Hough v Durban Metropolitan Unicity Municipality, Hough v Durban Metropolitan Unicity Municipality and Others; Hough v Durban Metropolitan Unicity Municipality and Others; Durban Metropolitan Unicity Municipality v Hough and Another (785/03 , 785/03 , 848/03 , 1175/03 , 9433/04) [2006] ZAKZHC 7; 2007 (1) SA 455 (N) (7 June 2006)

REPORTABLE

THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

In the matters between :

CASE NO. 785/03

HENDRIK PETRUS HOUGH (Substituted for LA LUCIA PROPERTY INVESTMENTS LIMITED) Plaintiff and DURBAN METROPOLITAN UNICITY MUNICIPALITY Defendant

AND

CASE NO. 848/03

HENDRIK PETRUS HOUGH (Substituted for LA LUCIA PROPERTY INVESTMENTS LIMITED) Applicant and DURBAN METROPOLITAN UNICITY MUNICIPALITY Respondent THE SURVEYOR-GENERAL DEPARTMENT OF LAND AFFAIRS Interested Party THE REGISTRAR OF DEEDS DEPARTMENT OF LAND AFFAIRS Interested Party

CASE NO. 1175/03

HENDRIK PETRUS HOUGH (Substituted for LA LUCIA PROPERTY INVESTMENTS LIMITED) Applicant and DURBAN METROPOLITAN UNICITY MUNICIPALITY Respondent THE SURVEYOR-GENERAL DEPARTMENT OF LAND AFFAIRS Interested Party THE REGISTRAR OF DEEDS DEPARTMENT OF LAND AFFAIRS Interested Party

CASE NO. 9433/04

DURBAN METROPOLITAN UNICITY MUNICIPALITY Applicant and HENDRIK PETRUS HOUGH (Substituted for LA LUCIA PROPERTY INVESTMENTS LIMITED) First Respondent MEC FOR TRADITIONAL AND LOCAL GOVERNMENT AFFAIRS Second Respondent

JUDGMENT

Delivered on : 7 June 2006

PATEL, J. :

[1] This is an application in which four applications served before me on the Opposed Motion Court Roll.

A. In the matter under Case No. 785/03 the Plaintiff by action sought monetary compensation as follows :

Claim No. 1

1. Payment in the sum of R5,000,000.00;

Claim No. 2

2. Payment in the sum of R1,600,000.00;

Claim No. 3

3. Payment in the sum of R800,000.00;

Claim No. 4

4. Payment in the sum of R800,000.00;

5. Interest on the aforesaid amounts referred to in Prayers 1 to 4 at the rate of 15.5% per annum from date of judgment to date of payment;

6. Costs of suit.

The Defendant excepted to this claim and it is the argument on the exception which is before me.

B. The next application is the application under case No. 848/03. In that application the Applicant seeks the following relief :

1. Declaring that transfer of Lots 724, 733, 800, 801 in Private Township LA LUCIA (EXTENSION NO. 2) from the Applicant’s title deed, Deed of Transfer No. 14038/1968 to the Town Council of the Borough of Umhlanga under Deed of Transfer No. T11816/95 was unlawful and is hereby set aside;

2. Ordering the Registrar of Deeds to correct the Township Register relating to Private Township La Lucia to reflect that Lots 724, 733, 800 and 801 is vested in the name of the respondent in terms of section 25 of the Natal Ordinance No. 27 of 1949, alternatively ordering the Respondent to pay to the Applicant the following amounts by way of damages in respect of the unlawful transfer of Lots 724, 733, 800 and/or 801 in its name :

(a) In respect of Lot 724, R1,600,000.00;

(b) In respect of Lot 733, R1,600,000.00;

(c) In respect of Lot 800, R5,000,000.00;

(d) In respect of Lot 801, R5,000,000.00.

3. Declaring the physical closure of the streets between 654 and 754 in Private Township LA LUCIA EXTENSION NO 2 to be unlawful;

4. Ordering the Respondent to do whatever is required by law to effect the permanent closure of the street between Lots 654 and 754 in Private Township LA LUCIA (EXTENSION NO. 2) alternatively ordering the Respondent to pay the Applicant an amount of R1,500,000.00 in damages for unlawful closure and deprivation / expropriation of the streets between Lots 654 and 754 in Private Township LA LUCIA (EXTENSION NO. 2);

5. Ordering the Respondent to do whatever is required by law to effect the permanent closure of the following lots situated in the following Private Townships owned by the Applicant :

(a) LA LUCIA : REG DIV FU

i. Public Place between Lots 46 & 47 and Lots 56 & 57 (Ref 12/13(L);

ii. Public Place between Lots 85 & 86 and Lots 94 and 95 (Ref 12/13(f));

iii. Public Place between Lots 109 & 110 and Lots 124 & 125 (Ref 12/13(i)).

(b) LA LUCIA (EXTENSION NO. 2)

i. Public Place between Lots 665 and 678 (Ref 12/13(f));

ii. Public Place between Lots 689 and 741;

iii. Public Place between Lots 803 and 962 (Ref 12/12(c));

iv. Portions of Roads Campbell and Kingston Drive (Ref 12/13(u));

v. Public Place Lot 1048 (Ref 12/13(t));

vi. Public Place between Lots 803 & 962, which is now Lot 1051 (Ref. 12/12(c)).

