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[2024] ZALMPPHC 92
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NAD Property Income Fund (Pty) Ltd v South African National Roads Agency Limited (2137/2020) [2024] ZALMPPHC 92 (7 August 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
No:
2137/2020
(1) REPORTABLE: YES/
NO
(2) OF INTEREST TO THE
JUDGES: YES/
NO
(3) REVISED:
YES
/NO
SIGNATURE: DIAMOND AJ
DATE: 7/08/2024
In the matter between:
NAD PROPERTY INCOME FUND
(PTY)
LTD
APPLICANT
and
THE SOUTH AFRICAN
NATIONAL
ROADS AGENCY LIMITED
RESPONDENT
REVISED JUDGMENT
DIAMONDAJ:
[1]
The
Applicant issued a summons against the respondent to determine
compensation for a piece of land expropriated by the relevant
authority.
[1]
[2]
A full trial ensued, and this court gave judgment
on 19 January 2024.
[3]
The judgment of the court entailed the following:
the.court determined that SANRAL shall pay an amount of R 933 509-52.
The Plaintiff
initially claimed and amount of R 15 484 382.00,
and in amendment of pleadings, eventually increased this amount.
It
is therefore clear that this court valued the Property at an amount
substantially less than what was claimed by the Plaintiff.
Regarding
costs, the court ruled that it was justified to deviate from the
formula prescribed in section 15(2) of the Expropriation
Act, and
awarded costs in favour of the Plaintiff, a substantial portion of
which was on a scale as between attorney and client.
[4] NAD applies for leave
to appeal against the determination of the compensation amount and
SANRAL applies for leave to appeal
against the costs order.
[5]
This court opines that it is justified to grant
leave to appeal to both NAD and SANRAL in this application.
[6]
The considerations to be taken into account, in an
application for leave to appeal, are prescribed by section 17.
Section 17(1)
stipulates as follows:
"17 Leave to appeal
(1)
Leave to appeal may only be given where the
judge or judges concerned are of the opinion that- (a)
(i)
the appeal would have
a
reasonable prospect of success; or
(ii)
there is some other compelling reason why the
appeal should be heard, including conflicting judgments on the matter
under consideration.
[7]
In
the initial notice of the application for leave to appeal, NAD raised
its application for leave to appeal on several aspects
of the
judgement, in which in the submission of NAD, the court erred with
regard to, for instance, factual evidence and the inferences
that the
court draws from factual evidence. To name but one such instance, NAD
submits that the court erred in that it when the
final award was
made, completely ignored the calculations made by its valuation
expert, Mr Parfitt. NAD is indeed correct that
the court did ignore
the calculations of Mr Parfitt, but substantial reasons were given
for that, and this court is not satisfied
that another court will
come to a different conclusion. This submission of NAD, as well as
several others, revolve around the requirements
outlined in section
17(1)(a)(i) of the Act. In view of what is stated further in this
judgement, I do not elaborate on any of these
aspects.
[8]
Section 17 (1)(a)(ii) deals with the second ground
for leave to appeal and that is that there is some other compelling
reason why
an appeal should be heard.
[9]
As was described in the judgment, the.court was
confronted with a situation in which a valuation had to be made of an
awkward expropriation
in very peculiar circumstances.
[10]
The court had to approach. the entire question on
a clear basis, that is the application of the Expropriation Act, the
Sanral Act,
within the context of section 25 of the Constitution.
[11]
In Du Toit v Minister of Transport
[2]
Langa ACJ stated the following:
"The question of
the relationship between section 12 of the Expropriation Act and
section 25(3) of the Constitution should,
in my view, stand over for
another day."
[12] This court had to
arrive at some conclusion as the basis on which it would approach the
relationship between the Expropriation
Act and Section 25 (3) of the
Constitution.
[13]
This, the court did in Paragraphs 18 - 48 of its judgment. Amongst
others, this court stated that it is duty-bound to arrive
at a
determination of the market value of the expropriated portion of the
property, on a legal basis, and not by exercising any
discretion. But
the court also opined that the other factors mentioned in
section 25 (3) entail exercising a judicial
discretion.
[3]
[14]
There are several further considerations that
point to the fact that leave to appeal should be granted to NAD.
Amongst others, NAD
stated during argument for leave to appeal that
the entire concept of
"actual
financial loss"
and the method
applied by this court in the judgment has not previously been applied
in any other court.For this reason, so NAD
submits, that the judgment
involves a question of law that is of crucial importance in
expropriation matters and for that reason
it is appropriate that the
Supreme Court of Appeal should have the opportunity to·.
express itself on this issue. I agree
with the contention of NAD.
[15]
SANRAL applies for leave to appeal against the
order for costs granted against SANRAL. As was stated in the
judgment, the court
deviated from the formula prescribed for a costs
order in·Section 15(2) of the Expropriation Act, for the
reasons set out
in the judgment. Also, as far as can be established,
the Supreme Court of Appeal has thus far never authoritatively
expressed itself
on this issue. The Supreme Court of Appeal should
have the opportunity to do so.
[16]
Leave to appeal should consequently be granted to
Sanral, with regard to the order for costs.
'This court consequently
makes the following order:
(a)
Leave to appeal is granted to both the Applicant,
to the Supreme Court of Appeal.
(b)
Leave to cross appeal with regard to the order of
costs, is granted to the Respondent, to the Supreme Court of Appeal.
(c)
The costs of this application are to be costs in
the appeal.
DIAMOND AJ
Acting Judge of the High
Court
Limpopo Division,
Polokwane
APPEARANCES:
HEARD
ON
:
17 April 2024
JUDGMENT
DELIVERED ON
:
7 AUGUST 2024.
This revised judgment
was handed down electronically by circulation to the parties'
representatives by email. The date and
time for hand-down of the
revised judgment is deemed to be 7 AUGUST 2024.
FOR
THE APPLICANT
:
NGO MARITZ SC and JA VENTER
INSTRUCTED BY
:
Ivan Pauw and Partners Attorneys
travis@ippartners.co.za
pierre@ippartners.co.za
FOR
THE RESPONDENT
:
RF de Villiers
INSTRUCTED
BY
:
Mokgadi Attorneys
refilwe@rnokgadiattorneys.co.za
[1]
This
judgment will refer to the Applicant in this application (the
Plaintiff) in the trial as NAD, and do the respondent in this
application, the( first respondent) in the trial, as SANRAL.
[2]
2005
(11) BCLR 1053
(CC), Par 89.
[3]
NAD
amongst others, stated in its application for leave to appeal that
ihe court erred in this regard.