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[1991] ZASCA 156
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Fink and Another v Bedford Town Council and Others (152/90) [1991] ZASCA 156; 1992 (2) SA 1 (AD); (22 November 1991)
Case no. 152/90
E du P
IN THE SUPREME COURT OF
SOUTH FRICA
(APPELLATE DIVISION)
In the matter between:
WILLIAM DAVID FINK
First
Appellant
NORMAN CYRIL FINK
Second
Appellant
and
BEDFORDVIEW TOWN COUNCIL
First
Respondent
CHAIRMAN, NATIONAL TRANSPORT
COMMISSION
Second
Respondent
THE MINISTER OF TRANSPORT
Third
Respondent
THE REGISTRAR OF DEEDS
Fourth
Respondent
THE ADMINISTRATOR OF
TRANSVAAL
Fifth Respondent
Coram:
BOTHA, MILNE, F H
GROSSKOPF JJA, NICHOLAS et HARMS AJJA
Heard:
Delivered:
23 September 1991.
22
NOVEMBER 1981
2
JUDGMENT F H GROSSKOPF JA:
The late William Fink ("the
deceased") died on 1 March 1969. The deceased had been the
registered owner since 1923 of Holding
No 99, Geldenhuis Estate Small
Holdings ("Holding 99") situated in the district of
Germiston and measuring 9 morgen 326
square roods. During the
deceased's lifetime the Administrator of Transvaal ("the fifth
respondent") declared a public
road over Holding 99 with a view
to the construction of the proposed Johannesburg Eastern By-pass
("the Eastern By-pass").
The fifth respondent paid the
deceased an agreed sum as compensation for the land taken up and the
improvements affected by the proposed
road.
After the deceased's death, and in
terms of his will, Holding 99 was transferred in undivided shares to
his two sons, the appellants.
The Eastern By-pass was constructed
during the early 1970's and opened to traffic by
3
about 1973 or 1974. The appellants
remained the registered owners of the whole of Holding 99 until 4
October 1985, when the Registrar
of Deeds ("the fourth
respondent") registered portions 3, 4 and 5 of Holding 99 in the
name of the National Transport Commission
("the NTC"). The
chairman of the NTC is cited as the second respondent. The transfer
was executed by the fourth respondent
without the authority of the
appellants, but pursuant to a certificate furnished to him under
section 31(4)(a)
of the
Deeds Registries Act 47 of 1937
. This
certificate was to the effect that the Minister of Transport ("the
third respondent") had "designated"
portions 3, 4 and
5 in terms of section 3(2)(a) of the National Roads Act 54 of 1971
("the 1971 National Roads Act") as
land whereof the
ownership vested in the NTC in accordance with the provisions of
section 3(2)(b) of the 1971 National Roads Act.
The NTC retained
portion 3, being the land over which the road had been constructed,
but transferred portions 4 and 5 forthwith to
the Bedfordview
4
Town Council ("the first
respondent") as those portions were no longer required for the
purpose of the road.
The appellants, as applicants in
the Court
a quo
, applied to the Witwatersrand Local Division
for an order setting aside as null and void the designation of
portions 4 and 5 by the
third respondent, and for an order directing
the fourth respondent to cancel the respective deeds of transfer in
terms whereof portions
4 and 5 were transferred to the NTC and the
first respondent. The application was dismissed by Hartzenberg J, but
he granted the
appellants. leave to appeal to this Court.
A number of
legal issues were raised on appeal, but
before
dealing with them
I
shall
set out some of the factual background.
As early as 19 October 1953 the
deceased was informed by the office of the fifth respondent that it
was investigating the possibility
of establishing the Eastern
By-pass. The deceased was advised that "a servitude for road
5
purposes" would be required
over Holding 99 and he was asked whether he had any objections
thereto and what compensation he considered
should be paid for the
proposed servitude.
On 28 August 1957, and acting in
terms of section 7(2)(b) of the Roads Ordinance 9 of 1933
(Transvaal), the fifth respondent by Administrator's
Notice no 237 of
1957 ("the 1957 Proclamation") declared a public road on
land which fell within the municipality of Bedfordview
where there
had been no road previously in existence. On 27 February 1959 the
Governor-General under Government Notice no 31 of 1959,
and acting in
terms of section 4(1)(a) of the National Roads Act 42 of 1935 ("the
1935 National Roads Act"), declared the
said public road to be a
national road. This was the proposed Eastern By-pass which was to
traverse Holding 99.
On 6 November 1961 the Director,
Transvaal Roads Department ("the Roads Department"),
informed the deceased by letter that
it was intended to widen the
road and that
6
more of the deceased's land might
be required for road-making purposes. The Roads Department addressed
a further letter dated 3 April
1963 to the deceased advising him that
more land would indeed be taken up by the road and that certain
improvements, details whereof
were set forth in the letter, would be
affected as a result of the proposed realignment of the Eastern
By-pass. It was then estimated
that an area of 4,258 morgen of the
deceased's land ("the 4,258 morgen") would be taken up by
the road. An engineer's sketch
plan was annexed to the letter
depicting the road and a traffic interchange on Holding 99. It was
indicated on this plan how the
deceased's property would be affected
by the proposed road and traffic interchange. The deceased was
reguested in the letter to furnish
the Roads Department with his
claim for compensation in respect of the land to be taken up and the
improvements to be affected by
the road.
