THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Case No. 147/97

In the matter between:

FREDERIC JOHANNES BADENHORST
1st Appellant
HEINRICH JACOBUS BADENHORST
2nd Appellant
ETIENNE FRANS BADENHORST
3rd Appellant

and

THE SURVEYOR-GENERAL, CAPE TOWN
Respondent

Coram:

HEFER, GROSSKOPF, MARAIS, STREICHER JJA
and FARLAM AJA
Heard:

5   MARCH 1999
Delivered:
29 MARCH 1999

JUDGMENT

STREICHER JA/

STREICHER JA:
[1] 
The appellants are the trustees of the Schuster=s River Trust No
1 (Athe Trust@). They are the registered owners of a property at present
described as Remainder of Erf 766 Scarborough (Aerf 766"). The respondent
is the Surveyor-General, Cape Town. During about May 1921 the
respondent approved a general plan, S91 (AS91"), in respect of a proposed
township named The Schoester=s Kraal Township No 1 (ASchoesters Kraal
Township@) which had been laid out, surveyed and beaconed by land
surveyor Fischer. Erf 766 formed part of Schoesters Kraal Township and
was divided into 16 lots numbered 664 to 679. On 16 January 1996 the
respondent approved subdivisional diagrams in respect of the lots numbered
664 to 670 and renumbered them erven 935 to 940. However, shortly
thereafter the respondent requested the Registrar of Deeds to ensure that no
registration of transfer of the erven was effected. The respondent=s attitude

is that AS91" had been replaced by another general plan, S101 (AS101"),
which did not include erf 766, and that the subdivision was prohibited in
terms of the Land Use Planning Ordinance 15 of 1985 (Cape) (Athe Land
Use Planning Ordinance@). As a result a caveat was placed against the
transfer of the six erven. An application by the appellants for an order
declaring that the respondent acted unlawfully was dismissed by the court a
quo. This is an appeal, with the leave of the court a quo, against the
dismissal of the appellants' application.
[2] 
In terms of s 23(1) of the Land Use Planning Ordinance no
person may subdivide land except in accordance with an application
granted under s 25 of the Ordinance unless the Premier (previously the
Administrator) has exempted the subdivision from the relevant provisions
of the Ordinance.  However, s 23(2) provides that land which on the date of

commencement of the Townships Ordinance 33 of 1934 (Cape) (Athe
Townships Ordinance, 1934@) had been laid out as a township or had been
subdivided by means of an actual survey into erven and public places and
the plan of which had been registered in the office of the Surveyor-General
concerned, shall be deemed to be a confirmed subdivision for the purposes
of the Ordinance.   S 6 of the Townships Ordinance, 1934 also required the
establishment of a township and the subdivision of land to be done in
accordance with that Ordinance unless it was land which at the
commencement thereof had been laid out as a township or which had been
subdivided by means of actual survey into erven and public places and the
plan of which had been registered in the office of the Surveyor-General.    S
6 of the Townships Ordinance 13 of 1927 (Cape) (Athe Townships
Ordinance, 1927"), which was the predecessor of the Townships Ordinance,
1934, and which came into operation on 2 December 1927, contained a

similar provision in respect of the establishment of townships.
[3] 
Before the Townships Ordinance, 1927 came into operation
town planning was not regulated, otherwise  than by way of limited powers
of control granted to certain municipalities. Since erf 766 was not then
situated within a municipal area such control measures are not relevant to
this matter. Whenever an owner of a larger tract of land wanted to sell off a
piece of the land, all that was required was for a transfer diagram to be
prepared by a qualified land surveyor on which the cadastral boundaries of
the land to be transferred, were shown. These boundaries had to be noted on
the diagram of the "parent property". With the advent of township
developments it became customary to prepare general plans. These were
plans, which were normally prepared by qualified land surveyors, which
showed the proposed layout of stands and which were prepared in order to
simplify and facilitate the process of transfer diagram preparation. If, for

example, two hundred erven were to be deducted from the "parent property"
it would become progressively more difficult to show each successive
deduction on the diagram of the "parent property".
[4] 
The Schoesters Kraal Township consisted of 679 erven. Erven
664-679 (now erf 766) were separated from the rest of the township by a
roadway. Between May 1921 and July 1923 a number of the erven shown
on S 91, other than 664 - 679, were transferred to new owners. Most of the
erven were transferred in batches. As could be expected the portions of
land transferred were described as lots, with their appropriate numbers, in
the Schoesters Kraal Township No 1.
[5] 
On 13 July 1923 all the  remaining land shown on S91, was
consolidated with some additional land and transferred to Messrs Seeton
and Le Sueur. The consolidated land so transferred was described as
Scarborough Estates. The land was surveyed and beaconed by land

