East London Western Districts Farmers' Association and Others v Minister of Education and Development Aid and Others

• Jurisdiction: South Africa

East London Western Districts Farmers' Association and Others v Minister of Education and Development Aid and Others
1989 (2) SA 63 (A)

1989 (2) SA p63

Citation	1989 (2) SA 63 (A)
Court	Appellate Division
Judge	Viljoen JA, Hoexter JA, Nestadt JA, Vivier JA, M T Steyn JA
Heard	February 15, 1988
Judgment	December 1, 1988

Flynote : Sleutelwoorde B

Nuisance — Abatement of — Respondents establishing squatter C township for some 8 000 Black refugees evicted from Ciskei on a farm — Adjoining neighbours alleging establishment of settlement resulted in unlawful invasion of their rights as owners of adjoining properties — Appellants (a farmers' association and neighbouring farmers) seeking an interdict for abatement of nuisance — Respondents raising defence that interference authorised by provisions of s 10 of the Development D Trust and Land Act 18 of 1936 — Court a quo upholding defence of statutory authority and discharging rule nisi — Appeal Court finding that Court had untrammelled jurisdiction to hear application for interdict against State — Court holding that to secure legal immunity E from creating nuisance, respondents had to show that creation of such a nuisance was a demonstrably necessary consequence of any settlement whatsoever irrespective of numbers (whether 8 000, 80 or 8) of settlers — Bureaucratic solution to problems must be achieved with due regard to legitimate property rights of ordinary citizens — State required to alleviate the lot of the refugees and simultaneously to protect F the farming community into whose midst refugees introduced — Latter protection not secured — Appellants entitled to order for abatement of nuisance — Appeal upheld.

State — Actions against — State Liability Act 20 of 1957 — State can be sued and liability co-extensive with that of individual G citizens — No principle which decrees Court must decline to redress a violation of individual rights resulting from administrative acts simply because latter performed 'in the course of implementing a general policy' — Court able to grant interdict against State to abate nuisance.

Headnote : Kopnota

Under the State Liability Act 20 of 1957, the particular prerogative H of State which had earlier prevented it from being sued in the Courts was abolished; and within the limits of Act 20 of 1957 the liability of the State is coextensive with that of the individual citizen. There is no principle in our law which decrees that the Court must decline to redress a violation of individual rights resulting from an administrative act simply because the latter is performed 'in the course of implementing a general policy'. There is no sound reason or I legal principle in support of such a limitation upon the Court's jurisdiction to grant an interdict; a limitation would represent an arbitrary and unwarrantable proscription of a remedy long available in our law to a wronged property owner.

First appellant was a voluntary association representing the interests of organised agriculture on the borders of the Ciskei. Second and third appellants were landowners neighbouring on a certain farm 'Needs Camp'. J In January 1986, the Ciskeian Government evicted some 8 000 Blacks on the basis that they were South

1989 (2) SA p64

A African citizens. These refugees were dumped in South Africa in the vicinity of 'Needs Camp'. The appellants averred that the SA Government, in an attempt to alleviate the plight of the refugees, established a squatter settlement on 'Needs Camp'. Appellants alleged that the establishing of the settlement on 'Needs Camp' resulted in an unlawful invasion of their rights as owners or occupiers to their ordinary use and enjoyment of such properties. The respondents raised the defence that, to the extent that any interference with private rights of B the appellants might have resulted from the settlement of 'Needs Camp', such interference was authorised by the provisions of s 10 of the Development Trust and Land Act 18 of 1936. The Court a quo upheld the defence of statutory authority and discharged the rule nisi earlier obtained by appellants. In an appeal,

Held (per Hoexter JA, Vivier JA and M T Steyn JA concurring), that irrespective of the precise juridical nature of the exercise of C discretion which prompted the settlement of 'Needs Camp', the Court below had an untrammelled jurisdiction to hear the application for an interdict and the Court was bound to determine the issue by testing the validity of the defence of statutory authority raised by the respondents.

Held, further, that third respondent could discharge the initial onus only by demonstrating to the satisfaction of the Court that the settlement of any number of Blacks on 'Needs Camp' would inevitably result in the creation of such a nuisance: that the third respondent had failed to do.

D Held, further, that the power to effect a settlement on trust land conferred by s 10 of the Development Trust and Land Act 18 of 1936 was not a power linked with or referable to any particular number of settlers: third respondent had failed to prove that the act which the Legislature empowered it to perform (the settlement of an unspecified number of Blacks) on 'Needs Camp' was impossible of performance without the creation of a public nuisance; it could not avail the respondents to show that the presence of 8 000 refugees on 'Needs Camp' must E inevitably result in a public nuisance.

