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IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)     REPORTABLE:  Yes

(2)     OF INTEREST TO OTHER JUDGES: No/Yes

(3)     REVISED.

24/11/2021

                                                                                                                   CASE NO: A175/2020

 

 

 

 

RAND WATER                                                                                                  APPELLANT

and

ROSSYLN HUB DEVELOPMENT COMPANY                        

(PTY) LTD                                                                                                         1^ST RESPONDENT

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time of hand-down is deemed to be 24 November 2021.

JUDGMENT

N V KHUMALO J (MATTHYS AND MAHLANGU AJ concurring)

Introduction

 [1]      This is an appeal against an order and the whole judgment that was delivered by Raulinga J on 31 January 2020 and 7 May 2020 respectively, in an application by Rossyln Hub, (“the Respondent”) for a Mandamus, directing the Surveyor General to grant their Application for withdrawal of Rand Water’s approved but not yet registered servitude over the Respondent’s property.

[2]       Rand Water seeks the rescission of the Judgement in toto, to be substituted with an order for dismissal of the Respondent’s Application with costs, that include the costs of two Counsel. 

[3]       The court a quo upheld the contention raised by the Respondent for a mandamus. The Appeal is with its leave.

[4]       The question raised by the Appeal is whether or not the court a quo had rightly issued a mandamus for the exercise of a statutory power. (Was the court a quo correct, in ordering the Surveyor General to withdraw Rand Water’s approved SG Diagram of an intended servitude solely on the request of Rosslyn Hub, the registered landowner without hearing or notice to Rand Water as the intended beneficiary?). Secondary thereto is a question whether the statutory duty imposed on the Surveyor General to withdraw an approved diagram at the request of the registered land owner is a decision or an administrative action as defined respectively, in s 1 and 3 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA’).

The parties

[5]       In the court a quo, the Respondent, Rosslyn Hub, a Development Company, was the Applicant, the Appellant, Rand Water, was the 2^nd Respondent and the Surveyor General, the 1^st Respondent. The Surveyor General is not participating in this Appeal and hereinafter would be referred to as the ‘SG’.

Factual background

[6]       The Respondent is the owner of a property known as portion 1 of the farm Klipfontein, 268 registration Division JR, Gauteng (“the property”). Rand Water as an organ of state established in terms of the Water Services Act of 108 of 1997 to perform as its primary activity a public function, inter alia, water supply services, during or around 1971, constructed an underground bulk water pipeline through the remaining Extent of portion 1 of the farm Klipfontein (“Portion 1”). During 1996 Rand Water constructed another underground bulk water pipeline, through portion 1, adjacent to the 1971 pipeline with both pipelines taking up an area along the North South leg of no more than 9 metre in width and along the East West of not more than 3 meter in width.    

 [7]      On or about 6 October 1998, the Surveyor General (SG) approved a servitude diagram SG 10602/1998 for Rand Water. On the diagram, provision is made for the North South leg thereof to have a width of some 25 meters over a distance of more than 1 kilometre for the East West leg to have a width of some 10 metre over a distance of approximately half a kilometre.    

[8]       According to the Respondent, as it is common cause, this servitude was prepared at the instructions of Rand Water which apparently thereafter, endeavoured between the period 1999 and 2003, to negotiate with the then owners of portion 1, with the view of protecting the existing underground pipeline, but no agreement of servitude was ever concluded or entered into. As a result, by 20 June 2003 the 1998 servitude diagram was not registered. More specifically, no such servitude was registered before the said date on the basis of that diagram, against the title deeds of portion 1. On or about June 2003 the Respondent who were still trading under the name Cedar Trading became the registered owners.

 

[9]       The 1998 servitude diagram remain an approved diagram as contemplated in Regulation 23 (2A) of the Regulations which to date is not yet registered in the Deeds Office as per s 102 (1) against Portion 1 of the Farm, a fact that is also common cause between the parties.   

 

[10]     A dispute ensued between Rand Water and the Respondent concerning the legality of the two underground pipelines that were constructed without a registered servitude through Portion 1, which ended up in the Supreme Court of Appeal which held that the two underground pipelines were constructed lawfully in terms of s 24 (j) of the repealed Rand Water Board Statutes of (Private) Act 17 of 1950 (‘RWBS Act’).

 

[11]     Section 24 (j) of the repealed RWBS previously empowered Rand Water with the so –called pipe laying power for which no compensation was payable whilst its then s 24 (h) made provision for an expropriation power to be exercised against compensation. Since the advent of the new Constitutional dispensation and with the enactment of the Water Services Act 108 of 1997 (which came into operation on 19 December 1997 and practically repealed all of the relevant provisions of the RWBS, hereinafter referred to as “the WSA” or “the Act”), Rand Water no longer has such a pipe laying power and must now for that purpose, expropriate a servitude in terms of s 81 of the WSA (which is now the empowering legislation for Rand Water).

 

[12]     Respondent alleges to have been held at ransom, in that, on the strength of the SCA judgment pertaining only to the existing underground pipelines, Rand Water claims a disputed entitlement to the servitude over a much larger area than the reasonable area actually taken up by those two existing underground pipeline. The Respondent accepts that those two pipelines have been lawfully constructed and that by virtue of the statutory protection afforded in that regard, the existing underground pipelines cannot be interfered with in any manner regardless of the fact that no formal servitude is registered against the Title Deeds of Portion 1.

 

[13]     It alleges that the problem is that Rand Water is not only concerned with the statutory protection of the existing underground pipelines but is claiming a much wider and larger area for its future expansion plans and in so doing (despite its constitutional obligations as an organ of state) is attempting to circumvent s 25 of the Constitution read with s 81 of the WSA.                       

 

[14]     SFP Town Planning on behalf of the Respondent and in the furtherance of the intended development applied to the Economic Development and Spartial Planning Division (EDSPD) for the approval of the General Plan of the Township of Rosslyn Ext 54 consisting of three erven numbered: 3285, 3286 and 3287 situated on Portion 1.

 

[15]     The Respondent alleges that their attorney VDT wrote a letter to the EDSPD Division of the City of Tshwane providing the City with a copy of the Conveyancer Certificate and also explained to the City that the water pipeline depicted on the SG Diagram No:  10602/1998 is not protected by a servitude and the pipeline is only protected in terms of WSA. The obligation is therefore on Rand Water to negotiate the registration of such a larger and wider servitude with the Respondent and to pay to the Respondent a reasonable compensation for the right so acquired.

 

[16]     The City of Tshwane replied to the letter with its view point that,” in the light thereof that you are in possession of a diagram as approved by the SG indicating a servitude in favour of Rand Water Board, that the department records this as confirmation of the existence of a servitude.  The letter however confirmed Respondent’s stance that no such servitude was ever registered which is evident from the Conveyancer’s Certificate, although the underground pipes are protected in terms of s 23 of the WSA.        

 

[17]     Rand Water is said to have conceded in a letter to FSP Planning in February 2019 that SG Diagram No; 10602/1998 merely depicts proposed 25 m wide and 10 m wide servitude and thus that no servitude was yet registered in favour of Rand Water against the Respondent’s immovable property.

 

[18]     The Respondent’s attorney again sent the Conveyancer certificate, bringing to the attention of Rand Water that although a servitude diagram has been approved at the SG’s Office over the property of the Respondent, the said servitude diagram was never formally registered against the title deed of the relevant property and as such apart from the servitude mentioned at paragraph 1 of the Conveyancer’s Certificate, no further servitudes have been registered in favour of Rand Water Board over the said portion.

 

[19]     As a result, the water pipeline of Rand Water Board is not protected by a servitude and the pipeline only protected in terms of the WSA. As a result, Rand Water Board is not entitled to have any servitude registered in respect of those underground pipelines and if Rand Water wants a servitude same should be expropriated for purposes of which the Respondent would be free to negotiate compensation afresh. The actual and reasonable area taken up by the existing two underground pipelines is indeed protected in terms of the WSA and that protection may well have to be endorsed against the title deed of Portion 1 but no servitudinal rights of any kind in respect of a larger or wider area than such actually taken up area have been already appropriated by or already vest in Rand Water.

 

[20]     The Respondent offered, as a measure of protecting the rights of Rand Water Board as envisaged in terms of the WSA, to have a non- building servitude 3m wide on the one underground pipeline and 9m wide on the other underground pipeline and for the total lengths of the pipeline registered, in favour of the Rosslyn Hub Home Owners Association which servitude will ensure that no accidental construction may prevent access to, and encroach upon or damage the underground pipelines in the future. 

