IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO. 19661/2009

In the matter between:

AND

THE SOUTH AFRICAN NATIONAL

JUDGMENT DELIVERED ON 17 JUNE 2010

DLODLO, J

[1]    This is an opposed application brought on urgent basis by the Applicant wherein the following relief is sought:

b)	in the alternative to the above (in the event that the Court is to find that relief sought above is not competent, an order directing the Second Respondent to;
(i)	expropriate the land encompassed by the above encroachment in terms of the provisions of section 41 (1) (a) of the South African National Roads Agency Limited and the National Roads Act 7 of 1998 ("the Act"); and

[2] The Applicant is an adult businessman resident in Aandblom Street, Durbanville, Western Cape and conducting business from corner of Third Avenue and Nineteenth Street, Elsies River, Western Cape. The First Respondent (the South African National Road Agency Limited) is an agency incorporated as a public company with share capital in terms of the provisions of section 3 of the South African National Roads Agency Limited and National roads Act 7 of 1988 (hereinafter "the Act") with registered address at Ditsela Close, 124 Park Street, Hatfield, Pretoria. The Second Respondent is the Minister of Transport in the National sphere of Government in his/her capacity as contemplated by the Act. Mr. Barnard appeared on behalf of the Applicant, Mr. Tredoux, assisted by Mr. Cutler, appeared on behalf of the First Respondent and Mr. Masuku appeared on behalf of the Second Respondent respectively.

BACKGROUND

[6] According to the Applicant the Respondent adopted what he termed "the bizarre" attitude that the encroachment over Erf 1986 had existed since approximately October 1986 and that since the "National Road" had no value to the Applicant, the First Respondent intended expropriating such property without payment of any compensation. Since such attitude was allegedly taken in 2008, the First Respondent has not relented in the attitude. Paradoxically, and despite intimation from it that necessary steps would be taken to expropriate the Applicant's land, nothing in such regard has eventuated to date hereof.

[7] Arising from the above, the applicant launched an application against the Respondents seeking the removal of the encroachment, alternatively an order directing the Second respondent to expropriate the land affected by the encroachment. It is common cause that upon the filing of Opposing papers the Applicant somewhat changed his relief. Accordingly the Applicant does not persist with the prayer for the removal of the encroachment (being the N2 National Road). He now seeks the remaining prayer identified in the Notice of Motion as prayers 3.1, 4, 5 and 7:
a) Directing the Second Respondent to expropriate the land encompassed by the encroachment in terms of the provisions of section 41 (1) (a) of the South African national roads Agency Limited and National Roads Act 7 of 1998 (prayer 3.1);
b) Declaring that the Applicant's letter dated 13 February 2009 (Annexure "A" to the Founding papers) constituted the demand required by section 14 (3) (b) of the Expropriation Act 63 of 1975, and declaring the Applicant entitled to forthwith institute the actions contemplated by section 14 (3) (a) of such Act (prayer 4).
c) Directing that, in the event that the Second Respondent fails/neglects to expropriate the land within sixty (60) days of the date of this order, prayer 1 of the Notice of Motion (directing the removal of the encroachment) shall serve as an order of Court (prayer 5);
(d) Directing the Respondents to pay the costs of this application (prayer 7).
[8] Due to the nature of this matter it is compellingly necessary to also set out background information with regard to how and by virtue of which authorization did the N2 National Road which is described in the Applicant's papers as constituting an encroachment come about. The National Roads Act 42 of 1935 applied when the National Road which is built over Erf 1982, was constructed and proclaimed during 1952. The National Roads Act 54 of 1971 repealed Act 42 of 1935 with effect from 1 October 1971. This Act deemed all National Roads proclaimed in terms of previous legislation to have been so proclaimed under it. The 1996 Constitution includes public transport and road traffic regulation in Schedule 4. This means that the National and Provincial governments have concurrent legislative competence. A Provincial legislature has legislative competence in respect of any matter outside these functional areas which is expressly assigned to a Province by national legislation. A Province may make laws reasonably necessary for or incidental to the effective exercise of a power concerning any matter listed in Schedule 4. The legislative competence of National government includes the power to pass legislation with regard to any matter including a matter which falls within a functional area listed in Schedule 4.

