SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 127296/2023
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED:
DATE: 30 JULY 2025
SIGNATURE
In the matter between:
LOTHAR OTTO BÖTTCHER First Applicant
NICOLENE BÖTTCHER Second Applicant
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY First Respondent
THE MINISTER OF PUBLIC WORKS
AND INFRASTRUCTURE
Second Respondent
THE REGISTRAR OF DEEDS, PRETORIA Third Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 30 July 2025.
JUDGMENT
RETIEF J
INTRODUCTION
[1] The First and Second Applicant [Applicants] seek to review and set aside a
decision taken by the First Respondent; the City of Tshwane Metropolitan
Municipality [Municipality] as communicated to them on the 16 October 2023 by
means of the section 7 notice [the section 7 notice] in terms of the Expropriation Act
63 of 1975 [Expropriation Act] . The section 7 notice referred to the acquisition of an
immovable property registered in the First Applicant’s name described as portion 176
(a portion of portion 2) of the Farm Kameeldrift 29 8, Registration Division JR,
situated in the Gauteng Province [ portion 176] [impugned decision]. The Applicant’s
review relief is brought, inter alia, in terms of the Promotion of Administrative Justice
Act, 3 of 2000 [PAJA] [review relief].
[2] The Municipality opposes the review relief and the Second and Third
Respondents filed a notice to abide. Over and above the review relief , t he
Municipality sought condonation for the late filing of their notice of opposition, the
late filing of the record and, in consequence the late filing of their answering affidavit.
According to the signed joint practice note this preliminary issue was not indicated as
an issue for determination . This Court nonetheless has had regard to the
Municipality’s explanation and is satisfied that a full and acceptable explanation has
been provided for the entire period of the delay and having considered the merits of
the matter and that most of the relevant material background facts are common
cause, this Court will grant condonation as sought. The review relief will be dealt with
having regard to all the papers filed.
[3] So, what is at the heart of the Applicants’ complaint giving rise to their review
relief? T he Applicants complain that the section 7 notice is invalid as it offends
section 7 of the Expropriation Act and that the procedure followed by the Municipality
to justify the impugned decision is procedurally unfair and statutorily flawed. The
Municipality conversely argue s that it was entitled to take the impugned decision,
that the reason for the expropriation of the First Applicant’s property was justified and
that all required procedures under the relevant legislation , including those in respect
of section 7 was properly followed and complied wi th. It further argues that, in any
event, the Applicants never objected to the process of expropriation itself but, if one
has regard to the procedural steps taken by the Applicants before and after the
section 7 notice, their core issue is, in fact, the compensation offered. It is common
cause that the compensation offered has formally been rejected and that the
Applicants have instituted action proceed ings as envisaged in terms of section 14(1)
of the Expropriation Act.
[4] Before dealing with the review relief, it will be helpful to consider the
background facts that gave rise to both the Applicants’ complaints , to consider t he
reason why the Municipality took the impugned decision and to view the steps taken
by the Applicants, procedural or otherwise, in context.
BACKGROUND AND PROCEDURAL STEPS
[5] The Municipality is mandated to develop human settlement areas within its
municipal region and district by , amongst other actions, zoning land as residential
land. The farm Kameeldrift 298 JR [the farm] upon which portion 176 is situated, is
land zoned for agriculture. The farm is located in the northern part of the city of
land zoned for agriculture. The farm is located in the northern part of the city of
Tshwane and therefore falls within the Municipality’s regional and district jurisdiction
During 2002, the Gauteng Provincial Department of Human Settlement [the GDHS]
sought to formalise portion 174 of the farm as it had been invaded by occupiers and
had now become an informal settlement. GDHS had intended to estab lish a
township on portions 174 and 175 of the farm, in that way , it intended to formalise
the informal settlement occasioned by the invasion of occupiers on the farm.
[6] In 2015 the Municipality took over the project from the GDHS and soon
realised that d ue to the dense nature of the informal settlement, additional land
would be required to decant some of these residents. Therefore, in 2020, the
Municipality also acquired portions 178 and 179 of the farm for th e development.
Thereafter, the Municipality was approached by landowners of the surrounding
properties all who expressed an intention to sell their properties to the Municipality to
enable the extension of the portion 178 and 179 development. In 2021and after a
prefeasibility study was performed it was recommended that, inter alia, portion 176
should be acquired.
[7] To this end, and o n the 22 June 2022, the Mayoral Committee resolved to
acquire, at fair market value , certain properties from the surrounding landowners for
the development, including portion 176. The fair market value for such properties, at
that time, was determined by both the Cities internal valuators, the Group Financial
Services Property Valuation section [internal valuation] and by external valuators
Evaluations Enhanced Appraisals (Pty) Ltd.