On 19 June 1963, and in terms of
sections 3, 5(1)(c) and 5(2)(b) of the Roads Ordinance 22 of 1957
7
(Transvaal) ("the 1957 Roads
Ordinance"), the fifth respondent under Administrator's Notice
no 386 of 1963 ("the 1963
Proclamation") declared a public
main road over land which inciuded Holding 99. It is common cause
that the 4,258
morgen which was mentioned in the
correspondence was in fact proclaimed for road purposes under the
1963 Proclamation.
Further correspondence passed
between the deceased and the Roads Department and the question of
compensation was eventually settled
between the parties. On 3
February 1965 the fifth respondent paid the deceased an amount of R55
832,00 in f ull and f inal settlement
of his claim f or compensation
in respect of the 4,258 morgen and the improvements affected by the
road. The compensation also included
an amount of R4 800,00 claimed
by the deceased for loss of income on his dairy business. It is
common cause that this compensation
was paid wholly from the National
Road Fund ("the Fund") established in terms of section 5 of
the 1935 National Roads Act.
On 18 March 1966 the State
President, acting in
8
terms of section 4(1)(a) of the
1935 National Roads Act, declared the road proclaimed as a public
road under the 1963 Proclamation
to be a national road.
It was the firm intention of the
fifth respondent up to 1967 to construct a traffic interchange on
Holding 99, and it was for that
reason that the 4,258 morgen was
reguired. There was a subseguent change in the planning of the
Eastern By-pass and on 25 August
1967 the NTC decided that the
traffic interchange should be constructed elsewhere along the road.
In the result only part of the
4,258 morgen which had been proclaimed
for the road was in fact required for that purpose. The actual
construction of the Eastern
By-pass commenced during the early
1970's. This was after the death of the deceased and at a time when
Holding 99 had already been
transferred to the two appellants. Only
the middle section of the 4,258 morgen of land was eventually used
for the road. At that
stage Holding 99 had not yet been subdivided
and the 4,258 morgen could not be registered in
9
the deeds registry as a separate
entity. It was only in 1983 that the Surveyor-General approved three
diagrams depicting respectively
portions 3, 4 and 5 as separate
entities. These three portions are adjacent properties, and when
regarded as a single unit they correspond
substantially to the 4,258
morgen as far as locality, shape and size are concerned. It is common
cause that there are slight discrepancies
in size and shape, but
counsel agreed that we should not concern ourselves with those small
differences. Only portion 3, which corresponds
to the middle section
of the 4,258 morgen, was eventually used for the purpose of road
construction. Portions 4 and 5 were part of
the land initially
required in connection with the road, but in the end no road
construction took place on those two portions.
Despite the fact that compensation
had been paid from the Fund on behalf of the NTC to the deceased for
the 4,258 morgen which later
comprised portions 3, 4 and 5, all of
that land remained registered in the name of the
10
appellants as part of the original
Holding 99. The Director-General, Transport, addressed a number of
letters to the appellants during
the period November 1984 to March
1985 notifying them of the third respondent's intention to designate
portions 3, 4 and 5 in terms
of section 3(2)(a) of the 1971 National
Roads Act as land to which the provisions of section 3(2)(b) would
apply. The actual designation
was signed by the third respondent on
14 March 1985, and 1 May 1985 was determined as the date on which
ownership of this land was
to vest in the NTC. The appellants were
duly notified of this designation on 28 March 1985. They were
requested to forward their
title deed to the department in order that
the three portions could be registered in the name of the NTC, but
the appellants failed
to comply with this request. The fourth
respondent conseguently transferred portions 3, 4 and 5 to the NTC
after a certificate confirming
the designation had been furnished to
him in terms of
section 31(4)(a)
of the
Deeds Registries Act, 1937
.
11
It is the appellants' case that
the third respondent's designation of portions 4 and 5 in terms of
section 3(2)(a) of the 1971 National
Roads Act should be set aside as
invalid; that the consequent transfer of portions 4 and 5, first to
the NTC and then to the first
respondent, should accordingly be
cancelled; and that the appellants' deed of transfer should again
reflect the appellants as the
registered owners of portions 4 and 5.
The appellants did not seek to attack the designation and transfer to
the NTC of portion 3
in view of the fact that it was the portion over
which the Eastern By-pass had been constructed. The appellants
offered, upon cancellation
of the deeds of transfer of portions 4 and
5 in the names of the NTC and the first respondent, to repay the
second respondent the
sum of R55 832,00 which had been paid as
compensation to the deceased.
Section 3(2)(a)(i) and (ii) and
section 3(2)(b) of the 1971 National Roads Act provided as follows at
the time
12
of the designation in March 1985:
"3(2) (a) The Minister may in
writing designate as
land to which the provisions of
paragraph(b) shall apply, any land
-
(i) which was acquired for the
purpose of or in connection
with a national road before the
commencement of this Act
against compensation paid
wholly from the fund; or
(ii) of which the use was so
acquired for that purpose
against compensation so paid
which in the opinion of the
Minister represented the full
value of the land for its owner
at the time of the acquisition;
or
(iii)
(b) The ownership in land so
designated shall vest in the commission on a date fixed by the
Minister and mentioned in the designation."