surveyor Fischer in May 1923 and transfer diagram no A1276/1923 in
respect thereof was approved by the respondent. According to a note on
diagram A1276/1923 one is to look at S91 for the subdivision of the land
depicted on  that plan.
[6] 
Subsequent to the aforesaid consolidation and transfer of land
Messrs Seeton and Le Sueur, on 14 November 1924, obtained a certificate
of registered title in respect of all the land depicted on  S91 excluding the
lots that had been transferred and excluding erf 766. The land in respect of
which the certificate of registered title was issued was described as
Scarborough Township. The land was surveyed and beaconed by land
surveyor Fischer in July 1923 and the diagram in respect thereof, diagram
no A2379/1923, was approved by the respondent on 8 August 1923. For the
subdivision of the property depicted on this diagram one is, according to a

note on the diagram, to look at S101. S101 is a general plan of the
Scarborough Township i.e. of the area that was previously known as the
Schoesters Kraal Township, excluding the erven that had been transferred
and excluding erf 766. It shows the locality of the lots which were excluded
at the time of transfer. In the case of lots which had been transferred in
batches it shows the outer boundaries of the batches. Save as aforesaid there
is no material difference between S91 and S101. After the approval of S101
and for some time before the Townships Ordinance, 1927 came into
operation, lots excluded from S101 were transferred and deducted with
reference to S91 and lots shown on S101 were transferred and deducted
with reference to S101.
[7] 
In 1935 the remainder of Scarborough Estates was transferred
to Scarborough Seaside Estates (Pty) Ltd which in turn, on 26 June 1936,
transferred erf 766 to Leslie Simpson. The property (erf 766), according to

diagram no 1909/1936, had been surveyed in May 1923, i.e. at the time that
the consolidated Scarborough Estates was surveyed, and the transfer
diagram was approved on 27 May 1936. The property was described as
APortion RK portion of The Scarborough Estates@. No subdivisions were
shown on the diagram but it does contain a notation to the effect that the
original diagram is no 1276 of 1923.
[8] 
The court a quo dismissed an argument by the appellants that
S91, in so far as it related to erf 766, could only be cancelled with the
consent of the owners of erven in the township or with the sanction of the
court and concluded that there had been a valid partial cancellation of the
township in respect of erf 766; that the subdivisional rights previously
attaching to erf 766 had been abandoned and that S91 had been cancelled in
so far as erf 766 was concerned. The judge a quo said:
AI am well aware that people do not lightly abandon their rights and I

am familiar with the case law which recognises this position. . . . But
I cannot see what interpretation to put upon the known facts other
than the obvious one: which in my opinion is that Messrs. Seeton and
Le Sueur, for reasons which satisfied them, resolved upon the partial
cancellation of the township in respect of erven 664 to 679; and that
effect thereto was given by the preparation, filing and acceptance of
general plan S.101. The subsequent transfer to Simpson of Portion
RK is consistent with this conclusion.@

[9] 
The appellants rely on the provisions of s 23(2) of the Land
Use Planning Ordinance. They can only succeed if on the date of
commencement of the Townships Ordinance, 1934, erf 766 had been laid
out as a township or had been subdivided by means of actual survey into
erven and public places and if the plan in respect thereof had been
registered in the office of the respondent. It is apparent from the aforegoing
and admitted by the respondent that that happened. However, the
respondent contends that S91 was cancelled and replaced by S101 with the
exception of the excluded lots specifically mentioned.

[10] In the light of the conclusion to which I came it is not
necessary to decide whether the appellants or the respondent bore the onus
of proof in respect of the defence raised by the respondent.  I shall assume
in the appellants' favour that the respondent bore such onus.
[11] The court a quo interpreted the respondent=s defence as an
assertion that the rights that had previously attached to erf 766 had been
abandoned. Strictly speaking that categorisation is not correct. A
cancellation of S91, in so far as it related to erf 766, would not, before the
Townships Ordinance, 1927 came into operation, have precluded a
subsequent subdivision of erf 766. All that was required for a subdivision
was that a transfer diagram be prepared by a qualified land surveyor. The
right to subdivide would therefore not have been affected by a cancellation
of S91.
[12] No direct evidence that S91 was replaced and cancelled by

S101 was tendered. There is also no evidence that such evidence would
have existed had such a replacement and cancellation been effected. It
follows that no adverse inference can be drawn from the fact that such
evidence was not tendered. There are however a  number of indications that
the owners of Scarborough Estates i.e. the owners of the land that formerly
comprised Schoesters Kraal Township, as well as the respondent, intended
S101 to replace S91 and thereby to cancel S91 save in so far as it related to
lots in Schoesters Kraal Township which had been transferred by 13 July
1923.
[13] Firstly, I can think of no reason and the appellants were unable
to suggest any, why Seeton and Le Sueur would not have included erf 766
in the certificate of registered title taken out by them and in the new general
plan if they still intended the whole area comprising the Schoesters Kraal
Township to constitute a township.

