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1990
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[1990] ZASCA 78
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Administrator of the Transvaal and Another v J Van Streepen (Kempton Park) (Pty) Ltd. (640/88) [1990] ZASCA 78; 1990 (4) SA 644 (AD); [1990] 2 All SA 526 (A) (28 August 1990)
640/88 N v H
THE ADMINISTRATOR OF THE TRANSVAAL
First
Appellant
SENTRACHEM LIMITED
Second Appellant
and
J VAN STREEPEN (KEMPTON PARK)
Respondent
(PROPRIETARY) LIMITED
SMALBERGER, JA
640/88 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter
between:
THE ADMINISTRATOR OF THE TRANSVAAL
First Appellant
SENTRACHEM
LIMITED
Second Appellant
and
J VAN STREEPEN (KEMPTON PARK
)
(PROPRIETARY) LIMITED
Respondent
CORAM
: BOTHA, SMALBERGER, STEYN,
EKSTEEN, JJA, et SMUTS, AJA
HEARD
: 22 May
1990
DELIVERED
: 28 August 1990
JUDGMENT
SMALBERGER, JA :-
This is an appeal from a judgment of KRIEGLER, J, in the Transvaal Provincial
Division,
2
leave to appeal having been granted by the judge a
quo
. The appeal
concerns the validity of
Administrator's Notice 1909 of 4 September 1985
("Notice 1909") issued in terms of the provisions of s
7(1). of the
(Transvaal) Roads Ordinance 22 of 1957
("the Ordinance"). That section provides:-
"The Administrator may, by notice in the Provincial Gazette acquire any land and
cause it to be registered in the name of the State
for the construction or
maintenance of any road or for any purpose in connection with the construction
or maintenance of any road."
For a
proper appreciation of the issues
involved in the appeal it is necessary to set out in
some detail the circumstances which gave rise to the
proceedings in the court a
quo
. In doing so I shall
borrow liberally from the judgment of KRIEGLER, J.
What follows is either common cause or not in dispute
for the purposes of the present appeal.
3/
3 In terms of s 20 (a) of the Ordinance the power in respect
of the construction, maintenance and control of any public road in the
Transvaal
vests (subject to any contrary provisioh in the Ordinance or in the Road Traffic
Ordinance 21 of 1966) in the first appellant
("the Administrator"). By
definition (see . s l(v) of the Ordinance) construction of a road includes the
planning thereof. As far
back as 1973 the Administrator caused investigations to
be made with a view to alleviating problems caused by traffic congestion
on
roads P 91-1 and 51. At the time these two roads intersected on the
north-western fringes of the municipal area of Kempton Park.
Road P91-1 ran
approximately from west to east, connecting the eastern suburbs of Johannesburg
(in the west) with Kaalfontein (in
the east). Road 51 ran approximately from
south to north. It connected Isando and Kempton
4
Park (in the south) with the burgeoning black township of Tembisa, and
Midrand (in the north). On the south-western corner of the
intersection of the
two roads stands a piece of land known as Portion 213 of Zuurfontein 33, I R
belonging to the respondent, J van
Streepen (Kempton Park) (Proprietary) Limited
(to which company I shall, for the sake of convenience, continue to refer as
"the respondent").
The traffic problems caused by the ever increasing number
of vehicles using the roads and the unsatisfactory nature of the intersection,
were compounded by the existence of a private railway line adjoining road 51.
This line was operated by the second appellant ("Sentrachem"),
and ran over land
owned by it through one of its subsidiaries. It ran for several kilometres from
near Isando, in the south, to a
major industrial factory complex owned by
5/
5 Sentrachem through one of its subsidiaries (KOP) at
Chloorkop, north-west of the aforementioned intersection. Near Isando the
railway
line crossed road 51 from west to east. From there it ran adjacent and
parallel to road 51 to a point close to the Chloorkop factory
complex where it
crossed over road 51 to the west. Consequently there were two level crossings
over road 51 approximately two kilometres
apart. Moreover, immediately to the
east of the intersection of the two roads there was a further level crossing
where road P91-1
crossed thê railway line. The railway line in question
was a vital part of Sentrachem's industrial undertaking at Chloorkop,
where
products of national and strategic importance are produced. As then situated the
railway line did not traverse any portion
of the respondent's property. The
consulting engineers appointed to deal
6 with the matter examined and reported upon a number of alternative
proposals for the resolution of the traffic problems in the area.
The retention
of a railway line connection for Sentrachem between its Chloorkop factory
complex and the sources of its raw materials
to the south was at all
material.times a . vital consideration essential to the planning of any new
roads. Eventually the Administrator,
acting through the appropriate provincial
authorities, decided to proceed with the planning and implementation of a
combination of
two schemes ("the approved scheme"). In broad outline the
approved scheme entailed the upgrading of both roads P91-1 and 51 to dual
carriageways; the elimination of the level crossings on these roads; the
diversion of road P91-1 to the south; and the construction
of an interchange
approximately a kilometre to the south of the existing
.....7/
7
intersection. It further entailed the relocation of Sentrachem's railway
line from its position immediately adjacent to the eastern
side of road 51 to a
position adjacent to the western edge of the upgraded road 51. In its relocated
position the railway line was
destined to traverse a section of the respondent's
property.
Section 5(1)(b) of the Ordinance provides that the Administrator
may by notice in the Provincial Gazette, after certain prescribed
procedures
have been followed, declare that a public road shall exist on any land. By the
end of 1983 the planning of the approved
scheme had progressed to the point
where the Administrator could exercise his powers in terms of that section. This
led to the publication,
on 28 December 1983, of Administrator's Notice 2161
("Notice 2161"). In terms of that Notice the Administrator
8
declared "that Public Provincial Road 51 (K117) with varying widths, the
general direction and situation of which is shown on the
appended sketch plan
with appropriate co-ordinates of the boundary beacons, exist(s) within the
municipal area of Kempton Park".