                                               

[21]     The Attorneys for Rand Water then largely agreed with the opinion sought from Adv Oosthuizen SC, the Respondent’s Counsel, on the implication of the SCA Judgment on the status of Rand Water’s pipe laying powers but in their view Rand Water’s rights in terms of s 32 of the Deeds Registry Act 47 of 1937 (“the Deeds Act”) and particularly Rand Water’s right to register a servitude over portion 1, which has become vested by statute was allegedly not addressed in that opinion.     

 

[22]     Rand Water Attorneys were also of the opinion that Rand Water has acquired a statutory servitude over Portion 1, the exact area of which it is set out in the Surveyor General Diagram No; SG10602/1998 and they advised Rand Water of its right to register such vested servitude against the title deeds of Portion 1 for the purposes of which the Respondent’s original Title Deed T72316/2003 was required, failing which Rand Water could then provide an Affidavit to the Deeds Office Pretoria that the original title deed cannot be obtained.

 

[23]     Rand Water has registered servitudes in respect of the same two existing underground pipelines on the adjacent property where those pipelines were also installed under the repealed s 24 J of the Rand Water Statutes Private Act after a separate and additional servitude was acquired by agreement. It was at no stage the case of Rand Water in court, that the two existing underground pipelines through portion 1 already entitled it to the registration of a servitude. 

 

[24]     The Respondent argues that although the practical effect of the SCA Judgment is that the underground pipelines must for all purposes be regarded as being lawfully installed, present in or under Portion 1, that judgement does not have the effect that Rand Water now has any kind of servitude or an entitlement to have the servitude registered against the title deed of the Respondent’s immovable property.

 

[25]      The Respondent further contended in the letter that Rand Water does not enjoy a servitude vested by statute thus rendering s 32 of the Deeds Registry Act inappropriate, and also denied that Rand Water acquired a statutory servitude over Portion 1 or that the area of the said statutory servitude is set out in the Surveyor General Diagram SG 10602/1998 as this diagram has never been registered at the Deeds Office against portion 1, and does not in law confer any right on Rand Water. If Rand Water wishes to procure a servitude, same will have to be expropriated. For that reason, the original Title Deed will not be provided to Rand Water for purposes of Registration as threatened.

 

[26]     Rand Water insisted that its statutory servitude is allegedly in accordance with s 24J of the RWBS as well as the WSA. That being the rights to the existing two underground pipelines which do not take up an area or a width of 25 meters and or a 10 metre. The Respondent persisted that Rand Water is not entitled to have any servitude in respect of those underground pipelines registered without an agreement with the Respondent as the cause thereof and that if Rand Water wanted a servitude either by way of an agreement with the Respondent, Rand Water must expropriate one. The Respondent was, notwithstanding this statement, willing to negotiate a servitude to be registered in favour of Rand Water in lieu of a payment of compensation. Furthermore, a written undertaking was requested from Rand Water that no action with regard to the registration of the intended servitude will be pursued until such time that they have been informed of Rand Water’s instructions (intended action).  

 

[27]     Rand Water’s response was that it is not prepared to agree to the registration of a servitude where compensation is payable and that the Town Planning Procedures are such that the Local Authority will agree that Rand Water services be protected by means of a servitude free from costs and compensation. The response was accompanied by an undertaking that, if Rand Water is to proceed with the registration of a vesting servitude, a copy thereof will be provided to the attorney of record for the Respondent prior to submitting to the Deeds Office Pretoria.

 

[28]     On 30 July 2019 the Respondent was requested to provide authorities that support its view with regard to the Rand Water servitude and the notes from their Engineers on the project regarding technical issues and protecting the pipelines whilst developing and that a meeting will then be convened.    

 

[29]     On 1 October 2019 the Office of the SG wrote a letter to the Respondent’s Land Surveyor informing him that the SG’s interpretation of the SCA Judgment is that the court found Rand Water’s underground pipelines to be lawful and therefore must be tolerated by the property owners and secondary to this that a servitude is not required as proof of this lawful status. The court order not considered to influence cadastral procedures in terms of the Deeds Registry Act, Land Survey Act, and Spatial Planning and Land Use Management Act under which Township establishment and planning by laws were promulgated. Since the diagram, registered or not, must be dealt with when dealing with the parent property, the approval of the General Plan of Rosslyn Extension 54 Township cannot proceed unless the unregistered Servitude Diagram SG 10602/1998 is dealt with in any one of two ways –

           

            [29.1]   The diagram must be registered by Notarial agreement in favour of Rand Water on or before the registration of the Township after amending the conditions of establishment to include the existing conditions. This conditions must also be carried forward to the general plan to affect the respective erven or alternatively the unregistered servitude diagram must be withdrawn.

 

            [29.2]   Consent by the intended beneficiary for withdrawal will be required in terms of Reg 23 (2A) of the Land Survey Act (LSA). New Servitudes of sufficient width will need to be registered over the erven to protect the existing underground- pipes.

 

[30]     Respondent disputes that consent is required in respect of Regulation s 23 (2A) and indicated that the problem is precisely that Rand Water is claiming more than a sufficient width in respect of the two existing underground pipelines. Also the said SG Diagram SG 10602/1998 which was approved in 1998 incorrectly indicates the location of a servitude area of 3,2804 hectares over Portion 1 but no such servitude has been formally registered against the title deeds thereof as shown in the conveyancer’s certificate.

 

[31]     No such servitude as depicted on SG 10602/1998 diagram purportedly in favour of Rand Water was ever registered against the Title Deeds of Portion 1. The only registered servitude against Portion 1 (which is a servitude negotiated and agreed upon between the Respondent and Rand Water is a servitude of an anode bed and cable trenches already constructed and which may hereafter be constructed along an additional strip of some 814 square meter in extent as depicted by the figure ABCDa on a servitude diagram SG 3855/2015 for which Rand Water agreed to pay the sum of R814 000.00 in consideration of the rights thereby given.                                                                                                                                                   

[32]     The Respondent indicated to have noted the viewpoint of the SG that documents as received where according to him not sufficient to proceed with the withdrawal of the servitude diagram SG 10602/1998 without advising of any further documents he might require or why he regards the documents that are submitted not sufficient. The Respondent indicated that the approval of the general plan for the Township as applied for is a matter of urgency for the Respondent and that any delays would result in financial losses.

 

[33]     The SG did not agree with the Respondent on the interpretation of Reg 23 (2) and confirmed that according to it to have the SG Diagram 10602/1998 withdrawn, an instruction from the dominant authority (Rand Water) is required. Consent from the owner of the servient tenement is not sufficient and cannot be accepted.

 

[34]     The Respondent states that it again pointed out to the SG that neither the wording of the said regulation contains any reference thereto nor anywhere else in the regulations contains any reference thereto that the consent of the dominant authority in the instance of an unregistered diagram is required. The Potential damages to the Respondent should there be any unnecessary delays with the approval of the general plan was also pointed out.                                                                                

[35]     The Economic Development and Spatial Planning Division of the City of Tshwane on 7 October 2019 provided to the Respondent the amended conditions of establishment in terms of s 98 (6) of the Town Planning and Township Ordinance 15 of 1086 for Rossyln Extension 54. Under the heading Conditions of Title, the City, based on incorrect information, incorrectly recorded that erven 3285, 3286 and 3287 subject to a Rand Water servitude 3.0 m wide along the South boundary which will be registered in favour of Rand Water Board. Rand Water demand is 10m wide servitude along this route.

 

[36]     The Respondent responded to the SG, to place on record the outcome of the meeting held on 11 October 2019 and to confirm that, “Notwithstanding the provisions of the LSA and the regulations as promulgated, it has been the practice at the SG Office to also demand the consent of the intended beneficiary of the servitude if the diagram as registered provides for a servitude to be registered. Notwithstanding that the diagram in itself does not indicate the proposed beneficiary of the servitude.”

 

[37]     The Respondent further alleged that it is common cause between the Respondent and Rand Water that the underground pipeline due to the failure to register the servitude is not protected by a servitude but only protected in terms of the WSA. On that note the SG was requested to address a letter to Rand Water to confirm that a request from the land owner was received for the withdrawal of the subject diagram in terms of the provisions of the regulations as issued in terms of the LSA and confirming that the SG will withdraw the diagram unless it receives their objection to the withdrawal within a time period to be advised in the letter of demand.   