These provisions were introduced
to enable the NTC, under
certain circumstances, to become
the owner of land paid for
from the Fund before the
commencement of the 1971 National
Roads Act. Section 3(2)(a)(ii)
deals specifically with the
designation of land of which only
"the use" was acquired for
13
the purpose of
a national road, but where compensation representing the full value
of such land was paid from the Fund. Where land
which has been paid
for from the Fund is no
longer required for
the purpose of a national road, as in the present case, the NTC can
do nothing with such land unless it
can
acquire ownership thereof. The NTC is empowered by section 3(3)(a) of
the 1971 National Roads Act to deal with or dispose of such
land, or
to use it for another purpose,
but in order
to do so, the NTC must first become owner of the
property.
The object of section 3(2) (a) is to make this possible, particularly
in the case of land which is no longer required for
the purpose of or
in connection with a national road.
I
cannot, therefore, agree with the
appellants' submission that the reguirement of a national road
purpose in section 3(2) (a) had to
continue until the time of
designation.
It is common cause that the fifth
respondent, by means of the 1963 Proclamation, intended to acguire
only "the
14
use" of the land and not the
land itself, and that paragraph (a)(ii) of section 3(2), and not
paragraph (a)(i), is therefore
the appropriate provision; that if
such use was in fact acguired it was acquired "before the
commencement" of the 1971
National Roads Act; and that the
compensation which was paid to the deceased was paid "wholly
from the fund".
The appellants, however, contended
that the designation in terms of section 3(2)(a)(ii) was invalid
inasmuch as some of the jurisdictional
facts were lacking or were not
proved. The two main aspects which have to be considered in this
regard are the following:
Whether the use of the land was
"acguired".
Whether the
third respondent formed the "opinion" that the
compensation which had been paid represented "the full
value of
the land for its owner" at the time of the acquisition. The
appellants submitted that the
onus
was on the respondents to prove that the third respondent actually
formed such opinion.
15
(a)
The acquisition of the use
of the land:
It is necessary to determine at
the outset what is meant by the expression "the use of the
land", and then to decide what
the fifth respondent had to do to
"acguire" it. To acquire "the use of the land"
for roads purposes is to acquire
"something in the nature of a
road servitude" (
per Nicholas AJA
in
Apex Mines Ltd v
Administrator, Transvaal
1988(3) SA 1 (A) at 17 I/J), or "the
necessary road-rights" (
per Trollip J
in
Nel v Bornman
1968(1) SA 498(T) at 501F-H).
It was recognised in
Transvaal
Investment Company Ltd v Springs Municipality
1922 AD 337
at 341
that the word "acguire", when used in relation to fixed
property, need not necessarily mean the acquisition of the
dominium
of the land, but may also be used in a wider sense so as to include
the acquisition of a right to obtain the
dominium
. (Cf.
Corondimas and Another v Badat
1946 AD 548
at 558). The word
"acquire" is used in section 3(2)(a)(ii) of the
1971
National
16
Roads Act in relation to the use
of the land. In my view that connotes the acquisition of a right in
the nature of a road servitude,
and not of the
dominium
of the
land.
The fifth respondent has the power
to declare a public road in terms of section 5 of the 1957 Roads
Ordinance by notice in the Provincial
Gazette. Does he by such
declaration "acquire" a right in the nature of a road
servitude?
Section 4 of the 1957 Roads
Ordinance provides
that:
"All public roads within the
Province shall be under the control and supervision of the
Administrator."
Upon proclamation of a public road
the fifth respondent
accordingly acguires the control
of such road. In my opinion
the fifth respondent, by acquiring
the control of the public
road, in effect acquires the use
of the land. It was held
by
Rumpff CJ
in
Thom en
h Ander v Moulder
1974(4) SA 894(A)
that the proclamation of a public
road was essentially an act
17
of expropriation of certain
rights. The learned Chief
Justice remarked as follows at 905
C-D:
"Die bevoegdheid van die
Administrateur om 'n openbare pad te verklaar oor die eiendom van 'n
privaat persoon is in wese 'n onteieningshandeling
van sekere regte,
vgl.
Nel v Bornman,
1968(1) SA 498(T), en
Mathiba and
Others v Moschke
,
1920 A.D. 354
te bl. 363."
The question considered by this
Court in
Mathiba
and Others v Moschke
,
supra
, (one of the cases referred to by
the Chief Justice in the above
passage) was whether the
Government of the former South
African Republic had a right
to expropriate a certain area for
the purpose of a
"location". In deciding
that question the Court held that
although the word "expropriate"
was not used in the relevant
Volksraad Besluite the language
thereof authorised an
expropriation. In support of its
conclusion the Court
referred to the old Cape Roads Act
of 1858 which likewise did
not use the word "expropriate",
but the term "to enter upon
and take possession of land".
However, the Court was not
18
concerned in that case with the
exact moment when expropriation took place, but with the guestion
whether the authorities had the
necessary power to expropriate.
Section 8(2) of the 1957 Roads
Ordinance, as it read before an amendment in 1972, also used the
expression "to enter upon and
take possession of ... land."
Section 8(2) conferred the right upon the fifth respondent, after
notice to the owner, to enter
upon and take possession of so much of
any land as might be required for the opening or construction of a
public road, or for any
purpose incidental thereto. It should be
observed that section 8(2) did not oblige the fifth respondent to
enter upon and take possession
of the land; it merely provided that
he "may" do so. In my opinion the fifth respondent's entry
upon the land to take possession
thereof was accordingly not a
prerequisite to his acquisition of the use of the land. It seems to
me that section 8(2) empowered
the fifth respondent to give effect to
his acquisition of the use of the land by allowing him to
19
enter upon and
take possession of the land, for instance for
the
purpose of construction where the owner refused or failed
to
part with the use of the land which had been acguired by the fifth
respondent. (Cf.
