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

• Jurisdiction: South Africa
• Judge: Davis J and Veldhuizen J
• Judgment Date: 20 June 2002
• Citation: 2002 (6) SA 573 (C)
• Docket Number: 7699/01
• Counsel: J C Heunis SC (with him Binns-Ward SC and P B J Farlam) for the applicant. M Seligson SC (with him I J Muller) for the first respondent. No appearance for the second respondent. A M Breitenbach (with him N Bawa) for the third respondent. R O Petersen (with him E Fagan) for the fourth respondent
• Court: Cape Provincial Division

Davis J:

Introduction B

On 4 September 2001 applicant brought an application for relief in the following form:

1.

Declaring that the extensions of the period for submitting to the Surveyor-General the general plan for Erf 2802 Camps Bay in the Municipality of Cape Town, Western Cape Province (previously known as C portion 7 of the Cape Farm 902) ('Oudekraal') that were granted by the Administrator of the erstwhile Cape Province from 1958 to 1960 were intra vires his powers under s 19(1) of the Townships Ordinance 33 of 1934 (the ordinance) and of full force and effect, and that, as a consequence, D

1.1

general plan TP 1781 LD for portion 7 of Oudekraal was submitted to the Surveyor-General within the extended time period permitted by s 19(1) of the ordinance;

1.2

the approval of general plan TP 1781 LD for portion 7 of Oudekraal by the Surveyor-General in April 1961 was intra E vires and of full force and effect;

1.3

the application for the establishment of a township on portion 7 of Oudekraal did not lapse in or about 1958, 1959 or 1960 by virtue of non-compliance with s 19(1) of the ordinance.

2.

Declaring that the extension of the period for lodging with the Registrar of Deeds the approved general plan TP 1781 LD for portion 7 F of Oudekraal that was granted by the Administrator in 1961 was intra vires his powers under s 20(1), read with s 20(3), of the ordinance and of full force and effect, and that, as a consequence, G

2.1

the application for the establishment of a township on portion 7 of Oudekraal did not lapse in 1961 by virtue of non-compliance with s 20(1) - (3) of the ordinance; and

2.2

the opening of a township register and the registration certificate of title in respect of portion 7 of Oudekraal in November 1961, in terms of s 46 of the Deeds Registries Act 42 of 1937, was H intra vires the powers of the relevant official and of full force and effect.

3.

Declaring, in addition and in any event, that the applicant's development rights over Oudekraal Township (general plan TP 1781 LD) on Erf 2802 Camps Bay in the Municipality of Cape Town, Western Cape I Province (previously known as portion 7 of the Cape Farm 902), notification of the approval of which was published in the Provincial Gazette on 19 January 1962, under Public Notice 59 of 1962, are of full force and effect, and that the applicant has the right to subdivide the aforementioned land in accordance with general plan TP 1781 LD. J

Davis J

This application was opposed by the first, third and fourth respondents. A

Background

The nature of this application necessitates a brief examination of the history of the ownership of the land which is the subject of this application. In the 19th century and in the first quarter of the 20th century the quitrent farm 'Oudekraal' extended around the Atlantic B coast from Camps Bay to Hout Bay. At the time of the abolition of the Quitrent Act in 1934 the farm Oudekraal ('the farm') belonged to Dirk Gysbert van Reenen van Breda.

In September 1941 portion 1 of the farm was framed under title deed 9541 and transferred to the State. Portion 2 of the farm was framed C under title deed 10186 and transferred to the then City Council in June 1949. The remaining portions of the abolished quitrent land were transferred from the estate of G D van Reenen van Breda to Sir Henry Philip Price under title deed 725 dated 28 January 1954.

On 10 February 1955 Sir Henry Price framed portion 3 of the farm D under title deed 9272 and sold that portion to one Emily Bolton. Portion 3 was part of the farm that contained a dwelling erected in 1929 by the Van Breda family.

On 21 July 1954 an application was made on behalf of Sir Henry Price for permission to lay out a township called Oudekraal on the remainder of the farm. This application was approved by the E Administrator of the Cape Province on 17 September 1957 subject to certain conditions in terms of s 18 of the Townships Ordinance 33 of 1934 ('the ordinance'). On the same day, 17 September 1957, approval was also given for the establishment of townships on other portions on the remainder of the farm, later described as portions 4, 5 and 6. The townships on portions 4, 5 and 6 were to be called F respectively Oudekraal township (extension No 1) Oudekraal township (extension No 2) and Oudekraal township (extension No 3).

