Adampol (Pty) Ltd v Administrator, Transvaal

• Jurisdiction: South Africa

Adampol (Pty) Ltd v Administrator, Transvaal
1989 (3) SA 800 (A)

1989 (3) SA p800

Citation	1989 (3) SA 800 (A)
Court	Appellate Division
Judge	Joubert JA, Hoexter JA, Botha JA, Vivier JA, Eksteen JA
Heard	February 21, 1989
Judgment	May 22, 1989

Flynote : Sleutelwoorde B

Expropriation — Compensation — Interest on — Section 95A(1) of Roads Ordinance 22 of 1957 (T) as inserted by s 11 of Ord 20 of 1985 (T) — Land expropriated in terms of notice dated 31 December 1980 — C Section 95A(1), providing for interest on compensation, came into operation on 25 September 1985 — Claim for compensation submitted on 28 May 1982 — Action instituted in Provincial Division claiming compensation in February 1983 and matter settled in April 1986 and D compensation paid in June 1986 — Provincial Division holding that owner of land not entitled to interest as such an interpretation of s 95A(1) would require retrospective operation which was not indicated by the language of the section — Court holding on appeal that meaning of s 95A(1) was too clear to admit of any implication that restricted it to notices of expropriation promulgated after the coming into operation of E s 95A(1) and the owner of land was accordingly entitled to interest on compensation from 1 March 1981 to the date of payment.

Headnote : Kopnota

The appellant was the owner of property which had been expropriated by the respondent in terms of the Roads Ordinance 22 of 1957 (T). F The notices in terms of which the respondent declared two public roads over the appellant's property and which constituted the expropriation were promulgated on 31 December 1980. In terms of s 92 of the ordinance the respondent became obliged to pay the appellant compensation for the land expropriated. The appellant's claim for compensation was submitted to the respondent on 28 May 1982 but as the parties were unable to agree on the amount the appellant instituted action in a Provincial Division in February 1983 claiming an amount of R350 000 plus interest. On 29 G April 1986 the parties entered a settlement whereby the respondent paid the appellant the sum of R200 000. The amount was paid on 10 June 1986. The parties did not, however, settle the question of whether interest was payable and this matter was decided in the Provincial Division, the Court holding that the appellant was not entitled to interest in terms of s 95A(1) as the construction of s 95A(1) proffered by the appellant involved retrospective operation and since the language of the section indicated neither expressly nor by implication that there should H be retrospective operation, the presumption against retrospectivity had not been displaced. (Section 95A had been inserted as a new section in the ordinance by s 11 of Ord 20 of 1985 and came into operation on 25 September 1985. This section made provision for the payment of interest by the respondent, there having been no provision for this prior to the coming into operation of s 95A. Section 95A(1) reads as follows: I 'Interest at the standard interest rate determined in terms of s 26(1) of the Exchequer and Audit Act 66 of 1975, shall be paid on any outstanding amount of the compensation payable in terms of s 92 with effect from a date 60 days from the promulgation of the notice contemplated in ss (1) of the latter section.') The appellant contended that on a proper construction of s 95A of the ordinance it was entitled to interest on the amount of R200 000 calculated from a date 60 days from the date of promulgation of the expropriation notice. The respondent disputed this and contended that it was liable for J interest only from 25 September 1985 (when the new s 95A came into operation).

1989 (3) SA p801

A Held (per Hoexter JA, Vivier JA and Eksteen JA concurring; Botha JA dissenting), that the meaning of s 95A(1) was too clear to admit of any implication that it was restricted to notices of expropriation promulgated after the coming into operation of s 95A(1): the legislature, probably mindful of the long delays in practice between the date of expropriation and the date of payment, had used words of unqualified generality, viz 'any outstanding amount', to help not only future expropriatees but also those to whom at the date of enactment B of the legislation, compensation had not yet been paid.

Held, per Joubert JA, concurring that the appeal should be allowed, that s 95A(1) should be construed to operate prospectively but that the section had elements of a retrospective nature and that it was permissible to draw part of the requisites for its operation from events antecedent to its coming into operation on 25 September 1985.

Held, accordingly, that the appeal had to be allowed and that C the appellant was entitled to interest from 1 March 1981 (60 days from the date of expropriation) to 10 June 1986 (the date of payment).

The decision in the Transvaal Provincial Division in Adampol (Pty) Ltd v Administrator, Transvaal reversed. D

Case Information

Appeal from a decision in the Transvaal Provincial Division (Van der Merwe J). The facts appear from the judgment of Joubert JA.

