Oudekraal Estates (Pty) Ltd v City of Cape Town and Others

• Jurisdiction: South Africa
• Judge: Navsa JA, Van Heerden JA, Ponnan JA, Mhlantla JA and Wallis AJA
• Judgment Date: 03 September 2009
• Citation: 2010 (1) SA 333 (SCA)
• Docket Number: 25/08
• Hearing Date: 18 August 2009
• Counsel: A Binns-Ward SC (with P Farlam and K Pillay) for the appellant. M Seligson SC and J Muller SC (with Edmunds for the first respondent. AM Breitenbach SC for the second respondent. RO Petersen SC and EW Fagan SC for the third respondent.
• Court: Supreme Court of Appeal

Navsa JA: F

[1] There is no natural or other phenomenon in South Africa quite as iconic as Table Mountain, which stands like a sentinel overlooking the Mother City. The Cape Peninsula National Park, now renamed the Table Mountain National Park (the Park), comprising the mountain and G tracts of land beyond it, was established in terms of the National Parks Act 57 of 1976. It borders the northeast corner of portion 7 of the farm Oudekraal (portion 7) and surrounds it on its eastern and southern sides. The development of portion 7 as a township by the appellant, Oudekraal Estates (Pty) Ltd (Estates), is in issue in the present appeal. The local authority within whose jurisdiction portion 7 is located and which is H responsible for urban planning is the first respondent, the City of Cape Town (the City).

[2] The second respondent, the South African Heritage Resources Agency (SAHRA), established in terms of s 11 of the National Heritage I Resources Act 25 of 1999, is the successor to the National Monuments Council and is statutorily charged with the responsibility of protecting South Africa's heritage resources which are of cultural significance or other special value for the present community and for future generations.

[3] The third respondent, South African National Parks (SANPARKS), is J a statutory body charged with the protection of our country's natural

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and cultural heritage. [1] One of its stated goals is to establish and A consolidate the Park to ensure its long-term ecological, economic and social sustainability. The attainment of this goal is premised on a number of objectives, the first of which is to incorporate into the Park all land within the Cape Peninsula Protected Natural Environment (CPPNE), as well as other conservation-worthy areas outside of it. B

[4] The CPPNE covers an area of approximately 30 000 hectares, running from Signal Hill all the way to Cape Point. The bulk of the CPPNE has already been incorporated into the Park. A part of portion 7 of Oudekraal falls within the cadastral boundaries of the CPPNE. SANPARKS considers it vital that portion 7 be incorporated into the Park. C

[5] The Park is one of eight areas constituting the Cape Floral Region (the CFR) of South Africa. In 2004, the CFR was listed as a World Heritage site, thereby achieving renewed and elevated recognition as a site of outstanding significance to humanity. The CFR is regarded as the D world's 'hottest hot spot' for plant diversity and endemism. Covering less than 0,5% of the continental area of Africa, it contains nearly 20% of its flora and, in an area smaller than 4% of Southern Africa, it has nearly 44% (comprising some 20 000 species) of the sub-continental flora. The CFR has more endemic species of plants than any of the other 18 'hot spots' in the world. In addition, it has by far the highest species density E and species rarity of any Mediterranean-type climate region in the world. It is indeed one of the richest areas for plant diversity when compared with any similar sized area in the world.

[6] The floral vegetation of portion 7 consists of (amongst other species) Coastal Renosterveld, which has been identified as the most critically F endangered ecosystem in South Africa.

[7] The farm Oudekraal represents one of the few instances in the Peninsula where there is a preserved connection between high altitude zones and the coastline - in conservation terms this is known as 'coast to crest conservation'. This is important not only for aesthetic reasons, but G also because it provides protection for the complete set of what are referred to as eco-tonal and habitat changes which occur along steep gradients.

[8] Opposite Oudekraal is a deep reef environment which is the breeding ground and habitat of rock lobster and a fish species called Cape H Hottentot. Both species are under moderate threat of over-exploitation. There is also a contiguous marine reserve, approved as such, in terms of the Marine Living Resources Act 80 of 1998. The reserve stretches from portion 4 of Oudekraal, which marks the beginning of the CPPNE. At present the portion of coast immediately opposite portion 7 is a buffer I

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A zone. It is a conservational imperative to have a buffer zone at the edges of a fully protected nature area because of the natural movement of species.