(c) LA LUCIA (EXTENSION NO. 5)

i. Area between Lots 1067 & 1068 (Ref 12/13(e));

ii. Area between Lots 1092 and 1093 (Ref 12/13(d)).

(d) LA LUCIA (EXTENSION NO. 6)

i. Public Place being Lot 1239 (Ref 12/13(s).

6. Declaring, in the alternative to the Prayer 5(c)(i) and 5(c)(ii), that the Applicant is the owner of the land situate between Lots 1067 & 1068 and Lots 1092 and 1093 in Private Township LA LUCIA (EXTENSION NO. 5);

7. Further and/or alternative relief;

8. Costs.

C. The next application is the application under case No. 1175/03. In that application the Applicant seeks the following relief :

1. Ordering the Respondent to transfer Lot 754 and 802 La Lucia (Extension No. 2) which had been transferred to the Respondent pursuant to the Conditions of Establishment of Private Township La Lucia (Extension No. 2) to the Applicant;

2. Costs on an attorney and client scale.

D. The last application is the application under case No. 9433/04. In that application the Applicant, the respondent in the above three matters, seeks the following relief :

An order :

1.1 DECLARING that the first respondent’s purported closure, by public notice to take effect on 22 November 2004, in terms of the Local Authorities (Natal) Ordinance, No. 25 of 1974, of the following properties :

(a) a road between Lots 1067 and 1068 and a road between Lots 1072 and 1073 or Lots 1092 and 1093, in Private Township La Lucia (Extension No. 5);

(b) a road adjacent to Lot 771 and a circular link in Private Township La Lucia (Extension No. 2);

(c) a road adjacent to a circular link and Remainder 9 of Lot La Lucia No. 14634;

(d) public places Lots 1046. 1047 and 1048 in Private Township La Lucia (Extension No. 2);

is unlawful, invalid and of no force and effect.

1.2 THAT pending the resolution of the action and the applications instituted by the first respondent under case numbers 848/03; 785/03 and 1175/03 in this Court, the first respondent be and is hereby interdicted and restrained from taking any steps pursuant to the purported road closure described in paragraph 1.1;

1.3 DIRECTING the first respondent to pay the costs of this application; and

1.4 Further, other or alternative relief.

[2] On the 30 May 2005, an order by consent was granted in each of the four matters in terms of which Mr. Hendrik Petrus Hough (hereinafter referred to as ‘Hough’) was substituted for La Lucia Property Investments Limited (‘the company’). These orders also provided that the company remain jointly and severally liable with Hough in respect of any costs orders made against him in these matters. I shall in the course of this judgment refer to the Durban Metropolitan Unicity Municipality as the ‘Ethekwini Municipality’.

[3] In dealing with these matters I propose going through the relevant legislation since an analysis of it has implications in all the matters. Hough’s claims, in essence, relate to two categories of immovable properties which are in the township of La Lucia and its various extensions. I shall collectively refer to the area as ‘La Lucia’. It is Hough’s claims that he has certain reversionary rights in ‘public places’ in La Lucia as well as in ‘properties set aside for Local Authority purposes’ when La Lucia was first established. As an analysis will show, these two categories are distinctly different.

[4] I deal firstly with the action under Case No. 785/03 (‘the exception application’) and the application under Case No. 848/03 (‘public places application’) since both deal with issues related to whether Hough has any right to claim public places in La Lucia. The legal issues raised in the public places application are those also raised in the exception.

[5] I might mention that the application in Case No.1175/03 (‘Local Authority purposes application’) invites an analysis of the same legislative framework to be considered in the exception application and in the public purposes application. However, in this application, Hough contends that immovable property foreshadowed in the Notice of Motion was set aside for ‘Local Authority purposes’ and was given to the Ethekwini Municipality’s predecessors as a donation subject to a modus and because these properties are no longer being used for the purpose for which they were given, they must be transferred to him as township owner. Logic therefore dictates that I consider the Local Authority purpose application after the exception and the public purposes application.

[6] The interdict application in case no. 9433/04 (‘the interdict application’) is the return day of a Rule preventing Hough from seeking permanently to close some of the public streets and roads which are the subject matter of the above applications. It is therefore meet that I deal with this application at the end as interim relief has been obtained.

[7] It is necessary to consider the history of the development of La Lucia in order to understand the legal issues attending these applications. This history is set out in the case of Natal Estates Ltd v Secretary for Inland Revenue 1975(4) SA 177 (AD) and what is set out below is essentially a précis of that history.

[8] The demand for additional residential land to the north of Durban increased during the 1960’s and it is for this reason that La Lucia was developed. The development was undertaken in various stages and at each stage permission had to be obtained in terms of the extant Town Planning Ordinances to establish a private township on a further portion of the original land which was hitherto used for sugar cane cultivation. Whilst the initial permission to establish private township on the land was sought and obtained by the Natal Estates Limited as early as 1958, the actual development from 1968 onwards was undertaken by the company.

[9] Permission was sought and given in terms of the extant Town Planning Ordinance 27 of 1949 (the Ordinance). In granting permission to establish the township and its various extensions the Administrator in each case imposed certain conditions of establishment. A general layout plan showing the lots in the township was submitted to the Administrator in each instance and, as is customary, certain lots in the various township extensions were designated as public places while others were set aside for local authority and other government purposes. Further plots were set aside for future developments such as road development.

