THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 200/2019

In the matter between:
STAUFEN INVESTMENTS (PTY) LTD
APPELLANT

and

THE MINISTER OF PUBLIC WORKS
FIRST RESPONDENT
ESKOM HOLDINGS SOC LTD
SECOND RESPONDENT
REGISTRAR OF DEEDS, CAPE TOWN
THIRD RESPONDENT

Neutral citation: Staufen Investments (Pty) Ltd v The Minister of Public Works,
Eskom Holdings SOC Ltd & Registrar of Deeds, Cape Town [2020] ZASCA 18
(25 March 2020)

Coram:
CACHALIA, SWAIN and NICHOLLS JJA and LEDWABA
and KOEN AJJA

Heard:
28 February 2020

Delivered:
25 March 2020

Summary: Immovable property – expropriation of servitudes – administrative
law – private property owned by appellant unlawfully occupied by second
respondent - first respondent lawfully approving expropriation of servitude
rights – second respondent’s occupation no longer unlawful – Promotion of
Administrative Justice Act 3 of 2000 – appellant’s review of first respondent’s
expropriation decision dismissed – decision procedurally fair and unbiased.

ORDER

On appeal from: Eastern Cape High Court, Port Elizabeth (Revelas J sitting as
a court of first instance):
(a)
Save insofar as the order of the high court is varied, as set out in
paragraph (b) below, the appeal is dismissed.
(b)
Paragraph 1 of the order of the high court is amended, paragraph 2
thereof is set aside, and paragraphs 3 and 4 are renumbered, resulting in
the order of the high court, as amended, reading as follows:
‘1 The application to review the first respondent’s decision of 30 September 2016
expropriating certain rights over the farm Nooitgedacht, is dismissed.
2 The applicant is directed to pay 80% of the costs of the application including
the costs of two counsel;
3 The applicant is directed to pay the reserved costs of 19 September 2017,
including the costs of two counsel.’
(c)
The appellant is directed to pay the first and second respondents’ costs
of the appeal, including the costs of two counsel where employed.

JUDGMENT

Koen AJA: (Cachalia, Swain and Nicholls JJA and Ledwaba AJA concurring):
[1] The issue in this appeal is whether the first respondent’s decision of
30 September 2016 (the decision), to expropriate certain servitudes over the
appellant’s farm ‘Nooitgedacht’ in favour of Eskom Holdings Soc Ltd (Eskom),
is lawful. The parts of the decision, material to this appeal, provide as follows:
‘Further to my letter dated 09 December 2015 and the Minister of Energy’s recommendations
contained in her letter dated 04 February 2016, I wish to confirm that as requested by Eskom
Holdings’s SOC Limited I have approved that the following servitudes (the total extent of
which appear more fully in SG Diagram No 1232/2014 dated 21 January 2015) across land

being part of the Farm Nooitgedacht 664, Uitenhage Registration Division, Eastern Cape
Province, held under Title Deed T 27811/2014 and owned by Staufen Investments (Pty) Ltd -
(1) An electrical sub-station, in extent 1,0000 Hectare;
(2) The right to convey electricity over the property by means of 132 kV and 22 KV overhead
power lines; and
(3) A right of way (access road) 6 meters wide.
. . .
Once just and equitable compensation1 for the property rights has been determined, a notice of
expropriation will be served on the property owner and all affected parties.’

[2] The appellant unsuccessfully sought to review the decision in the Eastern
Cape High Court, Port Elizabeth (the high court). The high court granted the
following order:
‘1.
The application to review the first respondent’s decision to expropriate the substation
area on the farm Nooitgedacht, one hectare in extent, is dismissed.
2.
The first respondent’s expropriation decision aforesaid is amended by the addition of
the following to its decision as conveyed to the second respondent (Eskom):
“(4)The right to convey electricity over the property by means of 132 kv and 22 kv overhead
power lines is limited to the existing power lines and no power lines may be erected in addition
thereto, if such power lines will traverse the applicant’s property beyond the parameters of the
electrical substation area, 10 0000 square meters in extent.
(5)The electrical substation area may not be expanded upon beyond the parameters of the
existing 10 000 square meter area.”
3.
The applicant is to pay 80% of the costs of the application, including the costs of two
counsel;
4.
The applicant is to pay the reserved costs of 19 September 2017, including the costs of
two counsel.’

[3] The high court granted the appellant leave to appeal against its order. The
appellant maintains that the high court erred as:

1 The final determination of the compensation payable pursuant to a lawful expropriation, is not a condition
precedent to a decision to expropriate being otherwise final – Hafferjee and Others v Ethekwini Municipality and
Others 2011 (6) SA 134 (CC) para 33.

(a) the expropriation decision was taken for an improper and unlawful purpose,
and in bad faith;
(b) the description of what was to be expropriated was unclear;
(c) the expropriation decision contravened s 6 of the Promotion of Administrative
Justice Act 3 of 2000 (the PAJA);
(d) the expropriation decision was procedurally unfair;
(e) the facts material to the circumstances in which the expropriation decision was
given, gave rise to a reasonable apprehension of bias;
(f) the amendment of the expropriation decision by the court a quo was irregular.2

Background
[4] The land known as portion 4 of the Farm 119 Nelson Mandela Bay
Municipality, Division of Uitenhage, Eastern Cape Province (portion 4), was
previously owned by Mr Archibald Fenton Hitge and registered in his name in
terms of Deed of Transfer T77935/91. On 23 November 1992 a portion thereof,
in extent 42,0879 hectares, was excised from portion 4, renamed as ‘portion 5 (a
portion of portion 4) of the Farm no 119’ (portion 5), and transferred into the
name of the Republic of South Africa3 in terms of Deed of Transfer 74981/92,
leaving Mr Hitge with the ownership of ‘the remainder of portion 4’.

[5] On 11 September 1997 Mr Hitge concluded a notarial deed of servitude
with Eskom. This deed granted to Eskom and its successors in title and assigns,
the perpetual right to a right of way (6 meters wide) over the remainder of portion
4; the perpetual right to a part of portion 4 not exceeding 1240 square meters for
the purpose of erecting an electrical substation; and an exclusive perpetual right
to lead electricity over portion 4. The notarial deed was subsequently registered

2 The founding affidavit raised a plethora of grounds of review. The grounds stated in paragraph 3 above were, in
the main, the arguments persisted with before this court.
3 It was suggested that portion 5 was expropriated.

in the Deeds registry on 4 September 1998 designated as K884/98S. An
endorsement was appended simultaneously, in accordance with standard Deed’s
registry practice, against title deed T77935/91, being the holding title in respect
of the remainder of portion 4. The endorsement identified the notarial deed of
servitude by its number, namely ‘K884/98S’, and recorded that it created a right
of way six meters wide in favour of Eskom. It however made no mention of the
right to erect an electrical substation, or the right to lead electricity over the land.

[6] Towards the end of September 19974 Eskom, as it was entitled to do in
accordance with the terms of the notarial deed, commenced the construction of
an electrical substation on the remainder of portion 4. During 1999 the remainder
of portion 4 was subdivided further by excising an area measuring 44,8915
hectares in extent, which was renamed ‘portion 7 (a portion of portion 4) of the
Farm 119’ (portion 7), as identified on SG diagram 5558/1998.5 Portion 7 is the
subdivision, previously part of the remainder of portion 4, on which the substation
had been erected, over which the right of way (6 meters wide) was exercised, and
which was traversed by the incoming and outgoing overhead power lines. None
of these servitudes was depicted on the sub-divisional SG diagram 5558/1998.

