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CASE NO 8049/06

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

In the matter between

THE TRUSTEES FOR THE TIME BEING OF THE

THE NORWEGIAN SETTLERS CHURCH Plaintiffs

and

THE MINISTER OF PUBLIC WORKS Defendant

____________________________________________________________________________

J U D G M E N T

Delivered on 24 February 2009

WALLIS J.

[1] On 14 July 1882 a congregation of the Norwegian Evangelical Lutheran Church emigrated from Aalesund, Norway destined for what was then the Colony of Natal. They landed at Port Shepstone on 29 August 1882. The congregation emigrated as a single community under the auspices of the Land Immigration Board of the then Government of Natal, which Board had been constituted under Law 21 of 1876 (Natal). Apparently in their native Norway the immigrants were a fishing community, but on their arrival in South Africa they were allocated lots which they used for agricultural purposes in a 7000 acre area known as the Marburg Settlement. Initially the settlement area was divided into fifty lots of 100 acres each with the balance of some 2000 acres being set aside as commonage.¹

[2] The settlers were accompanied by their own pastor and teacher, the Reverend E. Berg. According to a letter written by the Rev. Berg to Colonel Mitchell, the Chairman of the Immigration Board on 30 August 1882, he had been allocated Lot 16 and he requested the Board to allocate Lot 17 to him in addition because, so he said, his salary was insufficient to support him and his family and he would also have to combine farming with his pastoral duties. On 14 September 1882 the secretary of the Board advised the Rev. Berg that the Board had resolved that Lot 17 should be given to him in trust, as pastor, and that the land should be vested in the hands of trustees, for church and educational purposes and for glebe land. That letter concluded as follows :

“No charge will be made for this land, but the Pastor for the time being, will have the full and sole use of it as Glebe land, due regard being given to the requirements of the Church and Schools.”

[3] Over the next few years correspondence passed back and forth concerning the appointment of trustees for the purpose of holding the property and at some stage there are indications of a measure of division in the community giving rise to the Rev. Berg resigning his post and subsequently being recalled to it. In the course of this correspondence and the debates that lay behind it agreement appears to have been reached that ten acres of Lot 17 would suffice for the church and educational purposes contemplated in the gift and the remaining 90 acres would be used as glebe land for the benefit of the pastor. According to the correspondence there was an endeavour by Rev. Berg to secure the 90 acres for his own benefit free of any trust, but this was never accepted by the Board. It appears that by around 1887 it was settled that Lot 17 should be held by trustees for the benefit of the church and for educational purposes amongst the congregation, with 90 acres to be available as glebe land for the benefit of the pastor.

[4] This situation was regularised by way of a Deed of Grant executed on 25 September 1908 under which the then governor of the Colony of Natal, acting on behalf of King Edward VII granted in freehold to certain named trustees:

“… as trustees in trust for the inhabitants of the Settlement of Marburg, their successors in office and assigns, who may, from time to time, be appointed … the Lot No.17 of the Settlement of Marburg, in the county of Alfred, containing 100 Acres, more or less, …”…”

The purpose of the grant was expressed as follows:

“To hold the same unto the said trustees and their successors in office, in trust for the purposes of schools and other public purposes of the settlement known as Marburg with full power and authority henceforth to possess the same in perpetuity, provided, however, that the said land shall not be alienated, nor shall it, without the consent of His Excellency the Governor in writing being first had and obtained, be mortgaged, charged or leased.”

[5] In 1972 proceedings were brought before this court to rectify the terms of the grant on the basis that it did not accord with the original arrangements between the community and the Natal Immigration Board and that application was granted. In the result the conditions under which the land was then held read:

“to hold the same until the said trustees and their successors in office in trust as to 10 acres for the purposes of the Marburg Norwegian Evangelical Lutheran Church at Marburg, province of Natal and for school purposes for the congregation of the said church, and as to the remaining 90 acres as and for Glebe Land to be utilised by the Pastor of the said church for the time being to aid in his sustenance of the settlement known as Marburg, with full power and authority henceforth to possess the same in perpetuity, provided, however, that the said land should not be alienated, nor shall it, without the consent of His Excellency the Governor in writing be first had and obtained, be mortgaged, charged or leased.”

