About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1988
>>
[1988] ZASCA 172
|
|
East London Western Districs and Others v Minister of Education and Development Aid and Others (444/86) [1988] ZASCA 172; [1989] 2 All SA 163 (A) (1 December 1988)
Case No.444/86
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
THE EAST LONDON WESTERN DISTRICTS
1st Appellant
FARMERS
ASSOCIATIO
N
SILVERDALE FARM (PTY) LTD
2nd Appellant
D W PEINKE AND SONS
3rd Appellant
TH
E MINISTER OF EDUCATION & DEVELOPMENT AID
1st Respondent
THE MINISTER
OF
CONSTITUTIONAL DEVELOPMENT
AND
PLANNING
2nd Respondent
SOUTH AFRICAN DEVELOPMENT TRUST
3rd Respondent
CORAM:
VILJOEN, HOEXTER, NESTADT, VIVIER et STEYN JJA
HEARD:
15 February 1988
DELIVERED:
1 December 1988
J U D G M E N T
HOEXTER, JA
2
HOEXTER, JA,
I have had the advantage of reading the judgment
prepared by VILJOEN, JA. I disagree, with respect, both with the reasoning
adopted
by him and the conclusion at which he arrives. In my judgment the
appellants have es-tablished that the settlement on the farm "Needs
Camp"
re-sulbed in an unlawful invasion of their rights, as the owners or occupiers of
properties adjacent to "Needs Camp", to the
ordinary use and enjoyment of such
properties; and I consider that the appeal should succeed.
In the Court below the respondents raised the detence that, to the extent
that any interference with the private rights of the appellants
might have
resulted from the settlement on Needs Camp, such interference was authorised by
the provisions of sec 10 of the Development
Trust and Land
Act,
3
Act, No 18 of 1936 ("the Act"). KROON, J upheld the defence of statutory
authority and therefore discharged the rule
nisi
earlier obtained by the
appellants. My Brother takes the view that it was unnecessary, and indeed quite
inapposite, for the Court
below at all to have considered the defence of
statutory authority; that the appellants misconceived the remedy open to them;
and
that in law the appellants could have asserted their rights, if any, only by
way of review pro-ceedings based on allegations of gross
unreasonableness or
mala fides.
It seems to me, with respect, that in the Court below KROON,
J was obliged by law to determine the fate of the application by reference
to
the defence of statutory authority raised by the respondents; but I take the
view that the learned Judge erred in deciding in
favour of the respondents that
that defence had been established. I am further of the opinion that the
appellants were not confined
to seeking relief by way
of
4
of review proceedings and that they were entitled to the grant of an
interdict.
To the exposition of the facts contained in the judgment of
VILJOEN, J there may usefully be added one or two details affecting the
nature
and extent of the property rights which the appellants sought to protect by
their application to the Court below. The first
appellant is a voluntary
association representing the interests of organised agriculture and farmers in
the region extending westwards
from the Buffalo River, where it flanks East
London on the southern side, to the Chalumna River which forms the boundary
between
the Republic of South Africa and the Ciskei. This region includes the
area known as Kidds Beach. The second appellant, which withdrew
its appeal
before the hearing thereof, is a member of the first appellant. In the Kidds
Beach area the second appellant is the owner
of the farm
"Silverdale"
5
"Silverdale" which adjoins "Needs Camp". In addition the
second appellant
is the owner of five other farms within the
first appellant's region. The
third appellant is a partner-
ship which either owns or occupies fifteen
farms within the
said region. These include the farm "Mount Pleasant"
which
adjoins "Silverdale". For the purposes of the present
appeal our law
would properly regard the owner of "Needs
Camp" and the appellants as
neighbours. Into this legal
relationship certain reciprocal rights and obligations are
imported. In
Regal v African Superslate (Pty) Ltd
1963(1)
102 (A) - to which reference is hereafter made as "the
Superslate
case" - STEYN, CJ made the following general ob-
servations (at 106H/107A) -
"As algemene beginsel kan iedereen met sy eiendom doen wat hy wil, al strek
dit tot nadeel of mis-noeë van h ander, maar by aangrensende
vasgoed spreek
dit haas vanself dat daar minder ruimte is vir onbeperkte regsuitoefening. Die
reg moet h
reeling
6
reëling voorsien vir die botsende eiendoms- en genotsbelange van bure, en
hy doen dit deur eiendomsregte te beperk en aan die
eienaars teenoor mekaar
verpligtinge op te lê."
Our law recognises as one of the intrinsic rights
of
a iandowner or lawful occupier of land his right to the
reasonable enjoyment
of such land; and it provides him with
a remedy against those who
unjustifiably interfere with that
right.
