THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 384/03
In the matter between:
THE WASSERMAN BATE TRUST 1
st Appellant
WASCON SIVIEL CC 2 nd Appellant
and
THE PREMIER, FREE STATE PROVINCIAL Respondent
GOVERNMENT
_____________________________________________________
Coram
: Navsa, Brand, Van Heerden JJA, Erasmus et Comrie AJJA
Date of hearing: 17 September 2004
Date of delivery: 29 September 2004
Summary: Interpretation and application of a Road Ordinance (Free State) authorising a
provincial authority to enter upon and take possession of land for the purpose
of excavating for and removing road-building materials ─ the acquisition and
nature of such rights ─ whether a separate preceding act of expropriation
necessary.
_____________________________________________________
JUDGMENT
_____________________________________________________
2
NAVSA JA:
[1] The two appe llants are, respectively, an inter vivos trust
registered in terms of the Trust Property Cont rol Act 57 of 1988
and a close corporation in terms of the Close Corporations Act 69
of 1984. Wouter Wasserman (Wasse rman), a civil construction
contractor, is the only trustee of the first appel lant, the only
member of the second a ppellant and the driving force behind each
entity. It is common ca use that he was the prin cipal actor on their
behalf in respect of ma terial events relevant to a determination of
the present appeal.
[2] The appellants applied to the Bl oemfontein High Court for an
order prohibiting the respondent, th e Premier of the Provincial
Province of the Free State, in her capacity as Chief Executive
Officer, from mining for and remo ving from the Remainder of the
farm Springfield 261, district Bloemfontein (the property) , stone,
gravel, sand, lime or any other road construction material other
than from an existing fenced-off quarry (the quarry).
[3] On 7 March 2002 Hancke J dismissed the application with
costs. The present appeal, with leave of the court below, is
directed against that order.
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[4] For the sake of co nvenience I will refer to the first appellant
as the Trust, the seco nd appellant as the CC and the respondent
as the Province.
[5] The question before the court belo w was whether the
Province had acquired the right to take possession of and to
remove gravel from an area on the property far gr eater in extent
than (but including) the quarry. That question was answered in the
affirmative in favour of the Province.
[6] The background agai nst which this appeal is to be decided is
set out hereafter.
[7] It is common cause that a su bstantial part of the property,
over and above the quarry, is suitable for the recovery of gravel. It
is estimated that the proper ty contains 1, 200 000 m
3 of gravel
worth approximately R6 million.
[8] According to Wasser man the size of t he quarry is between
one and two hectares. Accordin g to the Province it was
approximately three hectares in extent during 1989/1990 and it
presently extends to an area of approximately five hectares.
[9] On 4 August 1999 the Trust purchased the property, in
extent 175, 6927 (one hund red and seventy-five comma six nine
two seven) hectares, from Louis Bantjies (Bantjies) for an amount
4
of R100 000-00. The property was transferred to the Trust in
November 1999.
[10] Before the application was launched in the court below, the
CC had won a tender to supply gravel for streets and water-
reticulation in res pect of a low-cost hou sing development called
Mandela View. The Trust acquired the property to provide the CC
with a ready source of gravel. Sixty thousand cu bic metres of
gravel were required by th e CC for the Mandela View
development. According to Wasserm an, alternative sources of
gravel could only have been acquired at a cost of R26-00 per cubic
metre which, considering that the tender price had been calculated
on a gravel price of R 10-00 per cubic metre (to be sourced from
the property), would have meant th at the CC would have run at a
sizeable loss in respect of the Mandela View deve lopment had it
been constrained to source the gravel elsewhere.
[11] Put differently, the acquis ition of the property would have
benefited the CC or th e Trust or Wasserman, in respect of the
Mandela View developm ent alone, to the ex tent of R960 000-00.
This does not include the probab le financial benefit from the
remainder of the considerable gravel reserves on the property.
[12] During September 2000, af ter the Province discovered that
the CC had been removing gravel from the propert y, it wrote to
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Wasserman demanding that he im mediately desist from such
operations. The Provin ce informed him that it had in the past
acquired the right to take possession of and remove gravel from an
area on the property, measuring approximately 50,18 hectares, in
terms of the provisions of the Orange Free State Roads Ordinance
4 of 1968 and that the right endured.
[13] The Province’s claim was denied by the Tr ust and the CC.
This led to the application in the High Court.