The appended sketch plan depicted the declared
road encroaching on portion of the respondent's property along its eastern
boundary.
The area so encroached upon was 4454 sguare metres in extent. Of the
respondent's property thus encroached upon 3337 square metres
had been included
in the declared road to accommodate the relocation of Sentrachem's railway line,
which was to be located within
the road reserve (the road reserve being wide
enough for that purpose). Work on the approved scheme progressed. Sentrachem's
existing
railway line was maintained while the new line was being built in order
to ensure
9/
9
continuity of rail services. The intention was to
link up the Chloorkop
factory complex with the new
line early in September 1985 and then to
continue with
the construction of road 51's dual carriageway. In
about
mid-1985 Sentrachem became concerned about its
security of tenure of the new
railway line. On 8
August 1985 NCP Chloorkop (one of the divisions
of
Sentrachem) wrote a letter to the consulting engineers
in the following
terms:
"Neem asseblief kennis dat NCP Chloorkop nie van sY bestaande reg op hierdie
spoorlyn kan afstand doen voor bevredigende bewys gelewer
is dat die verskuifde
spoorlyn, wat die gevolg is van die padverklaring, juridies beveilig is nie.
Die nuwe spoorlyn kan dus nie in gebruik geneem word voordat sodanige
skriftelike bewyse gelewer is dat NCP Chloorkop die nuwe roete
kan gebruik
onderhewig aan dieselfde onvoorwaardelike regte huidig tot sy beskikking
nie.
Kan u asseblief so spoedig moontlik hierdie saak met ons
uitklaar."
10/
10
Due consideration was given to this letter,
and on
30 August 1985 the Transvaal Director of Roads
submitted a memorandum to the
Administrator-in-
Executive-Committee in the following terms:
"1. Weens die verlegging en verbreding van distrikspad 51 wat kragtens
Administrateurskennisgewings 175 . van 14 Februarie 1979,
648 van 2 Junie 1982,
2161 van 28 Desember 1983 en 1458 van 15 Augustus 1984 afgekondig is, was dit
nodig om Klipfonteinse Organiese
Produkte (hierna K.O.P. genoem) se bestaande
private spoorlyn te verlê. K.O.P. het
eiendomsreg
van die betrokke
spoorlynreserwe wat oor h aantal privaateiendomme gaan. Die spoorlyn is die
slagaar van die onderneming deur middel
waarvan die grondstowwe vir verwerking
na die fabriek vervoer word.
2. K.O.P. beskik nie oor enige onteieningsbevoegdhede nie en as gevolg van die
kritieke tydsfaktor in soverre dit die bou van die
pad en die verlegging van die
spoorlyn betref, is die Departement genoodsaak om h groot gedeelte van die
verlegde spoorlyn binne
die padreserwe van pad 51 te huisves. Die werk hieraan
verbonde is reeds uitgevoer en die oorskakeling na die nuwe spoorlyn is vir
3
September
1
985
bepaal en is so beplan dat die bou van die pad
sowel as K.O.P. se bedryfsaktiwiteite nie
daardeur
11/
11
versteur word nie.
3.
Voormelde verlegging en
verbreding van pad 51 neem ook h gedeelte van Gedeelte 213 van Zuurfontein 33 IR
in beslag en affekteer die
bestaande toegang na die motorhawe op die perseel,
soos in
oranje
op die saamgestelde plan van planne PRS 81/55/7-9Lyn (in
bundelsak) aangetoon. Dit het onder die Departement se aandag gekom (p.
279) dat
die eienaar van die betrokke eiendom voornemens is om 'n dringende
hofinterdik
aan te vra om die verklaring van die pad ongeldig verklaar te
kry op grond daarvan dat die Aministrateur se bevoegdheid, om spesifiek
deur
middel van die verbreding van h padreserwe die verlegging van h private spoorlyn
te akkommodeer, aangeveg word.
4.
Daar bestaan
h wesentlike moontlikheid dat h aansoek om h hofinterdik van voormelde aard mag
slaag. Indien dit gebeur sal ernstige
finansiële gevolge vir die
Departement ontstaan aangesien die konstruksie van die pad dan grootliks
belemmer sal word met gepaardgaande
verlieseise van die padboukontrakteur wat na
raming
R250 000,00
per maand kan beloop. Benewens hierdie eise kan baie
groot verlieseise van die kant van K.O.P. verwag word indien h suksesvolle
hofinterdik
hom die gebruik van die verlegde spoorlyn binne die verklaarde
padreserwe sou ontsê.
12/
12
K.O.P. het dus om sy belange te beskerm, 'n brief aan die raadgewende
ingenieurs Scott en De Waal gerig waarin daar verklaar word
dat hy nie meer
bereid is om na die nuwe spoorlyn oor te skakel nie behalwe indien die
Administrasie die onbelemmerde gebruik daarvan
juridies kan waarborg (p.p. 280
en 281).
5.
Artikel 7
van die Padordonnansie, 1957, maak voorsiening daarvoor
dat die . Administrateur enige grond kan verkry en op naam van die Staat
laat
registreer vir, onder meer,
enige doel
in verband met die aanleg en
instandhouding van enige pad. Die verlegging van die spoorlyn as 'n noodwendige
gevolg van die aanleg
van die pad kan dus ingelees word by "
enige doel
"
in verband met die aanleg van enige pad. In die omstandighede van die geval was
dit noodsaaklik vir die Departement om die spoorlyn
self na 'n ligging binne die
padreserwe te verlê en sou dit nie moontlik gewees het om die pad op sy
verklaarde belyning te
bou nie, indien sodanige verlegging nie toegepas is nie.
