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[2015] ZAWCHC 127
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Great Force Investments 124 (Pty) Limited v Surveyor-General, Cape Town and Others (4348/2013) [2015] ZAWCHC 127; [2015] 4 All SA 322 (WCC) (25 August 2015)
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DISIVION, CAPE TOWN
CASE NO: 4348/2013
DATE: 25 AUGUST 2015
REPORTABLE
In the matter between:
GREAT FORCE INVESTMENTS 124 (PTY)
LIMITED
....................................................
Applicant
And
THE SURVEYOR-GENERAL, CAPE
TOWN
.........................................................
First
Respondent
SUREGO INVESTMENTS 37 (PTY)
LIMITED
..................................................
Second
Respondent
THE REGISTRAR OF DEEDS, CAPE
TOWN
......................................................
Third
Respondent
LOOKOUT INVESTMENT CORPORATION
CC
..............................................
Fourth
Respondent
DEON WILLEM VAN
ZYL
........................................................................................
Fifth
Respondent
JUDGMENT DELIVERED ON 25 AUGUST 2015
GAMBLE, J:
INTRODUCTION
[1] The Second Respondent, Surego
Investments 37 (Pty) Limited (“Surego”), is the owner of
Westford Farm which is situated
in the picturesque Rheenendal Valley
to the west of the Garden Route town of Knysna. On its north
western boundary Westford
abuts a small holding of some 2,8ha
belonging to the Applicant, Great Force Investments 124 (Pty)
Limited, a company wholly owned
and controlled by Dr Andre Saaiman, a
cardiologist from Cape Town. I shall refer to the property, where
convenient, as “Dr
Saaiman’s property” , or with
reference to its official description in the Deeds Office , as “
Portion 10”.
[2] Dr Saaiman’s property is
utilised for lifestyle and recreational purposes while Westford is
largely uninhabited and undeveloped
farm land. That part of
Westford which abuts Dr Saaiman’s property, save for a small
part which is free of vegetation,
is densely covered with bush and
trees. This afforestation , together with the steep topography
of the terrain in that area
, renders that part of Westford
inaccessible from the southern side of the property. For the sake of
convenience I shall refer
to this part of Westford as “the open
area”.
[3] For at least 70 years the
successive owners of Westford have had access to the open area by way
of a registered right of way
granted in their favour. That
right of way has traversed a succession of properties as various acts
of subdivision have taken
place over the years.
[4] Dr Saaiman purchased the property
in October 2007 and transfer thereof was given to Great Force in
December of that year.
It is not in dispute that Dr Saaiman
viewed his property somewhat fleetingly prior to submitting an offer
to purchase it from Leather
Lane CC. The evidence shows that
such was the haste with which the offer was concluded, that it was
signed on the bonnet
of a motor car before the doctor drove off back
to Cape Town.
[5] The estate agent charged with the
sale of the property informed Dr Saaiman of the existence of a
“
servitude road across the property
” and evidently
mentioned to him that it was used only occasionally (about once a
month) by the farm manager of Westford to
access the open area
adjacent to a wattle forest on Westford. Other than that, Dr Saaiman
does not appear to have conducted any
enquiry as to the locality of
the servitude prior to the acquisition thereof
[6] When Great Force took transfer of
the land from Leather Lane in December 2007 the title deeds reflected
that ownership was:
“
Subject to the conditions
referred to in the two Deeds of Transfer No. T8204/1024 and number
3747/1925;
B …
C FURTHER SUBJECT to the servitude
referred to in the endorsement dated 16
th
November 1999 on
Certificate of Registered Title No. 91994 dated 16 November 1999
reading as follows:
‘
By Notarial Deed of Servitude
No. K1191/1999 dated 6/9/99 the within property is subject to a
servitude road, 6m wide, the western
boundary of which is represented
by the line C D, as shown on Diagram SG No. 1489/1999 in favour of
Portion 11 (a portion of Portion
8) of the farm no. 194, Knysna
Division, measuring 4,0003ha and held by Certificate of Registered
Title No. 91994/1999’.
As will more fully appear from the
said Notarial deed and diagram
”
.
[7] As a busy medical specialist, Dr
Saaiman says that he did not pay any particular attention to the
terms and conditions of the
title deed upon receipt thereof and
simply filed them away for safekeeping. It bears mention that the
servitude referred to in
the title deed above is not the road
affording access to the open area on Westford but is for the benefit
of other properties to
the north of Dr Saaiman’s to which I
shall refer later.
[8] After taking occupation of the
property Dr Saaiman says he became aware of the fact that a rough
jeep track adjacent to the
southern boundary of the property was used
by equestrians, and occasionally by someone who needed to access the
open area on Westford
by bakkie.
[9] About three years after taking
occupation of the property and in January 2011, Dr Saaiman received a
telephone call from Mr
Dean Walker, the legal adviser to the J P Smit
Familie Trust, claiming to represent Mr J P Smit, a director of
Surego. Mr
Walker informed Dr Saaiman that Mr Smit intended
establishing an infrastructure on Westford in the vicinity of the
open area with
a view to producing charcoal on a commercial basis
from the abundance of trees on the property. It was said that
Mr Smit
intended exercising the right of way purportedly granted in
favour of Westford over Dr Saaiman’s property for purposes of
removing such charcoal from Westford in large trucks. Dr
Saaiman was somewhat alarmed by this potential intrusion on his
peaceful enjoyment of the property and immediately consulted his
attorneys.
[10] After correspondence between Mr
Walker and Mr van Niekerk, the attorney for Great Force, in which
Westford’s entitlement
to exercise what was referred to as “
a
servitude right of way
” was asserted, Mr Walker issued an
ultimatum to Great Force on 26 January 2011 that unless an
undertaking was given by 16h00
that very day pursuant whereto Surego
was permitted to exercise its servitude as aforesaid, Surego would
approach the High Court
as a matter of urgency for appropriate
relief.
[11] No such undertaking was given by
Great Force in January 2011, or in September 2011 when a similar
demand was made on behalf
of Surego. Eventually, on 3 September
2012 Surego launched an application (in the long form) for
determination of the precise
locality and extent of its servitude and
for certain declaratory relief in relation thereto. That
application was launched
in this court’s Eastern Circuit Local
Division sitting at George, and, once opposed, was enrolled for
hearing on 1 March
2013. By that stage this application had
already been launched by Great Force in the Western Cape High Court,
Cape Town.
[12] The matter did not proceed in
George as planned on 1 March 2013 in light of the fact that the
parties had agreed that the litigation
in the Circuit Court should be
stayed pending the final determination of the present review
application which effectively seeks
to have the right of way
servitude in favour of Westford expunged from Great Force’s
title deeds.
[13] Subsequent to the launch of
Surego’s application, Dr Saaiman’s attorneys consulted a
local land surveyor, Mr Mark
de Bruyn, to verify the correct location
of Westford’s servitude. On 10 December 2012 Mr de Bruyn
furnished the attorneys
with a detailed report. I shall return
to certain aspects of this report in more detail later but suffice it
to say that
Mr de Bruyn held the view that the servitude had probably
been correctly recorded by the First Respondent (“the SG”)
in its records as traversing Dr Saaiman’s property. It
bears mention too, that the reason that Great Force’s
attorneys
approached Mr de Bruyn was because he had intimate knowledge of the
servitude having drawn certain diagrams relating
to an earlier
subdivision of the parent property from which Great Force’s
property subsequently was excised.