[10] The geography of the area dictated that certain ‘lanes’ which were relatively narrow strips of land between the lots be set aside as short cut access between different roads. These access strips gave access to the beach at regular intervals in the lower portion of the township. In any event, the Private Township La Lucia and its various extensions took place between 24 September 1964 and 31 December 1970. The company is no longer part of the Tongaat-Hulett Group of companies. As is evident from the Answering Affidavit filed in Case No. 848/03 (the public purposes application), Hough became a shareholder in the company on 6 November 1999. The remaining directors appear to have been appointed either shortly before or shortly thereafter. Prior to his substitution for the company, Hough acted as the Company’s representative in all dealings with the Ethekwini Municipality’s attorneys.

[11] With the establishment of La Lucia, the land set aside for public purposes, local authority purposes and roads, came to be vested in the relevant local authority which was initially the La Lucia Health Committee which was later replaced by the Town Council of the Borough of Umhlanga. The Ethekwini Municipality is a successor in law to those local authorities. In accordance with the Ordinance, Lots set aside for local authority purposes were transferred to the local authority in accordance with the mandatory provisions of the Ordinance. In the case of public places, ownership of these lots vested by virtue of the statutory framework in the local authority.

[12] I propose now to look at the legislative framework for the establishment of private townships. The establishment of private townships is regulated by Chapter 3, sections 11 – 39 of the Ordinance.

[13] Section 11 of the Ordinance provides that no person shall establish a private township without the approval of the Administrator. Section 11(4) of the Ordinance further provides that the Administrator, in authorising the development of private townships, is empowered to grant such authority (subject to any conditions not inconsistent with the provisions of this Chapter.) Section 16 deals with the conditions for the establishment of a private township. It empowers the Administrator to draft conditions subject to which the approval of the establishment of such private township may be granted. These conditions include :

‘(f). the provision and reservation of lots for Government, local authority and regional water supply corporation purpose including educational, recreational, health, sanitation and commonage purposes for the use and benefit or in the general interest of the public or any other Government or local authority purpose or the payment by the township owner of a sum of money in lieu thereof’;

[14] In terms of section 17(1) of the Ordinance and prior to deciding on an application to establish a private township, the Administrator is required to advise the Applicant and the local authority of his intended decision as well as of the conditions proposed to be prescribed by him. Thereafter representations are canvassed and considered by the Administrator. In terms of section 18 of the Ordinance, the Administrator may then grant or refuse an application subject to such conditions as are prescribed.

[15] The next relevant provision in the Ordinance is section 25. This section deals with the ownership of public places, which vest in the local authority or in the Administrator in trust where a local authority is to be formed. The section reads :

‘25. Ownership of public places vests in local authority or the Administrator in trust. –

(1) From the date of publication of the notice referred to in section 23 or of any declaration made by the Administrator under sub-section (4) of section 33, the ownership of all public places in the approved private township shall, subject to the provisions of section 38, vest in the local authority, or in the Administrator in trust for any future local authority, as the case may be, for the use and benefit of the public; Provided that any such vesting shall not be deemed to impose any liability in regard to the maintenance of such public places other than is imposed by law.

(2) The Registrar of Deeds shall record such vesting in the private township register.

(3) Upon the constitution of a local authority or the incorporation of the private township in a local authority area, the Registrar of Deeds shall record such vesting in the local authority in the private township register’.

[16] Section 26 is the next relevant section which relates to the transfer of land reserved for local authority purposes. Section 26 reads :

‘Transfer of land to Government, local authority or the Administrator in trust. –

(1) After the publication of the notice referred to in sub-section (1) of section 23, the applicant, shall at his own cost, including transfer duty and other Government dues, transfer such lots as have been reserved in accordance with the provisions of paragraph (f) of section 16 for Government, local authority or regional water supply corporation purposes, namely –

(a) such lots as have been reserved for Government purposes, to the Government;

(b) such lots (not being public places) as have been reserved for local authority purposes, to the local authority or the Administrator in trust for a future local authority; and

(c) such lot or lots as have been reserved for the purposes of any regional water supply corporation to that corporation. ….’

26(4)ter provides :

‘If any lot situate in an approved private township, which shall at any time have been transferred to a local authority for any specified purpose, whether in terms of this Ordinance or the Private Township and Town Planning Ordinance, 1934 is no longer suitable or is not required for the public purposes which it was intended to serve, the local authority may with the prior approval of the Administrator, use the same for any other public purpose, or alienate it free of any condition restricting its use to any public purpose, to all intents and purposes as though such lots were immovable property, freely alienable, as contemplated by section 233 of the Local Authorities Ordinance, 1974 (Ordinance No. 25 of 1974)’.

[17] The statutory framework is clear in its provenance. The position in respect of public places is that ownership of all public places vests in the local authority and the Registrar of Deeds is required to record such vesting in the private township register. This, of course, is different from the registration of title in the name of the local authority. If registered title is required the local authority can obtain such title without further reference to the previous owner under section 31 of the Deeds Registries Act, Act No. 47 of 1937.

