a general plan of the township had to be
lodged with
the Surveyor General. On 30 May 1959 Stern and Korodetz, in a letter
dated 29 May 1959, made a further application for
an extension of
time within which to lodge the general plan. On 8 June 1959 the
Administrator, in terms of section 19(1) of the
Ordinance, extended
the time period for the lodging of the general plan to 31 December
1959.
On 23
February 1960 Stern and Korodetz, in a letter dated 22 February
1960, made application for an extension of time within which
to lodge
the general plan to 30 July 1960. On 2 March 1960 the Administrator
extended the time to lodge the general plan to 30
June 1960 in terms
of section 19(1) of the Ordinance .
On 5 July
1960 a draft general plan was submitted to the Surveyor General for
examination and approval by Stern and Korodetz under
cover of a
letter dated 30 June 1960. On 10 April 1961 the Surveyor General
approved the general plan.
On 22
August 1991 attorneys Rex Simpson and Kenneth Karr wrote to the
Administrator as follows “The above township plan was
approved by
the Surveyor General on 10 April 1961-T.P. Plan 1761LD and shortly
thereafter the Surveyors sent us copies of the Plans
for lodgment
with the Registrar of Deeds in terms of section 20(1) of the Township
Ordinance No.33 of 1934. Unfortunately these
copies became mislaid
in our office and have only just been traced. In consequence the
statutory period of three months within which
they have had to be
lodged with the Registrar of Deeds has expired. It will therefore be
appreciated if you will give us an extension
of time within which to
lodge same with the Registrar of Deeds”.
In a letter
dated 25 August 1961 the Administrator, acting in terms of section
20 (3) of the Ordinance extended the time period
to 31 October
1961 within which the general plan of the township had to be lodged
with the Registrar of Deeds. On 9 January 1962
the general plan was
eventually lodged with the Registrar of Deeds. On 11 January 1962
the Registrar of Deeds advised the Provincial
Secretary that the
requirements of section 20 of the Townships Ordinance had been met
with regard to the general plan and that the
Administrator could
accordingly cause the approval of the Township to be gazetted in
terms of section 20(6) of the Township Ordinance.
On 19 January 1961
notification of approval of the Oudekraal township general plan T.P.
1781 L.D appeared in Provincial Notice
PM 59/1962.
Very little
of relevance then took place between 1962 and 1996, save that
applicant acquired the property on 28 May 1968 from
the deceased
estate of Sir Henry Price. According to Mr Casper Wiehahn, who
deposed to an affidavit on behalf of applicant, his
father, who had
been the driving force behind the acquisition of the property in
1968 was ‘in no rush’ to develop any part
of the farm. Mr
Wiehahn stated that his father was of the view ‘that a single
residential grid layout of the township of portion
7 which he had
acquired had already been outdated since being approved.’
.
No serious
attempts were made to develop the land until 1996, shortly after Mr
Casper Wiehahn assumed control of applicant. Mr Wiehahn
states in
his founding affidavit that he ‘took over Oudekraal’ in 1995 at
which time ‘I turned my attention to portion 7’.
He first entered
into a Memorandum of Understanding with Devland Construction
(Pty)Ltd. Eventually it appears as if this arrangement
was ’called
off.’ Mr Wiehahn then employed the firm of Wouter Engelbrecht and
Associates to prepare drawings for civil work
for portion 7 which
drawings were completed in August 1996. The engineering services
plan for portion 7 was submitted to the Acting
Chief Executive
Office of the Cape Metropolitan Council for approval. In response
to that application, applicant received a letter
from the Acting
Chief Executive Officer dated 11 November 1996 to the effect that
‘With reference to your application in the
above regard, I have
to advise that the Cape Town City Council at its meeting held on 31
October 1996, considered the attached reference
from the Engineering
Services Committee ( C.7) and resolved as follows:
‘That the
Cape Metropolitan Council be informed that, as the City Council has
been advised that development rights over Oudekraal
township on Cape
farm 902/7 had lapsed, it is not legally competent to approve the
provision of services related thereto.
As agent to
the Cape Town City Council you are accordingly informed that this
Council is not in a position to approve your application
for approval
of the engineering services plan.’
On 16
November 1996 the then attorneys of applicant addressed a letter to
the Acting Chief Executive Officer of the Cape Metropolitan
Council
requesting that it be furnished with reasons in writing why the
engineering services plan had not been approved. On 19
December 1996
attorneys Fairbridge Arderne and Lawton, acting on behalf of first
respondent, wrote to inform applicant that its
client had been
advised by senior counsel that ‘the Oudekraal Township application
had lapsed’. A number of reasons were given
to justify this
conclusion, including (a) that a general plan had not been submitted
to the Surveyor General within the twelve
month period prescribed by
section 19(1) of the Township Ordinance, (b) that, as the
Administrator’s extensions of the period
within which a general
plan was to be submitted to the Surveyor General, were granted, after
the lapse of twelve months from the
date on which the Administrator
had notified the then owner of the land that the application had been
granted the Administrator had
cited
ultra vires
his
powers in terms of section 19(1), (c) that the Administrator’s
‘purported’ extensions granted on or about 8 June 1959
and 2
March 1960 respectively were
ultra vires
his powers in
terms of section 19(1) of the Ordinance in that the section did not
admit of more than one such extension being granted,
and (d) that
the then owner of the land failed to lodge the approved general plan
with the Registrar of Deeds within three months
of approval thereof
by the Surveyor General as required by section 20(1) of the
Ordinance. Fairbridges went on to conclude: ‘In
consequence of
such failure the grant of the application was deemed to have lapsed
in terms of section 20(3) of the Townships Ordinance.
Accordingly
the Administrator’s extension of that period on or about 24
August 1961 i.e. more than 3 months after approval
of the General
Plan was also
ultra vires
his powers in terms of
section 20(3) of the Townships Ordinance.’
