Apex Mines Ltd v Administrator, Transvaal

• Jurisdiction: South Africa
• Judge: Corbett JA, Nestadt JA, Vivier JA, Nicholas AJA and Boshoff AJA
• Judgment Date: 30 March 1988
• Hearing Date: 29 February 1988
• Court: Appellate Division

Nicholas AJA:

This is an appeal, with leave, from a decision of Van Zyl J, sitting in the Transvaal Provincial Division, on questions of law raised in a special case stated under Rule 33 of the Rules of Court. The J facts are

Nicholas AJA

A fully set out in the judgment of the Court a quo, which has been reported (Apex Mines Ltd v Administrator, Transvaal 1986 (4) SA 581 (T)) and which will be referred to as 'the reported judgment'.

In the action in which the special case arose, the plaintiff was Apex Mines Ltd ('Apex') and the defendant was the Administrator of the Transvaal ('the Administrator').

B Apex has at all relevant times been engaged in coal mining inter alia on and under portions 1, 2 and 3 and the remaining extent of the farm Groenfontein in the district of Witbank. Apex became the full owner of portion 2 on 5 March 1941 and of the remaining extent on 19 June 1950. In 1922 it became the cessionary of a notarial mineral lease, dated 17 C September 1896, in respect of portion 1 and portion 3, and it became the full owner of portion 3 on 18 November 1975.

Section 5(1) of the Roads Ordinance 22 of 1957 (T) ('the ordinance') provided:

'5. (1) The Administrator may by notice in the Provincial Gazette -

(a)

declare any road to be a public road after investigation and report D by the board concerned;

(b)

declare that a public road shall run on land where no road previously existed or where a road previously existed but has been closed, and after investigation and report by the board may define the course of that road;

(c)

declare that a main road shall exist where an existing road is or E where no road was previously in existence;

(d)

close or deviate any public road after investigation and report by the board: Provided that a public road which has ceased to exist as a public road as a result of a notice, may be used by the public until actually closed by the Administrator by visible means;

(e)

act without such investigation or report in the event of the board F failing within three months after having been requested to do so, to investigate and report in terms of paras (a), (b), or (d)....'

During the period May 1960 to March 1980, the Administrator, in the exercise of his powers under this provision, proclaimed certain public roads which crossed the farm Groenfontein.

G The questions in the special case concern the compensation payable to Apex by reason of such proclamations.

The provisions of the ordinance relating to compensation were ss 92, 93, 94, and 95:

'92. If in the course of the opening, construction or maintenance of a public road or of a pont by the Administrator, direct damage is done to H an orchard, garden or plantation, or to crops, cultivated trees, cultivated land or land under irrigation (not being land which is merely capable of cultivation or irrigation but not so cultivated or under irrigation), or to any other improvement on land, the owner thereof is entitled to such compensation as is agreed upon by the parties. Failing such agreement the matter shall be determined by arbitration as provided I for in s 97.'

'93. When the Administrator has declared in terms of para (b) of ss (2) of s 5 that a public road shall exist on land falling within any of the areas referred to in paras (a) and (b) of the proviso to the definition of "public road" in s 1, where no road was previously in existence, or where a road was previously in existence but had been closed and has defined the course of such public road, the owner of the land in question is entitled, in addition to any compensation which may J be payable

Nicholas AJA

A under s 92, to compensation in respect of the land taken up by such public road, the amount of such compensation to be determined, in case of dispute, by arbitration as provided for in s 97.'

'94. When the Administrator has in terms of s 3 declared the width of a public road to be in excess of 120 Cape feet, the owner of the land in question is entitled, in addition to any compensation which may be B payable under s 92 or s 94, to compensation in respect of land taken up by such excess, the amount of such compensation to be determined, in case of dispute, by arbitration as provided for in s 97.'

(Section 3, which was referred to in s 94, provided that the width of the road reserve of public roads shall be 120 Cape feet in the case of main roads, C

'Provided that the Administrator may, by notice in the Provincial Gazette reduce, or, subject to the provisions of s 94, increase such width.')

'95. Notwithstanding anything to the contrary in this ordinance contained, the Administrator may in his discretion authorise by way of equitable relief, the payment of an amount determined by him, if, in any D case where no payment of compensation is claimable, he is of opinion that serious damage has been or will be caused by the exercise of any power under this ordinance.'

The ordinance was amended inter alia by sections of the Roads Amendment Ordinance 2 of 1970 (T), which came into operation on 26 March 1970. In terms of the relevant amendments,

(a) E The following proviso was substituted for the original proviso to s 3 of the ordinance:

'Provided that the Administrator may, by notice in the Provincial Gazette, reduce or increase such width';

(b) The following section was substituted for s 92 of the ordinance:

F '92 (1) Where the Administrator in terms of the provisions of s 3, 5 or any other provision of this ordinance, by notice in the Provincial Gazette, establishes, widens or permanently deviates a public road, he shall subject to the provisions of ss (2) and (3), pay to the owner, in respect of the land encroached upon by such establishment, widening or deviation, such compensation as may be mutually agreed upon or, failing G such agreement, as may be determined by arbitration in terms of s 97: Provided that the foregoing provisions of this subsection shall not apply to the extent that any such land was previously used as a road.

(2) The compensation payable in terms of ss (1) shall not exceed the amount which such land, including any improvements thereon, would have realised if sold on the date of promulgation of such notice in the open market by a willing seller to a willing buyer (hereinafter referred to as the market value).

H (3) Where a public road has been permanently deviated within the boundaries of the land on which such road previously existed, compensation shall only be paid insofar as the market value of the land encroached upon by such deviation exceeds the market value of the land previously encroached upon by such road';

and (c) s 93 (the subject-matter of which was compensation for land taken for roads in municipalities etc) and s 94 were repealed.

I The main effect of the amendments was that, in terms of the new s 92, compensation was payable in respect of all the land encroached upon, and not only in respect of the excess of 120 Cape feet as provided in the now repealed s 94.

(There have been other amendments, but as these do not affect the matters to be considered in this appeal, it is unnecessary to refer to J them.)

Nicholas AJA

A It was common cause that the Administrator has compensated Apex for the value of the surface encroached upon in respect of those portions of the farm of which Apex is the...