[7] On 23 July 1999, portion 7 was consolidated with portion 4 of the Farm
Nooitgedagt No 118 adjoining it, to form the Farm 664, in extent 249,3714
hectares, as reflected on the consolidation SG diagram 5561/1998. This is the
property referred to in the first respondent’s decision as Nooitgedacht.6 The
Certificate of Consolidated Title,7 which gave effect to that consolidation

4 The appellant accepted that construction of the infrastructure commenced at the earliest from then.
5 The remainder of the original portion 4 was consolidated with other land adjoining it to form the Farm 663 in
extent 195,714 hectares, which is apparently known as Hitgeheim. It does not feature in the appeal.
6 Described as the Farm 664, Nelson Mandela Metropolitan Municipality, Division Uitenhage, Eastern Cape
Province as depicted on SG diagram 5561/1998.
7 Certificate of Consolidated Title T 58088/99 dated 23 July 1999.

reflected as a condition of title, as far as the component thereof previously known
as portion 7 was concerned, provided that:
‘By Notarial Deed of Servitude No. K884/98S the withinmentioned property, 44,88915
hectares in extent, is subject to a servitude right of way 6 (six) meters wide, in favour of
ESKOM, as will more fully appear from the said Notarial Deed.’
As with the endorsement appended by the Deeds Office previously to the parent
deed, that was the only servitude carried forward as a title condition. The other
two servitudes created in the notarial deed were again not recorded in the title
conditions. They were also not depicted on the SG diagram 5561/1998 depicting
the consolidation.8

[8] Portion 5, the first subdivision excised from portion 4, adjoins
Nooitgedacht in the east. It was described by the appellant as being ‘a stone’s
throw away’ from the electrical substation on Nooitgedacht. Approximately 50%
of portion 5 is used by the Department of Water and Sanitation and the Nelson
Mandela Bay Municipality for the Nooitgedacht Water Treatment Plant. The
remaining 50% comprises undeveloped bushveld.

[9] Nooitgedacht was subsequently sold at a sale in execution on 20 May 2005
to Mr Waldemar Burger Grundling. On 22 June 2005 he sold it to Mr Jan Jakobus
Lewies Lingenfelder, who in turn sold it to Amber Bay Investments 34 (Pty) Ltd9
(Amber Bay) on 23 June 2007. Amber Bay sold it to the appellant on 20 January
2014, transfer of ownership being effected in the appellant’s name on 3 June
2014. In each title deed giving effect to these successive transfers, only the right
of way servitude created in the notarial deed, described as set out in 7 above, was

8 The Certificate of Consolidated Title also included a title condition recording that by Deed of Cession of
Servitude K723/1999S the same component of Nooitgedacht was subject to a perpetual servitude to lead an
overhead power supply (power line servitude) 10 meters wide, the middle line of which servitude is depicted by
the line NPQ on SG diagram no 5561/1998 annexed thereto. That condition did not however state in whose favour
it operated.
9 Subsequently converted to Amber Bay Investments 34 CC.

carried forward as a title condition. Neither of the other two servitudes in the
notarial deed in favour of Eskom was recorded in any of the conditions of title.

[10] Mr Wallace Barnes, the deponent to the founding affidavit in the review,
is a director of both Amber Bay and the appellant. By the time the appellant
purchased Nooitgedacht in 2014, the substation had existed on that farm,
specifically the component thereof previously known as portion 7, for some
17 years. The substation had however expanded beyond the area originally
provided for in the notarial deed, and came to occupy approximately 10 000 m²
(1 ha) of Nooitgedacht. There was a 132 kV overhead power line providing
electricity to it running from the south east, there were various 22 kV high-voltage
overhead power lines exiting the substation and leading electricity away from it
to end consumers down the line, and there was a right of way six meters wide,
providing access for employees of Eskom to the substation. A comparison of the
configuration of Nooitgedacht on the aerial photographs annexed by the appellant
to the founding affidavit showing the substation, the overhead power lines and
the right of way, with Surveyor General’s diagram SG 5561/1998 relating to the
consolidation, and SG diagram SG 1232/2014 with reference to which the
decision to expropriate the servitudes was granted, confirms that the substation,
the overhead lines and the right of way are all on, and lead over, the component
portion previously known as portion 7 (of 4).

[11] After Amber Bay had purchased Nooitgedacht, Mr Barnes raised the issue
of Eskom’s entitlement to occupy and conduct the substation on Nooitgedacht. It
was then discovered that Eskom’s entitlement to the substation was tenuous, if
not non-existent. Whatever rights it had enjoyed in respect of the substation and
power lines in terms of the notarial deed were personal in nature, arising from its
relationship with Mr Hitge, which some subsequent owners may have acquiesced
in, but not Amber Bay and the appellant. As the rights to erect the substation and

to lead the overhead power lines over Nooitgedacht had never been registered
against the title deeds, they did not constitute enforceable real rights. That these
rights never became enforceable was due to the title deed of Mr Hitge not having
been properly endorsed initially, and the subsequent deeds of transfer having
perpetuated that omission.

[12]  That the area occupied by the substation had grown,10 together with the
presence of the overhead high voltage lines and the right of way used by Eskom,
was known to Amber Bay and Mr Barnes, from at least the time that ownership
of Nooitgedacht was transferred to Amber Bay on 11 October 2007. The parties
accepted as common cause, that the substation and the overhead power cables
across Nooitgedacht were erected unlawfully.11

[13] The appellant alleged that the continued unlawful operation of the
substation on Nooitgedacht impacted negatively on its farming activities, inter
alia as the substation was situated in the middle of the part of the farm that could
be farmed intensively by cultivating crops.12 It further complained that the
location of the substation had resulted in increased vehicular and pedestrian
traffic with an attendant increased security risk. In addition, the land below the
power lines had become sterilised by their presence, limiting pecan nut
cultivation. The installation had also become aesthetically unattractive as
building rubble was dumped in the area, and the perimeter fence was not
maintained properly.13

10 The substation is close to ten times larger than the 1 240 square meter substation contemplated in the Notarial
Deed. The Appellant alleged that Eskom continued with the further development of the substation even after it
had obtained transfer of the property into its name.
11 The appellant maintained that Eskom also had accepted that its right of way six meters wide across was unlawful
and required to be regularised. IF correct, that stance was legally incorrect.
12This comprised approximately 14% of Nooitgedacht, the remaining 86% comprising natural valley and bushveld
suitable for game farming. If that assessment is correct, then the respondents point out that the substation would
occupy one ha of the 14% (34ha), which would be only 2,9% of the high quality prime agricultural land.
13 On the respondents’ version, which prevails, the latter allegations are denied.

[14] On 13 August 2014 the appellant demanded that Eskom cease its unlawful
occupation. It proposed that to normalise the situation Eskom should compensate
it for the area occupied, that the area and overhead power lines be properly
identified in a servitude diagram, that an access route with a gate be maintained,
and that proper servitudes be registered. An alternative solution suggested was
for Eskom to relocate the substation and entire infrastructure to portion 5.14
Eskom demurred maintaining that it would take six years to relocate the
substation, that it would cost in excess of R120 million15 to do so, and that such
relocation would result in an interruption of electricity supply to various
consumers.

[15] When the negotiations reached an impasse, the appellant demanded that
Eskom vacate Nooitgedacht within a reasonable period. This demand was not
complied with. The appellant then launched an application to evict Eskom from
Nooitgedacht, which was opposed.