[8] According to the filed records, the internal valuation of portion 176 was
recorded as being R3,255,000.00 comprising a financial loss amount of R3 ,
200,000.00 and R55 ,000.00 as a solatium amount. According to the external
valuation the fair market value of portion 176 was recorded as R4,000,000.00.
Unfortunately, although reference in the record is made to the respective valuation
reports themselves as annexures , annexed to the 2023 report , no actual r eports
formed part of the record filed by the Municipality under uniform rule 53 . The
Municipality however dealt with and provided the external valuation re port dated 26
Municipality however dealt with and provided the external valuation re port dated 26
October 2022 by Evaluations Enhanced Appraisals (Pty) Ltd, in their answer to the
First Applications review relief. The record indicated that some of the landowners
were satisfied with the valuations (internal and external) obtained by the Municipality,
however, no consensus was recorded as being reached with the First Applicant as
the owner of portion 176.
[9] Approximately a year later and o n the 21 June 2023 , the Group Property
Department of the Municipality tabled another request before the Mayoral Committee
relating to the same development. This time it n ow wished to table the prospect of
acquiring portions 172, 173 and 176 of the farm by means of expropriation . To this
end it proposed that the Mayoral Committees agree to resolve that the identified
portions are to be acquired by means of expropriation, and that the resolution of 22
June 2022 be corrected to ensure that portion 176 which, was initially to be acquired
by the sale method, now to be acquired by means of the expropriation method
together with portions 172 and 173.
[10] The Mayoral Committee on the 21 June 2023 resolved the following material
resolutions:
“RESOLVED:
1. That Mayoral Committee resolution dated 22 June 2022 be corrected by
removing the acquisition of portion 176 of the Farm Kameeldrift 298 – JR
through a sale method, and instead the property be expropriated with
portion 172 and 173 of the farm Kameeldrift 298 – JR;
2. That the Mayoral Committee approves the expropriation of portions 172,
173 and 176 of the farm Kameeldrift 298 – JR for human settlement
development purposes;
3. That the pr operties ( portion 172, 173 and portion 176 of the farm
Kameeldrift 298 – JR) be expropriated at fair market value s determined
by the Group Financial Services Property Valuation section);
4. -
5. That the Acting/Group Head: Legal and Secretariate Services be
authorised to issue notices of expropriation upon approval of the
proposed expropriation of portion 172, 173 and 176 of the farm
Kameeldrift 298 – JR (own emphasis);
6. That once said portions are approved to be expropriated (own
emphasis), the said properties be declared Municipal Transitional
Settlements in terms of clause 16 and 32 of the Planning Scheme, 2008
(Revised 2014);
7. That an environmental authentication through Gauteng Provincial
Environmental Management Framework (GPEMF) Norms and Standard
Process and a geological investigation be sourced by Human Settlement
Department (a custodian department) to ascertain he geological
constraints and developability of the properties.
8-10-’’
[collectively the June 2023 decision]
[11] According to the record, t he next Mayoral Committee meeting was scheduled
for the 5 July 2023. No record of that meeting ever taking place is before this Court
nor did the minutes thereof form part of the record. The Municipality did not deal with
the July 2023 meeting in its papers.
[12] Eight days after the June 2023 decision, and o n the 29 June 2023 the
Municipality sent a letter addressed to the First Applicant. The letter was headed
“EXPROPRIATION OF PORTION 176 OF THE FARM KAMEELDRIFT 298 JR ”.
This letter was referred to by the Municipality as the ir notice in terms of section
3(2)(b) of PAJA [PAJA letter]. In the PAJA letter the First Applicant was informed of
the following:
“The City of Tshwane Metropolitan Municipality intends to acquire portion 176
(own emphasis) of the farm Kameeldrift 298 JR, which will be utilised for the
formalisation and development of Human Settlement by means of
expropriation. See attached (Annexure A).
You are herewith notified in terms of section 3 (2)(b) of the Promotion of
Administration and Justice Act 2000 (Act 3 of 2000) (“PAJA”) of the proposed
expropriation (own emphasis). The construction of the road is in the interest of
the general public (own emphasis).
You will be compensated for the expropriated land at market value, and you
will be able to claim compensation for actual financial loss caused by the
expropriation.
You are given the opportunity to make written representation within 30 (thirty)
days of the date of this letter regarding the principle of the proposed
expropriation (own emphasis). You are requested to also (own emphasis) put
forward any alternatives to the planned area to be affected by the servitude
(own emphasis).
You are notified that, should a decision be made to proceed with the proposed
expropriation after having considered your written objections or
representations (own emphasis) you are entitled to request reasons for such
decision in terms of section 5 of PAJA.”