Van der Merwe & Olivier,
Die Onregmatige Daad in die
SA
Reg, (5th ed) put the matter thus (at 504) -
"Die bevoegdheid tot ongestoorde besit en genot
van jou eie grond is een van
die inhoudsbevoegdhede
van eiendomsreg. Word op hierdie
bevoegdheid
inbreuk gemaak, het h mens met skending van die
eiendomsreg te
doen. Die uitdrukking 'nuisance'
of 'oorlas' dui dus eenvoudig aan dat 'n
herhaalde
inbreukmaking op eiendomsreg plaasvind
Wil die benadeelde slegs die oorlas beëindig,
is
die gepaste remedie h interdik So moet
die applikant bewys dat die respondent die oorlas veroorsaak het en dat die
respondent se handeling onregmatig was of is. Die skuldvraag
kom egter glad nie
ter sprake nie."
In
7
In South Africa the word "nuisance" has been used
in
countless decisions of our courts and it is often encoun-
tered in
legislation (see, for example, Cape Act 2 of 1855;
secs 4, 6 and 9 of the
Slums Act, No 53 of 1934; sec 122 of
the Public Health Act, No 36 of 1919;
secs 2, 181 of Ord 20
of 1974 Cape)). In English law the term of art
"public
nuisance" has a specialised meaning. In South Africa,
however
-
"....the term does not have exactly the same meaning or content as in English
law. In the main this is because much of what is designated
as a public nuisance
in English common law, in South African law has been statutorily proscribed or
is regarded as a distinct nominate
offence.
In the result the term 'public nuisance' in South African law has the simpiified
meaning of an ordinary nuisance so extensive in
its effect or range of operation
as to discomfort the public at large."
(
LAWSA
vol 19, sv "Nuisance" by J R L Milton, par 227 p 139)
It
8
It need hardly be said that when an individual is able to
establish that
his proprietary rights have been infringed
by a public nuisance he may sue in
his own right:
LAWSA
op cit, par 230 p 140. Contrasting the remedies
respec-
tively available in English law and Roman-Dutch law
Professor
T W Price
writes in 1949 (vol
66) SALJ 377
("Nuisance: The Carnarvon Municipality Case") at 383/4:-
"Any disturbance or interference, whether by threat or by overt act, of the
right to the rea-sonable enjoyment of property was treated
in Roman-Dutch law as
a disturbance of possession, entitling the complainant to the summary redress
given by the possessory remedies,
which redress was based upon the interdict.
There was no attempt, for there was no need, to classify these complaints under
such
headings as Trespass, Nuisance, Disturbance of Servitudes, etc. These are
complications existing in English law, due to the particular
historical
development of that system, and principally to the development of the Action of
Trespass and the remedy derived from it
by interpretation and analogy,
the
Action of Trespass on the Case
All this, however interesting, is quite irrelevant
to
9
to our law, both in the past and the present ...
in Roman-Dutch Law the complainant was always
entitled to his interdict, and
it is clearly re-
cognised in South Africa by an avalanche of
authority
that the interdict and the declaration
of rights are still the basic remedies
for any
infringements of the right to the reasonable
enjoyment of
property "
In the
Superslate
case
(
supra)
RUMPFF, JA observed (at
120F/G) -
"Wesenlik is dit, wat onder hinder in die Engelse reg ingesluit word, by ons die
volgende: 1. die aantasting van 'n persoonlikheidsreg
en wel die reg om
onbelemmerde genot van 'n saak te hê, hoofsaaklik onroerende eiendom, en
waarby 'n interdik gegee kan word
selfs by 'n versteuring sonder skuld of opset,
en 2. die aandoen van vermoënsregtelike skade, waarby m i skuld of opset
vereis
word."
In the instant case the appellants do
not claim damages for
patrimonial loss and the delictual liability of the respon-
dents is not in issue. The inquiry is confined to the
question
10
question whether there has been unreasonable interference
with the
rights of the appellants to the enjoyment of their
property.
In the judgment of the Court below the
affidavits
filed by the parties were subjected to a
careful and critical
examination. KROON, J found that in relation to the farm
"Good Hope" the appellants had failed to prove that the settle-
ment thereon constituted a public nuisance. In regard to
"Needs Camp", however, the learned Judge recorded the following
conclusions:
" I find that the applicants have esta-
blished that the settlement at 'Needs Camp' has given rise to an increase in
certain criminal activities perpetrated by persons residing
in the settlement
which has cognizably adversely
affected the ability of the applicants to
utilise their farms for farming purposes and their enjoyment of their farms
and which has given rise to a justifiable apprehension
on the part of the
farmers about the safety of them-selves and their families. And, it seems to me
that despite the disclaimer on
behalf of the
respondent
11
respondents in the papers, the authorities recognise that this state of affairs
has de-veloped; hence the taking of such measures
as requiring the Gately
Commando to patrol the affected area twice daily and once nightly.
