Fink and Another v Bedfordview Town Council and Others

• Jurisdiction: South Africa
• Judge: Botha JA, Milne JA, F H Grosskopf JA, Nicholas AJA and Harms AJA
• Judgment Date: 22 November 1991
• Citation: 1992 (2) SA 1 (A)
• Hearing Date: 23 September 1991
• Court: Appellate Division

F H Grosskopf JA:

The late William Fink ('the deceased') died on 1 March 1969. The deceased had been the registered owner since 1923 of holding 99, Geldenhuis Estate Small Holdings ('holding 99'), situated in the C district of Germiston and measuring 9 morgen 326 square roods. During the deceased's lifetime the Administrator of Transvaal ('the fifth respondent') declared a public road over holding 99 with a view to the construction of the proposed Johannesburg Eastern By-pass ('the Eastern By-pass'). The fifth respondent paid the deceased an agreed sum as compensation for the land taken up and the improvements affected by the D proposed road.

After the deceased's death, and in terms of his will, holding 99 was transferred in undivided shares to his two sons, the appellants. The Eastern By-pass was constructed during the early 1970s and opened to traffic by about 1973 or 1974. The appellants remained the registered E owners of the whole of holding 99 until 4 October 1985, when the Registrar of Deeds ('the fourth respondent') registered portions 3, 4 and 5 of holding 99 in the name of the National Transport Commission ('the NTC'). The chairman of the NTC is cited as the second respondent. The transfer was executed by the fourth respondent without the authority F of the appellants, but pursuant to a certificate furnished to him under s 31(4)(a) of the Deeds Registries Act 47 of 1937. This certificate was to the effect that the Minister of Transport ('the third respondent') had 'designated' portions 3, 4 and 5 in terms of s 3(2)(a) of the National Roads Act 54 of 1971 ('the 1971 National Roads Act') as land whereof the ownership vested in the NTC in accordance with the G provisions of s 3(2)(b) of the 1971 National Roads Act. The NTC retained portion 3, being the land over which the road had been constructed, but transferred portions 4 and 5 forthwith to the Bedfordview Town Council ('the first respondent') as those portions were no longer required for the purpose of the road. H

The appellants, as applicants in the Court a quo, applied to the Witwatersrand Local Division for an order setting aside as null and void the designation of portions 4 and 5 by the third respondent, and for an order directing the fourth respondent to cancel the respective deeds of transfer in terms whereof portions 4 and 5 were transferred to the NTC and the first respondent. The application was dismissed by Hartzenberg I J, but he granted the appellants leave to appeal to this Court.

A number of legal issues were raised on appeal, but before dealing with them I shall set out some of the factual background.

As early as 19 October 1953 the deceased was informed by the office of the fifth respondent that it was investigating the possibility of establishing the Eastern By-pass. The deceased was advised that 'a J servitude for road

F H Grosskopf JA

A purposes' would be required over holding 99 and he was asked whether he had any objections thereto and what compensation he considered should be paid for the proposed servitude.

On 28 August 1957, and acting in terms of s 7(2)(b) of the Roads Ordinance 9 of 1933 (T), the fifth respondent by Administrator's Notice 237 of 1957 ('the 1957 proclamation') declared a public road on land B which fell within the municipality of Bedfordview where there had been no road previously in existence. On 27 February 1959 the Governor-General under Government Notice 31 of 1959, and acting in terms of s 4(1)(a) of the National Roads Act 42 of 1935 ('the 1935 National Roads Act'), declared the said public road to be a national road. This C was the proposed Eastern By-pass which was to traverse holding 99.

On 6 November 1961 the Director, Transvaal Roads Department ('the Roads Department'), informed the deceased by letter that it was intended to widen the road and that more of the deceased's land might be required for road-making purposes. The Roads Department addressed a further D letter dated 3 April 1963 to the deceased advising him that more land would indeed be taken up by the road and that certain improvements, details whereof were set forth in the letter, would be affected as a result of the proposed realignment of the Eastern By-pass. It was then estimated that an area of 4,258 morgen of the deceased's land ('the 4,258 morgen') would be taken up by the road. An engineer's sketch plan was annexed to the letter depicting the road and a traffic interchange E on holding 99. It was indicated on this plan how the deceased's property would be affected by the proposed road and traffic interchange. The deceased was requested in the letter to furnish the Roads Department with his claim for compensation in respect of the land to be taken up and the improvements to be affected by the road. F

On 19 June 1963, and in terms of ss 3, 5(1)(c) and 5(2)(b) of the Roads Ordinance 22 of 1957 (T) ('the 1957 Roads Ordinance'), the fifth respondent under Administrator's Notice 386 of 1963 ('the 1963 proclamation') declared a public main road over land which included holding 99. It is common cause that the 4,258 morgen which was mentioned G in the correspondence was in fact proclaimed for road purposes under the 1963 proclamation.

