Barnett and Others v Minister of Land Affairs and Others

• Jurisdiction: South Africa
• Judge: Howie P, Brand JA, Jafta JA, Maya JA and Combrinck JA
• Judgment Date: 06 September 2007
• Citation: 2007 (6) SA 313 (SCA)
• Docket Number: 304/06
• Hearing Date: 20 August 2007
• Counsel: K J Kemp SC (with A C Camp) for the appellants M T K Moerane SC (with S V Notshe SC) for the respondents
• Court: Supreme Court of Appeal

Brand JA:

[1] The first three respondents are cabinet ministers representing three different State departments in the National government. The fourth respondent is the MEC for Economic Affairs, Environment and Tourism in the Province of the Eastern Cape. The 16 E appellants are the occupiers of sites and cottages on the Transkei Wild Coast in an area 13 km north of Port St Johns and situated in the magisterial district of Lusikisiki. I shall herein refer to the respondents collectively as 'the government' and to the appellants as they were cited in the Court a quo, ie 'the defendants'. F

[2] On the basis that the sites occupied by the defendants form part of State land, the government sought and obtained an eviction order against the defendants (by Miller J) in the Mthatha High Court. The order also directed the defendants to demolish and remove all structures built on the sites within four months from date G of the order, failing which the government was authorised to have the structures demolished and removed at the defendants' expense. The appeal against that judgment is with the leave of the Court a quo.

[3] The sites are situated in an area which, until 27 April 1994, formed part of the erstwhile Republic of Transkei. Since then, it H falls under the jurisdiction of the provincial government of the Eastern Cape. The cottages and other structures were erected by the defendants from about mid-1994. The government relied on two causes of action, in the alternative. Its first cause of action was based on the provisions of a decree promulgated by the President of the Transkei on 24 July 1992 described as Decree No 9 (Environmental I Conservation) of 1992 which came into operation on 1 January 1993 (the Decree). For its alternative cause of action the government relied on the common-law ground that the defendants were in unlawful possession - or occupation - of State land. J

Brand JA

[4] I shall soon return to the provisions of the Decree in more detail. Broadly stated, however, its import was to proclaim all State A land situated on the landward side of the entire Transkeian coast within a strip of one kilometre above the high-water mark, a coastal conservation area. Inside the conservation area, the Decree prohibited any development by anybody (including departments of State) save under authority of a permit issued by the Department of Agriculture and B Forestry. Relying on the provisions of the Decree as its main cause of action, the government contended that because the defendants had no permit to construct the cottages and other structures on the sites occupied by them, their activities constituted unauthorised development within the coastal conservation area, the consequences of which they were bound to remove. C

[5] The defences raised by the defendants to these causes of action were numerous and, at least some of them, rather difficult to understand. They led to a trial lasting for many days and a record covering nearly four thousand pages. In the course of time, some of these defences have wisely been jettisoned. Those persisted in will D best be understood against the background facts that follow. The defendants are mostly well-to-do farmers and businessmen. They all reside in the province of KwaZulu-Natal. Nonetheless, most of them had some association with the Transkei Wild Coast which they visited regularly on vacation for a number of years. Their settlement in the E area started about one month after the area again became part of South African soil, in April 1994. Their reason, so they said, was because prior to that they were not allowed to occupy land which formed part of the former Republic of Transkei. The timing of their settlement in this exquisitely beautiful, virtually pristine part of nature, happened to coincide, however, with a transition from one government to the other, F when administrative control in the area seems to have been, to say the least, in a state of flux.

[6] The procedure adopted by the defendants to obtain their occupancy was essentially the same. This is hardly surprising. Those who came later simply followed the precedent established by the success G of the earlier ones. Broadly stated, it happened like this: they first spoke to the local headman, Induna Torch Hola, who is since deceased, and informed him of their wish to obtain a site on the coast which they identified to him. The headman then took them to the Chief of the local tribe, Chief Mchilizwa Hanxa, who is also since deceased. Their approach to the Chief was mostly accompanied by a bottle of Commando H brandy, which appears to have been the strong drink of the Chief's choice. Once they obtained the Chief's approval, he arranged for them to attend a meeting of the Emtweni Tribal Authority, exercising jurisdiction in the area.