[PAJA letter]
[13] Annexure A referred to was attached to the PAJA letter, and it was a copy of
the subdivision plan in terms of section 24(b) of Act 9 of 1927 of the farm. The plan
depicted portions 173 to 178 of the farm divided by a right of way servitude , such
depicted by means of a broken line from point C to D.
[14] On the 12 July 2023 and before the expiration of the 30-day period referred to
in the PAJA letter, the Municipality appointed its conveyancing attorneys Kutumela
Sithole Inc to attend to the registration of, inter alia portion 176.
[15] On the 28 July 2023, the First Applicant’s attorney responded to the PAJA
letter on behalf of the First Applicant , in which he, amongst other issues raised a
number of concerns relating to the vague intent and purpose of the expropriation as
set out in the PAJA letter. He placed on record that the PAJA letter was confusing
and required clarification. In amplification the First Applicant was unsure whether the
Municipality now wished to acquire the entire portion 176 or just a portion thereof or
merely the servitude for the purpose of a public road for the public interest. The First
Applicant reserved his rights to make the representation referred to the PAJA letter
to the Municipality after clari fication was obtained . Notwithstanding the need for
clarification, the First Applicant’s attorney confirmed that, in the interim, The First
Applicant was “willing to enter into negotiations regarding compensation for the
possible expropriation of the Property.’’
[16] On the 3 August 2023, the Municipality responded to the First Applicant’s
letter of the 28 July 2023 and informed the First Applicant that:
“As per PAJA letter dated the 13th of July 2023 (own emphasis), the intention
is to expropriate for human settlement development purposes. The road is
part of such development as it will enhance access to human settlement
development.
Furthermore, after the thirty days from the date of the PAJA letter ,
expropriation letters will be sent to your clients detailing the amount of
compensation as approved by the Mayoral Committee dated the 21 st of June
2023 (own emphasis).”
[letter of clarification]
[17] No PAJA letter of the 13 July 2023 , as reference by the Municipality in the
letter of clarification, formed part of the record nor did the Municipality deal with that
in their papers.
[18] On the 15 August 2023, in an executive memorandum, a request was made
to the Acting Legal Head for the signature of the section 7 notice . In support of the
signature, the memorandum indicated the following:
“In compliance with (own emphasis) the aforementioned Committee resolution
of the 21 June 2023 we served the property owner with a PAJA letter attached
hereto. The 30-day period has lapsed since we served the letter to the owner .
Therefore, (own emphasis) the expropriate must be served with the notice of
expropriation.”
[19] Having regard to the memorandum, it is not clear from the June 2023 decision
whether resolution 5 speaks of the PAJA letter as the notice as relied on by the
author of the memorandum or the section 7 notice itself when the author stated , “In
compliance with the aforementioned Committee resolution of the 21 June 2023 we
served the property owner with a PAJA letter .’’ This is because the Municipality does
not deal with it.
[20] At this stage of the process, the Acting Legal Head by virtue of the content of
the covering letter is not asked to consider the First Applicant’s letter calling for
clarification in respect of the PAJA letter nor the Municipalit y’s response thereto as
these letters are not referred to nor attached to the m emorandum marked for her
attention. The only letter attached is the PAJA letter.
[21] Signature of the section 7 notice was approved on the 26 September 2023.
On the 18 October 2023, the First Applicant acknowledged receipt of section 7 notice
which informed him of the impugned decision.
[22] The section 7 notice was now accompanied by a covering letter which now
confusingly made reference to the PAJA letter of the 13 July 2023 (ostensibly the
PAJA letter of the 29 June 2023 but recorded as t the date of the receipt thereof) ,
and significantly now only made reference to the First Applicant’s clarification letter.
The section 7 notice was addressed to the registered owner, 1 it set out a description
of the property, it confirmed that the date of ownership and possession of portion 176
would be effected namely on the 1 November 2023 , it drew the First Applicant’s
1 Section 7(4) of the Expropriation Act 63 of 1975.
attention to section 9(1), including 9(1)(d) (i) and 12(3)(a)(ii) and did set out a
compensation offer.2
[23] The compensation offered was set out as follows:
“3. the total amount of R3,035,000.00 (three million and thirty-five
thousand rand) (own emphasis) “the compensation OFFERED”) is
hereby offered as compensation in terms of the Expropriation Act,
which amount is broken down as follows:
3.1 In terms of section 12(1)(a)(ii) R3,200,000.00 (two million nine
hundred and eighty thousand rands ) (own emphasis) which
is the financial loss,
3.2 In terms of section 12(2) R55,00.00 (fifty -five thousand rands,
which is the solatium.”
