Beck and Others v Premier, Western Cape, and Others

• Jurisdiction: South Africa
• Judge: Rose Innes J
• Judgment Date: 12 December 1996
• Citation: 1998 (3) SA 487 (C)
• Docket Number: 12596/96
• Counsel: SP Rosenberg for the applicants No appearance for the first, second and fourth respondents HM Scholtz (with him JC Heunis) for the third respondent
• Court: Cape Provincial Division

Beck and Others v Premier, Western Cape, and Others
1998 (3) SA 487 (C)

1998 (3) SA p487

Citation	1998 (3) SA 487 (C)
Case No	12596/96
Court	Cape Provincial Division
Judge	Rose Innes J
Heard	December 3, 1996; December 4, 1996
Judgment	December 12, 1996
Counsel	SP Rosenberg for the applicants; No appearance for the first, second and fourth respondents; HM Scholtz (with him JC Heunis) for the third respondent

Flynote : Sleutelwoorde

Land — Defeasible interests — Application in terms of Removal of Restrictions Act 84 of 1967 for removal of conditions incorporated in title deed — Notice in terms of s 3(6) — Purpose of notice is to apprise interested person of application, C to afford them opportunity of ascertaining extent to which their rights might be affected and to enable them to protect their rights by appropriate objections — Land zoned as 'General residential use R4' — But conditions registered against title deed 'that the erf not be subdivided' and that 'no more than one dwelling . . . be erected on the erf and that no more more than half the erf be built upon' — Notice in terms of s 3(6) stating that removal of restrictions sought to enable D erection of townhouses on property — Application granted on basis of proposal to erect five-storey block of flats — Application as advertised not relating to application placed before Minister in regard to its purpose and proposed development it entailed — No notice given in relation to erection of block of flats — Interested persons not apprised of E what Minister asked to approve and possible objectors not afforded proper opportunity of being heard — Decision of Minister to approve removal of restrictions gravely irregular and having to be set aside.

Land — Defeasible interests — Removal of restrictions in terms of Removal of Restrictions Act 84 of 1967 — Practice, as authorised by s 3(1) of Act, of making removal subject to conditions formulated and imposed by Minister — Such F conditions to be specified in notice in Provincial Gazette removing restrictions — Owner of property and successors in title bound thereby — Owner prevented from ignoring his own development scheme by incorporating it into conditions upon which restrictions removed. G

Land — Defeasible interests — Application in terms of Removal of Restrictions Act 84 of 1967 for removal of conditions incorporated in title deed — Application incorporating development proposal for erection of two-storey townhouses considered by local authority and approval thereof recommended — Development proposals altered thereafter to proposal for erection of five-storey block of flats — Application as considered by provincial authorities containing only H latter, altered development proposal — Where application considered by provincial Minister with regard to development proposal which had not formed part of original application before local authority, statutory procedures for prior consideration, recommendation and consultation not having taken place — Minister could also not have applied his I mind to application as plan for double-storeyed townhouse development not before him — Minister's decision approving application ultra vires and having to be set aside.

Land — Defeasible interests — Removal of restrictions in terms of Removal of Restrictions Act 84 of 1967 — Notice in Provincial Gazette in terms of s 2(1) of Act removing conditions of title of land — Notice having been J

1998 (3) SA p488

given by provincial Premier — Premier having designated administration of Act to provincial Minister of Agriculture, A Planning and Tourism — Premier having no power to promulgate notice — Notice fundamentally defective and of no effect.

Land — Defeasible interests — Removal of restrictions in terms of Removal of Restrictions Act 84 of 1967 — Notice in B Provincial Gazette in terms of s 2(1) of Act removing conditions of title of land — Minister approving removal of conditions of title subject to condition that block of flats to be erected on land to be erected in accordance with architects' plans furnished to Minister — Condition of approval omitted from notice in terms of s 2(1) — Notice accordingly incomplete and defective. C

