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[1994] ZASCA 24
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Diepsloot Residents' and Landowners' Association v Administrator, Transvaal (321/93) [1994] ZASCA 24; 1994 (3) SA 336 (AD); [1994] 2 All SA 299 (A) (24 March 1994)
Case No : 321/93
N v H
THE DIEPSLOOT RESIDENTS' AND
LANDOWNERS' ASSOCIATION
First Appellant
STUART
AITCHINSON
Second Appellant
and
THE
ADMINISTRATOR, TRANSVAAL
Respondent
SMALBERGER, JA :-
Case No : 321/93
N v H
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
THE DIEPSLOOT RESIDENTS' AND
LANDOWNERS'
ASSOCIATION
First Appellant
STUART AITCHINSON
Second
Appellant
and
THE ADMINISTRATOR,
TRANSVAAL
Respondent
CORAM
: BOTHA, SMALBERGER, FH
GROSSKOPF, JJA,
et NICHOLAS, OLIVIER, AJJA.
HEARD
: 15, 16 FEBRUARY 1994
DELIVERED
: 24
MARCH 1994
JUDGMENT
SMALBERGER, JA:
The first appellant is a voluntary association representing the residents
and landowners of smallholdings situated on the original
farm Diepsloot ("the
Diepsloot residents"). The area in question falls within the
Pretoria/Witwatersrand/Vereeniging
2
region ("the PWV region"). The second appellant owns, and resides upon,
one such smallholding. The respondent is the Administrator
of the
Transvaal.
On 26 June 1992 the appellants (and one other applicant)
brought an urgent application against the respondent and others in which
they
claimed a temporary interdict, pending an action for final relief, restraining
the respondent from settling, or permitting the
settlement of, certain homeless
persons on land at Diepsloot West adjacent to that owned and occupied by the
Diepsloot residents
("the Diepsloot site"). The application was premised on the
intended settlement creating a nuisance and causing unlawful interference
with
the rights of the Diepsloot residents to the enjoyment of their properties. It
was also alleged that the decision of the respondent
to settle the persons
concerned at the Diepsloot site was reviewable on certain grounds.
3
The matter first came before DE VILLIERS, J, in the Transvaal Provincial
Division. He decided to refer certain issues that had arisen
on the papers to
trial. At the same time he granted an interim interdict preventing the
respondent from proceeding with the planned
settlement pending the final
adjudication of the application. The judgment of DE VILLIERS, J, is reported at
1993(1) SA 577(T) ("the
first judgment"), and the full order made by him appears
at 587C to 588G. The matter eventually proceeded before McCREATH, J. After
a
protracted hearing, during the course of which a number of witnesses testified,
McCREATH, J, dismissed the application with costs.
His judgment is reported at
1993(3)SA 49(T) ("the second judgment"). The learned judge refused leave to
appeal, but the necessary
leave was subsequently granted by this Court.
This appeal focuses on the powers and duties of the respondent, in the
exercise of his public
4
functions, to take steps to alleviate the plight of the homeless at the
possible expense, or to the detriment, of neighbouring property
owners. For a
proper understanding of the issues involved in this appeal, and their ultimate
resolution, it is necessary to set out
in some detail the sequence of events
which preceded and gave rise to the application in the court a
quo
.
Prior to September 1991 a community comprising
forty-five families of approximately six members each occupied farmland in the
Zevenfontein
area which they hired from the lessee of the land. Their tenancy
was lawfully terminated but they refused to vacate the property.
An eviction
order was obtained and they were removed from the property at the end of
September 1991. They were temporarily settled
on an adjoining property. Over a
relatively short period there was an influx of squatter families into the area,
causing the size
of the community to increase dramatically. Concerned
local
5
inhabitants took steps to prevent the further influx of squatters into
the area. This caused a tense situation to develop. The members
of this
community are generally known as the "Zevenfontein squatters". In what follows I
shall refer to them as such. As a result
of socio-political changes rapid
urbanisation was taking place at the relevant time. This led to a large number
of persons migrating
to the PWV region in search of employment opportunities.
There was a pressing need for land to accommodate these people. In order
to deal
with the problem, the respondent appointed a task group to study and report on
the means of ensuring orderly long term urbanisation
in the north-westerly
quadrant of the PWV region. The task group under the chairmanship of Mr
Waanders, the chief town and regional
planner of the Transvaal Provincial
Administration, included experts in town planning and other fields, and
representatives of various
Town and Regional Services
6
Councils, Local Area Committees and other interested bodies and
organizations, many of whom were assisted by their own professional
advisers.
According to the evidence of Mr Waanders, "dit was 'n versameling van tegniese
en vakkundige mense wat ons bymekaar gekry
het wat na my mening ongekend was".
Members of the task group also consulted widely with interested parties not
specifically represented
on the group. The task group eventually reported its
findings to the respondent in Executive Committee on 30 March 1992. Its report
is commonly referred to as the "Blue Report".
The unhappy plight of the Zevenfontein squatters became the concern of
the Transvaal Provincial Administration during October 1991.