[collectively the section 12 offer]
[24] The section 7 notice too, sets out further terms relating to the payment and
how the offer was to be accepted. In particular in terms of paragraph 11, the
following is stated:
“11. Should you fail to submit to a court as contemplated in section 14(1) of
the Expropriation Act, before the 1 st of July 2024, an application for
settlement of the amount, you would be deemed in terms of the
provisions of section 10(5)(a) of the Expropriation Act, to have
accepted the compensation offered.”
[25] The First Applicant formally rejected the section 12 offer in writing on the 13
December 20233 and initiated the review relief.
2 Section 7((2)(a) and (b) of the Expropriation Act 63 of 1975.
3 Section 9(1)(a) of the Expropriation Act 63 of 1975.
[26] Thereafter, in May 2024 the Applicants served a statutory notice on the
Municipality in terms of the Institution of Legal Proceedings against certain Organs of
State Act 40 of 2002. Th is statutory notice was followed by the i nstitution of legal
proceedings against the Municipality and the Second Respondent before the 1 Jul y
2024. The Applicants issued their summons commencing action on the 27 in
accordance with the Expropriation Act.
LEGISLATIVE FRAMEWORK
The Constitution
[27] The Expropriation Act predates the Constitution by 20 (twenty) years.
Therefore, it is not aligned with Constitutional provisions. The Expropriation Act does
not refer to “public interest requirement” and that the calculation of the compensation
must be just and equitable but rather based on a market value of the property.
However, regard to the statutory provisions of the Expropriation Act through the
Constitutional lens of section 25 dictates that the application of the Expropriation Act
must be applied to conform with the fundamental values of the Constitution wherever
possible.4 In this matter it is common cause that the law of general application is the
Expropriation Act of 1975.
[28] Section 25 of the Constitution is relevant, and in this matter, it is appropriate
to highlight, although applying weight to all of the other subsecti ons where
applicable, section 25(2)(b) and 25(3). In terms section of 25(2)(b) property may only
be expropriated which reads that property may be expropriated only in terms of law
of general application, inter alia , “25(2)(b) subject to compensation, the amount of
which and the time and manner of payment of which have either been agreed to by
those affected or decided or approved by a court.”
[29] Section 25(3) speaks to the amount by providing that the same must be just
and equitable. In subsection (c) thereof, as an open -ended factor 5 in the
4 Du Toit v Minister of Transport (CCT 22.04) [2005] ZACC9; 2005 (11) BCLR 1053 (CC); 2006
4 Du Toit v Minister of Transport (CCT 22.04) [2005] ZACC9; 2005 (11) BCLR 1053 (CC); 2006
(1) SA 297 (CC) at par 29.
5 Ibid para 28.
determination thereof, reference to the market value of the property is made. Such
as prescribed the Expropriation Act , in particular section 12 when calculating the
aggregate amount referred to in section 12(1).
The Expropriation Act 63 of 1975
[30] The Expropriation Act 63 of 1975 was enacted to provide for the expropriation
of land and other property for public purposes. Section 1 of the Expropriation Act
defines public purpose to include any purpose connected with the administration of
the provisions of any law by an organ of state.
[31] Section 1, the definition of "public purposes " includes any purposes
connected with the administration of the provisions of any law by an organ of State.
[32] Section 2 of the Expropriation Act states that:
“2. (1). Subject to the provisions of this Act the Minister may, subject to an
obligation to pay compensation, expropriate any property for public
purposes or take the right to use temporarily any property for public
purposes.”
[33] Section 5 of the Expropriation Act states that:
“5. (1) If a local authority has the power to expropriate property (own
emphasis) or to take the right to use property temporarily, such
power may only be exercised, mutatis mutandis, in accorda nce with
the provisions of this Act and subject to the approval of and the
conditions imposed by the executive committee concerned.
(2) For the purposes of the application of subsection (1) any reference in
this Act to the Minister and the State shall be construed as a
reference to the local authority concerned.”
[34] Section 7 of the Expropriation Act states that:
“7. (1) If the Minister has decided to expropriate, or to take the right to use
temporarily, any property in terms of the provisions of section 2, he
shall, subject to the provisions of subsection (5), cause to be served
upon the owner in question an appropriate notice in accordance with
the provisions of subsection (3).
(2) The notice of expropriation shall-
(a)-(b) -
(c) either state the amount which is offered as compensation (own
emphasis) for the property or for the use thereof, or request the
owner to advise the Minister in writing within sixty days from the
date of notice of the amount claimed by him as such
compensation and how much of the last -mentioned amount
represents each of the respective amounts contemplated in
section 12(1)(a)(i) and (ii ) or (b) with full particulars as to how
such amounts are made up: Provided that if the owner requests
the Minister in writing within thirty days from the date of notice
to extend the said period, the Minister shall extend such period
by a further sixty days;
(d) -
(3) Subject to the provisions of subsection (5), the Minister shall cause
the notice of expropriati on to be served by causing the original or a
true copy thereof to be delivered or tendered or sent by registered
post to the owner in question.