[14] Dr Saaiman was advised that there
were certain difficulties with Mr de Bruyn’s report and in
February 2013 Great Force’s
legal representatives were
instructed to obtain a second opinion. To this end they
approached Mr Andrew Beyers, a Cape Town
land surveyor, who was
regarded as an independent party in the circumstances.
[15] Mr Beyers advised Great Force’s
attorneys that the recordal by the SG , initially in 1999 and finally
in 2000, on the
relevant diagram of the location of the servitude in
favour of Westford was without a proper factual or legal basis, and
was wrongly
recorded as such. On the strength of this advice
the attorneys advised Great Force that the decision of the SG was
reviewable
under s6 of the Promotion of Administrative Justice Act,
No. 3 of 2000 (“the PAJA”).
THE REVIEW APPLICATION
[16] On 22 March 2013 Great Force
launched the present application for review under s6 of the PAJA.
Given that the application
was brought outside of the 180 day period
prescribed by the PAJA, an application was simultaneously brought in
terms of s5(1) of
that Act for the extension of the requisite
period.
[17] Notice of the application was
given to the SG, Surego, the Registrar of Deeds, Cape Town, as well
as the owners of two other
properties that abutted that of Great
Force to the north,
viz
. Lookout Investment Corporation CC
(“Lookout”), the Fourth Respondent, and Deon Willem van
Zyl (“Van Zyl”),
the Fifth Respondent. Only
Surego opposed the application, while the SG undertook to abide the
decision of the court.
[18] Surego raised various defences to
the application in the answering affidavit deposed to by Mr Smit.
These included the
following:
18.1 The servitude
sought to be set aside had been recorded in a title deed encompassing
a 1999 survey diagram,
a public document which constituted effective
and constructive notice to the world;
18.2 Accordingly, for
purposes of the PAJA, the decision had been taken at least 13 years
prior to the launching
of the application;
18.3 Great Force
could have accessed the relevant information from the title deeds at
the time of registration
of transfer to it – some 6 years
before the application was launched;
18.4 There was no
evidence to suggest that the servitude was not exercised by Surego’s
predecessors in title;
18.5 The servitude
was regularly exercised after Great Force had taken transfer of the
property;
18.6 Accordingly, it
was contended that Great Force had adopted a supine attitude for some
4-5 years and failed
to explain such a lengthy delay;
18.7 The replying
affidavit put up by Great Force in response to Surego’s answer
had been filed on 17 April
2015 when in fact it should have been
filed in February 2014. Surego accordingly opposed the May 2015
application by Great
Force to condone the late filing of this
affidavit some 14 months after it was due.
[19] In their Heads of Argument filed
in May 2015 on behalf of Great Force, Messrs Scholtz SC and Viviers
conceded that the SG’s
decision sought to be reviewed was made
before the commencement of the PAJA on 30 November 2000. Mr
Rourke SC, on behalf
of Surego, agreed with this submission.
[20] Counsel for Great Force argued,
firstly, that the source for review of the SG’s decision in
1999 was founded in s33(1)
of the Constitution of the Republic of
South Africa, 1996, and secondly, that the so-called “
delay
rule
” of the common law was applicable to the question of
whether the review application was brought within a reasonable
time.
[1]
Although the “
delay rule
” was not pertinently
traversed in the founding papers because of the erroneous assumption
that the PAJA applied, Mr Rourke
SC accepted the common law approach
adopted by Mr Scholtz SC in argument given that all facts relevant to
that determination were
properly before the court in any event.
The delay in the initiation of these proceedings will therefore be
approached on
the basis suggested by Mr Scholtz SC.
[21] The parties were not in dispute in
regard to the applicability of s33(1) of the Constitution, nor that
the SG’s decision
constituted administrative action. I
shall revert to the application of this approach later.
THE LAYOUT OF THE RELEVANT
PROPERTIES AND THE HISTORY OF THEIR SUBDIVISION
[22] Consideration of the dispute can
only be property understood by having regard to the current layout of
the various properties
concerned which is depicted in Annexure “A”
hereto.
22.1 Dr Saaiman’s
property is presently known as Portion 10 of Farm No. 194, Knysna.
22.2 Immediately to
the north of Portion 10 there are 2 properties: the Remainder
of Portion 8 of the Farm
194, Knysna, (“Portion 8”) which
is owned by van Zyl. Adjacent to Portion 8 and to its west lies
Portion 11 of
Farm 194 Knysna (“Portion 11”), which also
borders on the northern boundary of Portion 10. It is owned by
Lookout.
22.3 The property
immediately to the south of Portion 10 is Portion 4 of Farm 194
Knysna (“Portion 4”).
22.4 Westford (more
properly known as Portion 44 of Farm 191 Knysna) is a much larger
piece of land and lies to
the east of,
inter alia
, Portions 4
, 8 and 10.
22.5 The property to
the west of Portion 4 is the Remainder of Portion 12 of Farm 196
Knysna. It is colloquially
known as “
Mount Pleasant
”.
22.6 To the north of
Portion 12 of Farm 196 Knysna lies the Remainder of Portion 11 of
Farm 196 (and is not to
be confused with Portion 11 of Farm 194).
This property abuts both Portion 10 and Portion 11 of Farm 194.
[23] The original title deeds for farms
in this area go back to 1836 when certain tracts of State land were
transferred into private
ownership and were given the descriptive
names “
Mount Pleasant
”, “
Westford”
and “
Quarrywood
”. At that stage, and prior
to a number of subdivisions over the following 150 years, Portion 10
was located on Mount
Pleasant.
[24] In 1886 Mount Pleasant was
subdivided into 3 parts being Lots A, B and C respectively under SG
Diagram 684/1886. After
that subdivision, Portion 10 was
physically located on Lot B.
[25] In 1929 Lot B was subdivided in
terms of SG Diagram 1324/1929 leading to the creation of Lot No. 2 of
Lot B. Portion
10 was then physically located on Lot No. 2.
[26] In 1952 Lot No. 2 was itself
subdivided leading to the creation of Portion 4 by way of SG Diagram
10545/1952. Portion
10 was then physically located on Portion
4.
[27] Finally, in 1999 (pursuant to
Diagram 1489/1999 and Title Deed 91994/1999), Portion 10 was created
from the further subdivision
of Portion 4. It is this diagram which
is the subject of debate in this application
[28] With the first subdivision of
Mount Pleasant in 1886 the relevant SG Diagram (684/1886)
accompanying the title deeds reflects
that “
a right of way
between Lot C and Westford is reserved over Lot B
”.
That right of way is depicted as running between points “
R
”
and “
S
” on Lot B.
[29] The diagram accompanying the
subdivision of 1929 (SG No. 1324/1929) contains various annotations
including a line from points
“
a
” to “
b
”.
In terms of a contemporaneous note on that diagram “
ab
”
represented a right of way granted in favour of Westford. This
diagram was registered in 1930 and accompanied a notarial
deed in
which the existing servitude granted in 1886 (
RS
) was
cancelled and a fresh servitude created in the following terms in
favour of the owners and their successors-in-title of Lot
C
-
“
2…… a right of
way over
(a)
...