[14] In his affidavit in support of the application, Wasserman
stated that he had grown up in the vicinity of the property and that
the quarry had been the only part of the property fenced-off during
the late 1980’s. According to him there had been no excavation in
the quarry from that time and it appeared that the gravel deposits
in the quarry had be en exhausted. He stated further that, to the
best of his knowledge, from that time until the present, there had
been no road construction work co nducted by or on behalf of the
Government in the vicinity of the property.
[15] According to Wasserman, the only notice board on the
property in terms of which the Province ha d reserved the right to
excavate for and acquire gravel, is located near or at an entry point
to a small ‘camp’ within which the qu arry is located. Before us it
was submitted on behalf of the appellants that thi s indicated that
6
the Province had, in ter ms of the Ordinance, taken possession of
no area of the property other than the quarry.
[16] In opposing affidavits deposed to on behalf of th e Province it
was submitted that Wasserman had op portunistically ‘created’ the
present dispute.
[17] Johannes van Wy k (Van Wyk), the Acti ng District Roads
Engineer for Bloemfontein-East, st ated that during 1989/1990 he
had supervised the erection of fe nces over the entire area in
respect of which the Province pr esently claimed the right to
excavate for gravel . He stated that he had caused a gate to be
erected to provide access to the entire fenced-of f area and that it
was a gate different to the one that provided a ccess to the quarry
at that time (which gate he had caused to be closed). In fencing off
the entire area, prominent protr uding steel beacons were used ─
these are still present and clearly vi sible. They we re put into the
ground to delineate the perimeter of the area to which the Province
laid claim. Van Wyk had caused the notice boa rd referred to by
Wasserman to be placed near the entrance to and within the entire
fenced-off area. If regar d is had to the fenc es that can now be
seen the notice board is within the quarry area.
[18] The notice boar d reads as follows:
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‘Hierdie terrein is gereserveer vir die uitgrawing van padbou materiaal deur
die OVS Paaie Administrasie ingevolge die Ordonnansie op Paaie van 1968.
Verwydering van enige materiaal van hierdie terrein is ‘n misdryf ingevolge die
Ordonnansie.’
[19] Van Wyk stated th at, although he pers onally had not been
involved in testing for gravel deposits on the property, he had
found clear signs indi cating that such tests were conducted by the
Province. There had been test-d iggings, which were subsequently
filled in.
[20] According to Erika Abel l, the Assistant-Director: Land
Acquisitions in the Pr ovince’s Department of Public Works, Roads
and Transport, it is clear that the author of a map on which
Wasserman initially relied to indi cate that the ga te described by
him afforded access only to the quarry and n ot the entire gravel-
rich area, had not in fact visited the site. According to Abell the
gate is in a position that provi des the only access from a public
road to the greater area in re spect of which the Government
claimed the right to excavate for gr avel. The notice board referred
to in the preceding pa ragraph is, according to Abell, located close
to this entrance and had been i ntended to relate to the entire
gravel-rich area on the proper ty. Van Wyk confirmed these
statements.
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[21] Deponents on beha lf of the Province s tated that it is not
known who changed the original fencing and introduced new gates
and inner fencing other than those put in place by Van Wyk. This
included the removal of one of the fences delineating the quarry as
a separately fenced-off area and the introduction of a new fence
within the disputed area , effectively closing off the camp within
which the quarry is located from the whole of the area concerned.
[22] In support of the Province’s ca se, Bantjies, in his affidavit,
confirmed that at the time when the area had been fenced-off and
beacons placed, as described by Van Wyk, he had been a tenant
on the property. He confirmed further that when he purchased the
property from the previous ow ner, Dr van der Merwe (Van der
Merwe), it had been explained to him that the Province had
acquired the right it now claime d. According to Bantjies he was
aware of the demand in the area for gravel and would never have
sold the property for R 100 000-00 if the Province had not acquired
the rights claimed by it ─ he had been aware that the value of the
gravel on the property was in excess of R1 million and that the
property consequently would have had a much greater value. In
fact, had the Province not acquired the ‘gravel rights’, he would not
have sold the property at all, as he himself was a civil contractor.
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[23] Although Bantjies could not re call the precise circumstances,
he stated that he was convinc ed that he had communicated to
Wasserman that the Prov ince had acquired t he right to excavate
for gravel. This was strenuou sly denied by Wasserman and was
one of the issues the appellants urged the cour t below to refer to
oral evidence. For reasons that will become apparent it is not an
issue that requires to be addressed.
[24] It is common cause that grav el is a scarce commodity in the
greater Bloemfontein area . It is the Province’s case that, as early
as 1975, it took possession of the q uarry in terms of the provisions
of the Ordinance to ac quire gravel for road building purposes.
