Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another

• Jurisdiction: South Africa
• Judgment Date: 25 July 2008
• Citation: 2009 (1) SA 337 (CC)

Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
2009 (1) SA 337 (CC)

2009 (1) SA p337

Citation	2009 (1) SA 337 (CC)
Case No	CCT 78/07
Court	Constitutional Court
Judge	Langa CJ, O'Regan ADCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Kroon AJ
Heard	March 4, 2008
Judgment	July 25, 2008
Counsel	A Beyleveld and EN Gaisa for the applicant.; RG Buchanan SC (with GF Porteous) for the first respondent.; PM Wulfsohn SC (with K Hofmeyr) for the Amici Curiae.; S Budlender and R Keightley for the intervening party.

Flynote : Sleutelwoorde B

Sale — Land — Agricultural land — What is — Land within jurisdiction of transitional council and classified as agricultural remaining agricultural — Land not ceasing to be agricultural once transitional council disestablished and C land falling within jurisdiction of municipality — Subdivision of Agricultural Land Act 70 of 1970, proviso to s 1(i).

Headnote : Kopnota

The first respondent had in 2005 approached the High Court for an order declaring that a contract for the sale of certain agricultural land the first respondent had purchased from the applicant was binding and directing the D applicant to transfer the land accordingly. The applicant countered that the contract was void because it did not comply with s 3 of the Act, which required ministerial consent in writing to the subdivision and sale of agricultural land. According to the applicant the land fell within the proviso to the definition of agricultural land as contained in the Subdivision of E Agricultural Land Act 70 of 1970, and the requisite ministerial consent had not been obtained.

The proviso to the definition of agricultural land stated that 'land situated in the area of jurisdiction of a transitional council which immediately prior to the first election of members of the transitional council was classified as agricultural land, shall remain classified as such'. It was common cause that F the land in question was situated in the area of jurisdiction of a transitional council immediately prior to the first election of members of the transitional council. It was further common cause that with the disestablishment of transitional councils the land fell within the jurisdiction of a municipal council. The first respondent contended that the proviso preserved the status of agricultural land only until such time as transitional councils were G

2009 (1) SA p338

A superseded by municipal councils. The applicant contended on the other hand that there was no time limit on the operation of the proviso.

The High Court found that the proviso provided a point in time to which it had to be established if land qualified as agricultural land; that at that point in time the land in question had qualified as agricultural land; and that absent ministerial consent, the contract was invalid for want of compliance with B s 3 of the Act. The High Court accordingly dismissed the application.

The High Court's decision was reversed on appeal to the Supreme Court of Appeal. The SCA found that the proviso applied only during the existence of transitional councils, that the land was accordingly not agricultural land as defined and that ministerial consent was consequently not required. In an application for leave to appeal to the Constitutional Court, the court, C after holding that a proper case for the granting of leave to appeal had been made out,

Held, as to the merits, that the interpretation to be given to the ordinary meaning of the words used in the proviso, in the context of the statute read in its entirety, including its purpose, was that the duration of the classification of land as 'agricultural land' was not tied to the life of transitional councils, D and that the reference therein to 'land situated within the jurisdiction of a transitional council' was dictated by the factual position which then obtained and which had to be addressed, and the way that that was done, as found by the High Court, was by pinpointing the stage from which land classified as 'agricultural land' would remain so classified. The proviso was therefore still operative. (Paragraphs [61] - [62] at 360F - 362B.)

E Held, further, that the enhanced status of municipalities and the fact that municipal ordinances accorded them various powers, including those of planning, zoning and rezoning of land and approval of applications for subdivision, was not a ground for ascribing to the Legislature the intention that national control over 'agricultural land' through the Agricultural Land Act, was effectively a thing of the past. There was no reason why the two F spheres of control could not co-exist, even if they overlapped and even if, in respect of the approval of subdivision of 'agricultural land', the one could, in effect, veto the decision of the other. (Paragraphs [79] - [80] at 366E - H.) Appeal granted and the order of the High Court reinstated.

The decision in Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd and Another 2008 (1) SA 654 (SCA) reversed.