I suspect that the words “of the settlement known as Marburg” should also have been deleted when the deed was rectified, but fortunately this does not affect matters.

[6] The effect of this rectification was to narrow considerably the purposes for which Lot 17 could be used. These were no longer general school and public purposes, but were now limited to purposes specific to the activities of the Norwegian Settlers Church and its pastor. This becomes of central importance in the determination of the issues in this case. Marburg has changed substantially since 1882 but the work of the church has continued. Not least amongst those changes has been the fact that the pastor of the church has not for many years needed to conduct farming operations on the glebe land in order to supplement his stipend. Instead, for many years, the land was leased for the growing of sugar cane.

[7] In the mid 1990’s the church embarked on an ambitious programme of expansion involving the construction of a care centre for patients suffering from Aids, a gymnasium for the particular purpose of reaching out to young people in the area, the provision of crèches and a number of other activities linked to the growth of the church and its outreach into the local community. All of this was highly commendable but it required finance. In order to realise this the decision was taken to dispose of portion of Lot 17 to a member of the church who agreed to pay R1 500 000.00 for some 25 hectares of land that had formerly formed part of the glebe land. Mr Neethling, who gave evidence on behalf of the plaintiffs, explained that this was not a market price but represented the funds that the church needed and that the purchaser, a Mr Robinson, who was also a member of the church, regarded a portion of the price as being his tithe or contribution to the church.

[8] There then followed a lengthy process during which the church, represented by its attorney, Mr D Kent, sought to address the issues arising from the sale of this land to Mr Robinson. This process appears to have commenced in 1997. On 28 July 1998 approval was given for the sub-division of Lot 17 in terms of the Subdivision of Agricultural Land Act, 1970. Thereafter attention was focussed on the rectified provisions of the deed of grant that are quoted above and various routes were taken to seek the removal of the restrictions embodied in that provision. It is unnecessary to trace that process. It culminated with a letter dated 1 November 2002 addressed by Mr Kent to the Director of State Property Holdings in the Department of Public Works explaining that the trustees wished to dispose of 25.7206 hectares forming part of the original lot and explaining that the disposal of this piece of land and the use of the funds by the church would assist the church in establishing residential accommodation for its pastors and facilities for the church community. The terms of the request were expressed as follows:

“1. The State President’s consent in terms of the State Land Disposal Act No.48 of 1961 for

1.1 The sub-division and alienation of the southern portion of Erf 17 Marburg Settlement No.7336 in extent 25.7206 hectares …

OR ALTERNATIVELY

1.2 The cancellation of the restrictive proviso contained in the vesting clause of the Deed of Grant in terms of section 2A(2) of the State Land Disposal Act No.48 of 1961 and the direction to the Registrar of Deeds to endorse the Deed of Grant accordingly.”

[9] The response to this request from the Department of Public Works was that the Department was prepared to agree to either of these requests subject to the payment by Mr Kent’s clients of compensation representing the current open-market value of the affected land. This was conveyed to Mr Kent in a letter dated 22 January 2003. He wrote on 24 February 2003 to indicate that his clients would prefer to obtain consent for the sub-division and alienation of the southern portion of erf 17. He went on to ask whether there was any chance of the compensation being waived as the Department was dealing with an ecclesiastical institution. No response to this latter enquiry appears in the documents placed before me and valuations for the property were obtained by both the church and the Department. Eventually the Land Affairs Board approved a valuation of R750 000.00 in respect of the open-market value of the portion of Lot 17 that was being sold. This amount was paid and on 28 August 2004 Mr Meyering, in his capacity as director in the Department of Public Works and acting under delegated powers from the Minister provided a written consent to the alienation of land and removal of restrictive conditions. The relevant portion of the consent reads as follows:

“I, the undersigned, Andre Johan Meyering … do hereby consent to

1. The sub-division and alienation of a portion of Lot 17 Marburg 7336 ET District of Port Shepstone, KwaZulu-Natal, being Portion 1 of Lot 17 Marburg Settlement 7336 ET …

AND

2. The removal of the following restrictive condition pertaining to Portion 1of Lot 17 Marburg Settlement 7336 ET :

‘in trust as to 10 acres for the purposes of the Marburg Norwegian Evangelical Lutheran Church at Marburg, Province of Natal and for school purposes for the congregation the said Church, and as to the remaining 90 acres as for Glebe land to be utilised by the Pastor of the said Church for the time being to aid in his sustenance.’

