Frederic Johannes Badenhorst and Others v The Surveyor-General, Cape Town

The appellants were trustees of the Schuster's River Trust No 1 and registered owners of the Remainder of Erf 766 Scarborough. In May 1921, the respondent Surveyor-General approved general plan S91 for Schoester's Kraal Township No 1, which included erf 766 divided into 16 lots numbered 664 to 679. In January 1996, the respondent approved subdivisional diagrams for lots 664-670, renumbering them as erven 935-940, but then requested the Registrar of Deeds to prevent registration of transfer. Between 1921-1923, various erven from S91 were transferred. On 13 July 1923, remaining land shown on S91 was consolidated with additional land and transferred as Scarborough Estates. On 14 November 1924, Messrs Seeton and Le Sueur obtained a certificate of registered title for land depicted on S91 excluding previously transferred lots and excluding erf 766, described as Scarborough Township with general plan S101. Erf 766 was surveyed in May 1923 and later transferred in 1936 to Leslie Simpson as 'Portion RK portion of The Scarborough Estates' with no reference to S91. The respondent contended that S91 had been replaced by S101, which did not include erf 766, and that subdivision was prohibited under the Land Use Planning Ordinance 15 of 1985 (Cape). A caveat was placed against the transfer of the six erven.

• Whether general plan S91 had been validly cancelled in so far as it related to erf 766 and replaced by general plan S101
• Whether erf 766 qualified as a 'confirmed subdivision' under section 23(2) of the Land Use Planning Ordinance 15 of 1985 (Cape)
• Whether on the date of commencement of the Townships Ordinance 33 of 1934, erf 766 had been laid out as a township or subdivided by means of actual survey with a registered plan
• Whether the Surveyor-General had the authority to cancel a general plan without court sanction or consent of the Administrator prior to and after 1927
• Whether the subdivisional rights previously attaching to erf 766 had been abandoned

The appeal was dismissed with costs.

A general plan approved by the Surveyor-General may be validly cancelled and replaced by a subsequent general plan excluding certain properties, thereby extinguishing any subdivisional rights attached to the excluded properties, where: (1) the owners of the land intended such cancellation and replacement as evidenced by their conduct; (2) the Surveyor-General understood and agreed to such cancellation by approving the replacement plan; and (3) this can be proved on a balance of probabilities through circumstantial evidence. Prior to the 1941 amendment of section 30(2) of the Land Survey Act 9 of 1927, the Surveyor-General had authority to amend or cancel general plans without court sanction where such amendment did not affect public places within the jurisdiction of a local authority. For land to qualify as a 'confirmed subdivision' exempted under section 23(2) of the Land Use Planning Ordinance, it must have been laid out as a township or subdivided by actual survey with a plan registered in the Surveyor-General's office on the relevant commencement date; if the general plan has been validly cancelled prior to that date, the exemption does not apply.

The court noted that before the Townships Ordinance 13 of 1927 came into operation on 2 December 1927, town planning was largely unregulated except for limited powers of control granted to certain municipalities. The court observed that strictly speaking, the categorization of the respondent's defence as one of 'abandonment' was not entirely accurate, since a cancellation of S91 prior to the Townships Ordinance 1927 would not have precluded subsequent subdivision of erf 766, as all that was required for subdivision was preparation of a transfer diagram by a qualified land surveyor. The court also noted that it was unnecessary to decide which party bore the onus of proof regarding the defence of cancellation, though assumed in the appellants' favour that the respondent bore such onus. The court commented that people do not lightly abandon their rights (referencing established case law), but found the known facts could only reasonably be interpreted as evidencing an intention to partially cancel the township in respect of erven 664-679.

This case is significant in South African property and land use planning law as it clarifies the historical regulatory framework for township establishment and general plan cancellation prior to the comprehensive statutory regulation introduced by the Townships Ordinances. The case establishes that general plans could be validly cancelled and replaced by the Surveyor-General without court sanction where no public places were affected, even if this resulted in the loss of subdivisional rights. The case demonstrates the courts' willingness to infer cancellation of subdivisional rights from circumstantial evidence including compliance with administrative regulations, property descriptions in transfer documents, and the conduct of property owners and the Surveyor-General. It also illustrates the interpretive approach to exemption provisions in land use planning legislation (section 23(2) of the Land Use Planning Ordinance) which require that on a specific date the land had been laid out as a township or subdivided with a registered plan. The case has implications for the application of transitional provisions exempting pre-existing subdivisions from modern land use planning controls.