[9] The South African National Roads Agency Limited and National Roads Act No. 7 of 1998 ("the SANRAL Act") is a national Act which, inter alia, prescribes measures and requirements with regard to the Government's policy concerning National roads, and with regard to the declaration of National Roads by the Minister of Transport, and the use and protection of National roads. The section 40 (5) of the SANRAL Act, which came into effect on 1 April 1998, expressly provides that all National Roads which were in existence at the commencement of the said Act "will be regarded and treated for all purposes as if it had been declared a national road under section 40 (1) of the SANRAL Act".

a) the immovable property of the South African Roads Board consisting of land, and any servitudes on or over land, on which National Roads are situated;
b) land and any servitudes or other real rights with regard to land (including any right to use land temporarily), acquired by the South African Roads Board or the state in terms of the National Roads Act (the "previous Act") for the purposes of or in connection with National Roads;
c) any other immovable property of the South African Roads Board acquired in terms of the National roads Act from moneys made available from the National Roads Fund;
d) any state land on which a National Road is situated, or any servitude or other real right with regard to land held by the state for the purposes of or in connection with a National Road situated on the latter land.
In addition to the First Respondent's main powers and functions it is empowered to purchase, hire or otherwise acquire, and hold, and sell, exchange or let, or, with the minister's approval, donate or otherwise dispose of or deal with, movable or immovable property for the purposes of the SANRAL Act.

THE DECLARATION OF A ROAD TO BE A "NATIONAL ROAD"

[11] For the importance of the present litigation the distinction between a National Road which was in existence before the SANRAL Act was promulgated, and the establishment of a new National Road cannot be stressed too much. The procedure for the establishment of a new National Road is set out in section 40 (3) of the SANRAL Act. In essence:
(a) The minister may from time to time by notice in the Government Gazette in terms of section 40 (3) of the SANRAL Act declare any existing road, or any route of which the boundaries have been fixed by survey, to be a National Road.
b) Such declaration must be on the recommendation of the First Respondent, with the agreement of the Premier of each Province in which the road is situated, in the case of an existing road that is to be declared a National Road.
c) Within a prescribed period after the date of which a National Road was declared, the First Respondent must in writing request the registrar of deeds who has jurisdiction to endorse the fact of that declaration on the titled deeds of the land affected by the declaration.
d) Such an endorsement may be made in any manner considered fit by that registrar of deeds.

[13] The chain is therefore unbroken: the National Road over Erf 1982 was built in terms of the 1935 Act, and it functioned as such thereafter. When the National Roads Act 54 of 1971 was promulgated the status of the road as a National Road was preserved. When the SANRAL Act was promulgated the status of the road in question was again preserved. It is still a National road, and is an important road as it is the main route along which traffic travels from George to Knysna and beyond.

EXPROPRIATION FOR THE PURPOSES OF A NATIONAL ROAD

[14] If the Minister is satisfied on reasonable grounds that the First Respondent reasonably requires any land for a National Road or for works or other purposes connected with a National Road he may expropriate same for the First Respondent, subject to certain restrictions. The First Respondent becomes the owner of expropriated land on the date of expropriation in terms of section 41 (4). Section 41 (2) provides that the Minister may not exercise the said powers of expropriation unless the First Respondent is unable to acquire the land etc by agreement with the owner.

[15] The provisions of subsections 7-24 of the Expropriation Act 63 of 1975 apply to the expropriation. Section 25 (2) of the Constitution of the Republic of South Africa, 1996 provides that expropriation of land must be effected in terms of a law of general application, for a public purpose and in the public interest and against payment of compensation. It is in terms of the above legislation that the Applicant seemingly sought the relief that either his whole property or portion thereof (on which there is an encroachment) must be expropriated. It is so that he initially sought closure or diversion of a National Road. Sanity prevailed indeed now that such a drastic remedy has been abandoned. Closure of a National Road like the N2 is indeed very serious in that it would impede the flow of traffic along the N2 and that would most certainly cause a great deal of inconvenience quite apart from the fact that it would occasion much expense with concomitant strain on the public purse.

[16] I hasten to mention that closure or diversion of a National Road is a power which is reserved to the First Respondent. In terms of section 45 (2) of the SANRAL Act the First Respondent may close a National Road to traffic or divert the roadway of a National Road whenever in its opinion it is necessary or desirable to do so; it is a criminal offence for any other person to do so. It is only the First Respondent which is entitled to take such a drastic step, and then only if in the exercise of its discretion this is "necessary or desirable".