 

[38] The potential damages to the Landowner Respondent as Applicant for township establishment was also once again pointed out as the approval of the Township with the local authority was now delayed until such time as the general plan has been approved. Should Rand Water object to the withdrawal of the diagram, the Respondent was to have no option than to approach the Supreme Court of Appeal on an urgent basis to authorise the withdrawal of the approval of the diagram to allow the registration of the general plan. 

 

[39]     The Respondent argued that the practice of the SG to request the intended beneficiary to consent to the withdrawal of the servitude with regard to an approved diagram where no servitude has been registered is not supported by the legislation or the regulations promulgated in terms thereof.

 

[40]     The SG Gauteng on 17 October 2019 wrote to Rand Water advising them that since the servitude detected by the diagram is intended to be registered in favour of Rand Water Board for protection of installed water pipes, their establishment is regarded to be the landowner who needs to consent for withdrawal of the said diagram.” Therefore, they are instructed to revert with consent to withdrawal or alternatively an objection. The Respondent disputes that there is any factual or legal basis upon which for the purpose of Reg 23 (2A) or for any other purpose in connection with the development of the land in question, Rand Water can be deemed or regarded as the ‘landowner’ of Portion 1.

 

[41]     The Respondent indicated to the SG the error in their letter in that the applicable legislation clearly states that the SG will withdraw the unregistered diagram on the written request of the registered owner of the land and that the expanded definition of the registered owner to include Rand Water as the presumed owner is not supported by the wording to the applicable legislation. It also placed on record that Rand Water cannot hold the registered landowner at ransom by failing and or refusing to provide their consent to the withdrawal which will result in irreparable damage being suffered by the owner, due to the delay in the township establishment as the general plan for the township cannot be approved.

 

[42]     On 15 November 2019 , the Respondent addressed a letter to Rand Water referring to the practice of the SG to require the consent of the beneficiary in whose favour the servitude would have registered, notwithstanding the specific wording of the regulation, giving Rand Water an ultimatum that unless Rand Water consent to the withdrawal of the diagram as requested by the SG and such consent is lodged with the office of the SG not later than 20 November 2019 the Respondent will take such legal course as may be necessary that will allow SG to approve the general plan as lodged for the proposed township.                                                                                                                                                                                                                              

[43]      Rand Water indicated that it is not prepared to withdraw SG diagram No: 10602/1998 which allegedly makes provision for the protection of Rand Water’s current services (10m wide) as well as future services (15m wide) and that the Respondent is allegedly “duty bound to make provision for the protection of Rand Water’s services within the layout plan as well as the general plan of any proposed Townships.” The Office of the SG is said to have sent on 5 December 2019, a veiled threat of disciplinary steps against the Respondent’s land surveyor.

 

[44]     Furthermore, the Respondent accepted fully that Rand Water has two existing underground pipelines traversing its immovable property that those pipes were installed lawfully and enjoy the protection of the Water Services Act. Rand Water however has no claim to an additional servitude area as depicted on the incorrect SG Diagram No: 10602/1998. Respondent complained of being held ransom by SG’s refusal to fulfil its duty and obligations in terms of Reg 23(2A) and Rand Water ‘s refusal to consent to the withdrawal of the incorrect SG Diagram No: 10602/1998.

 

[45]     The Respondent alleges to have a clear right in terms of Reg 23 (2A). Also acknowledging that the SG refuses to withdraw the incorrect diagram on the written request of the registered landowner despite the fact that all the jurisdictional conditions have been complied with. The refusal by the SG to be an infringement on the right of the Respondent as the registered owner of the immovable property. Respondent had exhausted all available remedies. As a result, it applied and was entitled to a mandamus in terms of which the SG is ordered to comply with its duty and obligation as contemplated in Reg 23 (2A).  

 

The SG’s Answering Affidavit

 

[46]    In response, the SG, in its Answering Affidavit raised a point in limine on a separation of powers arguing that the order sought directing the SG to withdraw in terms of Reg 23 (2A), the approved but unregistered servitude is the function in her office and therefore affects the performance of an act in her office. Thus there is a mandatory requirement for the Respondent prior to making an application to court to give the office of the SG 21 days’ Notice, which enables its office to write a report; see 46 of the LSA. The SG therefore argues that the Application is premature.

 

[47]    The SG further alleged that the Respondent being aware of the decision of the SCA that has found the installation of the underground pipelines, in protection of which the servitude is to be registered, to have been lawful, are hoping that the SG will withdraw the approved but unregistered servitude diagram and leave Rand Water exposed and at the mercy of the Respondents. They are opposing not to protect Rand Water but to make sure that they are not made to perform an act that they are not statutory mandated to perform.

 

[48]   The SG pointed out that a mandamus is an order requiring a public official to perform a positive act to remedy a wrongful state of affairs for which he is responsible and argues that approving Rand Water servitude diagram was not an unlawful act nor was it ever found to be an unlawful or a wrongful act and there is no wrongful state of affairs to be remedied therefore no merit to seek that the court order him to withdraw the approved diagram. The decision to withdraw the approved diagram remains her responsibility and she can only do so if empowered by the legislation to do so, and as the matter stands there is no justification for her to withdraw.

 

[49]    The SG argued that the approval of the servitude diagram provides Rand Water with a right therefore a decision to withdraw the approval is an administrative decision which cannot be taken arbitrarily and in isolation from s 33 of the Constitution as such a person has a right to a just administrative action. The Appeal court did not rule that they were under any obligation to register the servitude but that the underground pipes were laid lawfully and they must be tolerated by the Respondents and any subsequent owner.  Such a finding makes it impossible or unjustified administratively, for the SG to ignore it and withdraw the approval of the servitude diagram without giving Rand Water an opportunity to make an input as their interest will be affected. Withdrawing the approved servitude diagram will most definitely circumvent the Appeal Court’s ruling and without any other order, the SG does not have any statutory power to withdraw same.

 

[50]      Accordingly she admits that Reg 23 (2A) may not be making mention of consent from Rand Water and as mentioned above, such a need for consent is not to be found in the regulation if read in isolation but when the purport of the Constitution is considered, specifically S 33, Rand Water is entitled to be given an ear with regard to whether the approval should be withdrawn or not. Rand Water’s interest will be adversely affected by the SG’s decision to withdraw the approved servitude diagram and will be blatantly irresponsible of her office to withdraw the said diagram without ensuring that Rand Water knew and is given an opportunity to make input or submission of any kind.  

 

[51]     The approval in 1998 was for a servitude diagram SG 10602/1998 which makes a provision for North South leg to have a width of 25 meters and the East West leg to have a width of 10 meters, a total of which was secured for future use in the public interest and to enable Rand Water to fulfil the statutory mandate of supplying water, and it is not their understanding that Rand Water is claiming to be entitled to an inch more then what was approved.  

 

[52]        Reynecke’s email confirmed to her that the approved servitude diagram will have to be dealt with first before the approval of the general plan of Rosslyn Ext 54 Township can be considered or proceeded with. Also that is as the practice of the SG’s office to seek consent of the party whose rights will be adversely affected by their decision.

 

[53]     The SG reiterated that she cannot be ordered to withdraw the unregistered approved diagram when the approval of same was not an unlawful act and denied that his office is trying to hold the Respondents ransom.  

 

[54]       The SG pointed out that Rand Water has laid the two existing pipes lawfully and confirmed that the existing underground pipelines are less than what was approved in 1998, which is 25 meters North South and 10 meters East West.

 

[55]           She in view of all her contentions submitted that the Respondent has not made a case for the relief of mandamus it was seeking and pleaded for their Application to be dismissed.

 

Rand Water’s Answering Affidavit

 

[56]           Rand Water has indicated that central to this litigation lies its constitutional and statutory powers and obligation to provide bulk water services to the City of Tshwane and surrounding areas. The City is obliged to ensure access to water to its residents. Future urban development requires planning for expansion of Rand Water infra structure and is expected that Rand Water will have to commence with the construction of its additional pipelines in the next five years. To fulfil this function Rand Water needs to convey water with pipelines laid over privately owned properties which included the property of Rosslyn Hub.

 

[57]          Rand Water pointed out that it had power up to 1997 to lay the pipelines over private property without acquiring servitude. The pipe laying powers were abolished when the WSA of 108 of 1997 came into operation. Under this Act, Rand Water has to acquire servitude over private property which can be by agreement with the property owner or expropriation. The third way is when in a process of establishing a township, the municipality approves the establishment of a township including its general plan. The Municipality has the power to impose conditions on its approval. Conditions that the developer should provide servitudes and other rights in favour of the Municipality and other organs of state like Eskom and Rand Water, are often imposed. The conditions can be imposed with or without compensation, depending on the nature of the servitude and the beneficiary.                                                         

 

[58]       This, according to Rand Water being a dispute between the Respondent and Rand Water, the Respondent by attempting to compel the SG to withdraw the approved servitude which Rand Water requires over Rosslyn Hub property, has devised a scheme to force Rand Water to either negotiate or expropriate a servitude with the concomitant obligation to pay compensation obligation. Rand Water’s intention has at all times been to acquire the servitude in the public interest, if possible without paying compensation in the Township establishment. Rosslyn Hub is in the process of establishing townships on the relevant property and adjoining properties.