[16] After the eviction application was launched, Eskom launched its
application for expropriation dated 2 December 2014 (the application). The rights
to be expropriated were described in the application as:
‘A servitude for a substation over 8,812 ha of land, and to convey electricity by means of 132
kV and 22 kV lines across land, and a right of way 6 m wide across land being part of . . . the
Farm Nooitgedacht . . .’
The application further specified that Eskom required:
‘. . . the registration of an extended servitude area for the Nooitgedacht substation and the
regularising of the existing servitudinal rights in respect of a portion of the sub-station; a
servitude to convey electricity for an existing 132 kV line; a servitude to convey electricity for

14 Although Eskom is an organ of state, being state owned, its personality is distinct from that of the state and it
would be required to purchase land owned by the state from the state.
15 In 2014 monetary terms. This estimate was essentially not disputed in reply.

the existing 22 kV network on the Property and to regularise the rights in respect of a right of
way 6 metres wide. A draft diagram, which will be submitted to the Surveyor General for
approval, is attached hereto and marked Annexure 1.’
The draft diagram, annexure 1, referred to 8 ‘electric power line servitudes’,
seven being 18 meters wide and one to the south east of the substation being 31
meters wide.

[17] The appellant delivered comprehensive written objections to Eskom’s
expropriation application on 9 March 2015. No comments were received from
the Regional Land Claims Commissioner or the Director-General Land Affairs.
Eskom thereafter prepared its reply to the appellant’s objections. It did not
provide the appellant with a copy thereof. The expropriation application and all
the subsequent responses were thereafter lodged with the first respondent on 24
April 2015.

[18] The eviction application concluded with an order being granted by consent
on 30 April 2015. Paragraph 1 of the order provided that Eskom would terminate
its occupation of the substation area of approximately 1 hectare on Nooitgedacht,
vacate the property and rehabilitate the area.16 The order also provided:
‘2. That the implementation of the Order in 1 above is suspended pending the finalisation of
the procedures referred to below. Should the First Respondent’s application for expropriation
(and any legal proceedings arising therefrom) fail then the Order in 1 above will become
operative immediately. Should the First Respondent’s application for expropriation (and any
legal proceedings arising therefrom) be successful, then this Order will fall away.
3. That the First Respondent is required to pursue its application for expropriation17 and secure
a decision in respect thereof within a period of six months from the date of the Order in 1 above,
save that the First Respondent will on reasonable cause shown, be entitled to approach this
Honourable Court for an extension of that period.

16 These orders were all contained in paragraph 1 of the consent order.
17 That is the application then already in existence.

4. That upon a decision in respect of the First Respondent’s application for expropriation being
given, either party will be entitled to pursue any further legal proceedings which may arise
therefrom. Both parties undertake in pursuing such legal proceedings to act promptly and not
in any way to delay the institution of such proceedings.’

[19] The six month period provided for in the consent order was subsequently
extended on two occasions. Eskom also had to launch an application to compel
the first respondent to take a decision in respect of its application for
expropriation. During the evaluation of Eskom’s application, correspondence was
exchanged between the department of the first respondent and that of the Ministry
of Energy, which the appellant complained it was not privy to. However, some of
the correspondence was annexed to the answering papers in the eviction
application, which the appellant complained contained inaccurate statements. But
these statements were not material. The appellant also complained that the first
respondent had waited unduly for the Minister of Minerals and Energy to respond,
that the first respondent then considered the response from the Ministry of Energy
without having given the appellant an opportunity to respond thereto, and that
documents were submitted under threat of a court action.

[20] The processing of the application initially followed an abridged business
process, which the department of the first respondent used as a guideline in
processing these kinds of applications. This abridged process was however later
abandoned by the first respondent.

[21] An internal memorandum was also prepared in the department of the first
respondent by one of the employees, Mr Mahalingum Govender, which contained
a recommendation to the first respondent as to what the outcome of Eskom’s
application should be. The appellant complained that Mr Govender had been
under the mistaken impression that the expropriation had already been approved

and merely required implementation, which the appellant suggested made
Mr Govender biased and which would have improperly influenced his
recommendations and the views of other officials in the department on whose
advice the first respondent might have acted.

[22] On 30 September 2016 the first respondent communicated his decision
approving the expropriation with reference to SG Diagram No 1232/2014, to
Eskom.

Legislative framework
[23] All expropriations occur against the background of s 25 of the Constitution.
The provisions relevant to this appeal read as follows:
‘(1)
No one may be deprived of property except in terms of a law of general application,
and no law may permit arbitrary deprivation of property.
(2)
Property may be expropriated only in terms of a law of general application-
(a)
for a public purpose or the public interest; and
(b)
subject to compensation . . .
(3)
. . .
(4)
For the purposes of this section –
(a)
the public interest includes the nation’s commitment to land reform, and to reforms to
bring about equitable access to all South Africa’s natural resources; and
(b)
property is not limited to land.’
(emphasis added)

[24] Section 2(1) of the Expropriation Act18 (the Expropriation Act) provides
that ‘(s)ubject to the provisions of this Act the [first respondent] may, . .
expropriate any property for public purposes . . .’, defined19 as ’as including . . .

18 Expropriation Act 63 of 1975.
19 Section 1 of the Expropriation Act.

any purposes connected with the administration of the provisions of any law by
an organ of State.’
S 3 empowers the first respondent to expropriate immovable property on behalf
of certain juristic persons in the following terms:
‘(1)
If a juristic person… satisfies the Minister20 charged with the administration of the law
mentioned in connection therewith that it reasonably requires any particular immovable
property for the attainment of its objects and that it is unable to acquire it on reasonable
terms, the Minister21 may, at the request of the first-mentioned Minister, . . . expropriate
such immovable property on behalf of that juristic person or body as if it were required
for public purposes.
(2)
The juristic persons . . .contemplated in subsection (1) are . . .
(h)
any juristic person . . . established by or under any law for the promotion of any
matter of public importance.
(3)
If the Minister expropriates any immovable property on behalf of a juristic person or
body in terms of subsection (1), such juristic person or body shall become the owner
thereof on the date of expropriation in question.’
(emphasis added)

[25] Section 26(1) of the Electricity Regulation Act22 (the Electricity Act) under
the heading ‘Expropriation’ provides that:
‘(1)
The State may, in order to facilitate the achievement of the objectives of this Act,
expropriate land, or any right in, over or in respect of land, on behalf of a licensee23 in
accordance with section 25 of the Constitution and section 2 of the Expropriation Act,
1975 (Act No 63 of 1975).
(2)
The Minister must describe the procedure to be followed in giving effect to subsection
(1).
(3)
The State may exercise the powers contemplated in subsection (1) only if –

20 That will be the Minister of Energy Affairs, who is responsible for the administration of the Electricity
Regulation Act 4 of 2006.
21 The first respondent.
22 Act 4 of 2006.
23 Eskom is a licensee as defined in section 1 of the Electricity Act.

(a)
a licensee is unable to acquire land or a right in, over or in respect of such land
by agreement with the owner; and
(b)
the land or any right in, over or in respect of such land is reasonably required
by a licensee for facilities which will enhance the electricity infrastructure in
the national interest.’ (emphasis added)
Section 2 describes the objects of the Electricity Act to:
‘(a)
achieve the efficient, effective, sustainable and orderly development and operation of
electricity supply infrastructure in South Africa;
(b)
ensure that the interests and needs of present and future electricity customers and end
users are safeguarded and met, having regard to the governance, efficiency,
effectiveness and long-term sustainability of the electricity supply industry within the
broader context of economic energy regulation in the Republic;
(c)
facilitate investment in the electricity supply industry;
(d)
facilitate universal access to electricity;
(e)
promote the use of diverse energy sources and energy efficiency;
(f)
promote competitiveness and customer and end user choice; and
(g)
facilitate a fair balance between the interests of customers and end users, licensees,
investors in the electricity supply industry and the public.’