Later, when a major roadway was planned and proclaimed for
Bloemfontein, it was estima ted that more than 2 000 000 cubic
metres of gravel would be requ ired and it became necessary to
extend the excavation for gravel beyond the quarr y. To that end
the Province entered into negotiat ions with Van der Merwe to
acquire possession of substantial pa rts of the property, which it
could exploit for gravel. It ul timately paid Van der Merwe an
amount of R150 000-00 in this rega rd (despite the fact that at that
time the provisions of the Ordinance did not oblige the Province to
pay compensation). As described by Van Wyk, the Province took
possession of the parts to which it now laid claim in terms of the
provisions of the Ordinance. A le tter dated 15 February 1990
10
addressed by the Prov ince to Van der Merwe confirmed that an
agreement had been reached that a total of 50,18 hectares
(including uneconomic areas) of the property would be taken into
possession by the Province a nd that an amount of R150 000-00
would be paid as compensation.
[25] I interpose to state that th e description by Van Wyk of the
manner in which he had fenced off the ent ire area and placed the
beacons, notice boar d and gates was un challenged. His
description of how he found indi cations that tests had been
conducted for gravel deposits wa s not contested. It is common
cause that the beacons are still present and visible.
[26] During May 1992 the present s 26(7) of the Expropriation Act
63 of 1975 (the provisio ns of which are set out in para [29] below)
was enacted and, on 21 Septemb er 2000, the Prov ince, in terms
thereof, requested the Registrar of Deeds to make an
endorsement in his re gister indicating that t he entire gravel-rich
area had been taken i nto possession in term s of s 17 of the
Ordinance. He complied with this request. This, of course,
occurred after the present dispute had arisen.
[27] Section 17 of the Ordinance, in terms of which the Province
claimed to have acquired the right to excavate for and remove
11
gravel from the property, has the following heading:
‘Entry and taking possession of land, and the removal of material, for
road building purposes.’
Subsections 17(1) and 17(2) of the Ordinance (which are the
provisions relied on by the Prov ince) read as follows during
1989/1990:
‘17 (1) The Director may, after consultation with the owner or occupier of land,
enter upon such land-
(a) to take measurements or make surveys or observations or carry out any
other inspections for the purpose of the construction or maintenance of a road
or pont or for any purpose incidental thereto: and
(b) take possession of so much thereof as may be necessary for the
construction or maintenance of a public road or pont or for any purpose
incidental thereto.
(2) The Director may enter upon any land and there take, without
compensation save as otherwise provided by this Ordinance, so much stone,
gravel, sand, lime, water or other material as may be necessary for or in
connection with the construction or maintenance of a public road or pont or
work incidental thereto and may for this purpose make such excavations, sink
such boreholes for water and carry out such other works as he may consider
necessary: . . .’
Section 17 of the Or dinance has subsequently undergone some
changes which for present purposes are of no consequence.
[28] Sections 54( e) and (f) of the Ordinance at that time
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(1989/1990) provided as follows:
‘Any person who ─
…
(e) without the permission of the Director ─
(i) excavates or removes stone, gravel, sand, water or other material from any
quarry, gravelpit, bore-hole or other works opened up and in use in terms of
section 17; or
(ii) excavates or removes stone, gravel, sand or other material from land
beaconed off by the Director on which there is a notice in a conspicuous
position to indicate that such land is intended for the future excavation of
stone, gravel, sand or other material for road-building purposes: or
(f) hinders or interferes with the Director or an officer or employee of the
Administration in the exercise of a power or the carrying out of a duty in
connection with the construction or maintenance of a public road, pont, stock-
path, outspan, rest or road camp or other work incidental thereto,
shall be guilty of an offence and liable on conviction to a fine not exceeding
two hundred rand or to imprisonment for a period not exceeding twelve
months, or to both such fine and imprisonment.’
(emphasis added).
The present s 54 is in substantially the same terms.
[29] Section 26(7) of the Expropr iation Act 63 of 1975 (as
inserted in 1992) reads as follows:
‘An executive committee may, in respect of any land which was prior to the
commencement of this subsection declared to be a road, request the
Registrar of Deeds concerned to have such an endorsement made in his
13
registers as is contemplated in subsection (3) (b), notwithstanding that the
executive committee is not required to do so.’
The applicability and impact of the Expropriation Act are dealt with
in paras [37] to [40] below.