Dit kom dus voor dat die huisvesting van die spoorlyn binne die padreserwë
van pad 51 bo alle twyfel
gewettig
sal word indien die gedeeltes van die
padreserwe wat daarvoor benodig word soos in groen op voormelde plan aangetoon,
(in bundelsak)
kragtens voormelde
artikel 7 verkry
word. Die bedoelde
strook grond kan dan na oordrag in die naam
13/
13
van die Staat aan K.O.P. terugtransporteer word teneinde die
status
quo
te herstel
6. Dit word derhalwe aanbeveel dat:
(a) Die gedeeltes van die
verklaarde padreserwe van
distrikspad 51 soos in
groen
op die saamgestelde plan van
planne PRS 81/55/7-9Lyn
(in
bundelsak) aangetoon, krag=
tens
artikel 7
van
die
Padordonnansie, 1957, verkry
word vir doeleindes wat met
die aanleg
van distrikspad 51
in verband staan en die
betrokke gedeeltes na
oordrag
daarvan in naam van die
Staat
aan Klipfonteinse
Organiese Produkte getran= sporteer word met dien verstande dat, indien van
toepassing, die vergoeding betaalbaar aan laasgenoemde
vir die grond deur die
padreserwe in beslag geneem, dienooreenkomstig aangepas sal word; en
(b) die koste van voormelde
oordragte deur die Admini=
strasie gedra
word."
14/
14
The recommendation made in paragraph 6 of
the memorandum was duly approved. Pursuant thereto
Notice 1909 was
published. The Notice stipulates that
the Administrator
"hereby acquires and causes it to be registered in the name of the State,
portions of Mooifontein 14 IR, Klipfontein 12 IR and Zuurfontein
33 IR as
indicated on the subjoined sketch plan for purposes in connection with the
construction or maintenance of a road.
The land so acquired has been physically
demarcated."
The sketch plan that accompanied the
Notice indicated
by means of bold boundaries and stipples the areas
in
question. The portion of the respondent's property
sought to be
acquired by Notice 1909 corresponds
exactly with the area of 3337 square
metres in Notice
2161 which was intended to accommodate
Sentrachem's
railway line. For convenience I shall refer to the
area in
question simply as "the respondent's land".
15/
15
The respondent, through its attorneys, lodged
objections with the Administrator challenging the validity of both Notices 2161
and
1909. Its objections centred on the fact that the Administrator was not
empowered by the Ordinance either to declare a road over
the respondent's land,
or to expropriate such land, for the establishment of a railway line. In
addition, it was alleged that Notice
1909 was invalid for want of an adequate
description of the respondent's land purportedly expropriated thereunder. Thus
the battle-lines
were drawn. The Administrator refused to accede to the
respondent's demands. This led to the issue of summons by the respondent against
the Administrator and Sentrachem, the latter having been joined by virtue of its
interest in the matter. It is not necessary to analyse
the pleadings. There were
numerous claims and alternative claims, all
16/
16
vigorously opposed. The parties ultimately agreed
to seek
an order in terms of Rule 33(4) of the Uniform
Rules of Court that certain
issues be determined
separately. Consequent thereon the following
order
was made by the judge a
quo
on 12 July 1988:
"1. That in the above action the . following guestions of law and/or f act be
decided separately f rom any other issues:
(a) whether Administrator's
Notice 2161 dated 28 December
1983 is valid
or invalid;
(b) whether, in the event of
Administrator's Notice 2161
being held to
be valid, such
notice entitled the first
defendant to:
(i) carry out works for purposes of constructing a railroad;
(ii) construct, or cause to be constructed, a railroad;
(c) whether Administrator's 17/
17
Notice 1909 is valid or
invalid.
2.
That all further proceedings
be stayed until the questions in (a), (b) and (c) supra have been
decided.
3.
That the costs of this application
be costs in the cause of the action."
The only
evidence led related mainly to the adequacy or otherwise of the description of
the respondent's land purportedly expropriated
in terms of Notice 1909. In this
respect Dr Gerke, a land surveyor, testified on behalf of the respondent, and Mr
Whitehorn, a topographical
and engineering surveyor, on behalf of the
Administrator. In addition the Administrator also led the evidence of a Mr
Pemberton,
one of the consulting engineers who had been intimately involved in
the planning and execution of the approved scheme.
18/
18
Judgment was delivered on 12 August 1988,
and the
following order was made:
"
IT IS ORDERED
:-
1. THAT Administrator's
Notice 2161 of 28 DECEMBER 1983, insofar as it relates to portion 213 of
Zuurfontein 33 IR is declared to
have been invalid.
2.
THAT Administrator's Notice
1909 of 4 SEPTEMBER 1985 insofar as it relates to portion 213 Zuurfontein 33 IR
is declared to have been
invalid.
3.
THAT
defendants (i.e. the Administrator and Sentrachem) jointly and severally, the
one paying the other to be absolved, pay the costs
of these proceedings, such
costs to include the fees of two counsel, and the qualifying fees of Dr
Gerke."
Subsequently leave to appeal was sought, and
granted,
against orders 2 and 3 only.
19/
19 The present appeal raises two issues relative to the
validity of Notice 1909. The first is whether the Administrator's purported
expropriation (henceforth "the expropriation"). of the respondent's land falls
within the scope of the powers conferred upon him
by s 7(1) of the Ordinance.
The second is whether Notice 1909 is invalid for want of an adequate description
of the land it was sought
to acquire in terms thereof. These issues will be
addressed in turn.
Ih respect of the first issue, the basis of the
respondent's attack on the validity of Notice 1909 is that the Administrator
expropriated
the respondent's land for a purpose not authorised by s 7(1) of the
Ordinance. As appears from the factual background which I have
outlined, when
Notice 1909 was issued in 1985 the respondent's land had already been occupied
and the railway line constructed thereon.
