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REPORTABLE
THE HIGH COURT OF SOUTH AFRICA
NATAL PROVINCIAL DIVISION
In the matters between :
CASE NO. 785/03
HENDRIK PETRUS HOUGH (Substituted forLA LUCIA PROPERTY INVESTMENTS LIMITED) Plaintiff
and
DURBAN METROPOLITAN UNICITY MUNICIPALITY
Defendant
AND
CASE NO. 848/03
HENDRIK PETRUS HOUGH (Substituted for LA LUCIA PROPERTY INVESTMENTS LIMITED)
Applicant
and
DURBAN METROPOLITAN UNICITY MUNICIPALITY
Respondent
THE SURVEYORGENERALDEPARTMENT OF LAND AFFAIRS
Interested Party
THE REGISTRAR OF DEEDS Interested Party
DEPARTMENT OF LAND AFFAIRS
AND
CASE NO. 1175/03
HENDRIK PETRUS HOUGH (Substituted forLA LUCIA PROPERTY INVESTMENTS LIMITED)
Applicant
and
DURBAN METROPOLITAN UNICITY MUNICIPALITY
Respondent
THE SURVEYORGENERALDEPARTMENT OF LAND AFFAIRS
Interested Party
THE REGISTRAR OF DEEDSDEPARTMENT OF LAND AFFAIRS
Interested Party
AND
CASE NO. 9433/04
DURBAN METROPOLITAN UNICITY MUNICIPALITY
Applicant
and
HENDRIK PETRUS HOUGH (Substituted forLA LUCIA PROPERTY INVESTMENTS LIMITED)
First Respondent
MEC FOR TRADITIONAL AND LOCAL Second Respondent
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GOVERNMENT AFFAIRS
JUDGMENT
Delivered on : 7 June 2006
PATEL, J. :
[1] This is an application in which four applications served before me
on the Opposed Motion Court Roll.
A. In the matter under Case No. 785/03 the Plaintiff by action
sought monetary compensation as follows :
Claim No. 1
1. Payment in the sum of R5,000,000.00;
Claim No. 2
2. Payment in the sum of R1,600,000.00;
Claim No. 3
3. Payment in the sum of R800,000.00;
Claim No. 4
4. Payment in the sum of R800,000.00;
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5. Interest on the aforesaid amounts referred to in Prayers 1 to 4
at the rate of 15.5% per annum from date of judgment to date of
payment;
6. Costs of suit.
The Defendant excepted to this claim and it is the argument on the
exception which is before me.
B. The next application is the application under case No. 848/03.
In that application the Applicant seeks the following relief :
1. Declaring that transfer of Lots 724, 733, 800, 801 in Private
Township LA LUCIA (EXTENSION NO. 2) from the Applicant’s title
deed, Deed of Transfer No. 14038/1968 to the Town Council of the
Borough of Umhlanga under Deed of Transfer No. T11816/95 was
unlawful and is hereby set aside;
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2. Ordering the Registrar of Deeds to correct the Township
Register relating to Private Township La Lucia to reflect that Lots 724,
733, 800 and 801 is vested in the name of the respondent in terms of
section 25 of the Natal Ordinance No. 27 of 1949, alternatively
ordering the Respondent to pay to the Applicant the following
amounts by way of damages in respect of the unlawful transfer of
Lots 724, 733, 800 and/or 801 in its name :
(a) In respect of Lot 724, R1,600,000.00;
(b) In respect of Lot 733, R1,600,000.00;
(c) In respect of Lot 800, R5,000,000.00;
(d) In respect of Lot 801, R5,000,000.00.
3. Declaring the physical closure of the streets between 654 and
754 in Private Township LA LUCIA EXTENSION NO 2 to be unlawful;
4. Ordering the Respondent to do whatever is required by law to
effect the permanent closure of the street between Lots 654 and 754
in Private Township LA LUCIA (EXTENSION NO. 2) alternatively
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ordering the Respondent to pay the Applicant an amount of
R1,500,000.00 in damages for unlawful closure and deprivation /
expropriation of the streets between Lots 654 and 754 in Private
Township LA LUCIA (EXTENSION NO. 2);
5. Ordering the Respondent to do whatever is required by law to
effect the permanent closure of the following lots situated in the
following Private Townships owned by the Applicant :
(a) LA LUCIA : REG DIV FU
i. Public Place between Lots 46 & 47 and Lots 56 & 57 (Ref
12/13(L);
ii. Public Place between Lots 85 & 86 and Lots 94 and 95 (Ref
12/13(f));
iii. Public Place between Lots 109 & 110 and Lots 124 & 125 (Ref
12/13(i)).
(b) LA LUCIA (EXTENSION NO. 2)
i. Public Place between Lots 665 and 678 (Ref 12/13(f));
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ii. Public Place between Lots 689 and 741;
iii. Public Place between Lots 803 and 962 (Ref 12/12(c));
iv. Portions of Roads Campbell and Kingston Drive (Ref 12/13(u));
v. Public Place Lot 1048 (Ref 12/13(t));
vi. Public Place between Lots 803 & 962, which is now Lot 1051
(Ref. 12/12(c)).
(c) LA LUCIA (EXTENSION NO. 5)
i. Area between Lots 1067 & 1068 (Ref 12/13(e));
ii. Area between Lots 1092 and 1093 (Ref 12/13(d)).
(d) LA LUCIA (EXTENSION NO. 6)
i. Public Place being Lot 1239 (Ref 12/13(s).