It appeared
from press reports to which Mr Seligson, who appeared together with
Mr Muller on behalf of first respondents, referred
that Mr Wiehahn
intended to proceed to court in response to this letter from
Fairbridges. In this regard Mr Seligson referred
particularly to a
Sunday Times Metro report of 17 November 1996 in which the following
appeared:
‘Oudekraal
land owner Cassie Wiehahn told Cape Metro that the legal battle was
on – and that it was only a matter of getting a
court date to
launch a counter attack in defence of his rights. “Our legal
opinion has it that our rights are in place, I’m
just waiting for
an opening in court.” He disclosed on Wednesday in reaction to the
Cape Metropolitan Council’s official notification
earlier in the
week that it was not in a legal position to approve services plan for
the controversial development.’
Contrary to
these reports no such legal application was launched. According to
Mr Seligson, applicant elected instead to pursue
a political
approach to the problem, and then only belatedly. For example Mr
Wiehahn in his founding affidavit states ‘During
1998, I therefore
met with Provincial Ministers Kobus Meiring and Lampie Fick. They
indicated that the Province was not prepared
to become involved. I
then proposed a complete redesign of the thousand potential plots
on Portions, 4, 5, 6 and 7 to provide
for a higher density
development, protection for Muslim Kramats, a donation of a portion
of the land to the National Parks Board,
and the construction of a
monument at the entry and exit to the development and a marina in one
of the bays along the route. I offered
to donate a percentage of the
sale proceeds for the purposes of constructing housing for the poor.
….. This idea was put to Mr
Ebrahim Rasool ,the leader of the ANC
in the Western Cape. Again, however, this proposal came to naught.
So did subsequent discussions
with the province in respect of a land
swap’.
Nothing
further of significance occurred until receipt by first respondent’s
attorneys on 8 May 2001 of a letter from applicant’s
attorneys in
which
inter alia
it was said ‘In the light of your
client’s reaction to the submission of the services plans, our
client has not approached your
client nor endeavored to negotiate
and/or discuss with your client any of the remaining issues and we
would be pleased if you would,
for the sake of formality, confirm
that it would be appropriate for our client to accept that for the
same reason set out….your
client would refuse and/or fail to deal
with any issue raised in the conditions of approval which require our
client’s participation.’
First respondent’s attorneys
confirmed this position in a letter of 7 June 2001. After further
correspondence between the attorneys
this application was eventually
launched.
Issues
to be determined.
Flowing from the facts as outlined, the following
issues require determination by this Court:
Has
the applicant succeeded in establishing that the Administrator’s
approval on or about 17 September 1957 of the application
by Sir
Henry Price for permission to establish a township on what is now
portion 7 Oudekraal was validly obtained and granted
in terms of the
Ordinance
2. If the
answer to (1) is affirmative , were the periods for submitting to
the Surveyor General the general plan for the township
so approved
validly granted by the Administrator in terms of section 19 of the
Ordinance.
3. If (2) is answered positively,
was the general plan TP 1781 L.D duly submitted to the Surveyor
General within ‘such further
period’ as contemplated by section
19 of the Ordinance and validly approved by the Surveyor General in
terms thereof.
The
further questions then arise:
Was
this extension of the period for lodging the general plan with the
Registrar of Deeds validly granted by the Administrator
in terms
of section 20 of the Townships Ordinance?
4.2 Was the general
plan duly lodged with the Registrar of Deeds within ‘such further
period as contemplated by section 20 of the
Ordinance and an
endorsement on the owner’s title deed validly made by the Registrar
of Deeds pursuant to such lodging?
4.3 Once portion 7 was sub-divided
from the rest of the farm Oudekraal and subsequently transferred to
the applicant separately
from the remainder of Sir Henry Price’s
land comprising land designated for ‘commonage’, did any
township rights in respect
of portion 7 survive , having regard to
the provisions of paragraph 14 of the conditions which attached to
the approval of the original
application and the provisions of
section 20 of the Ordinance?
Even if the court finds in favour of
respondents on any of the points 1-4 (it being common cause that
respondents would only need
to be successful on any one of these
challenges), was the fact that the development rights over
Oudekraal township were endorsed
against the title deeds of portion
7 in the Deeds Registry sufficient to render such rights of full
force and effect in law?
Even if the applicant succeeds in respect
of all these challenges including that set out in 4.3 above, the
question arises
whether the court, given all relevant
circumstances, should exercise its discretion in favour of applicant
and grant a declaratory
order as sought by applicant in these
proceedings.
The
Question of the Administrator’s Approval on or about 17 September
1957 of the application by Sir Henry Price for permission
to
establish a township.
Section 19(1) of the Ordinance reads as follows:
“If the
application be granted the owner shall within a period of twelve
months from the date of notification thereof by the Administrator,
or within such further period as the Administrator may in each case
determine, cause a general plan in accordance with the conditions
prescribed by the Administrator and showing the numbers assigned to
the erven and also where necessary a diagram of the land included
in
the township or sub-divided estate, to be framed and submitted in
duplicate to the Surveyor-General. The numbering of the erven
shall
be subject to the approval of the Surveyor-General in consultation
with the Registrar.”
Section 19(3)
provides: “Should the owner fail to submit the general plan and,
where necessary, the said diagram to the Surveyor-General
within the
said period of twelve months or within such further period as may
have been allowed by the Administrator, a grant of the
application
shall be deemed to have lapsed.”
Section 19(1)
of the Ordinance required the general plan to have been submitted to
the Surveyor-General within twelve months of the
Administrator’s
approval. In the present dispute a period in excess of twelve months
had elapsed from the date on which the
Administrator gave
notification of his approval of Sir Henry Price’s application for
township development (on 17 September 1957)
and the application for
an extension by land surveyors Stern and Korodetz for the period in
which to submit the general plan (on
the 14 November 1958).
Viewed within
the context of the facts of the present dispute the questions raised
by these provisions can be summarised thus:
Could
the Administrator have extended the initial period of twelve months
after the period had expired ?
Could
the Administrator have granted extensions after expiry of the
earlier extension?