This had
20/
20
been done in purported pursuance of, and reliance upon, the declaration of
road 51 in terms of Notice 2161. The judge a
quo's
finding that Notice
2161 was invalid is not the subject of attack on appeal. Mr
Osborn
, for
the respondent, argued that because Notice 2161 was invalid, the Adminlstrator
had no right to occupy the respondent's land
in 1985, and was in fact
trespassing thereon. The real purpose of Notice 1909, so it was contended, was
to legitimise such trespass.
If this was the true purpose of Notice 1909, then
prima facie
the Administrator's conduct would have fallen beyond the
ambit of his powers in terms of s 7(1) of the Ordinance. To assess the cogency
of this line of argument, and to determine the true purpose of Notice 1909, one
must perforce have regard to the events which preceded
its issue. Only by so
doing can one gain a proper perspective of what Notice 1909 sought to
.....21/
21 achieve.
It is apparent from the history of this matter that when road
51 was declared in terms of Notice 2161, one of the underlying purposes
of the
declaration was the accommodation within the road reserve of Sentrachem's
railway line. What the declaration sought to achieve,
inter alia
, was the
utilization of the respondent's land for that purpose. It failed in this regard
because it was invalid. Notice 1909 was
intended to bring about the same result
- hence the expropriation of the respondent's land. To take the view that its
purpose was
simply to legitimise a trespass is to close ones eyes to the
realities as evidenced by the history of the matter. In relation to
the first
issue, therefore, one should approach the matter as if the Administrator's
expropriation of the respondent's land had taken
place
22/
22
in 1983 and not 1985 - in other words, as if Notice 1909 had been issued
instead of (or in conjunction
with) notice 2161. So seen, the real or main
purpose of Notice 1909 (as it affects the respondent) was not to legalise a
trespass,
but to expropriate the respondent's land for the purpose of
accommodating Sentrachem's railway line - in keeping with what the Administrator
all along had in mind. The respondent's contention accordingly lacks substance.
This immediately brings me to the next point, which
is the crux of the appeal on
the first issue. As the Administrator has conceded throughout that his purpose
behind the expropriation
of the respondent's land was the construction of a
railway line and not a road, the question arises whether this is a legitimate
purpose falling within the purview of s 7(1) of the Ordinance. Section 7(1)
provides for two separate and
23/
23
distinct circumstances in which the Administrator may
acquire land. He is
empowered to do so "for the
construction or maintenance of any road" (to
which I
shall refer as the primary purpose) or "for any purpose
in
connection with the construction or maintenance of
any road" (to which I
shall refer as the secondary
purpose). It is common cause that the
respondent's
land was not expropriated for the primary purpose
of
constructing a road - this is abundantly clear from the
terms of Notice
1909.. The concept of the "maintenance
of any road" plays no role in the
present appeal, and
can therefore be disregarded with all its possible
ramifications. In terms of the definition section
of the Ordinance (s
l(xxi)) "road" means
"any road (other than a railroad) intended for vehicular or animal traffic and
includes a bridge or drift traversed by a road and
intended for use in
connection therewith; and all land reserved or designated as a road under the
provisions of some law or other"
24
"Construction" is defined in s l(v) as including
"planning, surveying, laying out, clearing of bush, forming and making of any
road and the construction of any bridge, pontoon, ferry,
or drift to service
such road or proposed road, all road signs and all necessary approaches,
excavations, embankments, subways, furrows,
drains, dams, curbs, weigh-bridges,
fences, parapets, guards, drainage works within or outside such road,.and any .
other work or
thing forming part of or connected with or relating to such road,
and further includes any alteration, deviation, widening or improvement
of such
road"
From the definitions of "road" and
"construction" it is
apparent that the Administrator has wide powers
of
expropriation in terms of s 7(1).
The competence of a court to adjudicate upon
the
validity of an Administrator's exercise of his
power under s 7(1) of the
Ordinance may vary according
to whether such power is exercised for the primary or
secondary purpose envisaged by that section. When an
Administrator decides
that land is to be acquired for
....25/
25
the construction of a road, his decision is the product
of an opinion
formed with reference to a host of often
complex considerations. His
decision, and the opinion
on which it is based, is not objectively
justiciable.
In
Pretoria City Council v Modimola
1966(3) SA 250 (A)
BOTHA, JA,
stated the following (at 263 G - H):
"In the absence of a provision prescribing a
quasi
-iudicial enquiry as a
pre-requisite to the exercise of a power of expropriation, the act of
expropriation is a purely administrative
act. (Cf.
Johnson & Co v
Minister of Health
,
(1947) 2 All E R 395
at pp 398 - 9 and
Minister of
The Interior and Another v Mariam
, 1961(4) SA 740 (A D) at p 751). Where
unqualified authority is conferred for the expropriation of land required for
public purposes,
an opinion by the expropriating authority, if fairly and
honestly come to, that particular land is required for such purposes, is
all
that is reguired for a valid expropriation of that
land."
Although the classification of acts as
"
quasi
-judicial"
and "purely administrative" has fallen into disfavour
in our law (see
Administrator, Transvaal, and Others v
26/
26
Traub and Others
1989(4) SA 731 (A)), and
Modimola's
case dealt with the application of the
audi alteram partem
maxim in
expropriation cases, the views expressed by BOTHA, JA, are applicable to a
matter such as the present. Accordingly, where
an Administrator has subjectively
formed the opinion that land is needed . for the construction of a road the
merits of that opinion
(i e whether or not such opinion is correct or could not
reasonably have been held) cannot be adjudicated upon by a Court. Such opinion
is only open to attack on review on one or more of the limited grounds
recognised in
Shidiack v Union Government (Minister of the Interior)
.
1912 A D 642.
(I specifically leave open the question whether the same principle
applies when the relevant consideration is that of "maintenance"
as opposed to
"construction".)