[18] Land which is set aside for local authority purposes (other than public places – an expression which includes public streets) is treated differently. An Applicant who intends developing a township must transfer the land set aside for local authority purposes ‘at his own cost’ to the local authority. Further, as is evident from section 26(4)ter, the fact that lots have been set aside for local authorities does not mean that it cannot be used for other purposes at some point in the future. Accordingly, in relation to such land, the local authority obtains registered title from the outset and its subsequent use is dealt with in terms of section 26(4)ter.

[19] The next relevant sections to be considered are the definitions of ‘public place’ and ‘street’ in the Ordinance. ‘A public place’ is defined as :

‘Any street (as defined in this section) and any square, park, recreation ground, garden, commonage or enclosed or open space –

(a) which being situate in an approved private township, was set apart as such under Chapter III of this Ordinance or under the Ordinance repealed by this Ordinance, for the use and benefit of the public and is shown in the general plan of such ownership; or

(b) which being situate in the local authority area, the local authority is vested with the ownership, control or management thereof by law or by deed of title for the use and benefit of the public, or which the public has the right to use; or

(c) to which, if situate in existing private township (whether such existing private township is or is not itself situated in a local authority area), the public or the inhabitants have the common right, …; provided that any public place as hereinbefore defined shall be available for use only for such purpose as it was intended to serve, or which it may by immemorial usage have come to serve; and provided further that nothing contained in paragraph (a) or (c) shall be deemed to apply in respect of any private township situate in any local authority area to which the provisions of Chapter III do not apply under or in terms of section 39, other than any private township the establishment of which was approved before the provisions of Chapter III …’.

Street is defined in the Town Planning Ordinance as ‘any street, road, lane, passage or the right-of-way and includes any bridge, sub-way, drain, culvert or the like in a street’.

The local authorities’ powers in respect of public places (including streets) are regulated by the Local Authorities Ordinance, No. 25 of 1974 (Natal Ordinance). These powers are described in sections 208 and 209 of the Natal Ordinance. Section 208 of the Natal Ordinance provides :

‘the ownership, management and control of all public streets … and public places within the borough and the land comprised in such streets and places shall vest in the council which may assign names to such streets and places.’

[20] Section 209 of the Natal Ordinance provides powers to a local authority in regards to public places. In summary, these powers are to be exercised for the public benefit and may not be exercised in such a manner as to authorize the deprivation or substantial deprivation of the public of the enjoyment of its rights in or to any public street or public place.

[21] The Natal Ordinance recognizes that public places may be put to other uses by providing for their closure. Section 212 of the Natal Ordinance provides for the permanent closing of a public place and incorporates the provisions of section 211 dealing with the closure of public streets. This follows upon an application to the Administrator. Upon the closing of such public place, the position in regard to the ownership is that it shall :

‘i. If such ownership vested in the council by Deed of Title prior to such closing, continue so to vest in the council, and

ii. if such ownership did not so vest in the council prior to such closing, vest in the person who is the registered owner of such land unless the Administrator, on application by the council not later than three months after such closing, otherwise directs, and upon such closing such land shall be free of further use as a [street].’ (Section 211(2)(h)(i)-(ii)).

[22] A literal interpretation of these provisions makes it clear that the closure of a public place or a public street does not mean that ownership of those lots reverts automatically to the township owner. The consequence is that setting aside of land for public purposes does not make that status immutable. The designation of land within a private township as a public place has the effect that the land in question vests in the local authority. The local authority may secure its transfer into its name. Thereafter, if the local authority is of the view that it is expedient to permanently close the public place, it may do so following the procedure set out in section 211 read with section 212 of the Natal Ordinance. If it does this, there is no automatic right of reversion to the original owner.

[23] The next relevant aspect to be considered is the consequence of the closing of a public place. When a public place has been closed, the general plan of the township falls to be amended in terms of section 37(2) of the Land Survey Act No. 8 of 1997. The general plan is not cancelled, either wholly or in part in that situation. A general plan cannot be cancelled in respect of land that has been developed and transferred. Where a development is abandoned in whole or in part, the general plan is cancelled either wholly or in part. Section 38 of the Ordinance deals with the cancellation or amendment of a general plan. Section 38(3) provides :

‘If the general plan of any approved private township be totally or partially cancelled by the Surveyor-General under the powers vested in him by section 30 of the Land Survey Act, 1927 [now section 37(2) of the Land Survey Act, No. 8 of 1997], the cancelled portion of the private township shall cease to exist as a portion of the approved private township and the ownership of all public places within the cancelled portion vested in the local authority or in the Administrator, … as the case may be, shall re-vest in the township owner, and the Registrar of Deeds shall record such re-vesting and shall make the necessary endorsements on the relevant title deeds in accordance with the law relating to the registration of deeds.’

A re-vesting under this section is not absolute. Section 38(5) of the Ordinance provides :

‘Notwithstanding anything contained in sub-sections 2 and 3, if any private township referred to therein is situate within a local authority area, nothing contained in those sub-sections shall apply nor shall the public places in such private township be closed until the provisions of section 211(2)(a) to (g) of the Local Authorities Ordinance, 1974 … have been complied with mutatis mutandis and the closing of such public places has been approved by the Administrator in accordance with those provisions …’

[24] Against the aforesaid legislative backdrop I now consider each of the applications. In the exception application under Case No. 785/03 the Defendant raised an exception to each of the claims in the Particulars of claim on the grounds that the Particulars of Claims are :

(a) ‘Bad in law’; and

(b) ‘Fails to disclose a cause of action for the relief claimed’.

