About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2014
>>
[2014] ZACC 37
|
|
Arun Property Development (Pty) Ltd v City of Cape Town (CCT78/14) [2014] ZACC 37; 2015 (3) BCLR 243 (CC); 2015 (2) SA 584 (CC) (15 December 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 78/14
In
the matter between:
ARUN
PROPERTY DEVELOPMENT (PTY)
LTD
...............................................................
Appellant
and
CITY
OF CAPE
TOWN
.........................................................................................................
Respondent
Neutral
citation:
Arun Property Development
(Pty) Ltd v City of Cape Town
[2014]
ZACC 37
Coram:
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van der Westhuizen J
and Zondo J
Judgment:
Moseneke DCJ (unanimous)
Heard
on:
9 September 2014
Decided
on:
15 December 2014
Summary:
Land Use Planning Ordinance 15 of 1985
— meaning of section 28 — structure plan is not a
policy for purposes of
the section — alternative remedies to
section 28 compensation
Section
25 of the Constitution — arbitrary deprivation —
expropriation
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
Western Cape High Court, Cape Town):
1.
The appeal succeeds.
2.
The order of the Supreme Court of Appeal is set aside.
3.
The order of the High Court is re-instated in the following amended
form:
“
(i)
The excess land that may be established or agreed upon by the parties
has vested in the City of Cape Town in terms of section 28
of
the Land Use Planning Ordinance 15 of 1985 (LUPO).
(ii)
Arun Property Development (Pty) Ltd is entitled to compensation in
respect of the excess land, in terms of section 28 of LUPO.
(iii)
The compensation must be calculated under the relevant provisions of
the Expropriation Act 63 of 1975.”
4.
The City of Cape Town must pay the appellant’s costs including
the costs of two counsel in the High Court, Supreme Court
of Appeal
and in this Court.
JUDGMENT
MOSENEKE
DCJ (Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga
J, Nkabinde J, Van der Westhuizen J and Zondo J concurring):
Introduction
[1]
This appeal raises a significant
constitutional issue connected to the expropriation of land and
compensation. It is whether
a local authority that has acquired
land, by operation of legislation, from a private owner in a planning
approval process for
a residential development, is obliged to pay
compensation for the land so acquired. Here, the owner and
developer of the
land claims compensation from the local authority
for the value of the land it has so acquired. It does so on the
ground
that the land was unrelated to the normal need for the
provision of public streets and spaces for the residential
development but
was required for a future road network planned for
the region as a whole.
[2]
Since
1986, the Land Use Planning Ordinance
[1]
(LUPO or Ordinance) requires of a local authority in the Western Cape
to undertake land use planning and to adopt a structure plan.
[2]
It
is meant to capture the local authority’s vision for the use
and development of the land within its jurisdiction.
Thus, a
structure plan should provide a framework within which land use
planning and development by the private sector is to take
place. In
many instances the requirements set by a local authority in a
structure plan are, for a private developer, not
easy to bypass or
change. A local authority may require that a planned future
network of roads be shown on a developer’s
plan of
subdivision. If that were so, section 28 of LUPO would apply.
[3]
Section
28 provides, subject to certain qualifications, for the vesting of
the ownership of public streets and public places in
the local
authority, without the payment of compensation.
[3]
The appeal hinges on the meaning this Court accords to the section.
It is thus expedient to rehearse its terms this
early:
“
The
ownership of all public streets and public places over or on land
indicated as such at the granting of an application for subdivision
under section 25 shall, after the confirmation of such subdivision or
part thereof, vest in the local authority in whose area of
jurisdiction that land is situated, without compensation by the local
authority concerned if the provision of the said public streets
and
public places is based on the normal need therefor arising from the
said subdivision or is in accordance with a policy determined
by the
Administrator from time to time, regard being had to such need.”
Background
[4]
The
appellant, Arun Property Development (Pty) Ltd (Arun), is a property
developer. The respondent is the City of Cape Town
(City), a
local authority established in terms of national legislation, the
Local Government Municipal Structures Act.
[4]
In 1997 Arun acquired from the University of Stellenbosch
(University) a property located in Durbanville, Western Cape
(property),
[5]
with a view to
undertaking a substantial township development.
[5]
Before
Arun’s purchase of the property, the University had instructed
a host of expert consultants including city planners,
architects and
consulting engineers to advise it on the possible future use and
development of the property. The consultants
advised the
University that the property fell within the logical expansion area
of the Durbanville district and that the value
of the property would
be optimised if it were used for a township development. They
considered documents regulating municipal
planning in the area and
found that various planning instruments made provision for a
hierarchy of roads that would run over the
property.
[6]
[6]
In
the early 1990s, the University lodged its application with the City
to obtain the necessary approval for the township development
of the
property. On 3 September 1992 the University was informed
in writing that the ministerial representative had
approved the
application for the rezoning of the property from its agricultural
zoning to subdivisional area.
[7]
[7]
After
it had acquired the property, Arun, like the University, was told by
municipal officials that no application for rezoning
and subdivision
of the property for a township development would be approved by the
competent authorities unless the layout plans
of the proposed
development made due allowance for the planned future road
infrastructure. This meant that the approval for
the rezoning
and subdivision hinged on whether the development accorded with
existing planning protocols. One particularly
significant
planning instrument was the structure plan. In 1988 the Western
Cape provincial authorities approved the structure
plan in terms of
section 4(6) of LUPO (1988 structure plan). It envisioned
primary roads which would run over the property.
[8]
[8]
Arun too employed a team of consultants
whose investigations confirmed the earlier history of the rezoning of
the property. Arun’s
consultants were informed that the
requirements of the 1988 structure plan and other planning documents
envisaged a specified road
infrastructure and the developer was
obliged to provide for the planned primary road system over the
property.
[9]
Arun
approached the City for permission to subdivide the property in order
to undertake a residential development. The application
was
drawn up taking into account the local authority’s envisaged
road infrastructure. The sought subdivisions were
granted in
terms of section 25 of LUPO.
[9]
This the City did on three different occasions for the three
phases of the residential development. In each case, the
approval took effect on the date of transfer to the purchaser of the
first erf in a phase. It included confirmation of the
rezoning
of specified portions of the property to “public streets”
as well as conditions for the design of the road
infrastructure
within a phase.
[10]
Although
section 42(2) of LUPO allows for the imposition of conditions
relating to the cession of land without compensation, the
approvals
did not set a condition that the portions of the planned primary
roads that ran over the property had to be ceded to
the City at no
cost.
[10]
[11]
Arun
was not happy with every condition of the approvals. It applied
for the variation of some of the conditions on a few
occasions.
It sought the area reserved for public open spaces within the
development to be reduced from 16% to 8% of the
property. The
City approved the variation after the provisional approval of the
second phase of the subdivisions. In
another instance, the
City, acting in terms of section 42 of LUPO,
[11]
granted a variation of certain second-phase zoning conditions.
