Randburg Town Council v Kerksay Investments (Pty) Ltd

• Jurisdiction: South Africa

Randburg Town Council v Kerksay Investments (Pty) Ltd
1998 (1) SA 98 (SCA)

1998 (1) SA p98

Citation	1998 (1) SA 98 (SCA)
Case No	71/96
Court	Supreme Court of Appeal
Judge	Scott JA, Smalberger JA, Schutz JA, Plewman JA, Van Coller JA
Heard	August 28, 1997
Judgment	September 9, 1997
Counsel	J L Van Der Merwe (with him D E Van Loggerenberg) for the appellant; F Vaccari for the respondent

Flynote : Sleutelwoorde H

Expropriation — Compensation — Calculation of — Determination of amount to make good any actual I financial loss or inconvenience caused by expropriation of right in terms of s 12(1)(b) of Expropriation Act 63 of 1975 — Effect of s 12(5)(f) of Act providing that any enhancement or depreciation in value of property expropriated 'due to the purpose for which or in connection with which the property is being expropriated or is to be used' not to be taken into account — No justification for construing s 12(5)(f) as being not applicable to situation where depreciation in J

1998 (1) SA p99

property results from zoning or other town planning provision amounting to legally enforceable A encumbrance on property.

Expropriation — Compensation — Calculation of — Determination of amount to make good any actual financial loss or inconvenience caused by expropriation of right in terms of s 12(1)(b) of Expropriation Act 63 of 1975 — Effect of s 12(5)(f) of Act providing that any enhancement or B depreciation in value of property expropriated 'due to the purpose for which or in connection with which the property is being expropriated or is to be used' not to be taken into account — No justification for departing from ordinary meaning of s 12(5)(f) of Act so as to preclude owner from receiving compensation under Act on ground that he could previously have recovered same C compensation under another enactment for same deprivation, but allowed claim to prescribe.

Headnote : Kopnota

There is nothing in s 12(5)(f) of the Expropriation Act 63 of 1975 or the Act to justify construing s 12(5)(f) (which provides that any enhancement or depreciation in value of D property expropriated 'due to the purpose for which or in connection with which the property is being expropriated or to be used' shall not to be taken into account) as being not applicable to a situation where the depreciation in the property results from a zoning provision or some other provision in a town-planning scheme which amounts to a legally enforceable encumbrance on E the property. Such a construction of the provision would involve reading into the section a distinction between depreciation arising from an encumbrance and depreciation arising from some other cause. There is nothing in the section or the Act to justify such a distinction. (At 105C--E/F.)

There is no justification for departing from the ordinary meaning of the language of s 12(5)(f) of the Expropriation Act 63 of 1975 so as in effect to preclude an owner (of expropriated land or F a right) from receiving compensation under the Act (in the present case, compensation in terms of s 12(1)(b) to make good any actual financial loss or inconvenience caused by the expropriation of a road-widening servitude) on the ground that he or she could previously have recovered some compensation under another statutory enactment for the same deprivation, but G allowed the claim to prescribe. The fact that an owner may be permitted in such circumstances to recover compensation under the Act can hardly be characterised as an absurdity, let alone one that can be said to be glaring as contemplated by the rule in R v Venter 1907 TS 910 at 915. Such a result does not strike one as being clearly unfair to either party. (At 107H/I--108A.)

The decision in the Transvaal Provincial Division in Kerksay Investments (Pty) Ltd v H Randburg Town Council 1997 (1) SA 511 confirmed.

Cases Considered

Annotations

Reported cases

Bestuursraad van Sebokeng v M & K Trust & Finansiële Maatskappy (Edms) Bpk 1973 (3) SA 376 (A): compared I

Bhyat v Commissioner for Immigration 1932 AD 125: referred to

Bonnet v Department of Agricultural Credit and Land Tenure 1974 (3) SA 737 (T): compared

Bras v Randburg Stadsraad 1992 (3) SA 371 (A): referred to

Cowper Essex v Local Board for Acton (1889) 14 AC 153: dictum at 169 applied

Durr and Another v Cape Divisional Council 1986 (2) SA 385 (C): considered J

1998 (1) SA p100

Hargovan and Others v Minister of Agriculture 1971 (4) SA 257 (D): considered A

Jelson Ltd v Blaby District Council [1978] 1 All ER 548 (CA): referred to

Kerksay Investments (Pty) Ltd v Randburg Town Council 1997 (1) SA 511 (T): confirmed on appeal

Land- en Landboubank van Suid-Afrika v Rousseau NO 1993 (1) SA 513 (A): referred B to

Melwood Units (Pty) Ltd v Commissioner of Main Roads [1979] 1 All ER 161 (PC): referred to

Minister of Agriculture v Estate Randeree and Others 1979 (1) SA 145 (A): considered

Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 (PC): referred to C

Port Edward Town Board v Kay 1996 (3) SA 664 (A): dicta at 679B--C and 681I--682B applied

R v Venter 1907 TS 910: dictum at 915 applied

S v Tieties 1990 (2) SA 461 (A): referred to

Savage v Commissioner for Inland Revenue 1951 (4) SA 400 (A): referred to D

Shenker v The Master and Another 1936 AD 136: dictum at 143 applied

Summit Industrial Corporation v Claimants against the Fund Comprising the Proceeds of the Sale of the MV Jade Transporter 1987 (2) SA 583 (A): referred to

Van Zyl v Stadsraad van Ermelo 1979 (3) SA 549 (A): considered.

