Harvey v Umhlatuze Municipality and Others

• Jurisdiction: South Africa

Harvey v Umhlatuze Municipality and Others
2011 (1) SA 601 (KZP)

2011 (1) SA p601

Citation	2011 (1) SA 601 (KZP)
Case No	4387/08
Court	KwaZulu-Natal High Court, Pietermaritzburg
Judge	YN Moodley AJ
Heard	December 3, 2010
Judgment	November 29, 2010
Counsel	AA Gabriel for the applicant.; AJ Rall SC (with P Blomkamp) for the first respondent.

Flynote : Sleutelwoorde E

Constitutional law — Human rights — Right to property — Expropriation — Purpose — Change in purpose of use of property after expropriation — Property initially expropriated for public purpose, which purpose later proving F unfeasible — Municipality then rezoning property for another purpose — Former owner not entitled to reclaim property where municipality responding to changed circumstances and acting in good faith, as well as complying with statutory duties — Constitution, ss 25 and 33.

Expropriation — Purpose — Change in purpose of use of property after expropriation G — Property initially expropriated for public purpose, which purpose later proving unfeasible — Municipality then rezoning property for another purpose — Former owner not entitled to reclaim property where municipality responding to changed circumstances and acting in good faith, as well as complying with statutory duties — Constitution, ss 25 and 33. H

Headnote : Kopnota

A municipality had planned to develop a certain area for use as a public open space with recreational facilities, and expropriated the applicant's property, on which he resided, for this purpose, along with several other properties. The applicant was paid an agreed compensation. When the plans to develop the area for this purpose turned out to be unfeasible, the municipality decided instead to use the area for a medium-density residential development. I The area was rezoned accordingly.

Asserting his rights to property and to just administrative action under ss 25 and 33 of the Constitution, the applicant claimed the return of his property on the basis that the municipality, having expropriated his property for a specific purpose, could not then use it for a purpose unrelated to the purpose initially relied upon. The applicant argued that a property could J

2011 (1) SA p602

A only be expropriated for a public purpose, or in the public interest. It followed that, if this public purpose fell away, the expropriation was no longer legally sustainable.

Held, that the applicant no longer had any right of ownership in the properties. That right had been divested from him when the properties were expropriated by the municipality, in which ownership then vested. The expropriation B was for a legitimate public purpose, was not arbitrary, and the applicant had been paid compensation in terms of a settlement agreement. It was not open to the applicant to rely on any present right of ownership to the properties, and to claim an infringement of such right in respect of the manner in which the first respondent administered and dealt with the properties. Indeed, the applicant did not pitch his case at that level, but C instead sought to bring his case within the purview of s 25 of the Constitution, on the basis that, once the purpose for which the properties were expropriated changed, he, as the previous owner of the properties, had a right to reobtain them. (Paragraph [122] at 641C – F.)

Held, further, that there was no principle of law under which property, that was D expropriated for a public purpose that was never realised (or for a purpose that ceased to exist), should be returned to the original owner, even if compensation was paid for it. Our legislature has thus far not enacted any statutory provision entitling the person to reclaim property expropriated from him if the purpose for which it was expropriated was not realised. (Paragraphs [133] and [135] at 649E – F and 650C.)

E Held, further, that the municipality had complied with the requirements laid down by our courts for valid expropriation: (a) it complied with the machinery laid down in the relevant legislation; (b) it was for the purpose there laid down and not for any alternative purpose; (c) it was done honestly and bona fide. At the time of the expropriation the first respondent intended using the expropriated properties for a public purpose, and to that extent it acted in good faith. (Paragraph [136] at 651A – C.)

F Held, further, that what should come to the fore, in every expropriation of property for a public purpose, is that the expropriating authority acted in good faith. (Paragraph [125] at 644F.)

Held, further, that it was in the nature of things that circumstances changed, and authorities could not foresee their future perfectly. Indeed, the present G matter illustrated how circumstances could change in an unforeseen way so that a project contemplated by planning authorities could not be brought to fruition. (Paragraph [138] at 651G – 652E.)