As already set out in the historical survey, the exception must be viewed in the context of the excipient as successor-in-law and having assumed all liabilities of its predecessor.

[25] In its Particulars of Claim, Hough contends that he is the township owner of the private township in La Lucia Extension No. 2 and 6. As such, he contends that he enjoys certain reversionary rights in the land set aside for use as public places within those private townships. He claims damages in the sum of R8.2 million together with interest thereon from the Defendant for failure to take steps to ensure that certain properties reverted to him as owner after they ceased to be used for their originally specified purpose. As is evident from the Particulars of Claim, he has enumerated four specific claims. Each claim relates to property which was set aside for use as a public place when the private townships were established in terms of the Ordinance.

[26] Hough contends that since each of the public places is no longer being used for the purpose for which it was intended it consequently ought to have been closed in terms of section 212 of the Natal Ordinance. His further contention is that if such public places were closed as contemplated by the Natal Ordinance then this would amount to a ‘partial cancellation of the general plan’ of the Private Township which would in turn revest him as township owner, with the further consequence that he would become owner of the properties.

[27] The first question which arises for consideration is whether there is an obligation on the Municipality to close public places. As is evident from the survey of the applicable legislation, the legal framework emerges in Chapter 3 of the Ordinance which deals with the establishment of Private Townships. It provides the procedure for those who wish to establish a private township to apply to the Administrator (now the Premier of KwaZulu-Natal). In terms of section 16(1) of the Ordinance, in granting approval for the establishment of a private township, the Administrator provides conditions for the establishment of the private township. I do not propose setting out the conditions which were imposed in respect of these two townships since they are recorded as Annexures ‘A’ and ‘B’ to Hough’s Particulars of Claim.

[28] As is further evident from section 25 of the Ordinance the ownership of public places vests either in an existing local authority or in the Administrator in trust for any future local authority. Accordingly, where a public place is vested in a local authority, whether an existing one in terms of section 25 or after the constitution of the local authority in terms of section 25(3) the vesting is absolute. It is not conditional nor is it a vesting subject to a trust.

[29] The definition of a public place has already been considered. The powers of the local authority with regard to the public places are also dealt with in the Natal Ordinance. Section 208 of that Ordinance provides that ‘the ownership, the management and control of all public places … and public places within the borough and the land comprising such streets and places shall vest in the council which may assign names to such streets and places.’ Section 209 of the Natal Ordinance provides various powers to a local authority in regard to public places. These powers are to be exercised for the public benefit and may not be exercised in such a manner as to authorize the deprivation or substantial deprivation of the public of the enjoyment of its right in or to any public street or public place.

[30] However, the Natal Ordinance recognizes that public places may be put to other uses. Section 212 of the Natal Ordinance provides for the permanent closing of a public place and incorporates section 211 dealing with public streets. This follows upon an application to the Administrator. Upon the closing of such public place :

‘(i) if such ownership vested in the council by deed of title prior to such closing, continue so to vest in the council, and

(ii) if such ownership did not so vest in the council prior to such closing, vest in the person who is the registered owner of such land unless the Administrator, on application by the council not later than three months after such closing otherwise directs, and upon such closing such land shall be free of further use as a [street].’

[31] Accordingly, reversion to the township owner is never automatic. What is further amply evident from the aforegoing, is that the designation of land as a public place when a township is developed does not mean that such status is immutable. As is evident from section 26(4)ter of the Ordinance, the designation of land within the private township as a public place has the effect that the land in question vests in the local authority. The local authority incurs no obligation in relation to that land and may secure that it is transferred into its name. Thereafter, if the local authority is of the view that it is expedient to permanently close the public place, it may do so by following the procedure set out in section 211 read with section 212 of the Natal Ordinance. Even if this is done, there is no automatic right of reversion to the original owner. Accordingly, Hough’s first contention namely that the local authority was obliged to close these public places is bad in law.

[32] His further contention is that the closing of a public place results in the partial cancellation of the General Plan of the Township. I accordingly consider this aspect. As is evident from section 21 of the Town Planning Ordinance, an applicant for the approval of a private township is required to lodge a General Plan of the township with the Surveyor-General and have the plan approved by the Surveyor-General. Where a public place has been closed, the General Plan of the Township falls to be amended in terms of section 37(2) of the Land Survey Act No. 8 of 1997. The general plan is not cancelled either wholly or in part in that situation. A general plan cannot be cancelled in respect of land that has been developed and transferred. See Schapenrome Investments (EDMS) BPK en Andere v Sandtonse Stadsraad en ‘n Ander 1994(2) SA 34 (AD) at 40B-G. See also section 212(2) read with section 211(2)(1) of the Natal Ordinance which specifically requires an amendment.

[33] Hough’s general complaint is that if these public places were permanently closed, ownership therein would revert to him as township owner by virtue of the provisions of section 38(3) of the Ordinance. As has already been pointed out the closure of a public place does not in law result in the cancellation of the general plan. Therefore, in my view, section 38(3) is inapplicable. Hough has overlooked the provisions of section 38(5) of the Ordinance which provides that notwithstanding the provisions of section 38(2) and (3) thereof, the closure of public places within a local authority area must be governed by the provisions of section 211 of the Natal Ordinance. The provisions of section 211(2)(h) incorporated for public places through section 212(1) provides for the vesting of closed public places in the local authority if such ownership vested in that local authority by deed of title prior to such closing or in the person who is the registered owner of land, unless the Administrator otherwise directed after such closing.