Mr Heunis,
who appeared together with Mr Binns-Ward and Mr Farlam on behalf of
applicant, referred to the equivalent legislation
in other
provinces where the intention of the applicable legislation had
been made clear. Thus section 11(1) of the Orange Free
State
Township Ordinance 9 of 1969 provides “An applicant shall within a
period of one year from the date of the notification of
the approval
in terms of section 10(2) or within such a further period as the
Administrator may in each case determine, lodge for
approval with the
Surveyor-General the general plan and such diagrams as may be
necessary for the establishment of the township.”
Section 11(2)
provides: “if the applicant fails to lodge the general plan and
diagrams with the Surveyor-General within the period
or further
period contemplated in sub-section (1) the approval of the
application shall lapse unless the Administrator, after consultation
with the Board condones such failure.”
In these
sections, of which similar formulations appeared in the Natal Town
Planning Ordinance No. 27 of 1949 and the Transvaal Town
Planning and
Townships Ordinance 25 of 1965, provision was made for the
ex
post facto
condonation of non compliance with the
requirements relating to filing and lodgment of the relevant
documents within the prescribed
period. Mr Heunis submitted that,
since all these Ordinances were concerned with the filing and
lodgment with officials appointed
by the national level of government
such as the Surveyor-General and the Registrar of Deeds and concerned
the same subject matter,
that is town planning, there was no apparent
reason why the position which applied in other provinces should not
also have applied
in the Cape Province.
In addition
Mr Heunis submitted that the wording of the Ordinance was clearly
capable of sustaining such a regime, namely that the
Administrator
was empowered to extend the initial periods as well as extending
any period after the expiry after the initial
period.
Mr Heunis
focused on the phrase in section 19(3) ‘The grant of the
application shall be deemed to have lapsed’ in order to
support
his submission that this deeming provision connoted the meaning
that ‘lapsing’ shall be regarded as having occurred
unless the
Administrator decides otherwise. The concept of a deemed lapsing
must be distinguished from an actual lapsing since
the deeming
provision only became operative after the initial period (or any
extension thereof) had expired. It followed that the
Administrator
could competently give
ex post facto
extensions. In
this connection Mr Heunis relied upon the judgment in
S v
Rosenthal
1980(1) SA 65(A) at 75 H –76 A where
Trollip J A
said the following about the word ‘deeming’:
‘The
expression has no technical or uniform connotation. Its precise
meaning, and especially its effect must be ascertained from
its
context and the ordinary canons of construction. Some of the usual
meanings and the effect it can have are the following.
That which
is deemed shall be regarded or accepted (i) as being exhaustive of
the subject matter in question and thus excluding
what would or might
otherwise have been included therein but for the deeming, or (ii) in
contradistinction thereto, as being merely
supplementary, i.e.
extending and not curtailing what the subject matter includes, or
(iii) as being conclusive or irrebuttable,
or (iv) contrarily
thereto, as being merely
prima facie
or rebuttable. I
should add that in the absence of any indication in the statute to
the contrary, a deeming that is exhaustive is
also usually
conclusive, and one which is merely
prima facie
or
rebuttable is likely to be supplementary and not exhaustive’
Mr Heunis
submitted that the deeming provisions in section 19(3) of the
Ordinance fell within categories (ii) and/or (iv) of the
dictum
of
Rosenthal,
particularly when
account
was
taken of
the context of the comparative provincial
legislation.
Mr
Seligson contended that words cannot be read into a statute by
implication unless the implication is a necessary one in the sense
that without it, effect cannot be given to the statute as it stands.
See
Rennie N.O. v Gordon and Other NNO
1998(1) SA 1(A) at 22
E-G. In
his view, what applicant sought to do was to read
into the Ordinance a power given to the Administrator to condone, or
undo the
effect of section 19(3), that is to revive an application
after the prescribed period had expired and thus where the
application
had lapsed. Accordingly the use of the term ’lapsed’
in conjunction with ‘deemed to have’ left no other reasonable
interpretation
than that the legislature intended the deeming to be
exhaustive and irrebuttable.
Mr Seligson
contended that the construction relied upon by applicant would
necessarily accord a power of revival or resuscitation
to the
Administrator after its lapsing had occurred. Thus the phrase:
‘deemed to have lapsed’ would effectively mean ‘lapsed’
unless the Administrator decides otherwise, at some undefined point
which is cut off only after a reasonable time which is itself
dependent on the particular circumstances. In argument, Mr
Binns-Ward conceded that this formulation would be the meaning which
would be given to the section, were applicant’s contention,
regarding the interpretation of ‘deeming’ as employed in this
section, to be accepted. Manifestly this interpretation is a
complicated offering of what appears to be a reasonably clear and
unambiguous provision, namely that at the end of a prescribed period
of time an approval must be regarded as having terminated.
To the extent
that there is a difference between the Cape Ordinance and those of
the other provinces, it is clear that the latter
implicitly
recognised that, in the absence of an express power of condonation
the township application lapsed. Support for the proposition
that in
the absence of a specific provision which authorizes non compliance
to be condoned the prescribed time period was definitive.
See
Landmark Investments (Pty) Ltd v Port Elizabeth Municipality
1968(2) SA 693 E;
S Bothma and Son Transport (Pty) Ltd v
President of the Industrial Court and Others
1998(3) SA 335(T)
and
Port Elizabeth Divisional Council v Muller and Others
1963(1)
SA 99(E).
Contemporanea
Expositio/Subsecuta observatio.
Contemporanea
Expositio
constitute explanations of the meaning of a piece of
legislation offered by public officials more or less simultaneously
with or shortly
after its commencement. These expositions can be
deduced from the manner in which the officials conducted themselves
in relation
to the legislation in the process of passing or either
exercised their powers in terms thereof. The related doctrine is
that of
subsecuta observatio
which constitutes a custom or
continuous practice which emerges after legislation has commenced
and which derives its authority from
long duration. See in general
Lourens Du Plessis
Re-interpretation of Statutes
(2002) at
261-262.