The situation which has developed as a result of the cstablishment of the
settlement at 'Needs Camp' must, in my judgment, be regarded
as a public
nuisance and it is a direct result of the establishment of the settlement at
'Needs Camp'. The activities complained
of are un-reasonable in that they are
unlawful and are a public nuisance because they prejudice the rights of the
farmers in the
respects referred to above. It is no answer, as Mr
van der
Merwe,
for the respondents, scught to argue, to say that the respondents
cannot be held to account for the criminal activities of other
persons. The
position is not that the respondents are being held vicarious-ly liable for the
wrongdoings of others. Relief is being
sought against them on the basis of a
situation which has developed as a direct result of action taken on their
part."
Suffice it to say that upon an examination of
the affidavits
filed in the Court below I am in entire agreement with
the
findings by the learned Judge reflected in the passage from
his
judgment quoted above. In argument before this Court
counsel
12
counsel for the respondents had difficulty in challenging the correctness of
the finding that the settlement on "Needs Camp" constituted
a public nuisance,
but a further argument based on causality was pressed upon us. It was said that,
irrespec-tive of the merits of
the defence of statutory authority, the appeal
should fail for the reason that the appellants had failed to establish any real
causal
nexus
between the act of the third respondent in effecting the
settlement on "Needs Camp" and the nuisance which is the basis of the
appellants'
complaint. It was said that the villain of the piece was the
Ciskeian Government which had expelled the displaced persons from Ciskeian
territory and had dumped them on a South African road reserve. It was contended
that in these circumstances the true creator of the
ultimate nuisance was in
truth the Government of Ciskei. It could not be suggested, so the argument
proceeded, that the respondents
should have been content to leave the
displaced
persons
13
persons on the road reserve; and in consequence it would be
wrong in law
to hold the respondents liable for the presence
of the displaced persons on
"Needs Camp". In my opinion
there is no merit in this argument. No doubt the action of
the Ciskelan Government in dumping the displaced persons on
South African soil precipitated a real emergency which had
somehow to be met by the South African Government. But a
recognition of the emergency in question cannot alter the
position that it was in fact the third respondent in concert
with the first and second respondents which decided to settle
the displaced persons on "Needs Camp"; and that such action
was the real and proximate cause of the nuisance.
Before dealing further with the findings of the Court
a quo
and the
correctness of its conclusions derived therefrom, it is convenient at this
juncture to consider the legal propositions set
forth in the judgment of
VILJOEN, JA. In the course of his judgment my Brother expresses the view
that
14
that:-
"...the Act places no statutory duty on the State to effect a settlement of
Blacks on land purchased by the Trust in a way or on
a scale so as not to
detrimentaily affect the farming operations and activities of owners of
contiguous land."
It is true, of course, that:-
"...especially in contemporary conditions, some discomfort or inconvenience or
annoyance emanating from the use of neighbouring property
must needs be
endured."
(per MILLER, J in
De Charmoy v Day Star
Hatchery (Pty) Ltd
1967(4) 188 (DCLD) at 192A; and see further:
Malherbe v
Ceres Municipality
1951(4) SA 510(A) at 516A; the
Super-
slate
case (
supra
) at 110H. But the real question raised
in the judgment of VILJOEN, JA is the following. If (as the
trial Court has correctly found) the third respondent has
created a public nuisance which actually interferes with the
property rights of the appellants, are there valid grounds for
holding
15
holding that a claim by the appellants for an interdict is one
not
cognizable in a competent Court?
VILJOEN, JA holds that the Court
a quo
erred
in
applying the principles relating to statutory
authority because
it failed to appreciate that the case before it involved "ad-
ministrative
acts carried out by an organ of State in the
execution of a general policy of Government". The conclusion |
at which my Brother arrives is stated as follows:-
"Because the settlement was effected pursuant to the exercise of a policy
discretion the attack upon the decision could only be launched
by way of
review."
I cannot, with respect, share that view of
the legal position.
In the absence of statutory authority a public body has no
greater power to create a nuisance than a private individual.