6. Declaring, in the alternative to the Prayer 5(c)(i) and 5(c)(ii), that
the Applicant is the owner of the land situate between Lots 1067 &
1068 and Lots 1092 and 1093 in Private Township LA LUCIA
(EXTENSION NO. 5);
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7. Further and/or alternative relief;
8. Costs.
C. The next application is the application under case No. 1175/03.
In that application the Applicant seeks the following relief :
1. Ordering the Respondent to transfer Lot 754 and 802 La Lucia
(Extension No. 2) which had been transferred to the Respondent
pursuant to the Conditions of Establishment of Private Township La
Lucia (Extension No. 2) to the Applicant;
2. Costs on an attorney and client scale.
D. The last application is the application under case No. 9433/04.
In that application the Applicant, the respondent in the above three
matters, seeks the following relief :
An order :
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1.1 DECLARING that the first respondent’s purported closure, by
public notice to take effect on 22 November 2004, in terms of the
Local Authorities (Natal) Ordinance, No. 25 of 1974, of the following
properties :
(a) a road between Lots 1067 and 1068 and a road between Lots
1072 and 1073 or Lots 1092 and 1093, in Private Township La Lucia
(Extension No. 5);
(b) a road adjacent to Lot 771 and a circular link in Private
Township La Lucia (Extension No. 2);
(c) a road adjacent to a circular link and Remainder 9 of Lot La
Lucia No. 14634;
(d) public places Lots 1046. 1047 and 1048 in Private Township La
Lucia (Extension No. 2);
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is unlawful, invalid and of no force and effect.
1.2 THAT pending the resolution of the action and the applications
instituted by the first respondent under case numbers 848/03; 785/03
and 1175/03 in this Court, the first respondent be and is hereby
interdicted and restrained from taking any steps pursuant to the
purported road closure described in paragraph 1.1;
1.3 DIRECTING the first respondent to pay the costs of this
application; and
1.4 Further, other or alternative relief.
[2] On the 30 May 2005, an order by consent was granted in each of
the four matters in terms of which Mr. Hendrik Petrus Hough
(hereinafter referred to as ‘Hough’) was substituted for La Lucia
Property Investments Limited (‘the company’). These orders also
provided that the company remain jointly and severally liable with
Hough in respect of any costs orders made against him in these
10
matters. I shall in the course of this judgment refer to the Durban
Metropolitan Unicity Municipality as the ‘Ethekwini Municipality’.
[3] In dealing with these matters I propose going through the relevant
legislation since an analysis of it has implications in all the matters.
Hough’s claims, in essence, relate to two categories of immovable
properties which are in the township of La Lucia and its various
extensions. I shall collectively refer to the area as ‘La Lucia’. It is
Hough’s claims that he has certain reversionary rights in ‘public
places’ in La Lucia as well as in ‘properties set aside for Local
Authority purposes’ when La Lucia was first established. As an
analysis will show, these two categories are distinctly different.
[4] I deal firstly with the action under Case No. 785/03 (‘the exception
application’) and the application under Case No. 848/03 (‘public
places application’) since both deal with issues related to whether
Hough has any right to claim public places in La Lucia. The legal
issues raised in the public places application are those also raised in
the exception.
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[5] I might mention that the application in Case No.1175/03 (‘Local
Authority purposes application’) invites an analysis of the same
legislative framework to be considered in the exception application
and in the public purposes application. However, in this application,
Hough contends that immovable property foreshadowed in the Notice
of Motion was set aside for ‘Local Authority purposes’ and was given
to the Ethekwini Municipality’s predecessors as a donation subject to
a modus and because these properties are no longer being used for
the purpose for which they were given, they must be transferred to
him as township owner. Logic therefore dictates that I consider the
Local Authority purpose application after the exception and the public
purposes application.
[6] The interdict application in case no. 9433/04 (‘the interdict
application’) is the return day of a Rule preventing Hough from
seeking permanently to close some of the public streets and roads
which are the subject matter of the above applications. It is therefore
meet that I deal with this application at the end as interim relief has
12
been obtained.
[7] It is necessary to consider the history of the development of La
Lucia in order to understand the legal issues attending these
applications. This history is set out in the case of Natal Estates Ltd v
Secretary for Inland Revenue 1975(4) SA 177 (AD) and what is set
out below is essentially a précis of that history.
[8] The demand for additional residential land to the north of Durban
increased during the 1960’s and it is for this reason that La Lucia was
developed. The development was undertaken in various stages and
at each stage permission had to be obtained in terms of the extant
Town Planning Ordinances to establish a private township on a
further portion of the original land which was hitherto used for sugar
cane cultivation. Whilst the initial permission to establish private
township on the land was sought and obtained by the Natal Estates
Limited as early as 1958, the actual development from 1968 onwards
was undertaken by the company.
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[9] Permission was sought and given in terms of the extant Town
Planning Ordinance 27 of 1949 (the Ordinance). In granting
permission to establish the township and its various extensions the
Administrator in each case imposed certain conditions of
establishment. A general layout plan showing the lots in the township
was submitted to the Administrator in each instance and, as is
customary, certain lots in the various township extensions were
designated as public places while others were set aside for local
authority and other government purposes. Further plots were set
aside for future developments such as road development.
[10] The geography of the area dictated that certain ‘lanes’ which
were relatively narrow strips of land between the lots be set aside as
short cut access between different roads. These access strips gave
access to the beach at regular intervals in the lower portion of the
township. In any event, the Private Township La Lucia and its various
extensions took place between 24 September 1964 and 31
December 1970. The company is no longer part of the TongaatHulett
Group of companies. As is evident from the Answering Affidavit filed
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in Case No. 848/03 (the public purposes application), Hough became
a shareholder in the company on 6 November 1999. The remaining
directors appear to have been appointed either shortly before or
shortly thereafter. Prior to his substitution for the company, Hough
acted as the Company’s representative in all dealings with the
Ethekwini Municipality’s attorneys.
