M & J Morgan Investments (Pty) Ltd and Another v Pinetown Municipality and Others

• Jurisdiction: South Africa
• Judge: Olivier JA, Van Heerden JA, Howie JA, Scott JA and Zulman JA
• Judgment Date: 30 May 1997
• Citation: 1997 (4) SA 427 (SCA)
• Docket Number: 422/95
• Hearing Date: 16 May 1997
• Counsel: M Pillemer for the appellants D Gordon for the first respondent No appearance for the second and third respondents
• Court: Supreme Court of Appeal

Olivier J A:

The first appellant is the registered owner of immovable property, a stand known as lot 4580, which is situated within the area of Pinetown Municipality. It is 8089 m/2 in extent. It has been developed by the erection on it of 42 flats in the form of three low-rise blocks known as Morgan Hall. The second appellant is the chairman of the Morgan Hall Residents D Association. The first respondent is a local authority in terms of the Local Authorities Ordinance 25 of 1974 (N) ('the ordinance'). The second respondent is the Minister of Housing and Local Government for the province of KwaZulu-Natal in whom the powers relating to expropriation of property by local authorities, which had formerly vested in the Administrator E for the province of Natal in terms of the ordinance, have now been vested in terms of the provisions of the Constitution of the Republic of South Africa Act 200 of 1993 (the Constitution). Third respondent is the Premier of the province of KwaZulu-Natal.

In 1986 the Durban Metropolitan Transport Board had a report prepared which deals with F traffic congestion and other problems which it was anticipated would arise in the foreseeable future in the central areas of the Durban metropolitan network, including Pinetown. As a result of the projections and findings in this report the first respondent employed a firm of consulting engineers and planners to make recommendations for a solution to the traffic problem as it G affects Pinetown. They brought out a report in July 1992 in which they made recommendations relating to the central business district of Pinetown.

These recommendations were accepted by the first respondent. To give effect to these recommendations would involve expropriating portions of immovable properties in private ownership for street widening purposes. Lot 4580 Pinetown would be one such property. H

Lot 4580 is a piece of land, bounded on the western side by Crompton Street and on the south by Morgan Road, the two streets meeting at right angles. According to the recommendations, it would be necessary to take a portion of lot 4580 and also of the adjacent piece of land, remainder of lot 2034, so as to make provision for a curving corner at the intersection of I Crompton Street and Morgan Road. It was proposed to take 1 550 square metres from lot 4580.

On 13 December 1993 the first respondent set in motion the legal steps designed to lead to the expropriation of the said portion. These steps also led to an application made by the appellants in the Natal Provincial Division in August 1994 and to this appeal. J

Olivier J A

Before discussing the litigation further, I should explain the prescribed legal steps which had to A be followed by the first respondent in endeavouring to expropriate land within its area.

A local authority in KwaZulu-Natal derives its power to expropriate immovable property from the provisions of s 190 of the ordinance which, insofar as material, reads as follows: B

'(1) Subject to the provisions of the Expropriation Act 63 of 1975, and the succeeding provisions of this section, the council may, for the purpose of exercising or performing any power, duty or function conferred or imposed on it by or under this ordinance or any other law, expropriate or take the right temporarily to use immovable property within or without the borough. . . . C

(2) A decision in terms of ss (1) to expropriate or take the right temporarily to use immovable property shall not be valid except under authority of a resolution passed by a majority of the total number of councillors for the borough.

(3) Whenever the council has taken a decision in accordance with the provisions of ss (2) it shall cause a notice to be served on the owner of the immovable property concerned - D

(a)

containing a description sufficiently clear to identify such immovable property; and

(b)

informing such owner that -

(i)

it intends to expropriate or take the right temporarily to use such immovable property; and

(ii)

any objections he may have to the proposed expropriation or taking may be lodged with E the town clerk within thirty days of the service of such notice,

and after the service of such notice any person who effects improvements to, demolishes, damages, alters or in any other manner impairs such immovable property shall be guilty of an offence.

(4) After the expiration of the period of thirty days contemplated by ss 3(b)(ii) the council shall - F

(a)

transmit to the Administrator the objections (if any) lodged by the owner in terms of ss 3(b)(ii) together with its comments thereon and a certificate by the town clerk that the provisions of ss (3) have been complied with, and G

(b)

obtain the Administrator's approval of the proposed expropriation or taking as the case may be.

(5)(a) If the Administrator approves the proposed expropriation or taking the council may proceed to expropriate or take the right temporarily to use the immovable property concerned in accordance with the provisions of the Expropriation Act 63 of 1975.

(b) If the Administrator does not approve the proposed expropriation or taking, the immovable H property concerned may be dealt with as if the notice contemplated by ss (3) had never been issued.

(6) The provisions of ss (3) and (4)(a) shall not apply to or in respect of the expropriation of or the taking of the right temporarily to use immovable property for the purposes of -

(a)

storm, surface or subsoil drainage; or

(b)

sewerage, I

whether upon or under the surface of any land.

(7) For the purpose of this section ''immovable property'' includes any right, interest or servitude in or over immovable property.'

A local authority's right to expropriate immovable property is therefore strictly circumscribed. It may expropriate immovable property only for the purpose of exercising or performing any power, duty or function J

Olivier J A

conferred or imposed on it by the ordinance or any other law and then only, except where s A 190(6) applies, with the approval of the Administrator which can only be given in respect of a specific property or specific properties or portions thereof. Before the local authority can seek the Administrator's approval it has to take a decision in terms of s 190(2) and thereafter take B the steps and comply with the procedure laid down in s 190(3) and (4). Only after the approval of the Administrator has been obtained may the local authority proceed to expropriate the immovable property in respect of which such approval has been obtained. It does so by serving a notice of expropriation in terms of s 7 of the Expropriation Act and complying with C the provisions of that Act. The local authority therefore acquires the right to expropriate a particular property or portion of it by adopting a resolution in terms of s 190(2); and by complying with the procedure laid down in ss 190(3) and (4) and obtaining the requisite approval of the Administrator (s 190(5)(a)), but the expropriation itself is effected under the provisions of the Act (s 190(5)(a)). D

The function of the Administrator in terms of s 190 of the ordinance is exercised under the Constitution by the Premier of KwaZulu-Natal, who has delegated his authority to the second respondent. For the sake of simplicity and because certain of the events in regard to this matter occurred before the Constitution took effect, I shall refer throughout to the functionary in whom E the authority now vests as the Administrator.

On 13 December 1993 the Town Council of the first respondent adopted the following resolution:

'1. That subject to compliance with the formalities and in order to proceed with the upgrading of roads in the Pinetown CBD, authority be granted for the Executive Director: Corporate Services to F expropriate...