The third respondent, a creature of statute, is empowered by
sec 4 of the Act "to do all such acts and things as bodies
corporate may lawfully do". It may well be the case, as my
Brother
16
Brother surmises in his judgment, that in practice the third
respondent
exercises its powers to settle Blacks on trust land
subject to ministerial or cabinet approval. This supposi-
tion, upon which considerable stress is laid by my Brother,
does not
appear to me, with deference, to be immediately germane
to the issue in the case. Under the State Liabiiity Act, No 20 of
1957, the particular prerogative of State whlch had earlier
prevented it from being sued in the courts was abolished;
and within the limits of Act 20 of 1957 the liability of the
State is co-extensive with that of the individual citizen.
It is true that such co-extensive liability is to an extent
qualified in sec 1 of Act 20 of 1957 by express mention of
"contract" and "wrong". While contract and delict are
thus specifically mentioned it is settied law that these
are not intended to be the sole grounds of liability. The State
Liability Act admittedly does not abolish all the prero-
gative
17
gative powers of the State; but here we are concerned
solely with an act performed under statutory authority
"An act done by virtue of the prerogative is simply an act done by the
executive, without statutory authority, the lawfulness of
which depends on the
customary law of England as adopted by us. It does not derive its lawfulness
from any vague and elastic notion
of executive sovereignty.
Although in describing the category of pre-rogative powers the word
'discretionary' is sometimes used, this only means that the exercise
of the
powers is not restricted Within the limits of any
statute."
(per SCHREINER, JA in
Sachs v
Donges
, N.O. 1950(2)
SA 265(A) at 306/7).
The point is a short one. I know of no principle
in our law which decrees that the Court must decline to redress a violation
of individual rights resuiting from an admini-strative
act simply because the
latter is performed in the words of VILJOEN, JA "in the course of implementing
a
general
18
general policy". Neither in oral argument before us nor in the further
submissions filed by counsel was any direct authority for such
a proposition
cited. I am, in particular, unable to discover any sound reason or legal
principle in support of such a limitation
upon the Court's jurisdiction to grant
an interdict; a limitation whose application in cases such as the instant one
would represent,
I consider, an arbitrary and unwarrantable proscription of a
remedy long available in our law to a wronged property owner. In my
view, and
irrespective of the precise juridical nature of the exercise of discretion which
promp-ted the settlement on "Needs Camp",
the Court below had an untrammelled
jurisdiction to hear the application for an interdict; and KROON, J (having
found as a fact that
the third respondent had interfered with common law rights
by the creation of a public nuisance) was bound to determine
the
19
the issue by testing the validity of the defence of sta-tutory authority
raised by the respondents. It remains to consider the correctness
of the
conclusion reached by the Court
a quo
that the third respondent had
discharged the onus of showing immunity under the Act for such inter-ference
with private rights.
The legal principles by which the matter falls to be decided are chiefly to
be gleaned from the decision of this Court in the oft-cited
case of
Johahnesburg Muni-cipality v African Realty Trust
1927 AD 163
("the
African Realty
case") and the observations made thereon by the majority
of the Court in the later case of
Bloemfontein Town Council v Richter
1938 AD 195.
A brief review of these judgments is here necessary.
In the
African Realty
case
(supra
) the plaintiff company sued
the defendant municipality for an interdict
and........
20
and damages. The plaintiff alleged that certain roads,
streets and drains
constructed by the defendant in certain
Johannesburg townships had greatly
increased the volume
and velocity of water discharged upon and flowing over
the
plaintiff's property. The defendant pleaded,
inter alia,
that the works complained of had been constructed under
statutory authority without negligence. At 172/3 of the
judgment INNES, CJ is reported as having said:-
"Certain general considerations may be useful but are not necessarily
decisive. For instance, the Legislature is not presumed to intend
an
inter-ference with private rights when no provision is made for compensation.
That principle loses much of its force, however,
when applied to
public undertakings But the nature and
character of the powers conferred, and of the work contemplated, and the
terms of the statute are important. The work authorised to
be done may be
defined and localised, so as to leave no doubt that the Legislature intended to
sanction a specific operation. In
such a case, especially if the work were one
required in the public
interest,
21
interest, an intention that it should be duly constructed in spite of
interference with common
law rights might fairly be inferred
On the other hand, where the permissive powers conferred are expressed in
general terms, where there is nothing in the statute to
localise their
operation, and where they do not necessarily involve an interference with
private rights, the inference would be that
the Legislature intended the powers
to be exercised subject to the common law rights of third persons. If, however,
the nature of
the work authorised is such that it may or may not interfere with
private rights according to cir-cumstances, then the person entrusted
with
statu-tory authority is entitled to show that, under the circumstances of the
case, it is impossible to carry out the work without
such interference, in which
case.an inference that an infringement of private rights was sanctioned would be
justi-fied. For otherwise
the grant of statutory
authority would be nugatory The enquiry in
each instance is whether an interference with private rights is justified. If it
is not, there is an end to the matter. If it is,
then the exercise of the
statutory power is limited by another consideration, namely it must be carried
out without negligence."