Cases Considered

Annotations G

Reported cases

Affordable Medicines Trust and Others v Minister of Health and Another 2006 (3) SA 247 (CC) (2005 (6) BCLR 529): referred to

African National Congress and Another v Minister of Local Government and Housing, KwaZulu-Natal and Others 1998 (3) SA 1 (CC) (1998 (4) BCLR 399): referred to H

Armbruster and Another v Minister of Finance and Others 2007 (6) SA 550 (CC) (2007 (12) BCLR 1283): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others I 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): referred to

CDA Boerdery (Edms) Bpk and Others v Nelson Mandela Metropolitan Municipality 2007 (4) SA 276 (SCA): referred to

City of Cape Town and Another v Robertson and Another 2005 (2) SA 323 (CC) (2005 (3) BCLR 199): referred to

Ex parte President of the Republic of South Africa: In re Constitutionality of the J Liquor Bill 2000 (1) SA 732 (CC) (2000 (1) BCLR 1): referred to

2009 (1) SA p339

Executive Council of the Western Cape Legislature and Others v President of the A Republic of South Africa and Others 1995 (4) SA 877 (CC) (1995 (10) BCLR 1289): referred to

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458): referred to

Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others B 1985 (4) SA 773 (A): referred to

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC) (2007 (3) BCLR 219): dicta in paras [38] and [47] applied

Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, C Mpumalanga Province and Others 2007 (6) SA 4 (CC) (2007 (10) BCLR 1059): referred to

Geue and Another v Van der Lith and Another 2004 (3) SA 333 (SCA): referred to

Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) (2001 (9) BCLR 883): referred to D

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079): referred to

Kotzé v Minister van Landbou en Andere 2003 (1) SA 445 (T): applied

Magajane v Chairperson, North West Gambling Board and Others E 2006 (5) SA 250 (CC) (2006 (10) BCLR 1133): referred to

Mistry v Interim National Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) (1998 (7) BCLR 880): dictum in paras [17] - [18] applied

NEHAWU v University of Cape Town and Others 2003 (3) SA 1 (CC) (2003 (2) BCLR 154): referred to F

Nel v Le Roux NO and Others 1996 (3) SA 562 (CC) (1996 (4) BCLR 592): referred to

Phillips and Others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) (2006 (2) BCLR 274): referred to

Radio Pretoria v Chairman of the Independent Communications Authority of South Africa and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR 231): G referred to

S v Boesak 2001 (1) SA 912 (CC) (2001 (1) BCLR 36): referred to

S v Shaik and Others 2008 (2) SA 208 (CC) (2007 (12) BCLR 1360): referred to

Sentraalwes Personeel Ondernemings (Edms) Bpk v Wallis 1978 (3) SA 80 (T): referred to H

Shaik v Minister of Justice and Constitutional Development and Others 2004 (3) SA 599 (CC) (2004 (4) BCLR 333): applied

Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd and Another 2008 (1) SA 654 (SCA): reversed on appeal

Tuckers Land and Development Corporation (Pty) Ltd v Truter 1984 (2) SA 150 (SWA): referred to I

Van der Bijl and Others v Louw and Another 1974 (2) SA 493 (C): referred to.

Unreported cases

Stalwo (Pty) Ltd v Wary Holdings (Pty) Ltd and Registrar of Deeds, Cape Town (EC case No 5349/05, 26 January 2006): confirmed. J

2009 (1) SA p340

Statutes Considered

Statutes A

The Subdivision of Agricultural Land Act 70 of 1970, ss 1(i) and 3: see Juta's Statutes of South Africa 2007/8 vol 6 at 2-246.

Case Information

Application for leave to appeal and appeal against a decision in the B Supreme Court of Appeal. The facts appear from the judgment of Kroon AJ.

A Beyleveld and EN Gaisa for the applicant.

RG Buchanan SC (with GF Porteous) for the first respondent.

PM Wulfsohn SC (with K Hofmeyr) for the Amici Curiae.

S Budlender and R Keightley for the intervening party.

Cur adv vult.

Postea (July 25). C

Judgment

Kroon AJ: D

Introduction

[1] The applicant seeks leave to appeal to this court against the decision E of the Supreme Court of Appeal, handed down on 28 September 2007, [1] which unanimously upheld the first respondent's appeal against the decision of the Port Elizabeth High Court. [2]

[2]...