[17] Insofar as the Applicant's property, Erf 1982, Wilderness is concerned, Mr. Tredoux submitted that it is neither necessary nor desirable for the National Road to be closed. Indeed, the contrary is true, as there is no practicable alternative route, and the question of the entitlement of the authorities to utilize the Applicant's property for the purposes of a National Road appears to have been settled long ago, during or about 1952, and the then owner was provided with such compensation as he was entitled to.

[18] It would appear that the property which now comprises Erf 1982 once formed part of a large tract of land which belonged to the State. The said property was of cause released into private ownership in terms of an original Deed of Grant which is available for anyone's inspection in the Deeds Office, Cape Town.

DISCUSSION AND CONSIDERATION OF SUBMISSIONS

[22] It is perhaps appropriate to quote Mr. Tredoux in his submission particularly concerning Mr. Barnard's contention I have set out above.

JURISTIC NATURE OF THE RIGHT TO USE LAND FOR ROAD PURPOSES

"The right to "enter upon and take possession of land is, it is true, a right of expropriation, but it is a right of expropriation of the necessary road-rights, not of the dominium of the land. (Cf Nel v Bomman 1968 (1) SA 498 (T) at 501 F-G; and Thorn en 'n Ander v Moulder 1974 (4) SA 894 (A) at 905 C-D). In other words, it is an expropriation of something in the nature of a road servitude: a via publica created by proclamation by lawful authority, via being "The right of passage over land belonging to another person for people, their animals and their vehicles " (Shenker Bros v Bester 1952 (3) SA 655 (C) at 659). "

"To acquire 'the use of the land' for road purposes is to acquire 'something in the nature of a road servitude' (per Nicholas AJA in Apex Mines Ltd v Administrator, Transvaal 1988 (3) SA 1 (A) at 171-J), or 'the necessary road-rights' (per Trollip J in Nel v Bomman 1968 (1) SA 498 (T) at 501 F-H).
It was recognized in Tansvaal Investment Co Ltd v Springs Municipality 1922 AD 337 at 341 that the word 'acquire', when used in relation to fixed property, need not necessarily mean the acquisition of the dominium of the land, but may also be used in a wider sense so as to include the acquisition of a right to obtain the dominium. (Cf Corondimas and Another v Badat 1946 AD 548 at 558). The word 'acquired' is used in s 3 (2) (a) (ii) of the 1971 National roads Act in relation to the use of the land. In my view, that connotes the acquisition of a right in the nature of a road servitude, and not of the dominium of the land. "

THE LEGAL BASIS ON WHICH THE SECOND RESPONDENT MAY BE COMPELLED TO EXPROPRIATE LAND IN TERMS OF SECTION 41 (1) (A) OF THE SANRAL ACT:

(a) any land for a national road or for the works or other purposes connected with a national road, including any access road, the acquisition, excavation, mining or treatment of gravel, stone, sand, clay, water or any other material or substance, the accommodation of road building staff and the storage or maintenance of any plant, vehicle, machines, equipment, tools, stores or material, may expropriate that land for the Agency. "

[27] The Minister's power to expropriate land in terms of section 41 (1) (a) of the SANRAL Act is discretionary. The jurisdictional requirement for exercising the power is that the Minister must be satisfied on reasonable grounds that the Agency reasonably requires the land. Section 41 (1) (a) must be read together with subsection 2 which provides the following:
"(2) the Minister may not exercise a power in terms of subsection (1) unless satisfied on reasonable grounds that the Agency is unable to acquire the land or anything mentioned in paragraph (b) of that subsection, or the right to use the land temporarily, by agreement with the owner of the land or the holder of any relevant right in respect of the land, as the case may be. "

"25 (1)..............
(2)	Property may be expropriated only in terms of law of general application-
(a)    for a public purpose or in the public interest; and 
(b)    subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

"The word public is one of wide significance, and it may have several meanings, between some of which, in spite of their common origin, there are very real differences. In a broad sense it is commonly applied to things which pertain to or affect the people of a country or a local community. The expression public opinion, public road, public place, public hall, are instances of the use of a word in that general way. On the other hand it is frequently employed in a more restricted sense to denote matters which pertain not to the people directly but to the state or the government which represents the people. Thus the public accounts signify the government accounts, public revenue and public lands denote the revenue and the lands of the state; and the public service means the government service. Hence, as it seems to me, public purposes may either be all purposes which pertain to and benefit the public in contradistinction to private individuals, or they may be those more restricted purposes which relate to the state and the government of the country- that is, governmental purposes. "