(4) - (5)”
[35] Section 9 of the Expropriation Act states that:
“9. (1) An owner whose property has been expropriated in terms of this Act,
shall, within sixty days from the date of notice in question, deliver or
cause to be delivered to the Minister a written statement indicating-
(a) if any compensation was in the notice of expropriation offered
for such property, whether or not he accepts that compensation
and, if he does not accept it, the amount claimed by him as
compensation and how much of that amount represents each
of the respective amounts contemplated in section 12(1)(a)(i)
and (ii) or (b) and fu ll particulars as to how such amounts are
made up;
(b) to (e) -
(2) The Minister may, after receipt of a written statement contemplated
in subsection (1), request the owner concerned to deliver or cause to
be delivered to the Minister within such period not being less than
one month as may be determined by the Minister, such further
specified particulars in respect of any matter contemplated in the
said subsection as he may consider necessary for the determination
of the amount of the compensation.”
[36] Section 12(1) states that:
“12.(1) The amount of compensation to be paid in terms of this Act to an
owner in respect of property expropriated in terms of this Act, or in
respect of the taking, in terms of this Act, of a right to use property,
shall not, subject to the provisions of subsection (2), exceed-
(a) in the case of any property other than a right, the aggregate
(own emphasis) of-
(i) the amount which the property would have realized if sold
on the date of notice (own emphasis) in the open market
by a willing seller to a willing buyer; and
(ii) an amount to make good any actual financial loss caused
by the expropriation; and
(b) -.”
Promotion of Administrative Justice Act, 3 of 2000
[37] Section 3(1) states that:
“3. (1) Administrative action which materially and adversely affects the
rights or legitimate expectations of any person must be procedurally
fair.
(2) (a) A fair administrative procedure depends on the circumstances
of each case.
(b) In order to give effec t to the right to procedurally fair
administrative action, an administrator, subject to subsection
(4), must give a person referred to in subsection (1)-
(i) adequate notice of the nature and purpose of the
proposed administrative action;
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal,
where applicable; and
(v) adequate notice of the right to request reasons in terms of
subsection (5).”
Local Government Ordinance of 1939
[38] Section 79(24)(1) permits the Municipality to inter alia purchase, expropriate
or in any other manner acquire any immovable property, for the performance or
discharge of any function or duty authorised or acquired in terms of any law. Such
acquisition of immovable property may be achieved by expropriation as permitted in
terms of section 2(4) of the Expropriation Act, or by negotiation with an owner of
property for the acquisition thereof by means of agreement for public purposes.
DISCUSSION OF THE APPLICANTS’ CASE
[39] Against th e legislative background, t he Applicates’ attack both the process
giving rise to the impugned decision and the section 7 notice itself. The Applicants
contend that the section 7 notice is invalid and should be declared unlawful and that
the process giving rise to the impugned decision was , inter alia, procedurally unfair,
irrational and that such impugned decision stands to be reviewed and set aside.
The case regarding the expropriation process
[40] From a reading of the papers the Applicants take no issue with the fact that
the Municipality is statutorily entitled to acquire the property by means of
expropriation. They however contend that the process itself is to be scrutinised. In
context the process was triggered by the June 2023 decision and initiated as against
them, by means of the PAJA letter.
[41] The Applicants argue that the PAJA letter read with Annexure A was
confusing in that they were unsure whether the Municipality intended to consider
acquiring portion 176, a portion thereof or just the servitude. Furthermore upon a
reading of the PAJA letter the Applicants stated t hat they were under the impression
that a final decision to expropriate had not been taken yet and that is why the
Municipality had called for their objections and their representations concerning the
process when it in the introductory paragraph stated that : “- intends to acquire
portion 176” and later therein continues to make reference to : “should a decision be
made to proceed with the proposed expropriation after having considered your
written objections or representations -“ The use of the word s ‘intend to-’ and ‘-should
a decision be made to proceed -’ to them meant that although there was an intention
albeit a prospect, no final approval to proceed with expropriation had been made and
that dialogue between the parties was open. In short, their representations could be
meaningful.
[42] Notwithstanding their understanding and having written to the Municipality
requiring clarification on certain unclear facts, the Municipality in its clarification letter
of the 3 August 2023 conversely stated that: ” Furthermore, after the thirty days from
the date of the PAJA letter (own emphasis), expropriation letters will be sent to your
clients detailing the amount of compensation as approved (own emphasis) by the
Mayoral Committee dated the 21st of June 2023.”