 

[59]        Rand Water alleges to have established for the first time when served the present Application that, on the conditions imposed by Tshwane Metropolitan Municipality on its approval of the establishment of Rosslyn Ext 54, the Municipality did not insist on the servitude required by Rand Water. The servitude mandated by the municipality is only 3 meters wide. This is not the 10 meters required by Randwater. Rand Water was to take the matter up with the Municipality in an attempt to try and convince it to amend its condition by providing for a 10-meter servitude on the east west line, failing which it was going expropriate the servitude in light of the wording of the condition referred to.

 

[60]         It has never been disputed by the Respondent that the width of the servitude as required by Rand Water on the East West Line is 10 meters. All the Respondent had to do was to amend its approved general plan to provide a servitude of 10 meters. Compensation will possibly have to be paid’.

 

[61]         Rand Water alleged that the Application is unmeritorious and that the SG is quite correct to refuse to withdraw his approval of the diagram without the consent from Rand Water. Rand Water has an administrative law right that the approved diagram should remain and not be withdrawn because it forms the legal basis of its acquisition of servitude by expropriation or negotiation.

 

[62]    Following the decision of the SCA on 25 November 2016, refusing an application for the removal of the pipelines and an order for compensation, a notice of Application was published on 19 January 2019, on behalf of the Respondent, for amendment of a Township Application in terms of s 16 (19) of the City of Tshwane Land Use Management By Law 2016. At the same time the Application letter and the accompanying documents in respect of the proposed Township Development was sent to Rand Water by the Respondent.

 

[63]      On behalf of Rand Water, the Respondent was advised via a letter, of Rand Water’s proposed 25 m wide servitude and 10 m wide servitude depicted on SG diagram 10602/1998, and that Rand Water had no objection in principle to the proposed development provided that the conditions of Rand Water’s servitude were adhered to and its services were not adversely affected. A reply from Respondent’s Town planners attaching their Advocate’s legal opinion on the interpretation of the SCA’s judgment was received by Rand Water pointing out that Rand Water has not replied to their letter and assuming that Rand Water had no comment and the plan as provided to Rand Water showing the respective servitudes on the Township lay out plan will be implemented at proclamation which only provided for a 9-meter North South servitude and a 3-meter East West servitude. Rand Water regarded the assumptions premature because its’ time to comment had not lapsed.

 

[64]          Rand Water requested a copy of the layout plan depicting the unregistered servitudes as described in the diagram. Rand Water was then advised of its failure to respond and was furnished, for consideration, with a copy of the Township lay out plan that has been submitted to the Municipality, pointing out that the servitude has never been registered as a result Rand Water has no locus standi.

 

[65]     According to Rand Water it was further pointed out in the exchanged correspondence with the Respondent that:         

                                                                       

[65.1]   The Township lay out plan only provided for a 9-meter North south servitude    and a 3-meter East west servitude. Rand Water requires a 25-meter North South Servitude and a 10-meter East West servitude subject to servitude requirement framed in the diagram.                                                         

 

[65.2]   Rand Water is not entitled to the increased width and should it require more, the Respondents need to be compensated. Demand was made on behalf of the Respondents that should Rand Water require servitudes in its favour or wider servitudes it would need to pay fair compensation.      

 

             [65.3]     reaffirmed that no servitude registered.

                     

[65.4]     No way-leave is required by Rand Water to work over the existing water pipes.

 

[65.5]    The Respondent’s only existing obligation is to allow Rand Water access to the   pipes and ensure that the pipes are protected and not damaged. To that end the Respondents have offered to register a non- building servitude in favour of Rosslyn Hub Property Owners Association.

 

[66]   Subsequent to that, unbeknown to Rand Water the Respondent submitted a layout plan for the proposed Township Rosslyn Hub Ext 54 to the City of Tshwane Metropolitan Municipality for approval. The servitude notes on the plan record that Erf 3285, 3286 and 3287 are subject to a 3-meter Rand Water servitude as indicated, which plan was approved by the City on 2 October 2019. The statement of conditions under which the lay out plan was approved was inter alia, that:

                                                                 

[66.1]    Erven 3285, 3286 and 3287 are subject to a Rand Water servitude that runs 3.0- meter wide along the Southern boundary that would be registered in favour of Rand Water Board. The lay out plan that was submitted by the Respondent for approval by the City did not provide for the 10-meter servitude required by Rand Water.

 

[66.2] Prior to the approval of the lay out plan by the City the Respondent submitted a general plan of the Township which includes erven 3285, 3286 and 3287 to the SG for approval. The SG replied to that by pointing out that the servitude diagram: 10602/1998 has to be dealt with when dealing with the parent property for approval of the general plan which can be dealt with in two ways:

 

              [66.2.1]        By registering a servitude diagram by notarial agreement in favour of Rand Water before registration of the Township after amending the conditions of the Township Establishment to include the existing condition. This servitude must be reflected on the general plan to affect the respective erven; or

 

            [66.2.2]        The unregistered servitude must be withdrawn, consent by the intended beneficiary will have to be obtained in terms of Reg 23 (2A) of the Land Survey Act. An instruction from Rand Water, the dominant authority is required and consent from the owner of the servient tenement is not sufficient and cannot be accepted.

 

            [66.2.3]        New servitudes of sufficient width will need to be registered over the erf to protect the existing erven.

 

[67]    The SG on 17 October 2019 wrote to Rand Water informing them of the Respondent’s request to have the servitude diagram withdrawn. Informing Rand Water of SG’s position that Rand Water was deemed to be the landowner who needs to consent to the withdrawal of the diagram.

 

[68]    The Respondent lamented the SG’s position in failing to set a time limit for Rand Water to respond and the fact that they were continuing with an urgent Application to compel the SG to withdraw the approved but unregistered servitude diagram.

 

[69]   Rand Water had explained the reason for the expansion of the servitude (increased area for the pipelines) being for the future expansion of the pipeline to be constructed in the servitude area advising that the 9-meter servitude depicted in the layout plan is not acceptable.

 

[70]   On 25 November 2019, Rand Water through their attorneys advised the Respondent that they are not consenting to the withdrawal of the approved servitude diagram and requested a copy of the approved lay out plan and conditions of Township Establishment. Rand Water alleges that it was never furnished with the documents.

 

[71]   A further advice to the Respondents to subject erven 3285, 3286 and 3287 to a 10-meter servitude along the Southern Boundary which will be registered as per the diagram on the layout plan and the general plan was rejected. According to Rand Water this advice could have opened the door for the alternative remedy to claim compensation.                                    

 

Law according to Rand Water

 

[72]      The diagram such as the Rand Water servitude diagram is an indispensable prerequisite for a registration of a real right. Its approval by the SG creates a right or a legitimate expectation on the part of Rand Water to have the real right shown on the diagram registered. This follows from the relevant provisions of the Land Survey Act and Land Survey Regulations of 1997 applicable with effect from 1 October 1997.  A diagram is defined in s 1 of LSA as the basis for the registration of a real right as is required to be approved or certified by the SG.

 

[73]    No diagram would be registered at the Deeds Office unless it has been approved by the SG. The drafting of a diagram and the approval thereof by the SG is a necessary prerequisite for the registration of a real right including the servitude. According to s 6, one of the functions of the SG is to examine and approve each diagram before registration. In terms of Reg 73 (2)   of the Regulations of Deeds Regulations 1963 a diagram is required to be annexed to any deed creating a servitude. The effect of that is that the SG cannot approve a diagram or a general plan that depicts a real right which conflicts with a previously approved diagram. The real right will be in favour of a 3^rd party. Where such a real right is shown on a diagram submitted for approval, the consent of the owner is required for approval by the SG alternatively a statutory authorisation is required.