Further correspondence passed between the deceased and the Roads Department and the question of compensation was eventually settled between the parties. On 3 February 1965 the fifth respondent paid the H deceased an amount of R55 832 in full and final settlement of his claim for compensation in respect of the 4,258 morgen and the improvements affected by the road. The compensation also included an amount of R4 800 claimed by the deceased for loss of income on his dairy business. It is common cause that this compensation was paid wholly from the National Road Fund ('the Fund') established in terms of s 5 of the 1935 National I Roads Act.

On 18 March 1966 the State President, acting in terms of s 4(1)(a) of the 1935 National Roads Act, declared the road proclaimed as a public road under the 1963 proclamation to be a national road.

It was the firm intention of the fifth respondent up to 1967 to construct a traffic interchange on holding 99, and it was for that J reason that the

F H Grosskopf JA

A 4,258 morgen was required. There was a subsequent change in the planning of the Eastern By-pass and on 25 August 1967 the NTC decided that the traffic interchange should be constructed elsewhere along the road. In the result only part of the 4,258 morgen which had been proclaimed for the road was in fact required for that purpose. The actual construction B of the Eastern By-pass commenced during the early 1970s. This was after the death of the deceased and at a time when holding 99 had already been transferred to the two appellants. Only the middle section of the 4,258 morgen of land was eventually used for the road. At that stage holding 99 had not yet been subdivided and the 4,258 morgen could not be registered in the deeds registry as a separate entity. It was only in C 1983 that the Surveyor-General approved three diagrams depicting respectively portions 3, 4 and 5 as separate entities. These three portions are adjacent properties, and when regarded as a single unit they correspond substantially to the 4,258 morgen as far as locality, shape and size are concerned. It is common cause that there are slight D discrepancies in size and shape, but counsel agreed that we should not concern ourselves with those small differences. Only portion 3, which corresponds to the middle section of the 4,258 morgen, was eventually used for the purpose of road construction. Portions 4 and 5 were part of the land initially required in connection with the road, but in the end E no road construction took place on those two portions.

Despite the fact that compensation had been paid from the Fund on behalf of the NTC to the deceased for the 4,258 morgen which later comprised portions 3, 4 and 5, all of that land remained registered in the name of the appellants as part of the original holding 99. The Director-General, Transport, addressed a number of letters to the F appellants during the period November 1984 to March 1985 notifying them of the third respondent's intention to designate portions 3, 4 and 5 in terms of s 3(2)(a) of the 1971 National Roads Act as land to which the provisions of s 3(2)(b) would apply. The actual designation was signed by the third respondent on 14 March 1985, and 1 May 1985 was determined G as the date on which ownership of this land was to vest in the NTC. The appellants were duly notified of this designation on 28 March 1985. They were requested to forward their title deed to the department in order that the three portions could be registered in the name of the NTC, but the appellants failed to comply with this request. The fourth respondent consequently transferred portions 3, 4 and 5 to the NTC after a H certificate confirming the designation had been furnished to him in terms of s 31(4)(a) of the Deeds Registries Act, 1937.

It is the appellants' case that the third respondent's designation of portions 4 and 5 in terms of s 3(2)(a) of the 1971 National Roads Act should be set aside as invalid; that the consequent transfer of portions I 4 and 5, first to the NTC and then to the first respondent, should accordingly be cancelled; and that the appellants' deed of transfer should again reflect the appellants as the registered owners of portions 4 and 5. The appellants did not seek to attack the designation and transfer to the NTC of portion 3 in view of the fact that it was the portion over which the Eastern By-pass had been constructed. The J appellants offered, upon

F H Grosskopf JA

A cancellation of the deeds of transfer of portions 4 and 5 in the names of the NTC and the first respondent, to repay the second respondent the sum of R55 832 which had been paid as compensation to...