[14] Schoesters Kraal Township was laid out on portions of two
properties namely the farm Kogelfontein and the farm Schoesterskraal. Mr
Beyers, a land surveyor, whose supporting affidavit and replying affidavit
was filed by the appellants, suggested two reasons why S101 was framed.
Firstly, so he suggested, the new owners probably wanted to give the
property a new name namely Scarborough Township as opposed to the two
names Kogelfontein and Schoesters Kraal and, secondly, they probably
wanted to remove the boundary between Schoesterskraal and Kogelfontein.
However, that does not explain why erf 766 was omitted. Beyers said that
the reasons for not showing lots 664 to 679 on A2379/23 or S101 were
irrelevant. He added that it could simply have been an error or that the
owner could have decided not to develop that section of the township at that
stage and to save the costs of the land surveyor for including those erven. It

is so unlikely that erf 766 was omitted by error that the possibility of an
error can be excluded. Furthermore, the costs of including erf 766 which
had already been surveyed, beaconed and included in S91 would have been
minimal. In the words of appellants= own counsel AS101 did no more than to
reiterate (in identical form) S91, save insofar as it does not show Erf 766
(or Portion RK as it was then known)@. The suggestion that erf 766 was
omitted from S101 in order to save costs is therefore also without merit.
[15] Secondly, in terms of regulation 89 of the regulations
promulgated under the Land Survey Act, 9 of 1927 (Notice 1997 published
in Government Gazette 1739 of 23 November 1928) the subdivisional
diagram of a property reflected on a general plan should contain the
following note: AFor subdivision of the whole of this diagram vide General
Plan ...@. However, the subdivisional diagram of erf 766, which was
approved by the respondent in 1936, did not refer to S91 as it should have

done if S91 had not been cancelled in so far as erf 766 was concerned.
Diagram A1276/1923 does have a note on it to the effect that for
subdivision of the property comprising the Schoesters Kraal Township one
should look at S91. However, in terms of the regulation referred to, that
note should have appeared on the subdivisional diagram, if S91 was still
alive.
[16] Thirdly, regulation 10 of the regulations promulgated under    s
59 of the Deeds Registries Act, 13 of 1918 (Notice 1500 published in
Government Gazette 928 of 22 November 1918) provided that in describing
land in a deed, in the case of land situate in a township, the name of the
township should be quoted. For this reason, had S91 not been cancelled in
so far as erf 766 is concerned, one would have expected  the description of
erf 766 in subdivisional diagram 1909/1936 to have been Alots 664 - 679,
Schoester=s Kraal Township No 1". That is the way in which lots transferred

in batches between May 1921 and July 1923 and deducted from S91 were
described. However, erf 766 was described as Aportion RK portion of The
Scarborough Estates@.
[17] In my view the most probable inference that can be drawn
from the aforegoing circumstantial evidence is that the owners of erf 766
intended S101 to replace S91 and to cancel S91 in so far as it related to erf
766. Furthermore, that the respondent understood that to have been the
owners= intention and that by approving S101 he was agreeing to such
cancellation of S91.   In the absence of any evidence to the contrary, I am
satisfied that it has been proved on a balance of probabilities that S101
replaced S91 save in respect of lots that had already been sold and that S91
was thereby cancelled in so far as erf 766 was concerned.
[18] The appellants submitted that in terms of s 30(2) of the Land

Survey Act, 9 of 1927 the respondent was only empowered to cancel a
general plan with the consent of the Premier of the Province of the Western
Cape (previously the Administrator) or if ordered to do so by an order of
court and that the position prior to 2 December 1927, when the Townships
Ordinance 1927 came into operation, was the same in respect of existing
townships. However, s 30(2) was amended in 1941 and again in 1981.
Before its amendment in 1941 it provided that the Surveyor-General could
amend or alter a general plan but qualified the Surveyor-General=s authority
to do so where such amendment or alteration affected a public place within
the jurisdiction of a local authority authorized by law to close or partially
close any such public place or where it had the effect of creating a new
public place within the jurisdiction of such local authority . The appellants
also argued that the practice appeared to have been that a court order was
required for the approval of a new general plan or  the alteration of an

existing general plan. In this regard they relied on Marais v Surveyor-
General 1930 CPD 291 (AMarais@) and Ex parte Mossel River Estate Co
Ltd 19 CTR 1072 (AMossel@). In Marais the Surveyor-General refused to
register a new general plan in respect of portion of a township without an
order of court. However, from the petition in the matter it appears that the
alteration of the existing general plan eliminated existing roads and
substituted other roads therefor. In Mossel the court=s sanction was sought
and granted in respect of the diversion of a portion of a road. In the present
case no public places were affected by the alteration of the existing general
plan. It follows that neither the Land Survey Act, 9 of 1927 nor the two
cases referred to, support or are authority for the proposition that an order
of court was required for the alteration in question. No other authority was
referred to in support of the contention and there would appear to be no
basis for finding that the law was as suggested by the appellants. I therefore

conclude that the cancellation in question did not require the sanction of the
court.

[19] The appeal is dismissed with costs.

____________________
P E STREICHER
JUDGE OF APPEAL

Concur:

Hefer JA
Grosskopf JA
Marais JA
Farlam AJA