 

[74]     The withdrawal referred to in Reg 23 (2A) is the withdrawal of the SG’s approval. The result is that the diagram can no longer be relied upon for the purpose of registration of a real right. Depending on the contents of the diagram and the envisaged real right, such withdrawal can affect the right or interest of 3^rd parties. In such a case the principle of the audi alteram partem rule requires that the SG gives the party concerned an opportunity to be heard (present its case) before a decision is made whether or not to withdraw his approval. It is clear that Reg 23 (2A) does not provide for this situation. It has to be interpreted in accordance with the Constitution including the right to administrative justice in s 33. An essential element is the procedurally fair administrative action, which requires the fundamentally audi principle.

 

[75]   Rand Water further pointed out that “Where the right of third parties are potentially to be prejudicially affected Reg 23 (2A) must be restrictively interpreted to apply only to the case where the diagram in question deals with the Ownership of the Owner. In that instance the Owner’s request is the only relevant consideration. Where an approved diagram purports to create upon registration rights of a 3^rd party over the owner’s land/property such 3^rd party has a right or a legitimate expectation that the diagram will retain its approved status and be accepted and be filed at the SG’s office as per Reg 6 (b) and (e).

                                                                                                                                    .

 

[76]   Based upon those submissions Rand Water contended that the right action would therefore be, to seek a review of the decision of the SG’s decision to refuse to withdraw the diagram, not a mandamus. To this end the SG has to comply with the provisions of PAJA 3 of 2000 and Rule 53 of the Uniform Rules of the High Court of South Africa.  The Application was therefore supposed to be dismissed.                  

 

[77]     The court a quo upheld the contention of the Respondent that there is no obligation on Rand Water to consent to the withdrawal precisely because it found that Rand Water was not the owner of the land but the Respondent. It further commented that the SG does not dispute that the provisions of Reg 23 (2A) makes no mention of a consent by Rand Water being required before the approved diagram can be withdrawn. He found that in his view the Provisions of s 33 of the Constitution will not assist the SG and Rand Water.

 

[78]     The court likewise found that there is no consent required from Rand Water in terms of Reg 23 (2A) precisely because Rand Water is not the owner of the land but the Respondent is and Rand Water has conceded that it is not. Having found that there is no obligation on Rand Water to consent to the withdrawal of the diagram, a case was made for a mandamus.  

 

[79]    The court also noted that on 20 June 2019 the Respondent submitted a lay out plan to the City of Tshwane which was approved by the City on 2 October 2019 despite objection from Rand Water. To the extent that the lay out is defective it strengthens the case for the Respondents for the withdrawal of the diagram by the SG.                

 

Appeal

 

[80]     Rand Water is appealing the court a quo’s judgment on the ground that the court- erred:  

 

            [80.1]               in finding that there exists no consent requirement from Rand Water

                                    in terms of Reg 23 (2A) for the withdrawal of the approved diagram SG No: 10602/1998 because Rand Water is not the owner of the land.

 

            [80.2]               That the learned Judge ought to have found that:

                                   

                                    [80.2.1]           Rand Water during 1997 lawfully exercised its statutory right in terms of s 6 (1) (b) of the Expropriation Act 63 of 1971 and s 81 of the Waters Services Act 108 of 1997 when it authorised a Land Surveyor to demarcate the boundaries of land required for public purposes, servitude to protect the existing pipeline and provide for future expansion.

 

                                    [80.2.3]           Rand Water did not require the Respondent or the previous owner’s consent to have the survey report and the diagram prepared and approved by the SG.

 

                                    [80.2.2]           The drafting of a diagram and the approval thereof by the SG is a necessary prerequisite for the restoration of a real right including the servitude over Portion 1 of the farm Klipfontein 268.             

                                    [80.2.4]           The effect of the approval of the diagram is that the SG cannot approve a general plan which depicts a real right which conflict with the previously approved diagram.

                                   

                                    [80.2.5]           The withdrawal of the approved diagram affects the right and interest of Rand Water who would be the beneficiary of the proposed servitude depicted on the diagram.

                                   

                                    [80.2.6]           The principles of the audi alteram partem requires the SG to provide Rand Water with an opportunity to present its case before deciding whether to withdraw its approval of the diagram.

 

                                    [80.2.7]           Although Reg 23 (2A) does not provide for this, it is an obligation imposed by s 33 of the Constitution. Reg 23 (2A) must be restrictively interpreted to apply in the case the diagram in question deals with the ownership of the owner.

                                   

                                    [80.2.8]           Where an approved diagram purports to create rights of a 3rd party over the owner’s land, such third party has got a right or a legitimate expectation that:

 

                                                [80.2.8.1]        the diagram will retain its approved status and be accepted and be filed in the SG’s Office; and

 

 

                                    [80.2.8.2]        that it would be informed and afforded an opportunity to make representations before any decision is made that may affect those rights.  

                                   

                                    [80.2.8.3] The approval of a diagram serves as a notice to the whole world that Rand Water has a right to secure the right of the servitude depicted on the land. It serves as a reservation  of a right to register a servitude.

 

                                    [80.2.9]           The withdrawal of the diagram would have affected Rand Water’s right. The decision by the SG to withdraw is thus an administrative action as defined in the Promotion of Administrative Justice Act 3 of 2000.The Audi Alteram Partem principle is fundamental to Administrative Justice.  

                                   

            [80.3]   The learned judge ought to have found that the Respondent in effect sought to review the SG’s decision to refuse to withdraw the diagram. In this regard the Respondent had not complied with the provisions of PAJA and Rule 53 of the Uniform Rules of court. The failure by the Respondent to comply with these requirements deprived the court and the parties of the record of decision making of the SG which is an essential requirement to properly review the administrative action of the SG.                                                                                                            

           

            [80.4]   The learned Judge ought to have found that the Respondent had an alternative legal remedy available in that the Respondent should have amended the general plan submitted to the SG for approval to provide for a 10- meter wide servitude along the Southern boundary of erf 3285,3286 and 3286 to be registered as per the diagram subject to the servitude conditions set by Rand Water.

            [80.5]  It further argued in Rand Water’s head of argument that it is significant that the Respondent sought a mandamus to compel the SG to withdraw Rand Water’s approved diagram. The Application is not an Application to review the decision of the SG not to withdraw the diagram.

            [80.6]  Rand Water has a procedural right to be heard, therefore the mandamus was not the right remedy to seek.  The basis of that procedural right being s 3 (1) of PAJA which Section provides that:

            “Administrative Action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally unfair.”

            [80.7]   The contents of fairness depend upon the facts of each case s 3 (2)(a). It is clear that if s 3 (1) is applicable, then Rand Water had a right to be heard.  So according to Rand Water the issue that requires to be resolved is whether the SG’s decision not to withdraw the diagram is governed by Reg 23 (2A) or by s 3 of PAJA since both cannot be applicable simultaneously.

[80.8]   Subsequently, in response to the Respondent’s argument, Rand Water resolved that the abovementioned argument is not correct, but it must be regarded that the correct issue is whether or not the Reg 23 (2A) decision qualifies as an administrative action whereof s 3 of PAJA applies. Once it is shown that the SG decision in terms of Reg 23 (2A) qualifies as an administrative action then s 3 (1) of PAJA applies; see Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 CC p6 22.  para [101].

[80.9]   Rand Water argues that the decision is as per definition in s 1 (b) of PAJA an administrative act. The section reads:

“giving, suspending, revoking or refusing to give a certificate or a direction, approval, consent or permission. 

[80.10] It is further argued that the withdrawal of the approved diagram Regulation is revoking an approval. Regulation 23 (2A) has to be exercised subject to s 3 (1) PAJA. The regulation is therefore supplemented by the fundamental right to fair administration procedure provided for in s 3 of PAJA.        

Respondent’s contention

 

[81]     The Respondent argued that Reg 23 (2A) does not give the SG a statutory power of a discretionary nature but imposes a statutory duty in terms that are clearly peremptory, in nature.

[82]     Furthermore it is pointed out that neither the Land Survey Act nor the Regulations require the consent of the landowner for the 3^rd party application to have a diagram for the proposed servitude approved by the SG; which can be obtained without the registered owner of the land knowing. There is no statutory requirement that, where a third party without the knowledge or consent of the registered owner of the land obtained approval for such a diagram in respect of a proposed servitude, the consent of the third party is required for the withdrawal of such approved diagram.

[83]     It is common cause that the existing pipeline are not part of this Application. The two underground pipelines have been constructed before the commencement of the WSA under the so called pipe laying powers of Rand Water in terms of the repealed legislation, which did not provide for the affected land owner to be compensated. It therefore accepts that they cannot be interfered with in any manner regardless of the fact that no formal servitude is registered against the title deed, which by virtue of the statutory protection afforded in s 79 and 82 of WSA would be superfluous and unnecessary. 

