WF Osner Investments (Pty) Ltd v Buffalo City Metropolitan Municipality (ECJ 2004/018) [2004] ZAECHC 2 (16 February 2004)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ NO : 018/2004

PARTIES: WF Osner Investments (Pty) Ltd Applicant

and

Buffalo City Metropolitan Municipality Respondent

REFERENCE NUMBERS -

Registrar: 1248/2002

DATE HEARD: 27 November 2003

DATE DELIVERED: 16 February 2004

JUDGE(S): Erasmus

J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Plaintiff(s)/Applicant(s)/Appellant(s): B Pretorius for the Accused/Defendant(s)/Respondent(s): JT Whitehead SC & SH Cole

Instructing attorneys:

Plaintiff(s)/Applicant(s)/Appellant(s): Netteltons

Defendant(s)/Respondent(s): Neville Borman & Botha

CASE INFORMATION -

Nature of proceedings : Application

Topic: Servitude

Keywords: Property – Servitude in favour of municipality to

convey electrical transmission – not expropriation in terms of Expropriation Act 63 of 1975.

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case no: 1248/2002

In the matter between:

W.F. OSNER INVESTMENTS (PTY) LTD

(formerly GATELY TOWNSHIP PROPERTIES (PTY) LTD) Applicant

BUFFALO CITY METROPOLITAN MUNICIPALITY Respondent

JUDGMENT

ERASMUS J:

INTRODUCTION

[1] The applicant is the owner of certain immovable property (‘the property’) situate within the municipal area under the control of the respondent. In the period relevant to this application, local government was transformed which entailed changes in structure and name. This does not however affect this application so that I can where convenient refer to respondent and its predecessors collectively as ‘the municipality’.

[2] At some time, apparently during the year 2000, the municipality erected electrical cables and related structures on an area 30 m wide over the property. The application before court is for an order–

declaring that the respondent has unlawfully trespassed upon the property;

ordering respondent to remove all the electrical cables and constructions;

interdicting respondent from further trespassing upon the property and/or transgressing its rights and/or erecting any electrical cables or constructions or other services unlawfully upon or across the property.

There is an alternative prayer (which is not here relevant), and a prayer for costs.

THE ISSUES

[3] The electrical construction clearly interferes substantially with applicant’s use and enjoyment of its property, and is therefore prima facie unlawful. In order to escape the relief sought by applicant, the respondent bears the onus of proof to justify that interference (MABASO v FELIX 1981(3) SA 865 (A) 871F-874G).

[4] Respondent relies on a servitude registered over the property in favour of the municipality on 25 October 1970. The relevant portion thereof provides: ‘The owner of this portion shall without compensation be obliged to allow electricity cables and/or wires … to be conveyed across this portion if deemed necessary by the Local Authority and in such manner and position as may from time to time be reasonably required. This shall include the right of access to the portion at any reasonable time for the purpose of constructing, altering, removing or inspecting any works connected with the above.’ The applicant does not dispute the validity of the servitude, but would avoid its effects on three grounds – as I understand its case on the papers. Applicant’s counsel raise a fourth ground. I deal with these seriatim.

(a) The later servitude

[5] On 7 April 1987 a further servitude was registered against the property by the municipality for the purpose of conveying thereon an electrical transmission line. Applicant’s submits that because this servitude was over a specified area and for compensation, it is ‘abundantly clear ’ that ‘it was necessary’ for the respondent to register a specific servitudes against the title of the property and to pay compensation to the applicant in respect of the electrical constructions and cables which are the subject of the application.

[6] Applicant’s contention is a non sequitur. The second servitude did not affect or redefine or expunge the earlier servitude. It is therefore irrelevant to the determination of the rights that the municipality acquired and hold under that servitude.

(b) Negotiations for a further servitude

[7] On 30 November 1999 the applicant received a telefax communication from consulting engineers acting for the municipality. Therein it was intimated that the municipality wished to register a new servitude over the property for the construction of overhead line conductors; market related compensation would be paid. In reply, applicant claimed compensation in the amount of R1 184 740.00. The municipality replied that the claim for compensation was not legitimate and indicated that it would be relying on the original servitude for the construction works.

[8] Applicant contends that it submitted to the erection of the electrical construction and cables on the basis of the letter received from the consulting engineers, and that but for that correspondence it would have taken ‘proper and appropriate legal steps’.

[9] I cannot see, nor has it been explained to me, how these aborted negotiations constitute a cause of action for the relief sought by the applicant. The municipality in effecting the construction exercised its existing rights under the original servitude and did not require applicant’s consent to do so. Respondent furthermore does not have to pay compensation to applicant for exercising those rights.

(c) The nature and position of the construction on applicant’s property

[10] Applicant further contends that the original servitude does not permit the respondent to erect electrical cables ‘in a willy nilly manner and criss-cross the applicant’s property as the respondent sees fit’ without registering servitudes in a proper manner.

[11] Applicant does not state in what way the municipality acted unreasonably or arbitrarily. Applicant furnishes no particulars as to how if at all the municipality exceeded the ambit of the servitude or transgressed the terms thereof; or acted otherwise than civiliter modo. The fact that the earlier servitude is not specific as to where on the property the cables would be conveyed, does not render it unenforceable and does not require a further servitude to make it enforceable in a particular manner.

(d) Expropriation

[12] In their argument, applicant’s counsel take a completely differently tack to those followed by applicant in the founding affidavit. They contend that the electrical constructions amount to a de facto expropriation of applicant’s property which is unlawful in that the municipality did not comply with the provisions of the Expropriation Act 63 of 1975. They place reliance on the dictum in SANDTON COUNCIL vs ERF 89 SANDOWN EXTENTION 2 (PTY) LTD 1988(3) SA 122 (AD) 129 E-I. They submit that it is ‘abundantly clear’ that since that Act came into operation any expropriation of rights can only be lawfully done in compliance with that statute. For good measure they refer to s 25 of the Constitution of the Republic of South Africa Act 108 of 1996 which enshrines property rights.

[13] The law of property is concerned not so much with things but with rights in or to things. It follows that expropriation is not a physical act but a legal devise whereby a person is deprived of his or her private rights in or to land or property. In the present context, this presupposes the existence of rights in the property held by the applicant capable of expropriation by the municipality at the relevant time. The applicant had no such rights in relation to the constructions of which it complains. The servitude registered against the property on 25 October 1970 (para [4]) diminished its rights of ownership in that property pro tanto the extent and ambit of the encumbrance. The municipality in conveying cables across the property in accordance with the terms of the praedial servitude did not thereby deprive the applicant of any rights which it had at that time. For the municipality to have tone through the nonsensical motion of expropriating rights which it already held would have been a legal nullity.

[14] Counsel’s submissions are based on the startling proposition that the Expropriation Act nullifies all servitudes registered over land in favour of local authorities. I am unpersuaded that the contention is well-founded. It finds no support in the decided case mentioned by counsel (para [12]).

ORDER

[14] In the result, the application is dismissed with costs, which shall include the costs occasioned by the employment of two counsel.

A.R. ERASMUS

JUDGE OF THE HIGH COURT