[43] From the clarification letter, the Applicants contended that without their input,
expropriation letters would be sent detailing an amount already decided on by the
Municipality even before the PAJA letter was even sent. Furthermore that, as at the
3 August 2023, “-thirty days from the date of the PAJA letter ,-“ being from the 29
June 2023 and not from the receipt, had factually expired. Any input from them to try
and shift the barometer in any way was futile and as such, the call to make
representation or objections was a farce. Furthermore, that after receiving the record
it was clear that expropriat ion of portion 176 had finally been resolved by the June
2023 decision , conveyancing attorneys appoints and as such , the process was a
farce. Therefore, the process was procedurally unfair . They reiterated that it was
clear to the Municipality in their response to the PAJA letter that they reserved their
clear to the Municipality in their response to the PAJA letter that they reserved their
rights to respond upon reflection of the Municipalities clarification response and that
any negotiation s regarding any proposed expropriation was interim pending such
clarity.
[44] The Municipality contends that t he June decision sanction ed expropriation
and that is what triggered the process. The first step in the process was the PAJA
letter. The Municipality confirms that although the Expropriation Act does not
prescribe the necessity of such a notice, for procedural fairness such a letter was
sent as it is an organ of Sta te and are therefore bound by the provisions of PAJA in
such circumstances. Furthermore, they argued that both the PAJA letter dated the
29 June 2023 and the letter on the 01 August 2023 (this must have been a
typographical error as the letter was dated the 3 August 2023) was sent to illicit
representations from the First Applican t and ” -that expropriation was not going to
follow on account of both of those letter.” In consequence the procedure was fair.
[45] The Applicants cast the review ground net wide without dealing pertinently
with each ground raise. This Court only intends to de al with those grounds repeated
in argument and sufficiently supported by facts.
Discussion
Was the process procedurally fair?
[46] The Municipality contends that the PAJA letter was sent to the First Applicant
in compliance of section 3(2)(b). The PAJA letter dated 29 June 2023 gives the First
Applicant notice of a proposed expropriation. Reference to “proposed expropriation’’,
was used by the Municipality after the June 2023 decision already, absent any other
decision, sanctioned expropriation on the ad mitted facts . Furthermore, t he PAJA
letter is poorly drafted, its content is confusing and, at times ambiguous with regard
to material issues. In consequence, the purpose and nature of the proposed action
as provided for in section 3 of PAJA i s not met and the call for clarity by the First
Applicant justified and reasonable. However, what was clear is that no indication in
the PAJA letter was given that the June 2023 decision was taken at all and that such
decision could adversely affect the rights of the First Applicant. This is probably why
the Applicants were confused about what process the Municipality follow ed internally
and thought that a mere proposal was made and no decision to expropriate would be
and thought that a mere proposal was made and no decision to expropriate would be
made without consideration of their representations. The PAJA letter was not clear at
all as envisaged in terms of section 3 of PAJA.
[47] Furthermore, it was only in the letter of clarification on the 3 August 2023, that
mention of the June 2023 decision was made for the first time . Therefore, both the
letters being, the PAJA letter and the clarification letter of the 3 August 2023 had to
be read together to obtain clarity and a full er picture. Contrary to the Municipalit y’s
evidence that : “-that expropriation was not going to follow on account of both of
those letter.” It did, in that, on a reading of the letter of clarification it cannot be said
that its intention, as advanced by the Municipality, was to solicit a response from the
Applicants. In fact , the facts demonstrate that the reverse is true as previously
reasoned in that , the First Applicant was forewarned that the 30-day period for
representations and objections started to tick from the date of the PAJA letter. The
PAJA letter of the 29 June 2023.
[48] It is therefore reasonable for a reader , without been given an explanation to
the contrary, to interpret and to accept that the window of opportunity to participate in
a meaningful process had not been extended from the date of the Municipalit y’s
clarification letter in August 2023 nor, that that they as a fact could participate in the
process after considering the content of the letter. In consequence, the next
procedural step, the section 7 notice , would be dispatched consisting of
compensation amount as agree d by the 23 June 2022 decision . The fact that the
Applicants made no further objections and/or representation after the 3 August 2023
now comes into focus.
[49] Both the PAJA letter and the clarification letter in August 2023 were unclear
causing procedural vagueness.6 The PAJA letter failed to fully comply with section
3(2)(b)(i)-(ii) of PAJA. The August 2023 clarification letter by its content truncated the
Applicants participation in a meaningful process, and it is on this basis that t he
procedure followed by the Municipality, at this stage of the process was procedurally
unfair to the Applicants. The Applicants after receiving the record indicated that they
unfair to the Applicants. The Applicants after receiving the record indicated that they
would have liked to put , inter alia, other alternatives to the Municipality as called for,
but could not.