[34] Claim No. 2 as set out in the Particulars of Claim which recognizes that Lot 736 vested in the Ethekwini Municipality by Deed of Title and claim no. 2 which recognizes that Lot 666 vested in the Municipality by Deed of Title and claim no. 4 four dealing with Lot 1242 which recognizes that such public places vested in the Administator by Deed of Title are immune from any of the Plaintiff’s claims. Even on closing of the public places they would remain vested in the Municipality.

[35] I now consider the refrain which permeates Hough’s claims that the public places are held in trust. In my view, this submission also has no foundation in the law. It was formerly the case under section 50(bis)(i) of the Private Township and Town Planning Ordinance No. 10 of 1934 that public places :

‘Shall be held in trust for the purpose or purposes which it was intended to serve.’

[36] However, that was repealed by the Ordinance. Hough perhaps is misled by the position which may be extant in other provinces but it is clear that in KwaZulu-Natal there is no such constraint or limitation on the local authorities ownership of public places and public streets.

[37] Hough’s further and final complaint relates to claims 2, 3 and 4. He contends that these properties were unlawfully transferred by title deed to the Defendant. He does not, however, set out the basis for the alleged illegality save on the basis of the alleged ‘trust’ which, as I have already pointed out, is misconceived.

[38] Section 208 of the Natal Ordinance provides that the ownership, management and control of public streets and public places vests in local authorities. Section 212(1) read with section 211(2)(h) of the Natal Ordinance contemplates that public places may be transferred to local authorities by ‘Deed of Title’. Although a local authorities’ powers in respect of public places in section 209 of the Natal Ordinance prevents ‘the deprivation or substantial deprivation of the public of the enjoyment of its right in or to any public street or public place’, the provisions of that section nowhere prevent the transfer of public places by Deeds of Transfer into the name of the local authority. Section 26(ter) of the Ordinance contemplates that the local authority has the power to alienate the land given to it for public purposes as contemplated by section 233 of the Natal Ordinance. It is thus clear that the municipality’s ownership of the public places is one of complete ownership and which further means that the township owner loses its dominium over the land completely. See Parow Municipality v Joyce and McGregor (Pty) Ltd 1974(1) SA 161 (C) at 166H.

[39] In my view, the Particulars of Claim fail to disclose a cause of action for the relief claimed. The exception must therefore be upheld and the Particulars of Claim be struck out. I shall deal further with the same in the order herein below.

[40] The next application brought by Hough is the application under Case No. 848/03. Here he claimed that as a township owner he has certain rights in the lots in La Lucia which were set aside for ‘public purposes’ when the private township and its extension were established by La Lucia Property Investments Limited. Hough claims that these lots were given to the municipality ‘in trust’ and that such ownership was not true ownership. Accordingly, he contends that transfers by title deed of certain lots in La Lucia were unlawful and seeks an order setting these aside. The claims are made in respect of Lots 724, 733, 800 and 801.

[41] In addition, Hough seeks an order directing the Municipality to take steps to permanently close certain lots in La Lucia ostensibly because the Ethekwini Municipality’s predecessors had resolved to do so. His argument is that if such lots are permanently closed then they will vest in him pursuant to section 33 of the Ordinance because such closure would constitute a partial cancellation of the township plan.

[42] Hough’s claims are dependent on the following legal contentions :

(a) There is an obligation on the Local Authority to close public places if it resolves to do so even if it subsequently rescinds that resolution as happened in this case;

(b) There is an obligation on the Local Authority to close public places if they cease to be used for the purpose for which they were originally designated;

(c) If a public place is closed which results in partial cancellation of the General Plan of the Township, that entitles the township owner to invoke section 38(3) of the Ordinance to recover the land;

(d) Public places are held in trust by the Local Authority and this restricts the Local Authority in dealing with these properties and confers rights on the township owner;

(e) On the basis of such trust he contends transfer of certain properties to the respondent’s predecessors were unlawful.

I have already adverted to Hough’s legal contentions apropos (d) and (e) and I do not propose to repeat the same.

[43] The immediate question which arises is whether there is an obligation on the Municipality to close public places. Hough’s contention is that because the claimed pieces of land are not being used for the originally stated purpose, something which is strenuously disputed by the Municipality, there is an obligation to close them. As I have adverted to earlier, the relevant legal framework emerges from Chapter 3 of the Town Planning Ordinance which deals with the establishment of private townships. As I have already stated where a public place vests in a local authority whether an existing one in terms of section 25(1) or after the constitution of a local authority in terms of section 25(3) that vesting is absolute. It is not conditional nor is such vesting subject to a trust.

[44] I have already considered the meaning of a public place and the provisions of section 208 and 209 of the Natal Ordinance. The Natal Ordinance recognizes that public places may be put to other uses. As I have said earlier, section 212 of the Natal Ordinance provides for the permanent closing of the public place and incorporates section 211 dealing with public streets. As was apparent from a discussion of those provisions, reversion to the township owner is never automatic. If the local authority is of the view that it is expedient to permanently close a public place, it may do so by following the procedure set out in section 211 read with section 212 of the Natal Ordinance. These sections do not confer upon the township owner a right to demand that public places be closed.