In the
African
Realty
case the works authorised by the relevant
sections of the
Ordinance were not localised or defined. That
feature,
22
feature, however, was held not to operate decisively in the
matter. At 175 INNES, CJ remarked:-
"The onus of proving the impossibility of avoi-
ding prejudice is of course upon the municipality;
but that
onus
has clearly been discharged. The
facts upon which the proof rests are hardly
in
dispute It is impossible to make
a single
street or a single gutter in the Houghton catchment area without increasing the
quantity and quickening the flow of water which finds
its way to the lower
ground. And under these circumstances I think that the Legislature must be taken
to have intended that the reasonable
and proper construction of streets and
drains should not involve the council in civil liability resulting from
concentration."
A further conspicuous example of a
case in which the
onus
of
proving impossibility of avoiding prejudice was easily dis-
charged is afforded by the decision in
Breede River (Robertson)
Irrigation Board v Brink
1936 AD 359.
In that case an irri-
gation board in the exercise of its statutory powers had con-
structed an irrigation canal which crossed a dry river bed and
interfered with the natural flow of the water in times of
extraordinary
23
extraordinary flood. In the course of his judgement DE
VILLIERS, JA said (at 366):-
"It is true that the powers conferred by the Act are expressed in general terms,
and are not localised, but at the same time it is
clear that they cannot be
exercised without inter-fering with private rights. For it is obviously
impossible to carry an irrigation
canal for miles across the countryside without
interfering with the natural flow (or drainage flow) of surface drainage
water."
In
Bloemfontein Town Council v
Richter
(
supra)
the defendant
municipality enjoyed the right by
servitude and statute tb dam
a river for the purpose of obtaining a water supply; and a
statutory right to maintain the dam. In maintaining the dam
the defendant removed silt by the ordinary method of scouring.
The plaintiff, a riparian land-owner, alleged that the scouring
had caused his side of the river-bank to collapse and in the
Orange Free State Provincial Division he succeeded in a claim
for damages and an interdict. The appeal to this Court
succeeded.
24
succeeded. This Court found that without the right to remove
the silt the
rights of the municipality could not be properly
exercised; and that the
right to remove the silt was one con-
ferred by necessary implication. It
further held that it had
been proved that the removal of silt, however
effected, would
cause some damage to the plaintiff's banks, and that
therefore
the Legislature intended an interference with private rights.
In the course of his judgment STRATFORD, JA referred at some
length to the principles laid down in the
African Realty
case,
which he described as most apposite to the case before him.
However, the learned Judge adverted (at 231) to a "practical
difficulty" in applying the law as expounded in the
African
Realty
case. In this connection STRATFORD, JA said the
following:-
"The distinction between exceeding a power and exerci-sing a power
negligently is difficult to draw. Is
it
25
it negligence to exercise the power by a method which causes grave injury to
another when other methods of its exercise are practicable
and possible which
will cause less injury? The answer to the last query seems to be in the
affirmative and the
onus
is on the plaintiff to prove such negligence. In
other words the position seems to be that if the defendant has proved that
all
possible methods of exercising the power will cause invaslon of the
plaintiff's rights, it is for plaintiff to prove defendant has
negligent-ly
chosen a bad method, in that there was another method 'reasonably practicable'
which would, if adopted, have caused
less or no injury. This is the effect of
the decision in the
African Realty Trust
case. But it requires little
imagination to appre-ciate the difficulty of drawing the line between the first
proof and the second.
Defendant first proves 'that the Legislature contemplated
an interference with private rights.' How is this to be proved but by showing
that using the power in every reasonably practical way injury to others must
ensue? And is not this proof an anticipation of the
proof said to be on the
plaintiff?
However, I think, there is one way of interpreting the decision which can be
satisfactorily applied. It is this: It is for the defendant
to prove that in
whatever way the power is exercised there must result some interference (of the
nature complained of) with the common
law rights of others. This being proved,
the
onus
is thus upon the plaintiff to prove that by the
adoption
26
adoption of certain precautions (reasonably prac-
ticable) or by the adoption of another method (also
reasonably practicable) to achieve the purpose of the
power the extent of the interference will be lessened -
not entirely avoided, for, if the defendant had dis-
charged his
onus,
avoidance is
impossible."