Efforts to find
suitable land for their settlement met with opposition and lack of success. On 5
February 1992 the respondent instructed
the task group, as a matter of urgency,
to investigate the settlement of the
7
Zevenfontein squatters at a suitable site and to furnish him with an
interim report by 2 March 1992 at the latest. The task group
duly carried out
its mandate and produced a report known as the "Green Report". The Blue and
Green Reports were considered jointly
by the respondent in Executive Committee
on 5 June 1992. Both are comprehensive documents, comprising forty eight and
thirty two
pages respectively. According to the respondent, and this is nowhere
challenged, all aspects of the two reports were comprehensively
debated and
considered in the Executive Committee. In addition the following documentation
was available:
1)
A summary of
objections received from interested
parties;
2)
Proposals
received from members of the
public;
3)
An evaluation of
thirteen possible sites
for
8
low cost housing presented by officials of the Transvaal Provincial
Administration during November 1991;
4)
A more detailed
evaluation of certain sites, including the Diepsloot site, by officials of the
Transvaal Provincial
Administration;
5)
Offers of
sites by members of the public, and objections received from members of the
public after 30 March 1992.
In the course
of their deliberations the respondent and certain members of the Executive
Committee visited all the sites dealt with
by the task group save four, which
had been seen and inspected previously.
As appears from the Green Report, the task group's first choice for the
settlement of the Zevenfontein squatters was a site at Cosmo
City. The second
choice was Diepsloot East, and the third the Diepsloot site. The respondent in
Executive Council
9
opted for settlement at the Diepsloot site and an area known as
Nietgedacht (with which we need not concern ourselves for the purposes
of the
present appeal). According to the respondent, there were a number of factors
which militated against the site at Cosmo City,
and which led to the Diepsloot
site being preferred to Diepsloot East. There is no need to deal with them.
Suffice it to say that
it has never been suggested that the choice of the
Diepsloot site in preference to that at Cosmo City or Diepsloot East was
unreasonable
or open to challenge in any way. Consequent upon the choice of the
Diepsloot site, the properties comprising it were expropriated
by the respondent
under the provisions of the Expropriation Act 63 of 1975. The various notices of
expropriation were dated 9 June
1992.
On 8 July 1992, subsequent to the appellants launching their application,
the respondent caused to be
10
published in the Official Gazette Extraordinary of that date
Administrator's Notice 294 ("the Notice"). The
relevant portion of
the Notice reads as follows:
"DESIGNATION OF LAND FOR LESS FORMAL SETTLEMENT ON THE FARM DIEPSLOOT 388 JR
IN THE DISTRICT OF PRETORIA (PROPOSED DIEPSLOOT TOWNSHIP)
I, Daniel Jacobus Hough, in my capacity as Administrator of the Transvaal do
hereby under and by virtue of the powers vested in me
by section 3(1) of the
Less Formal Township Establishment Act, 1991 (Act No 113 of 1991), designate the
following land made available
by me under section 2(1) of the Act as land for
less formal settlement:
A
certain area of land 92,9812 hectares
in extent, being the Remaining
Extent of
Portion 120 and Portions 151 to 153, all
of
the farm Diepsloot, Registration
Division 388 JR,
Transvaal.
The above designation is on condition that
the
final layout plan and draft conditions
of
establishment of the proposed township
be
approved.
The following restrictive conditions and servitudes are hereby
suspended:
1
2
3
4
Given under my Hand at Pretoria, on this 8th day of July in the year 1992
(One thousand Nine hundred and Ninety-two).
11
D J HOUGH
Administrator of the Province of the
Transvaal."
The proposed
layout plan for the Diepsloot
site provided for 1324 residential stands, the majority
of
which averaged 250 square metres. It also made
provision for three
schools, sixteen community sites,
two business sites and twelve parks. According to the
unchallenged evidence on behalf of the respondent, the
intention is to settle approximately 8000 people on
the
Diepsloot site, including about half the number of the
Zevenfontein squatters. What is envisaged is not
haphazard squatting but orderly development within the
context of town planning. As the persons to be
settled there will mainly be impoverished they will be
permitted, initially at any rate, to erect corrugated
iron and cardboard structures. It is also common cause
that the main access roads will be gravelled,
12
provision will be made for potable water, adequate sanitation will be
provided and electricity will be made available. Efforts will
also be made to
provide sufficient policing, to prevent illegal squatting and to encourage the
burning of wood rather than coal.
Three issues arise in the present appeal. The first, and main, issue is
whether the appellants are entitled to an interdict restraining
the respondent
from settling, or allowing the settlement of, persons on the Diepsloot site. The
second is whether the respondent's
decision to establish an informal settlement
at the Diepsloot site was grossly unreasonable and thus reviewable. The third
raises
the question whether the respondent's designation of the Diepsloot site
in terms of s 3(1) of the Less Formal Township Establishment
Act 113 of 1991
("the Act") was suspended pending the approval of the final layout plan and
draft conditions of establishment in
respect of the
13
proposed settlement. I shall deal with each of these in turn.