[45] Hough’s first contention namely, that local authorities are obliged to close these public places because of a change of use, even assuming that there has been one, is in my view, bad in law and this is fatal to his claims in prayers 3, 4 and 5. His other ground for advancing this contention is a resolution by the old borough of Umhlanga. This resolution was rescinded on the 30 August 1976 and accordingly that resolution provides no foundation for the relief sought. Nor is there any merit in his argument that in closing a public place will result in the partial cancellation of the General Plan of Township. As is evident from what I have said above, a General Plan cannot be cancelled in respect of land that has been developed and transferred. Section 38 of the Town Planning Ordinance which deals with the cancellation or amendment of the General Plan does not in law result in the cancellation of the General Plan. The Plaintiff’s contention that some of the properties were unlawfully transferred by title deed to the Ethekwini Municipality is not elaborated upon save on the basis of an alleged trust which, as I have already indicated, is misconceived.

[46] I do not propose going through the various affidavits in this application since a study of these will reveal that there is no cogent evidence that the public places between the various lots have been physically closed. Where there has been a closure it is not established that the Ethekwini Municipality or its predecessor consented to such closure or, in the absence of any evidence that public places were closed in accordance with the Natal Ordinance, the Municipality’s version that the land continues to be held for public purposes must be accepted on the papers. Unilateral action by some property owners in closing, alternatively, fencing parts of any lot does not mean that the Ethekwini Municipality has sanctioned this conduct and it must therefore be concluded that such closure by lot owners is unilateral and unlawful.

[47] Finally, it is necessary for me to consider the tardiness of Hough in bringing this application since the various extensions to La Lucia were established in 1964 and 1971. Hough has provided no explanation for the delay in instituting his investigations and in bringing these proceedings. It is reasonable to infer that the lengthy delays in launching these proceedings is only explicable on the basis that the company and its predecessors never had any objection to the use of the relevant properties.

[48] Hough can derive no better right than those which his predecessors had. Although I make no positive finding on this aspect, it is reasonable to infer that Hough’s predecessors acquiesced in the usage to which the various lots have been put to by the Municipality. In any event, any rights which may have accrued to the Applicant’s predecessor, The Natal Estates Limited or the company in its own right have long since prescribed and cease to be enforceable in terms of the provisions of section 10 read with section 11(d) of the Prescription Act No. 68 of 1969. Additionally, though if the ‘rights’ claimed by Hough are viewed as being of the nature of a servitude and such rights would have been extinguished by acquisitive prescription in terms of section 7(1) of the Prescription Act. In my view, this application therefore must also be dismissed.

[49] I now turn to consider the application under Case No. 1175/03. In this matter, Hough seeks an order directing transfer of Lots 754 and 802 from the Ethekwini Municipality to him. These lots were put aside for Local Authority purposes when the private township of La Lucia Extension No. 2 was established. They were transferred to the Ethekwini Municipality’s predecessor in law, the La Lucia Health Committee in 1964 by the Natal Estates Limited prior to the company acquiring any interest in the township or even being in existence. It is Hough’s contention that he, as township owner, is entitled to have the lots transferred to him because they are no longer being used for the purposes for which they were set aside when La Lucia was established. In amplification, he claims that such Lots were transferred to the Municipality ‘in trust’ and such transfer did not constitute ‘ownership in the true sense of the word’.

[50] It is further Hough’s contention that these lots were transferred to the Municipality’s predecessor in title by way of a donation subject to a modus. Hough argues that the Municipality has breached the modus because it is using the lots for public purposes and not for Local Authority purposes.

[51] What is clear from the affidavits filed in the matter is that the transfer of the lots in question did not occur pursuant to any donation from Hough or his predecessor. It occurred ex lege pursuant to the provisions of section 26(1) of the Ordinance. The Natal Estates Limited applied for permission to establish the private township of La Lucia. It was done in compliance with the conditions upon which the Natal Estates Limited was granted the application prior to Hough or the company acquiring any interest in the township. The transfer occurred in accordance with the legislative framework for the establishment of a private township in that the lots were transferred by the Natal Estates Limited to the Ethekwini Municipality’s predecessor in law, the La Lucia Health Committee, consequent upon the provisions of section 26(1) of the Ordinance. The transfer of these lots vested in the Respondent full dominium. As is evident from the title deeds passing transfer of the lots to the Municipality (see Answering Affidavit – Wilms – Annexure A) the Natal Estates Limited fulfilled its statutory obligation to pass transfer to the Ethekwini Municipality’s predecessors in law. Transfer occurred on the 17 November 1964 and it was recorded that the Company’s predecessor renounced all rights to the lots: ‘Renouncing all the rights and titles which the said Natal Estates Limited heretofore had to the premises, did in consequence also acknowledge it to be entirely disposed of, and disentitled to the same …’ (Emphasis added). Natal Estates Limited did not reserve any residual rights in respect of these lots and the transfer of the lots vested in the Municipality and the successors of the Municipality complete dominium.