In a separate judgment CURLEWIS, CJ
agreed with the conclusion reached by STRATFORD, JA, but with reference to the
African Realty
case the learned CHIEF JUSTICE remarked (at 235/6)
that
he found:-
"....no difficulty in understanding the principles of law as thereln enunciated
relative to the exercise of statutory powers, or
in applying those principles of
law in the decision of the case before us."
As far
as the three remaining members of the Court (DE WET,
WATERMEYER, JJA & EEYERS, AJA) are concerned the report of
the case reflects (at 236) no more than that they "concurred".
However, as pointed out in
Germiston City Council v Chubb &
Sons
Lock and Safe Co. (S A ) (Pty) Ltd
1957(1) SA 312(A) at 322E,
it appears from the original record that in fact the three
remaining
27
remaining judges concurred only in the judgment of STRATFORD, JA.
The
facts of the last-mentioned case are also instructive in
regard to the matter
of
onus
here under discussion. That
case involved an action by an
adjoining land-owner against a
local authority for damages caused by flooding as a result of
roadmaking operations. On appeal this Court heid that the ini-
tial
onus
on the locai authority (of satisfying the Court that
the Legislature contemplated an interference with private rights)
was, in effectf automatically discharged. Delivering the judg-
ment of the Court SCHREINER, JA remarked (at 323A) that:-
"....it is established, not as a rule of law but as an unescapable conclusion
of fact, that the making of roads on sloping ground
necessarily modifies the
natural drainage of the locality and so to some extent interferes with the
rights of adjoining land owners....So
in a case based on flooding as a result of
roadmaking operations the discharge of the initial
onus
by the local
autho-rity is in effect automatic."
Against
28
Against the background of the legal principles touched upon
above it must
now be considered whether, and if so, to what
extent, the exercise of the powers conferred upon the third
respondent by sec 10 of the Act afforded the third respondent
immunity from liability for the nuisance created by the
settlement on "Needs Camp".
On behalf of the respondenks affidavits were
filed
by,
inter alios,
Mr M T Cilliers, the
Director of Land Affairs
in the Department of Development Aid. In his first affidavit
Cilliers states,
inter alia
-
"In my hoedanigheid as Direkteur Grondsake van die Departement
Ontwikkelingshulp is ek verant-woordelik vir die aankoop van grond
namens die
Suid-Afrikaanse Ontwikkelingstrust, h liggaam met regspersoonlikheid ingelyf in
terme van Artikel 4 van Wet nr 18 van
1936. Ek is verder ook verantwoordelik vir
die vestiging van mense op trustgronde."
Cilliers deposed to the fact that "Needs Camp" was the only
Trust...
29
Trust land in the area which was vacant and not the subject of a lease; that
"Good Hope" was the most suitable site on which to settle
the Kwelera/Mooiplaas
fugitives; and that in fact it was the only choice. The first respondent in his
affidavit pointed out that
there was a shortage of employment opportunities in
the whole district, and that the removal of the people concerned to another area
in the district (even if such had been available) would not have resolved the
problem of their unemployment. These allega-tions were
made on behalf of the
respondents in response to suggestions contained in the affidavits of the
appellants that sites other than
"Needs Camp" and "Good Hope" should have been
selected for the settlement of the displaced persons concerned. The appellants
did
not, however, attempt to identify any suitable alternative sites. In
argument before the Court below counsel for the appellants appears
to
30
to have made a general submission that somewhere in South
Africa there
should be more suitable sites, but again,
without indicating where these
might be found. In the
course of his judgment the learned Judge concluded
that
this suggestion by counsel:-
" does not in any way serve to refute
the respondents' evidence that 'Needs Camp' and 'Good Hope' were the only
practicable areas for the two settlements."
The failure by the appellants to refute the aforesaid
evidence by the respondents was, I think, regarded by
the Court below as a cardinal factor in the case; and
one pointing to the further conclusion that the inter-
ference with the private rights of the appellants was
legally excused. The
ratio
of the decision in the
Court
a quo
emerges from the penultimate paragraph of
the judgment in which the learned Judge states:-
"As
31
"As already mentioned, the nuisance com-plained of by the applicants has, in
the
result, proved to be an inevitable result of the establishment of the settlement
at 'Needs Camp' and the same would fall to be said
about 'Good Hope' should the
settle-ment there result in a nuisance.
In other words the circumstances are
such that the power granted by section 10 to settle the people involved in this
case could not
have been exercised without an interference with private rights
in the form of the nuisance which has resulted.