The requisites for a final interdict are well settled. The appellants
have to establish (1) a clear right (ii) unlawful interference
with that right,
actually committed or reasonably apprehended and (iii) the absence of any other
satisfactory remedy (
Setlogelo v Setlogelo
1914 AD 221
at 227). The first
and third requirements are not in issue, only the second. The appellants base
their case for a final interdict
on a reasonable apprehension that the proposed
settlement will create a public nuisance. This, it is said, will result from
heightened
levels of air pollution consequent upon the burning of wood and coal
by the persons who will be settled on the Diepsloot site, as
well as a marked
increase in the incidence of crime. It is also claimed that the proposed
settlement will bring about a significant
diminution in the value of
14
properties adjacent to the Diepsloot site with resultant economic loss to
the Diepsloot residents. This cannot
per se
create a nuisance; at best
"the alleged drop in market values may afford a barometer of the alleged
diminution in use and enjoyment
of the applicants' [appellants'] properties as a
result of the intended settlement ...." (the first judgment at
581E).
For the purposes of the present appeal it may be assumed that
the likely consequences of the establishment of the proposed settlement
are such
as to induce a reasonable apprehension that a nuisance will be created which
will interfere with the rights of the Diepsloot
residents. The crucial question
is whether such interference will be unlawful and constitute an actionable
wrong. This will depend
upon whether statutory authority exists for such
interference, for where a statute has authorised the infringement of legal
rights
there can, subject to a qualification that will
15
be mentioned later, be no wrongful conduct and hence
liability (
Union Government (Minister of Railways) v
Sykes
1913 AD 156
at 169). It therefore
becomes
necessary to consider the nature of the statutory
powers
conferred upon the respondent under the Act in order to
ascertain whether the Legislature intended to
grant immunity in respect of any interference with the
common law rights of the Diepsloot residents. This is a
matter of construction involving a consideration of the
relevant provisions of the Act as well as its purpose.
As stated by INNES, CJ, in
Johannesburg Municipality v
African Realty Trust Ltd
1927 AD 163
("the
African
Realty
case") at 171/2:
"Whenever the exercise of statutory powers is alleged to have resulted in
injury to another the enquiry must always be, - what was
the intention of the
Legislature? Did it intend that immunity from consequences should accompany the
grant of authority, or did it
intend that the authority should either not be
exercised at all to the legal prejudice of others, or that if so exercised there
should
be an accompanying liability to make good any
16
consequential damage?"
It
is common cause that there are no
provisions in the Act which expressly authorise
interference with the rights of the Diepsloot residents
to the enjoyment of their properties. The question is
whether
such authority is necessarily to be inferred.
In determining whether or not such an inference is
justified, regard may be had to certain guidelines
propounded by INNES, CJ, in the
African Realty
case (at
172) as "useful, but ... not necessarily decisive". The
first of these is that an intention to interfere with
private rights is not presumed where no provision is
made for compensation, subject to the caveat that
"[t]hat principle loses much of its force, however, when
applied to public undertakings". INNES, CJ, then went
on to add (at 172/3):
"But the nature and character of the powers conferred, and of the work
contemplated, and the terms of the statute are more important.
The work
authorised to be done may be defined
17
and localised, so as to leave no doubt that the Legislature intended to
sanction a specific operation. In such a case, especially
if the work were one
required in the public interest, an intention that it should be duly constructed
in spite of interference with
common law rights might
fairly be inferred Or again, if an
act which a statute definitely authorises to be done is one which must
necessarily interfere with common law rights, the Court will
infer a legislative
intention that they
should be infringed On the other
hand, where the permissive powers conferred are expressed in general terms,
where there is nothing in the statute to localise their
operation, and where
they do not necessarily involve an interference with private rights, the
inference would be that the Legislature
intended the powers to be exercised
subject to the common law rights of third
persons."
The principles and
guidelines referred to in
the
African Realty
case have been consistently applied,
in matters involving disputes concerning the exercise
of
statutory powers by public authorities to construct
and
maintain roads, drainage systems, dams and the like.
(See, e g.
Union Government (Minister of Railways)
v
Sykes
(supra);
New Heriot Gold Mining Company
Limited v
18
Union Government (Minister of Railways and Harbours)
1916 AD 415
;
Breede River (Robertson) Irrigation Board v Brink
1936 AD 359
;
Bloemfontein Town Council v Richter
1938
AD 195
;
Reddy and Others v Durban
Corporation
1939
AD 293).
More recently, in
East London Western Districts Farmers' Association and
Others v Minister
of
Education
and
Development
Aid
and
Others
1989(2) SA 63(A) they were extended and applied to a situation where the
establishment of a squatter township of some 8000 refugees
was alleged to have
caused an unlawful invasion of the rights of owners of adjoining properties. By
a majority of three to two this
Court held that the rights of such property
owners had been infringed and ordered an abatement of the public nuisance which
had been
created. The decision turned on the particular facts of that case and
the empowering legislative provisions on which the defence
of statutory
authority was based, both of which, as pointed out in
19
the second judgment at 62E - 64B, are clearly distinguishable from those
we are dealing with in the present matter. It laid down no
new principle or
binding precedent. There, as here, it was the nature and extent of the powers
conferred on the relevant public authority
that were of crucial
importance.