[26] Regulation 2 of the Electricity Regulations for Expropriation24 prescribes
the procedure to be followed by a licensee who requires the state to expropriate
land on its behalf. The procedure requires the licensee to apply in writing to the
first respondent to expropriate the land or any right in, over or in respect of the
land. Regulation 2(2) provides that:
‘The application contemplated in sub regulation (1) must contain the following:
(a) a full description of the land or right in, over or in respect of land to be expropriated on
behalf of the licensee;
(b) the reasons and motivation why the licensee reasonably requires the said land or right in,
over or in respect of land with a full description of the facilities for or in connection with
which the said land or right in, over or in respect of land is so required by the licensee;

24 Electricity Regulations for Expropriation, GN R147, GG30754, 8 February 2008.

(c) full reasons why the said facilities will enhance the electricity infrastructure in the national
interest;
(d) …
(e) …
(f) …
(g) …
(h) the practical alternatives which are open to the licensee if such land or the right in, over or
in respect of land is not expropriated …’
As there was no complaint that the application submitted to the first respondent
did not comply with the remaining sub-regulations of regulation 2, the provisions
of this sub-regulation are not considered in this judgment.

[27] The appellant argued that the first respondent did not apply his mind
properly to the matter as he had indicated in his reasons that he acted in terms of
s 26 of the Electricity Act, but in his answering affidavit had relied on s 3 of the
Expropriation Act instead. This argument is without substance. The various
legislative provisions are inter-related. The Electricity Act requires a request to
initiate the process. The first respondent clearly had to act within the parameters
of the entire legislative regime, that is, all the statutory provisions which applied.
He understood his powers. The important issue was that his decision had to have
a legal foundation, which it did.

What was reviewed by the high court?
[28] The decision of 30 September 2016 sought to be reviewed entailed the
expropriation of the electric substation area, the right to convey electricity over
the property, and a right of way. The relief claimed in the notice of motion in the
review was for the first respondent’s decision dated 30 September 2016 to be
reviewed and set aside.’ The high court order, in express terms, however
dismissed the review in respect of the ‘substation area’ only. The appeal was
nevertheless correctly approached by the parties on the basis that what was

dismissed, was the review contemplated in the notice of motion, that is, the
expropriation of servitudes not only for the substation area, but also for the
overhead power lines and the right of way. That clearly was what the high court
intended in dismissing the application.25 Paragraph 1 of the high court order
should therefore be amended to make this clear.

[29] The grant of rights, allegedly ancillary to the servitudes which had been
expropriated in the decision of 30 September 2016, alluded to by the first
respondent in his reasons for his decision26 when those were requested, were not
the subject of the review, and accordingly did not arise for consideration before
the high court or before this court. These ‘rights’ were not referred to in the first
respondent’s decision, and their status remains uncertain. Consequently, the
appellant’s argument on appeal, that these rights went beyond what was required
to regularise Eskom’s encroachment on Nooitgedacht and hence violated its right
to procedural and substantive fairness, need not be considered.

Was the expropriation decision taken for an improper or unlawful purpose?
[30] This was the primary attack on the first respondent’s decision, both in the
review before the high court and in this court.27 Applications for expropriation
usually precede the occupation of the property sought to be expropriated. The
first respondent’s decision to expropriate was however in respect of a portion of
property already used unlawfully by Eskom. The expropriation therefore had as
its purpose to regularise Eskom’s unlawful use of part of Nooitgedacht, instead

25 If the intention was different then there was no need for paragraph 2 of the order.
26 These additional ‘rights’ were contained in paragraph 3 of the first respondent’s reasons dated 4 February 2017
and included all kinds of ancillary rights, some of which may in any event be implied by law as incidental to the
three categories of servitudes granted in the decision of 30 September 2016, but others possibly going wider.
27 The appellant advanced, what it termed ‘the Second respondent’s modus operandi’ argument, that Eskom
seemed to resort to a practice of occupying land without ensuring that it has security of tenure, and when the
unlawfulness of its occupation is challenged then it falls back on expropriation to secure its position. The difficulty
with that argument was that Eskom had not been proved to have acted other than bona fide in relation to its
occupation of Nooitgedacht. It falls beyond the scope of this judgment to evaluate other possible similar instances.
The public interest, not good faith, is the decisive consideration.

of permitting it to occupy the property. The appellant argued that the unlawful
use by Eskom could not be ‘regularised’ by another organ of state, the first
respondent, by expropriation, as to do so would not constitute a ‘public purpose’
or be in the ‘public interest’, being the only objects which the Electricity Act
sought to facilitate. Instead, it would seek to condone or legalise Eskom’s
unlawful occupation. Specifically, the complaint was that the application fell
short of the requirements of regulation 2(2)(b)28 as the reasons and motivation did
not mention Eskom’s unlawful occupation.

[31] No authority was cited for the novel proposition that an expropriation could
not occur, if there was a pre-existing unlawful use and occupation. And I am
aware of none. The sole consideration is whether the expropriation is for a public
purpose, or in the public interest. The expression ‘public purposes’ is a broad one.
It has been held to include matters where the whole population, or the local public
are affected and not only matters pertaining to the State or the Government.29 It
is not in dispute that the substation on Nooitgedacht30 serves the local public by
providing electricity, to amongst others, residential communities and townships,
the town of Addo, the Sundays River Valley, several farms including citrus farms
in the surrounding area, and the National Addo Elephant Park, an important
tourist attraction.

[32] The application to expropriate was clearly for a ‘public purpose’ or in the
‘public interest’,31 namely the provision of electricity. This purpose was served
by the substation continuously since its construction in 1997. It should continue
serving that public purpose. The fact that there was an ancillary purpose, to

28 See paragraph 26 above.
29 Administrator, Transvaal v Van Streepen (Kempton Park) (Pty) Limited 1990 (4) SA 644 (A) 656-657.
30 Nooitgedacht is situated approximately 10 kilometers north west of the town Addo.
31 Fourie v Minister van Lande en ‘n ander 1970 (4) SA 165 (O) 169 D-E and 176 F-G; Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC).

regularise the pre-existing unlawful use and occupation, cannot detract from its
main purpose, which was to continue to supply electricity to the public through
the substation for which a definite need was established.

[33] The expropriation would result in Eskom acquiring servitude rights in
respect of certain aspects32 of the appellant’s dominium33 in Nooitgedacht, which
as a matter of law vested in it, but as a matter of fact were used by Eskom. In that
respect too, the expropriation would serve the public interest and purpose, as it
would ‘enhance the electricity infrastructure in the national interest.’34

[34] It cannot be disputed, having regard to the terms of the notarial deed, as the
first respondent had concluded, that Eskom bona fide but erroneously believed
that it had initially acquired real rights. It, in fact, had only acquired personal
rights, or limited real rights, in respect of the right of way. Eskom had not
deliberately occupied the property unlawfully. It conducted its operations on the
property in the bona fide belief that it had a legal entitlement to do so. It was
allowed to use the property, by the various predecessors in title to Amber Bay
and the appellant, in the mistaken belief that it was entitled to do so. All the
owners since Mr Hitge, Amber Bay and the appellant duly represented by Mr
Barnes, were aware of the presence of the substation installation on Nooitgedacht.
They acquired ownership of the land in each instance aware of the substation, the
overhead lines leading to and from it, and the access route to the substation. They
accepted transfer of ownership in each instance aware that the substation and
power lines detracted from their rights of ownership.

32 Notably the right to possession, use and enjoyment of those portions of the property occupied by the substation,
or traversed by the overhead power lines and the right of way.
33 Thus detracting from the appellant’s dominium of Nooitgedacht – Schwedhelm v Hauman 1947 (1) SA 127
(E).
34 The word ‘enhance’ is defined in the South African Concise Oxford Dictionary (2002) as improving ‘the quality,
value or extent of…’ There can be no doubt that the expropriation would have that effect.