Nel v Bornman
,
supra
, 501
F-G.)
I
may add
that there is no evidence to suggest that the deceased in the present
case ever refused or failed to part with the use of
the land which
had been acquired by the fifth respondent over Holding 99.
In
Nel v Bornman
,
supra
,
(the other case referred to by the learned Chief Justice in the
passage guoted above) the Court found that the owner of the land
had
consented and agreed to the acguisition of the necessary road-rights
over his farm prior to the publication of the fifth respondent's
proclamation in the Provincial Gazette. The question which had to be
decided in that case was when the owner's right of action for
compensation had arisen and accrued. The Court found that the owner
had waived compliance with the formalities as a prerequisite
to the
fifth respondent's
20
acquisition of the road-rights,
and it was accordingly held that the owner's right to claim
compensation had arisen and accrued before
the actual proclamation of
the road. It was
not necessary for the Court in
that case to decide whether
the fifth respondent would
otherwise have acquired the
necessary road-rights upon
proclamation of the public road.
The case of
Apex Mines Ltd.
,
supra
, dealt with the
question whether the holder of
mineral rights was entitled to
claim compensation under the 1957
Roads Ordinance arising out
of the declaration of a public
road over certain land. In
the course of the judgment
Nicholas AJA remarked as follows
at 17 H-I:
"The right to 'enter upon and
take possession of' the land is, it is true, a right of
expropriation, but it is a right of expropriation
of the necessary
road-rights, not of the
dominium
of the land. (Cf
Nel v
Bornman
1968(1) SA 498(T) at 501 F-G; and
Thom en 'n Ander v
Moulder
1974(4) SA 894(A) at 905 C-D.) In other words, it is an
expropriation of something in the nature of a road servitude: a
via
publica
created by proclamation by lawful authority,
via
being 'the right of passage over land belonging to another person for
people, their
21
animals and their vehicles'
(
Shenker Bros v Bester
1952(3) SA 655(C) at 659)."
The Court in that case was
considering what had been expropriated, and not what effect the
proclamation had. The Court, however, referred
to the above guoted
passage in
Thom
's case where it was said that the proclamation
was an act of expropriation.
I
cannot
conceive that the legislature intended that the actual expropriation
would be effected by such an informal act as the entry
upon the land
by some official; or that the extent of the land expropriated would
depend upon how much of the land had been taken
by such official. In
my
judgment, therefore, the fifth
respondent acguired the use of
the land
upon due proclamation of a public road, and it was not necessary for
him to enter upon the land to acguire such use.
I
am
of the view that the evidence in any event justifies the conclusion
that the fifth respondent entered
22
upon and took possession of the
deceased's land. In January 1964 the Roads Department allowed the
deceased to remove certain refrigeration
equipment from the buildings
affected by the proclaimed road. This permission suggests that the
Roads Department had already acquired
possession of the buildings at
that stage. On 21 December 1964 the deceased wrote to the Roads
Department and informed it that he
had decided to accept the
compensation which it had offered him. In the same letter the
deceased also asked the department's permission
to store some of his
machinery in the buildings on the land. In my view the deceased
thereby acknowledged that the fifth respondent
had acquired the use
of the land and had indeed taken possession thereof.
It should further be pointed out
that the guestion of entering upon and taking possession of the land
was never placed in issue by
the appellants; it was the validity of
the proclamation that was disputed by them. In the circumstances the
fifth respondent cannot
be blamed for not
23
setting out fully what steps he
had taken to enter upon and
take possession of the land.
Fourie, who made an answering
affidavit on behalf of the fifth
respondent, stated as
follows:
"In soverre dit relevant mag
wees bevestig ek dat die Vyfde Respondent, nadat 'n openbare pad oor
gedeeltes 4 en 5 verklaar was
op geen ander wyse met die grond
beskryf as gedeeltes 4 en 5 gehandel het nie."
That statement was not made in
answer to an allegation that
the fifth respondent did not enter
upon and take possession
of the land, and cannot be
interpreted as an admission to
that effect. In my view Fourie was
probably referring to
road construction on portions 4
and 5.
Another argument raised by the
appellants was that
there was no valid proclamation of
a public road in
existence, while such a
proclamation was a necessary
prereguisite to the acquisition of
the use of the land. The
appellants contended that the
requirements of section
3(2)(a)(ii) of the 1971 National
Roads Act were accordingly
24
not properly complied with and
that the designation in terms of that section was invalid.
The public road over Holding 99
was first declared under the 1957 Proclamation. Thereafter the
Governor-General declared the road
to be a national road in 1959. The
1957 Proclamation was subsequently superseded by the 1963
Proclamation, while the 1959 declaration
of a national road was
cancelled by the 1966 declaration of a national road. The appellants
submitted that the 1966 declaration.
of a national road impliedly
repealed the 1963 Proclamation of a public road, inasmuch as the same
stretch of land could not be both
a public road and a national road
at one and the same time. In my view this argument is founded on the
false premise that a national
road is not a public road.
In support of his argument in this
connection counsel for the appellants referred us to certain
differences between the powers under
the 1935 National Roads Act in
respect of a national road and the powers under the 1957
25
Roads Ordinance in respect of a
public road, for instance with regard to control, supervision,
creation, closure and funding. There
are such differences, but in my
view that does not show that a national road is not also a public
road. Both of them are roads and
indeed public roads.
