African Farms and Townships Ltd v Cape Town Municipality

• Jurisdiction: South Africa
• Judge: Steyn CJ, Beyers JA, Ogilvie Thompson JA, Holmes JA and Williamson JA
• Judgment Date: 22 March 1963
• Citation: 1963 (2) SA 555 (A)
• Hearing Date: 04 March 1963
• Court: Appellate Division

Steyn, C.J.:

By a notice dated 16th August, 1960, the Council of the C respondent expropriated a property described as the Carlton Hotel, Riebeeck Street, Cape Town, of which the appellant was the owner. The expropriation took place under sec. 129 of Cape Ordinance, 19 of 1951, as amended, which empowers the Council to expropriate land or rights in respect thereof for all municipal purposes, the latter being defined to include

'the purposes of town-planning or of a town-planning scheme, whether D such scheme is in the course of preparation, awaiting approval or in operation, or any purpose in connection therewith'.

On enquiry the appellant was informed by the respondent that the property had been expropriated

'for the widening of Riebeeck Street and for the implementation of the 1947 Foreshore Plan'.

E By a notice of motion dated 3rd November, 1960, the appellant applied for an order declaring the notice of expropriation invalid. From the accompanying affidavit of a director of the appellant, it appears that the validity of the notice was being attacked only in regard to that portion of the property which had not been expropriated for the purpose F of widening the street. With reference to that portion, the affidavit states:

'The balance of the land is not required for road widening purposes at all, and it is being expropriated because it is respondent's intention to add this portion of land to other adjoining land already owned by it, so as to form a consolidated block of land which respondent intends to sell, in lots or as a whole, to private purchasers, who will then be free to erect buildings thereon for use for ordinary commercial G purposes. This is the sole purpose which the respondent has for expropriating this remaining portion of the applicant's property, and this is all that the respondent meant in its letter of 15th September, 1960, when it stated that the land was being expropriated 'for the implementation of the 1947 Foreshore Plan'. This was in fact intimated to applicant by the respondent in the course of earlier dealings between them.'

In his answering affidavit, the respondent's Town Clerk alleged inter alia:

H 'That the rest of applicant's land not wanted for the widening of Riebeeck Street is required for consolidation into a rectangular block of land in order to implement the Council's town planning scheme as provided by the 1947 Foreshore Plan.'

The reply to this allegation was an unqualified admission. The affidavit goes on to explain that this remaining portion of the appellant's land

'is required by the Council for the purpose of consolidating it with the land it already owns so as to form a rectangular block of land which will then be sold as a whole or in lots to private purchasers'.

When the matter was heard, the submission on behalf of the appellant,

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according to the judgment of WATERMEYER, J., was that the land was not required fr the purposes of town-planning or of a town-planning scheme or a purpose in connection therewith, because the land had been expropriated for the purpose of selling it to someone else or for the A purpose of making other land belonging to the respondent more readily saleable. The learned Judge dealt with this submission in the following way:

'In my opinion this is an oversimplification of the facts. As I read the affidavits the town-planning scheme requires that there shall be a rectangular block of land, K I, which is to be built upon by one person or by several persons. The building which at present stands upon applicant's land will in any event have to be demolished, and the B triangular portion which will remain after deducting the portion required for the widening of Riebeeck Street is required for consolidation into a rectangular block in order to implement the town-planning scheme. That this is the reason why the land is required is admitted by the applicant. Respondent's real purpose in expropriating the land is to implement the town-planning scheme, and the fact that respondent will resell the land later does not detract from this purpose. It is true that respondent could achieve the same result by purchasing the applicant's land, if the applicant were willing to sell, C but that fact would not preclude the respondent from acting under sec. 129 if the section is applicable and authorises the respondent to expropriate it. Whether it is applicable depends upon the purpose for which respondent requires the land, and as I read the affidavits that purpose is to give effect to the town-planning scheme. That being so the respondent requires the land for the purposes of a town-planning scheme and in my opinion sub-sec. (1) of sec. 129, read with sub-sec. (2) (a) thereof entitles the respondent to expropriate it.'

D The application was accordingly dismissed.

On 26th July, 1961, the appellant served upon the respondent a summons claiming an order declaring this same notice of expropriation to be null and void

'in that whereas the defendant purported to expropriate the land inter alia on the ground that it required same for the implementation of the E 1947 Foreshore Plan (a legitimate municipal purpose) it did not in fact require the land for that stated purpose'.

The declaration advances the following contentions:

'(a)

In truth and in fact, however, and to the knowledge of the defendant, there was and is nothing whatever in the 1947 Foreshore Plan, for the implementation of which defendant requires the said balance of plaintiff's land.

(b)

In so far as the said balance of plaintiff's land is concerned, defendant was accordingly not using its power of expropriation F for the purpose for which it professed to do so.

(c)

Moreover, in so far as this balance is concerned, there was and is no other legitimate purpose for which defendant is entitled to expropriate it.'

The respondent thereupon by notice of motion applied for an order striking out the claims in the summons and declaration, or alternatively, dismissing the summons and declaration, on the ground G that they were an abuse of the process of the Court. At the hearing of this application the matter proceeded upon the basis that the real question was whether or not the issue raised had already been decided as between the parties and was in consequence res judicata. BEYERS, J.P., decided that it was, and set aside the summons and declaration. An H appeal to the full Court was unsuccessful. The question argued before this Court is the same, i.e. whether a plea of res judicata is a conclusive answer to the summons and declaration.

I may add that on the papers before us, as will appear from the judgment of my Brother HOLMES, the appellant has, as far as I am able to judge, but a scant prospect, if any at all, of establishing the allegations made in the declaration, but in all the circumstances I prefer to assume for the purposes of this judgment that the subsequent

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proceedings are not on that account an abuse of the process of Court.

The parties are the same, and the appellant, in the action it has A instituted, seeks the same order as in the original proceedings, i.e. an order declaring the notice of expropriation invalid. What is disputed is that the appellant is now demanding the same thing on the same ground. (Cf. Bertram v Wood, 10 S.C. 177 at p. 180; Mitford's Executor v Ebden's Executors and Others, 1917 AD 682 at p. 686).

In regard to the requirement that the ground of the demand must be the same, the authorities refer to the causa petendi or origo petitionis. B According to Voet, 44.2.4, it is not the form of action which determines the sameness of the causa petendi, but the identity of the question which is again raised or set in motion. (Cf. Vinnius, Inst. 4.13.5). That was also the Roman law. (Dig. 44.2.3; 44.2.7 paras. 1 and C 4). Huber, Praelectiones 44.2.6, indicates that, if the merits of the action (meritum actionis) which is instituted, were not examined in previous proceedings, that may be an answer to the judicati exceptio, while Z. Huber, Observationes 35 at p. 128, refers in the same connection to the meritum casae. The rule appears to be that where a court has come to a decision on the merits of a question in issue, that D question, at any rate as a causa petendi of the same thing between the same parties, cannot be resuscitated in subsequent proceedings. Where, for instance, the causa or quaestio is ownership, the claimant, if...