South African National Parks v Ras

• Jurisdiction: South Africa
• Citation: 2002 (2) SA 537 (C)

South African National Parks v Ras
2002 (2) SA 537 (C)

2002 (2) SA p537

Citation	2002 (2) SA 537 (C)
Case No	1604/2000
Court	Cape Provincial Division
Judge	van Heerden J
Heard	April 11, 2001
Judgment	May 23, 2001
Counsel	P R Hathorn for the excipient (defendant).; E Fagan for the respondent (plaintiff).

Flynote : Sleutelwoorde B

Statute — Interpretation of — Statutory provision for criminal penalties for certain acts or omissions not, as such, excluding institution of civil proceedings in respect of same acts or omissions, unless it is clear from language of statute that Legislature intended such.

Environmental law — Nature and game reserves — Management of — Eviction of C illegal resident — Fact that s 21(1)(a) of National Parks Act 57 of 1976 provides for criminal sanction for illegal resident and not for institution of civil proceedings for eviction not preventing body who is statutorily in control of park and vested with locus standi from instituting civil proceedings to evict illegal resident. D

Headnote : Kopnota

Statutory provision for criminal penalties for certain acts or omissions does not, as such, exclude the institution of civil proceedings in respect of the same acts or omissions, unless it is clear from the language of the statute that this is what the Legislature intended. The fact that s 21(1)(a) of the National Parks Act 57 of 1976 provides for a criminal sanction for anyone who enters or resides in a park without the required permission E and not for the institution of civil proceedings for eviction does not prevent the body who is statutorily in control of the park and vested with locus standi from instituting civil proceedings to evict the illegal resident. (At 545D - E and 546F - G and 545F/G - H/I.)

Cases Considered

Annotations F

Reported cases

Ahmadiyya Anjuman Ishaati-Islam Lahore (South Africa) and Another v Muslim Judicial Council (Cape) and Others1983 (4) SA 855 (C): applied

Amalgamated Footwear & Leather Industries v Jordan & Co Ltd1948 (2) SA 891 (C): applied G

Buchner and Another v Johannesburg Consolidated Investment Co Ltd1995 (1) SA 215 (T): referred to

Callender-Easby and Another v Grahamstown Municipality and Others1981 (2) SA 810 (E): dictum at 812H - 813A applied

Casserley v Stubbs 1916 TPD 310: dictum at 312 applied

Chiloane v Maduenyane1980 (4) SA 19 (W): applied H

Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627: applied

Da Silva and Another v Coutinho1971 (3) SA 123 (A): referred to

Edwards v Woodnutt NO 1968 (4) SA 184 (R): dictum at 186D - H applied

Engels v Allied Chemical Manufacturers (Pty) Ltd and Another 1993 (4) SA 45 (Nm): referred to

Kahn v Stuart and Others 1942 CPD 386: dictum at 391 applied I

Klerck NO v Van Zyl and Maritz NNO and Another and Related Cases1989 (4) SA 263 (SE): dictum at 288E - G applied

Kotsopoulos v Bilardi1970 (2) SA 391 (C): dictum at 395D - E applied

Levitan v Newhaven Holiday Enterprises CC1991 (2) SA 297 (C): applied

Lobo Properties (Pty) Ltd v Express Lift Co (SA) (Pty) Ltd1961 (1) SA 704 (C): applied J

2002 (2) SA p538

McKelvey v Cowan NO 1980 (4) SA 525 (Z): dictum at 526D - E applied A

McKenzie v Farmers' Co-operative Meat Industries Ltd1922 AD 16: dictum at 23 applied

Natal Fresh Produce Growers' Association and Others v Agroserve (Pty) Ltd and Others1990 (4) SA 749 (N): referred to

Sackstein en Venter NNO v Greyling1990 (2) SA 323 (O): dictum at 327E - F applied B

Steenkamp v Mienies en Andere1987 (4) SA 186 (NC): applied.

Statutes Considered

Statutes

The National Parks Act 57 of 1976, s 21(1)(a): see Juta's Statutes of South Africa 2000 vol 3 at 1-512.

Case Information

Exception to the plaintiff's particulars of claim. The nature of the pleadings appears from the reasons for judgment. C

P R Hathorn for the excipient (defendant).

E Fagan for the respondent (plaintiff).

Cur adv vult. D

Postea (May 23).

Judgment

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

2002 (2) SA p539

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:

•

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;

•

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;

•

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;

•

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

•

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;

•

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

2002 (2) SA p540

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;

•

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

•

the defendant does not have the requisite permission in terms of s 21(1)(a) of the Act to reside on the premises (which...