These included the rezoning of two land units from “single
residential” to “general residential” and the
layout of an internal public road, with a minimum road reserve
20 metres wide. The variation was approved subject to
Arun’s complying with the previously imposed second-phase
conditions and observing the requirement that—
“
all
public roads be transferred to Council, prior to the utilisation of
the property for General Residential purposes, the transfer
of any
newly created erven
,
the redevelopment of the property or the approval of building and
sectional title plans, whichever first occurs”.
[12]
[12]
Barring the variations it successfully
asked for, Arun did not challenge any of the rezoning and subdivision
decisions, or their
allied conditions, by way of appeal or review; a
matter to which I will revert.
In
the High Court
[13]
On 10 September 2001, Arun instituted
action in the Western Cape High Court, Cape Town (High Court)
premised on section 28 of LUPO.
It claimed compensation from
the City in an amount, as at January 2007, of R13 429 756. We
are informed that the figure now
stands at a substantially higher
amount. Arun pleaded that its approved subdivision plans had to
provide for portions of
the higher-order roads (“excess land”)
which were meant to cut across the property. However, the need
to provide
for the excess land did not arise out of the normal needs
of the residential development of the property. The excess land
now vests in the City and it is a substantial tract of valuable
property. The City must pay compensation for it.
[14]
The
City raised several exceptions to the summons, some of which were
upheld by the High Court. However, it granted Arun leave
to
remedy the defects by amending its particulars of claim.
[13]
[15]
When
the matter went to trial, the High Court sanctioned an agreement by
the parties that the issues for decision be separated in
terms of
rule 33(1).
[14]
That
decision allowed the Court to give meaning to section 28 of LUPO
without deciding the extent of the excess land and
the value to be
placed on it. This, the parties procured by stipulating that it
was to be assumed, without the City admitting
this to be the case,
that the portion of public streets indicated as running over the
property at the granting of the specified
subdivisions exceeded the
normal need therefor arising from the subdivisions.
[16]
The separated issues were:
(a)
Does the excess land remain vested in Arun or has it vested in the
City in terms of section 28 of LUPO? (vesting issue)
(b)
If the excess land has vested in the City, is Arun entitled to
compensation for the excess land? (compensation issue)
(c)
If Arun is entitled to compensation, is it to be calculated in terms
of the Expropriation Act,
[15]
or section 25 of the Constitution? (calculation issue)
[17]
The
High Court found in favour of Arun. It concluded that the
excess land had vested in the City in terms of section 28 of
LUPO and
that Arun was entitled to compensation for it. Dlodlo J further
held that compensation was to be reckoned in terms
of the provisions
of the Expropriation Act.
[16]
[18]
In reaching this conclusion, the High Court
reasoned that legislation is not presumed to take away existing
rights unless it expressly
or by necessary implication states so.
The object to take away property without compensation should also not
be imputed to
the Legislature unless it is expressed in clear terms.
[19]
Section
28 of LUPO was considered by the Supreme Court of Appeal in
Helderberg.
[17]
The High Court held that it was not bound by
Helderberg
because it was distinguishable on the facts. In that case, the
approval of the subdivision was made conditional upon the
developer
ceding a portion of the property to the City. The High Court
held that the interpretation given to section 28 by
the majority in
Helderberg
was premised on the conditions imposed by the local authority.
That construction was not binding on it.
[20]
The High Court also held that the 1988
structure plan cannot be considered to be a “policy”, as
contended by the City,
because it catered not for the designated area
but rather applied generally to the broader community.
In
the Supreme Court of Appeal
[21]
The
appeal before the Supreme Court of Appeal was at the instance of the
City.
[18]
The City
sought a reversal of the unfavourable decision of the High Court.
The mainstay of Arun’s case was that
on a proper construction
of section 28 of LUPO, all public streets vested in the City and that
Arun was entitled to compensation
for those that went beyond the
normal needs of the development. Arun urged the Court not to
follow the majority decision
(per Farlam JA) in
Helderberg
on section 28 of LUPO because it was
obiter
in as much as it did not analyse or deal in detail with the meaning
of the section. Arun urged that the construction of the
section
in the minority judgment of Heher JA was correct and ought to be
followed.
[22]
The Supreme Court of Appeal upheld the
appeal and reversed the decision of the High Court. It held
that the majority in
Helderberg
had
decided the matter before it on the basis of section 28. The
Court decided the compensation issue and in so doing in effect
also
decided the vesting issue on a basis adverse to Arun’s case.
The Court considered that the
Helderberg
decision was binding and was neither
obiter
nor
distinguishable from the present dispute. The Court concluded
that the excess land had vested in the City and Arun was
not entitled
to compensation.
In
this Court
[23]
The appeal by Arun against the decision of
the Supreme Court of Appeal was heard with the prior leave of this
Court. Arun
sought to move this Court to uphold the appeal with
costs and to re-instate the order of the High Court by directing that
the excess
land had vested in the City and that Arun was entitled to
compensation which is to be calculated in terms of the section 26(1)
of the Expropriation Act.
[24]
Arun submitted that a proper reading of the
section compels the City to pay compensation for excess land that has
vested in it by
operation of section 28 of LUPO. That meaning
accords with the plain language of the section and the purpose of
LUPO to procure
and facilitate the orderly and beneficial use and
development of land. Also, that meaning is in harmony with the
guarantee
against expropriation without compensation afforded by
section 25(2) of the Constitution.
[25]
The City argued that Arun has no right to
compensation. The interpretation of section 28 urged by Arun is
incorrect.
The provision was properly understood by the
majority in
Helderberg
,
a case that is indistinguishable from the present. Section 28
only deals with circumstances in which compensation is
not
required. It does not, as a necessary correlative, dictate when
compensation must be paid.
[26]
In
a separate argument, the City submitted that Arun was not entitled to
compensation because the 1988 structure plan was a “policy”
as envisaged in section 28 and accordingly compensation is
excluded. The City added that it has always been its case
that
the road reserves were provided for in accordance with a section 28
policy. To this Arun said there was no ground for
equating the
1988 structure plan with a “normal needs policy” imagined
by section 28. Even if the provision of
the public streets is
“in accordance with a policy”, the “normal need”
requirement for vesting must nevertheless
be met.
[19]
The policy may not permit municipalities to acquire land free of the
duty to compensate for planned public streets which
exceed the normal
needs of the subdivision.
[27]
On
another tag, the City resisted the appeal on the ground that
compensation is not the proper relief for Arun’s grievance.
It should have sought an amendment of the structure plan or the
conditions of the planning approvals, set under section 42 of LUPO,
which reserved excessive land for public roads. Section 4(7) of
LUPO provides a mechanism for any interested party to seek
the
amendment of a structure plan.
[20]
Section 44 allows a party to appeal to the provincial
authorities against the conditional granting of any application under
LUPO.
[21]
Alternatively,
the City contended, Arun could have challenged the lawfulness of the
structure plan or approval conditions
that it claims operated to its
prejudice. It has elected to seek neither municipal nor
judicial relief to alter the land-use
instruments and decisions that
regulated its development. It may not now claim compensation.