The qualification to which the principles outlined above
are subject is the following. Where the interference with private rights
is
justified, "the exercise of the statutory power is limited by another
consideration, namely that it must be carried out without
negligence" (the
African Realty
case at 173). By "negligence" is meant the failure to
prevent harm if by the reasonable exercise of the power conferred this could
have been avoided (the
African Realty
case at 174), or, differently put,
a failure to take certain reasonably practicable precautions or to adopt another
reasonably practicable
method of achieving the purpose
20
of the power by which the extent of the interference will be lessened.
(
Bloemfontein Town Council v Richter
(
supra
) at 231;
Germiston
City Council v Chubb & Sons Lock and Safe Co (SA)(Pty) Ltd
1957(1) SA
312(A) at 322A - 323A) . Although it is clear what the word negligence is
intended to convey, its use is questionable.
The issue is not whether the
repository of the power acted negligently (culpably), but whether he has
exceeded his authority by unreasonable
conduct and therefore acted wrongfully
(see
Neethling, Potgieter and Visser
: Law of Delict (2nd Ed) at 99;
Baxter
: Administrative Law at 606). In determining whether or not there
has been a reasonable exercise of power regard may be had,
inter alia
, to
the commitments of the public authority, the resources it has available and
alternative courses of action open to it (cf
Germiston City Council v Chubb
& Sons
(
supra
) at 323 C-D). In the
African Realty
case (at
177) it was stated that the onus
21
of showing that the repository of a power acted "negligently"
(wrongfully) when exercising such power rests upon a plaintiff (or applicant).
Although the question of onus generally (and the implications thereof) were much
debated in argument, I do not consider it necessary,
for reasons that will
become apparent in the course of this judgment, to embark upon a discussion of
the subject.
I come now to consider the Act and its provisions in order to determine
whether, in authorising informal settlements, it impliedly
authorized
interference with the common law rights of neighbouring landowners and residents
- in the present instance, the Diepsloot
residents.
The Act was assented to on 27 June 1991 and came into operation on 1
September 1991. Significant developments took place in the Republic
in 1991 with
regard to the dismantling of the system of apartheid.
22
Parliament passed laws repealing a wide range of racially discriminatory
legislation dealing,
inter alia
, with the ownership and occupation of
land. That year also saw a rapid increase in urbanisation with resultant
squatting in urban
areas. The changing circumstances were responsible for
statutes such as the Abolition of Racially Based Land Measures Act 108 of
1991
(which, in terms of s 48, abolished the Group Areas Act 36 of 1966), the
Upgrading of Land Tenure Rights Act 112 of 1991 and
the Act presently under
consideration. It is permissible to view and interpret the relevant provisions
of the Act against the background
of these developments which are sufficiently
well-known for judicial cognisance to be taken of them (
Consolidated Diamond
Mines of South West Africa Ltd v Administrator SWA and Another
1958(4) SA
572(A) at 657 F).
The purpose of the Act, according to its long title, is to provide,
inter alia
, "for shortened
23
procedures for the designation, provision and
development of
land, and the establishment of townships,
for less formal forms of residential settlement "
In terms of section 2(1), the Administrator may make
available State land that is controlled by him or has
been
acquired by him by means of purchasing,
expropriation or in any other manner, for designation
under s 3. Apart from a proviso, which may be
disregarded for present purposes, the relevant part of
s 3(1) reads as follows:
"When the Administrator is satisfied that in any area persons have an
urgent need to obtain land on which to settle in a less formal
manner, he may,
by notice in the Official Gazette, and on the conditions mentioned in the
notice, designate -
(a) land made available by him under section
2(1);
or
(b)
as land for less formal settlement."
In terms of s 4(1) (a) the planning
and
24
development of designated land shall be undertaken, in the case of land
referred to in s 3(1) (a), by the Administrator (or by someone
with whom he has
concluded an agreement for that purpose) "subject to the conditions mentioned in
a notice under section 3(1) and
in accordance with the requirements deemed
necessary by the Administrator to make the speedy and orderly settlement of
persons in
terms of section 8 possible". Section 8 provides for the settlement
of persons on designated land on allocated erven after such erven
have been
surveyed.
It is apparent from the provisions of the Act to which I have referred
that informal settlement under the Act essentially involves
three phases. In the
first phase State land controlled by the Administrator or land acquired by him
(in the present instance, by
expropriation), is made available for designation.
In the second phase, if the requirements of s 3 (1) have
25
been met, such land is designated for less formal settlement. The third
phase involves the settlement of persons on the land so
designated.
It is arguable that these three phases constitute three
separate and distinct acts expropriation, designation and settlement - to
each
of which certain legal consequences attach. So viewed the position would be as
follows. No challenge was, or can be, directed
against the expropriation of the
Diepsloot site by the respondent. The expropriation
per se
could not have
infringed any rights of the Diepsloot residents. One then proceeds to the next
stage, the designation. It is common
cause that the respondent was satisfied
(and was entitled to be so satisfied) that the Zevenfontein squatters were in
urgent need
of land on which to settle informally. It was therefore incumbent
upon him to designate the Diepsloot site (being the land made available
by
him
26
under s 2(1) of the Act) for informal settlement.
Despite the
use of permissive language ("may"), s 3(1)
imposes upon the respondent a power coupled with a duty.