[35] With this knowledge the appellant accepted in the consent order in the
eviction application, that this oversight, would be addressed by appropriate
servitudes being considered for expropriation. If expropriation followed,
compensation would address the prejudice to the appellant, whilst Eskom’s tenure
would be secured, its eviction would be averted, and the electricity supply to the
public would continue uninterrupted in the public interest.

[36] Expropriation was correctly contemplated as a remedy to regularise the
position. The appellant’s subsequent argument that it was legally incompetent to
regularise this ‘unlawful’ position, was without legal substance.

Was the description of what was to be expropriated clear?
[37] Regulation 2(2)(a) requires that Eskom’s application had to contain a ‘full
description’ of the land or right it wished to acquire. The appellant’s complaints
were:
(a) the expropriation application referred to a servitude for the substation ‘over
8,812 hectares of land’, whereas the Surveyor General’s diagram annexed to
the application indicated that the area required for the substation was 1ha, the
approximate area actually occupied by the substation;
(b) although the application stated that Eskom required servitudes ‘to convey
electricity by means of 132 kV and 22 kV lines across land’, it was not stated
how many lines were required and exactly what these rights would entail;
(c) the high court’s qualification, in paragraph 2 of its order, introduced further
uncertainty by confining the overhead power lines servitudes to those in
existence, which could present difficulties on registration thereof, as the
registrar of deeds would have no knowledge, in the event of a dispute, as to
which power lines were in existence.

[38] What was reviewed before the high court was not Eskom’s expropriation
application, but the first respondent’s decision. The decision described the
servitudes to be expropriated with express reference to SG diagram No 1232/2014
dated 21 January 2015, a copy of which was provided to the appellant’s
attorneys.35

[39] Reading the decision with the diagram referred to therein, which formed
an integral part thereof, the substation was identified as a servitude area ‘1,0000
hectare in extent’, with reference to specific co-ordinates reflected on the
SG diagram. The reference to 8,812 ha in Eskom’s application was clearly an
error, which was correctly recognised as such by the first respondent. This
resulted in the decision to expropriate being granted with reference to the extent
as per the Surveyor Generals dimensions, which accorded with the factual
position on the ground, even on the appellant’s version.

[40] The ‘right to convey electricity over the property by means of 132kV and
22 kV overhead power lines’, was similarly described, as regards location and
width, with reference to the servitudes depicted on and described ‘more fully in
SG Diagram No 1232/2014’ identified by determinable co-ordinates. That made
the overhead power lines objectively determinable, and left no room for
uncertainty. It is not surprising that these servitudes, approved by the first
respondent, correspond in number and position to those identified by Mr Barnes
in the founding affidavit in the review, as being in existence when the decision
was made.36

35 The appellant alleged that SG diagram 1232/2014 was not annexed to the Expropriation decision, but accepted
that it was subsequently provided to its attorneys, and that it is the same diagram. The apparent omission to have
annexed the diagram is accordingly without significance as there is no dispute as to the SG diagram the
Expropriation decision intended to refer to.
36 Their location on Nooitgedacht were indicated by Mr Barnes in orange on a Google aerial photograph attached
to his founding affidavit in the review. He also indicated the position of the substation and the right of way in red
and green respectively on another Google photo, which showed their position in relation to the boundaries of
Nooitgedacht.

[41] The appellant’s title deed already contained the following condition of title:
‘By Deed of Cession of Servitude K723/1999S, the within mentioned property, in extent
44,8915 hectares, is subject to that it was subject to:
I
. . .
II
A perpetual servitude to lead an overhead power supply (Power Line Servitude) 10
metres wide, the centre line of which is depicted by the DEF on Servitude Diagram No 7799/95
attached to the above Deed of Servitude (the middle line of which servitude is depicted by the
line NPQ on Diagram SG No 5561/1998 annexed hereto).’
It appears that this power line servitude might correspond with the servitude
expropriated and reflected on SG Diagram No 1232/2014 as j- K- L, save that the
latter is reflected in that diagram as 18, not 10, metres wide and, in terms of the
decision would operate in favour of Eskom as an identified beneficiary, whereas
according to the cession, no dominant owner of the servitude was identified. I
comment no further on this issue as it was not canvassed in the affidavits. To the
extent that the servitude in the cession might coincide with any power line
servitude expropriated in accordance with the first respondent’s decision, it, being
the less burdensome servitude, would lapse by merger with the servitude
expropriated. The significance of this is that it might possibly affect the
compensation payable pursuant to the expropriation. Any such duplication would
not affect the validity of the decision.

[42] What was expropriated, was determined in the decision with cadastral
accuracy. The Registrar of Deeds raised no objection to the description of what
was expropriated and was to be registered in due course. The high court however
erroneously added the qualification to paragraph 2 of its order. It may have been
influenced by the allegations in the appellant’s supplementary affidavit that there
was one incoming line and five outgoing lines, which Eskom identified as the

Nanaga line,37 the Barkly Bridge line,38 the Addo Park line,39 the Skilpad line,40
and the Dunbrody line.41 Eskom had also referred elsewhere to the incoming line,
five outgoing lines and a bypass line (which probably comprised two power line
servitudes depicted as c1-B1-C1-D1-E1 and F1-G1-H1 which branched from it,
on SG Diagram No 1232/2014). It appears that the high court sought to clarify
matters by confining the overhead lines to the lines ‘in existence’. By doing so it
introduced uncertainty, as on registration of the servitudes, the Registrar would
query what was meant by ‘in existence’. There was no need for paragraph 2 of
the order which should be set aside.

[43] The appellant also submitted that the power line servitudes were
contradictory and not in compliance with the regulation, as the width of the
outgoing power line servitudes were to be 18 m wide, considerably more than the
nine metres width referred to in the way leave agreements. This, it was argued,
would result in ‘substantial’ portions of Nooitgedacht being covered by the
servitudes, thus rendering farming activities extremely difficult if not impossible,
especially as these power lines would criss-cross the farm ‘Nooitgedacht
randomly’.

[44] The power line servitudes however do not criss-cross the farm ‘randomly’,
but run along specific routes identified by co-ordinates on the Surveyor General’s
diagram No 1232/2014. Although the appellant complained about the width of
the power line servitudes, it did not allege what the actual width occupied by the
existing power lines were. The second respondent’s answering affidavit pointed

37 The Nanaga line conveys electricity to all farms in the Nanaga area.
38 The Barkly Bridge line conveys electricity to the town of Addo, the National Addo Elephant Park, and farms
in the Barkly Bridge area and the Valencia Township.
39 The Addo lone conveys electricity to citrus farmers in the Sundays River Valley and the Nomthamsanqa
township.
40 The Skilpad line conveys electricity to farmers in the Sundays River Valley (not serviced by the Addo line) and
three major townships in the area namely Batsheba, Enon and Moses Mabhida.
41 The Dunbrody line conveys electricity to farms in the directions of both Kirkwood and Uitenhage.

out that the way leave agreements provided that no structure could be erected
within nine meters of the centre line of a power line. In addition, any vegetation
below the power lines had to be cleared, and that Eskom had done this before the
appellant or its predecessor had purchased Nooitgedacht. It is self-evident that a
distance of nine meters on either side of the centre line of a power line, equates
to 18 meters in width.