The respon-dents have
accordingly discharged the
onus
resting on them of proving that such
interference was justified and the appii-cants must suffer same." (My
underlining).
From the passage of the judgment just quoted it
is
clear that the learned Judge considered that the third
respondent had
discharged the initial onus which it bore,
that is to say the burden of
satisfying the Court that the
provisions of sec 10 of the Act contemplated an
interference
with private rights. It seems to me, with respect, that in
so concluding the learned Judge erred. For the reasons
which
32
which follow I take the view that the third respondent failed entirely to
discharge such initial
onus.
In the case of certain empowering statutes the intrinsic physical nature of
the works or acts authorised is such that their execution
necessarily and
inevitably involves the disturbance of common law rights. In the case of other
empowering statutes the works or acts
autho-rised are not so characterised.
Their inherent quality is not such that their performance necessarily entails an
encroachment
upon or infringement of private rights. Examples of the former
class of statutes are afforded in a number of the decided cases already
noticed
in this judgment. In the
African Realty
case this Court held that it was
impossible to exercise the power conferred (the construction of streets and
drains) without increasing
the flow of water whereof the plaintiff complained.
In the
Breede
33
Breede River Irrigation Board
case (
supra)
it was pointed out
that it is impossible to carry an irrigation canal for miles across the
countryside without interfering with the
natural flow of surface drainage water.
In
Bloemfontein Town Council v Richter
(
supra)
it was held to be
proved on the evidence that the removal of silt from the dam, howsoever
effected, would cause some damage to the
plain-tiff's banks. In
Germiston
City Council v Chubb & Sons Lock and Safe Co. (S A) (Pty) Ltd
(su
pra
) the conclusion. of fact was inescapable that the construction of
roads on sloping ground must interfere with the rights of adjoining
landowners
by modifying the natural drainage of the locality concerned.
In my view sec 10 of the Act does not fall into the former class. According
to its long title the Act is one -
"To
34
"To provide for the establishment of a
South African Development Trust and to define
its purposes; to make further provision as
to the acquisition and occupation of
land by Blacks and other persons;
to
amend Act No 27 of 1913; and to
provide
for other incidental matters."
Chapter III of the
Act sets forth special provisions regar-
ding the acquisition, tenure and
disposal of land by the
Trust and by Blacks, and matters relating thereto.
Sec
10 empowers the third respondent, subject to the further
provisions of that section, from time to time to acquire
land for Black settlement. Sec 10 does not sanction any
particular or specific settlement on Trust land. It does
not localise the settlement empowered. It confers permis-
sive powers in general terms.
In the light of the authorities to which reference
has already been made it was for the third respondent to
prove that in whatever way it settled persons on "Needs
Camp"
35
Camp" some interference with the common law rights of the appellants through
the creation of a public nuisance must necessarily and
inevitably result. The
fact that there was no alternative and suitable trust land on which the
displaced persons could be settled
is, I think, somewhat of a red herring in the
case. Accepting that "Needs Camp" was Trust land on which the third respondent
was
empowered to effect a settlement, it seems to me that the third respondent
could hardly discharge the initial
onus
simply by demonstrating (what was
self-evident and not in need of proof): that to dump 8000 refugees, many of whom
are unem-ployed
and hungry, without providing any housing and other basic
facilities, on a single farm in a prime agricul-tural area would create
a
nuisance disrupting the lives and livelihood of the farmers on adjoining farms
and imperilling their security. I agree with the
submission advanced on behalf
of the appellants by Mr
Leach
that the
learned
36
learned Judge here applied the wrong test. In my view the third respondent
could discharge the initial
onus
only by demonstrating to the
satisfaction of the Court that the settlement of
any
number of Blacks on
"Needs Camp" would inevitably result in the creation of such a nuisance. That
the third respondent failed to
do. Its failure is hardly a matter for surprise.
The creation of a nuisance to adjoining farmers is clearly not a demonstrably
necessary
consequence of the mere fact of a settlement, by itself, on "Needs
Farm". It is manifestly the very high density of such settlement,
and the manner
in which it was effected, which in the instant case make that consequence
unavoidable. The power to effect a settlement
on Trust land conferred by sec 10
is not a power linked with or referable to any particular number of settlers. In
my judgment the
third respondent failed to prove that the
act
37
act which the legislature empowered it to perform (the settlement of an
unspecified number of Blacks) on "Needs Farm" was impossible
of performance
without the creation of a public nuisance. It cannot avail the respondents to
show that the presence of 8000 refugees
on "Needs Camp" must inevitably result
in a public nuisance. In order to secure legal immunity therefrom the
respondents have to
show that the creation of such a nuisance is a demonstrably
necessary consequence of any settlement whatever on "Needs Camp" and
irrespective of the number (whether it be 8000 or 80 or 8) of settlers. This the
respondents are clearly unable to do.