(b)
Lot B, adjoining Mount
Pleasant aforesaid, along the line marked
RS
on
the Diagram thereof
...”
[30] The 1930 notarial deed went on to
record that the right of way had been granted by the owners of Lot B
to afford the owners
of Lot C –
“
a means of access to the
remaining extent of the farm Westford ... with a common boundary
between the said Lot C and the now remaining
extent of Westford being
impassable by reason of the heavily wooded and hilly nature of the
land in its vicinity
”.
[31] In the 1952 subdivision pursuant
whereto Portion 4 came into existence, the relevant SG Diagram (No.
10545/1952) reflected
a “
farm road
” traversing
Portion 4. The “
farm road
” has no
trigonometric co-ordinates and the diagram does not refer to any
servitude as such. Great Force contends that the
distinction in
description between a registered right of way servitude and a “
farm
road
” is significant and that the description of the latter
on the diagram as such was only intended to reflect a “
topographical
feature
” on the property.
[32] In the founding affidavit Great
Force introduces the expert evidence of Mr Beyers. It is said
that Mr Beyers applied
his professional expertise to the various
documents available to him to plot and establish the correct position
of the servitude,
and came to the conclusion that the “
farm
road
” ran over Portion 4 while the registered servitude
(
RS
) in fact ran across the current Portion 5 and was located
more than 100m to the north of the “
farm road
”.
The logical consequence of this opinion, says Great Force, is that
the subsequent confirmation by the SG of a servitude
right of way
over Portion 10 in favour of Westford was without proper legal or
factual foundation. This is the gravamen of
its attack on
review.
[33] Surego takes issue with the
distinction sought to be drawn by Mr Beyers and contends that the
“
farm road
” depicted by the line “
ab
”
over Portion 4 was in fact the right of way known as “
RS
”
registered in favour of Westford both in 1886 and 1930.
THE ADDITION OF “SERVITUDE
NOTE 3”
[34] When Portion 10 was created in
1999 through the subdivision of Portion 4, the SG included the
following notes on Survey Diagram
1489/1999 which was annexed to the
relevant Deed of Transfer, 91994/1999:
“
Servitude notes
1.
The line CD represents the
western boundary of a servitude road 6,00 metres wide as shown.
2.
The line CF represents the
western boundary of a servitude road 6,00 metres wide over the
Remainder as shown.
3.
The line ab represents a ROW
servitude vide D/T 1924-182-8202
”.
Survey Diagram 1489/1999 is reproduced
below as Annexure “B”.
[35] The survey diagram in question was
prepared by Mr Mark de Bruyn to whom reference has already been
made. He initially
only recorded that Portion 10 was made up by
the figures A B C D on the diagram. As will be seen hereunder, and on
the instructions
of the S.G, he subsequently plotted the line “
ab
”
as running across the property from west to east, parallel to the
southern boundary (C-B) but slightly to the north thereof.
[36] On Annexure “B” it
will be observed that “Servitude Note 3” appears to have
been appended to the diagram
subsequent to its original compilation:
it is in a different type-face to the rest of the document and can be
seen to have
been inserted into an existing space between the figures
representing the various properties and “Servitude Note 2”.
For the sake of convenience I have enclosed the note in a black
rectangle.
[37] In a letter dated 10 December 2012
written to Great Force’s attorneys, Mr de Bruyn explained how,
inter alia
, Servitude Note 3 found its way on to Diagram No.
1489/1999.
“
I did the survey for Portion
10, which is shown on SG diagram no. 1489/1999 and no servitude was
initially added to the diagram
by me as the parent diagram did not
show any servitude. The parent diagram is Portion 4 and is
shown on SG diagram no. 10545/1952.
The diagram of Portion 10
initially showed two servitude notes and these were new servitudes
created to allow access to Portion
11 and Portion 9.
The diagram was approved with only
the two servitude notes and the first registration was indicated as
deed No. 91994/1999.
The copy of title deed No. 91994/1999 does
not have any reference to a servitude indicated by note 3 on diagram
1489/1999.
In about April 2000 a further
servitude, servitude note 3, was added to the diagram by the
Surveyor-General’s (S.G.) Office.
This was done after the
owner of the adjoining farm to the east, Portion 44 of the farm
Westford No. 191, requested that the servitude
shown in his title
deed be brought forward on to the diagram of Portion 10 of farm no.
194. He stated in a letter dated 2000-03-17
to the S.G. that
his title deed was No. T21509/1984 and that the details of the
servitude were contained in title deed No. T7542/1998
in the name of
Leather Lane CC.
The owner of Portion 44, Mr D B
Hallick, also referred to the SG diagrams of Portion 4 (No.
10545/1952) and Portion 10 (No. 1489/1999).
The S.G. subsequently made the
addition and informed Mr Hallick in a letter dated 14 April 2000,
that this had been done.
There is no indication in the S.G.’s
file that the owner of Portion 10 or anyone else were (sic) informed
of the addition.
”
[38] Mr de Bruyn went on to explain how
“Servitude Note 3” came to be added to the diagram.
The following narrative
is based both on his own personal enquiries
at the S.G.’s office, as well as his conclusions based on his
professional expertise.
“
The addition of note number 3
to the diagram was done by the Surveyor-General in order to bring
forward the line which was referred
to in Notarial Deed dated October
1930 and attached to Title Deed 8202/1924.
There are no letters “
RS
”
on the Deeds Office copy of the diagram, referred to in this Notarial
Deed, but the S.G. copy of the diagram does show these
letters.
It would
appear
that a brown line, which was shown on the
diagram as a topographical feature, was used as the basis for the
graphical representation
of the servitude and was lettered by the
S.G.’s office so that the servitude could be described.
However I could not
find any notes on the S.G. (sic) to that effect.
The line “ab” drawn on
to SG Diagram No. 1489/1999 follows a line shown on the parent
diagram (S.G. diagram no. 10545/1952)
that was indicated as ‘farm
road’. This was confirmed to me by the official who dealt
with this addition.
It appears that the S.G. felt that there
was sufficient evidence to show that the line “
RS
”
to which the notarial deed of servitude refers, co-incides with the
‘farm road’ as shown on SG diagram no. 10545/1952.
The S.G. furthermore took notice of the fact that a further
servitude, that extends from Portion 10 to the Divisional Road, lines
up with the farm road and thus also the line “ab” and
that this road exists today and concluded that the line “
RS
”
could fall in no other place.
No numerical data regarding
servitude note no. 3 is given on the S.G. diagram no. 1489/1999 and
no reference to a previous diagram
is given either. In other
words there is no numerical indication on the diagram such as angles,
distances to boundaries or
any width.
A plot of the line “
RS
”
as shown on S.G. diagram no. 684/1886 shows that this line falls off
Portion 4 and hence off Portion 10. Nevertheless
the line “
RS
”
was assumed by the S.G. to have
not
been accurately plotted
originally and that the physical evidence of the farm road (as shown
on diagram 10545/1952) indicated where
the servitude should lie.
