Durr and Another v Cape Divisional Council

• Jurisdiction: South Africa
• Judge: Van Heerden J and Van den Heever J
• Judgment Date: 16 October 1985
• Hearing Date: 05 March 1985
• Court: Cape Provincial Division

Van den Heever J:

This is an appeal against the determination J of the

Van den Heever J

A president of the compensation court, that R71 000 (plus R7 100 in terms of s 12 (2) of the Expropriation Act 63 of 1975) is the amount to which appellants are entitled as compensation for the expropriation of fixed property of which they were co-owners.

The ground is south of the King David Golf Course, east of the D F Malan Airport and north of the approach road to the latter B from the west.

Appellants became owners of a larger tract of land in 1966, Cape Farms 472/10 and 472/7. This was unimproved land, which had already been dissected in 1963 by abstraction of a strip (portions 23 and 25) running west-east across two farms for the creation of the airport approach road. The portion of farm C 472/7 cut off on the north of that road - portion 50 of portion 7, now erf 112678 - measures 6,5099 ha. The adjoining portion of farm 472/10 - portion 52 of portion 10, now erf 11269 - similarly dealt with, measures 2187 square metres.

Appellants originally claimed R80 408,90, interest and costs, on the basis that portions 50 and 52 were unzoned or D agricultural land with the potential of being utilized to provide Coloured housing.

Respondent offered R47 776,74 on the basis that the larger of the two portions should be regarded as land zoned for agricultural purposes with a potential for single residential zoning, and that the smaller should be regarded as worth R4 374, based on the prices achieved by acre plots on the E Strandfontein Road.

In August 1983 appellants increased their claim to R177 500 on the basis that a willing buyer would regard the property as having a potential use for commercial purposes. They had by then obtained a valuation also from a Mr D A Heel, who adopted a third approach: valuing the land as a single entity at R134 F 000 as if it had been zoned for general industrial purposes in 1979.

Respondent increased its original offer in September of 1983, to substitute R78 100 for the earlier total of R47 776,74 based on a valuation by Mr R S Marten, still founded on the premise that the highest and best potential use of the property was for G single residential purposes for members of the Coloured group.

An issue hotly contested in the compensation court was also the first issue on appeal and was crisply summed up by the president as follows:

"Applicants contended that, in order to give effect to the provisions of s 12 (5) (f) of the Act, the court should assume that the property had been zoned for industrial purposes by H 1979. In essence, the submission was that, but for the designs which respondent had upon the applicants' property for a possible extension of its sewerage plant, the property would have been zoned for industrial purposes in 1973, together with the other property in the vicinity which was zoned at that time for industrial purposes."

What was in issue between the parties on appeal in the first instance was therefore the effect of s 12 (5) (f) of the Act on I facts which were not seriously disputed. That section reads:

"12 (5) In determining the amount of compensation to be paid in terms of this Act, the following rules shall apply, namely:

............

(f)

any enhancement or depreciation, before or after the date of notice, in the value of the property in question, which may be due to the purpose for which or in connection with which the property J is being expropriated or is to be used, or which is a consequence of any work

Van den Heever J

or act which the State may carry out or perform or already has A carried out or performed or intends to carry out or perform in connection with such purpose, shall not be taken into account."

The facts: Chronological summary

In 1963 ground was expropriated for purposes of the airport approach road to the D F Malan Airport from the west. The road B thereafter bisected the properties subsequently bought by the appellants.

In 1964 the road was declared a special road and, in...