In the words of Earl Cairns LC in
Julius v The
Lord
Bishop of Oxford
(1880) 5 AC 214
at 225:
"[W]here a power is deposited with a public officer for the purpose of
being used for the benefit of persons who are specifically
pointed out, and with
regard to whom a definition is supplied by the Legislature of the conditions
upon which they are entitled to
call for its exercise, that power ought to be
exercised, and the Court will require it to be exercised."
The designation was therefore carried out by
the respondent in the prescribed manner and as
contemplated by the Legislature. It would only be open
to attack on review on the ground of gross
unreasonableness. (For reasons that will appear later,
such an attack is untenable.) The designation
per se
could not cause any unlawful interference with the
rights of the Diepsloot residents. To the extent that
27
it could have resulted in a drop in the value of their properties (and in
fact did so result) such diminution could not have constituted
a nuisance or
have afforded them a legal interest which could be protected by an interdict.
Any subsequent settlement would of necessity,
having regard to the terms of the
Act, have to be on land so designated. In other words, once a designation has
been made, the locality
for any subsequent settlement must be taken to have been
clearly spelt out by the Legislature. The question of possible alternative
sites
does not arise. From this it would follow, in effect, that the Legislature
intended the Diepsloot site to be used for the settlement
of persons having an
urgent need to obtain land (in
casu
, the Zevenfontein squatters). To the
extent that this would result in interference with the rights of the Diepsloot
residents, such
interference was authorised by necessary implication.
28
Compelling as this approach may be it is, in my view, somewhat
legalistic. It tends to lose sight of the realities of the situation
the Act was
designed to cater for and remedy. Expropriation, designation and settlement are
all part and parcel of the attempted
resolution of the squatter problem brought
about by increased urbanisation. In the present instance all three had the same
object
in mind - to settle the Zevenfontein squatters on the Diepsloot site. It
seems to me, therefore, that one must approach the matter,
as was done in the
court a
quo
and in argument on appeal, on the basis of whether, without
drawing a firm distinction between expropriation, designation and settlement,
the Act authorized the respondent to act as he did irrespective of any
infringement of the appellants' rights. While s 3(1) of the
Act imposed upon the
respondent the duty to act once he was satisfied that the Zevenfontein squatters
had an urgent
29
need to obtain land for informal settlement, the question remains
whether, in acting as he did, he acted unlawfully in any way. If
not, his
conduct would not be open to attack by the appellants.
I have
previously mentioned that the Act was enacted against the background of the
repeal of discriminatory legislation, increased
urbanisation and the resultant
squatter problem. There was an urgent need to provide for the speedy and orderly
settlement of homeless
persons. The Act sought to cater for this need by
providing, in keeping with its purpose as outlined in the long title, for less
formal settlements (chapter 1) and for less formal township establishment
(chapter 2). The need having arisen in urban areas, the
solution had to be found
there as well. The Legislature must clearly have contemplated the settlement of
large numbers of homeless
and impoverished persons in an informal manner within
urban areas as part
30
of the urbanisation process and the resolution of the squatter problem.
After all, the persons in need of settlement were there to
stay. Their urgent
needs could not be satisfied by allocating to them land distant from where such
needs existed. Nor could they
be moved to where they could not reasonably be
expected to move. Such persons would therefore have to be settled, to the extent
that
this was reasonably practicable, near to where they were, or wanted to be,
and near to their work or where employment opportunities
existed. In the
circumstances the settlement of persons next door to -or close to - established
residential areas is unavoidable.
The Legislature was also aware that any
settlement would, initially at any rate, be sub-standard in terms of town
planning and housing
requirements, and must have foreseen that this could
adversely affect adjoining and surrounding areas. In this regard, s 3(5) of
the
Act provides,
inter alia
, that the provisions of laws
31
relating to the establishment of townships and town planning (ss(5)(e))
and the standards and requirements with which buildings shall
comply (ss(5)(f))
shall not apply in respect of designated land (unless declared otherwise by the
Administrator - ss(6)(a)). It must
therefore have been within the contemplation
of the Legislature that the exercise by the Administrator of his powers
(including the
exercise of any discretion vested in him) with regard to the
settlement of homeless persons might result in interference with the
common law
rights of third parties. Inherent in the grant of such powers is statutory
authority for any such interference.
The present matter can be distinguished from cases such as
Tobiansky v
Johannesburg Town Council
1907 TS 134
and
Harrington v Johannesburg
Municipality
1909 TH 179
on which the appellants sought to rely. In
Herrington's
case the plaintiff instituted an action for
32
a final interdict to restrain the deposit of sewage and
the
continuance of certain sewage works by the defendant
municipality
that was creating a nuisance. The
defendant pleaded,
inter
alia
, that the works complained
of were carried out under
statutory authority. In the
course of his judgment BRISTOWE, J, said the following
(at 192):
"Without attempting anything like an exhaustive analysis of the cases in
which questions of this kind have arisen, ,I think it will
be found that where,
in the absence of express provision, a statutory power has been held to deprive
third persons of their rights
of action, not only has the work intended to be
authorised been defined as regards locality as well as regards character, but
its
performance has been associated with an element of compulsion arising either
from an express legislative command, or because the
power is combined with
something in the nature of a public duty to exercise it whenever occasion
requires or immediately as the case
may be."