[84]     With further ground laying of pipelines, since the enactment of the WSA with effect from 19 December 1997, a servitude is to be obtained either by way of a written agreement with the land owner or expropriation is required.

[85]     The problem it has is that Rand Water is claiming a much wider and larger area for its future expansion plans and in so doing trying to circumvent s 25 of the Constitution (Compensation) and s 81 of the WSA, besides having since 1998 the power under s 81 of WSA and s 7 of the Expropriation Act 63 of 1975 to exercise expropriation of the proposed servitude and pay the concomitant compensation.

 [86]    It has as a measure of protection of the rights of Rand Water made provision for the 3- meter wide servitude that was proposed to Rand Water to protect their East west pipeline, the proposed Rosslyn Extension 54 does not include the other North South leg of the proposed servitude which will only be addressed during the future stages of the further development of the land in question.

[87]     Respondent further submits that despite the approval of the diagram for a proposed servitude, the Respondent had a clear right in terms of the said Reg 23 (2A). The SG refused to withdraw the diagram on the written request of the registered owner, despite the fact that all the jurisdictional conditions thereof had been complied with, the refusal of the SG was an infringement on the right of the Respondent who have exhausted all the legal remedies available before approaching the court. The court a quo was therefore correct to grant the Respondent the Mandamus in terms of which the SG was ordered to comply with its statutory duty and perform its statutory function as contemplated in Reg 23 (2A).

[88]     In relation to submission by Rand Water that the main issue is whether the withdrawal of the approval of the diagram for the proposed servitude under Reg 23 (2A) constitute administrative action as defined in section 1 of PAJA, the Respondents beg to differ.  

[89]     They argue that even if the withdrawal does constitute an administrative action as defined in section 1 of PAJA which they do not agree), the facts indicate that the SG actually gave Rand Water an opportunity to state its case and the SG was informed that Rand Water did not consent to the withdrawal of that approval. Despite knowing that Rand Water does not have the underlying entitlement to such servitudes and despite knowing that Rand Water apparently had no plans to expropriate such a servitude.

[90]     The Respondent argues that any other interpretation should not be allowed as the diagram was approved without the knowledge of the Respondent and secondly the narrow interpretation thereof is required under s 25 of the Constitution. Also s 39 of the Constitution requires that when interpreting any legislation every court must promote the spirit, purport and objects of the Bill of Rights. The Constitutional Court has also decided an interpretation which better protect a fundamental right should be preferred over any other interpretation. Thint (Pty) Ltd v National Director of Public Prosecutions 2009 (1) CC par [190].

[91]        They therefore argue that there is no decision as required for an administrative action.

[92]     Furthermore that the correlative right vesting in the registered owner of the Land, enjoy a constitutional protection of that ownership under s 25 of the Constitution to a withdrawal of such a diagram and an undefined interest of a 3^rd party (such as Rand Water cannot limit, nullify or deprive Respondent of its ownership right.  

[93]     Section 33 creates only rights enjoyed by private persons, including juristic persons as contemplated in s 8 (4) of the Constitution whilst the bearer of that obligations under that section is the State and its organs of state. 

Legal framework

[94]     A mandamus is a species of a mandatory interdict. A mandatory interdict can serve to compel the performance of a specific statutory duty (to do something that the compelled person ought to do if the Complainant is to have his rights), and to remedy the effect of unlawful action already taken. If the act to be performed must be carried out not by a private person but by a public official, the order is a mandamus; see Jordan v Penmill Investment CC 1991 (2) SA 430 (E) at 436E.

[95]     The public official must be compelled by a statute to perform the function or an act. The Complainant must have a clear right to be exercised or enforced. On whether or not a statute is directory or peremptory in Kuhne & Nagel (Pty) Ltd v Elias & Another 1979 (1) SA 131 (T) at 133 C-D it was stated that care must be exercised-

            ‘Whether the provisions are peremptory or directory is a matter of statutory construction. Being a matter of statutory construction it is necessary to ascertain the intention of the legislature, and it is now trite law that this is determined by having regard to the language used, the scope and object of the enactment as a whole, and the consequences in relation to justice and convenience of adopting one view rather than the other.’

[96]     It was cautioned in Nkisimane & Others v Santam Insurance Co. Limited 1978 (2) SA 430 (AD) at 434 E – 435 F;

            “not to infer merely from the use of such labels [peremptory or directory] what degree of compliance is necessary and what the consequences are of non or defective compliance. These must ultimately depend upon the proper construction of the statutory provision in question, or, in other words, upon the intention of the lawgiver as ascertained from the language, scope, and purpose of the enactment as a whole and the statutory requirement in particular.

 [97]    Every word within a statute is as a result there for a purpose and should be given its due significance. If the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary grammatical sense, even though it does lead, in our view of the case, to an absurdity or manifest injustice. The principles for statutory interpretation were laid down by the Constitutional Court in  Cool Ideas 1186 CC v Hubbard  [2014] ZACC 16;  2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) as follows:

“A fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity.  There are three important interrelated riders to this general principle, namely:

 

(a)            that statutory provisions should always be interpreted purposively;

 

(b)        the relevant statutory provision must be properly contextualised; and

 

(c)        all statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity.  This proviso to the general principle is closely related to the purposive approach referred to in (a).” (my emphasis)

 

[98]     Therefore the golden rule is that the words of a statute must prima facie be given their ordinary (plain) meaning wherever possible. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences.

[99]     Wallis JA in Natal Municipal Pension Fund v Endumeni Municipality  2012 (4) SA 593 (SCA) mentioned in summary, inter alia, the following principles of statutory interpretation, that –

[18.1]   The process of interpretation is objective, not subjective.

[18.2]   A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or that undermines the apparent purpose of the document.

[18.3]   Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business like for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation.

[18.4]   From the outset it is necessary to consider the context and the language together, with neither predominating over the other. This is the approach that courts in South Africa should now follow, without the need to cite authorities from an earlier era that are not necessarily consistent and which frequently reflect an approach to interpretation that is no longer appropriate.

[18.5]   Accordingly, to characterise the task of interpretation as a search for such an ephemeral and possibly chimerical meaning is unrealistic and misleading.

[18.6]   In resolving these problems, the apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation. An interpretation will not be given that leads to impractical, unbusinesslike or oppressive consequences, or that will stultify the broader operation of the legislation or contract under consideration.

[100]   These principles are consistent with the dictum of the Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs [2004] ZACC 15; 2004 (4) SA 490 (CC) where it is stated that:

 

“the emerging trend in statutory construction is to have regard to the context in which the words occur, even where the words to be construed are clear and unambiguous”.

 

 

[101]   In casu the contention arose from the refusal by the SG to follow the precepts, application and interpretation of Regulation 23 (2A) of the Land Survey Regulations that reads:

 

“An approved diagram or general plan shall be withdrawn, prior to the registration thereof, by the Surveyor General at the written request of the Land Surveyor concerned or registered owner of the land.” 

[102]   Prima facie, the regulation appears not to give the SG a discretionary statutory power but to impose a statutory duty in peremptory terms. On whether indeed the duty imposed is peremptory or discretionary, the words used and the context are crucial. Having regard to the words used, the use of the words “shall be withdrawn” is indicative of no choice or other alternative but peremptoriness. The SG as a result has to conform on written request by the registered owner of the land (whose right is protected in terms of s 25 of the Constitution against arbitrarily deprivation) or the land surveyor concerned.  The SG is not provided with a discretion/decision to make but a command to withdraw (shall), the jurisdictional requirement being a written request, by the registered owner of the land, for the withdrawal of an approved plan. It is therefore by the nature of its peremptory terms, an obligatory statutory duty. In Pio v Franklin N. O. & Another  1949 (3) SA 442 © at 451 it was stated that:

“Having regard to the language used, the use of the verb “shall” is indicative of peremptoriness unless there are other circumstances which negate this construction.”

 

 [103]  The regulation states that he shall withdraw. The conduct is consequently short of an administrative action, which requires that a decision should be made. On proof of judicial requirements being met the SG shall withdraw the approved diagram on failure of which he can be compelled to do so. Since he can only comply with the duty imposed upon him in a specific manner without a discretionary power, non- compliance constituting a breach, the performance of the duty does not constitute a decision that would result in an administrative action as per provisions of s 1 of PAJA.  