There is no provision in either
the 1935 National Roads Act or the 1957 Roads Ordinance to suggest
that the proclamation of a public
road automatically becomes invalid
upon the declaration of a national road, as is submitted by the
appellants. If the declaration
of a national road were to have such
an invalidating effect upon the proclamation of a public road, it
would follow that any acquisition
of the use of the land on the
strength of that proclamation would also become invalid. In my
judgment the legislature could never
have contemplated such a result.
The appellants attacked the
validity of the proclamation on other grounds as well. A valid
proclamation of a public road by the fifth
respondent was indeed a
26
necessary prerequisite to the
State President's declaration of a national road in terms of section
4(1)(a) of the 1935 National Roads
Act, since only a public road
could be declared to be a national road. A lawful and valid
proclamation of a public road was also
a necessary prerequisite to
the acquisition of the use of the land.
The appellants submitted that
there was no lawful and valid proclamation of a public road. They
contended that the- fifth respondent
was not empowered by the 1957
Roads Ordinance to proclaim a public road which he did not want,
merely to pave the way for a national
road which he could not
declare. According to the appellants there was no provision which
permitted a joint use of powers by the
State President and the fifth
respondent so that together they could seek to achieve the result of
a national road. The appellants
even went so far as to suggest that
the fifth respondent acted in
fraudem legis
by professing to
use his statutory power for the purpose of proclaiming a public road,
while in truth he
27
was only
assisting the State President in declaring a national road.
I
do not agree with these submissions.
Section 4(1)(a) of the 1935 National Roads Act empowered the State
President to declare a national
road on the recommendation of the
NTC, "made after consultation with any administrator affected by
such recommendation".
The particular Administrator was, after
all, responsible for the construction, reconstruction, repair and
maintenance of such national
road (section 10(1)(a) of the 1935
National Roads Act). In my view these and other provisions of the
1935 National Roads Act show
that the legislature envisaged a close
liaison and co-operation between the fifth respondent and the NTC, on
whose recommendation
the State President declared national roads.
Mr
Wulfsohn
, who appeared
for the appellants, was obliged to concede that on his argument the
State President could never declare a national
road over land where
no road previously existed, since on his argument the fifth
28
respondent was not empowered to
proclaim the necessary public road over that land in order to pave
the way for the proposed national
road. It is inconceivable in my
opinion that the legislature could ever have contemplated such an
absurd result. In my judgment the
1963 Proclamation was lawful and
valid. The fifth respondent thereby duly proclaimed a public road
over land where no road was previously
in existence for the purpose
of or in connection with a national road.
I
therefore
hold that there was a valid acquisition
of
the use of the land for the purpose of a national road, as required
by section 3(2)(a)(ii) of the 1971 National Roads Act for a
proper
designation by the third respondent.
(b)
The question of onus, and
whether the third respondent formed the opinion that the compensation
represented the full value of the
land for its owner
:
The appellants submitted that they
had owned
29
portions 4 and 5; that the third
respondent deprived them of their ownership by way of designation and
subseguent transfer; that such
conduct was
prima facie
wrongful; and that the
onus
was therefore on the respondents
to justify the designation and transfer.
The appellants relied in the first
instance on the principle enunciated in
Graham v Ridley
1931
TPD 476
at 479, where
Greenberg J
held that proof that the
plaintiff is the owner of property and that the defendant is in
possession thereof entitles the plaintiff
to an order for ejectment.
The
onus
would then be on the defendant to justify his
possession. (See also
Chetty v Naidoo
1974(3) SA 13(A)). In my
view this principle does not apply to the present case where the
issue is the ownership of portions 4 and
5. The appellants did not
approach the Court as the registered owners of the property. The
ownership no longer vested in the appellants,
but in the first
respondent.
The appellants further sought to
draw an analogy
30
between those cases where a person
has been deprived of his
liberty, for instance by an
arrest, and the present case
where the appellants were
allegedly "deprived" of their
property. The appellants contended
that where there is an
intrusion upon a person's liberty
against such person's
wishes, and the right so to
intrude is challenged, such
intrusion is
prima facie
wrongful, and must be justified.
Reliance was placed,
inter
alia
, on
Minister of Law and Order
and Others v Hurley and Another
1986(3) SA 568(A) at 589 E-F;
Minister van Wet en Orde v
Matshoba
1990(1) SA 280(A) at 284
E-I, 295F-296D;
During NO v
Boesak and Another
1990(3) SA
661 (A) at 663 G, 679G. It was
held in
Durinq NO v Boesak
,
supra
, at 663 G that:
"where the lawfulness of an
arrest is in issue, the
onus
is on the functionary to prove
not only that he held the requisite opinion but also that it was
properly formed."
The appellants submitted that the
onus
was, likewise, on
the respondents in the present
case to justify the alleged
31
taking of their property. This
analogy is unsound. There is nothing here which is
prima facie
unlawful. The passing of ownership of property in these circumstances
is in any event not comparable to the deprivation of a person's
liberty, and the legal principles applicable to the latter do not
apply to the former.
It should also be borne in mind
that the appellants were informed in advance of the proposed
designation, but that they took no steps
to try and, prevent it. The
appellants were subsequently notified of the third respondent's
designation, but they waited for another
two and a half years before
bringing their application.