This condition as appears fully in the Deed of Grant No.7338/1908.”

[10] The present action is directed at recovering the amount of R750 000.00 paid in order to secure this consent. The primary basis for the claim is that the amount was demanded and paid under an error of law in that both parties believed that the terms of the original grant remained in force whereas in truth they had been abolished by virtue of the provisions of the Abolition of Certain Title Conditions Act 43 of 1999 (“the Abolition Act”). In the alternative the plaintiffs sought an order reviewing and setting aside in terms of the provisions of PAJA² the decision by the Minister to require payment of the sum of R750 000.00 in order to secure consent to the sub-division and alienation and the removal of the condition.

[11] It is apparent from the evidence of Mr Meyering, who was the official who signed the consent and at the time was the head of the section in the Department of Public Works that dealt with such conditions, that he acted and intended to act in terms of the provisions of section 2A of the State Land Disposal Act, No 48 of 1961, in granting the consent. He testified that in those circumstances the policy followed by the Department in considering such requests was and is to require the party making the request to pay the free market value of the property in question. He referred in this regard to the provisions in the Departmental Code. This evidence was not challenged.

[12] Against that background the parties were agreed that if in fact the consent of the President to the alienation and the removal of the condition was not in law required then the requirement that this amount be paid had not been lawfully imposed and accordingly it is recoverable by the plaintiffs. It is unnecessary in the light of that agreement for me to determine under which of the condictiones the plaintiffs’ claim lay. I turn then to a consideration of the provisions of the Abolition Act .

[13] The long title of the Act records that it is:

“To provide for the abolition of certain conditions in terms of which the consent or permission of the holder of an office under the Republic, the former Union of South Africa or any dominium (sic), colony or republic which preceded the former Union of South Africa, is required for the alienation or transfer of immovable property from one person to another; and to provide for matters connected therewith.” (Presumably the word dominium should in fact read Dominion)

[14] Section 1(1) of the Abolition Act reads as follows:

“Notwithstanding anything to the contrary contained in any law, but subject to section 2, any condition registered against any title before the commencement of this Act, whereby the consent or permission of the holder of an office under the Republic, the former Union of South Africa or any dominium, colony or republic which preceded the former Union of South Africa is required for the alienation or transfer of immovable property from one person to another, is hereby abolished.”

[15] Although Mr Seggie, who appeared for the plaintiffs, initially sought to argue otherwise, in my view the proper construction of the language of the provisions of the Deed of Grant is that it contains an outright prohibition on alienation joined with a prohibition on mortgaging, charging or leasing the property without the consent of the Governor. The attempt to suggest that the words “without the consent of His Excellency the Governor in writing being first had and obtained” qualify both the prohibition on alienation and the prohibition on mortgaging, charging or leasing the property remove those words from their current position in the clause and place them either before or after the two prohibitions embodied in the words:

“Shall not be alienated, nor shall it … be mortgaged, charged or leased.”

As a matter of English grammar, in their current position in the clause they qualify only the latter prohibition and not the former.

[16] Recognising this difficulty Mr Seggie pointed out that even where the Deed contains a prohibition on alienation that is apparently absolute in its terms it is always open to the person who made the grant embodied in the Deed or their successor to waive that condition.³ He submitted that in principle there is nothing to distinguish a clause in a deed that prohibits alienation without the consent of a functionary and a clause that, on its face, is an absolute prohibition on alienation, because in the latter case it is always open to the relevant functionary to waive that clause and consent to the alienation. On that basis he submitted that the prohibition on alienation in the present Deed of Grant fell within the terms of section 1(1) of the Abolition Act and was accordingly abolished by that provision.⁴

[17] Mr Nxusani, who appeared for the defendant, accepted this construction of section 1(1) and in my view he was correct to do so. The purpose of the Act, as reflected in the memorandum on the objects of the Bill was to lift the burden resting on the staff of the government departments concerned arising from requests either for consent in terms of these conditions or that the conditions be cancelled. The memorandum records that:

“In relation to some of the enquiries it is also not clear whether the Administration Land Affairs is in law the competent authority to grant such consent. In many cases it is virtually impossible to establish who is the current successor to the functionary mentioned in the title deed (eg the Governor of Natal). This not only involves a lot of time-consuming research but also creates legal uncertainty.