[104]   The SCA considered what ‘administrative action’ entailed in Nedbank Limited v Mendelow NO (686/12) [2013] ZASCA 98 on an argument that the conduct of the Master and of the Registrar of Deeds amounted to administrative action reviewable under PAJA, it was then highlighted that a decision must entail some form of choice or evaluation. It was therefore held that while both the Master and the Registrar of Deeds may perform administrative acts in the course of their statutory duties, where they have no decision-making function but perform acts that are purely clerical and which they are required to do in terms of the statute that so empowers them, they are not performing administrative acts within the definition of the PAJA or even under the common law. Accordingly, the SCA reasoned that purely clerical acts do not amount to administrative action reviewable under PAJA.

 

[105]   Furthermore, our courts’ firmly entrenched approach is to presume that if the legislature intended by any statutory provision to encroach on vested or existing rights it would do so ‘plainly, if not in express words, at least by clear implication and beyond reasonable doubt’; see Mhlongo v MacDonald  1940 AD 299 at 310. See also e.g. Millman NO v Twiggs [1995] ZASCA 62[1995] ZASCA 62; ;  1995 (3) SA 674 (A) at 679B and Land- en Landboubank van SA v Cogmanskloof Besproeiingsraad [1991] ZASCA 137[1991] ZASCA 137; ;  1992 (1) SA 217 (A) at 230E-F and 236B-C.

[106]   However, in Pio v Franklin N.O. (supra) at 451, it was stated that:

 

‘On the other hand provisions imposing public duties subject to performance in a specific manner are as a rule taken to be directory especially if holding them to be peremptory would result in inconvenience or injustice to people who have no control over the way in which they are performed.’

 

[107]   Likewise, where the statutory required act has the potential to adversely affect the vested interest of 3^rd parties (like in casu, the beneficiaries of the intended approved diagram) it is argued that the rules of natural justice will apply. The court would also be required to enquire whether the rights of the appellant were affected by such withdrawal, then the court should adopt the approach followed by the Constitutional Court in Joseph & Others v City of Johannesburg & Others 201930BCLR 212(CC), wherein the Court considered whether any rights of the applicants were materially and adversely affected by the termination of electricity supply to Ennerdale Houses.

 

[108] The Rand Water argues that the fact that the approved diagram can be that of a third party since it being possible to apply for approval without the consent or knowledge of the registered owner, as a result of their statutory powers, that the rules of natural justice would require that such request be brought to the attention of the beneficiary of the approved diagram. Furthermore, that the Rand Water servitude diagram is an indispensable prerequisite for a registration of a real right. Its approval by the SG creates a right or a legitimate expectation on the part of Rand Water to have the real right shown on the diagram registered. This follows from the relevant provisions of the Land Survey Act and Land Survey Regulations of 1997 applicable with effect from 1 October 1997.  A diagram is defined in Section 1 as the basis for the registration of a real right as is required to be approved or certified by the SG.

 

[109]   It is indeed a fact that no diagram would be registered at the Deeds Office unless it has been approved by the SG. The drafting of a diagram and or a general plan and the approval thereof by the SG is a necessary prerequisite for the registration of a real right including the servitude. However, it must be noted that the approval of a diagram in that instance does not confer a real right upon the intended beneficiary until registration in the Deeds office, when its delineation and nature being noted on the title deed, especially of the extended area.    

[110]   A diagram is defined in the LSA as: ‘diagram means a document containing geometrical, numerical and verbal representations of a piece of land, line, feature or area forming the basis for registration of a real right and which has been signed by a person recognized under any law then in force as a land surveyor, or which has been approved or certified by a Surveyor-General and includes a diagram or copy thereof prepared in a Surveyor General’s office and approved or certified as such, or a document which has at any time, prior to the commencement of this Act, been accepted as a diagram in a deeds registry or Surveyor-General’s office in the Republic or in any such office situated in any area which became part of the Republic at the commencement of the Constitution, 1993.’

 

[111]   The definition of diagram in the LSA raises questions on what exactly a real right is and more importantly, how to categorize the rights that flow from being the holder of an approved diagram. Do they fall into the immovable property definition, due to the fact that they as part of the registration process, have to be approved by the SG and registered at the Deeds Office.

 

 [112]  According to the DRA the meaning of a diagram is clarified as follows: “ ‘real right includes any right which becomes a real right upon registration … [and] … registered means registration in the deeds registry.’

 

[113]   It follows that in order to constitute a real right, there must be registration with a deeds registry. The manifestation of the real right is therefore only at registration, there being a collateral between Land Surveying and the Registry. The system for registration of real rights in property relies on land survey legislation requiring coordinated points indicated on survey diagrams and sometimes plans that provide proof of ownership over a defined area. This is probably the most secure form of tenure because the owner’s rights are clearly defined over an area, protected by the Constitution from expropriation, and exercisable in perpetuity.

 

[114]   The impact of servitude on the owner’s title (the exclusive use right) upon registration, is that the established real right of servitude severs the exclusive right to land ownership and imposes the duty to preserve and allow access. Therefore, unless the rights are real, they do not bind third parties (National Stadium South Africa (Pty) Ltd and Others v Firstrand Bank Ltd 2011 (2) SA 157 (SCA), paras [31] to [33] applied).

 

[115]   In casu, the SCA in the matter of Rand Water and the Respondent which was decided in accordance with the now repealed RWBS Act, found not only that the installation of the water pipes was lawful (as per statutory power conferred by s 24 (j) of Act 17 of 1950 but that their existence thereof needs to be preserved and protected (which in terms of the now applicable WSA would require expropriation and compensation, that was not the requirement then). The subsequent owner post installation therefore, has got no right to claim removal of pipeline, but a duty to preserve and give access. However, the court also has no power to order registration of servitude in respect of the statutory vested pipeline or to enforce a claim for compensation. Through the then statutory power, Rand Water was vested with the real right of servitude with regard to the area of 9 meter in width along the North South Boundary and 3-meter width along the East West Boundary which severs (or encumbers) the Respondent’s exclusive land ownership right. It not only confers the protection of a real right, however also creates a legitimate expectation of a servitude going to be properly registered or delineated on the Respondent’s title deed.        

             

[116]   As a registered land owner the Respondent has a clear right as far as the whole property is concerned except for the area where the pipelines are installed.  The Respondent indicated that, that is not in dispute. The position of the area of the pipelines is depicted on approved diagram SG No: 10602/1998. It can also be accommodated on the general plan that still has got to be approved but prior to that, bar the diagram it is exposed.

 

[117]   It is common cause that there was no agreement for the registration of a servitude that exceeds the area that is covered by the pipeline. Hence the over stated intended servitude was not to be endorsed on the title deed of Portion 1 as envisaged nor to encumber its general plan or its diagram on seeking its approval or registration. 

 

[118]   The Respondent accepts that the two existing underground pipelines have been lawfully constructed and that by virtue of the statutory protection they are afforded (that is in terms of s 23 of the Act), the pipelines cannot be interfered with in any manner regardless of the fact that no formal servitude is registered against the Title Deeds of Portion 1. However the approved diagram depicts both the area of the statutory vested servitude and the wider/extended area that has not been agreed upon or negotiated with the Respondent but intended by Rand Water to be for future expansion, which was delineated without the approval of the Respondent. The status of the approved diagram in relation to the extended area is that it vests Rand Water with a legitimate expectation of a real right interest evolving.    

 

[119]   The Withdrawal of the Approved diagram in terms of Reg 23(2A) results in the interference with the statutory protection of the existing pipeline, that is still to be delineated on the property’s title deed which needs to be protected under a servitude diagram (indicating the nature and extent thereof). In therefore dealing with the Respondent’s application for the approval of its general plan, the issue of Rand Water’s statutory vested servitudal right and approved diagram has got to be dealt with. The withdrawal of the approved diagram prior to such, and without the involvement of Rand Water will be detrimental to Rand Water or materially and adversely affect Rand Water.

[120]   Where there is no diagram the danger is that it can be misrepresented in the general plan or layout like it has been already done with the general plan that only refers to an area of 3-meter width along the Southern boundary. The lay out plan was submitted for approval by the City also without providing for the 10 -meter servitude required by Rand Water for its expansion.

[121]    In this instance holding the provisions of Reg 23 (2A) to be peremptory would result in inconvenience or injustice to people who have no control over the way in which the duty is performed.’ Specifically, where the potential of such an injustice or inconvenience is apparent to the public official performing such a duty (In casu an objection was also already indicated by Rand Water). It could not have been the intention of the legislature that such a potential injustice should be ignored. The rules of natural justice were therefore to be applied with the audi alteram partem rule invoked. see Thint  (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National Director of Public Prosecutions and Others [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) (31 July 2008) which confirmed that once there is opposition, or an objection the rules of natural justice should be applied.  