In
Nissan
SA (Pty) Ltd v CIR
1998(4) SA 860 (SCA) at 870 E-F
Marais JA
said of these doctrines: ‘That relatively quickly jettisoned
interpretation of the 1991 provision is not what is comprehended
by
the doctrines of
subsecuta observatio
and
contemporeana
expositio
. Those doctrines rest upon two foundations. One is
that there must at least be room for the interpretation in the
language of the
provision. The other is that the interpretation must
have been accorded it for sufficiently long without it being gainsaid
that
it provides good reason for concluding that, that is what it was
intended to mean’.
In seeking to
rely on these doctrines, applicant referred to an affidavit of Mr
Dennis Barker who, from 1966, was employed by the
then Cape
Provincial Administration to the assistant to the department of local
government. Mr Barker later became the deputy director
of the
department of local government and planning of the Provincial
Administration of the Western Cape. Mr Barker stated ‘I
hereby
confirm that it was always my understanding and the understanding of
my whole Department that we were entitled to grant extensions
of time
in terms of sections 19 and 20 of the Ordinance at any time even
after the time period had lapsed and this was frequently
done. This
remained the position until the amendment to the Ordinance in 1974’.
Mr Barker then referred in his initial affidavit
to two cases where
such extensions had been granted and in a further affidavit to three
additional such examples.
In my view
there are at least two unanswerable objections to the application of
either of these aids to interpretation. Mr Barker’s
own affidavit
does not constitute direct evidence as to the consistency of usage
at the relevant time, that is in the early part
of the 1960’s.
Official action was taken during the period 1958 to 1961; that is
when the relevant purported extension was
approved. The sole basis
which he advances for his evidence regarding a practice in the years
prior to 1966 is that he has ‘no
reason to think’ the practice
was any different during the period when Sir Henry Price’s
application was submitted. This in
itself does not constitute the
kind of evidence which justified the application of these doctrinal
aids to construction.
In
Nissan
SA (Pty) Ltd, supra
Marais JA
went on to say ‘It is true
that it was said in
Secretary for Customs and Excise v Millman
…
that ‘it may well be’ that a departmental interpretation of
an ambiguous provision is a factor which cannot be overlooked and
that ‘it may well be invoked to tip the balance where the
language… may fairly be construed in either of two ways’, despite
the absence of any indication as to how long that interpretation had
been accorded to it, but the observation was tentative and guarded
and does not purport to be a considered and definite expression of
opinion’ (at 870F-G).
This
dictum
supports the proposition that usage cannot be
invoked to alter the meaning of a statute where the meaning of the
wording, upon a careful
examination, turns out to be clear.
Administrative sloppiness in interpretation and habitual practices
which disregard the law cannot
be legitimised by being invoked as an
aid to statutory interpretation. Even were Mr Barker to have been
able to testify as to
a clear practice of the department throughout
the period between 1958 and 1961, such evidence would only be of use
to applicant
if it could show ‘the language may fairly be construed
in either of two ways’. For the reasons already set out above,
section
19(1) and (3) do not easily admit of the interpretation
advanced by applicant. The version advanced by applicant is based
upon
an ambiguity which is but the product of creative linguistics.
Thus the invitation to employ contemporaneous exposition and usage
is of no application and cannot cure the fatal defect in its
argument.
On the basis
of this conclusion it is unnecessary to examine other issues raised
by respondents such as the submission of the
general plan with the
Registrar of Deeds after expiry of the period of three months from
the Surveyor-General’s approval, the
submission of the general
plan to the Surveyor-General after expiry of the first reported
extension and the submission of the general
plan to the Registrar of
Deeds after expiry of the fourth extension do not require a decision.
Once the
Administrator had granted the application for township approval on
17 September 1957, such permission lapsed after
twelve months
without the submission of the general plan. The extension of time
was applied for on 14 November 1958 and granted
on 22 November 1958.
On the plain and unambiguous reading of section 19 of the Ordinance
the approval, which did not comply with
the prescribed time periods,
was a nullity. No rights could be validly obtained by applicant as
a result of the non compliance
with the legislation .
Effective
Registration of the Township.
It was
common cause that township rights have been registered and endorsed
on the title deed of the property in question. This registration
took place in terms of section 3(1)(t) read with section 46 of Act 47
of 1937 and s 20 of the Ordinance. Applicant purchased the
property
from the deceased estate of Sir Henry Price who had applied for and
apparently obtained township rights for the property.
According to
Mr Wiehahn, in his replying affidavit, in ascertaining the rights
and burdens attaching to the land that it proposed
to acquire,
applicant’s representatives looked at the relevant information in
the Deeds Registry. It appears that the township
rights endorsed on
title deed of Portion 7 resulted in the payment of the premium.
Mr
Binns-Ward, on behalf of applicant, submitted that, having regard to
the recognised object and purpose of the deeds office registration
system, applicant’s representatives were entitled to accept that
the rights duly registered against the title deed of the property
would accrue to applicant upon transfer of the property. The system
of registration would serve no purpose if persons after referring
to the information registered in the Deeds Office were expected to
investigate the validity of the information in the absence of
any
indication that there was any defect in the formal registration of
the right.
Mr Binns-Ward
relied for this submission upon the judgment in
Knysna Hotel CC v
Coetzee N.O.
1998(2) SA 743 (SCA). As the significance of
this case was hotly disputed, it is necessary to examine it in some
detail.
The facts
were briefly thus: Certain property in Knysna had been registered in
the name of a husband and wife who were married in
community of
property. Upon their divorce an order was made directing that the
assets in their joint estate be divided but the registration
of the
property remained unchanged. Subsequent to being divorced, both the
husband and his wife were sequestrated and the respondent
and C were
appointed as trustees of their estates. Respondent had, without the
knowledge or consent of C sold the property to appellant.