[30] In the following four pa ragraphs I set out the main
submissions by the a ppellants and thereafter deal with each in
turn.
[31] As can be seen from what is set out above, the Trust and the
CC adopted the attitude that the Provin ce had not, in accordance
with s 17 of the Ordinance, physica lly taken possession of gravel-
rich parts of the property.
[32] Before us it was submitted on behalf of the appellants, with
reference to Fink and Another v Bed fordview Town Council and
Others 1992 (2) SA 1 (A), that before the right referred to in s 17(2)
could be exercised ther e had to be a precedin g separate valid act
of expropriation.
[33] Furthermore, counsel for th e appellants subm itted that the
provisions of s 17 only permit exca vation and removal of gravel for
immediate road construction and ma intenance needs and use and
not for contemplated future use. This meant that the Province
could not in the circums tances claim any rights ─ it had
14
‘appropriated’ the property in circumstances where there was not
an immediate need to acquire materia ls for road-bui lding or road-
maintenance purposes.
[34] It was contended in the appellants’ heads of argument that,
in view of the fact th at there had been no notic e to third parties of
the rights purportedl y acquired in terms of s 17 and more
especially to the Trust as a successor in title, the l atter was not
bound to submit to them. In ess ence, the argument was to the
effect that, because of its failure outwardl y to maintain its
possession, the Province could ri ghtly be said to have abandoned
any rights which it might have ac quired in respect of the property.
During oral argumen t, counsel for the Trus t and the CC made
certain concessions in this regar d, which I will deal with in due
course.
[35] I turn first to deal with Wasse rman’s claims that the Province
had not taken the property into physical possession in terms of the
subsections in question. It w ill be recalled that Van Wyk’s
description of how he found traces of tests conduct ed for gravel
deposits and of how he positioned fences, beacons, gates and the
notice board was unchallenged. It was not disputed that the
beacons are still present and visibl e. To my mind, there can be no
doubt that the Province entered upon and took possession of the
15
relevant part of the property an d continued to maintain that
possession in terms of subsecs 17(1) and 17(2).
[36] The appel lants’ reliance on the Fink case is misplaced. That
case dealt with the provisions of a Transvaal Ordinance and
national legislation relating to a declaration of designated land as a
road. At 12D-G the following appears:
‘The fifth respondent has the power to declare a public road in terms of s 5 of
the 1957 Roads Ordinance by notice in the Provincial Gazette . Does he by
such declaration “acquire” a right in the nature of a road servitude?
Section 4 of the 1957 Roads Ordinance provides that:
“All public roads within the Province shall be under the control and supervision
of the Administrator.”
Upon proclamation of a public road the fifth respondent accordingly acquires
the control of such road. In my opinion the fifth respondent, by acquiring the
control of the public road, in effect acquires the use of the land. It was held by
Rumpff CJ in Thom en ‘n Ander v Moulder 1974 (4) SA 894 (A) that the
proclamation of a public road was essentially an act of expropriation of certain
rights. The learned Chief Justice remarked as follows at 905C-D:
“Die bevoegdheid van die Administrateur om ‘n openbare pad te verklaar oor
die eiendom van ‘n privaat persoon is in wese ‘n onteieningshandeling van
sekere regte, vgl Nel v Bornman 1968 (1) SA 498 (T), en Mathiba and Others
v Moschke 1920 AD 354 te 363.” ’
It was held that what had been ‘acqui red’ in terms of the relevant
statutory provisions was a right in the nature of a road servitude. If
16
anything, as will be shown later, the Fink case is against the
appellant.
[37] There is nothing in the clear wording of s 17(1) or s 17(2)
that presupposes a preceding act of expropriation. The
Expropriation Act itself, in s 26(1), states that its provisions should
not be construed as der ogating from any powe r conferred by any
other law to expropriate or take any property or to take the right to
use property temporarily.
[38] The provisions of the Ordinance and the statutory scheme
relating to the acquisition of th e right to enter up on and remove
materials from land for road-build ing purposes are clear. There is
an understandable sequen ce and logic to subs ecs 17(1) and (2).
Once Province has identified l and as potentially useful for road-
building purposes it ma y, after consultation with the owner or
occupier, enter upon the land and do whatever is necessary to
confirm that initial vi ew. When that has be en done it may take
possession of such land in terms of s 17(1)( b) for the purposes set
out therein. As set out in s 17(2) , it may enter upon the land in
question and take so much gravel or other specified materials as
may be necessary for or in connec tion with the co nstruction or
maintenance of a public road or work incidental thereto. The
17
provisos set out in subsecs 17(2)( a)-17(2)(e) are, for present
purposes, irrelevant.