[28]
Lastly,
to Arun’s assertion that the vesting of excess land in the City
was expropriation that entitled it to compensation,
the City has
retorted that expropriation is a particularly narrow form of
deprivation. The reservation of land for public
roads in a
commercial development which at least partly serves the development
does not amount to an expropriation of property
in terms of section
25(2) of the Constitution, but only to a deprivation of property in
terms of section 25(1) of the Constitution.
[22]
Here, the City added, Arun has not shown the deprivation to be
arbitrary.
Issues
[29]
This appeal poses four questions that track
the original issues before the High Court. Some of these issues
are marginally
qualified by sub-themes:
(a)
What is the meaning of section 28 of LUPO?
(i)
Does the section vest all public streets and public places shown in
an approved subdivision in the local authority with jurisdiction?
(ii)
If so, is the property developer entitled to compensation for the
land that so vests, if the public streets and places are
more than
the normal needs of the development?
(b)
Is the 1988 structure plan a policy for purposes of section 28?
(c)
Does the vesting of land in the local authority amount to
expropriation?
(d)
May a property developer sue for compensation before it has exhausted
the appeal and review remedies in LUPO?
Meaning
of section 28
[30]
The
meaning of section 28 must be garnered from the plain language of the
text, its location in the scheme and the purpose of LUPO.
[23]
In doing so we must also heed the interpretive injunction that its
meaning must promote the objects of the Bill of Rights.
[24]
[31]
The
text
vests ownership of “all public streets
and public places” in the local authority without
compensation. But so,
only if the provision of the land is
within the normal needs of the development or is allowed by a policy
determined by the Administrator
(now Premier). Thus vesting
without compensation is permissible only to cater for normal needs
of
the subdivision
.
[32]
A closer look at the provision reveals two
distinct components. Its first half vests “ownership of
all public streets
and public places over or on land indicated as
such at the granting” of a subdivision application by a local
authority. This
occurs without more to
all
land indicated on the subdivision application as public streets –
whether based on the normal need or in excess of it. The
second
part, which is separated from the first by a comma, provides that
part of the vesting land that is based “on the normal
need
therefor arising from said subdivision”, or is in accordance
with a normal need policy, vests without compensation.
The
excess land, as the minority judgment in
Helderberg
rightly reasoned, attracts a claim for compensation.
[33]
To
understand section 28 to permit the acquisition of land by the local
authority beyond normal needs without compensation is to
ignore the
syntax of the proviso: “if the provision of the said public
streets and public places is based on the normal need
therefor
arising from the said subdivision”. There is indeed force
in the position of the minority in
Helderberg
that
the “correlative of the negative postulation” is that an
owner is entitled to compensation for over-generously
provided
streets and public places which vests in the local authority.
[25]
The meaning preferred by the majority renders the proviso
superfluous. That course we are not free to follow.
[34]
This
is particularly so because the majority did not seem to confront the
language, context or purpose of the provision. It
seems to have
assumed without deciding that the vesting of the excess land had
occurred and, without more, that even so, no compensation
may ensue.
This occurred without reference to the well settled interpretive
canon that legislation may not be construed to
permit confiscation of
land without compensation unless it so provides in clear terms.
[26]
Nor does the majority judgment reach out to the duty to interpret
section 28 in the light of section 25(2) of the Constitution.
Instead it sought support in the dicta of two pre-Constitution cases
which appeared to countenance “uncompensated expropriation”
provided the owner acted with a degree of freedom of choice.
[27]
[35]
In addition to being faithful to the text,
this is a sensible way to construe the provision. When the
public roads in question
arise from the normal needs of the
subdivision itself, it makes sense to expect the developer to bear
the burden of providing the
land, free of charge, for the purpose of
public roads. There cannot be a township development without
public streets and
places. The developer has created that need.
But where the extent of the roads provided for in the plan is
beyond the
normal need, the local authority must compensate the
developer for the excess that vests in it. This excess is not
related
to, and the need for it precedes and is not created by, the
subdivision. This becomes plain when one considers what the
position
is on land that is not subject to an application for
subdivision that is needed by a local authority for a higher-order
road in
terms of a structure plan. When the local authority
resolves that the time has come to build the road, the land must be
expropriated
and compensation must be paid to the owner.
[36]
At
this point, it would be appropriate to deal with the concern raised
by the City during oral argument. This was that a developer
itself may make provision for overbroad streets and overgenerous
public places and then later claim compensation for these “unneeded”
portions, should section 28 be interpreted to provide for a claim for
compensation in respect of excess land. The Supreme
Court of
Appeal quotes the majority in
Helderberg
with
approval in this regard.
[28]
In my view there can be no risk of a developer over-providing public
roads and spaces and then later enriching itself by
claiming
compensation. The local authority approves land use and
subdivision plans and is thus in a position to ensure that
plans do
not provide for public roads and spaces which are not needed.
It has the power to amend approvals and to impose
conditions even
after approvals and can thus easily counteract a developer’s
over provision and later claim.
[29]
Furthermore, excess land that may attract compensation is a function
of an externally imposed spatial requirement by the
local authority
itself or a regional plan and cannot be generated by a self-serving
developer.
[37]
The
purpose
of LUPO is to facilitate planned and orderly land use and
development. Its mission is best disclosed by the general
purpose
of a structure plan. The plan must set guidelines for
future spatial development that envisages urban renewal, urban design
and development plans that effectively advance the order and welfare
of the community concerned.
[30]
The provision is emphatic that a structure plan “shall not
confer or take away any right in respect of land”.
[31]
[38]
Section
28, in particular, aims to vest roads and public spaces based on
normal needs of the development in the local authority
concerned.
What would be normal needs will differ from development to
development. The Supreme Court of Appeal reasoned,
wrongly in
my view, that this provision was not to enable an expropriation of
excess land that was not based on the normal needs.
This was
so, they said, because there was no procedure for expropriation and
that interpretation would offend against section 25(2)
of the
Constitution.
[32]
That
Court added that this does not amount to expropriation because a
developer can opt out of the development if it does
not like its
excess land vesting in the local authority. The Supreme Court
of Appeal concluded that since the vesting under
section 28 does not
amount to expropriation of excess land, it does not envisage
compensation. I respectfully disagree.
[39]
The better view is articulated by the
Helderberg
minority
in these terms:
“
Counsel
for the appellant [the City] submitted that section 28 is a vesting
clause and does not contain a power of expropriation.
That
vesting is its primary object there can be no doubt. However
the implications of the phrase ‘without compensation’
cannot be ignored. In theory the automatic vesting of land
occurs in terms of section 28 at the voluntary instance of
the
landowner who elects to rezone his land, provides for roads and
public places in his application for subdivision and causes
the
subdivision to be confirmed. But that is to ignore the
substance. It is not the owner’s choice whether or
not to
give such land to the local authority but the unavoidable result of a
statutory provision which applies to all cases. It
is sophistry
to submit, as the appellant’s [City’s] counsel has done,
that the fact that the owner can refrain from
rezoning or subdividing
his land confers freedom of choice. That is to place stagnation
above development while the Ordinance
is intended to regulate
development in an orderly fashion not to stultify it. In
addition, if the owner has knowledge of
the statute, he will be aware
that only land that falls within the defined terms of section 28 must
be yielded without compensation.