Statutes Considered

Statutes E

The Expropriation Act 63 of 1975, s 12(1)(b), (5)(f): see Juta's Statutes of South Africa 1996 vol 6 at 2-417, 2-418.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Van Dijkhorst J and McCreath J), F reported at 1997 (1) SA 511. The facts appear from the judgment of Scott JA.

J L van der Merwe SC (with him D E van Loggerenberg) for the appellant.

F Vaccaro for the respondent.

Cases Considered

In addition to the reported cases cited in the judgment of the Court, counsel for the respective G parties referred to the following authorities:

Cedar Rapids Manufacturing Power Co v Lacoste [1914] AC 569 at 576

Estate Marks v Pretoria City Council 1969 (3) SA 227 (A) at 242H--243A

Fink and Another v Bedfordview Town Council and Others 1992 (2) SA 1 (A) at 12A--B, 18F--G, 19C H

Jacobs v Minister of Agriculture 1972 (4) SA 608 (W) at 609H

Krause v SA Railways and Harbours 1948 (4) SA 554 (O) at 561

May v Reserve Bank of Zimbabwe 1986 (3) SA 107 (ZS) at 114C--115B

Raja Vyricherla Narayana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] AC 302 at 311 I

S v Moringer and Others 1993 (4) SA 452 (W) at 463C--465D

South African Transport Services v Olgar and Another 1986 (2) SA 684 (A) at 697D--E

South Eastern Railway Co v London County Council [1915] 2 Ch 252 (CA) at 258

Union Government v Gass 1959 (4) SA 401 (A) at 417 J

1998 (1) SA p101

Wilson and Another v Liverpool City Council [1971] 1 All ER 628 (CA) at 635B--D A

Yvonne Kruger v Stadsraad van Randburg (WLD, unreported, case No 16501/90)

Cases Information

The Oxford English Dictionary 2nd ed (1989) vol XIV sv 'rule'

The Shorter Oxford Dictionary on Historical Principles vol 2 sv 'rule'. B

Cur adv vult.

Postea (September 9).

Judgment

Scott J A:

The respondent (to whom I shall refer as 'the claimant') is the registered owner of C erf 843, Ferndale, Randburg, in terms of a deed of transfer dated 3 July 1974. The property is bordered on one side by Oak Avenue. By notice of expropriation taking effect on 3 April 1990 the appellant ('the council'), acting in terms of the Expropriation Act 63 of 1975 ('the Act'), expropriated a road widening servitude, 147,83 square metres in extent, over the property. D The area affected was a strip of land some 3,13 metres wide and 47,23 metres long adjacent to Oak Avenue. As the subject of the expropriation was a right, as opposed to property, the compensation to which the claimant became entitled was in terms of s 12(1)(b) of the Act not E to exceed 'an amount to make good any actual financial loss or inconvenience caused by the expropriation or the taking of the right'. (The words 'or inconvenience' were subsequently deleted by s 11(b) of the Expropriation Amendment Act 45 of 1992.)

The council offered an amount of R1 401 as compensation. This amount was stated in the notice of expropriation to be made up of R1 400 for the improvements (there were seven large F trees in the servitude area) and R1 for the land. The offer was rejected by the claimant which in turn claimed R40 000. Application was made in terms of s 16 of the Act to the now defunct compensation court for the determination of compensation. That court dismissed the claim for compensation and made no order as to costs. The claimant appealed successfully to the G Transvaal Provincial Division which awarded it compensation in the sum of R40 000 (less the amount of R1 401 previously paid) together with interest and costs. The decision has been reported, see Kerksay Investments (Pty) Ltd v Randburg Town Council 1997 (1) SA 511 (T). The council applied for leave to appeal but this was refused by the Court a quo. Leave H was subsequently granted pursuant to a petition to the Chief Justice.

Before turning to the issues presently in dispute between the parties, it is necessary to refer to certain events which preceded the expropriation as well as to the manner in which the parties sought to dispose of the matter in the compensation court. These were dealt with in some detail I in the judgment of the Court a quo (Van Dijkhorst J and McCreath J) and may be stated shortly.

Prior to 6 November 1974 the...