[11] With the establishment of La Lucia, the land set aside for public
purposes, local authority purposes and roads, came to be vested in
the relevant local authority which was initially the La Lucia Health
Committee which was later replaced by the Town Council of the
Borough of Umhlanga. The Ethekwini Municipality is a successor in
law to those local authorities. In accordance with the Ordinance, Lots
set aside for local authority purposes were transferred to the local
authority in accordance with the mandatory provisions of the
Ordinance. In the case of public places, ownership of these lots
vested by virtue of the statutory framework in the local authority.
[12] I propose now to look at the legislative framework for the
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establishment of private townships. The establishment of private
townships is regulated by Chapter 3, sections 11 – 39 of the
Ordinance.
[13] Section 11 of the Ordinance provides that no person shall
establish a private township without the approval of the Administrator.
Section 11(4) of the Ordinance further provides that the
Administrator, in authorising the development of private townships, is
empowered to grant such authority (subject to any conditions not
inconsistent with the provisions of this Chapter.) Section 16 deals
with the conditions for the establishment of a private township. It
empowers the Administrator to draft conditions subject to which the
approval of the establishment of such private township may be
granted. These conditions include :
‘(f). the provision and reservation of lots for Government, local authority and
regional water supply corporation purpose including educational, recreational,
health, sanitation and commonage purposes for the use and benefit or in the
general interest of the public or any other Government or local authority purpose
16
or the payment by the township owner of a sum of money in lieu thereof’;
[14] In terms of section 17(1) of the Ordinance and prior to deciding
on an application to establish a private township, the Administrator is
required to advise the Applicant and the local authority of his intended
decision as well as of the conditions proposed to be prescribed by
him. Thereafter representations are canvassed and considered by the
Administrator. In terms of section 18 of the Ordinance, the
Administrator may then grant or refuse an application subject to such
conditions as are prescribed.
[15] The next relevant provision in the Ordinance is section 25. This
section deals with the ownership of public places, which vest in the
local authority or in the Administrator in trust where a local authority is
to be formed. The section reads :
‘25. Ownership of public places vests in local authority or the
Administrator in trust. –
17
(1) From the date of publication of the notice referred to in section 23 or of
any declaration made by the Administrator under subsection (4) of section 33,
the ownership of all public places in the approved private township shall, subject
to the provisions of section 38, vest in the local authority, or in the Administrator
in trust for any future local authority, as the case may be, for the use and benefit
of the public; Provided that any such vesting shall not be deemed to impose any
liability in regard to the maintenance of such public places other than is imposed
by law.
(2) The Registrar of Deeds shall record such vesting in the private township
register.
(3) Upon the constitution of a local authority or the incorporation of the private
township in a local authority area, the Registrar of Deeds shall record such
vesting in the local authority in the private township register’.
[16] Section 26 is the next relevant section which relates to the
transfer of land reserved for local authority purposes. Section 26
reads :
‘Transfer of land to Government, local authority or the Administrator in
18
trust. –
(1) After the publication of the notice referred to in subsection (1) of section 23,
the applicant, shall at his own cost, including transfer duty and other Government
dues, transfer such lots as have been reserved in accordance with the provisions
of paragraph (f) of section 16 for Government, local authority or regional water
supply corporation purposes, namely –
(a) such lots as have been reserved for Government purposes, to the
Government;
(b) such lots (not being public places) as have been reserved for local
authority purposes, to the local authority or the Administrator in trust for a future
local authority; and
(c) such lot or lots as have been reserved for the purposes of any regional
water supply corporation to that corporation. ….’
26(4)ter provides :
‘If any lot situate in an approved private township, which shall at any time have
been transferred to a local authority for any specified purpose, whether in terms
19
of this Ordinance or the Private Township and Town Planning Ordinance, 1934 is
no longer suitable or is not required for the public purposes which it was intended
to serve, the local authority may with the prior approval of the Administrator, use
the same for any other public purpose, or alienate it free of any condition
restricting its use to any public purpose, to all intents and purposes as though
such lots were immovable property, freely alienable, as contemplated by section
233 of the Local Authorities Ordinance, 1974 (Ordinance No. 25 of 1974)’.
[17] The statutory framework is clear in its provenance. The position
in respect of public places is that ownership of all public places vests
in the local authority and the Registrar of Deeds is required to record
such vesting in the private township register. This, of course, is
different from the registration of title in the name of the local authority.
If registered title is required the local authority can obtain such title
without further reference to the previous owner under section 31 of
the Deeds Registries Act, Act No. 47 of 1937.
[18] Land which is set aside for local authority purposes (other than
public places – an expression which includes public streets) is treated
differently. An Applicant who intends developing a township must
20
transfer the land set aside for local authority purposes ‘at his own
cost’ to the local authority. Further, as is evident from section
26(4)ter, the fact that lots have been set aside for local authorities
does not mean that it cannot be used for other purposes at some
point in the future. Accordingly, in relation to such land, the local
authority obtains registered title from the outset and its subsequent
use is dealt with in terms of section 26(4)ter.