25. It is responsible for and has the power to perform all strategic planning with regard to the South African national roads system, as well as planning, design, construction, operation, management, control, maintenance and rehabilitation of national roads for the Republic. Additional functions of the Agency are set out in terms of section 26 of the SANRAL Act. It is clear from the provisions of section 41 (1) (a) of the SANRAL Act read together with sections 25 and 26 that only the expropriation of land under the SANRAL Act must reasonably be needed by the Agency. This means that only the Agency has the standing to seek an order of expropriation from the Minister. The Minister cannot expropriate land where such an expropriation is not reasonably needed by the Agency. That also means that the Minister cannot expropriate the land for the benefit of a private entity, like the Applicant. Even if the Applicant had the standing to seek an order compelling the Minister to expropriate the land, the Applicant has failed to meet the jurisdictional requirements for the exercise of discretion to expropriate in that:
a) The reasons given by the Applicant for the order compelling the Minister to exercise her/his discretionary powers of expropriation are not reasonably related to the purpose for which an expropriation under the Act is done. The Applicant wants an order of expropriation in order to obtain compensation to the value of the property.
b) The Applicant and not the Agency as contemplated and required by the Act requires the expropriation.
c) The expropriation is not required for a national road or for works or other purposes connected with a national road. A national road already exists on the land. It existed probably before the Applicant was born. The Applicant became the owner of Erf 1982 only in 2004. Previous owners of this property never sought to obtain the relief the Applicant prays for.

[33] In addition to the above, the Minister may only exercise the power of expropriation if he is satisfied on reasonable grounds that the Agency not only requires the land, but, is also unable to acquire it for purposes related to its core legislative mandate. Since it is the Applicant that wants an order of expropriation, it bears the burden of showing reasonable grounds that the Agency is unable to acquire the land. On the facts relied on by the Applicant, no reasonable grounds have been shown to exist which would justify the Minister to exercise the powers of expropriation in favour of the Agency. The fact that the Applicant purchased the land on inaccurate and incorrect assumptions as regards its commercial viability cannot be a reasonable basis on which the Minister should lose his discretion and be compelled to exercise his power of expropriation under section 41 (1) (a) of the SANRAL Act.

[34] Moreover if one has due regard to the comprehensive Answering Affidavit, it is patently clear that a claim for expropriation by the Applicant is incompetent for the following reasons which do not appear to be in dispute:
(a) In terms of the Original Deed of Grant, appearing as Annexure "AA.2" in the Answering Affidavit filed on behalf of the First Respondent, Erf 1982 was granted in Freehold with the State reserving its rights to construct a national road over the property without compensation; 
(b) The National Road was established on Erf 1982 in 1952. When the Applicant bought the land, the National road was already in existence.

[35] Compensation was aggressively pursued by the previous owner of the property, Wilderness (1921) Ltd and paid by the State for the land on which the national road was established. The State did not take formal transfer of the land at the time. Expropriation at the time was not legally possible. For this reliance is made on Annexure "AA.4" to the Answering Affidavit of the First Respondent. Paragraph 5 of "AA.4" records that legal opinion had been obtained at the time to the effect that section 4 of Act 42 of 1935 could not be applied to expropriate isolated areas of land such as the ones at issue. Annexure "AA.5" is a memorandum addressed to the Secretary of Transport dealing with the issue of expropriation. It concluded that expropriation was not possible to do at the time given the state of the legislation. As mentioned above under "Background" the Applicant's property was once part of a large tract of land, which belonged to the State. The property was then released into private ownership in terms of an Original Deed of Grant, which is available for inspection in the Deeds Office, Cape Town. The Applicant does not deny that an original Deed of Grant is available for inspection in the Deeds Office.

