Diepsloot Residents' and Landowners' Association and Another v Administrator, Transvaal
Jurisdiction | South Africa |
Judge | Botha JA, Smalberger JA, F H Grosskopf JA, Nicholas AJA, and Olivier AJA |
Judgment Date | 24 March 1994 |
Citation | 1994 (3) SA 336 (A) |
Docket Number | 321/93 |
Court | Appellate Division |
Smalberger JA:
The first appellant is a voluntary association representing the residents and landowners of smallholdings situated on the original G farm Diepsloot ('the Diepsloot residents'). The area in question falls within the Pretoria/Witwatersrand/Vereeniging region ('the PWV region'). The second appellant owns, and resides upon, one such smallholding. The respondent is the Administrator of the Transvaal.
On 26 June 1992 the appellants (and one other applicant) brought an urgent H application against the respondent and others in which they claimed a temporary interdict, pending an action for final relief, restraining the respondent from settling, or permitting the settlement of, certain homeless persons on land at Diepsloot West adjacent to that owned and occupied by the Diepsloot residents ('the Diepsloot site'). The application was premised on the intended settlement creating a nuisance and causing unlawful interference with the rights of the Diepsloot I residents to the enjoyment of their properties. It was also alleged that the decision of the respondent to settle the persons concerned at the Diepsloot site was reviewable on certain grounds.
The matter first came before De Villiers J in the Transvaal Provincial J Division. He decided to refer certain issues that had arisen on the papers
Smalberger JA
A to trial. At the same time he granted an interim interdict preventing the respondent from proceeding with the planned settlement pending the final adjudication of the application. The judgment of De Villiers J is reported at Diepsloot Residents' and Landowners Association and Others v Administrator, Transvaal, and Others1993 (1) SA 577 (T) ('the first B judgment'), and the full order made by him appears at 587C-588G. The matter eventually proceeded before McCreath J. After a protracted hearing, during the course of which a number of witnesses testified, McCreath J dismissed the application with costs. His judgment is reported at Diepsloot Residents and Landowners Association and Others v Administrator, Transvaal, and Others1993 (3) SA 49 (T) ('the second judgment'). The C learned Judge refused leave to appeal, but the necessary leave was subsequently granted by this Court.
This appeal focuses on the powers and duties of the respondent, in the exercise of his public functions, to take steps to alleviate the plight of the homeless at the possible expense, or to the detriment, of neighbouring D property owners. For a proper understanding of the issues involved in this appeal, and their ultimate resolution, it is necessary to set out in some detail the sequence of events which preceded and gave rise to the application in the Court a quo.
Prior to September 1991, a community comprising 45 families of E approximately six members each occupied farmland in the Zevenfontein area which they hired from the lessee of the land. Their tenancy was lawfully terminated but they refused to vacate the property. An eviction order was obtained and they were removed from the property at the end of September 1991. They were temporarily settled on an adjoining property. Over a F relatively short period there was an influx of squatter families into the area, causing the size of the community to increase dramatically. Concerned local inhabitants took steps to prevent the further influx of squatters into the area. This caused a tense situation to develop. The members of this community are generally known as the 'Zevenfontein squatters'. In what follows I shall refer to them as such. As a result of socio-political changes rapid urbanisation was taking place at the G relevant time. This led to a large number of persons migrating to the PWV region in search of employment opportunities. There was a pressing need for land to accommodate these people. In order to deal with the problem, the respondent appointed a task group to study and report on the means of ensuring orderly long-term urbanisation in the north-westerly quadrant of H the PWV region. The task group under the chairmanship of Mr Waanders, the chief town and regional planner of the Transvaal Provincial Administration, included experts in town planning and other fields, and representatives of various Town and Regional Services Councils, Local Area Committees and other interested bodies and organisations, many of whom were assisted by their own professional advisers. According to the I evidence of Mr Waanders, 'dit was 'n versameling van tegniese en vakkundige mense wat ons bymekaar gekry het wat na my mening ongekend was'. Members of the task group also consulted widely with interested parties not specifically represented on the group. The task group eventually reported its findings to the respondent in Executive Committee J on 30 March 1992. Its report is commonly referred to as the 'Blue Report'.