[52] Further, it is undisputed on the papers that Hough’s predecessors only acquired the property known as La Lucia (Extension No. 2) in 1968. It would, thus, not have acquired any rights to the lots given as they had been transferred to the La Lucia Health Committee approximately four years earlier. It is apparent from the aforegoing that the transfer was compulsory in terms of the Ordinance read with the conditions of establishment and was not pursuant to a donation.

[53] I propose, in passing, to advert to the factual position of the lots in question. As is evident from the Answering Affidavit of Lekha Allopi, Lot 754 remains in use as a public open space and Lot 802 is used to park vehicles at a picnic spot used by members of the public and as an access spot to the beach. In my view, such use is consistent with the uses to which the Municipality may lawfully put them.

[54] Section 16(1)(f) of the Town Planning Ordinance empowers the Administrator to draft conditions reserving lots in a private township for local authority purposes including a wide range of uses ‘or the use and benefit or in the general interests of the public …’. Accordingly, ‘local authority’ usage overlaps with the public places usage to which the lots are currently put. In any event, section 26(4)(ter) of the Ordinance provides that the local authority is entitled to use land transferred to it for local authority purposes or for any other purpose where it is not required for the public purpose it was intended to serve.

[55] Therefore, Hough’s claims that the lots are being used for purposes other than those for which they were set aside and transferred, has no merit. What I have said earlier apropos prescription applies with equal force to this application. In my view, this application therefore also falls to be dismissed.

[56] I now turn to the final application in which the Ethekwini Municipality is the Applicant. In this application, the Ethekwini Municipality, applied as a matter of urgency on the 23 November 2004, for an interdict against Hough. The relief granted has been set out in the introduction to my Judgment. The Second Respondent in the matter, the MEC for Traditional and Local Government Affairs, has indicated its intention to abide by the decision of the Court. The fate of this application is closely tied in with the fate of the three applications already considered.

[57] In any event, it is common cause on the papers that the ownership and management control of the property sought to be closed by Hough vests in the Ethekwini Municipality by virtue of section 208 of the Natal Ordinance and sections 25 and 26 of the Town Planning Ordinance. Hough applied to the Second Respondent in terms of section 38(5) of the Town Planning Ordinance to permanently close those properties without invoking the processes in sections 211 and 212 of the Natal Ordinance. The Second Respondent declined to exercise his powers in terms of section 38(5) of the Town Planning Ordinance and directed that the provisions of section 211 of the Natal Ordinance had to be invoked.

[58] The company then made application to the Municipality to invoke the closure provisions of section 211 of the Natal Ordinance and it thereafter placed a notice in the newspaper and gave notice to the members of the public that it intended permanently closing the public places and roads in terms of section 211 of the Natal Ordinance by order of the Second Respondent. It is common cause that no such order issued from the Second Respondent. The company’s contention that the Applicant consented to these closures in terms of the Natal Ordinance is not borne out by the affidavits. What the company did was to wrongly interpret a record made by the staff of the Municipality that they had no objection to the company applying to the Second Respondent in terms of section 38(1) of the Town Planning Ordinance to mean that the Municipality had consented. Such inference is not only untenable but unwarranted since the employees of the Municipality could not and did not have powers to consent.

[59] Sections 211 and 212 of the Natal Ordinance are unequivocally clear and vest power in the Municipality to effect permanent closure of public streets and public places. What the company attempted to do was to unilaterally usurp these statutory powers and in doing so it clearly acted unlawfully. The aim of Hough is very clear as is evident from his Answering Affidavit that he intends developing a substantial residential development and thereby depriving the public of the use of these properties which properties, as the Founding Affidavit shows, is presently being used for public purposes. In my view, the interdict has to be made final.

[60] I accordingly make the following orders :

CASE NO. 785/03 :

1.1 The particulars of claim fail to disclose a cause of action for the relief claimed and accordingly the exceptions are upheld and the particulars of claim are struck out.

1.2 The Plaintiff, Hendrik Petrus Hough and La Lucia Property Investments Limited, are to pay the costs of the application, jointly and severally, the one paying the other to be absolved, such costs to include those costs consequent upon the employment of two counsel.

CASE NO. 848/03 :

The application is dismissed with costs, such costs to be paid jointly and severally between Hendrik Petrus Hough and La Lucia Investments Limited and to include those consequent upon the employment of two counsel.

CASE NO. 1175/03 :

CASE NO. 9433/04 :

1. It is hereby declared that Hendrik Petrus Hough’s purported closure, by public notice to take effect on 22 November 2004, in terms of the Local Authorities (Natal) Ordinance, No. 25 of 1974, of the following properties :

(d) public places Lots 1046, 1047 and 1048 in Private Township La Lucia (Extension No. 2);

2. Hendrik Petrus Hough and La Lucia Investments Limited are ordered to pay the costs of the application, such costs are to be paid jointly and severally and are to include those consequent upon the employment of two counsel.

____________________

C.N. PATEL

Judge of the High Court

Natal Provincial Division

Date of hearing : 20 June 2005

Date of Judgment : 7 June 2006

Counsel for

Plaintiff/Applicant : Mr. H.P. Hough (In Person)

Defendant/Respondent : Mr. M.J.D. Wallis S.C., with him,

Ms. A.A. Gabriel

Instructed by :

DE VILLIERS, EVANS & PETIT

41 Acutt Street

DURBAN

(R. Evans/DJ/E176-133-04)