Such an owner can hardly be
said to part willingly with land which is not vested as a result of
normal need for it arising
from the subdivision, unless compensation
is to be paid, albeit that he has caused it to be shown as a public
place or street in
his subdivisional diagram. Thus, the
provisions of section 28, although primarily concerned with the
vesting of land, are
founded in a compulsory taking and, when abused
in the manner set up by the respondent’s case, give rise to a
situation so
close to confiscation that application of the statutory
principle of interpretation is both appropriate and necessary.”
[33]
[40]
I agree that the section must be understood
in a manner that supports and recognises the legislative object of
planned, orderly
and public-oriented land use and development within
a local authority. With the rezoning of land use and
subdivision of land
in order to develop it into a township come
public streets and places, new homes, new communities and their
general welfare. The
public streets and places properly vest in
the public authority without compensation because they are integral
to the development.
They are the developer’s “give”
for the value-add a subdivision approval brings. But the
section does more.
It vests also the ownership of a developer’s
excess land, if any, in a local authority. That vesting of
ownership beyond
the reasonable, normal needs of a subdivisional
development must rank as a legislative acquisition of the developer’s
land
without compensation. It occurs by operation of law after
confirmation of the subdivision or a part thereof. The
compulsory
taking away of the excess land without compensation is not
properly related to the purpose of developing a township with
adequate
public roads and spaces.
[41]
The
vesting of excess land in the local authority in the course of a
township development may be beneficial to regional roads and
other
public needs. But that is not an adequate or compelling public
consideration why the City may acquire the excess land
from the
developer for no compensation. I would rather save the
provision by giving it a meaning that is at peace with section
25(2)
of the Constitution
.
Excess land, properly so established, must attract compensation, a
remedy which section 28 itself uses and the Ordinance
provides for in
a few other instances.
[34]
It will always be open to a municipality to adjust its structure plan
and other land use planning devices in order to avoid
this
consequence.
Is
the 1988 structure plan a policy for purposes of section 28?
[42]
The City contended that, even if a proper
reading of section 28 permits compensation for excess land, Arun is
not entitled to compensation
because the structure plan is a “policy”
for purposes of the section. Its provisions do not oblige a
municipality
to recompense the landowner if land has vested “in
accordance with a policy determined by the Administrator from time to
time, regard being had to such need”. Plainly, “such
need” refers back to the normal need for public streets
and
public places arising from the subdivision
.
The City’s contention begs the question whether a structure
plan is a “policy” for the purposes of section
28. Even
if it were, does it set guidelines on how to reckon normal need for
public roads and places in a township development?
[43]
The City made this contention despite its
concession at a 2012 pre-trial conference that—
“
17.3
daar te alle tersaaklike tye geen beleidsbepaling deur die
Administrateur gemaak is ingevolge Artikel 28 van die Ordonnansie,
waarvolgens padbreedtes soos deur die owerhede benodig vir doeleindes
van die hoër orde paaie, deur ‘n grondeienaar
kosteloos
aan daardie owerhede afgestaan moet word nie”.
[35]
[44]
The
City now explains that it intended to admit only that there was no
policy which had as its express purpose the designation of
portions
of land in relation to which owners would receive no compensation.
It says it did not intend to admit that there
was no policy
applicable to the circumstances of the case. It contends,
correctly in my view, that the question whether a
structure plan is a
policy
is a matter, not of fact but of law, that may be raised even on
appeal.
[36]
It follows
that we need not resolve the factual dispute around the pre-trial
concession.
[45]
It is so that neither section 28 nor any
other provision of LUPO provides a definition of the word “policy”.
We
must resort to its ordinary meaning. Harms JA’s
remarks in
Akani
on “policy determinations” appearing in a provincial
gambling statute, are not inapposite:
“
The
word ‘policy’ is inherently vague and may bear different
meanings. . . . I do not consider it prudent to define
the word
either in general or in the context of the Act. I prefer to
begin by stating the obvious, namely that laws, regulations
and rules
are legislative instruments, whereas policy determinations are not.
As a matter of sound government, in order to
bind the public, policy
should normally be reflected in such instruments. Policy
determinations cannot override, amend or
be in conflict with laws
(including subordinate legislation). Otherwise the separation
between Legislature and Executive
will disappear
.
”
[37]
[46]
This
Court has not only endorsed these remarks of Harms JA but also
emphasised that a policy must be consistent with the operative
legislative framework.
[38]
It
serves as a guide to decision-making and may not bind the
decision maker inflexibly.
[39]
In
Lagoonbay
,
[40]
this Court found guidance in the following remarks on policy
documents in the
Booth
case:
“
The
formulation and adoption of policy documents, particularly after a
process of public participation and with external expert
assistance,
is a valuable tool of government. This is especially true in
the sphere of land use and planning. A properly
researched and
formulated policy aids rational, coherent and consistent
decision-making. It provides a large measure of useful
predictability to the public. It avoids the need for
time-consuming investigations into the history and character of an
area each time a planning application is made – ‘reinventing
the wheel’ as Prof Hoexter puts it.”
[41]
(Footnotes
omitted.)
[47]
Policy is not legislation but a general and
future guideline for the exercise of public power by executive
government. Often,
but not always, its formulation is required
by legislation. The primary objects of a policy are to achieve
reasonable and
consistent decision-making; to provide a guide and a
measure of certainty to the public and to avoid case by case and
fresh enquiry
into every identical request or need for the exercise
of public power.
[48]
The
City submitted that section 5 requires a structure plan to “lay
down guidelines for future spatial development”
and to be
adopted in a public process. It is thus a policy to calculate
the normal need for public roads under section 28.
It cannot be
so. A structure plan is not a section 28 policy. Chapter
I of the Ordinance regulates structure plans.
Nothing in it
provides expressly or implicitly for a guideline on how to reckon
“normal needs arising from [a particular]
subdivision”.
Moreover, if a structure plan were that decision-making tool
provided for in section 28, one would have
expected the Ordinance to
have made reference to it explicitly as a number of its other
provisions do cross-reference.
[42]
[49]
To
my mind, the meaning of section 28 is clear: the policy concerned
must be a dedicated instrument, published “from time
to time”
under section 28. This is unlike a structure plan, which must
be reviewed once in a ten-year cycle.
[43]
The policy would be a guideline to assess what constitutes the
“normal need” for public streets and places arising
from
a subdivision of land. In turn, a structure plan focuses on the
general purpose to lay down guidelines for future spatial
development
of the area it relates to. Its focus is the high-level
regulation of urban renewal, design and spatial development
planning
and not the discrete and varied township developments within a
municipality.
[50]
Ordinarily, “normal need” would
be assessed in light of the facts and features of a given township
development.
The normal needs policy is meant to provide the
local authority with a short-cut. This is sensible: the
provision gives the
authority a mechanism with which to make a
normal-need assessment quickly by application of a pre-ordained and
formulaic assessment.
It would be aimed at providing criteria
and standards which may be applied to a subdivision in order to
determine a division of
responsibility between developer and local
authority in relation to services.