[39] Following on s 17, s 18 (as amended in 1998) presently
provides for compensation when land is ‘acquired’ in terms of s 17
of the Ordinance without such land having been expropriated in
terms of the Expropriation Act. This section provides that
compensation is nevertheless to be calculated in terms of s 12 of
the Expropriation Act. The provisions of s 18(1)(f) read as follows:
‘In the case of land which is acquired for the declaration, construction or
maintenance of a public road, pont or outspan or the exercise of a power in
terms of section 12(2), 15, 17 or Chapter IV of this Ordinance without such
land being expropriated, the following provisions shall apply:
…
(f) the date on which the Administration becomes liable for the payment of
compensation in terms of the provisions of the Ordinance in question shall be
regarded as the date of expropriation; . . .’
(emphasis added).
As can be seen s 18(1)( f) expressly considers the acquisition of
land in terms of s 17 as an act of expropriation.
[40] Like s 26(7) of the Expropriation Act, s 18 provides for the
making of an endorsement in the Deeds Registry where land has
been declared to be a road.
18
In s 1 of the Expropriation Act ‘road’ is defined as follows:
‘ “road” means a road as defined in the relevant provincial Ordinance and
includes any land acquired or used for quarries, outspans or camps or other
purposes in connection with such a road.’
In s 18(4)(b) of the Ordinance it is defined as follows:
‘ “road” means a road as defined in this Ordinance and includes any land
acquired or used for quarries, outspans or camps or other purposes in
connection with such a road.’
The legislation providing for endorsem ent in the Deeds Registry of
rights relating to land acquired in connection with roads makes it
clear that such rights are enforceable real rights.
[41] Section 54 of the Ordinance, the provisions of which are set
out in para [28], protects the rights acqui red by the Province in
terms of s 17, by imposing criminal sanctions when such rights are
infringed.
[42] Section 5(2)( a) of the Minerals Act 50 of 1991 provides that a
provincial administration shall not require any authorisation for the
searching for and the taking of sand, stone, ro ck, gravel, clay and
soil for road-building pu rposes under the laws applicable to them.
It provides further tha t a provincial administr ation shall in such a
case be deemed to be the holder of or ap plicant for a prospecting
permit or mining authorisation, in respect of the mineral and land
concerned.
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[43] As can be seen from the statutory matrix discussed in the
preceding paragraphs, the rights to enter u pon land and to take
possession of so much thereof as is necessary fo r road-building
purposes and the right to remove materials to be used for the
same purpose in terms of s 17 of the Ordinance clearly
approximate rights of ex propriation. Section 18 regards them as
such. The rights acquired in terms of subse cs 17(1) and 17(2) are
more than a servitude (as in the Fink case) ─ the rights in question
extend to the Province becoming owner of the materials so
removed. These rights are statutorily protected. They are
enforceable real rights.
[44] I turn to deal br iefly with the submission that the rights in
question are acquired only tempor arily, ie where there is an
immediate need or use for the ro ad-building materials concerned.
It has not been suggested that the Province’s future planning was
flawed or that the Province took possession of the property with an
ulterior purpose or wa s not serious about reserving and later
utilising a scarce resource for the public benefit. There is nothing in
the words of the subsections in question that supports the
restrictive interpretation c ontended for. In fact, s 54( e)(ii) in terms
contemplates future excavation. Following the interpretation
contended for by the appellants woul d lead to absurd results and
would render future planning by Provincial authorities nugatory.
20
[45] It was rightly c onceded on behalf of the appellants that, in
the event of this court holding that, in acting in terms of s 17(1) and
s 17(2), the Province had acquired a real right, t here would be no
need for an enquiry i nto the question of the nec essity of notice to
third parties (and partic ularly to successors in title). In any event,
against the backgrou nd of the notice board announcing the
Province’s rights and the visibl e and prominent beacons, that
enquiry, if necessary, would in all probability not have resulted in a
favourable conclusion for the Trust and the CC.
[46] Counsel for th e Trust and the CC ri ghtly conceded that an
argument for the abandonm ent of rights by th e Province could in
the circumstances not be sustained.
[47] In the light of th e conclusions reached it follows that the
appeal should fail.
[48] The appeal is dismissed with costs.
_________________
MS NAVSA
JUDGE OF APPEAL
CONCUR: Brand JA
Van Heerden JA
Erasmus AJA
Comrie AJA