"Annexure AA.3 hereto is a letter of 3 June 1944 which is addressed
to the Resident Engineer, George by Mr. PF Retief the Acting
Provincial Roads Engineer. I quote from this document:
("The property of Messrs. Wilderness (1921) Limited consists of a
sub-divided portion of the Crown Land deemed to be part of Lot H
828 morgen, held by G.F. 12.7
The property is subject to the following conditions:
1.	Full power and authority henceforth to possess the same in perpetuity.
2.	Permission to dispose of or alienate the same, with the approbation of Government in such manner as he may think proper.
3.	Subject to all such Duties and Regulations as are either already or shall in future be established in regard to such lands.
4.	Under such conditions as are stipulated in the Deed of Sale.

(iii) The said land shall be liable without compensation to its proprietor to have any road made over it for public good by order of Government.)
In view of the above the proprietors are precluded from claiming compensation for the damages arising out of the construction of the National Road over the property. In accordance with the usual practice the Administrator may however be prepared to consider a reasonable ex gratia payment for damage to improvements but a claim in respect of unimproved land will definitely not be entertained. "

[37] Annexure "AA.4" to the Answering Affidavit of the First Respondent is a letter from the Resident Engineer, Cape Town dated 28 August 1944. Paragraph 1 indicates that it was necessary to excavate the rock on the property in order to build the National road. The paragraph reads:
"It is understood that Mr. Grant, Director of the Wilderness Estates will not permit any construction on the Estates before the Compensation had been satisfactorily disposed of. It is of course certainly to be very complicated and knowing Mr. Grant as I do, negotiations will be very protracted before they be finally accepted by him, and this, if Mr. Grant's contention is correct, will definitely result in delays to the department. In the light, however, of the conditions of grant as quoted in paragraph (4) of your memo N.55/6576 dated 3.6.44, Mr. Grant's contention is not correct and construction would appear to be legally permitted before Compensation is settled, although the Estate is issued in freehold. "

"We find it extremely difficult to formulate a claim equitable and commensurate with the losses sustained. At the outset, we desire to stress the inequity that private owners should be under the same conditions of title be compensated to the full value of loss sustained whereas, due to the exigencies of current legislation, the treatment allowable to the Company will be on a basis far less generous and much to its advantage... In consequence it appears to us wise to pray the Board to grant a sum as ex gratia compensation rather than endeavour to compensate in detail which, at its best would be extremely difficult for both sides to frame and assess. "

(ii) All roads and thoroughfares running over the said land shall
remain free and uninterrupted; (Hi)   The said land shall be liable without compensation to its Proprietor to have any road made over it for the public good by order of Government. "

INCOMPETENT RELIEF SOUGHT

[42] The Applicant's relief against the Second Respondent is incompetent in terms of section 41 (1) (a) of the SANRAL Act. The Applicant wants this order in exchange for a huge payment, which the Applicant conveniently terms "compensation". On the facts relied on by the Applicant, the order sought would essentially enable him to claim an amount of R4.5 million against the Respondent as 'compensation', which he considers to be the value of the land without the alleged encroachments. It is also unclear on the

Applicant's papers whether the order sought relates to the entire property, Erf 1982 or just the portion that constitutes the national road running through his property. The Applicant, has, however, not specified any details on what form or shape or size the expropriation must take. The relief is simply too vague in its terms and therefore incompetent. The Applicant has also made the assumption in seeking the relief in terms of section 41 (1) (a) of the SANRAL Act against the Second Respondent that the First Respondent needs the land for purposes related to the National Road but is unable to acquire it. The assumptions are incorrect both in fact and law.

[45] Mr. Barnard relied as well on the Property clause contained in the Constitution. This was an apparent reference to section 25 (1) of the Constitution reading:
"25 (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property."
The Property clause in the Constitution is intended to protect an individual's or and entity's right of ownership of that particular property. The property at issue in the instant matter, that is Erf 1982, has not been interfered with since the Constitution came into force. The protection contained in the Property clause serves to protect and guarantee property owners that not even State organs will interfere with the status of their properties without following due process. I am not so certain that Mr. Barnard can safely invoke this section in this instance. When the Constitution and its Bill of Rights (which includes the Property clause) were enacted, the N2 National Road was long in existence on Erf 1982. Nobody has sought to change or alter the status of Erf 1982. Nobody therefore may be said to have contravened the Property clause.
[46]   On the question of costs, there is no basis why this Court should depart from the general rule namely that the successful litigant is entitled to its costs. In the circumstances I make the following order: (a) The application is dismissed with costs.