[51]
This interpretation of what “policy”
means under section 28 is not predicated on the expert evidence of Mr
Underwood.
His evidence is nonetheless useful because it tells
us that, contrary to the City’s contention that a structure
plan also
provides for policy, the Premier or her predecessor has
formulated and published a discrete policy under section 28 for the
provision
of public spaces, but not one for public streets. The
evidence also informs us of the relevant contents of the 1988
structure
plan. His testimony is undisputed.
[52]
He testified that the 1988 structure plan
does not purport to provide any criteria or guidelines for
establishing normal need in
any particular subdivision, as far as
public streets are concerned. It confines itself to the
location of certain planned
higher order roads.
Furthermore, he testified that in his experience, provincial policy
was generally made available
in the form of provincial circulars and
designated policy documents. There was a provincial policy in
place providing guidelines
and criteria for determining the amount of
open public space required in a typical township subdivision. There
was no corresponding
policy emanating from the competent authority
that purported to deal with the question of public streets.
Mr Underwood
testified that he would expect and anticipate
any such policy, if it had been determined, to have been published.
He would
not expect the policy to be contained within a
particular structure plan for a designated area.
[53]
The contention that the structure plan
doubles as a policy on determining normal needs for public streets of
a township development
has no merit and should be dismissed. The
City rightly conceded that if we were to hold against it on its
policy argument
that would be the end of its case on the entitlement
of the appellant to compensation under section 28. That is
plainly so.
Despite the concession, the City persisted with two
contentions: that Arun may not claim compensation because the vesting
of ownership
did not amount to expropriation and in any event, Arun
had not first exhausted the remedies of appeal and review under the
Ordinance.
Is
vesting under section 28 an expropriation?
[54]
The
core of the City’s attitude is that the reservation of land for
public roads in a commercial development that partly serves
the
development does not amount to an expropriation of property in terms
of section 25(2) of the Constitution.
[44]
The mere fact that some of these roads and places may be
greater than is strictly required for the isolated needs of the
development does not elevate the deprivation into an expropriation in
all or most cases. Although the land will vest in the
City in
those cases, it will involve a deprivation and not an expropriation.
Here, the City added, Arun has not shown that
the deprivation
was arbitrary and thus has no right to compensation. The City
concludes that it does
not
follow, as a “negative correlative” of the proviso in
section 28 that, in all cases in which public roads and public
places
are wider than required for that development, compensation is
required.
[55]
The
City advanced two grounds to support its contention. It says
the foremost general characteristic of expropriation is that
it “is
brought
about
unilaterally
by state action
,
without the cooperation and often against the will of the affected
owner”.
[45]
This
contention relies on the reasoning of the majority in
Helderberg
.
Its essence is that if an affected owner had a “degree of
freedom of choice” in the “lawful ordering of
its
affairs” and the consequence is an “uncompensated
expropriation”, it has no claim to compensation.
[46]
In that case the majority found that the affected owner could not
complain that the City had been “holding [it] to
ransom in its
lawful ordering of its affairs” because it was free not to
continue with the development.
[47]
[56]
The support the City relies on in
Helderberg
,
that vesting under section 28 does not amount to expropriation, is
misplaced. The majority remarked:
“
I
agree with the submission of counsel for the appellant that the
imposition of condition ‘u’ in the purported exercise
of
the powers vested in the local authority by section 42 of LUPO did
not constitute expropriation because the owner was not obliged
to
submit to the vesting of his land subject to the condition.
This is because the owner could have avoided the vesting of
these
portions of its land by not proceeding with the proposed
subdivision”.
[48]
[57]
The reasoning was directed at the effect of
the purported imposition of condition “u” in terms of
section 42 and not
at section 28 of the Ordinance. There, when
the City granted authorisation, it imposed condition “u”
to the effect
that the owner must cede specified land for no
compensation. No condition of that sort was imposed on Arun’s
authorisation
and the operative provision under which the vesting
occurred was section 28.
[58]
The
City pressed on that, in any event, the vesting of land under section
28 is deprivation and not expropriation. We have
not had a full
argument on the distinction between expropriation and deprivation of
property. None of the preceding courts
has expressed itself on
this distinction which gained prominence only in this Court. I
am prepared to accept, without deciding,
that an expropriation occurs
by state coercion and without the consent of the affected owner.
[49]
The minority in
Helderberg
defined
expropriation, in a similar vein, as “the compulsory
deprivation of ownership or rights usually by a public authority
for
a public purpose”.
[50]
[59]
This however does not advance the cause of
the City. Section 28 compulsorily requires the giving-up of
ownership of land to
a local authority upon the granting of a
subdivision. The loss of ownership is compelled by law, and not
by the decision
of the local authority. It occurs instantly
upon confirmation of the subdivision. A land developer would
know at the
start of the process for rezoning and subdivision that it
has to give up the public streets and spaces that make up the normal
needs but not those that are not reasonably required for the normal
needs of a development. The City has advanced no cogent
reason
or compelling public interest why the coercive acquisition is with
the consent of the affected owner. Nor has it stated
why the
provision should not be interpreted in accordance with the settled
rule of interpretation that a legislative intention
to authorise
expropriation without compensation will not be imputed in the absence
of express words or plain implication or in
line with section 25(2)
of the Constitution. I am persuaded that to the extent that
section 28 vests public places and
streets beyond the normal need
arising from a particular subdivision, the owner of the land may
claim for compensation.
[60]
The
second ground the City has advanced, relying on
Reflect-All
,
[51]
is
that legislative provisions allowing for the establishment of a
future road network which restrained planning and development
activities amount to “deprivation” within the meaning of
section 25(1) of the Constitution, but not to “expropriation”
requiring compensation.
[52]
Reliance
on this case does not assist the City. In
Reflect-All
,
the constitutional validity of sections 10(1) and 10(3) of the
Gauteng Transport Infrastructure Act
[53]
was upheld as the deprivation that occurred under that legislation
was not arbitrary.
[54]
In this case section 28, whose constitutional validity is accepted by
all, does not authorise any deprivation beyond normal
needs. It
follows that any deprivation beyond the normal need would take place
outside of legislative authority and would
thus be arbitrary.
Furthermore,
Reflect-All
is distinguishable. On its facts no confiscation of land
occurred. The land of the owners over which planned future
roads might be developed did not vest in any state entity.
[55]
The land in question was not acquired by the state. It
remained the property of the landowners. If the land had
vested
in the state a different question, akin to the one in the present
case, would have arisen. It did not.
[61]
In
Reflect-All,
another
important consideration why the restraint on planning and
development, in the mere approval of a road scheme, did not amount
to
a “taking” was that it was not known whether the state
would ever construct the reserved or planned future roads
over the
affected land.
[56]
It
was not known at which point, if at all, the land would be acquired
by the state for constructing roads. Section
28 is vastly
different. The ownership of all public roads and public places
must vest in the local authority “after
confirmation of such
subdivision or part thereof”. The confiscation of excess
land occurs at a fixed and pre-determined
moment. The change of
ownership of the excess land
is
a direct sequel to the granting of and confirmation of the
subdivision.
