Union Government v Gass

• Jurisdiction: South Africa
• Judge: Schreiner JA, De Beer JA, Malan JA, Van Blerk JA and Ogilvie Thompson JA
• Judgment Date: 25 September 1959
• Hearing Date: 09 September 1959
• Court: Appellate Division

Ogilvie Thompson, J.A.:

Respondent was the registered owner of portion 64 (being portion of a portion) of the farm Zeekoegat No. 287 situate in E the district of Pretoria and a little over 11 morgen in extent. On 15th December, 1955, appellant served upon respondent a notice of expropriation of the whole of the aforementioned portion 64 as being required in connection with the Pienaars River Government Irrigation Scheme. In terms of this notice, the expropriation was made pursuant to the provisions of sec. 98 of the Irrigation and Conservation of Waters F Act, 8 of 1912, as substituted by sec. 9 of Act 46 of 1934, and the sum of £5,744 was offered to respondent as compensation. Respondent declined to accept this sum, and on 2nd May, 1956, appellant's offer was increased to £6,560, which last-mentioned amount was actually paid over to respondent. Being still dissatisfied with the amount of compensation, G respondent thereafter, by petition dated 6th August, 1956, applied to the Transvaal Water Court to have the amount of compensation determined. For convenience, I will from now on refer to respondent and appellant as Gass and the Department respectively.

In his petition to the Water Court Gass claimed compensation in the sum of £11,000 made up as follows; £3,100, as being the fair market value of H the land without improvements; £5,400 as being the fair value of the improvements on the land; £2,500 for 'severe loss and inconvenience by reason of the expropriation'. In response to request, particulars of these various amounts were duly given. In addition to the foregoing and a claim for costs, Gass, averring in his petition that he had not acquired the property for speculative purposes, prayed that the Water Court should in its discretion add to the values of the land

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and of the necessary and useful improvements thereon an amount not exceeding one-fifth of such values 'as provided by sub-sec. (3) of sec. 98 of Act 8 of 1912'. It must at this juncture be mentioned that on 13th A July, 1956, (that is to say, before Gass petitioned the Water Court) there came into force the Water Act 1956 (Act 54 of 1956) which repealed Act 8 of 1912. In its plea the Department averred that the sum of £6,560 which had been paid to Gass exceeded the compensation to which he was entitled and also specially denied that Gass was entitled to the additional amount mentioned in the proviso to sub-sec. (3) of sec. 98 of B Act 8 of 1912, as amended. The Department's plea concluded with prayers that the Water Court should determine the amount of compensation payable to Gass 'in terms of sec. 60 of Act 54 of 1956' and for an order for costs against him. In response to a request for further particulars showing the determiniation of the sum of £6,560, the Department replied as follows:

"(a)	Estimated value of expropriated land without improvements	£2,549	15	1
(b)	Estimated value of improvements	£2,917	5	0
(c)	20% added by the Landboard for loss and inconvenience likely to result from the expropriation	£1,093	8	0
		£6,560	8	1.

D In regard to item (c) supra the respondent says

1.

That the percentage concerned was added by the Landboard to its valuation of the land and improvements with a view to compensating for any loss or inconvenience which may be sustained by the applicant pursuant to expropriation. The said percentage was not based on any actual loss or inconvenience which was likely to be sustained by the applicant as the result of the expropriation. Such loss or inconvenience was not computed by the Landboard.

2.

E That in all other acquisitions of property for the purpose of the Pienaars River Irrigation Scheme the same percentage was added by the Landboard to its value of the land and improvements concerned.

3.

That the said percentage by far exceeds any compensation for actual loss or inconvenience to which the applicant may be entitled, and which it is the function of the above Honourable Court to determine.'

F A considerable amount of evidence was led before the Water Court by the parties in support of their respective contentions. By the time that the hearing had proceeded as far as the argument stage, agreement had, fortunately, been reached on several of the issues in dispute, including the important questions of the basic values per morgen to be assigned to G the irrigated, irrigable, and grazing lands respectively. There remained, however, a number of disputed issues and upon these the Water Court was required to pronounce. Ultimately, in a judgment dated 25th November, 1958, the Water Court assessed Gass's compensation at an aggregate of £6,586 10s. 0d. made up as follows:

"i.	Value of the unimproved land	£2,579	0	0
ii.	Value of improvements	£3,922	10	0
iii.	Loss caused by the expropriation	£85	0	0."

