Fink and Another v Bedfordview Town Council and Others

• Jurisdiction: South Africa

Fink and Another v Bedfordview Town Council and Others
1992 (2) SA 1 (A)

1992 (2) SA p1

Citation	1992 (2) SA 1 (A)
Court	Appellate Division
Judge	Botha JA, Milne JA, F H Grosskopf JA, Nicholas AJA and Harms AJA
Heard	September 23, 1991
Judgment	November 22, 1991

Flynote : Sleutelwoorde B

Road — Acquisition of land for purposes of — Designation of land in terms of s 3(2)(a) of National Roads Act 54 of 1971 as land which would C vest in National Transport Commission in terms of s 3(2)(b) of Act — Validity of — Administrator having in 1963 declared a public road over land in question in terms of ss 3, 5(1)(c) and 5(2)(b) of Roads Ordinance 22 of 1957 (T) — State President in 1966 declaring such road a national road in terms of s 4(1)(a) of National Roads Act 42 of 1935 D — Change in planning of road resulting in not all land proclaimed being required for road — Minister in 1985 designating land in terms of s 3(2)(a)(ii) of Act 54 of 1971 as land to which provisions of s 3(2)(b) of that Act would apply — Word 'acquired' in s 3(2)(a)(ii) of Act 54 of 1971 connoting acquisition of a right in the nature of a road servitude, and not dominium of land — Upon proclamation of public road in terms of E Ord 22 of 1957, Administrator acquiring in terms of s 4 of ordinance control of road and in effect acquiring use of the land — Not necessary for Administrator to enter upon land in order to acquire it — Joint use of powers of Administrator under ordinance and State President under Act F 42 of 1935 in order to achieve result of a national road valid — Accordingly there had been a valid acquisition of use of land for purpose of a national road as required by s 3(2)(a)(ii) of Act 54 of 1971 for a proper designation under s 3(2)(b) of Act — In application to set aside designation as being invalid, onus on applicant — No onus G on Minister of Transport to prove that he

1992 (2) SA p2

A formed opinion required by s 3(2)(a)(ii) of Act 54 of 1971 that compensation paid represented 'the full value of the land for its owner' — Designation accordingly valid.

Expropriation — By Provincial Administrator — For purpose of a public road — Administrator having in 1963 declared a public road over land in B question in terms of ss 3, 5(1)(c) and 5(2)(b) of Roads Ordinance 22 of 1957 (T) — Upon proclamation of public road in terms of Ord 22 of 1957, Administrator acquiring in terms of s 4 of ordinance control of road and in effect acquiring use of the land — Not necessary for Administrator to enter upon land in order to acquire such use.

C Words and phrases — 'Acquired' — Meaning of in s 3(2)(a)(ii) of National Roads Act 54 of 1971.

Headnote : Kopnota

On 19 June 1963 the fifth respondent, the Administrator of Transvaal, had, in terms of ss 3, 5(1)(c) and 5(2)(b) of the Roads Ordinance 22 of 1957 (T), issued an Administrator's Notice declaring a public main road D ('the Eastern By-pass') over certain land, including land (known as holding 99) owned by the appellants' late father (the deceased). After correspondence between the deceased and the Transvaal Roads Department, the question of compensation for the land was settled and the amount agreed upon paid to the deceased out of the National Road Fund established in terms of the National Roads Act 42 of 1935. The State President, on 18 March 1966, declared in terms of s 4(1)(a) of Act 42 of E 1935 the aforementioned road to be a national road. Up to 1967 it had been the firm intention of the fifth respondent to construct a traffic interchange on holding 99. A subsequent change in the planning of the Eastern By-pass resulted in the traffic interchange being constructed elsewhere, with the result that only part of the deceased's land which had been proclaimed for the road was required for that purpose. After the death of the deceased, the land in question had been transferred to his two sons, the appellants. Holding 99 had not been subdivided to F enable it to be registered in the deeds registry as a separate entity, such subdivision only being finalised in 1983. The land was subdivided into three portions, only one of which was eventually required for the construction of the Eastern By-pass. During the period November 1984 and March 1985, the Director-General of Transport addressed a number of letters to the appellants notifying them of the intention of the third respondent (the Minister of Transport) to designate the three portions G of land in terms of s 3(2)(a) of the National Roads Act 54 of 1971 as land to which the provisions of s 3(2)(b) would apply (ie that the ownership of the land would vest in the second respondent, the National Transport Commission). The designation took place on 14 March 1985 and 1 May 1985 was determined as the date on which ownership of the three portions of land was to vest in the second respondent. The appellants were notified of the designation of 28 March 1985. As the appellants failed to comply with a request to forward their title deed to the H Department of Transport, the land was transferred to the second respondent after a certificate of designation had been furnished in terms of s 31(4)(a) of the Deeds Registries Act 47 of 1937. The two portions of land not required for the Eastern By-pass were thereafter transferred to the first respondent. The appellants, contending that the third respondent's designation of those two portions of land in terms of s 3(2)(a) of the 1971 National Roads Act should be set aside as invalid, that the consequent transfer thereof to the second respondent and thereafter to the first respondent should accordingly be cancelled, and I that the appellants' title deed should again reflect the appellants as the registered owners of the two portions, applied in a Local Division for orders to that effect. The application was dismissed. In an appeal, it was common cause that the fifth respondent had, by means of the 1963 proclamation, intended to acquire only 'the use' of the land in question and not the land itself and that s 3(2)(a)(ii), and not s 3(2)(a)(i), of the 1971 National Roads Act was the appropriate provision. The appellants contended that the designation in terms of s 3(2)(a)(ii) of J the 1971 National Roads Act was invalid