[62]
The contention advanced here too is no bar
to the appellant claiming compensation for the expropriation of its
land.
Did
the applicant exhaust its remedies?
[63]
The City assumed the stance that, prior to
instituting a claim for compensation, Arun ought to have sought an
amendment to the provisions
of the structure plan that provided for
public roads which were in excess of the normal needs of its own
development. Alternatively,
Arun ought to have approached a
court to review and set aside the decision which reserved land for
public roads in excess of normal
needs of the development. Was
Arun obliged to make use of an appeal or review process before
instituting a claim for compensation?
[64]
In
Helderberg
,
we have seen, the local authority imposed condition “u”
in terms of section 42(2) of LUPO that the developer had to
give the
local authority, free of charge, a 32-metre wide road reserve as
condition before approving the subdivisional plan.
[57]
The majority judgment held that the developer could have lodged an
appeal to the Premier under section 44 against the imposition
of the
condition.
[58]
The Court
held that it was also open to the developer to take the decision to
impose the condition on review.
[59]
The majority held that a party that has at its disposal the
remedy of appeal or review and does not make use of it, will
not be
allowed to claim compensation for what in effect are “constitutional
damages”.
[60]
[65]
Section
44 permits an applicant in an application under the Ordinance to
appeal to the Premier “against the refusal or granting
or
conditional granting of such application”.
[61]
Thereafter the section specifies other decisions that are
susceptible to appeal to the Premier. Here, in the approval
of
the subdivision, the City did not put up a similar section 42
condition which was susceptible to an appeal in terms of the
section. And unsurprisingly, the vesting of land under section
28 is not listed as susceptible to an appeal. Vesting
of
ownership occurs forcibly and by operation of law and not by a
decision that is open to appellate scrutiny. Put simply,
Arun
had no review or appellate remedy to exhaust, unlike the owner in
Helderberg
.
[66]
Second,
it is by no means clear that Arun or a developer in its position
would be able to seek judicial review of the structure
plan only for
the reason that it makes provision for higher-order roads which must
be provided for in its subdivision application.
If the review
were to occur under PAJA,
[62]
as it must, the developer will have to confront a legion of
obstacles. It will have to find a decision to impugn. As
we have seen vesting occurs
ex
lege
.
It will have to seek condonation to overcome the 180-day time bar
given that structure plans have long life cycles.
It will have
to conjure up discrete PAJA review grounds connected to the
reasonableness and rationality of the structure plan,
its failure to
account for a relevant consideration, or a mistake of fact or law and
so forth.
[67]
Third, I can find no valid reason why a
developer could not when applying for subdivision, make provision in
its application for
land necessary for higher-order roads and simply
claim compensation once the application is approved. The
developer is entitled
to assume the posture: “I acknowledge the
broader public need for these higher-order roads provided for in the
structure
plan. I don’t intend to thwart this eminently
legitimate request from the local authority. But I do
nevertheless
require compensation for the excess land vested in the
local authority.”
[68]
Fourth,
the cases the majority in
Helderberg
relied
on to support his contention that a developer must first seek to
review the decision in question are not applicable here.
[63]
They involved the question of whether certain conduct should be
deemed wrongful for the purpose of the law of delict. This
wrongfulness enquiry entails a policy decision on whether it would be
reasonable to impose liability in the circumstances. One
recognised reason for refusing to extend the reach of the law of
delict to grant the plaintiff a claim is the availability of an
alternative remedy.
[64]
[69]
Fifth, a party that has a statutory right
to compensation is in a very different position to a plaintiff trying
to establish a novel
delictual claim. That party is entitled to
rely on this right, which is statutorily entrenched, regardless of
any alternative
remedies available. The right to compensation
is given by section 28 and does not flow from a delictual claim for
damages.
Section 28 contains no qualification with regard to
the right provided by the section or an obligation to exhaust
alternative remedies.
[70]
Sixth, the claim for compensation for
expropriation is premised on an acceptance of the validity of the
administrative action, namely
the approval of the development. A
review or appeal would be directed at the opposite, namely to have
the administrative
decision to approve the township development set
aside. I do not see why Arun should be obliged to follow a
process to set
aside an administrative decision, whose lawfulness it
has accepted and implemented.
[71]
Lastly,
I also think that a very different case presented itself in
Helderberg
because of the condition to which the developer agreed. This
provided for vesting of certain public roads without compensation.
It was this condition that the majority thought should be
appealed or reviewed.
[65]
Moreover, because of the condition the majority saw the developer’s
claim not as one for compensation but as one for
“constitutional
damages” arising from the local authority’s imposition of
the condition. The call for appeal
or review – and the
proposition that alternative remedies must be exhausted – was
expressly linked to the condition,
not to section 28. Whether
or not the majority in
Helderberg
was right, this case is far simpler. There is no condition
preventing Arun from claiming compensation that must be reviewed
and
set aside before it can. It is entitled to rely directly on its
right to compensation flowing from section 28.
The
basis for determining compensation
[72]
Arun contends that the compensation to
which it is entitled must be determined in accordance with the
provisions of the Expropriation
Act. Section 26(1) of the Act
provides:
“
Subject
to the provisions of section 5, the provisions of this Act shall not
derogate from any power conferred by any other law
to expropriate or
take any property or to take the right to use property temporarily,
but shall not preclude the expropriation
or the taking of property or
the taking of any such right being effected either under the said
provisions or under the said power:
Provided that if any such
power is exercised after the commencement of this Act, the
compensation owing in respect thereof
shall
mutatis
mutandis
be calculated, determined and
paid in accordance with the provisions of this Act.”
[73]
We have already held that under section 28
an
ex lege
transfer of ownership occurs and has the same effect as an
expropriation. The parties in this appeal were agreed,
correctly
so, that if section 28 commands an obligatory passing of
ownership to the local authority against compensation, section 26(1)
of
the Expropriation Act would be applicable. It follows that
the assessment of any compensation due falls to be reckoned and
paid
in accordance with the provisions of the Expropriation Act.
Order
[74]
The following order is made:
1.
The appeal succeeds.
2.
The order of the Supreme Court of Appeal is set aside.
3.
The order of the High Court is re-instated in the following amended
form:
“
(i)
Excess land that may be established or agreed upon by the parties has
vested in the City of Cape Town in terms of section 28
of the
Land Use Planning Ordinance 15 of 1985 (LUPO).
(ii)
Arun Property Development (Pty) Ltd is entitled to compensation in
respect of the excess land.
(iii)
The compensation must be calculated under the relevant provisions of
the Expropriation Act 63 of 1975.”
4.
The City of Cape Town must pay the appellants’ costs including
costs of two counsel in the High Court, Supreme Court of
Appeal and
in this Court.
For
the Appellant:
S
P Rosenberg SC and K Reynolds
instructed
by Du Plessis Hofmeyr
Malan
Attorneys.
For
the Respondent:
G
Budlender SC and D Borgstrӧm
instructed
by Cliffe Dekker Hofmeyr
Inc.
[1]
15
of 1985. LUPO was an Ordinance of the former Cape Province and
still applies in the Western Cape.