When SG diagram no. 10545/1952 was
framed a servitude note was not added. It appears that the
reason for this is that the
parent diagram of Portion 4 (Portion 1 on
SG diagram no. A1324/1929) indicates a line but this line does not
fall onto the duly
deducted Portion 4. This line (also
co-incidently also (sic) lettered “ab”) falls on to a
duly deducted Portion
5. A note on the diagram regarding a
right of way ‘from a to b’ was at some time deleted,
apparently by the S.G.
The deletion may have occurred because
it was discovered when Portion 4 and 5 were surveyed off , that the
road did not in fact
fall on to Portion 5 but on to Portion 4.
It is however possible that there
was another road in 1930 when the servitude was created and the
servitude line was originally
correctly plotted.
[Emphasis added]
I would therefore say that the
description of the servitude is as defined in the notarial deed but
because its route is not clearly
defined by a survey it must be
regarded as being a ‘general servitude’. My
understanding of such a general servitude
is that its route is not
necessarily fixed, depending on the intention of the parties
involved. It is granted in general
terms.
The land over which the original
servitude ran has been subdivided. While it is possible that
the road has moved over from
its original position, either gradually
or in one step, the land over which the actual physical access fell
as the land was being
subdivided became the servient tenement.
As the existing road is used to access Portion 44 of the farm
Westford No. 191,
it would therefore be the position of the servitude
and the S.G. was correct in bringing the line onto diagram No.
1489/1999.
No additional rights have been created by the note
and reference must be made to the original notarial deed.
Unless there
is evidence to the contrary the position of the road on
the ground defines the line of the servitude
”.
[39] After discussing various other
aspects Mr de Bruyn offered the following general concluding remarks:
“
In summary I feel that the
original servitude was created to allow a right of way to the farm
Westford with reference to a line
“RS” as shown on the
S.G. diagram. There is no evidence that this line was
accurately surveyed and the lettering
appears to have been added,
after the initial diagram was framed, to the S.G. copy of the diagram
only, at the ends of a brown
line that appeared on the diagram.
Such lines (together with streams and vegetation etc.) were added to
older diagrams as
topographical features and were only approximately
depicted. This should have been known to the parties concerned.
As such
I feel that this servitude is what is termed a ‘general
servitude’ in that the position is not fixed but can move as
required.
With subsequent surveys this land
could not be brought forward as its graphical position either did not
correspond to its actual
position or it moved after 1886, when the
Farm No. 194 was surveyed. The S.G. however decided from
evidence available to
him that the ‘farm road’ as shown
on the diagram of Portion 4 was the line of the servitude and that
the physical position
of the road determined the position of the
servitude.
Even although the position of the
‘farm road’ as shown on the diagram of Portion 4 was most
likely reasonably accurately
plotted there is no reference to any
dimensions so its position is still only approximately depicted
”
.
REASONS FURNISHED BY THE S.G.
[40] As already stated, the S.G. has
indicated that he will abide the decision of the court in this
application. During May
2013 he lodged the Rule 53 record
relevant to the decision being attacked in this matter and filed a
short explanatory memorandum
dated 15 May 2013 to the following
effect:
40.1 The S.G. acted
in terms of
Section 6(c)(iii)
of the
Land Survey Act, No. 8 of 1997
read with
Regulation 73(2)
of the
Deeds Registries Act 47 of 1937
in
adding “Servitude Note 3” on the diagram in question.
40.2 The note was
added at the request of the erstwhile owners of Westford (Messrs DB &
ME Hallick) who said
that the right of way servitude registered under
the 1930 Notarial Deed was not shown on the diagram of Portion 10.
40.3 The S.G.
researched the request and found that the original depiction of the
servitude marked “
RS
” on the 1886 diagram “
was
not accurate owing to the early date of the survey
”.
40.4 A more recent
and accurate survey conducted in 1952 (for purposes of the 1953
diagram) showed a “
farm road
” and this was
presumed by the S.G. to be the same road as reflected as “
RS
”
on the 1886 diagram.
40.5 The S.G. adopted
this “
more accurate determination of the position of the
‘farm road’
” to fix the location of the
servitude claimed by the owner of Westford over Portion 10.
THE BASIS FOR THE ATTACK ON THE
S.G.’S DECISION TO ADD SERVITUDE NOTE 3
[41] As I have indicated, the parties
were ultimately
ad idem
that the proper approach in this
matter was the application of
s33(1)
read with item 23(2)(b) of
Schedule 6 to the Constitution of 1996. In
Bel Porto
,
Chaskalson CJ, for the majority, summarised the position thus:
“
[83] At the time of the
relevant event the right to just administrative action was regulated
by item 23(2)(b) of Schedule 6 to the
Constitution ...
[84] ... item 23(2)(b) seems to me
to encapsulate and in some respects extend the well-known common law
grounds of judicial review
as they have developed over the years in
England and South Africa – legality, procedural fairness and
rationality.
These provisions can be interpreted and applied
without ‘sterile, symptomatic and artificial classifications’,
and
without importing into the constitution a requirement that
decisions must not only be procedurally fair, but also substantially
fair. If that had been the purpose of item 23(2)(b), sub-para
(b) would not have confined itself to procedurally fair
administrative
action, but would have referred generally ‘to
fair administrative action’.
[85] For good reasons, judicial
review of administrative action has always distinguished between
procedural fairness and substantive
fairness. Whilst procedural
fairness and the audi principle is strictly upheld, substantive
fairness is treated differently.
...
[86] The unfairness of a decision in
itself has never been a ground for review. Something more is
required. The unfairness
has to be of such a degree that an
inference can be drawn from it that the person who made the decision
had erred in a respect
that would provide grounds for review.
That inference is not easily drawn.
[87] The role of the Courts has
always been to ensure that the administrative process is conducted
fairly and that decisions are
taken in accordance with the law and
consistently with the requirements of the controlling legislation.
If these requirements
are met, and if the decision is one that a
reasonable authority could make, Courts would not interfere with the
decision.
[88] I do not consider that item
23(2)(b) of Schedule 6 has changed this and introduced substantive
fairness into our law as a criterion
for judging whether
administrative action is valid or not. The setting of such a
standard would drag a Court into matters
which, according to the
separation of powers, should be dealt with at a political or
administrative level and not a judicial level.
This is of
particular importance in cases such as the present, in which the
issues relating to difficult and complex policies adopted
in order to
promote an equitable transformation of apartheid structures and a
reversal of policies that were grossly unequal.
[89] I do not understand the
Carephone
case
[1999 (3) SA 304
(LAC)] or any of the cases
that have followed it, to hold otherwise. What they require for
a decision to be justifiable,
is that it should be a rational
decision taken lawfully and directed to a proper purpose.
[90] If that is the case, and if the
decision is one which a reasonable authority could reach it would in
my view meet the requirements
of item 23(2)(b) ...
”.
[42] In
Bullock
the Court was
required to deal with a matter somewhat similar to the present:
an application to set aside the registration
of a servitude granted
by the Premier of a province over private land. On appeal,
Cloete JA overruled the decision of the
Court
a quo
and held
that the Premier’s activities indeed constituted administrative
action. As I have said, Mr Rourke SC accepted
that the S.G.’s
addition of “Servitude Note 3” in 1999 constituted
administrative action which was capable of
review and it is therefore
not necessary to deal with the point further.