Smalberger JA
A The unhappy plight of the Zevenfontein squatters became the concern of the Transvaal Provincial Administration during October 1991. Efforts to find suitable land for their settlement met with opposition and lack of success. On 5 February 1992 the respondent instructed the task group, as a matter of urgency, to investigate the settlement of the Zevenfontein squatters at a suitable site and to furnish him with an interim report by B 2 March 1992 at the latest. The task group duly carried out its mandate and produced a report known as the 'Green Report'.
The Blue and Green Reports were considered jointly by the respondent in Executive Committee on 5 June 1992. Both are comprehensive documents, comprising 48 and 32 pages respectively. According to the respondent, and C this is nowhere challenged, all aspects of the two reports were comprehensively debated and considered in the Executive Committee. In addition the following documentation was available:
a summary of objections received from interested parties;
proposals received from members of the public;
D an evaluation of 13 possible sites for low cost housing presented by officials of the Transvaal Provincial Administration during November 1991;
a more detailed evaluation of certain sites, including the Diepsloot site, by officials of the Transvaal Provincial Administration;
offers of site by members of the public, and objections received E from members of the public after 30 March 1992.
In the course of their deliberations the respondent and certain members of the Executive Committee visited all the sites dealt with by the task group, save four which had been seen and inspected previously.
As appears from the Green Report, the task group's first choice for the F settlement of the Zevenfontein squatters was a site at Cosmo City. The second choice was Diepsloot East, and the third, the Diepsloot site. The respondent in Executive Council opted for settlement at the Diepsloot site and an area known as Nietgedacht (with which we need not concern ourselves for the purposes of the present appeal). According to the respondent, G there were a number of factors which militated against the site at Cosmo City, and which led to the Diepsloot site being preferred to Diepsloot East. There is no need to deal with them. Suffice it to say that it has never been suggested that the choice of the Diepsloot site in preference to that at Cosmo City or Diepsloot East was unreasonable or open to challenge in any way. Consequent upon the choice of the Diepsloot site, H the properties comprising it were expropriated by the respondent under the provisions of the Expropriation Act 63 of 1975. The various notices of expropriation were dated 9 June 1992.
On 8 July 1992, subsequent to the appellants launching their application, the respondent caused to be published in the Official Gazette Extraordinary of that date Administrator's Notice 294 ('the Notice'). The I relevant portion of the Notice reads as follows:
'Designation of Land for Less Formal Settlement on the Farm Diepsloot 388 JR in the District of Pretoria (Proposed Diepsloot Township)
I, Daniel Jacobus Hough, in my capacity as Administrator of the Transvaal, do hereby under and by virtue of the powers vested in me by s 3(1) of the J Less Formal
Smalberger JA
A Township Establishment Act 113 of 1991 designate the following land made available by me under s 2(1) of the Act as land for less formal settlement:
A certain area of land 92,9812 hectares in extent, being the remaining extent of Portion 120 and Portions 151 to 153, all of the farm Diepsloot, Registration Division 388 JR, Transvaal.
The above designation is on condition that the final layout plan and draft B conditions of establishment of the proposed township be approved.
The following restrictive conditions and servitudes are hereby suspended:
1. . . .
2. . . .
3. . . .
4. . . .
C Given under my hand at Pretoria, on this 8th day of July in the year 1992.
D J Hough
Administrator of the Province of the Transvaal.'
The proposed layout plan for Diepsloot site provided for 1 324 residential D stands, the majority of which averaged 250 square metres. It also made provision for three schools, 16 community sites, two business sites and 12 parks. According to the unchallenged evidence on behalf of the respondent, the intention is to settle approximately 8 000 people on the Diepsloot site, including about half the number of the Zevenfontein squatters. What is envisaged is not haphazard squatting but orderly development within the E context of town planning. As the persons to be settled there will mainly be impoverished they will be permitted, initially at any rate, to erect corrugated iron and cardboard structures. It is also common cause that the main access roads will be gravelled, provision will be made for potable water, adequate sanitation will be provided and electricity will be made F available. Efforts will also be made to provide...
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