[2]
A
structure plan is a form of land use plan, along with subdivision
plans, site development plans and developmental frameworks.
[3]
If
new developments were not initiated by developers, the land
necessary to enable the structure plan would, in due course, be
expropriated
with
compensation
to the land owners.
[4]
117
of 1998.
[5]
Portions
57 and 61 of the farm Langeberg No. 311, Durbanville.
[6]
These
instruments include structure plans adopted in terms of section 4 of
LUPO and certain transport plans for the Cape metropolitan
area
which had been established in terms of the Urban Transport Act 78 of
1977. For example, the Provincial Executive Committee
had
approved a structure plan for the area north of the N1 in terms of
section 4(6) of LUPO on 13 June 1988. The structure
plan
provided for five categories of roads. Order 1 (freeway),
order 2 (primary arterial), order 3 (secondary arterial)
and order 4
(local arterial) were essentially for non-residential areas.
The fifth category was so-called access routes,
serving a
residential function.
[7]
The
approval of the application for the rezoning to subdivisional area
was informed by a traffic impact assessment. This
report
pointed out that in their planning for an upgrading and extension of
the road system in the vicinity of the property,
the road
authorities had taken account of the increased demand, including
traffic to and from this specific development.
The conclusion
was reached that the development would not have a significant
negative impact on the existing road system and
its approval was
recommended.
[8]
This
planned primary road system consisted of an order 1 road (trunk
roads and main roads) North/South, Kuilsriver highway (previously
known as Main Road 81 and currently known as Main Road 81 and the
R300 extension); an order 2 road (primary distributors) East/West,
De Villiers extension (also known as Golf Course Road) and an order
2 road (primary distributors) North/South, Brackenfell Boulevard
in
the East.
[9]
Section
25 provides:
“
(1)
Either the Administrator or, if authorised thereto by scheme
regulations, a council may grant or refuse an application for
the
subdivision of land.
(2)
In granting an application under subsection (1) either the
Administrator or the council concerned, as the case may be, shall
indicate relevant zonings in relation to the subdivision concerned
for the purpose of the application of section 22(2).”
[10]
This
is in contrast to
City
of Cape Town v Helderberg Park Development (Pty) Ltd
[2008]
ZASCA 79
;
2008 (6) SA 12
(SCA) (
Helderberg
)
at paras 4 and 7. See also
Arun
Property Development (Pty) Ltd v City of Cape Town
[2012] ZAWCHC 399
(High Court judgment) at para 30, distinguishing
Helderberg
from
the instant case on this basis.
[11]
Section
42(3)(a) provides:
“
Subject
to the provisions of the Removal of Restrictions Act, 1967 (Act 84
of 1967), either the Administrator or a council, as
the case may be,
may, in relation to a condition imposed under subsection (1), after
consideration of objections received in
consequence of an
advertisement in terms of subsection (4) and after consultation with
the owner of the land concerned and, in
the case of the
Administrator, with the local authority concerned . . . waive or
amend any condition”.
[12]
Condition
(j) reflected in the minutes of a meeting of the Urban Planning
Committee that took place on 17 September 1999.
[13]
On
23 April 2003, Blignault J upheld an exception to Arun’s
particulars of claim and granted leave to lodge amended particulars
of claim. See
Arun
Property Development (Edms) Bpk v Stad Kaapstad
2003
(6) SA 82
(C). On 15 November 2005, Erasmus J upheld
additional exceptions taken by the City against Arun’s amended
particulars
of claim. See
Arun
Property Development (Edms) Bpk v Stad Kaapstad
[2005]
ZAWCHC 86.
[14]
Rule
33(1) of the Uniform Rules of Court provides:
“
The
parties to any dispute may, after institution of proceedings, agree
upon a written statement of facts in the form of a special
case for
the adjudication of the court.”
[15]
63
of 1975 (Expropriation Act).
[16]
See
High Court judgment above n 10 at para 31.
[17]
See
Helderberg
above
n 10 at paras 15-6 and 39-48.
[18]
City
of Cape Town v Arun Property Development (Pty) Ltd
[2014] ZASCA 56
(Supreme Court of Appeal judgment).
[19]
The
relevant part of section 28 reads:
“
The
ownership of all public streets and public places . . . shall . . .
vest in the local authority . . . without compensation
. .
. if the provision of the said public streets and public places is
based on the normal need therefor arising from the said
subdivision
or is in accordance with a policy
determined by the Administrator from time to time
,
regard being had to such need.” (Emphasis added.)
[20]
Section
4(7) reads:
“
A
structure plan so approved may at any time, on application to or on
the direction of the Administrator, be amended or withdrawn,
with
the approval of the Administrator, by a local authority or joint
committee concerned or the director, in such manner as
may be
determined by the Administrator and subject to inhabitants of the
area of jurisdiction of any local authority concerned
and other
interested parties being afforded an opportunity of lodging
objections or making representations.”
[21]
Section
44(1)(a) provides:
“
An
applicant in respect of an application to a council in terms of this
Ordinance, and a person who has objected to the granting
of such
application in terms of this Ordinance, may appeal to the
Administrator, in such manner and within such period as may
be
prescribed by regulation, against the refusal or granting or
conditional granting of such application.”
[22]
Section
25 in relevant part provides:
“
(1)
No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of
property.
(2)
Property may be expropriated only in terms of law of general
application—
(a)
for a public purpose or in the public interest; and
(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.
(3)
The amount of the compensation and the time and manner of payment
must be just and equitable, reflecting an equitable balance
between
the public interest and the interests of those affected, having
regard to all relevant circumstances, including—
(a)
the current use of the property;
(b)
the history of the acquisition and use of the property;
(c)
the market value of the property;
(d)
the extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property; and
(e)
the purpose of the expropriation.”
[23]
See
African
Christian Democratic Party v Electoral Commission and Others
[2006] ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC) at paras
21, 25, 28 and 31;
Daniels
v Campbell NO and Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC);
2004 (7) BCLR 735
(CC) at
paras 22-3 and
Stopforth
v Minister of Justice and Others; Veenendaal v Minister of Justice
and Others
[1999] ZASCA 72
;
2000 (1) SA 113
(SCA) at para 21. See also
Stellenbosch
Farmers’ Winery Ltd v Distillers Corporation (SA) Ltd and
Another
1962
(1) SA 458
(A) at 476E-F.
[24]
Section
39(2) of the Constitution provides:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
See
Bato Star Fishing (Pty) Ltd v Minister
of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at
paras 72, 80 and 90-1 and
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In Re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 21.
[25]
Helderberg
above
n 10 at para 41.
[26]
Belinco
(Pty) Ltd v Bellville Municipality and Another
1970
(4) SA 589
(A) (
Belinco
)
at 597C;
Administrator
Cape v Associated Buildings Ltd
1957
(2) SA 317
(A) at 325B-F and
South
Peninsula Municipality and Another v Malherbe NO and Others
1999
(2) SA 966
(C) at 983A-B.