[43] Mr Scholtz SC stressed that the
court should be astute not to approach the matter as a
reconsideration of the merits, thereby
conflating the important
distinction between appeal and review.
[2]
He urged the court to have regard to the manner in which the S.G.
arrived at his decision in 1999 rather than the substance
of the
decision itself.
[44] In its answering affidavit Surego
sought to introduce evidence extraneous to that which served before
the S.G. For example,
it relied on an aerial photograph taken
in 1936 from which it claimed that the locality of the servitude road
over the erstwhile
Lot 2 could clearly be seen. This road was
said to coincide with the locality of the “
farm road
”
recorded on diagram 1324/1929, and it was said that it is
inconceivable that the parties would have agreed to the registration
of a servitude right of way some other location on Lot No. 2.
[45] Further, Surego sought to rely on
the title deeds of certain of the surrounding properties to
demonstrate the location of other
right of way servitudes in the
vicinity and the possible convergence of these servitudes with the
right of way over Portion 10.
[46] I am of the view, given the manner
in which the issues have been defined, that it is impermissible in
these proceedings to
have regard to any facts or circumstances that
were not before the S.G. in 1999. There is no suggestion, for
example, that
the S.G. committed a procedural irregularity by failing
to have regard to material information that was not before him.
Accordingly,
all that a court may consider for the purposes of this
review are the documents which were before the S.G. and which are
contained
in the Rule 53 record delivered by him.
THE POWERS AND DUTIES OF THE S.G.
[47] Powers and duties of the S.G. are
set out in some detail in
s6
of the
Land Survey Act, No. 8 of 1997
,
the statute under which the S.G. purported to act in this case.
Of relevance here are only
s6(1)(c)(i)
and (iii) thereof:
“
6.
Powers and
duties of Surveyor-General
(1)
A surveyor-general shall
be in charge of the office in respect of which he or she has been
appointed and shall, subject to this
act –
(a)
...
(b)
...
(c)
on the diagram of any
piece of land –
(i)
define the geometrical
figure representing any portion of that land, the transfer of which
has been registered in a deeds registry,
and deduct the numerical
extent of that portion;
(ii)
...
(iii)
define the geometrical
figure and make the necessary endorsements in respect of any
servitude or lease over or on that land which
has been surveyed in
terms of this Act and registered in a deeds registry
”
.
[48] The S.G. derives the powers and
duties in regard to a survey diagram (as described in s1 of the
Survey Act) from s6(1)(c)(i)
and (iii). These sections must be
read with s6(1)(d) which entitles the S.G. to:
“
(d) cancel or amend in
accordance with the provisions of any law any general plan or
diagram
”.
And, in terms of s36, the S.G. may
“
correct any error in the
numerical data, figure or wording of a diagram registered in a deeds
registry
”.
THE REVIEWABILITY OF THE S.G.’S
DECISION
[49] Counsel for Great Force argued
that the S.G. was only empowered by the statute to correct an error
in the “
numerical data, figure or wording
”
contained in the 1999 diagram. In purporting to exercise this
function the S.G. says in the memorandum of 15 May 2013
that he acted
in terms of “
Sect 6(c)(iii)
” – presumably an
intended reference to s6(1)(c)(iii) – and “
Regulation
73(2) of the Deeds Registrars
[
sic
]
Act 47/1937 by
adding a note on the diagram of portion 10
...”.
[50] It is not clear to me that the
S.G. was in fact empowered by the said statute and the regulations to
effect the annotation
which was inserted as “Servitude Note
3”. It is conceivably arguable that such action does not
constitute the
“
correction
” of “
an error
”
as defined. However, the question as to whether the S.G. acted
ultra vires
was not raised in either the papers or in argument
by Great Force and I shall accordingly assume that the S.G. was in
fact so empowered.
[51] Mr Scholtz SC confined the
argument regarding reviewability of the S.G.’s decision to a
fairly narrow focus. It
was said that the decision was arrived
at on the basis of incorrect facts and unfounded assumption on the
part of the S.G.
[52] It was argued firstly that the
S.G.’s assumption that the farm road on the 1952 diagram was in
fact the servitude (
RS
) on the 1886 diagram, was not based on
any facts before the S.G., and, in fact, flew in the face of the 1929
diagram on which the
servitude was pertinently recorded as being
located at points “
a-b
” – at that stage
clearly traversing the erstwhile Portion 5. Given that Portion
10 arose out of the subdivision
of Portion 4 it should have been
obvious to the S.G., had he properly considered the relevant
diagrams, that the servitude granted
in favour of Westford could
never have been located across Portion 10.
[53] Then, it was argued that the S.G.
erred in assuming that a “
farm road
” and a right
of way of servitude were synonymous with each other, in circumstances
where he offered no explanation for making
this assumption. In
the answering papers Surego put up an affidavit by Mr Johan Meiring,
a land surveyor in private practice
for more than 28 years, who
tendered his views as an expert. Mr Meiring suggested that on
older SG diagrams the use of expressions
such as “
road
”
or “
farm road
” generally indicated the existence
of a servitude. This historical practice was therefore put up
by Surego as an explanation
for the S.G.’s conflation of the
two terms.
[54] While it may be that the two
phrases had come to be used synonymously in past practises, the point
is of no consequence in
this matter since the S.G. did not proffer
this as an explanation for his decision.
[55] The high water mark of the S.G.’s
explanation here is that he had reason to doubt the accuracy of the
“
RS
” servitude on the 1886 diagram purely because
that diagram “
was not accurate owing to the early date of
the survey
”.
[56] That assumption by the S.G. is a
startling one to say the least. The surveying of land must by
its very nature be a precise
practice conducted in the public
interest. Accurate surveys of that which forms one of the
corner stones of modern economic
growth,
viz
. the ownership of
land, are a prerequisite for the establishment and recordal of the
positions of boundaries between different
lots of land and, further,
the recordal of individual rights in relation thereto.
[3]
To that end a detailed and carefully managed system of land
registration exists in our country which system serves as a source
of
information to interested parties, and the public in general, of who
has ownership of which rights in land. To talk of
a perceived
lack of accuracy in such circumstances seems to me to be anathema to
the very practice and purpose of land surveying
and the associated
registration of rights in regard to land. What the S.G. appears
to be saying in this case is that a more
recent survey will
necessarily be preferred over an older survey because old survey
diagrams were not always performed with the
desired degree of
accuracy. An argument such as that would, in my view, seriously
undermine and compromise the integrity
of the entire system of land
registration in our country.
[57] But there is a more fundamental
concern in this case. If regard be had to the 1952 diagram, it
will be seen that the
“
farm road
” (
a-b
) is
not located with reference to any fixed geometric or trigonometric
points or coordinates, and in such circumstances is manifestly
no
more accurate than the 1886 diagram which also lacks such points and
coordinates. It bears mention, however, that both
diagrams are
drawn according to scale and the position of “
a-b
”
and “
RS
” on the respective diagrams can be
accurately measured according to that scale.
[58] In the circumstances I agree with
Great Force that the S.G.’s decision to amend the 1999 diagram
is based on incorrect
facts and unfounded assumptions. In terms
of
Pepkor
[4]
such material mistake of fact affords an affected party ground for
review of an administrative decision.