[7] Accompanied by the Chief, they then attended a meeting of the Tribal Authority. After the meeting had approved their request, I they paid a 'customary fee' of R200 to the Tribal Authority for which they were issued with a receipt. They also received a rather curious document signed by the secretary of the Tribal Authority and described as a 'fishing site licence application'. According to the heading of the J

Brand JA

document itself, it was to be submitted to the magistrate at Lusikisiki. In substance the document conveyed to the A magistrate a recommendation by the Tribal Authority that the applicant cited be granted a licence to conduct some fishing business on the proposed site. Why I referred to the document as curious, is, of course, because it made no mention of the defendants' request for permission to occupy or to build a cottage on the site, while, on the B other hand, it referred to an application for a business licence which the defendants never wanted.

[8] Armed with the receipt and the fishing site licence application, the defendants then made their way to the magistrates' court building in Lusikisiki. However, they did not go to the magistrate, as instructed by the contents of the application form, C but to an official in the Department of Agriculture, Mr Dumisane Ntete, who happened to have his office in the same building. Arrangements were then made with Ntete to meet at the chosen site together with Chief Hanxa and members of the local community. It appears that Ntete always had a measuring tape with him when he attended these meetings. Yet the D measuring tape was never used. The sites were not actually measured, but rather vaguely identified by Ntete with reference to certain landmarks and physical features. Nor were the sites ever surveyed or their exact dimensions recorded or mapped. E

[9] The Chief then asked the members of the local community present, who on occasion numbered up to one hundred people, whether they had any objection to the site being allocated to the defendant concerned. No objections were ever raised. After that, the Chief granted his permission for structures to be built on the site, which signalled the end of the formalities. Festivities then started where beer, brandy and food, supplied by the defendants in ample F quantities, were enjoyed by all. The only thing that happened thereafter was that some of the defendants - though not all of them - annually paid the sum of R20 by way of a local tax and a general levy to the Receiver of Revenue in Lusikisiki, whose office also happened to be in the same building as the magistrates' court. Receipts were issued for these payments and a G record kept by means of a so-called cardex filing system, identifying each defendant with reference to his own tax number.

[10] Two of the defendants testified that on an occasion when they went to pay their annual taxes at the magistrates' court building they happened to meet one of the magistrates. They then used H the opportunity to ask him whether there was anything more they had to do in order to secure occupation of their sites. His response was something to the effect that they had done all they were required to do and that 'nobody could take their piece of heaven away from them'. I

[11] In response to the defendants' declarations of trust in the validity of the permission they received from the Chief, the Tribal Authority and - on two occasions from the magistrate, by conduct, as it were - the government relied on the evidence of Mr James Feely. Feely was employed between 1989 and 2000 by the departments - first of the J

Brand JA

former Transkei government and then of the Eastern Cape provincial A government - that took administrative responsibility for the area. According to his testimony - undisputed in this regard - the allocation of residential sites and sites for recreation as well as land destined for agricultural use in the area, was governed at the time by the provisions of Proclamation 26 of 1936 read with the Transkei Agricultural Development Act 10 of 1966 (Transkei). B

[12] According to these statutory enactments, residential sites could only be allocated in areas earmarked for residential purposes. Because the sites occupied by the defendants did not form part of any residential area, no one was authorised to permit the occupation or the erection of buildings on these sites. Moreover, s 4 of the 1936 C Proclamation provided that, within residential areas, permission to reside could only be granted by the magistrate of the district and only to a 'person domiciled in the district, who has been duly authorised thereto by the Tribal Authority'. It follows that neither the Chief nor the Tribal Authority could allocate residential sites. They could only make recommendations to the magistrate and, in any event, only in D respect of persons domiciled in the district. In terms of s 5, occupation for recreational purposes could only take place with the permission of the Minister of the Interior and subject to such...