27
Although Mr Junod, for the Administrator, did not argue the point, Mr
van
Rooyen
, for Sentrachem, contended that a similar position pertains where the
Administrator seeks to acquire land in terms of s 7(1) of the
Ordinance for the
secondary purpose envisaged by that section. It seems to me that one may validly
draw a distinction between the
opinion formed by the Administrator with regard
to the acquisition of land for the primary purpose of the section, and his
decision
to acquire land "in connection with" such purpose (i e for the
secondary purpose). The former requires an opinion to be formed with
regard to
considerations. which include matters of policy, economic considerations and the
public interest (to mention but a few),
whereas the latter is merely ancillary
in nature. I see no reason in principle why once the purpose for which land is
being acguired
for
28/
28
the secondary purpose has been clearly determined (as is the case here), a
court is not entitled to enquire into the question whether
such purpose falls
within the ambit of s 7(1). For the purposes of the present appeal I shall
accept, without deciding, that the
court has the power to determine objectively
whether the accepted purpose for which the Administrator acquired the
respondent's land
was one in connection with the construction of road 51, in
other words, whether the Administrator had the power to act as he did.
One must
distinguish between the existence of such power and the manner of its exercise.
In the present appeal we are only concerned
with its existence, not the manner
of its exercise. The manner in which the Administrator exercised his power would
only be open
to challenge on one or more of the recognized grounds of review
(see
Johannesburg Stock Exchange and Another v Witwatersrand
29/
29
Nigel Ltd and Another
1988(3) SA 132 (A) at 152 A -
E).
No such grounds were raised on the pleadings.
It is clear, both in terms of authority and
as a
matter of logic, that the words "or for any
purpose in connection with the
construction of-
any road" in s 7(1) bring about a substantial widening
.
of the Administrator's power to acquire lánd in terms
of that
section. (
Secretary for Inland Revenue v
Wispeco Housinq (Pty)
Ltd
1973(1) SA 783 (A) at 793 B).
The expression "in connnection with" is
one devoid of
precise meaning. Its ambit is always a matter
of
uncertainty. As pointed out in
S v Mpetha and Others
(1) 1982(2) SA 253 (C) at 257 C - D, the words
"can quite properly cover the whole spectrum of relationships from a close and
direct relationship, at the one end of the scale,
to a remote and indirect
relationship, at the other end. The term is an elastic one and the context and
purpose of the statutory
provision must be considered in order to assess the
degree of elasticity appropriate to the
case."
30/
30
(See too
Rabinowitz and Another v De Beer's Consolidated Mines Ltd and
Another
1958(3) SA 619 (A) at 631 G.)
The object of the legislature in
enacting s 7(1) of the Ordinance was to broaden the general powers of the
Administrator in respect
of the construction of roads (as provided for in s 20
of the Ordinance) so as to plan, regulate and control the construction of roads
in the most efficient way in the public interest. The words "in connection with"
in s 7(1) must be afforded a meaning consonant with
such intention. Sight must,
of course, not be lost of the fact that one is dealing , with an expropriation
provision which may call
for a restrictive interpretation having regard to the
inroads it makes on the rights of private ownership (
Rigg v South African
Railways and Harbours
1958(4) SA 339 (A) at 349
31/
31 A - B). However, this principle would normally only apply
in the case of doubt. Where thelegislature's intention is clear from
the express
words used, or follows by necessary implication from the terms of a particular
provision, effect must be given thereto.
As previously indicated, the
respondent's land was expropriated for the purpose of relocating Sentrachem's
railway line. It is correct
to say that road 51 could have been physically
constructed without the need to expropriate the respondent's land. In that sense
the
expropriation was not necessary for the construction of road 51. There is,
however, no justification for limiting the application
of the expression "any
purpose in connection with" to what is necessary for the physical construction
of a road. Properly interpreted
the expression denotes that which is reasonably
expedient in relation to the construction
32/
32 of a road. This affords the expression, within the
context of s 7(1), a relatively wide meaning. In my view it is a necessary
inference
that the legislature intended it to have such a meaning -bearing in
mind that the construction of a road (which includes planning)
involves
considerations of policy in . regard to the regulation of traffic, economic
considerations and the benefit of the public
generally. To adopt a more
stringent test would defeat the object of the legislature. In the circumstances
of the present matter
the test for reasonable expediency would be satisfied if
the purpose for which the Administrator's power of expropriation was exercised
was either inextricably associated with the construction of road 51; or was an
integral incident of the construction of the road;
or was causally connected
with the construction of the road. (Cf the
33/
33
Wispeco Housing
case at 794 A and 794 D.)
In the course of his judgment, KRIEGLER,J,
stated,
inter alia
, that the Administrator's powers are
limited and
"must remain within the express context of
roads" and "should all be directed
towards 'any road'".
Since the Administrator was concerned with
roads
section 7(1) did "not afford him authority to
expropriate land for
the establishment of a railway
line". He concluded:
"As I see the facts Administrator's Notice 1909 of 4 September 1985 was issued
for the express and sole pupose of acquiring those
portions of land falling
within the previously proclaimed road reserve which were intended exclusively
for the accommodation of the
second defendant's (Sentrachem's) new railway line.
A power to expropriate land needed directly for road building or maintenance
purposes, or for purposes more remotely connected with such purposes, was
purportedly used to acquire land expressly needed for railway
purposes. That the
first defendant was not empowered to do. Administrator's Notice 1909 of 4
September 1985 is therefore also in
my view
ultra
vires
."
