Diepsloot Residents' and Landowners' Association and Another v Administrator, Transvaal

• Jurisdiction: South Africa

Diepsloot Residents' and Landowners' Association and Another v Administrator, Transvaal
1994 (3) SA 336 (A)

1994 (3) SA p336

Citation	1994 (3) SA 336 (A)
Case No	321/93
Court	Appellate Division
Judge	Botha JA, Smalberger JA, F H Grosskopf JA, Nicholas AJA, and Olivier AJA
Heard	February 15, 1994; February 16, 1994
Judgment	March 24, 1994

Flynote : Sleutelwoorde

Land — Less formal townships — Less Formal Township Establishment Act 113 of 1991 — Designation of land in terms of ss 2(1) and 3(1) for C establishment of less formal settlement — Whether interference with common-law rights of residents in areas surrounding proposed settlement authorised — No provisions in Act specifically authorising interference — Guidelines as to whether statutory auth-ority for interference to be inferred restated — Guidelines subject to qualification that, where D interference with private rights justified, statutory powers to be exercised reasonably — Permissible to interpret Act against background of developments taking place in 1991 — Laws repealing wide range of racially discriminatory legislation dealing, inter alia, with ownership and occupation of land passed — Rapid increase in urbanisation leading to E squatting in urban areas — Act a response to circumstances necessitating speedy and orderly settlement of homeless persons — Legislature clearly contemplating settlement of large numbers of impoverished persons in informal manner within urban areas as part of urbanisation process and F resolution of squatter problem — Settlement in close proximity to residential areas unavoidable — Such settlement in circumstances likely to be sub-standard, with adverse effect on surrounding areas — Thus likely to have been within contemplation of Legislature that exercise by Administrator of his powers of settlement under Act might result in interference with common-law rights of third parties — Statutory authority G for such interference thus inherent in grant of such powers.

Land — Less formal townships — Less Formal Township Establishment Act 113 of 1991 — Designation of land in terms of ss 2(1) and 3(1) for establishment of less formal settlement — Application for interdict H restraining Administrator from proceeding with establishment of less formal settlement on grounds that settlement would constitute unlawful interference with rights of residents of surrounding area — Assuming such interference, issue whether interference authorised by statute — Statutory authority for such interference inherent in grant to Administrator of power to settle large numbers of homeless persons in informal manner I within urban areas as part of solution to squatter problem — Where interference with private rights justified, statutory powers to be exercised reasonably — Harm not to be caused by failure to take reasonably practicable precautions or by failure to adopt reasonably practicable alternative method whereby extent of interference would be lessened — Act J prescribing, by implication, general locality for exercise of

1994 (3) SA p337

Administrator's powers of settlement, namely urban area in which need existing to settle homeless persons — A Legislature thus requiring settlement in urban area — Administrator having no choice — Administrator, however, having discretion to designate, within prescribed locality, precise site for settlement — Such discretion to be exercised judicially, having regard to considerations of public policy, interests of general B public and conflicting private interests — Aggrieved persons entitled to interdict if Administrator exceeding statutory powers with regard to designation of precise site or if exercising powers wrongfully by failing to take reasonably practical measures to lessen harm caused by exercise of C powers — Applicants complaining, not of manner in which powers exercised, but manner in which discretion exercised in choosing precise site — Exercise of discretion open to challenge only on grounds of gross unreasonableness — Given that Administrator's decision in this instance preceded by thorough expert investigation and evaluation, no basis for D finding wrongfulness or gross unreasonableness — Interdict refused.

