Oertel and Others NNO v Director of Local Government and Others
Jurisdiction | South Africa |
Citation | 1981 (4) SA 491 (T) |
Oertel and Others NNO v Director of Local Government and Others
1981 (4) SA 491 (T)
1981 (4) SA p491
Citation |
1981 (4) SA 491 (T) |
Court |
Transvaal Provincial Division |
Judge |
Irving Steyn J, Moll J and Nestadt J |
Heard |
February 25, 1981 |
Judgment |
August 11, 1981 |
Flynote : Sleutelwoorde
E Prescription — Extinctive prescription — Debts which can become prescribed in terms of Act 68 of 1969 — Public rights excluded from operation of the Act — "Debt" in Act restricted to claims arising in the field of private law — Running of prescription against the State — Common law limitations on — Based on broad considerations of public policy — Nature of F limitations — Such principles not altered by s 13 (1) and (3) of Act 18 of 1943 or by Act 68 of 1969 — Act 68 of 1969 ss 18 and 19 — Common law limitations still applicable.
Prescription — Extinctive prescription — Conditions of establishment of a township imposed by Administrator in terms of s 62 of Ord 25 of 1965 (T) G — Such give rise to rights exercisable in terms of s 87 of Ordinance for the benefit of the public in general or for a class thereof, viz future inhabitants of township and users of its roads — Such rights inalienable and not capable of prescribing — Clause in conditions of establishment concerning scheme for storm-water disposal and the construction of streets and the carrying out of such scheme at township owner's expense — Such to H the benefit of the public and not subject to prescription in terms of Act 68 of 1969.
Insolvency — The trustee — Sales — Act 24 of 1936 s 82 — Obligations of trustee under section presuppose sale of estate property not unlawful or prohibited — Sale of erven belonging to estate prohibited by s 71 of Ord 25 of 1965 (T) — Provisions of s 82 of Act, even if applicable, to yield to those of s 71 of the Ordinance.
Township — Approval of — Administrator imposing certain conditions of establishment in terms of s 62 of Ord 25 of 1965 (T) — Such giving
1981 (4) SA p492
rise to rights exercisable under s 87 of Ordinance for the benefit of the public in general or for a class thereof, viz future inhabitants of A township and users of its roads — Such rights inalienable and not capable of prescribing in terms of Prescription Act 68 of 1969 — Clause in conditions of establishment concerning scheme for stormwater disposal and the construction of streets and the carrying out thereof at township owner's expense — Such to the benefit of the public and not subject to prescription in terms of Act 68 of 1969.
B Township — Approval of — Sale of erven in prohibited by s 71 of Ord 25 of 1965 (T) — Provisions of s 82 of Insolvency Act 24 of 1936, even if applicable, to yield to those of s 71 of Ordinance — Obligations of trustee or liquidator of township owner under s 82 of Act presuppose that sale of estate property not unlawful or prohibited. C
Headnote : Kopnota
Public rights are excluded from the operation of the Prescription Act 68 of 1969 and "debt" in the Act must necessarily be restricted to such claims as arise in the field of private law. Whilst every debt encompasses an obligation, not every obligation constitutes a debt for the purposes of the Prescription Act.
Whilst the exact juristic basis of the limitation on the running of D prescription, whether acquisitive or extinctive, against the State is not given in our common law authorities, it would appear to rest not so much on the nature of the obligation per se but on broad considerations of public policy akin to the Crown prerogative of the English law. The limitations apply where the right or property in question is respectively exercised or set aside for the benefit of the public as opposed to the case where the State engages in commercial enterprises and acts as an ordinary creditor for its own direct benefit only.
E Section 13 (1) and (3) of the Prescription Act 18 of 1943 did not alter the common law principles referred to above but were simply designed to give them statutory recognition. Having regard to the provisions of s 18 of the Prescription Act 68 of 1969, and notwithstanding s 19 of Act 68 of 1969, the Roman-Dutch restrictions on the running of prescription against F the State still apply. Conditions of establishment of a township, imposed by the Administrator in terms of s 62 of the Town-Planning and Townships Ordinance 25 of 1965 (T), because a breach of such a condition is an offence, have "the force of law "or" statutory force" or such obligation is "a statutory obligation". This is entirely inconsistent with the Director of Local Government and the local authority concerned acting as an ordinary creditor in a commercial transaction (in enforcing such conditions). Such obligations give rise to rights exercisable, in terms G of s 87 of the Ordinance, by the Director of Local Government and the local authority concerned, if not for the benefit of the public in general, then for a class thereof, viz the future inhabitants of the township and the users of the roads therein, rights which are inalienable and which are accordingly not capable of prescribing.