[50] Before dealing with the complaints raised as against the section 7 notice it
appears from the executive memorandum that when the delegated person was
6 Allpay Consolidation investment Holdings (Pty) Ltd and Others v Chief Executive Officer,
South African Social Security Agency, and Others 2014 (1) SA 604 (CC) at para 88 -90
read with section 6(2)(i) of PAJA.
called to sign the section 7 notice they did not possess knowledge of the First
Applicant’s response to the PAJA letter. This is because it was not referred to nor
attached. In consequence the person could not consider the issues raised, did not
note the interim request for negotiatio ns nor for that matter that the First Applicant
reserved his rights to make further representations and what became of them .
Therefore, no further enquiries were made. The rubber stamp approached followed.
This created a lack of consultation in the process .7 Such rendering the procedure
unfair and seemingly creating the impression that the deprivation of the First
Applicant’s property was arbitrary.
[51] Lastly, from the record a further meeting by the Mayoral Committee was
tabled to take place in July 2023. Whether that meeting took place or not is
unknown. What is known from the papers is that the Municipality failed to deal with
that fact emanating from the re cord. Its argument then that the June 2023 was the
authority to finally sanction the expropriation if accepted is procedurally unclear .
Furthermore, if that is so, then the Municipality has failed dismally to explain why the
PAJA letter does not mention the final decision and why the language in the letter
creates the impression that the expropriation is a prospect to be reconsidered when
factually, that was not the position. The Applicants’ complaint that the process was
just a farce and simply going through the motions has weight.
[52] Having regard to the inevitable must flow and the Applicants are to succeed
on this point as raised and argued.
The case regarding the section 7 notice
[53] Resolution 3 of t he June 2023 decision makes reference to the determinatio n
of a fair ma rket valuation by Group Financial Services. Section 12 (1)(i) makes
reference to the determination of an “- amount which the property would have
realized if sold on the date of notice (own emphasis) in the open market by a willing
realized if sold on the date of notice (own emphasis) in the open market by a willing
seller to a willing buyer.
7 Bengwenyama Minerals (Pty) & Others v Genorah Resources (Pty) Ltd & Others , 2011 (4)
SA 113(CC).
[54] The Applicants deny receiving the original notice albeit a certified copy of the
notice. They furthermore contend that no internal valuation report nor updated
internal valuation report form ed part of the record in support of section 12(1)(i) .
Furthermore, that the total compensation offered in the section 7 notice o f
R3,035,000.00 (three million and thirty -five thousand rand) was confusing if viewed
as against the explanation which followed. The amounts which followed when added
together do not tally with the total amount offered nor do some of t he amounts
written out in words accord with the actual figures themselves.
[55] Furthermore, the total compensation offered by the Municipality in the section
7 notice of R3,035,000.00 was, according to the Municipality’s evidence not the
intended offer as per the 2022 internal valuation. In that they contend that the total
offer should have been R3 255 000.00 . All these errors argue the Applicants’
Counsel, offends section 7 of the Expropriation Act. The Municipality concedes the
typographical errors. Other than that, the Municipality contends that such an error
does not render the notice invalid.
[56] The Applicants also argue that the Municipality failed to follow statutory
procedure and serve an original section 7 notice on both the Applicants. The
Municipality is silent on compliance and the record indicates that the First Applicant
did not sign for the receipt of the notice but one Bonita Botha. Ms Botha did not
depose to a confirmatory affidavit. The Municipality contends it has complied by
serving the section 7 notice as formally provided on the registered owner of the
property, the First Applicant and , in any event, the property is excluded from
community of property and thus the was no need to serve it on the Second
Applicant.
Discussion
Did the section comply with the provisions of the Expropriation Act?
[57] The concession by the Municipality is well ma de but it does not address the
[57] The concession by the Municipality is well ma de but it does not address the
failure by them to get the amounts written in words correct. To illustrate, in terms of
the section 7 notice the financial loss in terms of section 12(1)(a)(ii) was set out as
“R3,200,000.00” but written out as “ - (two million nine hundred and eighty
thousand rands)” (own emphasis). The figures and words are at variance with one
another.
[58] Section 12(1) of the Expropriation Act when applied correctly, speaks to the
amount to be offered which should not exceed the aggregate of the amount which
the property would have realised if sold at the date of notice in the open market by a
willing seller to a willing buyer and the amount to make good in the actual financial
loss caused by the expropriation.
[59] Applying the facts, in terms of section 12(1)(a)(i), no updated open market
value was provided as at date of the section 7 notice, being the 16 Octo ber 2023. It
is common cause that the First Applicant as at date of the section 7 notice did not
provide his claim for financial loss either as envisaged in terms of section 12(1)(a)(ii).