[19] The next relevant sections to be considered are the definitions of
‘public place’ and ‘street’ in the Ordinance. ‘A public place’ is defined
as :
‘Any street (as defined in this section) and any square, park, recreation ground,
garden, commonage or enclosed or open space –
(a) which being situate in an approved private township, was set apart as
such under Chapter III of this Ordinance or under the Ordinance repealed by this
Ordinance, for the use and benefit of the public and is shown in the general plan
of such ownership; or
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(b) which being situate in the local authority area, the local authority is vested
with the ownership, control or management thereof by law or by deed of title for
the use and benefit of the public, or which the public has the right to use; or
(c) to which, if situate in existing private township (whether such existing
private township is or is not itself situated in a local authority area), the public or
the inhabitants have the common right, …; provided that any public place as
hereinbefore defined shall be available for use only for such purpose as it was
intended to serve, or which it may by immemorial usage have come to serve; and
provided further that nothing contained in paragraph (a) or (c) shall be deemed to
apply in respect of any private township situate in any local authority area to
which the provisions of Chapter III do not apply under or in terms of section 39,
other than any private township the establishment of which was approved before
the provisions of Chapter III …’.
Street is defined in the Town Planning Ordinance as ‘any street, road,
lane, passage or the rightofway and includes any bridge, subway,
drain, culvert or the like in a street’.
The local authorities’ powers in respect of public places (including
streets) are regulated by the Local Authorities Ordinance, No. 25 of
22
1974 (Natal Ordinance). These powers are described in sections 208
and 209 of the Natal Ordinance. Section 208 of the Natal Ordinance
provides :
‘the ownership, management and control of all public streets … and public places
within the borough and the land comprised in such streets and places shall vest
in the council which may assign names to such streets and places.’
[20] Section 209 of the Natal Ordinance provides powers to a local
authority in regards to public places. In summary, these powers are to
be exercised for the public benefit and may not be exercised in such
a manner as to authorize the deprivation or substantial deprivation of
the public of the enjoyment of its rights in or to any public street or
public place.
[21] The Natal Ordinance recognizes that public places may be put
to other uses by providing for their closure. Section 212 of the Natal
Ordinance provides for the permanent closing of a public place and
incorporates the provisions of section 211 dealing with the closure of
23
public streets. This follows upon an application to the Administrator.
Upon the closing of such public place, the position in regard to the
ownership is that it shall :
‘i. If such ownership vested in the council by Deed of Title prior to such
closing, continue so to vest in the council, and
ii. if such ownership did not so vest in the council prior to such closing, vest
in the person who is the registered owner of such land unless the Administrator,
on application by the council not later than three months after such closing,
otherwise directs, and upon such closing such land shall be free of further use as
a [street].’ (Section 211(2)(h)(i)(ii)).
[22] A literal interpretation of these provisions makes it clear that the
closure of a public place or a public street does not mean that
ownership of those lots reverts automatically to the township owner.
The consequence is that setting aside of land for public purposes
does not make that status immutable. The designation of land within
a private township as a public place has the effect that the land in
question vests in the local authority. The local authority may secure
24
its transfer into its name. Thereafter, if the local authority is of the
view that it is expedient to permanently close the public place, it may
do so following the procedure set out in section 211 read with section
212 of the Natal Ordinance. If it does this, there is no automatic right
of reversion to the original owner.
[23] The next relevant aspect to be considered is the consequence of
the closing of a public place. When a public place has been closed,
the general plan of the township falls to be amended in terms of
section 37(2) of the Land Survey Act No. 8 of 1997. The general plan
is not cancelled, either wholly or in part in that situation. A general
plan cannot be cancelled in respect of land that has been developed
and transferred. Where a development is abandoned in whole or in
part, the general plan is cancelled either wholly or in part. Section 38
of the Ordinance deals with the cancellation or amendment of a
general plan. Section 38(3) provides :
‘If the general plan of any approved private township be totally or partially
cancelled by the SurveyorGeneral under the powers vested in him by section
25
30 of the Land Survey Act, 1927 [now section 37(2) of the Land Survey Act, No.
8 of 1997], the cancelled portion of the private township shall cease to exist as a
portion of the approved private township and the ownership of all public places
within the cancelled portion vested in the local authority or in the Administrator,
… as the case may be, shall revest in the township owner, and the Registrar of
Deeds shall record such revesting and shall make the necessary endorsements
on the relevant title deeds in accordance with the law relating to the registration
of deeds.’
A revesting under this section is not absolute. Section 38(5) of the
Ordinance provides :
‘Notwithstanding anything contained in subsections 2 and 3, if any private
township referred to therein is situate within a local authority area, nothing
contained in those subsections shall apply nor shall the public places in such
private township be closed until the provisions of section 211(2)(a) to (g) of the
Local Authorities Ordinance, 1974 … have been complied with mutatis mutandis
and the closing of such public places has been approved by the Administrator in
accordance with those provisions …’
[24] Against the aforesaid legislative backdrop I now consider each
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of the applications. In the exception application under Case No.
785/03 the Defendant raised an exception to each of the claims in the
Particulars of claim on the grounds that the Particulars of Claims are :
(a) ‘Bad in law’; and
(b) ‘Fails to disclose a cause of action for the relief claimed’.
As already set out in the historical survey, the exception must be
viewed in the context of the excipient as successorinlaw and having
assumed all liabilities of its predecessor.
[25] In its Particulars of Claim, Hough contends that he is the
township owner of the private township in La Lucia Extension No. 2
and 6. As such, he contends that he enjoys certain reversionary
rights in the land set aside for use as public places within those
private townships. He claims damages in the sum of R8.2 million
together with interest thereon from the Defendant for failure to take
steps to ensure that certain properties reverted to him as owner after
they ceased to be used for their originally specified purpose. As is
27
evident from the Particulars of Claim, he has enumerated four
specific claims. Each claim relates to property which was set aside for
use as a public place when the private townships were established in
terms of the Ordinance.