[45] I turn to consider the right of way, six metres wide, expropriated in terms
of paragraph 3 of the decision. The start and end points (S1-S2) are identified in
the decision with reference to co-ordinates on Surveyor General’s diagram No
1232/2014. However, it remains a general right, to the extent that it is represented
by a curved line (not identified with reference to further co-ordinates), between
those points. A general right of way servitude, six metres wide, had been created
by the notarial deed. That right of way was registered and carried forward as a
real right in all subsequent deeds. It seems from the photographs of the actual
right of way, attached to the appellant’s founding affidavit, that the registered
right of way might correspond with the right of way expropriated. As the purpose
of the application to expropriate was to regularise what was already in existence,
the intention was plainly not to create an additional separate right of way. The
benefit offered by the expropriation and its description with reference to Surveyor
General’s diagram No 1232/2014 is that the start and end co-ordinates are now
fixed. To the extent that the right of way expropriated corresponds with the right
of way already extant and recorded in the title deed of the appellant, the latter will
lapse by merger. At best, again, this might be a consideration affecting the
quantum of any compensation payable.

Does the expropriation decision contravene s 6 of the PAJA
[46] The decision by the first respondent to approve Eskom’s application for
expropriation plainly constituted administrative action to which the provisions of

the PAJA applied. What constitutes fair administrative action will depend on the
facts of each case.42 Generally it would require providing any person whose rights
or legitimate expectations were materially and adversely affected with adequate
notice of the proposed action, a reasonable opportunity to make representations,
a clear statement of the administrative action, adequate notice of any right of
review or internal appeal and to request reasons.43 Where, as in this instance, the
first respondent was empowered in terms of the relevant legislation to follow a
procedure which might differ from some of these general requirements for
administrative action prescribed in the PAJA, no complaint could be raised,
provided the procedure adopted, was fair.44

[47] The appellant raised a plethora of issues in regard to substantive and
procedural fairness, which it maintained contravened s 6(2) of the PAJA. I only
deal with those which are relevant to the outcome of the appeal.

[48] Before considering these grounds it is important to note that the first
respondent’s decision was a multi-faceted and polycentric decision45 requiring
‘. . . an equilibrium to be struck between a range of competing interests and
considerations and which is to be taken by a person or institution with specific
expertise in that area . . .’46 An evaluation as to whether an expropriation was
expedient would necessarily lie within the domain of the expropriating
authority.47 Although not immune from judicial review48 it was a decision to

42 Section 3 (2)(a) of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA).
43 Section 3 (2)(b) of the PAJA.
44 Section 3(5) of the PAJA.
45 Offit Enterprises (Pty) Ltd and another v Coega Developmental Corporation (Pty) Ltd and Others [2010]
ZASCA 1; 2010 (4) SA 242 (SCA) 260 para 48.
46 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) para 48.
47 It is generally for the expropriating authority, in this instance the first respondent, to decide how best to achieve
the purposes of the Expropriation Act - White Rocks Farm (Pty) Ltd and Others v the Minister of Community
Development 1984 (3) SA 785 (N) at 792.
48 MEC for Environmental affairs & Developmental Planning v Clairison’s CC [2013] ZASCA 82; 2013 (6) SA
235 (SCA) para 18.

which the principle of ‘deference’, which required that the decision should be
‘shown respect by the courts’, applied.

[49] The appellant’s main complaints appeared to relate to the following:
(a)That the first respondent made use of a 30 step internal procedure, which
subsequently was abandoned, which the appellant maintained deprived it of an
appropriate public notice and comment procedure.
(b)That the appellant was not afforded a right of reply to Eskom’s reply to its objections
and representations.
(c)That the appellant was not given full discovery of all documents.
(d) That the first respondent did not apply his mind independently to the
application but simply followed the recommendation in the internal
memorandum which was prepared by officials of the first respondent.
(e) That the first respondent’s view that the ‘alternative suitable land’ argument,
entailing that the substation be relocated to portion 5, could not be sustained,
was influenced by a material factual misdirection.

The abridged process
[50] The 30 step ‘abridged business process’ was explained by the first
respondent to be an ‘internal mechanism’ with no legislative or regulatory status.
It was a process developed to broadly embody the principles of the Constitution
(in particular s 25) and the provisions of the PAJA, with it being reviewed as the
legislative framework was revised. The first respondent explained that it merely
served as ‘a guideline to the Department and (the first respondent) in respect of
evaluating, assessing and determining an expropriation application.’ It was not a
mandatory procedure and in ‘no way determinative or prescriptive’ of the first
respondent’s statutory obligations. The latter would prevail over the internal
guideline, and the internal procedure would not hamper the first respondent’s

obligation to consider and decide applications for expropriation, in accordance
with the legal framework outlined earlier in this judgment.

[51] The specific complaint was that if the guidelines had been adhered to, an
opportunity after publication for comments and objections by the public, would
have followed. It was not alleged that there was any person other than the
appellant, who would have an interest in objecting following publication. The
procedure prescribed in terms of regulation 2(3)(a)49 which required that the
licensee ‘publish a notice of intention to apply for the expropriation. . .’, was
complied with. The appellant was the only person that objected to the application
and its objections and representations were considered. There was no suggestion
of any prejudice suffered. Furthermore there was no suggestion that the procedure
followed was otherwise unlawful or unfair.

Should the appellant have been afforded an opportunity to reply?
[52] After the appellant had lodged its representations and objections to
Eskom’s application to expropriate, Eskom had the right to reply to the objections
of the appellant. Regulation 2(6) provides that:
‘The original application must be delivered by the licensee to the Minister of Public Works
after the expiry of all the time periods or extended time periods, accompanied by proof of the
advertisements contemplated in subsection 3(a) and of delivery of the documentation
contemplated in subsection 3(b), as well as –
(a)
objections and comments;
(b)
information supplied to the licensee by the Regional Land Claims Commissioner and
the Director-General: Land Affairs; and
(c)
the reply of the owner to the application;

49 Regulation 2(3)(a) required that the licensee ‘publish a notice of intention to apply for the expropriation in
English and in another official language commonly used in the area in which the property is situated, once in the
government Gazette and simultaneously therewith or not more than one week thereafter, once in the said languages
in two newspapers of different languages circulating in the area in which the property is situated’.

if any, received by the licensee within the time periods or extended time periods set therefore,
and the licensee may include such comment or reply as it may deem necessary to such
objections, comments, information and the reply of the owner.’ (emphasis added)
The reply by Eskom was thus expressly provided for.

[53] There was no express right accorded to the appellant to reply to Eskom’s
reply. Neither does the PAJA recognise such a right of reply. At best,
considerations of fairness might require a further reply, if for example, new facts
had been raised in Eskom’s reply. In the absence of new facts being raised the
appellant could not insist on a further reply, otherwise the process would become
endlessly protracted.50 The reply by Eskom did not contain any new material but
was simply a response to the objections raised by the appellant.51 There were no
other compelling circumstances present in this matter which required the
appellant to be afforded a right of reply.

Discovery of documents
[54]  The appellant complained that copies of Eskom’s reply, the cover letter to
the application from Eskom to the first respondent, the ‘summary of the matter’
provided by Eskom to the Minister of Energy, and the Minister of Energy’s
comments and recommendations, were not provided to it.

[55] There are no provisions in the Expropriation regulations providing that
copies of these documents had to be furnished to the appellant. The principles of
natural justice and the right to be heard, do not include a right to discovery of all

50 In Chairman, Board on Tariffs and Trade and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA) para 44
it was held that no new matter had been established which would have required a further right of reply, and that
the process of allegation, answer, reply and rejoinder could have gone on without end.
51 In Huisman v Minister of Local Government, Housing and Works (House of Assembly) 1996 (1) SA 836 (A) at
845-846 it was held that it was only where new facts had been placed before the Minister, that there would be a
right to counter them.

documents as an automatic feature. It has been held that the ‘right to know’ does
not mean to be given ‘chapter and verse’.52

[56] The appellant maintained that had it been provided with access to this
documentation it would have had the opportunity to assess whether new
information or averments were demonstrably false, to which it could have
responded. The appellant however had a full opportunity to set out its objections
and contentions, which it did. Its notice of objection set out extensively the
grounds upon which it objected to the application for expropriation. It was not
suggested that there were additional grounds or facts, which should have been
considered or taken into account, by the first respondent. The complaint was
accordingly without merit.