In certain categories of cases, the requirement of consent is no more than the relic of an historical situation which is no longer relevant. In these cases, the granting of consent is a pure technicality. However, complying with the technicality takes a good deal of the time of staff in the Departments concerned, and delays the development and use of the land. The Bill has thus been prepared to provide for the abolition of those types of conditions.”

[18] In my view therefore Mr Seggie’s contention is correct. The intention of the Bill was to remove from the workload of the relevant government departments the need to consider applications for consent to the alienation of immovable property in terms of conditions to be found in deeds such as the Deed of Grant in the present case. I cannot see that the administrative burden would have been significantly different in the case of a request for the waiver or cancellation of a condition couched in terms that on its face imposed an absolute prohibition on alienation. The present is clearly a case where the condition is a relic of an historical situation that has long since ceased to be relevant. In the circumstances seeking the cancellation of the condition would have been a technicality that might have involved considerable time and effort in, for example, identifying the successor to the Governor of Natal. It would involve the same enquiry as would have been necessary had the request been one for consent in a situation where the clause prohibited alienation without the consent of the Governor of Natal.

[19] In my view therefore the provisions of section 1(1) of the Abolition Act apply to the prohibition on alienation contained in the present Deed of Grant notwithstanding the fact that it is not expressly stated that such alienation can take place with the consent of the Governor of Natal. However, that conclusion does not resolve the plaintiffs’ difficulties because the same clause, as rectified in 1972, limited the purposes for which Lot 17 could be used on the basis that 10 acres were for the purposes of the Marburg Norwegian Evangelical Lutheran Church at Marburg and for school purposes for the congregation of the said church and as to the remaining 90 acres the property was to be used as glebe land by the pastor of the church. Even if one accepts that the portion of land to be used for church purposes forms part of the land reserved for church purposes the position would be that the property sold to Mr Robinson was property that could only be used as glebe land by the pastor of the church.

[20] Mr Seggie very fairly conceded this difficulty and it emerged in the course of argument that the only basis upon which it could be overcome in terms of the Abolition Act would be if the effect of the abolition of the condition imposing a restraint on alienation of the property was also to abolish those conditions in the title deed governing the use to which the property could be put that were inconsistent with a right of free alienation of the property. In this regard Mr Seggie did not contend that the Act had inadvertently and sub silentio abolished all conditions of use attaching to properties that were also the subject of restraints on alienation. Firstly there is nothing in the Act that suggests that this would be the effect of abolishing the restraints on alienation. Secondly, and to the extent that one may have regard to the statement of the purposes of the statute contained in the memorandum accompanying the Bill to parliament, it was there expressly said that it was not the intention to derogate from other legislation such as section 2A of the State Disposal Act 1961 making provision for the cancellation, amendment or suspension of conditions. in respect of conditions regarding inter alia the use to which the land could be put. Instead Mr Seggie confined his argument to the proposition that the particular conditions in this instance were so intimately connected to the ownership of the property in trust for the stated purposes connected to the church’s activities, that the property could not be alienated and those conditions still be met. Accordingly he submitted that in the present case it was a necessary implication of the statutory abolition of the restraint on alienation, that the further conditions requiring that it be used for the purposes of the church must also have been abolished.

[21] There is a certain appeal to Mr Seggie’s contentions, in that it seems incongruous that the statute should abolish the condition prohibiting alienation in the Deed of Grant in respect of Lot 17, whilst leaving intact provisions governing its use that are incompatible with such alienation. However, on the other hand, it seems equally incongruous to interpret a statute directed at repealing conditions of type A, as having the effect in addition to that of repealing certain conditions of type B which the statute does not mention at all. The question is which of these two incongruous situations is to prevail.