[26] Hough contends that since each of the public places is no longer
being used for the purpose for which it was intended it consequently
ought to have been closed in terms of section 212 of the Natal
Ordinance. His further contention is that if such public places were
closed as contemplated by the Natal Ordinance then this would
amount to a ‘partial cancellation of the general plan’ of the Private
Township which would in turn revest him as township owner, with the
further consequence that he would become owner of the properties.
[27] The first question which arises for consideration is whether there
is an obligation on the Municipality to close public places. As is
evident from the survey of the applicable legislation, the legal
framework emerges in Chapter 3 of the Ordinance which deals with
the establishment of Private Townships. It provides the procedure for
28
those who wish to establish a private township to apply to the
Administrator (now the Premier of KwaZuluNatal). In terms of section
16(1) of the Ordinance, in granting approval for the establishment of a
private township, the Administrator provides conditions for the
establishment of the private township. I do not propose setting out the
conditions which were imposed in respect of these two townships
since they are recorded as Annexures ‘A’ and ‘B’ to Hough’s
Particulars of Claim.
[28] As is further evident from section 25 of the Ordinance the
ownership of public places vests either in an existing local authority or
in the Administrator in trust for any future local authority. Accordingly,
where a public place is vested in a local authority, whether an existing
one in terms of section 25 or after the constitution of the local
authority in terms of section 25(3) the vesting is absolute. It is not
conditional nor is it a vesting subject to a trust.
[29] The definition of a public place has already been considered.
The powers of the local authority with regard to the public places are
29
also dealt with in the Natal Ordinance. Section 208 of that Ordinance
provides that ‘the ownership, the management and control of all
public places … and public places within the borough and the land
comprising such streets and places shall vest in the council which
may assign names to such streets and places.’ Section 209 of the
Natal Ordinance provides various powers to a local authority in
regard to public places. These powers are to be exercised for the
public benefit and may not be exercised in such a manner as to
authorize the deprivation or substantial deprivation of the public of the
enjoyment of its right in or to any public street or public place.
[30] However, the Natal Ordinance recognizes that public places
may be put to other uses. Section 212 of the Natal Ordinance
provides for the permanent closing of a public place and incorporates
section 211 dealing with public streets. This follows upon an
application to the Administrator. Upon the closing of such public
place :
‘(i) if such ownership vested in the council by deed of title prior to such
30
closing, continue so to vest in the council, and
(ii) if such ownership did not so vest in the council prior to such closing, vest
in the person who is the registered owner of such land unless the Administrator,
on application by the council not later than three months after such closing
otherwise directs, and upon such closing such land shall be free of further use as
a [street].’
[31] Accordingly, reversion to the township owner is never automatic.
What is further amply evident from the aforegoing, is that the
designation of land as a public place when a township is developed
does not mean that such status is immutable. As is evident from
section 26(4)ter of the Ordinance, the designation of land within the
private township as a public place has the effect that the land in
question vests in the local authority. The local authority incurs no
obligation in relation to that land and may secure that it is transferred
into its name. Thereafter, if the local authority is of the view that it is
expedient to permanently close the public place, it may do so by
following the procedure set out in section 211 read with section 212
of the Natal Ordinance. Even if this is done, there is no automatic
31
right of reversion to the original owner. Accordingly, Hough’s first
contention namely that the local authority was obliged to close these
public places is bad in law.
[32] His further contention is that the closing of a public place results
in the partial cancellation of the General Plan of the Township. I
accordingly consider this aspect. As is evident from section 21 of the
Town Planning Ordinance, an applicant for the approval of a private
township is required to lodge a General Plan of the township with the
SurveyorGeneral and have the plan approved by the Surveyor
General. Where a public place has been closed, the General Plan of
the Township falls to be amended in terms of section 37(2) of the
Land Survey Act No. 8 of 1997. The general plan is not cancelled
either wholly or in part in that situation. A general plan cannot be
cancelled in respect of land that has been developed and transferred.
See Schapenrome Investments (EDMS) BPK en Andere v
Sandtonse Stadsraad en ‘n Ander 1994(2) SA 34 (AD) at 40BG.
See also section 212(2) read with section 211(2)(1) of the Natal
Ordinance which specifically requires an amendment.
32
[33] Hough’s general complaint is that if these public places were
permanently closed, ownership therein would revert to him as
township owner by virtue of the provisions of section 38(3) of the
Ordinance. As has already been pointed out the closure of a public
place does not in law result in the cancellation of the general plan.
Therefore, in my view, section 38(3) is inapplicable. Hough has
overlooked the provisions of section 38(5) of the Ordinance which
provides that notwithstanding the provisions of section 38(2) and (3)
thereof, the closure of public places within a local authority area must
be governed by the provisions of section 211 of the Natal Ordinance.
The provisions of section 211(2)(h) incorporated for public places
through section 212(1) provides for the vesting of closed public
places in the local authority if such ownership vested in that local
authority by deed of title prior to such closing or in the person who is
the registered owner of land, unless the Administrator otherwise
directed after such closing.
[34] Claim No. 2 as set out in the Particulars of Claim which
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recognizes that Lot 736 vested in the Ethekwini Municipality by Deed
of Title and claim no. 2 which recognizes that Lot 666 vested in the
Municipality by Deed of Title and claim no. 4 four dealing with Lot
1242 which recognizes that such public places vested in the
Administator by Deed of Title are immune from any of the Plaintiff’s
claims. Even on closing of the public places they would remain
vested in the Municipality.