Headnote : Kopnota

One D was the owner of erf 1483 in Vredehoek, Cape Town. In terms of the Land Use Planning Ordinance 15 of 1985 (C) the erf had been zoned 'General residential use R4', which permitted the use of the erf for 'blocks of flats, double dwelling houses, dwelling houses, groups of dwelling houses, places of worship, residential D buildings'. Nonetheless, the title deed of the erf recorded certain restrictive conditions imposed in 1936 in terms of the Township Ordinance 13 of 1927 (C), namely '2(b) that the erf not be subdivided; (c) that no more than one dwelling . . . be erected on the erf and that no more than half the area of the erf be built upon' ('the restrictions'). On 19 May 1995, in terms of the Removal of Restrictions Act 84 of 1967 ('the Act'), D applied for E the removal of the restrictions. The Act expressly conferred the power to determine such applications upon the Administrator of a province. However, acting in terms of the transitional provisions of the Constitution of the Republic of South Africa Act 200 of 1993, the South African President had assigned the administration of the Act to a competent authority designated by the Premier of a province, and had determined that the word F 'Administrator' in the Act should mean the authority so designated. Furthermore, the President had altered the definition of 'townships board' in the Act to mean, in relation to the Western Cape, the Planning Advisory Board established under Ord 15 of 1985. The Premier of the Western Cape, in turn, had designated his Minister of Agriculture, Planning and Tourism ('the Minister') as the competent authority to administer the Act. It followed that the correct procedure for the determination of D's application was as follows: The application had to be G lodged with the local authority, and a copy thereof had to be forwarded by the applicant to the Director-General of the Provincial Administration ('the Director-General'). Upon receipt of the application the Director-General was required, in terms of s 3(6) of the Act, to cause notice thereof to be published in the Provincial Gazette H and in a newspaper circulating in the area in which the land was situate, calling for objections. In terms of s 4(1) of the Act, the application, together with any objections and relevant documents, had thereupon to be considered by the Planning Advisory Board which had to make a recommendation to the Minister. Furthermore, the local authority had to forward a copy of the application as received by it, together with its comments and I recommendation, to the Director-General. Ultimately, in terms of s 4(2) of the Act, the Minister, upon consideration of the application, the recommendation of the Planning Advisory Board, the comments and recommendation of the local authority and other relevant material, had to grant or refuse the application, subject to such conditions as, in terms of s 3(1) of the Act, he saw fit to impose.

D's application was made, in accordance with the above procedure, to the appropriate local authority, namely the second respondent, and a copy J

1998 (3) SA p489

therefore was forwarded to the Director-General. Paragraph 10 of the form prescribed by the Act for such A applications required the applicant to state the purpose for which the property would be used if the application were successful, to which D replied, 'the erection of townhouses'. Paragraph 11 of the prescribed form required the applicant to state reasons for the application, to which D replied: 'The property has already been rezoned by B the Council as general residential and the removal of the title deed restrictions will bring the title deed situation in line with the zoning by the local authority.' A notice was duly published in the Provincial Gazette and in two newspapers, as required in terms of s 3(6) of the Act, which stated that the purpose of the removal of the restrictions was 'the erection of townhouses'. An attorney acting for D also sent letters to certain owners of land C in the area of erf 1483, in which he enclosed copies of the notice as advertised. Thereafter D sold erf 1483 to Mrs G, who wished to erect townhouses thereon, and who had, to that end, caused certain sketch plans to be prepared. The sketch plans indicated that four double-storey townhouses were being contemplated. During June and July 1995 certain objections to the removal of the restrictions were received by the second respondent, inter alia expressing the fear that their removal would permit the erection of a building as high as seven storeys. D However, D's attorney countered these objections by pointing out that, according to Mrs G's sketch plans, which were introduced of record, 'the proposed development will only be on two levels'. None of the present applicants lodged objections, either because the notice of the application to remove the restrictive conditions did E not come to their attention, or because they had no objection to the erection of double-storey townhouses. On the basis of the objections and of the attorney's reply thereto, the City Planner of the second respondent recommended that the restrictions be expunged.

The sale of erf 1483 to Mrs G was cancelled, and on 1 November 1995 the third respondent signed a written offer to purchase it from D (which offer was accepted on 21 November). The third respondent proposed to F erect on the erf a five-storey block of flats. Nonetheless, when on 15 November 1995 the Urban Planning Committee of the second respondent met to hear oral representations in connection with the objections, it had before it the City Planner's...