BRISTOWE, J, went on to hold that the provisions on
which the defendant sought to rely for its defence of
33
statutory authority did not satisfy these requirements,
and
that the plaintiff's common law right of action had
not been taken
away. In this regard he observed (at
195):
"Official consents may be multiplied to any conceivable extent, and still
the condition that the legislature must itself define the
locality is not
satisfied. The choice of site is still the voluntary act of some person or
persons other than the legislature, and
the element of legislative compulsion to
carry out the work on the particular spot selected remains
lacking."
In
Tobiansky's
case a
similar conclusion was reached
along the same lines.
The principal reason why the defence of
statutory authority failed in
Herrinqton's
case (as it
did in
Tobiansky's
) was because the empowering provision
neither defined nor indicated the locality where the
power granted was to be exercised. The choice of
locality was left entirely to the repository of that
power. Here we have a wholly different situation. The
34
provisions of the Act prescribe (by implication) the general locality for
the exercise of the respondent's powers of settlement,
viz
, an urban area
in which there exists an urgent need to settle homeless persons. The Legislature
requires and authorises their settlement
in that area. The respondent is left
with no choice in that regard. Apart from locality the Act also defines the
character (the settlement
of persons in urgent need of land) of the respondent's
power. The element of compulsion (the power to act coupled with the duty to
do
so) is also present. The requirements referred to in
Herrington's
case
for the defence of statutory authority have accordingly been satisfied. I have
not lost sight of the fact that no provision
is made in the Act for compensation
for persons whose rights are infringed and suffer loss. This is a relevant
consideration, but
as we are dealing here with what amounts to an undertaking in
the public interest with possible far-reaching socio-
35
economic implications it loses much of its force, as pointed out by
INNES, CJ, in the
Realty Trust
case (
supra
at 172). It is
comprehensively outweighed by the other considerations I have mentioned in
favour of the existence of statutory authority.
What the Legislature has not done is to define the precise locality of
any particular settlement. It could obviously not do so without
knowing where
exactly there was a need and what land was available to satisfy it. It has
therefore left it to the Administrator to
designate, within the prescribed
locality, the precise site for the settlement of persons in need. In doing so it
has vested the
Administrator with a discretion to choose an appropriate site - a
discretion that must be exercised judicially having regard to various
relevant
criteria. These would include considerations of public policy and the interests
of the general public (bearing in mind that
the resolution of the squatter
problem is
36
an on-going process) as well as conflicting private interests (the needs
and wishes of those who have to be resettled, on the one
hand, and the concerns
of those who may be affected thereby, on the other). It could also involve
making a choice between alternative
sites. The making of such choice would be an
integral part of the exercise of his discretion.
Much was made in argument on behalf of the appellants of the alleged
availability of alternative sites near Alexandra for the resettlement
of the
Zevenfontein squatters. It was claimed that if the respondent had selected one
of those sites in preference to the Diepsloot
site, a nuisance could either have
been avoided or the effect thereon on neighbouring landowners and residents
lessened. To determine
the true nature of this argument it is necessary to
distinguish between, on the one hand, the exercise by the respondent of his
powers
and the
37
performance of his duties and, on the other, the exercise by him of a
discretion. Under the Act the respondent has the statutory power,
and
concomitant duty, to settle homeless persons at a designated site in an urban
area. In designating that site, however, he exercises
a discretion conferred
upon him. If he exceeds his statutory powers with regard to the settlement of
the Zevenfontein squatters at
the Diepsloot site his conduct will be unlawful
and, assuming all the other requisites are satisfied, an interdict could be
obtained
against him by an aggrieved person. The same will apply if he exercises
his powers wrongfully by failing to take reasonably practical
measures to lessen
the harm that will be caused by the exercise of such powers. In this regard it
is not contended by the appellants
that the respondent intends to act
unreasonably in relation to the number of persons he intends to permit to
settle
38
there or to the services to be provided. Nor is it contended that,
accepting that settlement will take place on the Diepsloot site,
there are other
steps he could reasonably take to lessen the apprehended interference with the
rights of the Diepsloot residents.
What is complained of is the way in which he
exercised his discretion in the choice of the Diepsloot site. In relation
thereto his
conduct, in my view, is only open to challenge on review on the
ground of gross unreasonableness.
Even if one assumes in favour of the appellants that the choice of the
Diepsloot site related to the manner in which the respondent
exercised his
powers rather than the exercise of a discretion, there would still not, on the
evidence, be room for a finding that
he acted wrongfully in selecting the
Diepsloot site in preference to any other. As it was the appellants who raised
this issue it
was incumbent upon them (apart
39
from any question of onus) to identify what sites fell into the category
of alleged available alternatives. The next step would be
to determine if any of
those sites was available for the settlement of the Zevenfontein
squatters.
In their founding affidavit the appellants identified
portions 16 and 35 (both being portions of portion 36) of Lombardy (347 hectares
in extent) as a possible alternative site for the settlement of the Zevenfontein
squatters as well as squatters from elsewhere. These
properties lie adjacent to
Alexandra and are referred to throughout the papers and evidence as the "Far
East Bank" of Alexandra.