[35] I now consider the refrain which permeates Hough’s claims that
the public places are held in trust. In my view, this submission also
has no foundation in the law. It was formerly the case under section
50(bis)(i) of the Private Township and Town Planning Ordinance No.
10 of 1934 that public places :
‘Shall be held in trust for the purpose or purposes which it was intended to
serve.’
[36] However, that was repealed by the Ordinance. Hough perhaps
is misled by the position which may be extant in other provinces but it
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is clear that in KwaZuluNatal there is no such constraint or limitation
on the local authorities ownership of public places and public streets.
[37] Hough’s further and final complaint relates to claims 2, 3 and 4.
He contends that these properties were unlawfully transferred by title
deed to the Defendant. He does not, however, set out the basis for
the alleged illegality save on the basis of the alleged ‘trust’ which, as I
have already pointed out, is misconceived.
[38] Section 208 of the Natal Ordinance provides that the ownership,
management and control of public streets and public places vests in
local authorities. Section 212(1) read with section 211(2)(h) of the
Natal Ordinance contemplates that public places may be transferred
to local authorities by ‘Deed of Title’. Although a local authorities’
powers in respect of public places in section 209 of the Natal
Ordinance prevents ‘the deprivation or substantial deprivation of the
public of the enjoyment of its right in or to any public street or public
place’, the provisions of that section nowhere prevent the transfer of
public places by Deeds of Transfer into the name of the local
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authority. Section 26(ter) of the Ordinance contemplates that the local
authority has the power to alienate the land given to it for public
purposes as contemplated by section 233 of the Natal Ordinance. It is
thus clear that the municipality’s ownership of the public places is one
of complete ownership and which further means that the township
owner loses its dominium over the land completely. See Parow
Municipality v Joyce and McGregor (Pty) Ltd 1974(1) SA 161 (C)
at 166H.
[39] In my view, the Particulars of Claim fail to disclose a cause of
action for the relief claimed. The exception must therefore be upheld
and the Particulars of Claim be struck out. I shall deal further with the
same in the order herein below.
[40] The next application brought by Hough is the application under
Case No. 848/03. Here he claimed that as a township owner he has
certain rights in the lots in La Lucia which were set aside for ‘public
purposes’ when the private township and its extension were
established by La Lucia Property Investments Limited. Hough claims
36
that these lots were given to the municipality ‘in trust’ and that such
ownership was not true ownership. Accordingly, he contends that
transfers by title deed of certain lots in La Lucia were unlawful and
seeks an order setting these aside. The claims are made in respect of
Lots 724, 733, 800 and 801.
[41] In addition, Hough seeks an order directing the Municipality to
take steps to permanently close certain lots in La Lucia ostensibly
because the Ethekwini Municipality’s predecessors had resolved to
do so. His argument is that if such lots are permanently closed then
they will vest in him pursuant to section 33 of the Ordinance because
such closure would constitute a partial cancellation of the township
plan.
[42] Hough’s claims are dependent on the following legal
contentions :
(a) There is an obligation on the Local Authority to close public
places if it resolves to do so even if it subsequently rescinds that
37
resolution as happened in this case;
(b) There is an obligation on the Local Authority to close public
places if they cease to be used for the purpose for which they were
originally designated;
(c) If a public place is closed which results in partial cancellation of
the General Plan of the Township, that entitles the township owner to
invoke section 38(3) of the Ordinance to recover the land;
(d) Public places are held in trust by the Local Authority and this
restricts the Local Authority in dealing with these properties and
confers rights on the township owner;
(e) On the basis of such trust he contends transfer of certain
properties to the respondent’s predecessors were unlawful.
I have already adverted to Hough’s legal contentions apropos (d) and
(e) and I do not propose to repeat the same.
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[43] The immediate question which arises is whether there is an
obligation on the Municipality to close public places. Hough’s
contention is that because the claimed pieces of land are not being
used for the originally stated purpose, something which is strenuously
disputed by the Municipality, there is an obligation to close them. As I
have adverted to earlier, the relevant legal framework emerges from
Chapter 3 of the Town Planning Ordinance which deals with the
establishment of private townships. As I have already stated where a
public place vests in a local authority whether an existing one in
terms of section 25(1) or after the constitution of a local authority in
terms of section 25(3) that vesting is absolute. It is not conditional nor
is such vesting subject to a trust.
[44] I have already considered the meaning of a public place and the
provisions of section 208 and 209 of the Natal Ordinance. The Natal
Ordinance recognizes that public places may be put to other uses. As
I have said earlier, section 212 of the Natal Ordinance provides for
the permanent closing of the public place and incorporates section
39
211 dealing with public streets. As was apparent from a discussion of
those provisions, reversion to the township owner is never automatic.
If the local authority is of the view that it is expedient to permanently
close a public place, it may do so by following the procedure set out
in section 211 read with section 212 of the Natal Ordinance. These
sections do not confer upon the township owner a right to demand
that public places be closed.
