Peri-Urban Areas Health Board v Breet, NO and Another

• Judge: Trollip AJ
• Judgment Date: 28 January 1958
• Court: Transvaal Provincial Division

D Trollip, A.J.:

This is an application for a declaratory order concerning the water system of Robindale Township, an approved township, situated on the Farm Klipfontein No. 4, Johannesburg.

The portion of the farm on which the township is situated was originally owned by the late P. J. S. Breet, whose executors are the present respondents. On the 22nd June 1944 Mr. Breet applied to the E Administrator of the Transvaal under the Townships Ordinance 11 of 1931 (T) for the establishment of the Township. In terms of the Ordinance the Administrator duly referred the application to the Townships Board on the 29th June 1944.

On the 25th October 1944 the portion of the farm was brought under the F jurisdiction of the applicant by Proc. 132 of 1944 in the Provincial Gazette of that date. Applicant had prior thereto been constituted a local authority under the provisions of Ord. 20 of 1943.

Apparently thereafter the Administrator, on the recommendation of the Townships Board, granted permission to establish the township subject to certain conditions of establishment which were furnished to Mr. Breet. G (See the preamble to the agreement between Mr. Breet and Thomas Chapman Murphy, annexure 'A' to the respondents' replying affidavit). Clause 4 of those draft conditions read as follows:

'4. Water: The applicant shall make arrangements with the local authority for the reticulation of water in the township. Failing an agreement between the two parties the aggrieved party may appeal to the Administrator whose decision shall be final.

H No erf shall be built upon until a suitable supply of water has been laid on to its street frontage.

The applicant shall reticulate water as and when required by the local authority and the said local authority shall call upon the applicant to carry out his obligations in respect of any erf provided it is satisfied of the bona fide intention of the owner of such erf to build thereon within a reasonable period.'

The local authority referred to was the applicant.

Trollip AJ

In due course, Mr. Breet, through his agent, Hunter's Estate Agency, communicated with applicant about the water reticulation in a letter dated the 11th December 1945. This letter read as follows:

'Dear Sir,

Re: Robindale Township Water Reticulation Scheme.

A We enclose a copy of the plan and two copies of the estimate of the cost of the above proposed reticulation scheme.

The estimate includes for a 4 diameter main 1,700 feet long from the North corner of Linden to the boundary of Robindale, laid in high pressure everite piping. It also includes cost of meters and 1/2 diameter connections from the mains to building line of plots. The school block will be served by a 1 diameter connection.

B The plan and estimate were prepared by Mr. F. W. Scott, B.A.M. Eng. M.Inst.C.E., to whom we were referred by Messrs. Stewart, Shand & Oliver.

We shall be glad to hear that the scheme meets with the approval of your Board.'

On the 19th February 1946, the applicant, through its secretary/treasurer replied as follows:

'Dear Sirs,

Robindale Township: Water Reticulation Scheme.

C I would refer to your letter of the 11th December, 1945, in the abovementioned connection.

After scrutiny of the proposals and a report upon the scheme by my Board's consulting engineers, the Board has resolved:

(a)

That the proposed water supply scheme for Robindale township as submitted by you be approved subject to the conditions:

(1)

that no street mains shall be smaller than 2?142? in diameter;

(2)

D that a minimum of 1' 6?142? cover shall be given to steel pipes generally and 2' 6?142? under roads, these depths to be increased by 6?142? if asbestos cement pipes are used. Asbestos cement pipes, if used, shall be of class D quality.

(b)

That permission be granted for the taking of a supply of water from the Johannesburg Municipality subject to the right of the Board to take over all consumers if and when the Board embarks upon a water supply scheme in the area.

(c)

E If and when the Board decides to assume control of the Robindale water supply scheme it shall be handed over to the Board free of charge. In the meantime the township owner shall be entitled to instal and run the scheme and make direct reasonable charges to consumers for water consumed.

The account for the scrutiny of and report upon your proposals by my Board's consulting engineers will be submitted to you in due course.'

F It is common cause that Mr. Breet received that letter but did not reply to it or at any time indicate to applicant in any manner that he did not accept the conditions set out in the letter. The applicant says that it therefore assumed that Mr. Breet had accepted the conditions. The second respondent was at the time the sole proprietor of Hunter's G Estate Agency which was acting as Mr. Breet's agent. In his affidavit he says that on receipt of the applicant's letter he considered that the applicant was not entitled to impose the condition in para. (c) of the letter and in fact that the condition was never at any time agreed to by Mr. Breet or by himself. Apparently they considered that there was no duty on them to reveal their attitude to the applicant as (according to H their view) it had no authority to impose the condition in question. The applicant disputed in these proceedings that it had no authority to impose the condition and maintained that Mr. Breet had accepted and adopted the condition in that 'he took charge of the supply, administered it, and made charges for the water in terms of the said clause' and that in the premises respondents were estopped from denying that the condition was binding upon Mr. Breet.

Trollip AJ

It was debated at the Bar at some length whether the applicant had proved that Mr. Breet had by conduct accepted all the conditions in the applicant's letter of the 19th February 1946 and if not whether the respondents were now estopped from denying that he had accepted them. In the view I take of the matter it is not necessary to decide that issue. A I shall assume in applicant's favour that prior to the 5th November 1946 (the relevance of which date will appear immediately) Mr. Breet had accepted all these conditions.

On the 5th November 1946 this Court decided in R v Mziza, 1946 T.P.D. 654, that Ord. 20 of 1943, the creator and sustainer of the applicant, was ultra vires the Provincial Council. The effect of that decision was B that the applicant had no legal existence and had never had any legal existence. Consequently, the 'arrangements' regarding the water reticulation for Robindale set out in the letters of the 11th December 1945 and the 19th February 1946 were without legal content and ineffectual (cf. Palmer's Company Law 19th ed., p. 374). It also C followed that the only person with whom Mr. Breet could then make fresh arrangements for the reticulation of water was the Administrator, there being no local authority with whom to make such arrangements. The respondents say that consequently the Administrator in due course wanted to be satisfied that satisfactory arrangements for the reticulation of water had been made in terms of clause 4 of the draft conditions of D establishment. This is admitted by the applicant. On the 27th February 1947 Hunter's Estate Agency therefore wrote to the Provincial Secretary as follows:

'Dear Sir,

re: Water supply and reticulation - Robindale Township - A.17319.

In connection with this matter, we enclose:

(1)

Certificate by our consulting engineer Mr. F. W. Scott on the E subject of supply and reticulation of water in the township.

(2)

Plan of the reticulation and copy conditions of contract.

Copies of letters dated 10th April, 1946; 6th May, 1946; 12th April, 1946; 14th May, 1945; 22nd October, 1946 from the Johannesburg Municipality.'

On the 1st March, 1947, the Provincial Secretary wrote as follows to Hunter's Estate Agency:

F 'With reference to your letter of the 27th ultimo, I have to inform you that a Proclamation declaring Robindale an approved township will appear in the Provincial Gazette of the 5th March, 1947.'

On the 4th March 1947, the Provincial Secretary addressed a further letter by registered post to Hunter's Estate Agency which the latter received on the 6th March 1947. The letter read as follows:

'With further reference to the above matter and my even-numbered minute of the 1st instant, I have to advise you that the water supply G ...