H In delivering the judgment of the Water Court, BEKKER, J., went on to say that, since Gass had already been paid £6,560, 'the shortfall is accordingly £26, 10s. 0d. which respondent is ordered to pay together with costs of suit'.

The Department has now appealed to this Court, and Gass has cross-appealed. The Department appeals against three aspects of the Water Court's judgment, viz.: (i) the award of the sum of £200 in respect of

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alleged enhanced value of the land; (ii) the award of £150 in respect of 550 feet of 4 - inch piping; (iii) the award of costs to Gass. I proceed to deal with these complaints in turn.

As indicated above, the basic land values had, by the stage of argument, A become common cause. Applying those values, it was further common cause, at the argument stage, that the aggregate compensation thus payable to Gass for the land without improvements should be the sum of £2,379. Gass, however, contended that this sum fell to be increased by reason of the facts that his property had (a) two sources of water B supply and (b) an unrestricted title. The Department maintained that no additional sum was payable in respect of either of these features. In the event, the Water Court awarded the sum of £200 which is now challenged before us.

The existence of the features thus relied upon by Gass is not in dispute, for Gass admittedly held a clean title and the property is C bounded on the north by the Derdepoort Spruit and on the east by the Pienaars River. It was however submitted to us by Mr. Munnik in his argument for the Department that, on the evidence, irrigation from the Pienaars River would be uneconomic and that, consequently, the river could not rightly be regarded as an additional source of supply or as D enhancing the value of Gass's property in any way. The absence of any restriction in Gass's title deed - so counsel's argument continued - constituted no advantage over the neighbouring properties since the restrictions on the latter derived from sec. 11 (6) of the Advertising on Roads and Ribbon Development Act 1940 (Act 21 of 1940) which not only might, under the provisions of sec. 11 (6) bis of that Act, be waived by E the controlling authority mentioned in that sub-section, but, on the evidence, had on occasion been so waived. Summarised, the restrictive conditions in question were that, without the consent of the controlling authority, the ground was to be used only for dwelling and agricultural purposes; sub-division was prohibited; only one dwelling house, together with the usual outbuildings, might be erected.

F In terms of sec. 60 (3) (a) (i) of Act 54 of 1956 (as also under sec. 98 (3) (a) (i) of the earlier Act) the Water Court is required to determine the 'fair market value of the land, without improvements'. It is the duty of a valuer seeking to arrive at the market value of a property to take into consideration every circumstance likely to influence the mind of the purchaser (Pietermaritzburg Corporation v. G S.A. Breweries Ltd., 1911 AD 501 at pp. 516 and 524). Prima facie, the facts that Gass's property, unlike those surrounding it, had a clean title and that it abutted two rivers are pre-eminently circumstances which would be likely to influence the mind of a potential purchaser. The Water Court, after examining the evidence, expressed the view in its H judgment that 'these features do serve to enhance the value of the land in question and that some allowance must be made for them'. In the circumstances, that is a conclusion - reached by a tribunal which by its composition is particularly well fitted to assess the practicability of using both water supplies - which this Court would not lightly disturb. This is more particularly the case since the Department's witnesses do not appear to have accorded this aspect of the enquiry the attention it

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deserved, while Gass's contention derived some support from the evidence of his predecessor in title as well as from the direct evidence of his witness van der Merwe, an experienced estate agent with an intimate A knowledge of the locality. Mr. Munnik sought to criticise the Water Court's treatment of the evidence in relation to the dual water supply issue and maintained that it had misdirected itself in finding that the witnesses for the Department had not fully considered the question of the clean title. To set out all of counsel's criticisms in detail would be to extend this judgment to unwarranted lengths. It suffices to say B that, having given due consideration to counsel's submissions, no sufficient ground has, in my opinion, been made out for disagreeing with the Water Court's view that some allowance must be made for the features of clean title and dual water supply.

The translation of this conclusion into terms of money was - as the C Water Court clearly...