I shall continue to refer to them as such. It is common
cause that the Far East Bank is suited to low cost housing development. No
other
sites were identified.
In his answering affidavit the respondent stated that the Far East Bank
had been investigated and
40
evaluated by the task group in the Green Report, and had
been
considered and rejected by him in Executive
Committee. He went on to
add " [s]uch sites do not
provide a solution to the problem at hand,
but will
obviously be considered as settlement areas in
future".
The Green Report, which was an annexure to the
respondent's affidavit, also contains an evaluation of
certain areas referred to as Frankenwald, Modderfontein
and Waterval (the precise locations of which are not
readily apparent from any of the documents, maps or
photographs forming part of the record). Not one of
these three sites featured in the recommendations of the
task group.
In his replying affidavit the second appellant
(on behalf of both appellants) annexed affidavits by
Otto Bolweg and John Dale Maytham, and with regard
thereto said:
"[I]t will be seen that at the proposed Alexandra site
there is land available for low
41
cost housing development where the Zevenfontein squatters and others could
be settled without material interference with the rights
of the inhabitants of
the areas surrounding Alexandra.
Consequently I say with respect that the First Respondent is in law obliged
to settle the Zevenfontein squatters and others at the
proposed Alexandra
site."
The "proposed Alexandra site" is the
Far East Bank.
This is the only property considered and evaluated
by
Bolweg as an alternative to the Diepsloot site.
The
same is true of Maytham who assessed the suitability
of
the Far East Bank for residential development,
and
concluded that a low cost housing development
there
would provide the capacity to settle the numbers
of
people the respondent proposed settling at the Diepsloot
site. Neither Bolweg nor Maytham made any reference to
sites at Frankenwald, Modderfontein and Waterval.
The respondent filed a fourth set of
affidavits ("the fourth affidavit"). In response to
42
the claims made by the second appellant, and the affidavits of Bolweg and
Maytham, he said the following:
"Although I am of the view that I do not have to justify the reasons for not
choosing a site at or near Alexandra, I nevertheless
state that the main reason
is that all available sites must be kept available for the accommodation of the
vast spill-over caused
by over-population in Alexandra. The estimated figure of
such spill-over at present is 40 000 families. With an estimated family
membership of six, 240 000 people urgently require
accommodation.
Any suggestion thus far to
accommodate people, other than those of Alexandra, in the area surrounding
Alexandra, has been met with
hostility by the Alexandra residents and civic
organizations. Any such action will probably be met with physical attacks on
members
of informal settlement communities, resulting in death and
destruction."
The issues that were referred to trial by DE
VILLIERS, J, included the following (see the first
judgment at 587 F):
"In the event of any of the categories of nuisance being found to exist,
the extent to which the said categories of nuisance may
43
reasonably be abated (including the investigation of the property adjoining
Alexandra Township), so that a settlement may be
established."
On the papers
before DE VILLIERS, J, the
"property adjoining Alexandra township" could only have
been
the Far East Bank, and it was correctly so held by
McCREATH,J, at
the subsequent trial. The matter
proceeded accordingly, with no
evidence being
specifically directed to sites at
Frankenwald,
Modderfontein and Waterval. As the appellants did
not
pertinently raise any issues in relation to those sites
on the papers, and the respondent was not alerted to
dealing with them, and did not deal with them, it is
simply not open to the appellants to raise the
availability of those sites on appeal. The mere fact
that they were referred to in the Green Report does not
suffice to put them in issue. It is accordingly only
the Far East Bank that fell to be considered as an
44
alternative site. However, the court a
quo
also had regard to an
area of some 50 hectares wedged in between the northern boundary of Lombardy and
the southern boundary of the
Far East Bank.
I do not propose to
consider the evidence in any detail. The allegations made by the respondent in
the fourth affidavit are supported
to the hilt by the evidence of the witnesses
Burger and Xhosa (save that the families involved are only half the number
referred
to, although from a practical point of view that makes no difference).
The main features of their evidence are dealt with in the
second judgment at 70
C-H. The evidence in my view leaves no doubt that the Far East Bank is required
for the needs of the residents
of Alexandra and that it is not reasonably
practicable for the respondent to utilise that land for the settlement of the
Zevenfontein
squatters. The 50 hectares to which reference has been made is also
not available for that
45
purpose as the respondent has certain commitments in respect thereof to
the Johannesburg Municipality which it cannot disregard -
see in this regard the
second judgment at 70 H to 71 B. In any event that land, if available, would
also have been required for the
needs of the Alexandra residents.
It follows from the aforegoing that the reasonably apprehended
interference with the rights of the Diepsloot residents as a result
of the
proposed settlement of the Zevenfontein squatters at the Diepsloot site is
authorised by the Act and not wrongful. The appellants
were consequently not
entitled to the interdict sought.