The appellants also sought to rely
on the case of
Cresto Machines (Edms) Bpk v Die Afdeling
Speuroffisier, S A Polisie, Noord-Transvaal
1972(1) SA 376 (A) at
394 A-H. The police in that case seized and attached the appellant's
machines. The Court held that the
onus
was on the police (the
respondent) to prove justification for the seizure or
32
attachment that would otherwise be
wrongful. However, the court went on to find that the issue to and
possession by the police of
a warrant to search for and seize the
machines would legally justify their action and would ordinarily
serve to discharge "the
onus
of proof initially resting
upon the respondent". In such a case the warrant should first be
set aside. In my view the same principle
applies by analogy to-the
present case where the change of ownership and consequent transfer of
the property were authorised by the
designation signed by the third
respondent, which was
prima facie
lawful. In applying to set
aside the designation the appellants bear the
onus
. In my
view, therefore, there was no
onus
upon the third respondent
to prove that he formed the requisite opinion.
Section 3(2)(a)(ii) of the 1971
National Roads Act provides that the third respondent must be of "the
opinion" that the
compensation paid "represented the full
value of the land for its owner at the time of the acguisition".
The
33
appellants conceded that the
opinion required of the third respondent is not objectively
justiciable, but submitted that there was
no evidence to show that
the third respondent did have the requisite opinion. As pointed out
above, the third respondent did not
bear the
onus
in this
regard. The appellants are faced with the further difficulty that
this point was never foreshadowed in their application.
The third
respondent was accordingly not called upon to state under oath that
he formed such opinion.
In the result
I
am satisfied that the Court
a
quo
was correct in dismissing the
application.
The appeal is dismissed with
costs, which costs are to include the costs of two counsel.
F H GROSSKOPF JA
BOTHA JA
MILNE JA Concur.
HARMS AJA
Case No 152/90
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION
In the matter between:
WILLIAM DAVID FINK
First
Appellant
NORMAN CYRIL FINK
Second
Appellant
and
BEDFORDVIEW TOWN COUNCIL
First
Respondent
CHAIRMAN, NATIONAL TRANSPORT
COMMISSION
Second
Respondent
THE MINISTER OF TRANSPORT
Third
Respondent
THE REGISTRAR OF DEEDS
Fourth
Respondent
THE ADMINISTRATOR OF
TRANSVAAL
Fifth Respondent
CORAM:
BOTHA, MILNE, F H
GROSSKOPF JJA, NICHOLAS et HARMS AJJA
HEARD:
23 September 1991
DELIVERED:
22 November 1991
JUDGMENT
NICHOLAS, AJA
2
NICHOLAS AJA:
I
have
read in draft the judgment prepared by F H GROSSKOPF JA ("the
main judgment"), and
I
agree
with the conclusion and, except in regard to the matters now
to
be discussed, with the reasons therefor.
To the extent that it is relevant
for present
purposes, Administrator's Notice
No 386 dated 19 June 1963
read as follows:
"
OPENING - OPENBARE
GROOTPAD, DISTRIKTE GERMISTON
EN KEMPTON PARK
Dit word hiermee vir algemene
inligting bekendgemaak dat die Administrateur, na ondersoek,
goedgekeuc het dat 'n openbare grootpad
van afwisselende breedtes,
met aansluitings oor Geldenhuis Kleinhoewes, en die dorpsgebiede van
Oriel en Wychwood, distrikte Germiston
en Kempton Park, soos
aangetoon op bygaande sketsplan en skedule van ko-ordinate aangetoon
word, ingevolge paragraaf (b) van subartikel
(2) en paragraaf (c) van
subartikel (1) van artikel VYF en artikel DRIE van die
Padordonnansie, No. 22 van 1957 sal bestaan."
In issuing this notice, the
Administrator was acting in
3
collaboration with the National
Transport Commission with the object that the public main road there
referred to should be declared
a national road under s.4(l)(a) of the
National Roads Act, 42 of 1935.
There was uncontradicted evidence
that the sketch plan referred to in the notice included the land,
4,258 morgen in extent, which
came to be described as portions 3, 4
and 5 of Holding No 99 Geldenhuis Estate Smallholdings.
After the publication of the
notice there followed correspondence between the Transvaal Provincial
Administration ("the TPA")
and the late Mr W Fink ("the
deceased") culminating in an offer by the TPA, dated 23 November
1964 and made with the approval
of the National Transportation
Commission, to pay to the deceased an amount of R 51 032,00 as
compensation, plus R4 800,00 as eguitable
relief (that is, R55 832,00
in all), in full and
4
final settlement of his claim for
compensation for the
4,258 morgen of his property with
improvements thereon to
be taken up by the road. The
deceased accepted the offer
by letter dated 21 December 1964
in which he stated:-
"The
National Transport Commission approved that
I
be paid the sum of R55 832,00 in full and
final settlement for compensation of 4.258 morgen of my
land
which will be known as the JH'burg Eastern bypass, which
I
accept."
The amount of R55 832,00 was duly
paid to the deceased on 3 February 1965.
Portions 4 and 5 were not in the
event used in the construction of the road, which was built only over
portion 3. A decision was taken
on 25 August 1967 that the traffic
interchange which it had been planned would be built on portions 4
and 5, would be built elsewhere.
One of the questions for decision
in the appeal, is whether pcrtions 4 and 5 constituted land of which
the
5
use was acquired for the purpose
of a national road within the meaning of s.3(2)(a)(ii) of the
National Roads Act 54 of 1971.(Section
3(2) is quoted on p.12 of the
main judgment and it is unnecessáry to repeat it here.)