1992 (2) SA p3

A inasmuch as some of the jurisdictional facts required for a valid designation were lacking or had not been proved. This contention involved two main questions which had to be considered, namely (1) whether there had been a valid acquisition of the use of the land for the purpose of a national road as required by s 3(2)(a)(ii) of the 1971 National Roads Act; and (2) whether the third respondent had formed the 'opinion' that the compensation which had been paid represented 'the full value of the land for its owner' at the time of the acquisition and it was contended in this regard that the onus was on the respondents to B prove that the third respondent had actually formed such opinion.

Held, as to (1), that the word 'acquired' was used in s 3(2)(d)(ii) of the 1971 National Roads Act in relation to the use of the land and connoted the acquisition of a right in the nature of a road servitude, and not of the dominium of the land.

Held, further, that, having regard to the provisions of s 4 of Ord 22 of 1957, the fifth respondent, upon proclamation of a public road, acquired control of such road and thereby in effect acquired the use of the land, C and it was not necessary for the fifth respondent to enter upon the land to acquire such use (Nicholas AJA dissenting on this point).

The dictum in Thom en 'n Ander v Moulder 1974 (4) SA 894 (A) at 905C-D applied.

Held, further, that, even if it was necessary for the fifth respondent to have entered upon and taken possession of the land in question, the D evidence justified the conclusion that that had happened.

Held, further, as to the appellants' further contention that there had been no valid proclamation of a public road as the fifth respondent was not empowered by Ord 22 of 1957 to proclaim a public road which he did not want merely to pave the way for a national road which he could not declare, and that there was no provision permitting a joint use of powers by the State President and the fifth respondent to enable them together to achieve the result of a national road, that such contention had been rejected: as conceded by the appellants' counsel, such E contention would mean that the State President could never declare a national road over land where no road previously existed since the fifth respondent was not empowered to proclaim the necessary public road over that land in order to pave the way for the proposed national road; and it was inconceivable that the Legislature could ever have contemplated such an absurd result.

Held, accordingly, that there had been a valid acquisition of the use of the land for the purpose of a national road as required by s 3(2)(a)(ii) F of the 1971 National Roads Act for a proper designation by the third respondent.

Held, further, as to (2), and as to the contention that the appellants had owned the land in question, that third respondent had deprived them of that ownership by way of the said designation and subsequent transfer, that such conduct was prima facie wrongful and that the onus was therefore on the respondents to justify the designation and G transfer, that the issue in the present case was the ownership of the land in question: the appellants had not approached the Court as the registered owners of the property; the ownership thereof no longer vested in the appellants, but in the first respondent.

Graham v Ridley 1931 TPD 476 and Chetty v Naidoo 1974 (3) SA 13 (A) distinguished.

Held, further, that the change of ownership and consequent transfer of the property had been authorised by the designation by the third respondent in terms of s 3(2)(a)...