Whether the first respondent simply adopted the recommendation in the
internal memorandum and did not apply his mind to the application?
[57] The first respondent appointed Mr Govender in his department to ‘manage
the processing of the expropriation’. Mr Govender, being under the erroneous
impression that the Minister of Energy had ‘authorised the expropriation’, sought
to work collaboratively with Eskom ‘to process and execute the expropriation’.
He inter alia also prepared a report for the first respondent’s consideration.

[58] Having regard to the various line functions in the department of the first
respondent, it was only reasonable and a matter of sound administrative practice
that an internal memorandum would be prepared by officials of the first
respondent commenting on the application and the submissions advanced to assist
the first respondent in his decision. The memorandum correctly cautioned that

52 Nisec (Pty) Ltd v Western Cape Provincial Tender Board 1998 (3) SA 228 (C) at 235B.

‘(o)nly the (first respondent) is empowered by Section 2 of the Expropriation Act
to make a decision on Eskom’s application’.

[59] The first respondent was acquainted with the matter prior to receipt of the
internal memorandum. Given the unique nature of the application, the first
respondent had attended various meetings and briefing sessions with relevant
officials of his department, to obtain clarity in respect of the relevant legal and
factual issues raised by the application. Regardless of the contents of the internal
memorandum, the first respondent properly and personally considered the
application, which included the appellant’s detailed representations and
objections in their entirety. No basis was advanced for rejecting his statement that
the decision was his and his alone, or for finding that he was improperly
influenced or did not apply his mind fully to the issue he had to decide.

The alternative suitable land argument53
[60] The first respondent had concluded that a relocation of the entire substation
installation to portion 5 was not a viable alternative because of the substantial
costs involved and the interruption in electricity supply that would result. The
appellant argued that the first respondent’s reliance on an interruption of
electricity supply, constituted a material misdirection of fact, as the appellant had
always tendered to allow Eskom time to facilitate such a relocation, which would
avoid ‘severely detrimental’ interruptions.

[61] The appellant pointed to Eskom’s application for expropriation in which it
was stated that ‘a prolonged outage . . . (would) be detrimental to the consumers
in the area’, as if a prolonged outage was a given fact. It also referred to the letter

53 This was raised by the appellant in the context of regulation 2(2)(h) as a practical alternative open to Eskom if
the rights in, over or in respect of Nooitgedacht were not expropriated. This discussion encompasses what the
appellant named it’s ‘Black-out in the valley’ argument.

from Eskom’s chairman dated 11 November 2015 to the first respondent, which
likewise had referred to the substation supplying electricity to ‘the town of Addo
and Sundaysriver Valley and citrus farms in the surrounding area . . . (and that a)
prolonged outage for the existing line will be severely detrimental to the
customers in the said areas’. It pointed out that a letter from the Minister of
Energy to the first respondent dated 4 February 2016 was to similar effect in
commenting that a ‘prolonged outage . . .will be severely detrimental to the
consumers in the area’. The appellant argued that these comments created the
incorrect impression and that Eskom’s comment that ‘the eviction order does not
provide for any option that Eskom may continue operating the infrastructure until
it has built a new sub-station and related infrastructure’ was wrong. It pointed to
the allegation in its replying affidavit that ‘(if) Eskom plan properly, there should
not be any interruptions in the supply of electricity . . .’ and referred to it being
possible for extensions of time to be granted in the terms of the court order, albeit
that these were extensions of time for the processing of the expropriation
application.

[62] Properly construed, these statements all simply recorded that a prolonged
outage would be detrimental, which would be factually correct. The internal
memorandum prepared in the first respondent’s department however did motivate
for an approval of the application by stating that ‘Demolition of the substation
will cause a prolonged outage of electricity which will be severely detrimental to
the customers in the said area’. It was contended that this statement amounted to
‘a material misdirection of fact’ which Eskom failed to point out to the first
respondent. According to the founding affidavit it seems that the more correct
position was that the appellant did draw attention to this misdirection but that the
appellant’s complaint more specifically was that ‘. . . the First Respondent clearly
had no regard thereto’.

[63] The appellant’s tender to allow Eskom sufficient time to relocate the
infrastructure might reduce the duration of an interruption in the electricity supply
during the relocation process, thus avoiding an interruption of ‘severely
detrimental’ proportions or ‘prolonged’ duration. Nevertheless, as a matter of
practical reality, some interruptions would be inevitable during the relocation
process. That would also be consistent with the probabilities and what one would
reasonably expect. Indeed, the version of the first respondent and Eskom, which
must prevail in regard to any factual dispute on this issue,54 was that a relocation
to portion 5 would disrupt the electricity supply.

[64] But even if the duration of any interruptions might have been overstated,
an interruption in the supply was not the only, or dispositive consideration which
caused the first respondent to reject the option of relocation in favour of
expropriating the servitudes on Nooitgedacht. The first respondent in his
answering affidavit stated that:
‘The fact that the Applicant may have offered the Second Respondent “sufficient time to
relocate its infrastructure”, is but one factor that I considered. There was obviously the costs
associated with such relocation that also had to be considered.’
The first respondent’s decision against relocation was correctly and decisively,
informed by the substantial costs which would be incurred to relocate an existing
installation, to within ‘a stones’ throw’ from where it was already operating
effectively. To demolish and rebuild the substation and related infrastructure
would take six years and cost over R120 million, even if built in the immediate
vicinity. To the extent that there might be a dispute as to the actual costs of
relocation, Eskom’s version would prevail.55

54 Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
55 In the opinion of George Frederick Ferreira, an electrical engineer, expressed in an affidavit apparently filed in
support of an application for an extension of the time allowed by the court order in the eviction application,
Eskom’s ‘estimate that the cost of construction of a substation of this nature would be in the order of R120,000,000
is reasonably accurate’.

[65] To have opted for a relocation at those costs, would be irrational. Such
funds would be wasted and would probably better serve the public interest if
applied to constructing a new substation elsewhere in an area where there may be
a greater demand or, alternatively, maintaining and improving the existing
infrastructure on the national electricity grid. Having regard to the deference
which must be accorded to the decision of the first respondent, it was not shown
that his decision fell to be impeached.

[66] In this context, the first respondent also considered that the substation and
infrastructure had existed on the property prior to the appellant’s acquisition
thereof and that the appellant must, accordingly, at all times, have been aware of
the existence thereof and that the land on which it encroached, could not be used
for farming.

Eskom’s summary to the Minister of Energy
[67] In addition, the appellant also complained that Eskom, contrary to the
peremptory provisions of regulation 2(7) of the Expropriation Regulations,
provided the Minister of Energy, (with whom it contended Eskom had a direct
relationship and to whom it was accountable as a state monopoly for the provision
of bulk electricity), with a summary of the matter without providing the appellant
with an opportunity to comment on the summary.

[68] Regulation 2(7) provides that:
‘The licensee must deliver a copy of the application and accompanying documents
contemplated in sub-regulation (6) to the Minister [of Energy] within seven days of the delivery
of the application to the Minister of Public Works and the Minister [of Energy] may within 21
days of the delivery thereof, or such extended period as the Minister may, in his or her
discretion, allow, comment upon the said application and documents to the Minister of Public
Works.’