On the facts of
the case, such use could have been acquired only by the expropriation
from the deceased by the Administrator of Transvaal
of "something
in the nature of a road servitude." (cf. Apex Mines Ltd v
Administrator, Transvaal 1988(3) SA 1 (A) at 17
H-J). My
learned
colleague considers that the Administrator acquired such right by
virtue of the declaration of a public road in
Administrator's
Notice No 386. .
I
respectfully
disagree.
The imposition on land of a burden
in the nature of a servitude constitutes a drastic interference with
the rights of the owner of
the land. It is a well-established
principle that a statute is not presumed to take away existing rights
unless that clearly appears
from its
6
terms. (see L C Steyn, Die Uitleg
van Wette 5th ed. pp 103-
105). In Rigg v South African
Railways and Harbours
1958(4) SA 339 (A) STEYN JA said
at 349B:-
" dit kan nie veronderstel
word nie dat die
Wetgewer, al geld dit ook die
onteieningsbevoegdheid van die Staat self ia die openbare belang,
groter of meer beswarende inbreuk
op gevestigde regte wil doen of
magtig as wat met duidelikheid uit sy woorde blyk nie...."
The right of an owner to enjoy the
full use of his property
is not to be held to have been
impaired save by express
words or plain implication. Cf
Wellworths Bazaars Ltd v
Chandler's Ltd and Another 1947(2)
SA 37(A) at 43. In
Belinco (Pty) Ltd v Bellville
Municipality and Another
1970(4) SA 589(A), HOLMES JA said
at 597 C that he did not
consider that an implication could
be said to be plain "if
it has to be astutely winkled from
contextual crevices."
S.5(1) of the Roads Ordinance 1957
as it was
originally enacted provided -
"5.(1) The Administrator may
by notice in the
7
Provincial Gazette -
declare any road to be a public
road after investigation and report by the board concerned;
declare that a public road shall
run on land where no road previously existed or where a road
previously existed but has been closed,
and after investigation and
report by the board may define the course of that road;
declare that a main road shall
exist where an existing road is or where no road was previously in
existence;"
(By definition a "main road"
means a public road declared a
main road in terms of sec 5. In
this case there was no
road previously in existence.) The
declaration of a public
road may have the effect of
trenching on existing rights
under specific provisions of the
Ordinance (see secs 22,
23, 34, 37, 71 and 74), but there
is nothing in
sec 5 to suggest, even remotely,
that a declaration of a
public road or a main road shall
have the effect per se
of imposing road servitudes on the
land affected thereby.
8
I
do
not think, pace F H GROSSKOPF JA, that this can be
implied from s.4, which provides -
"4. All public roads within
the Province shall be under the control and supervision of the
Administrator."
"Roads" in the context
of this section must mean existing
roads. The Shorter Oxford English
Dictionary gives as the
relevant meanings of control, as a
substantive, "1. The
fact of controlling, or of
checking and directing
action....", and as a verb,
"3. To exercise restraint or
direction upon the free action
of...." The meaning of
supervision is given as "The
action or function of
supervising; oversight,
superintendence." The words
"control" and
"supervision" are appropriate words to use
in regard to things which are in
esse, but would not be apt
in connection with things not yet
in existence but merely
in contemplation. Moreover, a
power to control and
supervise roads does not in itself
imply the possession
9
of real rights over the land
traversed thereby. Compare a direction that "The school shall be
under the control and supervision
of the headmaster."
Usually (if not invariably)
statutes which authorize expropriation make provision for the giving
of notice to the person to be expropriated.
Indeed, it is repugnant
to fundamental ideas of fairness that a person should be deprived of
proprietary rights by an administrative
act without notice. Thus, s.7
of the Expropriation Act 55 of 1965 provides that where it is decided
to expropriate any property in
terms of s.2 of the Act, an
appropriate notice shall be served upon the owner, which shall
contain a clear and full description of
the property in question, and
which shall state the date of expropriation. The absence of any
provision for the giving of notice
is a strong indication against a
legislative intention to authorize expropriation.
10
There is nothing in s.5 which
requires the
giving of notice to persons whose
rights of ownership may
be affected by the declaration of
a public road. As
originally enacted, sec.5 did not
even require that the
Administrator's Notice should
contain information regarding
the course of the road declared or
the land affected. This
became a requisite only upon the
insertion of a new section
5A by Ordinance No 7 of 1974,
which provided:
"5A (1) Where, in terms of
any of the provisions of this Ordinance, the Administrator is
required to issue a notice for the purpose
of declaring -
that a public road or any
deviation of a public road shall exist on any land; or
that the width of the road
reserve of a public road shall be reduced or increased,
such notice shall, subject co
provisions of subsections (2) and (3), contain such information,
whether by way of a sketch plan or
otherwise, as the Administrator
may deem sufficient to indicate the gcneral direction and situation
of any such road or of any such
deviation or the extent of any such
reduction or increace and where such reduction or increase
11
applies.
(2) No notice referred to in
subsection (1)
shall be issued by the Administrator unless he
is
satisfied that the land taken up by the public
road or the
deviation or the reduction or
increase concérned, is shown
on a plan which is
available for inspecticn by any interested
person
or that such land has been demarcated by the
erection of
beacons or other suitable means.