D J B Osborn SC (with him P J van Blerk) for the appellant referred to the following authorities: Minister of Railways and Harbours of the Union of South Africa v Simmer and Jack Proprietary Mines Ltd 1918 AC 591 at 603; Oosthuizen v SAR & H 1928 WLD 52 at 62; Joubert (ed) The Law of South Africa vol 10 para 23 at 16 - 17; Venter v R 1907 TS 910 at E 913; Community Development Board v Mahomed and Others NNO 1987 (2) SA 899 (A) at 909F - H; Union Government v Mack 1917 AD 731 at 739; R v Hugo 1926 AD 258 at 271; S v Zigqolo and Others 1980 (1) SA 49 (A) at 58A; SAR & H v Smith's Coasters 1931 AD 113 at 117; Hleka v Johannesburg F City Council 1949 (1) SA 842 (A) at 852 - 3; Suid-Afrikaanse Naturelletrust v Kitchener en Andere 1964 (3) SA 417 (A) at 423E - F; Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A) at 298B - E; Du Plessis v Raubenheimer NO 1917 OPD 104 at 111; Van Wyk v Rondalia 1967 (1) SA 373 (T) at 376C - F; R v Inhabitants of St Mary's White Chapel (1848) 12 QBD 120 at 127 (116 ER 811); Master Ladies' G Tailors Organisation v Minister of Labour [1950] 2 All ER 525 at 527; R v Grainger 1958 (2) SA 443 (A) at 446A - C; Parow Municipality v Joyce & McGregor Ltd 1974 (1) SA 161 (C) at 164G - 165A; Craies on Statute Law 7th ed at 387; West v Gwynne [1911] 2 Ch 1 at 11; Shewan Tomes & Co Ltd v Commissioner of Customs and Excise 1955 (4) SA 305 (A) at 311A - H 312A; Tomsons Truck & Car Co (Pty) Ltd v Odendaal and Another 1956 (1) SA 794 (O) at 796H - 797G; Ex parte Christodolides 1959 (3) SA 838 (T) at 841A - B.

G L Grobler for the respondent referred to the following authorities:

Apex Mines Ltd v Administrator, Transvaal 1988 (3) SA 1 (A) at 171; Apex Mines Ltd v Administrator, Transvaal 1986 (4) SA 581 (T) at 603 - 4; Union Government v Jackson and Others 1956 (2) SA 398 (A) at 410, I 416H and 437 - 41; Klipriviersoog Properties v Gemeenskapsontwikkelingsraad 1984 (3) SA 768 (T) at 772E; Katzenellenbogen Ltd v Mullin 1977 (4) SA 855 (A) at 884A - D; Community Development Board v Mahomed 1987 (2) SA 899 (A) at 918D - E and 918F - I; Meuman and Heyneke (Pty) Ltd v Joint Municipal Pension Fund 1978 (4) SA 652 (W) at 655F - G; Van Rensburg and Another v Van J Rensburg 1962 (3) SA 646 (O) at 648H; Cape Town Municipality v

1989 (3) SA p802

F Robb & Co Ltd 1966 (4) SA 345 (C) at 350E - 351H; Parow Municipality v Joyce & McGregor (Pty) Ltd 1974 (1) SA 161 (C) at 164H - 165A; Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A) at 297I; Administrator, Transvaal v Kildrummy Holdings 1983 (4) SA 960 (T) at 969D - F; Ex parte Christodolides 1959 (3) SA 838 (T); Euromarine B International of Mauren v The Ship Berg 1986 (2) SA 700 (A) at 709; Steyn Uitleg van Wette 5th ed at 82 et seq ; Joubert (ed) The Law of South Africa vol 10 sv 'Expropriation' para 56 at 58; Craies on Statute Law 7th ed at 387. A

Cur adv vult.

C Postea (May 2).

Judgment

Joubert JA:

This is an appeal against a judgment of Van der Merwe J in the Transvaal Provincial Division on a special case in which he decided a point of law in favour of the respondent ('the Administrator'), D viz that the appellant ('Adampol') was not entitled to payment of interest in terms of s 95A of the Roads Ordinance 22 of 1957 (T) ('the ordinance') prior to 25 September 1985. The appeal is brought with leave of the Court a quo.

The undisputed facts material to the present appeal are briefly as follows. Adampol was at all relevant times the registered owner of a certain immovable property situate in Randburg. Acting in pursuance E of the powers conferred on him by s 5(1)(b) of the ordinance the Administrator on 31 December 1980 duly promulgated in the Provincial Gazette two notices (Nos 2068 and 2069) in which he declared two public roads, one being a throughway and the other being a district road, to F exist over a portion of Adampol's property. For the sake of convenience I shall hereinafter refer to these promulgated notices as the notices of expropriation. I shall likewise refer to 31 December 1980 as the date of expropriation. By virtue of the provisions of s 92 of the ordinance the Administrator became obliged to pay Adampol compensation in respect of the land encroached upon by the establishment of the two public roads. On 28 May 1982 Adampol submitted its claim for compensation to G the Administrator. They were unable to agree mutually on the amount of compensation. During February 1983 Adampol instituted in the Transvaal Provincial Division an action against the Administrator in which it claimed the determination by the Court of the compensation in an amount H of not less than R350 000 with interest at the rate of 11 % and costs. On 29 April 1986 the...