...../34
34 I am constrained to disagree with the learned judge.
The expropriation of the respondent's land for the direct or immediate purpose
of constructing a railway line on it does not
per se
invalidate the
expropriation. The fact that s 7(1) of the Ordinance is concerned with the
acquisition of land f or road . construction
does not necessarily preclude the
acquisition of land for other purposes provided the required connection between
such purpose and
the construction of the road is present. In my view the judge a
quo
adopted too narrow an approach to the matter. He failed to properly
address the real question,
viz
., was the purpose for which the
respondent's land was acquired one "in connection with" the construction of road
51. No doubt at
first blush it is a somewhat startling proposition to suggest
that
...../35
35
the building of a railway line can be said to be something "in connection
with" the construction of a road. To determine whether or
not this can be so in
the present instance one must have regard to all the relevant surrounding facts
and circumstances which the
court a
quo
had before it. These can be
gleaned from the pleadings, documents and evidence which form part of the
record, and which reflect the
history of the matter as outlined above.
It is
abundantly clear from the evidence of Pemberton that from the conception of the
approved scheme the respondent's land was earmarked
for the relocation of
Sentrachem's railway line, the "lifeline" of Sentrachem's factory complex at
Chloorkop. It freqúently
occurs in the course of road construction that
existing services such as power lines or cables, water pipes, sewerage pipes and
the
like are disrupted
36/
36 and have to be relocated. When the road in question' is
in a developed area there would inevitably have to be a relocation of services.
It would be part and parcel of the planning (and therefore the construction) of
a new road on or near an existing road to have regard
to the possible disruption
of such services and to provide for their relocation, bearing in mind that the
Administrator acts in the
public interest. The -question arises whether, in the
absence of an express provision to that effect, s 7(1) impliedly empowers the
Administrator to acquire land for the relocation of such services. Can he, for
example, acquire a strip of land next to a road that
is to be constructed for
the purpose of relocating a power line? The answer to my mind is an unequivocal
"Yes". The legislature must
be presumed to have been aware of the fact that road
construction frequently or inevitably involves the
37/
37
relocation of services, and to have intended to empower the Administrator to
deal with such a situation. In the example given the
acquisition of land to
relocate a power line is "for a purpose in connection with" the construction of
the road - the purpose for
acguiring the land is inextricably associated with,.
or an integral incident of, or causally connected with, the construction of
the
road. The same would hold good for other services provided by public utilities.
If services of the kind mentioned can be relocated,
and land acguired for such
purpose, then as a matter of principle and logic there is no reason why the same
should not hold true
in the case of a railway line. Section 7(1) of the
Ordinance is therefore, in my view, wide enough to encompass the acquisition of
land for the relocation of a railway line provided the relevant facts establish
that such relocation is "in connection
38/
38
with" the construction of a road in the sense in which that expression must
be understood.
Mr
Osborn
accepted in principle that the building or
relocation of a railway line could be for a purpose "in connection with" the
construction
of a road. He cited as an example the need to build a railway line
(and acquire land for that purpose) to provide materials for a
road being
constructed over inaccessible terrain. He contended, however, with regard to the
present matter, that although the construction
of road 51 was a
sine qua
non
for the relocation of Sentrachem's railway line (in the sense that but
for the road the railway line would not have had to be relocated),
it was not
necessary for the construction of the road to relocate the railway line as
compensation could have been paid instead.
This, as I have already pointed out,
is too narrow an
.....39/
39
approach. There is no warrant for interpreting s 7(1) so restrictively. The
test is not one of necessity but reasonable expediency.
And that test is
satisfied in the present instance.
Mr
Osborn
pointed out in argument
that the approved scheme was not the one that had initially been recommended by
the consulting engineers;
that a scheme could have been adopted which would have
preserved Sentrachem's railway line or not have interfered with the respondent's
right to his property; that there was no evidence that the approved scheme was
economically more viable than any other scheme. These
considerations relate to
the manner in which the Administrator exercised his power. They do not effect
the existence of such power.
They are therefore not relevant to the present
appeal.
40/
40
It was further argued by Mr
Osborn
that the Administrator could, and
should, have compensated Sentrachem for the loss of its railway line, and that
it was an improper
exercise of the Administrator's power to seek to minimise the
compensation payable by providing Sentrachem with an alternative railway
line.
Nor was the Administraror entitled to acguire the respondent's land and transfer
it to Sentrachem, or one of its subsidiaries,
to achieve this purpose. When
planning the construction of road 51 the Administrator
was in my view
entitled and bound to consider the total cost of the whole project, and to
minimise costs as far
as possible in the public interest, provided always
that he acted in good faith in doing so. As Mr
Junod
correctly pointed out, the Administrator's contemplated transfer of the
respondent's land to Sentrachem to
minimise the compensation otherwise
payable was only
41/
41
an ancillary purpose and not the primary reason for the
expropriation of
the respondent's land. Once
again this argument fails to distinguish
between
the existence of the Administrator's power and
the manner of its
exercise. It' relates to the
latter, and is therefore irrelevant to the
present
appeal.
Mr
Osborn
also contended that it was not necessary
for the Administrator to have the power to relocate public services (and
therefore the existence
of such power could not be implied), as such power
already existed in the hands of the State and/or the various public utilities
supplying such services. In this regard he referred to various Acts such as the
Electricity Act 41 of 1987 and the Post Office Act
44 of 1958. The simple answer
to this contention is that it does not necessarily follow, because powers of
42/
42
expropriation vest in certain State organs or public utilities to enable them
to relocate their services, that s 7(1) does not confer
a corresponding power on
the Administrator where such relocation is reguired in connection with the
construction of a road. Alternatively,
it was argued that if the Administrator
was vested with such power in respect of public
services, he was not
similarly empowered in respect of
private services such as Sentrachem's railway line.