The second issue on appeal is whether the respondent's decision to
designate the Diepkloof site for the settlement of the Zevenfontein
squatters is
open to attack on review. I have sympathy for the genuine concerns of the
Diepsloot residents and the financial
46
loss they may suffer as a consequence of the necessary reconstruction of
our society. What they conceive, rightly or wrongly, to be
a burden may well
have fallen elsewhere. But that does not mean that the respondent acted
unreasonably. And even if he did, that
would not have been sufficient. The
appellants accept that to succeed on review they have to go so far as to show
that his unreasonableness
was so gross that it is inexplicable otherwise than on
the ground of
mala fides
or ulterior motive (of which there is no
suggestion) or that it amounts to proof of a failure on his part to apply his
mind to the
matter (
Union Government (Minister of Mines and Industries) v
Union Steel Corporation (South Africa) Ltd
1928 AD 220
at 236/7). Such a
failure has been held to include "capriciousness, a failure, on the part of the
person enjoined to make the decision,
to appreciate the nature and limits of the
discretion to be exercised, a failure to direct his
47
thoughts to the relevant data or the relevant
principles,
reliance on irrelevant considerations, an
arbitrary approach, and an
application of wrong
principles" (
Northwest Townships (Pty) Ltd v
The
Administrator, Transvaal and Another
1975(4) SA 1(T)
at
8G;
Hira and Another v Booysen and Another
1992(4) SA
69(A) at 84 F-J).
At the commencement of this judgment I set out
the facts leading up to the respondent's decision to
designate the Diepsloot site. It is apparent that his
decision was not lightly taken. It was preceded by
thorough expert investigation and evaluation. In
reaching his decision he had regard to,
inter alia
:
1. The task group's Blue Report on the means of ensuring the orderly
long-term urbanisation in the north-westerly
quadrant of the PWV area;
2 The task group's Green Report (including its recommendations) on the
settlement of the Zevenfontein squatters at a suitable site;
48
3. The wishes of the Zevenfontein
squatters;
4. Objections received from interested parties including Diepsloot
residents;
5. Proposals received from members of the public;
6. The physical inspection and evaluation of some thirteen
sites.
7. Financial considerations.
Notwithstanding this the appellants
contend
that the respondent failed to apply
his mind properly to the matter as he did not take into account the
socioeconomic and cultural
differences between the Zevenfontein squatters and
the Diepsloot residents. According to the evidence of the sociologist, Dr du
Toit,
in determining an appropriate settlement it is imperative to have regard
to such differences between the future inhabitants of that
settlement and the
inhabitants of the surrounding areas. The respondent's alleged failure in this
regard is based on a press
49
release by him dated 5 June 1992, the relevant portion
of which reads:
"Teen hierdie agtergrond moes die Uitvoerende Komitee sy besluit neem. Dit
het 'n ewewigtige en menslike besluit vereis wat die regte
en belange van al die
betrokkenes op gelyke voet erken, ongeag hulle sosio-ekonomiese
situasie."
It appears from
the evidence that among the
objections received and considered by the task group and
the respondent were ones that dealt with socio-economic
differences between the Zevenfontein squatters and the
Diepsloot residents. It seems highly unlikely that
these differences would have been overlooked or ignored
by the respondent in arriving at his decision. In the
circumstances the somewhat inelegantly worded press
release cannot be taken to mean that those differences
were simply disregarded. It means no more than that, in
determining an appropriate site for settlement, all
persons affected would be treated as equals (which is
50
not the same as treating their socio-economic
circumstances
as similar). There is thus no basis for a
finding of gross
unreasonableness and this ground of
review must accordingly
fail.
This bring me to the third and final issue.
The Notice (Administrator's Notice 294 quoted earlier in
this judgment), after providing for the designation by
the respondent of the Diepsloot site as land for less
formal settlement, goes on to state:
"The above designation is on condition that the final layout plan and
draft conditions of establishment of the proposed township be
approved".
It was contended on behalf of the appellants
that this amounted to a suspensive condition precluding
the proposed settlement of the Zevenfontein squatters on
the Diepsloot site without prior approval of the
township plan by the surveyor-general (which, it is
common cause, had not yet been obtained). A similar
51
argument was advanced in the court a
quo
. It was dealt with and,
in my view, effectively disposed of, in the second judgment at 54F to 55B. I
respectfully agree with the
reasons advanced by McCREATH, J, for concluding that
the condition was resolutive and not suspensive. No useful purpose would be
served by repeating or reformulating them. I would merely emphasize that the
fact that the notice provides that certain restrictive
conditions and servitudes
in the deeds of the properties comprising the Diepsloot site are "hereby
suspended" is a clear indication
that the notice was intended to have immediate
effect. This purpose could not have been achieved if the condition was a
suspensive
one, as this would have resulted in the suspension of the notice
itself. To hold otherwise would run counter to the clear wording
and intention
of the notice and would render nugatory the suspension of the conditions of
title and servitudes referred to. The condition
was
52
therefore resolutive. The designation would have taken immediate effect
and would only have lapsed if the final layout plan and draft
conditions of
establishment were ultimately not approved.
In the result the
appellants cannot succeed on any of the grounds advanced by them. The appeal is
accordingly dismissed with costs,
such costs to include the costs of two
counsel.
J W SMALBERGER JUDGE OF APPEAL
BOTHA, JA ) FH GROSSKOPF, JA ) Concur NICHOLAS, AJA) OLIVIER,
AJA)