 

 

[122]   Furthermore, the request for withdrawal affects or interferes with Rand Water’s coercive power to expropriate land for the purpose of fulfilling its public duty. In Mobile Telephone Networks v SMI Trading 2012 (6) SA 638 SCA [34] Plasket J stated:

“coercive powers to enter land or even to deprive the owners of the use of land, for public purposes is a typical governmental power that is provided for in democracies such as ours precisely in order to further the public interest.” See s 25 (2) (a) and 25(4) invocation.”

[123]   The Constitution provides that everyone has the right to have access to sufficient food and water and that the property clause may not impede the state from taking measures to achieve land, water and related reform, to redress the results of past racial discrimination. These constitutional imperatives, combined with the national water and sanitation policy papers, the National Water Act and the WSA mandates water services institutions such as Rand Water to deliver universal and equitable access to reliable water supply and sanitation services, protect, manage and develop our countries’ water resources in a manner that supports justifiable and ecologically sustainable economic and social development and to transform access to water to redress the imbalances created historically.

 

[124]   Due to the fact that the invocation of the statutory power will materially and adversely affect Rand Water’s social responsibility, impacting negatively on the public at large, then Rule 3 of PAJA and Section 33 of the Constitution are applicable that calls for a just administrative action. Disregarding Rand Water’s social responsibility and not affording it an opportunity to be heard would also be to ignore the very public interest which the Legislature has sought to protect and safeguard in the Act. It is for that reason that the Act makes the public interest paramount.

 

[125]   Against the background of all the above mentioned factors, the promotion of the spirit, purport and objects of the Bill of Rights cannot be confined to the impact on Rosslyn Hub’s right to property alone. The argument for Rosslyn Hub with regards to the interpretation to be ascribed to regulation 23 (2A) followed a self-centered line leaving behind the dictates of section 39 (2) as a canon of interpretation.

 

[126]   In Respondent’s Application in terms of Reg 23 (2A), the provision thereof will have to

be interpreted in the spirit of s 33 of the Constitution upon which Rand Water will have to be heard. This will ensure that the competing constitutional imperatives are balanced, that of the Respondent as the registered land owner (under s 25) and of Rand Water as the holder of a statutory invested real right who is also an interested person (representing public interest due to its constitutionally mandated task) who might be materially and adversely affected by the action of the SG.

 

[127] The court a quo therefore erred in issuing a Mandamus on the basis that Rand Water is not the owner of the land and its objection to be disregarded, notwithstanding the statutory protection it has over the area of the existing pipeline and its coercive power that can be exercised to fulfil its social responsibility.  The Respondent should have proceeded by way of a review, to challenge the SG’s refusal to proceed with the withdrawal of the approved diagram. By granting a Mandamus the court was perpetuating a conduct that is contrary to the prescripts of the Constitution and the principle of natural justice.

 

[128]   The argument on behalf of the Respondent that also followed was that Section 33 creates only rights enjoyed by private persons, including juristic persons as contemplated in s 8 (4) of the Constitution whilst the bearer of that obligations under that regulation is the State and its organs of state. 

[129]   The Constitutional Court in State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd d [2017] ZACC 40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC), held that when an organ of state, acting in its own interest, applies to set aside its own administrative action, the PAJA does not apply. The court’s reasoning, which has not been without trenchant criticism, was that s 33 of the fundamental right to just administrative action – that is given effect to by the PAJA, is for the exclusive benefit of private persons. Organs of state are not bearers of the fundamental right to just administrative action. When they wish to review their own decisions, they consequently must do so in terms of the principle of legality

 

[130]   In Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019] ZACC 15; 2019 (4) SA 331 (CC); 2019 (6) BCLR 661 (CC) para 112, Cameron and Froneman JJ acknowledged the criticism and conceded that the decision may have to be revisited in due course.

 

[131]   In the case of Compcare Wellness Medical Scheme v Registrar of Medical Schemes and Others (267/2020) [2020] ZASCA 91 (17 August 2020), s 38 (d) of the Constitution on the enforcement of rights was considered in determining the position of an organ of state acting in the public interest in reviewing its own decision. In the matter, the Registrar and the Council of Medical Schemes claimed standing to review the Appeal Board’s decision on the basis of the public interest. Section 38 of the Constitution, which concerns who has standing to enforce fundamental rights, provides:

 

‘Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-

(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their own name;

c) anyone (acting as a member of, or in the interest of, a group or class of persons;

(d) anyone acting in the public interest; and

(e) an association acting in the interest of its members.

 

[132]   The Registrar stated that he and the Council ‘regulate medical schemes in the public interest’ and that they had brought the application ‘in the public interest, as envisaged by section 38(d) of the Constitution, submitting that it is in the public interest that a decision requiring the Registrar to act unlawfully should be set aside on review. Furthermore, the Registrar is acting in the interests of the public in light of the provisions of section 23(1)(c) of the Act which contemplates the possibility of a proposed name change causing harm to the public.’ Compcare contented itself with a bare denial that the Registrar and the Council acted in the public interest or that the name-change would cause prejudice to the public. The court held that:

 

“Fabricius J appears to have accepted that the Registrar and the Council had standing in terms of s 38(d) of the Constitution. In keeping with the generous approach to representative standing that the Constitutional Court in particular has mandated, and on the basis of the Registrar’s averments that I have quoted, I find that they indeed have standing to act in the public interest.”

 

[18] In the State Information Technology Agency case, the Constitutional Court was only concerned with an organ of state acting in its own interest and reviewing its own decision. It was not concerned with ‘a scenario where an organ of state that is in a position akin to that of a private person (natural or juristic) may be seeking to review the decision of another organ of state’ or with ‘a situation where — in seeking a review of its own decision — an organ of state is purporting to act in the public interest in terms of s 38 of the Constitution’.

 

[133]   Held further that:

 

‘‘[20] In this case, the decision of the Appeal Board is an administrative action as defined in the PAJA: it is a decision of an administrative nature, taken in the exercise of a public power by an organ of state in terms of empowering legislation that has the potential to adversely affects rights, has a direct, external legal effect and is not excluded by any of sub-sections (aa) to (ii) of s 1 of the PAJA.14 When the Registrar and the Council brought their application in the public interest, they did so in order to safeguard the fundamental right of each member of the public to just administrative action. That being so, they stepped into the shoes of the members of the public on whose behalf they litigated and, in this sense were, despite being organs of state, bearers of fundamental rights to just administrative action.

 

[134]   Rand Water, as a result, with its public purpose and acting in the interest of each member of the public entitled to access to water, despite being an organ of state, is a bearer of fundamental rights to just administrative action. 

[135]   It is also of concern that the Respondent failed to follow the rules of procedure as prescribed in s 46 that : ‘Before any application is made to a court for an order affecting the performance of any act in a Surveyor-General's office, the applicant shall give notice in writing to the Surveyor-General concerned at least 21 days before the hearing of the application, and the Surveyor-General may submit to the court such report thereon as he or she may deem desirable.’

 

[136]   The Appeal will have to be upheld with the costs order also set aside. 

 

            Under the circumstances, it is therefore ordered that: 

 

            (a)    The Appeal is upheld; and

 

(b)    The order and the Judgment of the court a quo delivered on the 31 January 2020 and 7 May 2020 respectively, are set aside and replaced with the following order:

 

                        1.         The Application is dismissed with costs

           

                        2.         The Respondent to pay the costs of Appeal, including the costs of 2 Counsels.

 

                                                                                              

                                                                                                N V KHUMALO J

                                                                                                JUDGE OF THE HIGH COURT

                                                                                                GAUTENG DIVISION, PRETORIA

 

K S MAHLANGU AJ

ACTING JUDGE HIGH COURT,

GAUTENG DIVISION, PRETORIA

 

                                                   R MATTHYS AJ

                                                                     ACTING JUDGE HIGH COURT                                                                         GAUTENG DIISION, PRETORIA

                                                                                            

 

On behalf of Appellant:       S J DU PLESSIS SC & J F STEYN

Instructed by:                        MOLEFE DLEPU ATTORNEYS  

                                                Tel: 012 771 6836

                                                Ref: Ms DLEPU/vm/Mat 11303

                                                Email: malefoattorneys@gmail.com

 

                                                 

 

On behalf of Respondent:     Adv MM MARIUS Oosthuizen SC

Instructed by:                         VDT ATTORNEYS                                                                                              

                                                Email: Gerhardtp@vdt.coza

                                                 REF: MAT/80432

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