The regulation does not contain a peremptory requirement that the summary had
to be provided to the appellant. The appellant complained that the summary was
based solely on the version of Eskom, that it contained inaccurate or incomplete
assertions, and that Eskom made no attempt to draw attention to material disputes
raised by the appellant, or to refer to the appellant’s version at all.

[69] What had in fact occurred was that after an extended delay, during which
the first respondent had not taken a decision whilst awaiting a request from the
Minister of Energy, the latter requested the first respondent to expropriate the
property ‘as requested by Eskom’.

[70] This request, the appellant argued, indicated that the Minister of Energy
had merely parroted the submissions of Eskom, made no reference to the
appellant’s submissions at all, and did not analyse and engage with the contrary
positions of the parties. From this the appellant sought to infer that the submission
of the Minister of Energy was entirely one-sided, offered no analysis of the
competing facts, accordingly provided nothing new, and that this influenced the
decision of the first respondent.

[71] That inference was not justified. The first respondent had the appellant’s
detailed objections before him and he considered these with reference to the
application by Eskom in reaching his decision.

Perceived bias
[72] The appellant contended that there was a reasonable apprehension of bias
on the part of the first respondent and his officials, based on certain views
expressed by one of his senior officials, Mr Govender, in relation to the procedure

followed,56 in relation to the expropriation decision,57 and the entire process.58
Internal correspondence exchanged contained proposals in regard to Eskom’s
application which were circulated to at least twelve other officials in the
department of the first respondent, including the majority of those who ultimately
recommended to the first respondent that he should approve the expropriation.
The appellant also referred to the fact that Eskom was required during
February 2016 to launch court proceedings against the first respondent, and
alleged that this exerted pressure on the first respondent to approve the
application.

[73] Whatever possible bias might have been displayed by Mr Govender
because of his erroneous understanding of the true position, was unintended. The
issue was moreover not whether the first respondent’s officials were biased, but
whether the first respondent could reasonably be perceived to be biased. If his
officials were biased and he simply adopted their recommendations then he could
at best be guilty of not deciding the matter himself, but that would not make him
biased. Although the first respondent no doubt would have consulted with
Mr Govender and the other officials, Mr Govender’s erroneous understanding
ultimately was of no significance, as the unequivocal evidence of the first
respondent was that the expropriation decision was solely his.

[74] The appellant also alleged that the chairperson of Eskom, by addressing a
personal letter to the first respondent during November 2015 demanding that he
make a decision but also incorporating representations dealing with the
expropriation application, created ‘institutional pressure’ between very senior

56 Hence contending that the expropriation decision was procedurally unfair in terms of s 6(2)(c) of the PAJA.
57 Accordingly that s 6(2)(a)(iii) of the PAJA was applicable.
58 BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another 1992 (3) SA
673 (A) at 692-3; President of the Republic of South Africa & Others v South African Rugby Football Union and
Others 1999 (4) SA 147 (CC) paras 35-38 and 45-48.

representatives of the state. It submitted that an objective assessment of these
facts supported the conclusion that Eskom, the Minister of Energy, and the first
respondent did not follow an objective at arms-length process. This left at least a
reasonable suspicion that the entire process followed by the first respondent and
his final decision, were biased and the expropriation decision procedurally unfair.

[75] The high court correctly concluded that these complaints did not support
an inference of bias, as the correspondence was only about pressing the first
respondent to make a decision. The appellant’s argument that the learned judge
in reaching that conclusion failed to assess whether a reasonable, objective and
informed person would on those facts reasonably have apprehended that the first
respondent did not bring an impartial mind to bear in considering the
expropriation application, was without merit.

[76] Whatever views were held and promoted by officials in his Department,
including Mr Govender, these did not necessarily reflect the views of the first
respondent in the final decision. The final decision was solely that of the first
respondent after taking into account the contents of the application for
expropriation and the detailed objections, comprising some 700 pages, raised
thereto by the appellant. Given these facts, it cannot be concluded that the
expropriation decision was tainted.

The amendment of the expropriation decision
[77] The ‘amendment’ to the expropriation decision effected by the high court
in paragraph 2 of its order should not have been granted, for reasons set forth
earlier in this judgment. It accordingly falls to be set aside. The argument of the
appellant in this respect, and specifically the effect of s 8 of the PAJA,
accordingly need not be considered.

Costs
[78] Although the order of the high court will be varied by the deletion of
paragraph 2, the respondents were substantially successful in the appeal. There is
no reason why the appellant should not be directed to pay the costs of the first
and second respondents. All the parties employed two counsel. The employment
of two counsel was justified having regard to the complexity and nature of the
matter. The costs awarded will accordingly include the costs of two counsel,
where employed.

Order
[79] The following order is granted:
(a) Save insofar as the order of the high court is varied, as set out in paragraph
(b) below, the appeal is dismissed.
(b) Paragraph 1 of the order of the high court is amended, paragraph 2 thereof
is set aside, and paragraphs 3 and 4 are renumbered, resulting in the order
of the high court, as amended, reading as follows:
‘1. The application to review the first respondent’s decision of 30 September 2016
expropriating certain rights over the farm Nooitgedacht, is dismissed.
2. The applicant is directed to pay 80% of the costs of the application including
the costs of two counsel;
3. The applicant is directed to pay the reserved costs of 19 September 2017,
including the costs of two counsel.’
(c) The appellant is directed to pay the first and second respondents’ costs of
the appeal, including the costs of two counsel where employed.

___________________
P A Koen
Acting Judge Of Appeal

APPEARANCES

For appellant:

E A S Ford SC and J G Richards
Instructed by:

Schoeman Oosthuizen Inc
Symington & De Kok Attorneys, Bloemfontein

For first respondent:
R G Buchanan SC and G Gajjar
Instructed by:

State Attorney, Port Elizabeth
State Attorney, Bloemfontein

For second respondent: S C Rorke SC and K.D. Williams
Instructed by:

Smith Tabata Inc
Webbers, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
25 March 2020
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

Staufen Investments (Pty) Ltd
v
Minister of Public Works and others
(200/19) [2020] ZASCA 18 (25 March 2020)

Today the Supreme Court of Appeal granted an order varying an order of the Eastern
Cape High Court, Port Elizabeth, but otherwise dismissing the appeal by Staufen
Investments (Pty) Ltd (Staufen) against the order of that court with costs.

Staufen is an owner of property in the Eastern Cape. When it acquired the property,
Eskom was operating an electrical substation, with overhead power lines running to
and from the substation, on the property. Eskom also had the benefit of a right of
way over the property to the substation. Although a notarial deed had been
concluded in the late 1990’s between Eskom and the then owner of the property
providing for the right to operate an electrical substation on the property and to lead
the overhead power lines to and from the property, these rights were never
registered against and carried forward in the subsequent title deeds of the property,
including that of Staufen. This was due to an oversight. Eskom’s use of the property
for those purposes was accordingly unlawful. Staufen sought to evict Eskom from

the property. To ensure the continued supply of electricity to consumers supplied
from the substation, the Minister of Public Works decided to expropriate servitudes
to allow the substation, power lines, and a right of way over the property. Staufen’s
challenge to the validity of that decision on the basis inter alia that it was not
competent to expropriate the servitudes to correct Eskom’s unlawful occupation and
use of its property, and on the basis that the process was procedurally unfair, was
dismissed by the high court. The high court amended the expropriation decision to
clarify which power line servitudes were expropriated. The SCA concluded that the
amendment was unnecessary, amended the order, but otherwise found Staufen’s
review to lack merit. The appeal was accordingly dismissed.