As has been pointed out, the relocation of services is
a purpose "in
connection with" the construction of a.
road. The power to relocate services
therefore
exists, and the power to relocate private services is
not
excluded either expressly or by necessary
implication. The point was also raised that as
Sentrachem was operating an undertaking of national
importance at its Chloorkop factory complex it could,
43/
43
had it lost its railway line because of the construction of road 51, have
acted in terms of the provisions of the Expropriation (Establishment
of
Undertakings) Act 39 of 1951 to expropriate land for the re-restablishment of
the railway line. This, it was claimed, gave rise
to two additional
considerations. The first was that if the respondent's land were to be
expropriated under the provisions of Act
39 of 1951 he would be better
compensated than under the less beneficial provisions for compensation to be
found in sections 92 and
95 of the Ordinance. The second was that the need to
keep
Sentrachem's railway line operative in the national interest would no longer
be a relevant consideration with regard to any decision
by the Administrator as
Sentrachem had other means available for retaining its railway line. With regard
to the latter consideration,
44/
44 while it may have a bearing on the manner in which the
Administrator exercised his power, it has no relevance to the existence
of the
Administrator's power to expropriate the respondent's land. As far as the first
consideration is concerned, the answer once
more lies in the fact that it does
not follow that simply because in certain circumstances powers of expropriation
exist in other
statutes, the Administrator does not possess a similar power. Nor
does the fact that the respondent would be better compensated under
another Act
preclude the Administrator from acting under the Ordinance (cf
Broadway
Mansions (Pty) Ltd v Pretoria City Council
1955(1) SA 517 (A)).
I turn now to what was probably Mr
Osborn's
main argument. He contended that s 7(1) of the
Ordinance could never be interpreted in such a manner
45/
45
as to confer on the Administrator the power to acguire the land of one person
(in
casu
the respondent) and transfer it to another (in
casu
Sentrachem) for the latter's use and benef it - which was what was contemplated
in the present instance. It was pointed out, firstly,
that in such circumstances
the respondent would have to suffer the attendant disadvantages in respect of
compensation occasioned
by the provisions of s 92 and 95 of the Ordinance, and
not Sentrachem (which would have been the position had the Administrator simply
decided to compensate Sentrachem for the loss of its railway line and not
relocate it). It was not within the power of the Administrator
to judge who
should suffer the most or the least. Secondly, and more importantly, s 7(1) of
the Ordinance provided for the acquisition
of land in the name of the State
("acquire any land and cause it to be registered in the
46/
46 name of the State"). It therefore contemplated use of the
land so acquired by the State and not for a purpose directed at private
use by
and 'for the benefit of a third party.
It is a
non sequitur
that
because land must be acquired in the name of the State it must be acquired for
the use of the State. Where a power line belonging
to an electricity undertaking
is relocated from one side of a road to another (because of the need to widen
the road) on land acquired
by the Administrator in terms of s 7(1) in the name
of the State, the purpose for which the land is acquired is not the use thereof
by the State, but the retention of the power line in order not to disrupt the
supply of electricity. Land acquired under s 7(1) need
not therefore necessarily
be for the use of the State or one of its organs. In the present instance
the
47/
47
State, having acquired ownership of the respondent's land, could have
retained its ownership and could merely have granted Sentrachem
a servitude over
it. The fact that the Administrator may regard it as expedient to transfer such
land to Sentrachem in due course
does not
per se
affect the validity of
such acquisition. The fundamental problem, however, still remains - is the
Administrator empowered under s
7(1) to acquire or expropriate the property of
one person for what is essentially the benefit of another? Expropriation,
generally
speaking, must take place for public purposes or in the public
interest. The acquisition of land by expropriation for the benefit
of a third
party cannot conceivably be for public purposes.
Non constat
that it
cannot be in the public interest. It would depend upon the facts and
circumstances of each particular case. One can
.....48/
48 conceive of circumstances in which the loss and inconvenience suffered by
A through the acquisition of portion of his land to relocate
the services of B,
who would otherwise have to be paid massive compensation, could be justified on
the basis of it being in the public
interest. The present instance affords an
example of such a situation. In planning the construction of the new road 51 the
Administrator
would needs have had to take an overall view of all the practical
and economic implications of the project as a whole in deciding
what would best
serve the public interest. He would be entitled and obliged to have regard to
the fact that Sentrachem conducted
an undertaking which was in the national
interest, and what the effect on the national interest would be if Sentrachem
lost its rail
connection with its sources of raw material, thereby disrupting
its production of
49/
49
strategically important products. In principle, therefore, the
Administrator's power under s 7(1) can extend to the acguisition of
land for
what may include the benefit of a third party. The power exists; the manner in
which it is exercised may be open to challenge
e g where the Administrator has
acted
mala fide
and not in the public interest. The present appeal, as
has been stated previously, does not concern the manner in which the
Administrator
exercised his power.
When, therefore, the Administrator
expropriated the respondent' s land in 1985 he gave effect to what he had
planned to do, and had
intended to achieve, from the time the approved scheme
was accepted and first implemented. He was not resorting to a subterfuge to
achieve something that had never previously been in his contemplation. He was
putting
50/
50
right what he had previously mistakenly and incorrectly set about doing. What
he did fell within the ambit of his powers. Notice 1909
was accordingly not
invalid for lack of authority in terms of s 7(1) of the Ordinance.
This
brings me to the second ground on which the validity of Notice 1909 was
challenged,
viz
., lack of adequate description of the property
expropriated. The judge a
quo
did not come to a finding on this point as
his conclusion that Notice 1909 was
ultra vires
the powers of the
Administrator rendered it unnecessary for him to do so.
It is accepted by the parties that Notice 1909 itself constituted the act of
expropriation. Section 7(1) of the Ordinance does not
prescribe in what manner,
and with what degree of accuracy, the land expropriated must be described. In
the absence of
51/
51 any prescriptive provisions to this effect it seems to me
that the land expropriated under s 7(1) must be described, whether by
reference
to sketches, plans or otherwise, with a sufficient degree of clarity to enable
the expropriatee to identify, with reasonable
certainty and within reasonable
limits, what is being expropriated. Whatever data is provided for identifying
the land expropriated
it need not ' necessarily be such as would enable a layman
to make a determination without expert assistance. It is not unreasonable
when
dealing with sketches, plans and the like to expect an expropriatee to consult
an expert with a view to their interpretation.