[59] There is in my view, in any event,
a more general basis to consider the reviewability of the S.G.’s
decision. The
bedrock of the exercise of public power in our
law in the constitutional era is the principle of legality, and the
requirement
that the exercise of such power must be rational.
[5]
The approach was summarised by Chaskalson P in
Pharmaceuticals
at 708:
“
[85] It is a requirement of
the rule of law that the exercise of public power by the Executive
and other functionaries should not
be arbitrary. Decisions must
be rationally related to the purpose for which the power was given,
otherwise they are in effect
arbitrary and inconsistent with this
requirement. It follows that in order to pass constitutional
scrutiny the exercise of
public power by the Executive and other
functionaries must, at least, comply with this requirement. If
it does not, it falls
short of the standards demanded by our
Constitution for such action.
[86] The question whether a decision
is rationally related to the purpose for which the power was given
calls for an objective enquiry.
Otherwise a decision that,
viewed objectively, is in fact irrational, might pass muster simply
because the person who took it mistakenly
and in good faith believed
it to be rational. Such a conclusion would place form above
substance and undermine an important
constitutional principle
”
.
[60] Having considered the matter
fully, I regret to say that the grounds offered by the S.G. for the
addition of “Servitude
Note 3” are lacking in both logic
and rationality. The decision is therefore reviewable on this
basis also.
APPLICATION FOR CONDONATION OF THE
LATE FILING OF THE REPLYING AFFIDAVIT
[61] Mr Rourke SC urged the court to
consider the delay of almost 14 months in the filing of the replying
affidavit as so gross
that it warranted the refusal of the
application for condonation for late filing without more. The
explanation put up by
Great Force’s attorney in this regard
demonstrates that its lead counsel was involved in other protracted
matters and that
the settling of the reply was accordingly delayed by
his non-availability. Given that the same counsel were involved
in the
matter throughout it is understandable (from a cost efficiency
point of view) that Great Force did not wish to change jockeys midway
through the race, as it were. One cannot lose sight either of
the fact that Surego did not seek to compel the filing of the
affidavit in terms of the Rules of Court at any stage. This
demonstrates that Surego was in no particular hurry to procure
the
set down of the matter and, the court is left with an overall
impression that the parties were litigating at a leisurely dawdle
which suited them, and that no particular prejudice was occasioned to
either party by either the late filing of the replying affidavit
or
the concomitant delay in the argument of the matter ultimately.
[62] On the other hand the reply
contains matter which is generally useful to the court in coming to a
just decision on the dispute
in that it seeks to answer a number of
issues introduced in the reply which were not properly traversed in
the founding papers.
In my view is vital that this dispute
between the parties is properly fleshed out given that it affects not
only the current owners
but all successors-in-title too. The finding
of reviewability of the S.G’s decision is obviously an
important factor given
that consideration of the prospects of success
are part and parcel of the exercise in considering whether or not to
grant condonation.
I am therefore inclined to grant the condonation
sought and consider that it would be in the interests of justice to
admit the
replying affidavit. The conduct of Great Force’s
legal representatives in delaying the filing of the reply is a factor
to
be considered in relation to costs.
THE APPROACH AT COMMON LAW IN
RELATION TO DELAY IN INITIATING REVIEW PROCEEDINGS
[63] The common law principle that
applies to the institution of review proceedings, in the absence of
any prescribed time period,
is that such proceedings should be
instituted within a reasonable time.
[6]
The proper approach to the question of undue delay in such
circumstances (an issue that was raised by Surego in the present
matter), as set out in the judgment of Miller JA in
Wolgroeiers
[7]
is as follows:
61.1 Firstly, a court
must decide whether the proceedings were brought within a reasonable
time;
61.2 secondly, if
not, it must decide whether the unreasonable delay ought to be
condoned, in which event it must
exercise a discretion taking into
account all relevant factors, including, but not limited to, any
prejudice to a respondent.
[64] The application of this two stage
approach adopted in
Wolgroeiers
was usefully summarised by
Griesel J in
Camps Bay Ratepayers
.
[8]
In my view the following aspects of that judgment are relevant in the
context of the present matter:
62.1 What amounts to
a reasonable time depends on the facts of each case – the
length of time is not necessarily
decisive;
62.2 The rationale
for this judicially evolved common law rule is twofold: firstly
an unreasonable delay
may cause prejudice to the other parties.
Secondly finality should be reached within a reasonable time in
judicial and administrative
proceedings;
62.3 Once delay is
raised as a defence in review proceedings, the court must embark on a
twofold enquiry which
was described by Griesel J as follows at
307D-F:
“
The first enquiry is whether
a reasonable time has elapsed. This is a factual enquiry, the
question being whether, in all
the circumstances, a period that has
elapsed was unreasonable. During this enquiry the court does
not, therefore, exercise
a discretion although the court does have to
express a value judgment (“waarde oordeel”) on the
reasonableness or otherwise
of the delay. Such value judgment
cannot be expressed
in vacuo,
however, but it
must depend on the particular circumstances of each case, including
the applicant’s explanation for the delay
”;
62.4 If the
court finds that the delay was reasonable the enquiry ends there.
If the court, however,
concludes that the delay was unreasonable,
then it is required to embark upon the second leg of the enquiry this
being whether
the unreasonable delay should be condoned. During
this stage of the enquiry, the court exercises a discretion which of
course
must be exercised judicially.
FACTS RELIED UPON BY GREAT FORCE IN
REGARD TO DELAY
[65] Great Force says that it only
became aware of the SG’s decision on 21 December 2012, upon
perusal of the report it had
received from Mr de Bruyn on that day.
This is not disputed by Surego. This report was obtained with a
view to opposing
the application that Surego had launched against
Great Force in the Circuit Court in George, claiming orders that, if
granted,
would have confirmed the existence of the servitude.
[66] In February 2013, during
consultations held by Great Force’s lawyers with Mr Beyers, it
was concluded that in order to
oppose the application in the Circuit
Court, the SG’s decision should first be set aside on review.
[67] Great Force submits that, taking
into account the intervening festive season at the end of 2012, and
having regard to the complexity
of the matter, it launched the
present application for review of the SG’s decision within a
reasonable time that it became
aware of it, and that the second leg
of the enquiry is therefore not applicable.
[68] An alternative argument is
advanced in the event of it being found that Great Force did have
knowledge of the existence of
a servitude and that its delay to
institute review proceedings was therefore unreasonable in the
circumstances.
[69] It is argued that Surego’s
reliance on the principle that public documents constitute effective
notice of the content
thereof to the public at large is
misconceived. In the context of considering the reasonableness
of a delay to institute
legal proceedings, Great Force argues that
actual knowledge of a cause of action and the subsequent inaction to
pursue it is the
only relevant consideration.
[70] The argument proceeds along the
basis that, having taken transfer of the property at the end of 2007,
Dr Saaiman’s behaviour
in not perusing the title deeds before
filing it away for safekeeping was not unreasonable. Similarly
it is said that there
was obviously no reason for him to subsequently
scrutinise the title deeds on the occasions when the property was
utilised for
leisure purposes. Great Force concedes that Dr
Saaiman was informed by the estate agent of the existence of a
servitude across
the property while viewing the property before
purchasing it and further that after taking occupation of the
property a jeep track
was seen leading across the property in the
direction of Westford.