[22] Mr Seggie did not cite and I am not aware of any authority that supports the notion of such a repeal by necessary implication. The authorities of which I am aware, which deal with situations where subsequently enacted legislation repeals by necessary implication earlier legislation, show that such a repeal is not lightly assumed.⁵ A repeal by implication is only held to have occurred where the language used in the subsequent measure is manifestly inconsistent with that employed in the former so that there is a repugnance and contradiction that justifies the conclusion that the earlier provision has been repealed by the later.⁶

[23] Assuming that a similar principle can be applied in the present situation it is not possible in my view to imply that section 1(1) of the Abolition Act, in addition to abolishing the restraint on alienation contained in the Deed of Grant, also abolished the conditions governing the use to which the property could be put. In the first instance it must be remembered that we are dealing with general legislation, not with a provision directed specifically at this Deed of Grant. I accept that had I been dealing with the interpretation of a consent to alienation of portion of the property there would have been much to be said for the proposition that it was a necessary implication of such consent that there was also a waiver of the conditions governing the use to which the property could be put. However that implication arises because of the particular context in which one is construing the consent, not least that it is specific to a particular Deed of Grant. That context is absent from the construction of the Abolition Act.

[24] Secondly I have already drawn attention to the fact that the condition as rectified is considerably narrower than the condition as originally expressed in the Deed of Grant. I do not have evidence before me as to the extent to which conditions imposed on the use to which land could be put are couched in general terms, such as a requirement that the land be used for religious, educational or public purposes, or in terms specific to the particular beneficiary of the grant. My own impression is that it is more common for conditions to be expressed in general language. Even if that is not the case it is undoubtedly true that many such conditions are couched in perfectly general language and I can see no basis upon which it could be contended that conditions so couched would be abolished by necessary implication as the result of the abolition of restraints on alienation. Indeed, as I have noted, Mr Seggie’s submissions did not go that far. But that leaves the uncomfortable situation where the Act abolishes some conditions regulating use and not others. It seems unlikely that such an intention can be attributed to parliament.

[25] Thirdly the Act makes no mention of conditions such as those governing the use to which the property can be put. That alone is a substantial factor counting against the plaintiffs’ contention. The legislature must be taken to have been well aware of the fact that in many cases where title deeds contained restraints of alienation of the type to which the Abolition Act was clearly directed, those restraints would be coupled with provisions governing the use to which the land in question could be put. Had it been its intention to remove those use constraints at the same time it would have been relatively simple for it to have done so, yet it did not. That seems to be a further factor counting against the implication that in certain circumstances, where the conditions of use could only be complied with by the existing owner, the legislature, to borrow the language of contract, would have said that such conditions were done away with along with the restraint of alienation and that it was too obvious for that to be said in the legislation.

[26] Lastly a difficulty I have with this implication is in defining its scope and ambit. It is one thing to say that the present condition governing the use to which the property could be put is incompatible with a right freely to alienate the property and must therefore be taken to have been abolished together with the abolition of the restraint on alienation. It is, however, difficult to express in clear and general terms applicable to all cases the scope of the repeal effected by necessary implication so as to be able to identify those conditions of use that would fall away with the abolition of the restraints on alienation and those that would survive. The fact that no such general statement of the scope of an implied repeal can be made is a further factor pointing against such a repeal.

[27] For all those reasons it seems to me that it is impossible to construe section 1(1) of the Abolition Act as having an impact on the conditions attached to Lot 17 that require that it be used for certain limited purposes connected with the church. Accordingly, even though the restraint on alienation was abolished by the Abolition Act, in my view the conditions governing the use to which the property could be put remained in force. Accordingly, when the church sought to dispose of a portion of the property to Mr Robinson it was necessary for it to seek the removal of the condition in that regard, which is precisely what it did by way of the application in terms of section 2(2)A of the State Land Disposal Act.

[28] It follows from this conclusion that whilst consent to the alienation was not required a consent to the removal of the use conditions was required. It was permissible for the defendant to attach conditions to his consent and those conditions could include a requirement that a monetary sum be paid in return for the furnishing of the consent. That is what occurred in the present case. Accordingly the first ground upon which the plaintiffs advance their claim must fail.

