Staufen Investments (Pty) Ltd v The Minister of Public Works; Eskom Holdings SOC Ltd; Registrar of Deeds, Cape Town

Staufen Investments (Pty) Ltd owned the farm Nooitgedacht in the Eastern Cape. Eskom had constructed and operated an electrical substation, overhead power lines and an access road on a portion of the farm for many years. Although a notarial deed of servitude had been concluded in 1997 with a previous owner, only a right of way servitude was properly registered; the servitudes for the substation and power lines were never registered and therefore did not constitute enforceable real rights. Eskom’s occupation was accepted to be unlawful. After negotiations failed and eviction proceedings were launched, Eskom applied for the expropriation of servitude rights over the property. The Minister of Public Works approved the expropriation in 2016. Staufen Investments sought to review this decision under PAJA, alleging illegality, bad faith, procedural unfairness, bias and vagueness. The High Court dismissed the review but irregularly amended the expropriation decision. Staufen appealed to the Supreme Court of Appeal.

The appeal was dismissed save to the extent that the High Court’s order was varied by setting aside its amendment of the expropriation decision. The review application was dismissed. Staufen Investments was ordered to pay the costs of the appeal, including the costs of two counsel.

The case clarifies the lawful expropriation of servitude rights in favour of Eskom where long-standing but unlawful occupation exists. It affirms the application of PAJA to expropriation decisions, confirms the scope of ministerial powers under the Expropriation Act and Electricity Regulation Act, and reinforces limits on a reviewing court’s power to amend administrative decisions.