Respondent had falsely given the Registrar of Deeds to understand
that he was acting on behalf of the insolvent estates of both
husband
and wife. Transfer of the property was registered in the appellant’s
name by the Registrar. The registration was formally
in order. When
C heard about the sale and transfer of the property he launched an
application in which both the respondent and appellant
were cited as
respondents, for the cancellation of the registration.
This dispute
between the parties was settled in terms of an agreement which
provided,
inter alia
, that, against payment of a
certain amount, appellant would have undisputed right to title and
interest in respect of the property.
The initial registration of the
transfer remained intact. Approximately one year later respondent
instituted an action against
appellant in terms of which he, as
seller, claimed payment from appellant, as purchaser, of the amount
allegedly due on the purchase
price in terms of the agreement of
sale. Appellant raised
inter alia
a special plea of
prescription in which it was alleged that the moneys due in terms of
the contract had become due on 21 September1990
and that in terms of
section 11
of the
Prescription Act 60 of 1969
any claim in terms
thereof had expired three years thereafter. In his replication to
the special plea of prescription, respondent
alleged that the
transfer was fatally defective in that neither the wife nor C had
consented thereto. It was alleged that C had
only ratified the
transfer on 7 May 1993 and that the purchase price had only then
become due. In the alternative he alleged that
he had been prevented
by superior force as contemplated in
section 13(1)(a)
of the
Prescription Act from
interrupting prescription until the
registration had been ratified.
Eksteen JA
distinguished between the negative system of registration, which
operates in South Africa, and the positive system of registration
in
the following way:
‘Hierdie
stelsel word soms as ‘n ‘negatiewe’ stelsel getipeer in
teenstelling met ‘n ‘positiewe’ stelsel waar registrasie
‘n
onomstootlike bewys van eiendomsreg is….’ (at 753 C). He then
went on to say: ‘[W]aar al die formaliteite van transport
nagekom
en deur die Registrateur van Aktes aanvaar is en waar transport deur
hom in die akteskantoor geregistreer is, daar ’n
formeel
regsgeldige oordrag geskied het. Daardie oordrag mag, weliswaar
aanvegbaar wees op ‘n verskeidenheid van gronde, maar totdat
dit
tersyde gestel is deur ‘n bevel van die Hof … bly dit ‘n
regsgeldige registrasie’( at 754 C.)
Eksteen
JA
concluded that on the facts in the Knysna Hotel case, the
registration of transfer, which took place on 21 September 1990, had
never been set aside or annulled or in any way been set aside. To
the extent that an application for the cancellation of the
registration
had been brought by C, this had been abandoned pursuant
to the matter having been settled between the disputing parties.
For
this reason the court held that as there had been compliance with
all the formalities of transfer and had been accepted by the
Registrar
of Deeds, and as no challenge had been brought to have the
registration set aside, there was no basis upon which it could be
concluded
that prescription, which should have commenced running
from the date of the transfer, had been interrupted or delayed.
The judgment
in
Knysna Hotel CC
confirms the operation of the negative
system of registration in South Africa. The effects of this
negative registration are succinctly
set out by C G van Merwe
Sakereg
(2 ed) at 342-343 as follows ‘In navolging van die
gemenereg het Suid Afrika ‘n negatiewe registrasiestelsel. Die
bepalings
in the Registrasie van Akteswet wat die aanspreeklikheid
van die staat en registrasiebeamptes uitsluit in die geval van
onjuiste
inskrywings dui ook hierop. Hoewel eiendom in beperkte
saaklike regte nie sonder registrasie oorgedra kan word nie, word
nêrens
gewaarborg dat die aktesregister ‘n juiste beeld van die
ware toedrag van sake gee of dat derdes absoluut daarop kan staat
maak
nie. Inteendeel, in talle omstandighede weerspieël die
register ‘n valse of onvolledige beeld van die regsposisie met
betrekking
tot onroerende goed.’
Professor van der Merwe
goes on to say ‘Hoewel eiendoms en beperkte saaklike regte nie
sonder registrasie oorgedra kan word nie,
word nêrens gewaarborg dat
die akteregister ‘n juiste beeld van die ware toedrag van sake gee
of dat derdes absoluut daarop kan
staat maak nie.‘ (at 342)
In no way
does the judgement in the
Knysna Hotel
case disturb this
analysis of the negative system of registration. In
Knysna Hotel
,
a formally valid registration had been effected. It was never set
aside nor annulled because the application designed to achieve
such
setting aside was never pursued once the matter was settled. The
case, which became the subject of litigation, turned
on whether a
seller’s claim for the purchase price in respect of a sale of land
had prescribed. Prescription began to run from
the date on which
the seller had performed his own obligations in terms of the contract
of sale . As the registration had not been
disturbed, the seller's
obligation had been fulfilled and accordingly prescription began to
run from that time.
Viewed in
this context, the decision in
Knysna Hotel
is distinguishable
from the present dispute. If the registration and proclamation of
the township was
ultra vires
or invalid, a formal act
of registration could not be held to be immune from being set aside.
Indeed as
Eksteen JA
noted in the
Knysna Hotel
case
‘daardie oordrag mag weliswaar aanvegbaar wees op ‘n
verskeidenheid van gronde’ (at 754C).
The question
then arises as to whether the period of registration has a
bearing on a legal challenge to registration. Most
certainly the
Knysna Hotel
case is not authority for this argument
namely, because some forty years had elapsed since the registration
of the proclamation
of the township, the township rights so
registered were now immune from any form of legal attack.
The question
arises however as to whether respondents are entitled to attack the
registration and proclamation of the township in
a case such as the
present. Applicant seeks to rely on a registration of township
rights in the deeds registry as justification
for the relief sought
from this court. Respondents resist the grant of such relief by
challenging the validity of such registration,
not directly in a
review proceeding but indirectly or ‘collaterally’ in proceedings
which are not in themselves designed to impeach
the validity of the
act of registration. This raises the question of the validity of a
collateral challenge.
Collateral
Challenge.
