Hume Housing v Hibiscus Coast Municipality

• Jurisdiction: South Africa
• Judge: Kruger J, Balton J and Masipa J
• Judgment Date: 30 August 2019
• Citation: 2019 JDR 1598 (KZD)
• Hearing Date: 29 July 2019
• Court: KwaZulu-Natal Division, Durban
• Docket Number: AR 552/18

Kruger J:

[1]

On the 18th April 2018, van Zÿl J granted judgment in the following terms:

"(a)

Judgment is granted in favour of the plaintiff against the defendant for payment of:

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(i)

R2 200 000,00 exclusive of VAT, as compensation for the properties, namely Erven 2155 to 2164, 2170 to 2191 and 2197 to 2208 of Gamalakhe Township, KwaZulu-Natal.

(ii)

The sum of R55 000,00 as a solatium.

(iii)

VAT on the aforesaid sums at the applicable rate.

(iv)

Interest on the said sums calculated at the rate and in the manner consistent with the provisions of s12(3)(a) of the Expropriation Act 63 of 1975 and with effect from 26 November 2010 to date of payment both dates inclusive.

(b)

The defendant will pay the costs:

(i)

Of the action under case number 13433/2011D, including the costs of senior counsel, where employed.

(ii)

Of the application under case number 14041/10D, which will also include the costs reserved by Vahed AJ in para 10 of the order of 21 November 2011, including the costs of the proceedings on 10 and 17 December 2010 and 21 January 2011.

(iii)

The costs of the application for leave to appeal against the order of Koen J dated 10 August 2012 in the application under case number 13433/2011D

(c)

Absolution from the instance is granted on the defendant's claim in reconvention in the action under case number 13433/2011D and the defendant will pay the costs thereof."

[2]

The Appellant (who was the Plaintiff in the Court a quo) lodged an appeal in respect of paragraph (a)(i) of the aforesaid order. The Respondent (Defendant in the Court a quo) lodged a cross-appeal in respect of the entire judgment.

BACKGROUND

[3]

The Appellant is the registered owner of the immovable properties described as Erven 2155 to 2164, 2170 to 2191 and 2197 to 2208, inclusive of the road reserve, situate in Gamalakhe Township, KwaZulu-Natal (hereinafter referred to "the

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properties"). It had acquired the said properties for purposes of a housing development.

[4]

Sometime after it acquired the properties, the properties were invaded and occupied by informal settlers who subsequently constructed various types of dwellings thereon. It is common cause that these dwellings were illegally constructed on the properties. Given the potential threat of violence, the Applicant negotiated with the Respondent for the possible sale of the properties to the Respondent at a fair and reasonable price. These negotiations however failed.

[5]

Approximately twenty years later negotiations resumed between the parties. [1] It was ultimately resolved that the Respondent would acquire the properties from the Appellant "paying fair compensation to the Applicant". This clearly was the intention of the parties although the record of the meeting reflects that the word "expropriation" was used interchangeably.

[6]

Despite this consensus, there were no further developments. As a result the Appellant, by way of Notice of Motion, dated 25th November 2010, (Case No. 14041/10D) sought, inter alia, an order for the eviction of the illegal occupiers. In the alternative it sought an order directing, inter alia, the Respondent to "acquire the properties from the Applicant against payment of the sum of R2 508 000,00". The Respondent opposed the application. On 21st November 2011 the matter presented before Vahed AJ (as he then was). Counsel representing the parties drafted an order, which was granted by Vahed AJ, in the following terms:

"1.

It is recorded that the terms of the order about to be made have been settled as amongst counsel but for the fact that the order is not going to be one by consent.

2.

It is recorded that Attorneys Shepstone & Wylie and Mr Goddard appear for the 1st Respondent and the 5th to 38th Respondents.

3.

That the 1st Respondent will acquire the properties referred to in the application, which are owned by the Applicant, once compensation determined as set out below has been paid. The 1st Respondent shall be entitled to effect transfer into its own name or into the name of its nominee(s).

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4.

That the compensation will be determined in accordance with Section 12(1), 12(2) and 12(3) of the Expropriation Act 63 of 1975.

5.

That the Applicant will deliver a summons and particulars of claim within 10 days. The 1st Respondent will deliver a plea and counterclaim, if any, within 10 days thereafter...