Held, further, that in order to secure legal immunity therefrom the respondents had to show that the creation of such a nuisance was a demonstrably necessary consequence of any settlement whatsoever on 'Needs Camp' and irrespective of the number (whether 8 000 or 80 or 8) of settlers, and this the respondents were clearly unable to do.

F Held, further, that, in our system of law, the bureaucratic solution of problems, however intractable, must be achieved with due regard to the legitimate property rights of ordinary citizens: the situation no doubt called for prompt action by the respondents; such action, however, required not merely the alleviation of the lot of the refugees but simultaneously therewith the protection of the farming community into whose midst so many distressed persons were being precipitately introduced; and the respondents had failed to secure the latter.

G Held, accordingly, that appellants were entitled to an order for an abatement of the public nuisance created by the respondents. Appeal allowed. (Viljoen JA and Nestadt JA dissenting).

The decision in the Eastern Cape Division in East London Western Districts Farmers' Association and Others v Minister of Education and Development Aid and Others reversed. H

Case Information

Appeal from a decision in the Eastern Cape Division (Kroon J). The facts appear from the judgments of Viljoen JA and Hoexter JA.

L E Leach for the appellants cited the following authorities: Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 172 - 3; Bloemfontein Town Council v Richter 1938 AD 195 at 228 - I 35; Joubert (ed) Law of South Africa vol 8 para 30 at 46 and vol 19 para 222 at 137; Steyn Die Uitleg van Wette 5th ed at 101 et seq; Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 at 552; Rossouw v Sachs 1964 (2) SA 551 (A) at 562; Blackmore v Moodies GM & Exploration Co Ltd 1917 AD 402; R v Lifinia Ngomozulu 1944 OPD 157 at 160; S v Weinberg 1979 (3) SA 89 (A) at 105; Maree v Raad van Kuratore vir J

1989 (2) SA p65

Nasionale Parke 1964 (3) SA 727 (O) at 730; Brebner v Seaton 1947 (3) SA 629 (E) at 640; Glen Anil Finance (Pty) Ltd v Joint Liquidators, Glen Development Corporation Ltd (in Liquidation) 1981 (1) SA 171 (A) at 181 - 2; Casserley v Stubbs 1916 TPD 310 at 312; Reddy and Others v Durban Corporation 1939 AD 293 at 299; Tobiansky v Johannesburg Town Council B 1907 TS 134 at 144; Moller v South African Railways and Harbours 1969 (3) SA 374 (N) at 379 - 80; Winter v South African Railways and Harbours 1929 AD 100 at 103 - 4; Natal Provincial Administration v South African Railways and Harbours 1936 NPD 643 at 662, 666; Minister of Law and Order v Patterson 1984 (2) SA 739 (A) at 745G; Die Spoorbond and Another v South African Railways 1946 AD 999 at 1005; Smith NO and C Lardner-Burke NO v Wonesayi 1972 (3) SA 289 (RA); Wiechers Administrative Law (1985) at 9, 26 - 7; Baxter Administrative Law (1984) at 62 - 3; Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718; Roodepoort-Maraisburg Municipality v Eastern Properties Ltd 1933 AD 87; Sachs v DOnges NO 1950 (2) SA 265 (A) at 276; Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A); Van der Merwe and D Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg 5th ed (1985) at 504 - 5; Price in (1949) 66 SALJ at 377; Minister of Finance v Barberton Municipal Council 1914 AD 335 at 345; South African Railways and Harbours v Edwards 1930 AD 3; Farr v Union Government 1913 CPD 818; Rose-Innes Judicial Review of Administrative Tribunals in South Africa at 230. A

E J L van der Merwe SC (with him J H Hugo) cited the following authorities: Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T); Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C; Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) at 112 - 13; Moller v SA Railways & Harbours 1969 (3) SA 374 (N) at 378 - 9; University of Cape F Town v Cape Town Bar Council and Another 1986 (4) SA 903 (A) at 914J; Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 174 in fin ; Bloemfontein Town Council v Richter 1938 AD 195 at 229, 230 et seq ; Ex parte Gold 1956 (2) SA 642 (T) at 645; Maharaj Brothers v Pieterse Bros Construction (Pty) Ltd and Another 1961 (2) SA 232 (N); Allie v De Vries NO en 'n Ander 1982 (1) SA 774 (T); Xaba and Others v G Bantu Affairs...