[27]
See
Helderberg
above
n 10 at paras 4-5, where Farlam JA relied on
Belinco
id
at 597D-G and
Administrator,
Cape Province v Ruyteplaats Estates (Pty) Ltd
1952
(1) SA 541
(A) at 550H-551F, where Greenberg JA said:
“
Before
examining the Ordinance [the Townships Ordinance 33 of 1934 –
the statutory predecessor to LUPO] in order to ascertain
whether,
under the powers conferred by it on the Administrator, he is
entitled to expropriate without the payment of compensation,
the
contention of Mr Diemont, on appellant’s behalf, that the
condition does not amount to such expropriation, must be
considered.
His first point was that the condition does not compulsorily
expropriate the respondent’s property inasmuch
as he is not
compelled to establish a township. Mr Duncan’s reply to
this was that expropriation without compensation,
which I shall
describe as confiscation, remains confiscation even if it is applied
only when the owner chooses to deal with his
property in a certain
manner. I am not satisfied that this wholly meets the point.
In the absence of any authority
that the principle of
interpretation applies to cases where it is within the owner’s
choice whether his property is confiscated
or not, and we were not
referred to any, it may be open to question whether the principle
applies to such cases. But without
deciding whether it does or
not, it appears to me that it can safely be said that part at any
rate, of the reasons why the Court
will not construe legislation as
empowering confiscation is its injustice and harshness and these are
undoubtedly greater when
the confiscation is inevitable than when it
only takes place where the owner chooses to deal with his property
in a particular
way. Consequently, assuming that the principle
applies to such cases, I think that the Court will be less reluctant
to
construe legislation as empowering confiscation in this limited
way than when the confiscation takes place whether the owner deals
with his property or not. Another circumstance which adds to
the point raised on behalf of the appellant is that, even
when such
a condition has already been imposed by the Administrator the
appellant can avoid the confiscation by abstaining from
availing
himself of the permission to establish the township. There is
nothing in the Ordinance which prevents him, notwithstanding
the
permission, from dealing with the ground in the same manner as he
was entitled to do before the permission was granted. Indeed
the grant of the permission can be treated by him as an offer by the
Administrator to grant permission, on the condition stipulated,
of
which he, the owner, can avail himself or not, according to his own
choice.”
[28]
Supreme
Court of Appeal judgment above n 18 at para 18.
[29]
Section
42(3).
[30]
Section
5 of LUPO provides:
“
(1)
The general purpose of a structure plan shall be to lay down
guidelines for the future spatial development of the area to
which
it relates (including urban renewal, urban design or the preparation
of development plans) in such a way as will most effectively
promote
the order of the area as well as the general welfare of the
community concerned.
(2)
A structure plan may authorise rezoning in accordance with such
structure plan by a council.
(3)
A structure plan shall not confer or take away any right in respect
of land.”
[31]
Section
5(3) of LUPO.
[32]
See
above n 22.
[33]
Helderberg
above
n 10 at para 39.
[34]
See,
for example, section 19 of the Ordinance which provides that an
owner may claim compensation from the local authority if
his land
sustains a fall in value consequent to the rezoning thereof which
took place contrary to his wishes. The owner
will also have a
claim for compensation if the fall in the value of his land is
sustained consequent to the rejection of a plan
for a building which
is in accordance with the use right of the land. The local
authority will pay the owner the amount
of compensation to which the
owner and the local authority agree.
[35]
My
translation: “17.3 at all relevant times, no policy was made
by the Administrator in terms of section 28 of the Ordinance
according to which land as required by the authorities for higher
order roads were to be ceded by the owner thereof without
compensation”.
[36]
CUSA
v Tao Ying Metal Industries and Others
[2008]
ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at para 68 and
Logbro
Properties CC v Bedderson NO and Others
[2002]
ZASCA 135
;
2003 (2) SA 460
(SCA) at para 23.
[37]
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
[2001] ZASCA 59
;
2001 (4) SA 501
(SCA) (
Akani
)
at para 7.
[38]
In
Minister
of Education v Harris
[2001]
ZACC 25
;
2001 (4) SA 1297
(CC);
2001 (11) BCLR 1157
(CC) at paras
9-10, this Court supported the approach to policy set out in
Akani
,
noting that the legislative scheme under consideration served
to
emphasise the distinction between the determination of guiding
policy, on the one hand, and its translation into legally binding
enactments, on the other.
[39]
MEC
for Education, Gauteng Province, and Others v Governing Body,
Rivonia Primary School and Others
[2013] ZACC 34
;
2013 (6) SA 582
(CC);
2013 (12) BCLR 1365
(CC) at
paras 54-6.
[40]
Minister
of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd and Others
[2013] ZACC 39
;
2014 (1) SA 521
(CC);
2014 (2) BCLR 182
(CC) at para
69 fn 86.
[41]
Booth
and Others NNO v Minister of Local Government, Environmental Affairs
and Development Planning and Another
[2013]
ZAWCHC 47
;
2013 (4) SA 519
(C) at para 29.
[42]
See,
for example, sections 4-6, 14(4)(a), 16(1), 18(1), 34(1)(b) and
36(1) of LUPO.
[43]
Section
4(8) of LUPO.
[44]
See
above n 22.
[45]
Van
der Walt
Constitutional
Property Law
3 ed (Juta & Co Ltd, Cape Town 2011) at 344 (emphasis added).
[46]
Helderberg
above
n 10 at paras 4-5.
[47]
Id
at paras 4-6.
[48]
Id
at para 4.
[49]
See
Van der Walt above n 45.
[50]
See
Helderberg
above n 10 at para 40, which refers to the definition in
Beckenstrater
v Sand River Irrigation Board
1964
(4) SA 510
(T) at 515A-C.
[51]
Reflect-All
1025 CC and Others v MEC for Public Transport, Roads and Works,
Gauteng Provincial Government and Another
[2009] ZACC 24
;
2009 (6) SA 391
(CC);
2010 (1) BCLR 61
(CC)
(
Reflect-All
).
[52]
Id
at paras 38-9.
[53]
8
of 2001.
[54]
Reflect-All
above
n 51 at paras 38-9.
[55]
Id
at para 64.
[56]
Id
at para 67.
[57]
Helderberg
above
n 10 at para 20.
[58]
Id
at para 7.
[59]
Id.
[60]
Id
at para 8.
[61]
See
above n 21.
[62]
Promotion
of Administrative Justice Act 3 of 2000 (PAJA).
[63]
Above
n 10 at para 8. These cases are
Steenkamp
NO v Provincial Tender Board, Eastern Cape
[2005]
ZASCA 120
;
2006 (3) SA 151
(SCA);
Premier,
Western Cape v Faircape Property Developers (Pty) Ltd
[2003]
ZASCA 42
;
2003 (6) SA 13
(SCA);
Olitzki
Property Holdings v State Tender Board
[2001]
ZASCA 51; 2001 (3) SA 1247 (SCA).
[64]
See
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
[2014] ZACC 28
at paras 62-6 and
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (S.A) (Pty) Ltd
[1984] ZASCA 132
;
1985 (1) SA 475
(A) at paras 500H-I.
[65]
Helderberg
above
n 10 at para 7.