Mr
Binns-Ward submitted that the relief sought by applicant in terms of
paragraph 3 of the notice of motion as amended went no further
than
requiring the court to confirm the existence of real rights as
registered in the Deeds Registry. This application was necessary
because of the stance adopted by first respondent which had sought
to respond to applicant as if the registered rights attaching
to the
property could be ignored. Mr Binns-Ward contended that the attitude
of respondents in so opposing the relief sought by
applicants must
be examined in terms of its effect which was to seek to achieve a
‘back door review’ of the registration of
rights granted in the
late 1950’s and the early 1960’s.
The length of
time from the date of the registration of such rights raised the
question of the ‘delay rule’. The public policy
basis for the
delay rule (apart from consideration of prejudice to affected
parties) was that it was in the public interest for
finality to be
achieved within a reasonable time in connection with judicial and
administrative decisions. As support for this submission
he referred
to
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978(1) SA 13(A) at 44 D-E. Applicant thus contends that the
length of time which had elapsed from the time of registration should
constitute a fundamental obstacle to the kind of challenge now
raised by respondents. This issue of delay requires consideration
within then context of the concept of a collateral challenge. Smith,
Woolf and
Jowell
Judicial review of Administrative Action
(5 ed) at 265 set out the position in English law in relation to
collateral attack thus:
‘(1) Except possibly for a decision which is clearly invalid on its
face, all official decisions are presumed to be valid until
impugned
by a court of competent jurisdiction;
An individual should in principle be able to rely on, as a defence
in collateral proceedings before an appellate body,
any
invalidity, whether or not the source of invalidity is alleged to
arise out of a jurisdictional or non-jurisdictional error
(or
whether the decision or instrument is ‘void’ or ‘voidable’);
To
avoid ‘cumbrous duplicity of proceedings’ that challenge should
where possible take place in the forum in which it is made,
without
adjournment to enable an application to be made for judicial review;
(4) In some situations collateral challenge may not be permitted on
the ground that particular proceedings are inappropriate to decide
the matter in question, (for example, where an allegation of
procedural invalidity is made in the magistrate’s court, or
evidence
that is needed to substantiate the claim, or whether the
decision maker is not a party to the proceedings or where the
claimant
has not suffered any direct prejudice as a result of the
alleged invalidity)’.
The concept of collateral challenge
thus defined was canvassed in
National Industrial Council v
Photocircuit S.A. (Pty) Ltd and others
1993(2) SA 245 (C). As
the implications of this case were also contested by all parties,
it is necessary to examine the judgement
in some detail.
The applicant, an industrial council
established in 1944 in terms of
section 16
of the (repealed)
Industrial Conciliation Act 36 of 1937, sought an order against
twelve respondent employers,
inter alia
, directing them
to render returns to applicant for the purposes of enabling it to
levy contributions from them for some or all of
four funds
established in terms of industrial agreements. These agreements were
made binding on all employers within the industry
by approval of the
Minister of Labour acting in terms of section 48(1)(b) of the Labour
Relations Act 28 of 1956 (now repealed).
The respondents, each of
whom had come into existence between 1978 and 1989, that is long
after the Industrial Conciliation Act
had been repealed had not been
parties to any of the agreements establishing the funds in question.
They opposed the application
inter alia
on the grounds
that the Minister’s approval in 1944 of the applicant’s
registration had been
ultra vires
the Industrial
Conciliation Act.
Scott J
(as he then was)
considered whether, on a proper application of the rule in
Wolgroeier’s
case supra, respondent should be precluded by
delay from seeking to attack the Minister’s approval granted in
1944.
Scott J
accepted that ‘the validity of administrative
acts and subordinate legislation can be challenged not only directly
in review proceedings,
but also indirectly or, as is sometimes said,
collaterally, i.e. “proceedings which are not themselves designed
to impeach the
validity of some administrative act or order”….
Obvious examples are enforcement proceedings and criminal
prosecutions, the latter
according to Baxter …, being ‘one of the
hardiest methods of securing review’. In such proceedings,
therefore, the need for
judicial scrutiny of an administrative act or
subordinate legislation arises not for the purpose of affording a
discretionary remedy,
viz review or a declaratory order, but for
the purpose of determining the entitlement of the party seeking
enforcement, or the
guilt or innocence of an accused person. The
defendant or accused in such proceedings cannot, it seems to me, be
precluded from
raising invalidity as a defence merely on the grounds
of delay…
A Court, however will not in every
case permit an administrative act to be challenged in collateral
proceedings. Where, however,
enforcement of such an act or order is
resisted, whether in criminal or civil proceedings, on the ground
that in making it the official
acted beyond his powers, our Courts,
to my knowledge, have never refused to allow the question of validity
to be canvassed’ (at
252J- 253G)
On this basis
Scott J
found
that the respondents were not precluded from raising the validity of
applicant’s registration as an Industrial Council.
Mr Binns-Ward submitted that this
judgment had no application to the present case. In the present
dispute
a local authority of which first respondent was a
successor was aware of the decision from the time it was taken.
Third respondent’s
predecessor in title appears also as to have
been aware of the position from inception and in the context of its
provisional declaration
of other parts of Oudekraal farm as national
monuments after 1995 eschewed taking any proceedings in terms of
section 6
of the
Deeds Registries Act in
respect of the township
registration which it must have known affected portion 7. The fourth
respondent apparently acquiesced in
the delineation of the Cape
Peninsula National Park, taking into account the effect of the
registered township rights on portion
7.
Mr Binns-Ward thus submitted that
the allegation that the administrative act in question was
ultra
vires
cannot, by itself, be a valid basis to exclude the
operation of the delay rule. Furthermore, the exclusion of the
application of
a delay rule can only apply in cases where the
administrative act in question is
ultra vires
on the
basis of a complete absence of jurisdiction rather than on the basis
of a misdirected application of powers generally within
the
functionary’s jurisdiction but subject to certain procedural
constraints.
This argument seeks to attribute a
very narrow scope to the judgment in the
Photocircuit
case.