[29] The grounds upon which the plaintiffs sought to challenge the decision to impose, a requirement that the market value of the property be paid to the State as a condition of obtaining consent to the removal of the use conditions is set out as follows in paragraph 16 of the Particulars of Claim:

“16. Such administrative action falls to be reviewed and set aside on the following grounds :

1. the administrator who took it was not authorised to do so by the empowering provision;

2. the action was materially influenced by an error of law;

3. the action was taken –

(i) for a reason not authorised by the empowering provision;

2. because irrelevant considerations were taken into account or relevant considerations were not considered;

1. the action itself –

1. is not authorised by the empowering provision; or

2. is not rationally connected to –

   27. the purpose for which it was taken;

   28. the purpose of the empowering provision;

   29. the information before the administrator; or

   30. the reasons given for it by the administrator.”

[30] Many of these were abandoned in the course of argument as Mr Seggie accepted that the complaints of error of law and lack of authority under any empowering provision could not be substantiated. In the end the heart of his argument was that the department had, in accordance with the evidence of Mr Meyering, simply adopted a fixed policy of requiring payment, without having proper regard both to the fact that this was a church and the fact that the proceeds of the sale were not to be used for private enrichment but for the benefit of the community in various ways.

[31] The difficulty with this approach is simply that, apart from Mr Kent’s query as to whether the department might consider waiving the payment in view of the fact that a church was involved, there was no attempt to persuade the department that on the particular facts of this case it was inappropriate to apply its usual policy. The plaintiffs were made aware that the decision was based on a policy, but did nothing to seek to persuade the department not to apply that policy. In those circumstances I do not see on what basis they can now complain about the application of the policy in their case.

[32] The second difficulty is that no evidential basis was laid in the course of the trial for these contentions. It is true that Mr Meyering gave evidence that he had implemented the policy. He was not, however, cross-examined on the extent to which, if any, he had taken account of the facts that were made known to him before taking that decision, such as that the seller was a church and that it was proposed to use the proceeds from the sale for church and community purposes. He was not cross-examined on the correspondence reflecting that the original allocation of land was a free gift by the government of the day. He was not asked on what basis the current government could depart from that gift by seeking to extract payment at this stage. Nor was he accused of applying the policy rigidly without having regard to these other factors and no such case was pleaded by the plaintiffs. Nor was there any exploration of the context in which the policy was prescribed and applied within the department.

[33] Where it is sought to review the decision of a functionary on the basis that the functionary has rigidly adhered to a fixed policy and thereby abdicated the discretionary power vested in her or him it is not only essential that the allegation of adherence to a rigid policy be made but also that all the facts of the matter be explored in evidence.⁷ Here that case was neither pleaded nor explored in evidence. It cannot be constructed in argument on the basis of Mr Meyering’s reference to and reliance on the policy and Mr Neethling’s evidence as to the good works that their church helped to undertake with the assistance of these funds.

[34] In my view the attempt to challenge by way of judicial review under PAJA the decision to impose a condition on the consent granted that the market value of the property disposed of be paid to the State, is without substance and must fail. It is accordingly unnecessary for me to deal with the application under section 7 of PAJA for condonation of the plaintiffs’ failure to bring these proceedings within the statutory period of 180 days.

[35] There was a further alternative cause of action pleaded on the basis that PAJA did not apply invoking the principle of legality but Mr Seggie accepted that the decision by Mr Meyering clearly constituted administrative action and accordingly did not pursue this line of argument.

[36] In the result the plaintiffs’ claim must fail and it is dismissed with costs.

DATE OF HEARING 9 AND 10 FEBRUARY 2009

DATE OF JUDGMENT 24 FEBRUARY 2009

PLAINTIFFS’ COUNSEL MR R.J. SEGGIE

PLAINTIFFS’ ATTORNEYS VENN NEMETH & HART INC

DEFENDANT’S COUNSEL MR J. NXUSANI

DEFENDANT’S ATTORNEYS STATE ATTORNEY, DURBAN

CORRESPONDENTS CAJEE SETSUBI CHETTY INC

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