Parow Municipality v Joyce and McGregor (Pty) Ltd

• Jurisdiction: South Africa
• Judge: van Winsen AJP
• Judgment Date: 19 September 1973
• Hearing Date: 15 August 1973
• Court: Cape Provincial Division

Van Winsen, A.J.P.:

This is an application for an order compelling respondent - the registered owner of certain land situate in the municipal

Van Winsen AJP

area of applicant municipality - to transfer such land to applicant and for consequential relief. Respondent company is a property-owning and development company owning land in the A Tyger Valley Estate. In 1932 respondent submitted a plan of sub-division of land comprising this estate and it was approved by the Surveyor-General in that year. The plan is designated T.I.B. It shows a large number of erven, and there appears on it an area of land bounded by Riley, Kingston, Japie Fourie and Milldene Streets designated on the plan by the title "Recreation Ground". It is to this ground that the order B claiming transfer relates. At the time of the aforesaid approval of the plan T.I.B., the area comprised therein did not fall within the boundaries of applicant municipality but by a 1944 Proclamation it was, in that year, incorporated therein.

Applicant's case in support if its claim rests on two C independent grounds. It alleges that respondent has donated the land in question to it and furthermore it contends that in any event this land vested in it by virtue of the provisions of sec. 127 o f Ord. 19 of 1951. Applicant, in support of the first ground, was unable to advance evidence of an agreement of D donation of the land by respondent to itself. Instead it had perforce to rely on a course of dealing both by itself and by respondent in connection with the land, from which it asked the Court to conclude by implication that such donation had in fact taken place. Thus, for instance, it relied, inter alia, on the following circumstances to justify the implication in question: Applicant never levied rates on the ground; it caused the E ground to be levelled and, from time to time, at its own expense had it cleared of bush; authorised a rugby football club to erect goalposts on the land and to play rugby thereon; the land was shewn designated on a town plan prepared by applicant as a "public place" to which respondent raised no objection; applicant and respondent conducted lengthy F negotiations during 1949 and in the following years for the exchange of this land for another site owned by respondent; respondent listed properties on the estate in question of which it claimed to be the owner and the land in question did not figure on this list; respondent never claimed compensation from applicant in respect of this land, part of which was to be traversed by a highway, but claimed and received compensation G where this highway passed over other lots owned by respondent.

In its opposing affidavit respondent denies having donated the land to applicant, and deals with all allegations made by applicant from which the latter seeks to draw the inference that such donation was made. In the course of so doing it H seeks, with reference to further facts, to have the Court put a different construction upon the various events and acts referred to by respondent. In view of the conflicts thereby raised it is apparent that no decision could, on the papers presently before the Court, be come to upon the factual question of whether or not the land had been donated to applicant. Mr. Cooper, for applicant, recognized this and, in asking the Court to award the relief claimed, relied solely on the second ground referred to above. It was common cause between the parties that if applicant wished to proceed further on the ground of donation the matter would, in some form or other,

Van Winsen AJP

have to be referred to trial. Accordingly this judgment is confined to an enquiry into the question whether the land has become vested in applicant by virtue of the application to the circumstances of this case of the terms of sec. 127 of Ord. 19 of 1951.

Sec. 127 provides as follows:

A "The ownership of all immovable property to which the inhabitants of the municipality shall have or acquire a common right and of all public streets and the land comprised therein shall vest in the municipality;...""public street" is defined in sec. 1 of that Ordinance as including, for the purposes, inter alia, of sec. 127, a "public place". A "public place" is in sec. 1 of that Ordinance defined as meaning

B "any square, park, recreation ground, sports ground or open space which

(i)

has in connection with any sub-division or layout of land into erven, lots or plots, been provided or set apart for use by the public or the owners or occupiers of such erven, lots or plots, whether or not it is shown on a general plan, plan of sub-division or diagram";

Mr. Cooper, on applicant's behalf, submits that the land designated "Recreation Ground" in approved sub-division plan C T.I.B. above referred to, falls within the definition of "public place" and is therefore by definition a public street. He points out that respondent in a letter dated 29th October, 1970, addressed to the town clerk of applicant Municipality admitted that it had intended the area designated as "Recreation Ground" to be for the benefit of the residents of D the Tyger Valley Estate. If...