(3)
In Thom en 'n Ander v Moulder
1974(4) SA 894 (A)
RUMPFF CJ said at 905 C:-
"Die bevoegdheid van die
Administrateur om 'n openbare pad te verklaar oor die eiendom van 'n
privaat persoon is in wese 'n onteieningshandeling
van sekere regte,
vgl Nel v Bornman, 1968(1) SA 498 (T), en Mathiba and Others v
Moschke,
1920 AD 354
te bl 363."
This dictum is
with respect not idcally clear, but
I
do
not
think that it is to be understood
as laying down that a
declaration by the Administrator
of a public road over the
property of a private person
constitutes an act of
expropriation per se. There was no
occasion to state
such a principle, and it does not
appear to have been
12
addressed in argument. The
question for decision in
Thom's case was this:
"....of die Administrateur
die bevoegdheid gehad het om, in 'n geval soos die onderhawige, 'n
openbare pad te verklaar wat twee
plekke verbind oor 'n stuk grond
waarop daar reeds 'n pad bestaan wat daardie twee plekke verbind,
veral wanneer die verklaarde pad
en die bestaande pad die twee plekke
onmiddellik verbind." (See p.905 B-C)
Nel v Bornman 1968(1) SA 498 (T),
to which the
learned Chief Justice referred
with apparent approval, was a judgment by TROLLIP J, who as a judge
of appeal was to concur in RUMPFF
CJ's judgment in Thom en h Ander v
Moulder. TROLLIP J said at 501 F-G:-
"Sec 8(2) (sc. of the 1957
Roads Ordinance) vests the power in the Administrator to expropriate
the necessary road-rights from
the owner who refuses or fails to part
with them. The right to "enter upon and take possession of"
the land is a right
of expropriation in such circumstances. (See
Mathiba and Others v Moschke,
1920 A.D. 354
at p. 363)..."
13
"The necessary road-rights"
were what RUMPFF, CJ referred to as "sekere regte." In the
context, RUMPFF CJ could
not, in the dictum which is quoted above,
have intended to lay down a rule that the issue of a notice by the
Administrator declaring
that a main road shall exist constituted ipso
facto an expropriation of the necessary road-rights.
For these
reasons
I
respectfully
disagree with the conclusion at p.21 of the main judgment that the
Administrator "acquired the use of the land upon
due
proclamation of a public road, and without necessarily having entered
upon the land."
As it read in
1963, Sec 8(2)
of
the 1957 Roads
Ordinance provided -
"8.(2) The Administrator may
after notice to the owner, enter upon and take possession of so much
of any land as may be required
for the opening or construction of a
public road, or for any purpose incidental to the discharge of the
14
duties or powers imposed or
conferred in this Ordinance in respect of such road."
The passage in Mathiba and Others
v Moschke
1920
AD 354
at p.363, to which TROLLIP
J referred, reads as
follows:
"No doubt the word
"expropriate" is not used in either of these (Besluite):
but that is not essential if the language
of the Legislature in
effect authorizes the expropriation. Thus neither in the Cape Roads
Act No 9 of 1858, nor in the Cape Railway
Act No 19 of 1874 which
incorporated the powers under the former Act, is the word
"expropriate" used: the terms are "to
take land,"
"to enter upon and take possession of land," and it was
held in Grimbeek v The Colonial Government
(17 S.C. 200)
that the
taking of land under the said Railway Act was an expropriation and
that upon such expropriation the land became vested in
the
Government."
(See also Apex Mines Ltd v
Administrator, Transvaal
(supra) at 17.)
It was contended on behalf of the
appellants that, as later events showed, portions 4 and 5 were not
required for the opening or construction
of a public road,
15
and that the Administrator had not
entered upon and taken
possession of portions 4 and 5
before the decision of 25
August 1967. Conseguently, so it
was argued, those
portions had not been
expropriated, with the result that
their use had not been acquircd
within the meaning of sec
3(2)(a)(ii) of the 1971 National
Roads Act.
This contention did not form part
of the case
of the applicants as formulated in
their affidavits. Nor
does it appear from the judgment
of HARTZENBERG J that it
was raised in the Court a quo. It
is essentially
counsel's point, raised for the
first time on appeal.
Its only basis is a statement in
the Administrator's
answering affidavit, which was
deposed to by Mr J H
Fourie, a directcr in the service
of the TPA. He said:-
"19. Insoverre dit relevant
mag wees bevestig ek dat die Vyfde Respondent, (sc. die
Administrateur) nadat 'n openbare pad oor
gedeeltes 4 en 5 verklaar
was, op geen ander wyse met die grond beskryf as gedeeltes 4 en 5
gehandel het nie."
16
There is no context from which it
can be inferred that Fourie's mind was directed to the question
whether the Administrator entered
upon and took possession of
portions 4 and 5. The statement did not arise out of anything
contained in the applicants' affidavits,
and it was apparently not
regarded by them as being relevant, since in the replying affidavit
Mr Fink said only:-
"3.2.9. Ad Paragraph 19: The
contents of this
paragraph are noted."
Consequently
I
do not think that Fourie's statement in
para 1 9 can bear the weight which it is now sought to attach to it.
The deceased, by his
conduct in accepting payment of R55 832,00 in
full settlement for compensation of 4.258 morgen of his land for the
Johannesburg Eastern
By-pass, admitted that the TPA had acquired
rights to use that land. It is vain to argue, more than 20 years
later, and on the strength
only of Fourie's statement, that the
17
deceased's admission was
erroneously made.
I
accordingly
concur in the order dismissing the
appeal
with costs, including the costs of two counsel.
H C NICHOLAS, AJA