Badenhorst and Others v Surveyor-General, Cape Town (147/97) [1999] ZASCA 23 (29 March 1999)

Badenhorst and Others v Surveyor-General, Cape Town (147/97) [1999] ZASCA 23 (29 March 1999)

The Supreme Court of Appeal held that the most probable inference from the circumstantial evidence was that the owners of erf 766 intended general plan S101 to replace S91 and to cancel S91 in so far as it related to erf 766. The respondent, by approving S101, agreed to such cancellation. The omission of erf 766 from S101 and subsequent diagrams, the absence of references to S91, and the change in property descriptions all supported the conclusion that S91 was cancelled for erf 766. The court found no statutory or case law authority requiring court sanction for the cancellation in question, as no public places were affected. The appeal was dismissed, confirming the respondent's actions as...

Citation
[1999] ZASCA 23
Parties
Appellant: Frederic Johannes Badenhorst; Appellant: Heinrich Jacobus Badenhorst; Appellant: Etienne Frans Badenhorst; Respondent: Surveyor-General, Cape Town
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 March 1999
Case Number
147/97
Procedural Posture
Civil Appeal / Appeal From Dismissal of Application in the Court a Quo
Outcome
Appeal dismissed with costs.
Judges
Hefer, Grosskopf, Marais, Streicher, Farlam
Legal Topics
Subdivision of Land, General Plan Cancellation, Land Use Planning Ordinance, Survey Diagrams, Township Establishment
Land and Property Administrative Law Subdivision of Land General Plan Cancellation Land Use Planning Ordinance Survey Diagrams Township Establishment

Case Brief

Summary, issues, holding and outcome

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Parties

Frederic Johannes Badenhorst

Appellant

Heinrich Jacobus Badenhorst

Appellant

Etienne Frans Badenhorst

Appellant

Surveyor-General, Cape Town

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Application in the Court a Quo

Legal Issues

  1. 1 Whether the cancellation of general plan S91 in respect of erf 766 was valid and lawful.
  2. 2 Whether the subdivision rights attaching to erf 766 persisted after the approval of general plan S101.
  3. 3 Whether the cancellation of S91 required the sanction of the court or the consent of the Premier under the Land Survey Act.

Ratio Decidendi

The Supreme Court of Appeal held that the most probable inference from the circumstantial evidence was that the owners of erf 766 intended general plan S101 to replace S91 and to cancel S91 in so far as it related to erf 766. The respondent, by approving S101, agreed to such cancellation. The omission of erf 766 from S101 and subsequent diagrams, the absence of references to S91, and the change in property descriptions all supported the conclusion that S91 was cancelled for erf 766. The court found no statutory or case law authority requiring court sanction for the cancellation in question, as no public places were affected. The appeal was dismissed, confirming the respondent's actions as...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.