Minister of Transport v Du Toit

• Jurisdiction: South Africa
• Judge: Howie P, Harms JA, Farlam JA, Cameron JA and Heher JA
• Judgment Date: 28 May 2004
• Citation: 2005 (1) SA 16 (SCA)
• Docket Number: 615/02
• Hearing Date: 13 May 2004
• Counsel: W de Haan for the appellant. R S van Riet SC for the respondent.
• Court: Supreme Court of Appeal

Heher JA:

[1] Moordenaarskop is a hill on the farm Hooi Kraal in the Swellendam district. No doubt its history was bloody. It certainly has B a heart of stone that has been the cause of the litigation in this matter. To its north runs the N2/5 highway and to its south the Witsand road (MR271). Both need to be maintained and upgraded from time to time. This appeal involves a claim by Mr Du Toit, the owner of the farm, to be compensated for 80 198 cubic metres of gravel excavated C and removed on behalf of the South African Roads Board pursuant to a notice issued in terms of s 8(1)(c) of the National Roads Act 54 of 1971 read with s 12(1)(b) of the Expropriation Act 63 of 1975 (the Act). In the Cape Provincial Division Jamie AJ upheld the claim and awarded the respondent compensation of R240 594 plus a solatium of R17 029,70 (s 12(2) of the Act), interest D at the prescribed rate and costs. His judgment is reported as Du Toit v Minister of Transport 2003 (1) SA 586 (C). The present appeal is with leave of the Court a quo.

[2] The farm is some 614 hectares in extent. The notice of expropriation concerned two small areas of which only a portion of 3,03 E hectares on which Moordenaarskop stands is relevant to the dispute. The expropriation took effect on 17 November 1997 from which date possession of the land was taken by the contractors of the Board for a purpose described in the notice and its accompanying letter as the exercise of a temporary right to use the land for a period of 18 months as a borrowpit and access road. F

[3] When the parties could not reach agreement on the amount of compensation Du Toit sued for payment of R801 980. He alleged that the expropriation was properly one in terms of s 8(1)(b) of the National Roads Act and that the correct measure of compensation was to G be found in s 12(1)(a) of the Act, viz the market price of the gravel taken by the Board. He relied in the alternative on the right to just and equitable compensation enshrined in s 25(3) of the Constitution. The Minister of Transport resisted the claim. He tendered compensation in an amount of R6 060 for the actual financial loss suffered by Du Toit in consequence of the expropriation H (s 12(1)(b)), which, he pleaded, was an amount not higher than the full market value of the portion of land taken, viz R2 000 per hectare, plus the solatium in an amount of R606. The Minister pleaded in the alternative that should s 12(1)(a) of the Act be applicable, the open market value of the in situ gravel on the date of expropriation did not exceed its value as I agricultural land and that no willing buyer and seller would negotiate any premium for the presence of gravel in the land. The matter proceeded to trial. Both parties produced expert evidence relating to the nature and extent of gravel deposits on and in the vicinity of the farm and the market for gravel. Du Toit testified J

Heher JA

about his sales of gravel from the farm and eventual application for a licence for a A quarry which he opened subsequent to the expropriation.

[4] Jamie AJ found that the Board had taken a temporary right which comprised the use of the land and the permanent removal of gravel during that use. Counsel for Du Toit submitted that the learned Judge had erred: The principal source of the expropriation power was to be B found in s 8(1)(b) of the National Roads Act and not in s 8(1)(c) alone. Consequently there had been a permanent expropriation of the gravel which required compensation by the measure of its market value under s 12(1)(a) of the Act and not the mere taking of a temporary use right to which s 12(1)(b) would apply. I am unable to agree. Section 8(1)(c) C authorises the Board to take the right to use land temporarily 'for any purpose for which the Board may expropriate that land'. Such purposes, according to s 8(1)(a), include 'works or purposes in connection with a national road, including any access road, the acquisition, mining or treatment of gravel, stone, sand, clay, water or any other material or substance . . .'. The mining and acquisition of the materials referred to in that subsection will D inevitably result in a permanent deprivation of the ownership in those materials. The Board did exactly as the power provided. Section 8(1)(b), by contrast, empowers the Board to 'take gravel, stone, sand, clay, water or any other material or substance on or in the land for the construction of a road or for works or for purposes E referred to in para (a)'. Without attempting any in-depth comparison of this power with that in s 8(1)(c) it is sufficient to point out that the last-mentioned section couples the taking of materials with a temporary right of use of land whereas s 8(1)(b) does not. That, of itself, rendered s 8(1)(b) inapposite to the powers which the Board wished to exercise. I conclude, therefore, that Jamie AJ was correct in F regarding s 8(1)(c) as the source of the Board's powers in this case and also in his analysis of the dual nature of such powers.

[5] The learned Judge...