[71] Even that knowledge, says Great
Force, was not sufficient to alert Dr Saaiman to the exact location
of the servitude.
After all Westford’s use of the
servitude in the past had been limited to a monthly trip for farming
purposes and, apart
from that, the only other people noticed using
the road were equestrians.
[72] It is said that Dr Saaiman became
aware of the fact that Westford intended using the road for the
conveyance of charcoal through
the use of heavy vehicles at the
beginning of 2011. Here , it is noteworthy that he was
immediately galvanised into action
and sought legal advice.
That process eventually led to Surego initiating legal proceedings in
the Circuit Court some 18
months later. Clearly, it is
suggested, Surego was not in a hurry to bring matters to finality.
And, given the nature of
the relief sought by Surego in the Circuit
Court , it would have been foolhardy for Great Force to commence its
own application
resulting in further unnecessary litigation.
[73] Mr Scholtz SC went on to refer the
court to the following passage from the judgment of Griesel J in
Camps Bay Ratepayers
at 307C in regard to considerations of
prejudice:
“
Prejudice may take many
forms. The official whose decision is sought to be reviewed may
have forgotten the relevant facts.
The recollection of the
relevant facts by those concerned may have faded – memory being
unfaithful at times. Others
may no longer be available.
Documentary proof may have been destroyed or may have disappeared.
Other parties may have
acted on the strength of the decision to their
prejudice
”
.
It was pointed out that there was no
suggestion in the papers, either by Surego or the SG, of prejudice of
the nature as referred
by Griesel J, nor that Surego has been
prejudiced in any other manner by the delay in launching the present
application.
[74] It was said that Great Force, on
the other hand, would suffer significant prejudice since use of the
servitude for the conveyance
of charcoal wiould not only be contrary
to the principle of
civiliter modo
, but would also destroy the
use and enjoyment of the property as a holiday home and significantly
impact on its value. In
the circumstances the court was asked
to exercise its discretion in favour of Great Force and to condone
the delay in launching
the present application.
SUREGO’S RESPONSE ON THE ISSUE
OF DELAY
[75] Mr Rourke SC anchored Surego’s
response to two decisions of the Supreme Court of Appeal –
Associated Institutions Pension Fund v Van Zyl
[9]
and
Beweging vir Christelike-Volkseie Onderwys v Minister of
Education
.
[10]
In
Associated Institutions
the court issued a stern warning to
parties to refrain from adopting a supine attitude stressing that
applicants are expected “
to take all reasonable steps
available to it to investigate the reviewability of administrative
decisions adversely affecting them
as soon as they are aware of the
decision
”.
[76] In Ch
ristelike-Volkseie
Onderwys
the court noted that the effect of a refusal to condone
compliance with the delay rule constituted the withholding of a
remedy
and that in such circumstances the merits need not be
addressed in determining the issue. The enquiry as to whether
condonation
should be granted or not has two stages. Firstly
has there been undue delay and secondly should the delay be condoned
or
refused? If the first enquiry is answered in the affirmative
then the delay will only be condoned if the explanation for it
is
acceptable.
[77] It was said that Dr Saaiman knew
from October 2007 of the existence of a track running across the
property which constituted
a “
servitude road
”.
Further he knew from the time that occupation of the property was
taken that that servitude road was utilised from
time to time by
Surego as well as other parties such as Eskom and equestrians.
In addition, Dr Saaiman is criticised for
adopting a supine attitude
and for not investigating the position regarding the servitude across
its property for some 5½
years.
[78] The argument is further predicated
on the fact that Great Force’s attorney was pertinently advised
of the existence of
the servitude in January 2011, of the existence
of the 1999 survey diagram which forms the subject matter of the
current dispute
and the fact that Surego relied thereon to reach its
property. Mr Rourke SC argued, persuasively in my view, that
the knowledge
of the attorney is imputed to Great Force on the
ordinary principles of agency. On that basis, it is claimed
that Great Force
had knowledge of the existence of the 1999 survey
diagram in January 2011 and delayed for more than 2 years before
launching these
proceedings in March 2013.
[79] Great Force is criticised for
having adopted a supine approach in light of the fact that the
relevant information was available
to its attorneys and that they
failed to take all reasonable steps to investigate the matter at that
stage.
[80] The argument concludes on the
basis that Dr Saaiman had actual knowledge of the existence of the
servitude from the date when
the property was purchased –
towards the end of 2007. But whatever the extent of that
knowledge may have been, Surego
says that from at least January 2011
Great Force could reasonably have been expected to acquire knowledge
of the 1999 diagram.
It is criticised for then failing to take
steps to immediately investigate the reviewability of the SG’s
decision.
And so Surego asks that the first question should be
answered in the affirmative and the second question in the negative.
UNDUE DELAY
?
[81] Great Force took transfer of the
property in December 2007 and launched the current proceedings more
than 5 years later –
in March 2013. On the face of it,
that is undoubtedly a long delay. The question however is
whether such delay was
undue, or to put it differently,
unreasonable. And, as I have already pointed out in relation to
Associated Institutions
that requires this court to consider
the relevant facts of the matter and to express a value judgment
which is not to be equated
with the judicial discretion which is
involved in considering the issue of condonation.
[82] It is not in issue that from the
outset Dr Saaiman was , in general terms, aware of the fact that a
right of way was exercised
over the property. He was told so ,
albeit perhaps in haste, by the estate agent when he viewed the
property. His knowledge
after taking occupation of the property seems
to have been that the use of the servitude was infrequent and not
particularly onerous
on the dominant tenement. To be sure,
there was nothing at that stage which would have caused Dr Saaiman to
examine the title
deed and to query whether the servitude had been
correctly located by the S.G. on the relevant diagram.
[83] But even had Dr Saaiman done so,
he would have discovered nothing in the title deed itself. Had he
carefully scrutinized the
surveyor’s diagram attached thereto
he may have discovered that the right of way had been added to the
diagram attached to
the title deeds in an unusual manner and place.
But, as a lay person, he may just as well have missed it. He most
certainly would
not have found any reference in the body of the title
deed itself to the servitude in favour of Westford, the only
reference being
to the servitudes referred to above, in favour of
Lookout and van Zyl. Most certainly, Dr Saaiman would not
have had
any reason at that stage to ask for advice as to whether the
servitude in favour of Westford had been correctly plotted on the
diagram in question. To have expected him to do so is, in my
mind, placing too high a duty on the ordinary property owner.
[84] It was only when the envisaged
future use of the right of way by Westford was alleged to be not in
accordance with the principle
of
civiliter modo
[11]
(and it must be stressed that I make no finding in this regard), that
the servitude was put under the microscope. And once
this had
occurred Great Force sought to deprive Surego of access over its
property to the open area. Thereafter, and despite two
abortive
threats of legal action by Westford in 2011, the latter eventually
(and for reasons unexplained) commenced proceedings
in the Circuit
Court in September 2012.