One cannot but have sympathy with the 8000 displaced persons in their
unfortunate plight, and at the same time one has a keen appreciation
of the
quandary in which the respondents found themselves as the result
of
38
of the precipitate and heedless action of the Ciskeian Government. It is
clear that in deciding to settle the refugees on "Needs Camp"
the respondents
were actuated by the best of motives. It must be accepted, furthermore, that the
settlement of but a relatively small
number of refugees (as opposed to 8000 of
them) on "Needs Camp" would have done little to solve the total problem. In our
system
of law, however, the bureaucratic solution of problems, however
intractable, must be achieved with due regard to the legitimate property
rights
of ordinary citizens. The situation no doubt called for prompt action by the
respondents. Such action, however, required not
merely the alleviation of the
lot of the refugees but simultaneously therewith the protec-tion of the farming
community into whose
midst so many distressed persons were being precipitately
introduced. The respondents failed to secure the latter. Indeed, it is
a
matter
39
matter for comment that what is said on behalf of the respon-
dents in the
affidavits amounts largely to a bland denial
that any abnormal conditions arose as a result of the settlement.
For the aforegoing reasons I conclude that the appel-lants were entitled to
an order for an abatement of the public nuisance created
by the respondents.
During argument coun-sel for the appellants very fairly conceded that in all the
circumstances of the case an
order for abatement by the removal of the settlers
from "Needs Camp" would be neither realistic nor practicable. In the further
written
submissions on behalf of the appellants various proposals for a less
drastic form of abatement were put forward. One such was an
order for the
erection of a security fence entirely surroun-ding "Needs Camp". It is
noteworthy that the possibility of erecting
a wire fence along the boundary of
"Needs Camp" is a notion which occurred to and was considered by the first
respondents
40
respondent's own department. In this connection the first
respondent (who
is also the nominee of the State President
as the trustee of the S A
Development Trust) stated the
following in the course of his answering affidavit:-
"Wat betref die veiligheidsituasie is ek bewus daarvan dat die betrokke minister
alles in sy vermoë doen ten einde maksimum
beskerming te verleen teen
onwettige optredes, spesifiek in hierdie gebied. Dit word tans verder oorweeg
vanaf die kant van my departement
om moontlik 'n draadheining op te rig om die
plaas 'Needs Camp'. In hierdie verband sal die wenslikheid daarvan met die
Suid-Afrikaanse
Polisie bespreek word."
It seems to
me that such a fence, if properly patrolled on a regular basis throughout the
day and night, should result in an appreciable
abatement of the nuisance. An
order for its erection will be included in the order to be granted at the end of
this judgment.
A
41
A further matter requiring brief mention is this. For the reasons mentioned
by EKSTEEN, J (as he then was) when he granted the rule
nisi
herein, I do
not share the concern experienced by my Brother at the non-joiner of or the
absence of more direct notification to the
settlers of the terms of the rule
nisi.
Moreover, while the limited relief granted to the appellants in the
order which wiii issue may entail a measure of inconvenience
to persons entering
or leaving "Needs Camp", it can entaii no reai prejudice to those of the
settlers who are law-abiding and peace-loving.
In the result the appeals of the first and third appellants succeed with
costs. The order made by KROON, J on 12 June 1986 is set
aside, and the
following order is substituted therefor:-
"(1) The
42
"(1) The first, second and third respondents are ordered to abate the nuisance
caused by the settlement of persons on the farm Needs
Camp":-
(a)
by
taking all due and proper steps for the preservation of the security of the
farms adjoining "Needs Camp";
(b) by taking all due and proper steps
to secure the maintenance
of law and order in so far as the settlers of
"Needs Camp" are concerned, both
within and beyond "Needs Camp";
(c) by taking all due and proper steps
for the prevention of criminal
acts
by the settlers of "Needs Camp";
and,
43
and,
without limiting the generality of the aforegoing, (d) by the erection within
three months of the date of this order, along the entire
boundary of the farm
"Needs Camp", of a stout security fence to permit of entry to "Needs Camp" and
departure therefrom solely by
means of a gate, such fence and gate to be
properly patrolled and maintained. (2) The first, second and third respondents
will pay
the costs of the application."
G G HOEXTER, JA
VIVIER, JA )
STEYN, JA ) Concur