[45] Hough’s first contention namely, that local authorities are
obliged to close these public places because of a change of use,
even assuming that there has been one, is in my view, bad in law and
this is fatal to his claims in prayers 3, 4 and 5. His other ground for
advancing this contention is a resolution by the old borough of
Umhlanga. This resolution was rescinded on the 30 August 1976 and
accordingly that resolution provides no foundation for the relief
sought. Nor is there any merit in his argument that in closing a public
place will result in the partial cancellation of the General Plan of
Township. As is evident from what I have said above, a General Plan
cannot be cancelled in respect of land that has been developed and
40
transferred. Section 38 of the Town Planning Ordinance which deals
with the cancellation or amendment of the General Plan does not in
law result in the cancellation of the General Plan. The Plaintiff’s
contention that some of the properties were unlawfully transferred by
title deed to the Ethekwini Municipality is not elaborated upon save on
the basis of an alleged trust which, as I have already indicated, is
misconceived.
[46] I do not propose going through the various affidavits in this
application since a study of these will reveal that there is no cogent
evidence that the public places between the various lots have been
physically closed. Where there has been a closure it is not
established that the Ethekwini Municipality or its predecessor
consented to such closure or, in the absence of any evidence that
public places were closed in accordance with the Natal Ordinance,
the Municipality’s version that the land continues to be held for public
purposes must be accepted on the papers. Unilateral action by some
property owners in closing, alternatively, fencing parts of any lot does
not mean that the Ethekwini Municipality has sanctioned this conduct
41
and it must therefore be concluded that such closure by lot owners is
unilateral and unlawful.
[47] Finally, it is necessary for me to consider the tardiness of Hough
in bringing this application since the various extensions to La Lucia
were established in 1964 and 1971. Hough has provided no
explanation for the delay in instituting his investigations and in
bringing these proceedings. It is reasonable to infer that the lengthy
delays in launching these proceedings is only explicable on the basis
that the company and its predecessors never had any objection to the
use of the relevant properties.
[48] Hough can derive no better right than those which his
predecessors had. Although I make no positive finding on this aspect,
it is reasonable to infer that Hough’s predecessors acquiesced in the
usage to which the various lots have been put to by the Municipality.
In any event, any rights which may have accrued to the Applicant’s
predecessor, The Natal Estates Limited or the company in its own
right have long since prescribed and cease to be enforceable in terms
42
of the provisions of section 10 read with section 11(d) of the
Prescription Act No. 68 of 1969. Additionally, though if the ‘rights’
claimed by Hough are viewed as being of the nature of a servitude
and such rights would have been extinguished by acquisitive
prescription in terms of section 7(1) of the Prescription Act. In my
view, this application therefore must also be dismissed.
[49] I now turn to consider the application under Case No. 1175/03.
In this matter, Hough seeks an order directing transfer of Lots 754
and 802 from the Ethekwini Municipality to him. These lots were put
aside for Local Authority purposes when the private township of La
Lucia Extension No. 2 was established. They were transferred to the
Ethekwini Municipality’s predecessor in law, the La Lucia Health
Committee in 1964 by the Natal Estates Limited prior to the company
acquiring any interest in the township or even being in existence. It is
Hough’s contention that he, as township owner, is entitled to have the
lots transferred to him because they are no longer being used for the
purposes for which they were set aside when La Lucia was
established. In amplification, he claims that such Lots were
43
transferred to the Municipality ‘in trust’ and such transfer did not
constitute ‘ownership in the true sense of the word’.
[50] It is further Hough’s contention that these lots were transferred
to the Municipality’s predecessor in title by way of a donation subject
to a modus. Hough argues that the Municipality has breached the
modus because it is using the lots for public purposes and not for
Local Authority purposes.
[51] What is clear from the affidavits filed in the matter is that the
transfer of the lots in question did not occur pursuant to any donation
from Hough or his predecessor. It occurred ex lege pursuant to the
provisions of section 26(1) of the Ordinance. The Natal Estates
Limited applied for permission to establish the private township of La
Lucia. It was done in compliance with the conditions upon which the
Natal Estates Limited was granted the application prior to Hough or
the company acquiring any interest in the township. The transfer
occurred in accordance with the legislative framework for the
establishment of a private township in that the lots were transferred
44
by the Natal Estates Limited to the Ethekwini Municipality’s
predecessor in law, the La Lucia Health Committee, consequent upon
the provisions of section 26(1) of the Ordinance. The transfer of these
lots vested in the Respondent full dominium. As is evident from the
title deeds passing transfer of the lots to the Municipality (see
Answering Affidavit – Wilms – Annexure A) the Natal Estates Limited
fulfilled its statutory obligation to pass transfer to the Ethekwini
Municipality’s predecessors in law. Transfer occurred on the 17
November 1964 and it was recorded that the Company’s predecessor
renounced all rights to the lots: ‘Renouncing all the rights and titles
which the said Natal Estates Limited heretofore had to the premises,
did in consequence also acknowledge it to be entirely disposed of,
and disentitled to the same …’ (Emphasis added). Natal Estates
Limited did not reserve any residual rights in respect of these lots and
the transfer of the lots vested in the Municipality and the successors
of the Municipality complete dominium.
[52] Further, it is undisputed on the papers that Hough’s
predecessors only acquired the property known as La Lucia
45
(Extension No. 2) in 1968. It would, thus, not have acquired any rights
to the lots given as they had been transferred to the La Lucia Health
Committee approximately four years earlier. It is apparent from the
aforegoing that the transfer was compulsory in terms of the
Ordinance read with the conditions of establishment and was not
pursuant to a donation.
[53] I propose, in passing, to advert to the factual position of the lots
in question. As is evident from the Answering Affidavit of Lekha
Allopi, Lot 754 remains in use as a public open space and Lot 802 is
used to park vehicles at a picnic spot used by members of the public
and as an access spot to the beach. In my view, such use is
consistent with the uses to which the Municipality may lawfully put
them.
