Badenhorst and Others v The Surveyor-General, Cape Town

The appellants, trustees of the Schuster’s River Trust No 1, owned the Remainder of Erf 766 Scarborough. Erf 766 originally formed part of the Schoesters Kraal Township No 1 laid out under General Plan S91 approved in 1921. In 1996 the Surveyor-General approved subdivisional diagrams subdividing erf 766 into six erven, but later placed a caveat preventing transfer on the basis that S91 had been replaced by General Plan S101, which excluded erf 766, and that subdivision was therefore prohibited under the Land Use Planning Ordinance 15 of 1985 (Cape). The appellants sought a declaration that the Surveyor-General acted unlawfully, arguing that erf 766 retained historic subdivision rights under s 23(2) of the Ordinance. The application was dismissed by the court a quo, and the appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs.

The case clarifies how historical township general plans may be replaced or partially cancelled by implication and the evidentiary basis for inferring such cancellation. It provides authoritative guidance on the interpretation of s 23(2) of the Land Use Planning Ordinance and on the powers of the Surveyor-General in relation to general plans, particularly where no public places are affected.