South African National Parks v Ras

• Jurisdiction: South Africa
• Judge: van Heerden J
• Judgment Date: 23 May 2001
• Citation: 2002 (2) SA 537 (C)
• Docket Number: 1604/2000
• Hearing Date: 11 April 2001
• Counsel: P R Hathorn for the excipient (defendant). E Fagan for the respondent (plaintiff).
• Court: Cape Provincial Division

Van Heerden J:

Introduction E

In terms of its particulars of claim, as amended, the plaintiff seeks (inter alia) an order, on two alternative grounds, evicting the defendant from certain immovable property known as 'Glen Villa', 1 Signal Hill Road, Kloofnek, Cape Town (the premises). The defendant has raised two exceptions to the plaintiff's amended F particulars of claim, on the ground that such particulars do not disclose a cause of action.

The plaintiff alleges that it is the lessee of the premises, in terms of a 99-year lease agreement entered into with the Cape Town Municipality (the municipality) with effect from 1 May 1998. This lease forms part of a broader agreement (an unsigned copy of which is G annexed to the plaintiff's particulars of claim as annexure PC1) concluded on 30 May 1998 between the plaintiff, on the one hand, and the Municipality of Cape Town, the South Peninsula Municipality and the Cape Metropolitan Council (the local authorities), on the other hand. Under this broader agreement, the plaintiff 'acquired' from the H local authorities certain immovable properties and infrastructure on such properties, as described in clause 3 of the agreement read together with the relevant Schedules thereto, for the purposes of establishing a national park. The broader agreement further provided for the transfer by the local authorities to the plaintiff, as a going concern, their respective 'conservation management functions' in I respect of the said immovable properties, as also for the transfer of the contracts of employment of those staff members of the local authorities associated with these conservation management functions (in the event that such staff members agreed to have their contracts of employment so transferred). J

Van Heerden J

The definition of 'conservation management function' in the broader A agreement, which definition is referred to in the particulars of claim, reads as follows (clause 2 of annexure PC1):

'''Conservation management function'' shall mean the use, control and management' of the unique natural resources of the Cape Peninsula Protected Natural Environment and adjoining marine reserves, including but not limited to the biological, botanical, B geographical, historical, cultural and aesthetic attributes of the land and shall include, but not be limited to, management of tourism and recreation thereon and the maintenance and operation of infrastructure associated therewith.' 'Land' was in turn defined as 'the land made available in terms of this agreement' and 'infrastructure' as 'all improvements upon the land including but not limited to buildings, installations, pipes, cables, fences or other engineering works' (also clause 2 of annexure PC1).

Pending the fulfilment of certain suspensive conditions stipulated in the broader agreement and, in particular, the proclamation of the relevant land as a national park in terms of s 2C of the National Parks Act 57 of 1976 (the Act) and its inclusion in Schedule 1 to the D Act, it was agreed, inter alia, that the land described in Schedule 'D' to the agreement would be leased to the plaintiff by the municipality, with effect from 1 May 1998, 'until transfer (of the relevant land) is effected or expiry of a period of 99 years, whichever be the sooner'. The premises form part of the subject-matter of Schedule 'D' to the broader agreement. E

The plaintiff's cause of action as set out in its original particulars of claim was briefly, as follows:

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the defendant has occupied the premises since about 1 November 1976, initially taking occupation pursuant to a written agreement of lease entered into with the municipality in about October F 1976;

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the defendant's right to occupy the premises was terminated by three months' written notice to vacate given to him by the municipality on or about 28 May 1999, this period being in excess of that required by the defendant's lease; alternatively, the defendant, by electing not to have his contract of employment G transferred to the plaintiff, on or about May 1998 effectively relinquished his position in the Parks and Forests department of the municipality and his continued entitlement to reside in the premises was thereby terminated;

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despite the termination of any entitlement to occupy the H premises, the defendant has failed and/or refused to vacate the premises and remains in unlawful occupation thereof;

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defendant has failed and/or refused to vacate the premises and remains in unlawful occupation thereof.

The plaintiff subsequently amended its particulars of claim to introduce an alternative cause of action based on the following allegations: I

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pursuant to the broader agreement (annexure 'PC1' to the particulars of claim), the land forming the subject-matter of the agreement, which included the premises, was duly declared to be 'a park' in terms of s 2B(1)(b) of the Act;

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in terms of s 21(1)(a) of the Act, no person other than an officer J

Van Heerden J

or employee of the plaintiff may reside in 'a park' without the permission of the plaintiff or of an officer or employee of A the plaintiff authorised to grant such permission;

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such permission may, in terms of s 23 of the Act, be granted only for certain limited purposes;

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the defendant does not have the requisite permission in terms of s 21(1)(a) of the Act to reside on the premises (which are in 'a park'), nor does he reside there for any of the B purposes specified in s 23 of the Act;

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for these reasons too, the plaintiff is entitled to an order evicting the defendant from the premises, which the defendant continues unlawfully to occupy. C

The first exception

The defendant has excepted to the plaintiff's initial claim on the grounds that in the absence of any allegation that the plaintiff has taken occupation of the premises or that its 99-year lease agreement with the municipality has been registered, the plaintiff D cannot contend that it has acquired any real right to the premises and, in the result, the plaintiff lacks locus standi to claim the eviction of the defendant from the premises.

As pointed out by Mr Fagan, counsel for the plaintiff, there are at least two relevant averments in the particulars of claim regarding the lease agreement between the plaintiff and the Cape Town E municipality. Thus, in para 1.2 of the particulars, it is alleged that the plaintiff is the lessee of the premises 'in terms of a 99-year lease agreement with the Cape Town municipality'. In para 14.5, the plaintiff alleges that it 'has lawful title to the premises, and reasonably and necessarily requires the premises for operational F reasons'. According to Mr Fagan, these two allegations, read together, clearly indicate that the plaintiff relies on a long lease for its title, and it is a matter of evidence whether or not it is entitled so to rely. Counsel for the plaintiff argues that the defendant has 'conflated' two different issues - whether or not the plaintiff's particulars of claim disclose a cause of action, on the one hand, and, on the other, whether or not the plaintiff has G locus standi. Ordinarily, the latter issue should be raised by the defendant by filing a special plea, not by raising an exception.

It appears from the South African case law that, where it is apparent ex facie the particulars of claim that a plaintiff does not have locus standi, the defendant may take an exception H rather than file a special plea (see, for example...