On 14 November 1958 Stern and Korodetz, a firm of land surveyors, made application to the Administrator on behalf of Sir Henry Price for an extension of time for the lodgment of the general plan of G the Oudekraal township in terms of a letter dated 11 November 1958 which was received by the Provincial Administration of the Cape of Good Hope on 14 November 1958. In terms of a letter of 22 November 1958 the Administrator extended the time period to 30 May 1959, within which period a general plan of the township had to be lodged with the Surveyor-General. On 30 May 1959 Stern and Korodetz, in a H letter dated 29 May 1959, made a further application for an extension of time within which to lodge the general plan. On 8 June 1959 the Administrator, in terms of s 19(1) of the ordinance, extended the time period for the lodging of the general plan to 31 December 1959. I

On 23 February 1960 Stern and Korodetz, in a letter dated 22 February 1960, made application for an extension of time within which to lodge the general plan to 30 July 1960. On 2 March 1960 the Administrator extended the time to lodge the general plan to 30 June 1960 in terms of s 19(1) of the ordinance. J

Davis J

On 5 July 1960 a draft general plan was submitted to the A Surveyor-General for examination and approval by Stern and Korodetz under cover of a letter dated 30 June 1960. On 10 April 1961 the Surveyor General approved the general plan.

On 22 August 1961 attorneys Rex Simpson and Kenneth Karr wrote to the Administrator as follows: B

'The above township plan was approved by the Surveyor-General on 10 April 1961 - TP Plan 1761LD - and shortly thereafter the surveyors sent us copies of the plans for lodgment with the Registrar of Deeds in terms of s 20(1) of the Township Ordinance 33 of 1934. Unfortunately these copies became mislaid in our office and have only just been traced. In consequence the statutory period of three months within which they have had to be lodged with the Registrar of Deeds has C expired. It will therefore be appreciated if you will give us an extension of time within which to lodge same with the Registrar of Deeds.'

In a letter dated 25 August 1961 the Administrator, acting in terms of s 20(3) of the ordinance extended the time period to 31 October 1961 within which the general plan of the township had to be D lodged with the Registrar of Deeds. On 9 January 1962 the general plan was eventually lodged with the Registrar of Deeds. On 11 January 1962 the Registrar of Deeds advised the Provincial Secretary that the requirements of s 20 of the Townships Ordinance had been met with regard to the general plan and that the Administrator could E accordingly cause the approval of the Township to be gazetted in terms of s 20(6) of the Townships Ordinance. On 19 January 1962 notification of approval of the Oudekraal township general plan TP 1781 LD appeared in Provincial Notice PN 59/1962.

Very little of relevance then took place between 1962 and 1996, save that applicant acquired the property on 28 May 1968 from the F deceased estate of Sir Henry Price. According to Mr Casper Wiehahn, who deposed to an affidavit on behalf of applicant, his father, who had been the driving force behind the acquisition of the property in 1968, was 'in no rush' to develop any part of the farm. Mr Wiehahn stated that his father was of the view 'that a single residential grid layout of the township of portion 7 which he had acquired had already been G outdated since being approved'.

No serious attempts were made to develop the land until 1996, shortly after Mr Casper Wiehahn assumed control of applicant. Mr Wiehahn states in his founding affidavit that he 'took over Oudekraal' in 1995 at which time 'I turned my attention to portion 7'. He first entered into a memorandum of understanding with Devland Construction (Pty) Ltd. H Eventually it appears as if this arrangement was 'called off'. Mr Wiehahn then employed the firm of Wouter Engelbrecht and Associates to prepare drawings for civil work for portion 7, which drawings were completed in August 1996. The engineering services plan for portion 7 was submitted to the acting chief executive officer of the Cape I Metropolitan Council for approval. In response to that application, applicant received a letter from the acting chief executive officer dated 11 November 1996 to the effect that:

'With reference to your application in the above regard, I have to advise that the Cape Town City Council at its meeting held on 31 October 1996 considered J

Davis J

the attached reference from the Engineering Services Committee (C.7) and resolved as follows: A

''That the Cape Metropolitan Council be informed that, as the City Council has been advised that development rights over Oudekraal township on Cape farm 902/7 had lapsed, it is not legally competent to approve the provision of services related thereto.''

As agent to the Cape Town City Council you are accordingly informed that this Council is not in a position to approve your application for B approval of the engineering services plan.'

On 16 November 1996 the then attorneys of applicant addressed a letter to the acting chief executive officer of the Cape Metropolitan Council requesting that it be furnished with reasons in writing why the engineering services plan had not been approved. On 19 December C 1996 attorneys Fairbridge, Arderne and Lawton, acting on behalf of first respondent, wrote to...