The latter is supported by the record with reference to the valuati on done by the
Acting Director: Property Valuations . This valuation in fact was simply a cut and
paste exercise imported from the 2022 report and merely pasted in the report tabled
before the Mayoral Committee again in 2023 . It was not current , not even then .
Furthermore, at the end of the cut and paste letter, the following paragraph states:
“The owner’s claim in terms of section 12(1)(a)(ii), if applicable, will b e evaluated
when it is received.” This would explain why the letter of confirmation of the 3 August
2023 by the Municipality only refers to compensation to be offered being an amount
approved by the Mayoral Committee (resolution 3) . As indicated, n o record of a
further meeting of the Mayoral Committee was placed before Court.
[60] Reference to 12(2) in the section 7 notice , being the solatium, does not make
sense in that the amount which should be offered is an amount equal to 10% of the
amount payable in terms of section 12(1)(a)(i) plus other percentages. A formula is
amount payable in terms of section 12(1)(a)(i) plus other percentages. A formula is
set out which can only be calculated once a figure in 12(1)(a) has been established.
[61] But does the confusion and the typographical errors as they appear, render
the section 7 notice and its purpose per se invalid as advanced by the Applicants ?
Considering the section 7 other that the typographical errors relating to the amount
of compensation, it does not offend the provisions section 7(2) as relied on by the
First Applicant and it is clear f rom the history of the matter that what statutorily was
to be achieved with the section 7 notice was achieved . The section 7(2) does not
indicate that the Municipality has to set out an amount for compensation in the notice
nor that if it does, it has to qualify the total amount.
[62] However, one would expect that what appears in the section 7 notice would
support a clear, rational and legitimate offer. To expand, the total offer in the section
7 notice was clear as the figures did accord with the words that followed, and it was
only clear to both parties after the notice had been received that the total offered was
not the intended amount. A lthough regrettable , the typographical errors as
complained of by the Applicants does not disturb the validity of the section 7 notice
with regard to section 7(2) complaint.
[63] Furthermore, if an offer was made, as it was, section 7(2)(c) is triggered, and
the First Applicant is at liberty to reject the offer and inform the Municipality and it is
common cause that the offer has been rejected . For what it is worth, the First
Applicant has not indicated on the papers that if the intended offer of R3 225 000.00
was correctly offered as set out, t hat the offer would have been accepted, the
procedural facts speak to the reverse.
[64] Section 25 of the Constitution and section 14 of the Expropriation Act are in
harmony in that if the parties do not agree on the amount payable for compensation,
that a court of law be approached to m ake that determination. It is common cause
that the Applicants have initiated the proceedings contemplated in the Expropriation
Act.
[65] Having reasoned the above this Court is acutely aware that having ruled that
the process triggering the impugned decision is to be reviewed and set aside for
want of procedural fairness , that this in consequence disturbs the section 7(1) . I n
that the basis for the section 7 notice must be triggered by a decision to expropriate.
that the basis for the section 7 notice must be triggered by a decision to expropriate.
For want of a decision to rely on, the notice cannot stand. In any event, procedural
compliance with regard to service of section 7 notice in compliance of section 7(3)
has not been satisfied by the Municipality.
[66] Having regard to all the evidence the Applicants must succeed in that the
section 7 notice is to be set aside.
COSTS
[67] It is trite that costs follow the result, and in the circumstances, costs should be
awarded to the Applicants. No other argument was tendered. The Court therefore
awards the Applicants costs of suit.
[68] The following order:
1. The First Respondent is granted condonation for the late filing of the
answering affidavit and the record.
2. The decision to approve the expropriation of Portion 176 ( portion of
Portion 2 ) of the farm Kameeldrift 298, Registration Division JR,
Province of Gauteng, measuring 8 ,5653 hectares, held under Title
Deed T[…] [the property] as communicated to the First Applicant
through the notice of the 16 October 2023 [the notice] is reviewed and
the decision and the notice is hereby set aside;
3. The Third Respondent is ordered to amend its records to indicate that
the First Applicant is the owner of the property;
4. The First Respondent is ordered to pay the costs of this application on
a party and party scale, taxed at Scale C.
___________________________
L.A. RETIEF
Judge of the High Court
Gauteng Division
Appearances:
For the Applicants: Adv J.G.C. Hamman
Mobile: 084 910 0092
Email: hamman@ptalaw.co.za
Instructed by attorneys: JDP Attorneys
Email: justin@jdplaw.co.za
For the Respondent Seneke SC
Mobile: 082 652 8344
Email: seneke@law.co.za
Adv Lekgetho
Mobile: 076 090 5018
Email: lekgetho@loftusadv.co.za
Instructed by attorneys: Marivate Attorneys
Tel: (012) 341 1510
Email: leseho@marivate.co.za
Date of argument: 21 May 2025
Date of judgment: 30 July 2025