Mr
Osborn
, as I understood
him, did not contest this to be so. He in fact conceded, in my view correctly,
that if Notice 2161 had been the
notice of expropriation such Notice, with its
attendant sketch plans, would, with the aid of
52/
52
expert interpretation, have disclosed with sufficient clarity the area of
land expropriated. To that extent it would have been a valid
notice.
The
sketch plan annexed to Notice 1909, insofar as it relates to the respondent's
land, shows an area bordered by two bold black lines
which run approximately
south to north. Adjacent to the western line is a stippled area which is
bordered on its eastern side by
a somewhat fainter black line. There are
therefore three black lines with the stippled area situated between the western
outer line
and the inner line. Certain numbered reference points and beacons
appear on the sketch plan. As part of Notice 1909 there is a legend
which states
that the stippled area represents "portions of the declared road reserve of
district road 51 (K 117) which are acquired
for purposes in connection with
construction of the
53/
53
aforementioned road and depicted in detail on plans PRS 81/55/7 Lyn - 9 Lyn".
(I shall refer to these plans as "the lyn plans".)
The lyn plans (more
particularly the 7 lyn plan) indicate the same three black lines in positions
approximating those on the sketch
plan. There is, however, no stippled area on
the 7 lyn plan, nor do the numbered reference points and beacons depicted cm the
sketch
plan appear on it. These factors, plus an absence of co-ordinates and
other relevant data, led Gerke to testify that on the information
available on
the sketch and lyn plans he was unable to determine the boundaries of the
expropriated portion of the respondent's land.
Gerke basically confined his
evidence to a consideration of the sketch and lyn plans.
54/
54 Whitehorn, in sharp contrast to Gerke, testified that he
would have had no difficulty in establishing the precise location and
extent of
the respondent's expropriated land. According to him, the statement in Notice
1909 that the stippled area on the sketch
plan represented portions of the
declared road reserve of district road 51 would have alerted him to the road
declaration in Notice
2161. That Notice would have provided him with a list of
co-ordinates, and would have referred him to compensation plans PRS 81/55/9V-7V.
Using the co-ordinates together with relevant data obtained from the sketch, lyn
and compensation plans he would have been able to
establish the western boundary
of the land expropriated, and thereafter all other relevant points needed to
demarcate such land.
55/
55 It is not necessary to go into the evidence in greater
detail. The onus was on the respondent to prove that Notice 1909 was invalid
for
want of an adequate description of the property expropriated. The respondent has
failed to discharge that onus. Gerke's evidence
cannot be accepted in preference
to that of Whitehorn. Gerke has not actively practised as a land surveyor for
more than twenty years.
He was shown to have been lacking in experience in
regard to road surveys; had difficulty in understanding the plans; was
unacguainted
with certain relevant (and apparently standard) data therein; and
initially testified from a very limited base, essentially confining
his evidence
to a consideration of the sketch and lyn plans. Whitehorn is a man with vast
experience in the field of road surveying.
It was argued that Whitehorn was
intimately involved in the planning of
56/
56
the whole project, and would have been unable to disabuse his mind of inf
ormátion he had obtained in such capacity, but which
did not appear in
the relevant documents. A consideration of Whitehorn's evidence reveals no
traces of lack of objectivity on his
part, nor that he was subjectively
influenced by extraneous factors.
As I have indicated, it has not been
suggested that in a matter such as the present land expropriated should
necessarily be described
in such a manner that its location and extent can be
established by a layman without the need for expert assistance. It is therefore
reasonable to expect that expert assistance will be obtained and relied upon.
Notice 1909 provided a reference to the declared road.
If
the sketch and lyn
plans were in themselves not
sufficient to establish what land had been
57/
57 expropriated, it would have been reasonable for an expert
to have had regard to Notice 2161. Once that was done sufficient information
was
available, as conceded by Mr
Osborn
, to determine what land of the
respondent had been expropriated. In the circumstances the reguirements for
reasonable clarity have
been met, and Notice 1909, having provided a reasonable
and sufficient description of the land expropriated, was not invalid for
lack of
adequate description.
In the result the appeal succeeds, and an appropriate
order must be made. Mr
Junod
very fairly raised the question of a
possible apportionment or special order as to the costs in the court a
quo
arising from the fact that the respondent had been successful in having
Notice 2161 declared invalid. It is common cause that this
does not affect
the
58/
58
position of Sentrachem, and that it is entitled to recover its costs in the
court a
quo
from the respondent. The Administrator and the respondent
were unable to agree on the order to be made with regard to their costs
in the
court a
quo
. As the trial in the court a
quo
will proceed in
relation the the other issues raised on the pleadings between the Administrator
and the respondent, the best course
to adopt would be to remit the question of
their costs in the court a
quo
to that court for its decision. The
following order is made:
1)
The appeal succeeds with
costs, such costs to include, in the case of each appellant, the costs of two
counsel in respect of both
the appeal and the application for leave to
appeal;
2)
Paragraphs 2 and 3 of the order of
the court a
quo
are set aside and there is substituted in their stead the
following order:
59/
59
"(a) Administrator's Notice 1909 of 4 September 1985, insofar as it relates to
portion 213 of Zuurfontein 33 IR, is declared to be
valid.
(b) The plaintiff is ordered to pay the costs of the second defendant, such
costs to include the costs of two
counsel."
3. The question of costs in the court a
quo
as between the respondent
(plaintiff) and the first appellant (first defendant) is remitted to the court a
quo
for its determination in the light of this
judgment.
J W SMALBERGER JUDGE OF APPEAL
BOTHA, JA )
STEYN, JA ) CONCUR
EKSTEEN, JA )
SMUTS, AJA)