[54] Section 16(1)(f) of the Town Planning Ordinance empowers the
Administrator to draft conditions reserving lots in a private township
for local authority purposes including a wide range of uses ‘or the use
and benefit or in the general interests of the public …’. Accordingly,
46
‘local authority’ usage overlaps with the public places usage to which
the lots are currently put. In any event, section 26(4)(ter) of the
Ordinance provides that the local authority is entitled to use land
transferred to it for local authority purposes or for any other purpose
where it is not required for the public purpose it was intended to
serve.
[55] Therefore, Hough’s claims that the lots are being used for
purposes other than those for which they were set aside and
transferred, has no merit. What I have said earlier apropos
prescription applies with equal force to this application. In my view,
this application therefore also falls to be dismissed.
[56] I now turn to the final application in which the Ethekwini
Municipality is the Applicant. In this application, the Ethekwini
Municipality, applied as a matter of urgency on the 23 November
2004, for an interdict against Hough. The relief granted has been set
out in the introduction to my Judgment. The Second Respondent in
the matter, the MEC for Traditional and Local Government Affairs,
47
has indicated its intention to abide by the decision of the Court. The
fate of this application is closely tied in with the fate of the three
applications already considered.
[57] In any event, it is common cause on the papers that the
ownership and management control of the property sought to be
closed by Hough vests in the Ethekwini Municipality by virtue of
section 208 of the Natal Ordinance and sections 25 and 26 of the
Town Planning Ordinance. Hough applied to the Second Respondent
in terms of section 38(5) of the Town Planning Ordinance to
permanently close those properties without invoking the processes in
sections 211 and 212 of the Natal Ordinance. The Second
Respondent declined to exercise his powers in terms of section 38(5)
of the Town Planning Ordinance and directed that the provisions of
section 211 of the Natal Ordinance had to be invoked.
[58] The company then made application to the Municipality to
invoke the closure provisions of section 211 of the Natal Ordinance
and it thereafter placed a notice in the newspaper and gave notice to
48
the members of the public that it intended permanently closing the
public places and roads in terms of section 211 of the Natal
Ordinance by order of the Second Respondent. It is common cause
that no such order issued from the Second Respondent. The
company’s contention that the Applicant consented to these closures
in terms of the Natal Ordinance is not borne out by the affidavits.
What the company did was to wrongly interpret a record made by the
staff of the Municipality that they had no objection to the company
applying to the Second Respondent in terms of section 38(1) of the
Town Planning Ordinance to mean that the Municipality had
consented. Such inference is not only untenable but unwarranted
since the employees of the Municipality could not and did not have
powers to consent.
[59] Sections 211 and 212 of the Natal Ordinance are unequivocally
clear and vest power in the Municipality to effect permanent closure
of public streets and public places. What the company attempted to
do was to unilaterally usurp these statutory powers and in doing so it
clearly acted unlawfully. The aim of Hough is very clear as is evident
49
from his Answering Affidavit that he intends developing a substantial
residential development and thereby depriving the public of the use of
these properties which properties, as the Founding Affidavit shows, is
presently being used for public purposes. In my view, the interdict has
to be made final.
[60] I accordingly make the following orders :
CASE NO. 785/03 :
1.1 The particulars of claim fail to disclose a cause of action for the
relief claimed and accordingly the exceptions are upheld and the
particulars of claim are struck out.
1.2 The Plaintiff, Hendrik Petrus Hough and La Lucia Property
Investments Limited, are to pay the costs of the application, jointly
and severally, the one paying the other to be absolved, such costs to
include those costs consequent upon the employment of two counsel.
CASE NO. 848/03 :
50
The application is dismissed with costs, such costs to be paid jointly
and severally between Hendrik Petrus Hough and La Lucia
Investments Limited and to include those consequent upon the
employment of two counsel.
CASE NO. 1175/03 :
The application is dismissed with costs, such costs to be paid jointly
and severally between Hendrik Petrus Hough and La Lucia
Investments Limited and to include those consequent upon the
employment of two counsel.
CASE NO. 9433/04 :
1. It is hereby declared that Hendrik Petrus Hough’s purported
closure, by public notice to take effect on 22 November 2004, in
terms of the Local Authorities (Natal) Ordinance, No. 25 of 1974, of
the following properties :
(a) a road between Lots 1067 and 1068 and a road between Lots
1072 and 1073 or Lots 1092 and 1093, in Private Township La Lucia
51
(Extension No. 5);
(b) a road adjacent to Lot 771 and a circular link in Private
Township La Lucia (Extension No. 2);
(c) a road adjacent to a circular link and Remainder 9 of Lot La
Lucia No. 14634;
(d) public places Lots 1046, 1047 and 1048 in Private Township La
Lucia (Extension No. 2);
is unlawful, invalid and of no force and effect.
2. Hendrik Petrus Hough and La Lucia Investments Limited are
ordered to pay the costs of the application, such costs are to be paid
jointly and severally and are to include those consequent upon the
employment of two counsel.
52
____________________
C.N. PATEL
Judge of the High CourtNatal Provincial Division
53
Date of hearing : 20 June 2005
Date of Judgment : 7 June 2006
Counsel for Plaintiff/Applicant : Mr. H.P. Hough (In Person)
Counsel for Defendant/Respondent : Mr. M.J.D. Wallis S.C., with him,
Ms. A.A. Gabriel
Instructed by :
DE VILLIERS, EVANS & PETIT41 Acutt StreetDURBAN(R. Evans/DJ/E17613304)
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