Headnote : Kopnota

In response to the pressing need to accommodate large numbers of people who had migrated to the PWV region in search of employment opportunities, the respondent during 1991 appointed a task group to investigate and report on the means of ensuring orderly long-term urbanisation in the E north-westerly quadrant of the PWV region. The task group reported its findings (in 'the Blue report') on 30 March 1992. At the end of September 1991 a community comprising some 45 families was evicted from land upon which their tenancy had lawfully been terminated. As a temporary solution they were settled on adjoining land, where they were joined by a large number of squatter families. The permanent resettlement of this much enlarged community ('the Zevenfontein squatters') became an urgent problem owing to tensions between local inhabitants and the squatters. On 5 F February 1992 the respondent instructed the task group to investigate the issue as a matter of urgency. The task group duly filed its 'Green report' on the matter. The Blue and Green reports were considered and comprehensively debated by the respondent in executive committee on 5 June 1992. In addition to the reports, the committee had before it, inter alia, an evaluation of 13 possible sites for low cost housing and a more detailed evaluation of some of the sites, including the Diepsloot site which was the subject of the litigation in casu. As part of its G deliberations the respondent and certain members of the executive committee visited all the sites evaluated by the task group. In addition, the respondent had regard, inter alia, to the wishes of the Zevenfontein squatters; objections received from interested parties, including Diepsloot residents; proposals received from members of the public; and financial considerations.

The Diepsloot site was decided upon and the properties comprising the site H were expropriated in terms of notices on 9 June 1992. Acting in terms of s 3(1) of the Less Formal Township Establishment Act 113 of 1991 and by formal notice on 8 July 1992 the respondent designated the Diepsloot site as 'land for less formal settlement'. The designation was made 'on condition that the final layout plan and draft conditions of establishment of the proposed township be approved'. The proposed layout plan envisaged the settlement of approximately 8 000 people in an orderly development on a formally subdivided site served by gravel roads, with provision for I potable water, adequate sanitation and electricity. Because prospective residents were impoverished they would initially be permitted to erect cardboard and corrugated iron structures.

On 26 June 1992 the first appellant, a voluntary association of residents and landowners of the smallholdings situated on the original farm Diepsloot, sought an urgent interdict in a Provincial Division restraining the respondent from settling the Zevenfontein squatters on the Diepsloot J site on the grounds that the intended

1994 (3) SA p338

A settlement would create a nuisance and would constitute an unlawful interference with the rights of the Diepsloot residents to the enjoyment of their properties. It was also contended that the respondent's decision to establish an informal settlement on the site was grossly unreasonable and therefore reviewable, in that, notwithstanding that his decision has been preceeded by thorough expert investigation and evaluation, he had failed properly to apply his mind to the socio-economic and cultural differences between the Zevenfontein squatters and the Diepsloot B residents. The Provincial Division granted an interim interdict, pending the final adjudication of the application. The application was eventually dismissed. On appeal the main issues were (a) whether the appellants were entitled to a final interdict; (b) whether the respondent's decision to establish a less formal settlement on the Diepsloot site had been grossly unreasonable and was thus reviewable; and (c) whether the respondent's designation of the site in terms of s 3(1) of the Act had been suspended pending the approval of the final layout plan and draft conditions of C establishment in respect of the proposed settlement.

Held, as to the first issue, that, assuming for the purposes of the appeal that the likely consequences of the establishment of the proposed settlement were such as to induce a reasonable apprehension that a nuisance which would interfere with the rights of the Diepsloot residents would be created, the crucial issue was whether such interference would be D unlawful and constitute an actionable wrong (the other two requirements for an interdict, namely a clear right and the absence of any other remedy, not being in issue). (At 345B/C-C/D, read with 344I.)

Held, further, that that would depend upon whether statutory authority for such interference existed because, where a statute authorises the infringement of legal rights, subject to certain qualifications there can be no wrongful conduct, and hence no liability for such infringement. (At 345C/D-D.)

Held, further, there being no provisions in the Act expressly authorising E interference with the rights of the Diepsloot residents to the enjoyment of their properties, that the following were among the guidelines which had to be applied in deciding whether such interference could be inferred: (a) an intention to interfere with private rights could not be presumed where no provision was made for compensation, subject to the caveat that the aforesaid principle lost much of its force when applied to public undertakings; (b) where the nature of the work...