Accordingly, the Court held that a clause in the conditions of H establishment of three residential townships, in terms whereof the township owner was to submit to the local authority concerned for its approval a detailed scheme for the collection and disposal of storm-water in the townships and for the construction of streets therein and, immediately after the approval of the scheme by the local authority, to carry it out at its own expense, imposed by the Administrator in terms of s 62 of Ord 25 of 1965 (T), gave rise to rights which were for the benefit of the public and were of a kind which, despite the Prescription Act 68 of 1969, were not, in accordance with common law principles, subject to prescription.
The obligations imposed on a trustee and liquidator under s 82 of the Insolvency Act 24 of 1936 obviously presuppose that the sale of estate property
1981 (4) SA p493
is not unlawful or prohibited. Where the sale of erven belonging to an estate is prohibited by s 71 of Ord 25 of 1965 (T), the provisions of s 82 of Act 24 of 1936, even if applicable, have to yield to those in s 71 of the Ordinance.
A The decision in the Transvaal Provincial Division in Oertel and Others NNO v Director of Local Government and Others 1981 (2) SA 77 confirmed.
Case Information
Appeal from a decision of LE ROUX J, sitting in the Transvaal Provincial Division, The facts appear from the reasons for judgment.
I A Maisels Q C (with him P J van Blerk) for the appellants.
I W B de Villiers S C (with him W J van der Merwe) for the first and third respondents. B
No appearance for the second respondent.
Cur adv vult.
Postea (August 11). C
Judgment
Nestadt, J.:
The Prescription Act 68 of 1969, and the Transvaal Town-Planning and Townships Ordinance 25 of 1965 (together with their respective predecessors) have over the years separately been the source of D much litigation and resultant case law. Indeed the former has been described as "the favourite whipping-boy of Judges, counsel and writers" (Hahlo and Kahn The Union of South Africa: The Development of its Laws and Constitution at 497). The present matter stems from a dispute between the E parties as to how they operate in relation to each other. The main issue that arises for determination is whether the right arising from an obligation imposed by certain conditions of establishment, subject to which the Administrator in terms of the Ordinance declared certain townships to be approved ones, is capable of prescribing under the Act.
In order to facilitate a proper appreciation of the facts and the nature F of the obligation (which will have to be enquired into) I intend to briefly recite (in the present tense) the procedure for the establishment of a township as it existed in the Transvaal at the time material to this matter, viz 1972, as also to refer to certain other relevant sections of G the Ordinance. The owner of any land who proposes to establish a township thereon must apply in prescribed form to the Director of Local Government for permission to do so (s 58 (1) (a)). At the same time a copy of the application is to be lodged with the local authority in whose area of jurisdiction the land is situated; it must within 12 weeks (or an extended time) submit its comments to the Director and at the same time indicate H whether the hereinafter referred to services can be supplied or not (s 58 (1) (b)). The Director is enjoined to refer the application to the Townships Board, but only if he is satisfied that such services as he deems essential for the proper development of the township can be supplied within a period of not more than three years after the date of the application. For this purpose the applicant is required to furnish such information as may be prescribed or required by the Director who is then to notify the applicant and the local authority that he is so satisfied (s 58 (1A)). After receipt of the latter
1981 (4) SA p494
Nestadt J
notice, the applicant shall, if the land is situated within the area of a local authority, within three years after the date of the application, furnish a guarantee to the satisfaction of the local authority concerned A for the fulfilment of his obligations as previously agreed to by himself and such local authority in respect of the supply of the services referred to. The local authority is required then to inform the Director that a satisfactory guarantee has been furnished (s 58 (1B) (a)). It is only after these requirements have been met that an applicant is entitled to B sell erven in the township (s 58 (1C)). The application is then published by the Director in the Provincial Gazette and in a newspaper in terms of s 58 (5). In terms of s 58 (6), any person who wishes to object to the...
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