Erf 16 Bryntirion v The Minister of Public Works

• Jurisdiction: South Africa
• Judge: Ranchod J
• Judgment Date: 12 October 2010
• Docket Number: 11375/08
• Hearing Date: 12 October 2010
• Court: North Gauteng High Court, Pretoria

Ranchod, J

[1]

The applicant in this matter seeks an order:

1.1

reviewing and setting aside the decision of the respondent taken on 03 January 2008 to expropriate the applicant's immovable property, Erf 16 Bryntirion, Registration Division J.R., Gauteng, held in terms of deed of transfer No. 25169/1995;

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1.2

declaring the notice of expropriation annexed to the application as annexure "FA27" to be invalid and of no force or effect; and

1.3

ordering the respondent to pay the costs of the application.

[2]

In its founding affidavit the applicant sets out some fourteen grounds of review. However, they essentially can be reduced to three categories, namely, that the expropriation-

2.1

was not for a "public purpose" as contemplated by the Expropriation Act 63 of 1975 ("The Act")

2.2

was procedurally unfair; and

2.3

was not justified by the reasons given by the respondent

THE FACTS

[3]

It is necessary to set out the facts in some detail to gain a proper perspective of the matter.

[4]

During 1993, Erf 16 Bryntirion ("the property") which is situated in Dumbarton Road, Pretoria was bought by a purchaser from the then government shortly before the first democratic elections.

[5]

During 1997 the applicant purchased the property, which had been advertised for sale in the open market. At the time it was zoned for government use. The applicant renovated and extended the house on the property. During 1999 the applicant successfully applied to the Pretoria City Council for the rezoning of the property for use as a guest house. However, it has since then only been used as a family home.

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[6]

Over a period of years, the applicant was approached by various estate agents acting on behalf of Embassies and other foreign organizations, inquiring whether the applicant is prepared to sell the property. In each case the applicant advised that he is not interested in selling the property. During September 2005 the Department of Public Works ("the Department") notified the applicant in writing of its intention to purchase the property at market value. The respondent (who is the responsible Minister for the department) furnished the following reason for the intended purchase -

"As the Government is intending to upgrade the estate, your property is situated on the main entrance to the Bryntirion Estate and if not purchased will have a detrimental impact on the security planning for the estate as a whole."

It will be noted that during this first communication the respondent indicated that the reason for the intended purchase of the property was for the greater security of the Bryntirion Estate.

[7]

The Bryntirion Estate comprises the residence of the President of the country, the Presidential guest house and houses of some cabinet ministers. The applicant's property is the only private property which is situated adjacent to the estate. An issue was made of the fact that the respondent referred to the applicant's property as being within the Bryntirion Estate whereas the applicant contended that it did not form part of it. In my view, nothing much hinges on this: what is clear is that although the property falls within an entire block of which the Bryntirion Estate is the major part, the applicant's property is the only private property that falls within that block which is referred to as the Brynterion Estate. In fact the respondent in the aforesaid letter stated:

"The intention to purchase your property is being informed by the fact that all properties within the estate boundaries are Government owned except for one

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land parcel viz Erf 16 Bryntirion which is owned by your company Erf 16 Bryntirion (Pty) Ltd."

[8]

In response to this letter, the applicant took the attitude that it had "absolutely no intention of selling the property". The applicant further stated in the letter that it was willing to co-operate with the Department of Public Works to ensure that the security of the Bryntirion Estate is not compromised.

[9]

On 22 September 2005, the Department again addressed a letter to the applicant's attorneys appealing to it to reconsider its position. It also requested a meeting in order to explain to the applicant the reasons for the Department's proposed acquisition of the property.

[10]

In a letter dated 29 September 2005 the applicant's attorneys rejected this request of the respondent and stated that the property was of "great monumental and sentimental value" to the applicant and not one which the applicant would like to relegate to a commercial transaction.

[11]

In a letter dated 26 January 2006, the regional manager of the Department wrote to the applicant's attorneys and referred to previous communication between the parties and said -

"the department has taken all relevant considerations [into account] in arriving at a decision to expropriate the aforesaid property".

The applicant was afforded 21 days to make representations and be heard before the property was finally expropriated. In subsequent correspondence between the parties the applicant took issue with the fact that the Regional Manager of the Department had

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said that a "decision" was taken by "the Department" to expropriate when the applicant had not at that stage been afforded an opportunity to be heard. I will revert to this later on in this judgment.

[12]

In a letter dated 08 February 2006, to the Department, the applicant's attorneys notified it of the applicant's objection to the expropriation of the property and made a detailed request for information in order to afford the applicant an opportunity to make representations in that regard.

[13]

In a letter dated 9 February 2006 the Department undertook to compile and forward the documentation requested by the applicant's attorneys. However, in spite of this undertaking by the Department, the respondent, that is, the Minister of Public Works informed the applicant in a letter dated 4 August 2006 that the request for information was premature. The respondent goes on to mention that the Government's intention was to enhance the security planning for the Bryntirion Estate as a whole and that the acquisition of the applicant's property would be for a public purpose and in the public interest. The respondent further says -

"In the event a decision is made to acquire your property, your interests may be affected.

You are therefore granted an opportunity in terms of section 3 of the Promotion of Access to Justice Act 3 of 2000 ("PAJA") to respond in writing to our department as to why your property should not be acquired for public purposes and in the public interest.

Kindly send your representation within 14 days from the date of receipt of this letter to our department."

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[14]

The applicant's attorneys then addressed a further letter, dated 13 September 2006, to the respondent. In this letter the applicant complained that there was a clear conflict between the statement in the letter of 26 January 2006 that the administrative Head of the Department of Public Works had arrived at a decision to expropriate the property and the statement in the respondent's letter of 4 August 2006 that no decision to expropriate the property had been taken. Also that the Department had not complied with its duty in terms of section 3(2)(b) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA") and that it was under those circumstances impossible for the applicant to make meaningful representations regarding the intended expropriation of the property. It was also pointed out that despite the undertaking by the Regional Manager of the Department in his letter of 9 February 2006 to provide the information requested by the applicant, such information was now being refused. The request for the required information was then again repeated.

[15]

In a letter dated 10 October 2006 the Acting Director General of the Department set out to explain the alleged contradiction between the department's letter of 26 June 2006 and the Minister's letter of 4 August 2006. The letter stated -

"As you are aware, the decision to expropriate rests with the Minister. Once such decision is taken, the law requires the Minister to write a formal letter of expropriation in terms of the relevant provisions of the Expropriation Act 63 of 1975. The Department is entitled to formulate a view in such matters, which view is then communicated to the Minister by way of advice.

The Department has communicated with your client and yourselves with a view to addressing your concerns ahead of the Minister's consideration of this matter. The

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Department has accordingly given its view and decision on the matter. This will be communicated to the Minister.

The reasons for the intended expropriation are clearly outlined in the Minister's letter of 4 August 2006 addressed to your client. For the record we reiterate:

1. Your client's property is the only private property within the Bryntirion Estate;

2. The positioning of your client's property on the Estate makes it impossible to cordon off the entire Estate for effective security measures; and

3. The Government intends to upgrade the Estate with a view to, amongst others, enhancing the security planning for the Estate as a whole."

[16]

The Acting Director-General then proceeded to furnish answers to the questions posed earlier by the applicant's attorneys but withheld certain information which, he said, would compromise matters of security. Information was not provided in relation to questions concerning -

—

the plans to upgrade the estate

—

alternative entrances to the Estate

—

copies of the master plan to develop the Bryntirion Estate

—

and the fate of applicant's property after expropriation.

The applicant was then given seven days after...