[85] It would appear that this
initiation of proceedings by Westford to enforce its alleged rights
was the catalyst which led to
Great Force seeking advice from the
very surveyor who had been responsible for the preparation of Diagram
No. 1489/1999, and who,
it must be stressed, had not initially
recorded the existence of the servitude over Portion 10 on such
diagram. Indeed, it
was only when Mr de Bruyn told Great
Force’s attorneys shortly before Christmas in 2012 that it was
the S.G.’s office
that had directed the addition of “Servitude
Note 3” to that diagram, that Dr Saaiman actually became aware
of the
fact that there was conduct on the part of a public authority
which could be regarded as administrative action.
[86] The chronology shows that soon
after the conclusion of the 2012 year-end holiday period, Great
Force’s lawyers moved
into action and sought a second opinion
from Mr Beyers. When Mr Beyers advised on 13 February 2013 that
it was his view that
the servitude had been incorrectly recorded as
traversing Portion 10, Great Force knew for the first time that there
was a basis
to approach the court for the review of unlawful
administrative action. The fact is that the application was
then launched
some 5 weeks later, pursuant to an arrangement between
the attorneys.
[87] In those circumstances I am unable
to hold that there was an unreasonable delay in launching these
proceedings. That
is a complete answer to Westford’s
complaint and condonation by the court does not enter into the
equation.
[88] However, if it be considered that
I am wrong on this score, I would in any event exercise the power to
condone the lateness
of such delay. In coming to that
conclusion, I am of the view that this is not a situation where the
party asking for an
indulgence has adopted a “
supine
attitude
” as Brandt JA termed it in
Associated
Institutions
. The facts of that case demonstrate that the
applicant for condonation ought to have been on his guard from a
relatively
early stage and initiated further enquiries much sooner
than he did.
[89] Secondly, the prejudice here to
Westford is far outweighed by the prejudice to Great Force (and any
of its successors-in-title)
which will have to endure the
consequences of an unlawful decision in perpetuity. Finally, in
view of the relief which I
intend granting, the gate will not be
permanently closed to Surego. Given that a proper enquiry by
the S.G. as to the existence
of a right of way servitude over Portion
10 may ultimately confirm Surego’s contentions, it is possible
that its position
will be reinstated in due course.
APPROPRIATE REMEDY
[90] Mr Scholtz SC asked that, in the
event of the court reviewing the S.G.’s decision, the matter be
remitted to him for
proper reconsideration. He argued with
reference to,
inter alia
, the
Hangklip Environmental
decision of Thring J,
[12]
that there were no exceptional circumstances present in this matter
warranting a determination of the locality of the servitude
by this
court. Importantly, on that point, I consider that it cannot be
said that the outcome of any such reconsideration
by the S.G. is a
foregone conclusion.
[91] Somewhat surprisingly, Mr Rourke
SC did not agree with this suggestion relying on
Gauteng Gambling
Board
.
[13]
He urged the court to finally determine the position of the right of
way. It seems to me that counsel for Surego overlooked
the
remarks of Heher JA in that case to the effect that “
remittal
is almost always the prudent and proper course
”. Nor
was Mr Rourke SC able to refer the court to any exceptional
circumstances which mitigated against remittal.
In my view,
remittal is in fact the prudent relief to grant in this case.
CONCLUSION
[92] In the circumstances the
application for review should succeed with costs, save for the costs
associated with the application
for condonation of the late filing of
the replying affidavit, which costs are to be borne by Great Force –
that much was
ultimately tendered by Mr Scholtz SC. As a sign
of the court’s displeasure at the laxity with which the
condonation
application was approached and the delay in the
initiation thereof, those costs will be granted on the punitive
scale. For
the assistance of the Taxing Master it is recorded
that no more than 1 hour was taken up during argument in relation to
the application
for condonation.
[93] To the extent that the notice of
motion did not originally include a prayer for remittal and
reconsideration by the First Respondent,
and in the absence of a
draft order handed up by counsel at the hearing, I have formulated
the relief in a fashion which to me
seems appropriate. In the
event that the parties wish to have the wording thereof varied, they
may do so on application to
this court within 10 days of delivery of
this judgment.
ORDER OF
COURT
ACCORDINGLY IT IS ORDERED THAT :
A. The decision of the First
Respondent, in terms of which Surveyor-General diagram No.
1489/1999 (a copy whereof is attached
hereto as Annexure “A”)
was amended by the addition of Servitude Note 3 thereto, to the
effect that the line
a-b
thereon represents a praedial
servitude described as “
ROW servitude
” over the
Applicant’s property, being Portion 10 (a portion of Portion 4)
of Farm no. 194, in favour of the Second
Respondent’s property,
being Portion 44 of the Farm Westford No. 191, Knysna, be set aside.
B. The matter is remitted back to the
First Respondent for reconsideration of the precise locality of the
right of way conferred
in favour of the said Portion 44 of the Farm
Westford No. 191, Knysna in terms of clause 2(b) of the Notarial Deed
of servitude
of 7 November 1930, and as reflected in SG diagram
1324/1929.
C. The Applicant and the Second
Respondent shall be entitled to approach this court within 10 days of
this judgment for reformulation
of the relief granted in para (b)
above in the event that either party is so minded.
D. The Applicant’s late filing of
the replying affidavit is condoned.
E. The Applicant shall bear the costs
of the application for condonation of the late filing of the replying
affidavit on the scale
as between attorney and client.
F. Save as aforesaid, the costs of the
application for review are to be borne by the Second Respondent.
GAMBLE, J
[1]
Bell Porto School Governing Body & Others v The Premier,
Western Cape & Others
,
[2002] ZACC 2
;
2002 (3) SA 265
(CC) at paras 83-5;
157.
Bullock N.O. & Others v Provincial
Government, North West Province & Another
,
2004 (5) SA 262
(SCA) at para 7.
[2]
Pepkor Retirement Fund & Another v Financial Services Board &
Another
2003 (6) SA 38
(SCA) at para [48].
[3]
LAWSA
Vol. 14 (First Reissue) p 133 para 119.
[4]
58-59 paras 47-8. See too
Bullock
at 270 para 16.
[5]
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council
,
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
Pharmaceutical
Manufacturers Association of SA: In re: Ex Parte:
President of the Republic of South Africa
,
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
Masethla v President of the Republic of South Africa
,
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
Albutt v Centre for the Study of
Violence and Reconciliation
,
2010 (3) SA 293
(CC).
[6]
Yuen v The Minister of Home Affairs & Another
,
1998 (1)
SA 958
(C) at 968G.
[7]
Wolgroeirs Afslaers Eiendoms Beperk v Munisipaliteit van
Kaapstad
,
1978 (1) SA 13
(A) at 39C-D.
[8]
Camps Bay Ratepayers & Residents Association & Others v
Minister of Planning, Culture & Administration, Western Cape
&
Others
,
2001 (4) SA 294
(C) at 306F-207G.
[9]
2005 (2) SA 302
(SCA).
[10]
[2012] 2 All SA 462
(SCA).
[11]
See generally in this regard CG van der Merwe,
Sakereg
, 2
nd
ed. at 466-7.
[12]
Hangklip Environmental Action Group v MEC For Environmental
Affairs & Others
,
2007 (6) SA 65
(C) at 84G-J.
[13]
Gauteng Gambling Board v Silverstar Development Ltd & Others
,
2005 (4) SA 67
(SCA).