Held, further, that it could not on the facts of the present case be said that the first respondent had not acted in good faith when it expropriated the properties, and, when it rezoned the properties, consolidated them, and sold them H en bloc. These acts on the part of the respondent were in respect of properties which it owned, and the fact that the properties previously belonged to the applicant did not give rise to any duty on the part of the first respondent to sell the properties back to the applicant. (Paragraph [146] at 655D – E.)

Held, further, that the first respondent was, as an organ of State, duty-bound to I consider the interests of the municipality and its residents, over the personal interests of the applicant. A municipality also had administrative responsibilities to the community it served. The first respondent had been obliged to deal with the expropriated properties, as far as town-planning matters and their disposal were concerned, just as it did with its other properties, by taking into account the interests of the municipality and all relevant (including changed) circumstances. (Paragraphs [147] and [148] at 655F – I.) J

2011 (1) SA p603

Held, further, that the municipality had decided to follow its Supply Chain A Management Policy, which complied with the constitutional requirements that contracts for goods or services must be in accordance with a system which is fair, equitable, transparent, competitive and cost-effective. (Paragraph [149] at 656A – B.)

Held, accordingly, that the applicant did not acquire any right to reacquire the B properties when the first respondent had changed the purpose of their use, and the applicant could not rely on any infringement of the rights contained in s 25 of the Constitution to reacquire the properties. (Paragraph [150] at 656C – D.)

Held, further, that the circumstances in relation to the original intended use of the expropriated properties could not be realised. The municipality, in fulfilment of its duties, considered that it would be unfair preferential treatment C if it were to allow the applicant to repurchase its erstwhile properties. It considered that a fair way to dispose of the properties would be through its Supply Chain Management Policy, and it duly proceeded to dispose of them under that policy. It could not be said that the municipality's decision was unfair and therefore arbitrary, according to the tests set out by our Constitution, legislation and the courts. (Paragraph [173] at 664F – H.) D Application dismissed.

Cases Considered

Annotations:

Reported cases

Southern Africa E

Administrator, Transvaal, and Another v J van Streepen (Kempton Park) (Pty) Ltd 1990 (4) SA 644 (A): dictum at 661C – D applied

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) ((1991) 12 ILJ 259): referred to

African National Congress (Border Branch) and Another v Chairman, Council of State of the Republic of Ciskei, and Another 1992 (4) SA 434 (Ck) (1994 (1) BCLR 145): F referred to

Associated Institutions Pension Fund and Others v Van Zyl and Others 2005 (2) SA 302 (SCA) ([2004] 4 All SA 133): referred to

Bel Porto School Governing Body and Others v Premier, Western Cape, and Another 2002 (3) SA 265 (CC) (2002 (9) BCLR 891): referred to

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014): G referred to

Botha v White 2004 (3) SA 184 (T) ([2003] 2 All SA 362): referred to

Broadway Mansions (Pty) Ltd v Pretoria City Council 1955 (1) SA 517 (A): referred to

Brümmer v Minister for Social Development and Others 2009 (6) SA 323 (CC): referred to H

Bullock NO and Others v Provincial Government, North West Province, and Another 2004 (5) SA 262 (SCA) ([2004] 2 All SA 249): referred to

Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1974 (2) SA 125 (C): referred to

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) (1996 (1) SACR 587; 1996 (5) BCLR 609): I referred to

City of Cape Town and Another v Robertson and Another 2005 (2) SA 323 (CC) (2005 (3) BCLR 199): referred to

Compass Waste Services (Pty) Ltd v NCTD and Others [2005] 4 All SA 425 (NC): referred to

De Freitas v Somerset West Municipality 1997 (3) SA 1080 (C): referred to J

2011 (1) SA p604

Du Preez and Another v Truth and Reconciliation Commission 1997 (3) SA 204 (A) (1997 (4) BCLR 531; [1997] 2 All SA 1): dictum at 231 – 232 applied A

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253): referred to

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458): referred to B

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