The broader interpretation of this judgment, as urged by
respondents, has found favour with the
House of Lords
in
Wandsworth London Borough Council v Winder
[1984] 3 ALL ER 976
(HL). Respondent, when sued for payment of rent in respect of a house
leased from the Council sought to challenge as unreasonable
the
local authority’s decision to increase the rent under its statutory
powers. The Council contended that the only procedure
by which their
decision could have been challenged was by way of judicial review,
and that, being out of time, respondent had lost
the opportunity to
challenge the decision. Respondent accepted that judicial review
would have been an appropriate procedure but
maintained that it was
not the only procedure open to him, and that he was entitled to wait
until he was sued by the Council and
then defend the proceedings in
the way he had done.
Lord Fraser on behalf of the court
said ‘It would in my opinion be a very strange use of language to
describe the respondent’s
behaviour in relation to this litigation
as abuse or misuse by him of the process of the court. He did not
select the procedure
to be adopted. He is merely seeking to defend
proceedings brought against him by the appellants. In so doing he is
seeking only
to exercise the ordinary right of an individual to
defend an action against him on the ground that he is not liable for
the whole
sum claimed by the plaintiff. Moreover he puts forward
his defence as a matter of right whereas in an application for
judicial
review, success would require an exercise in the Court’s
discretion in his favour… He would certainly be entitled to defend
that action on the ground that the plaintiff’s plan arises from a
resolution which (on his view) is invalid’ (at 981 c –d.)
This approach, as adopted in the
Winder
case, has found approval in
Kayamandi Town
Committee v Mkhwaso and Others
1991(2) SA 630 (C) at 636 E-F.
It is also in accordance with the critical importance attributed to
the principle of legality within
our law. As
Chaskalson P
(as
he then was) said in
Pharmaceutical Manufacturers of S.A :
in
re Ex Parte President of the Republic of South Africa
2000(2) SA
674 (CC) at 687 H ‘The exercise of all public power must comply
with the Constitution, which is the supreme law, and
the doctrine of
legality, which is part of that law.’
The debate between applicant and
respondents as to the applicability of the distinction between void
and voidable administrative decisions
as set out in
Coalcor (Cape)
(Pty) Ltd and Others v Boiler Efficiency Services CC
1990(4) SA
349(C) thus has no practical relevance to the present dispute. The
essential issue is whether the Administrator’s
actions and the
consequent registration of township rights were lawful. Were this
Court, notwithstanding the finding that the
Administrator’s
actions and consequent registration were not lawful, to grant
applicant relief and hence proclaim that an illegal
action had now
transmogrified into a legal decision, it would undermine the very
principle of legality which is now so central
to our constitutional
enterprise.
To the extent that the issue of delay
and hence the
Wolgroeier’s
principle constitutes an obstacle
to this approach, the question is one of an appropriate exercise of
the court’s discretion.
For this reason, it is necessary to turn
to certain of the key facts in the present dispute.
In paragraph 60 of his founding
affidavit Mr Wiehahn states ‘I understand that there are no
kramats and shrines on portion 7.
Graves and shrines are only
located on other portions of Cape Farm 902 to which this application
does not relate’. It was common
cause however, that a number of
kramats and graves do exist on portion 7 and have manifestly so
existed at all material times. Applicant
has not disputed that
these kramats and graves have considerable religious and historical
importance to the entire Muslim community.
In paragraph 56.1 of his
replying affidavit Mr Wiehahn apologises for the mistake contained
in paragraph 60 of his founding affidavit
and admits the presence
of kramats and graves on portion 7. Significantly, not only does he
fail even to attempt to explain this
mistake but at one point in the
proceedings leading up to the hearing before this court he sought
to strike out several passages
of an affidavit deposed to by Mr
Langley, who is the Park Manager of the Cape Peninsula National Park,
which demonstrates the probability
that Mr Wiehahn must have known of
the presence of the graves and shrines at the time at which Mr
Wiehahn deposed to the founding
affidavit. Mr Langley said ‘…It
appears both from the application for township development rights
and from the conditions attached
to the Administrator’s consent
that no attention was given to the fact that there are Muslim graves
on portion 7. It appears that
the township layout took no account of
the need to preserve such graves’.
Mr Petersen, who appeared together
with Mr Fagan on behalf of fourth respondent, submitted that the
Township’s Board, at the
time the Administrator considered the
general plan for a township, did not take proper account of the
existence of the graves and
kramats on the land. Mr Petersen
contended that a person or body which considered the application
in terms of section 11(5)
of the Ordinance would not have known from
an inspection that there were any graves or kramats on the land.
The conclusion to
which I have arrived regarding the invalidity of
the Administrator’s extensions, makes it unnecessary to examine the
validity
of the approval of the Administrator in terms of this
instructive argument.
However the argument is relevant to
the exercise of a discretion insofar as a collateral challenge to
the validity of the registration
is concerned. The graves and
kramats on the land of applicant are of profound religious, cultural
and historical importance to
the Muslim community. To exercise a
discretion in favour of applicant and therefore to ignore the
question of the legality of
the registration of township rights would
be to minimise the legitimate constitutional rights which are now
enjoyed by the Muslim
community. In 1994 the cultural, religious and
ethnic diversity of the country finally was recognized as an asset
of the entire
South African nation. Unquestionably the exercise of
township rights disputed in this case would have a significant
effect on
the religious rights of the Muslim community. By contrast
applicant seeks to rely on approvals granted during the 1950’s and
1960’s under an egregiously immoral regime and in circumstances
where the law, even at that time, was not properly followed;
a
conclusion which finds justification in the finding to which I have
come regarding the decision of the administrator being
ultra
vires
.
The context of this racist history,
during which period the voice of a community affected by such a
decision would not have been
treated with equal concern and respect
at the time the decision was taken, constitutes a powerful reason as
to why the Court should
not apply the
Wolgroeiers
principle
(assuming it to be applicable to such a collateral challenge) in
favour of applicant and deny respondents the defence which
they have
raised in this application.
