Bamford v Minister of Community Development and State Auxiliary Services

• Jurisdiction: South Africa
• Judge: Watermeyer JP
• Judgment Date: 29 May 1981
• Citation: 1981 (3) SA 1054 (C)
• Court: Cape Provincial Division

Watermeyer JP:

This is an application brought as a matter of urgency for D an interim order interdicting the respondent from proceeding further with the erection of certain residences on the Groote Schuur Estate at Rondebosch. The order is sought pending the outcome of an action which the applicant has already instituted against the respondent in which he seeks an order declaring that the erection of the residences is illegal, E an order permanently interdicting the respondent from erecting the buildings and an order that respondent take all such steps as may be necessary to ensure that applicant's rights of access to the land upon which the residences are being built are not interfered with or reduced. The application is opposed by the respondent. Applicant is the Member of F Parliament for the Groote Schuur constituency and permanently resident in Rondebosch. Respondent is the Minister of Community Development and State Auxiliary Services.

In terms of ss 1 and 2 of the Rhodes' Will (Groote Schuur Devolution) Act G 9 of 1910, read with the Preamble of the Second Schedule thereto, the Government of the Republic of South Africa holds the Groote Schuur Estates subject to the conditions and directions contained inter alia in clause 13 of the will of the late Cecil John Rhodes and subject to and under reservation of, inter alia, the servitudes, rights, privileges and concessions affecting these estates and more particularly specified in the Second Schedule to the Act.

H Clause 13 of the will, which is recited in the Preamble to the Act, provides as follows:

"13. I give my property following, that is to say, my residence known as De Groote Schuur situate near Mowbray in the Cape Division in the said Colony together with all furniture, plate, and other articles contained therein at the time of my death, and all other land belonging to me situated under Table Mountain, including my property known as Mosterts, to my trustees hereinbefore named upon and subject to the conditions following, that is to say:

(1)

The said property (excepting any furniture or like articles which have become useless) shall not nor shall any portion thereof at any time be

Watermeyer JP

sold, let or otherwise alienated.

(2)

No buildings for suburban residences shall at any time be erected on the said property and any buildings which may be erected A thereon shall be used exclusively for public purposes and shall be in a style of architecture similar to or in harmony with my said residence.

(3)

The said residence and its gardens and grounds shall be retained for a residence for the Prime Minister for the time being of the said Federal Government of the States of South Africa to which I have referred in clause 6 hereof, my intention being to provide a suitable official residence for the First Minister in that B Government befitting the dignity of his position and until there shall be such a Federal Government may be used as a park for the people.

(4)

The grave of the late Jan Hendrik Hofmeyr upon the said property shall be protected and access be permitted hereto at all reasonable times by any member of the Hofmeyr family for the purpose of inspection or maintenance."

C Para 1 of the Second Schedule provides for:

"1.

The preservation of continued public access to the park on the Groote Schuur Estate (other than the gardens and grounds immediately surrounding the residence for the Prime Minister referred to in clause 13 of the will of the testator) subject to such regulations as the Union Government may from time to time make and publish."

D Applicant contends that as a member of the public he is entitled to access to the "park" on the Groote Schuur Estate (other than the gardens and grounds immediately surrounding the Groote Schuur residence) and that the Government, acting through the respondent, is presently erecting a E number of suburban residences in a portion of the park, that this has already interfered with and reduced, and will in future interfere with and reduce, applicant's rights to have access to the park. He also contends that the erection of the residences is contrary to the provisions of F clause 13 of the will and that they would have the effect of eroding and whittling away the rights of public access to the park.

The respondent opposes the application on the following grounds. He contends firstly that the residences are being built for the occupation of Deputy-Ministers of State, that the piece of land upon which they are being built is not portion of the park referred to in para 1 of the G Second Schedule, that, if it is portion of the park, it forms part of the "gardens and grounds immediately surrounding the residences for the Prime Minister", that the residences are not "suburban residences" within the meaning of clause 13 (2) of the will and, being intended for occupation solely by Deputy-Ministers, they are to be used "exclusively for public H purposes", and that they are to be in a style of architecture similar to or in harmony with the Groote Schuur residence. In other words, respondent contends that the erection of the houses is not contrary to clause 13 of the will nor is it in conflict with any rights which the applicant or any member of the public may have under s 2 of the Act read with para 1 of the Second Schedule.

Before dealing with the factual position it would be as well to make one or two general observations. In the first place there is nothing in the will itself which confers any rights of access upon any member of the public save for members of the Hofmeyr family (see clause 13 (4)).

Watermeyer JP

The only reference to the public is to be found in clause 13 (3) which provides...