Local Transitional Council of Delmas and Another v Boshoff
Jurisdiction | South Africa |
Judge | Mpati DP, Scott JA, Brand JA, Nugent JA and Cloete JA |
Judgment Date | 31 May 2005 |
Citation | 2005 (5) SA 514 (SCA) |
Docket Number | 302/2004 |
Hearing Date | 10 May 2005 |
Counsel | L I Vorster SC (with him L S de Klerk) for the appellants. H J de Vos SC (with him P Z Ebersohn) for the respondent. |
Court | Supreme Court of Appeal |
Brand JA:
[1] In the previous political dispensation the black inhabitants of Delmas lived on the outskirts of the town in the township of Botleng. The local government responsible for Botleng was not the Municipality of Delmas but a separate entity called the Botleng town G committee. When Botleng became hugely over-populated, the town committee found a locality for the establishment of a new township, six kilometres outside Delmas on a property known as division 4 of the farm Middelburg.
[2] With the approval and active assistance of the then Transvaal Provincial Administration, the town committee acquired the H farm and proceeded to utilise it for the establishment of a township pursuant to the provisions of the Less Formal Township Establishment Act 113 of 1991 (the Act). The township later became known as Botleng Extension 3, or Botleng 3 for short. In October 1993 the town committee, again with the approval and assistance of the Transvaal I Provincial Administration, commenced allocating erven in Botleng 3 to approved occupiers and permitted them to erect their informal dwellings on these erven.
[3] The respondent (plaintiff) is the owner of the remainder of the farm Middelburg in the district of Delmas. It borders on division 4 of the J
Brand JA
farm Middelburg which eventually became Botleng 3. The boundary between the two properties is over two kilometres long and A the nearest informal structures in Botleng 3 are only 300 metres from the boundary. The plaintiff acquired his farm in 1988. After that, he conducted his agricultural activities on the farm where he also lived with his family. All this came to an end, the plaintiff alleged, when in June 1994 he was effectively driven from his farm, together with his family, through the conduct of some of the inhabitants of Botleng 3. B
[4] Based on these allegations, the plaintiff instituted action against the two appellants in the Pretoria High Court for the damage that he suffered through the loss of his farm. The first appellant was sued in its capacity as the statutory successor to the rights and C obligations of the former Botleng town committee while the case against the second appellant was based on its succession to the rights and obligations of the erstwhile Provincial Administration of Transvaal. For the sake of convenience I will refer to the first appellant and its predecessor as 'the town committee'; to the second appellant and its predecessor as 'the province'; and to the two appellants jointly as D 'the defendants'.
[5] At the commencement of the trial, the Court a quo (Southwood J), at the behest of the parties, ordered a separation of issues in terms of Rule 33(4) of the Uniform Rules of Court. It was accordingly ordered that the merits of the defendants' liability E for the plaintiff's damages were to be decided first, while all other issues, including those pertaining to the quantum of such damages, were to stand over for determination at a later stage. Though this formulation of the separated issues may sound simple enough, it will soon transpire that no-one actually appreciated what it meant. At the end of the separate proceedings, the Court a quo held F that the defendants were liable for the plaintiff's damages in the amount that he could prove in the next stage of the proceedings. The appeal against that judgment is with the leave of this Court.
[6] The facts are largely common cause. The plaintiff's own testimony was that, prior to October 1993, the agricultural activities on his farm consisted of cultivating wheat crops and grazing for his G livestock, including cattle and sheep. He also sold timber from the trees on the farm. After October 1993 when the inhabitants of Botleng 3 started moving in, the plaintiff testified, life gradually became intolerable for him and his family. First, there was the smoke pollution from many open fires. Then the contamination of his H water - both underground and in the river on his farm - with raw sewerage. His livestock was stolen and died from consuming plastic bags originating from Botleng 3 so that, in the end, he was compelled to sell all his cattle and sheep. His crops were destroyed by livestock straying from Botleng 3 while the trees which he formerly sold were cut down for firewood. His outbuildings were burnt down and other improvements on the farm either removed or I destroyed. Eventually he and his family were subjected to threats of violence and even of death. As a consequence of all this, he was forced, together with his family, to leave his farm in June 1994 and he has never been able to return. J
Brand JA
[7] The procedures followed for the establishment of Botleng 3 appear from the evidence of a town planner, Mr S A R Ferero, who was A called to testify on behalf of the plaintiff. His evidence was mainly based on information that he gathered from the files of the province. Chapter 2 of the Act required two applications for the establishment of a less formal township in terms of the Act, both to be directed at the erstwhile Administrator. First an application, in terms of s 10 of the Act, for his approval, in principle that the establishment of such a B township was necessary. Then, if successful, an application in terms of s 11 for his formal permission to establish the township. The latter application had to comply with the regulations promulgated under the Act. One of the requirements of these regulations was a so-called impact study to determine the effect of the proposed township on C properties situated within one kilometre of its location.
[8] According to Ferero, both the s 10 and the s 11 applications were handled on behalf of the town committee by a firm of urban development consultants, called Terraplan. The application in terms of s 10 was approved by the Administrator of the Transvaal on D 3 March 1993. Terraplan then proceeded with the s 11 application. It is common cause that this application did not comply with the regulations in that an impact study of the effect on neighbouring properties had not been done. Despite these shortcomings in the s 11 application, the establishment of Botleng 3 was formally approved by E the Administrator on 17 March 1995.
[9] The Administrator's approval of a township did not in itself authorise the town committee to permit occupation of the erven or to allow the erection of structures in Botleng 3. On the contrary, s 13 of the Act specifically provides that no person shall allocate F any erven or erect any building in the proposed township before a township register has been opened in accordance with s 17 of the Act. The township register in respect of Botleng 3 was only opened on 27 September 1996. Despite these provisions, the township committee allowed the inhabitants of Botleng 3 to take possession of the erven allocated to them and to erect their informal structures on G these erven from as early as October 1993. These contraventions of the Act by...
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