[9] Furthermore, parts of the land around Table Mountain, particularly the ravines below the Twelve Apostles peaks, are of great historical, B cultural and religious significance. From the turn of the 18th century the land was used as a refuge by slaves who had escaped from their masters and the colonial authorities. Among them were Muslim spiritual leaders who had led uprisings against slavery in the Dutch East Indies and who had been captured and brought to the Cape. These leaders taught their C disciples in the seclusion and safety of these ravines and in this way fostered and kept Islam alive at the Cape. Prominent leaders who attained spiritual levels equivalent to Christian saints were buried there, these burial places being known as kramats. The kramats are visited regularly by members of the Muslim community who regard that area as sacred. A large number of Muslim graves are also to be found in these D parts.

[10] Portion 7 lies between Rontree Estate and Llandudno, below the Twelve Apostles peaks and alongside the Cape Atlantic coast. In commercial terms the land in issue would be described as exclusive and prime real estate. Translated into potential monetary value, and given E the description of its environs set out above, preceding and present litigation in relation thereto is more readily understandable. The background to that litigation is set out hereunder.

[11] The farm Oudekraal was first surveyed in 1818. On 18 August 1836 it was granted into exclusive private possession by way of perpetual F quitrent to Michiel van Breda. Thereafter, ownership passed to Dirk Geysbert van Breda. In 1954 it passed from the latter's estate to Sir Henry Price (Price), an English national with business interests in South Africa, for a purchase consideration of £60 000. Certificates of title to portions 4, 5, 6 and 7 were issued to him on 1 November 1961. G Following his death, portion 7 was transferred to Estates, a subsidiary of Castle Estate Agency (Pty) Ltd (Castle Estate), on 28 May 1965, for a purchase consideration of £50 000. On the same date portions 4 and 5 were transferred to Oudekraal Properties (Pty) Ltd, another subsidiary of Castle Estate, for a purchase consideration of £2500 and portion 6 was transferred to yet another subsidiary of Castle Estate, also for a H purchase consideration of £2500.

[12] On 21 July 1954 Price's land surveyors applied for the establishment of Oudekraal Township on behalf of Price. In terms of the then prevailing legislation, it was envisaged to be a white group area, with an area close by reserved for domestic workers. In the application, what was I proposed was a development to be compatible with and to rival the 'much admired Riviera of the South of France'.

[13] Building regulations then in force required an applicant for township development to disclose all physical features such as watercourses, dongas, pipelines, etc. It is of significance to the present litigation that, J although all other important physical features of the land were set out in

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the application on behalf of Price, the existence of two kramats and of A many other graves on the land was not disclosed. The details and importance of these kramats and graves will be dealt with later.

[14] The application for the approval of the township was in respect of 1 109 erven, within a composite township encompassing portions 4, 5, 6 and 7 of Oudekraal. On 17 September 1957 approval for four separate B townships on each of portions 4, 5, 6 and 7 was granted by the then Administrator of the Western Cape Province. The approval in relation to portion 7 and its consequences are central to this appeal.

[15] The approval was ultimately in respect of 237 saleable erven on portion 7. It is common cause that the approvals in respect of the C proposed extensions to the township, on portions 4, 5 and 6, lapsed by virtue of Price's failure to lodge a general plan timeously or at all. They accordingly have no bearing on this dispute.

[16] On 5 July 1960 a general plan was submitted for approval to the Surveyor-General and was thereafter approved on 10 April 1961. There D was a dispute about whether the Administrator lawfully granted extensions of time within which the owner could lodge a general plan, subsequent to the approval of the establishment of the township on portion 7. For present purposes, and for reasons which will become apparent, this is an issue with which we need not be concerned. E A notification of approved township was published in the Provincial Gazette on 19 January 1962. As indicated above, Oudekraal Township was then acquired by Estates on 28 May 1965.

[17] Estates did nothing to develop portion 7 until 1996, some 31 years later, and four years after the advent of constitutional democracy in F South Africa. In that year Estates commissioned engineers to prepare drawings for civil engineering services in relation to the township on portion 7. These were completed during August 1996 and civil engineering services plans were submitted to the City on 29 August 1996. These drawings were circulated in the ordinary course within the City's engineering department for a technical evaluation. At the same time G Estates announced to the media that it intended developing a township on portion 7 of Oudekraal. Predictably, that provoked a public outcry.

[18] The announcement led to the formation in early September 1996, at a public meeting attended by approximately 2000 people, of a H coalition called the...