It is important to emphasize the
extent to which it is permissible to make reference to the
historical background of this case.
Within the context of this
dispute, the existence of the kramats and graves are relevant, only
to the extent of the exercise of the
discretion to allow a
collateral challenge. By contrast Mr Breytenbach, who together with
Ms Bawa on behalf of third respondent
urged, within the context of a
Court’s discretion in terms section 19(1)(a)(iii) of the Supreme
Court Act 59 of 1959 to grant
a declaratory order, that the property
rights gained by applicant within the context of apartheid rule
and in the manner granted
by the Administrator should not constitute
the subject of legal protection.
Mr Breytenbach also referred to the
creation of the Cape Peninsula Protected Natural Environment and the
Cape Peninsula National
Park which abuts portion 7 which should in
themselves inhibit the development of portion 7. Furthermore he
referred to a pending
application to have the Cape Peninsula National
Park declared a World Heritage Site, of which the development on
portion 7 would
detract from the application. There is
considerable force in these arguments raised by Mr Breytenbach. Our
Constitution mandates
the transformation of traditional legal
concepts so that they become congruent with the constitutional
society prefigured within
the text. This mandate does demand that
the concept of property be looked at afresh, arguably no longer to
function completely
as a trump but as a connecting m edium between
the individual’s needs and those of society (There is a burgeoning
literature dealing
with this issue see for example Van der Walt
‘Tradition on Trial: a Critical Analysis of the Civil Law Tradition
in South African
Property Law’
1995 (11) SAJHR 169
at 204).
Given the conclusion to which I have
come, it is not however necessary to decide on these arguments
relating to the exercise of
the courts’ discretion to grant a
declaratory order. Considerations of the environmental protection
of the great glory of the
Cape Peninsula, being the mountain range,
as well as the safeguarding of the rights of the Muslim community to
freedom of religion
are relevant within the express context of this
case to the exercise of the court’s discretion in relation to the
Wolgroeiers
principle.
In summary, the potential for a
breach of religious rights coupled to the fact that the exercise
of applicants township rights
would, in all probability, contravene
a range of environmental rights justifies a decision to permit a
collateral challenge.
The issue of a collateral challenge brought
against property rights is manifestly an issue which needs to be
cautiously considered
and sparingly permitted. In this case the
unusual facts are of particular importance. Some thirty five
years have elapsed
from the time that applicant purchased the
land which was registered for township development.
Applicant suggests that the case
turns upon the property owner asking for affirmation of development
and sub-division rights that
were registered against the title deed
of the property at the time it purchased the land and which have
remained so registered for
some thirty five years. Mr Binns-Ward
submitted that it would be contrary to public policy for a court to
refuse to provide an appropriate
declaration of the existence of
these registered rights. He contended that a refusal to grant relief
would amount to an indirect
form of expropriation of development
rights, even if the effect of a decision was but to allow a local
authority to refuse to
recognise these rights. The argument does
have some bearing on the permissibility of a collateral challenge in
that it raises the
question of prejudice to applicant by a refusal to
grant relief, caused by permitting respondent to challenge rights
which have been
in existence for so long a period.
This argument cannot be assessed in
abstract. The context of the particular facts of the case
becomes critical to its evaluation.
It is common cause that for more
than thirty years after acquiring portion 7 in 1965 applicant did
not seek to develop its property.
If the relief is granted, it
would have the effect of declaring that applicant has township
development rights in relation to a
general plan which applicant
itself admits is outdated (see paragraph 35 of Mr Wiehahn’s
founding affidavit). In the period
of more than thirty years
applicant did nothing to develop its land or exploit the rights that
it claims. Significant changes to
the legislative framework
governing the environment have taken place during this time. Since
the 1960’s the Cape Peninsula Protected
Natural Environment has
been proclaimed. On 28 May 1998 the Cape Peninsula National Park’s
boundaries (which coincide with
those of the Cape Peninsula
Protected Natural Environment) was proclaimed which would doubtless
include the farm Oudekraal, but
for the fact that an approved
township existed. As Mr Petersen submitted, applicant appears to be
saying ‘I must be allowed,
after all this time, to assert and
establish the validity of what was done, but you the respondents,
may not dispute the validity
of what was done because that would be
to ‘mount’ an impermissible belated collateral challenge’.
Certainty of administrative decisions
and actions is an extremely important legal principle and must weigh
heavily in the decision
by a court to exercise its discretion in a
matter such as the present dispute. Given the facts of this case, in
which for so long
a period nothing has been done with the rights
which applicant claims, the argument focusing exclusively on the
value of the certainty
of property rights does not constitute a
sufficient justification for the Court refusing to consider the
collateral challenge. This
is not a case where a refusal to grant
declaratory relief would have the effect that applicant is forced
to remove the product
of any exercise of registered rights. After
thirty years applicant wishes to exploit its rights which were
granted in terms
of a plan which even applicant considers to be
outdated. In such a case, I am of the view that having satisfied
the court that
the rights were illegally granted, it would be an
improper exercise of the court’s discretion to refuse to allow
this challenge
solely on the grounds of delay. The fact that
applicant did nothing to necessitate such a challenge for more than
thirty years
must be an added consideration in the decision to
allow respondents’ challenge.
Conclusion.
For the reasons set out above, the
grant of the application for a township approval on 17 September 1957
lapsed after twelve months
without the submission of a general plan.
Accordingly the approval which was eventually granted was a nullity.
The invalidity of the Administrator’s
actions cannot now be undone by the registration which appears in
the Deeds Registry. It
is permissible for respondents to raise the
invalidity of the Administrator’s actions as a defence to the
application which has
been brought by applicant. The effect of the
invalidity of the Administrator’s actions is that applicant cannot
rely on the
registered township rights to justify the relief which
it seeks from this Court.
For these reasons the application is
dismissed with costs, such costs to include the costs occasioned
by the employment of two
counsel on behalf of first, third and fourth
respondents.
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DAVIS J
I agree

_______________
VELDHUIZEN
J