IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)

In the matter between:

and

JUDGMENT

RANCHOD, J
[1]   The applicant in this matter seeks an order:
1.1 reviewing and setting aside the decision of the respondent taken on 03 January 2008 to expropriate the applicant's immovable property, Erf 16 Bryntirion, Registration Division J.R. , Gauteng, held in terms of deed of transfer No. 25169/1995;

[2] In its founding affidavit the applicant sets out some fourteen grounds of review. However, they essentially can be reduced to three categories, namely, that the expropriation-

[3] It is necessary to set out the facts in some detail to gain a proper perspective of the matter.

[4] During 1993, Erf 16 Bryntirion ("the property") which is situated in Dumbarton Road, Pretoria was bought by a purchaser from the then government shortly before the first democratic elections.

[5] During 1997 the applicant purchased the property, which had been advertised for sale in the open market. At the time it was zoned for government use. The applicant renovated and extended the house on the property. During 1999 the applicant successfully applied to the Pretoria City Council for the rezoning of the property for use as a guest house. However, it has since then only been used as a family home.

[6] Over a period of years, the applicant was approached by various estate agents acting on behalf of Embassies and other foreign organizations, inquiring whether the applicant is prepared to sell the property. In each case the applicant advised that he is not interested in selling the property. During September 2005 the Department of Public Works ("the Department") notified the applicant in writing of its intention to purchase the property at market value. The respondent (who is the responsible Minister for the department) furnished the following reason for the intended purchase -

land parcel viz Erf 16 Bryntihon which is owned by your company Erf 16 Bryntirion (Pty)Ltd."

[9] On 22 September 2005, the Department again addressed a letter to the applicant's attorneys appealing to it to reconsider its position. It also requested a meeting in order to explain to the applicant the reasons for the Department's proposed acquisition of the property.

[11] In a letter dated 26 January 2006, the regional manager of the Department wrote to the applicant's attorneys and referred to previous communication between the parties and said -
"the department has taken all relevant considerations [into account] in arriving at a

[12] In a letter dated 08 February 2006, to the Department, the applicant's attorneys notified it of the applicant's objection to the expropriation of the property and made a detailed request for information in order to afford the applicant an opportunity to make representations in that regard.

[13] In a letter dated 9 February 2006 the Department undertook to compile and forward the documentation requested by the applicant's attorneys. However, in spite of this undertaking by the Department, the respondent, that is, the Minister of Public Works informed the applicant in a letter dated 4 August 2006 that the request for information was premature. The respondent goes on to mention that the Government's intention was to enhance the security planning for the Bryntirion Estate as a whole and that the acquisition of the applicant's property would be for a public purpose and in the public interest. The respondent further says -
"in the event a decision is made to acquire your property, your interests may be
affected.
You are therefore granted an opportunity in terms of section 3 of the Promotion of Access to Justice Act 3 of 2000 ("PAJA") to respond in writing to our department as to why your property should not be acquired for public purposes and in the public interest.
Kindly send your representation within 14 days from the date of receipt of this letter to our department."

[14] The applicant's attorneys then addressed a further letter, dated 13 September 2006, to the respondent. In this letter the applicant complained that there was a clear conflict between the statement in the letter of 26 January 2006 that the administrative Head of the Department of Public Works had arrived at a decision to expropriate the property and the statement in the respondent's letter of 4 August 2006 that no decision to expropriate the property had been taken. Also that the Department had not complied with its duty in terms of section 3(2)(b) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA") and that it was under those circumstances impossible for the applicant to make meaningful representations regarding the intended expropriation of the property. It was also pointed out that despite the undertaking by the Regional Manager of the Department in his letter of 9 February 2006 to provide the information requested by the applicant, such information was now being refused. The request for the required information was then again repeated.

[15] In a letter dated 10 October 2006 the Acting Director General of the Department set out to explain the alleged contradiction between the department's letter of 26 June 2006 and the Minister's letter of 4 August 2006. The letter stated -
"As you are aware, the decision to expropriate rests with the Minister. Once such decision is taken, the law requires the Minister to write a formal letter of expropriation in terms of the relevant provisions of the Expropriation Act 63 of 1975. The Department is entitled to formulate a view in such matters, which view is then communicated to the Minister by way of advice.
The Department has communicated with your client and yourselves with a view to addressing your concerns ahead of the Minister's consideration of this matter. The
Department has accordingly given its view and decision on the matter. This will be communicated to the Minister.
The reasons for the intended expropriation are clearly outlined in the Minister's letter of 4 August 2006 addressed to your client. For the record we reiterate:
LYour client's property is the only private property within the Bryntirion
Estate;

[16] The Acting Director-General then proceeded to furnish answers to the questions posed earlier by the applicant's attorneys but withheld certain information which, he said, would compromise matters of security. Information was not provided in relation to questions concerning -

The applicant was then given seven days after receipt of the letter to file representations with regard to the proposed expropriation.

[19] In the preliminary representations that the applicant made it stated that -

expropriation;

by including the applicant's property in the Estate;

it's neighbour on all sides except for the street front there were no suggestions that the applicant's presence had constituted a security risk or impediment to the security of the adjoining properties by the government officials;

which was any greater than the security risk to residence in the adjoining residential areas of Pretoria has manifested and which reasonably requires government ministers and officials to be segregated in a security estate from persons resident in the adjoining areas;

plan of the Bryntirion Presidential Estate as prepared by consultants Metro Plan. This indicated, said the applicant, that exclusion of the applicant's property was a viable alternative. This is a central pillar of the applicant's argument as is apparent from the applicant's counsel's heads of argument and in the submissions made during the hearing of the matter.

[20] The applicant submits that the building of high walls around the applicant's property would address the security concerns of the respondent. This was dealt with by the respondent Minister in her answering affidavit in the following terms -

21.2.1 In accordance with the proposed master plan for the Bryntirion Estate, the new entrance for vehicles and pedestrians will be in Colroyn Road and all traffic will have to pass the applicant's property to reach the entrance or to leave the Estate;

21.2.3 The applicant's property forms part of the Bryntirion Estate itself. It is in a different position to that of a house across the street. A public street can be monitored by roving patrol officers and security cameras and any suspicious activity can easily be picked up. In case of the applicant's property, Nassau Street would be closed for normal traffic and the aim of the electronic security system of the Bryntirion Estate would be to monitor the perimeter of the Estate and the monitoring of Nassau Street would not be as important as the monitoring of a public street. This may result in unwanted activity going on unnoticed.

[22] In a letter dated 13 March 2007 the applicant's attorneys responded to the Minister's letter of 13 February 2007. Despite complaining about a lack of information, the applicant made further representations as to why the property should not be expropriated. In the letter reference is also made to the applicant's letter of 2 November 2006 and the respondent's failure to respond to that letter. The applicant's attorney states -
"Your failure to respond to that letter or to place in issue any of the matters stated in our letter is accepted by our client as an acknowledgement by you of the correctness of everything which is stated in that letter. In the event of our client instituting review proceedings in respect of any administrative action which you may take relating to the expropriation of Erf 16 Bryntirion Estate, our client will rely upon your admission and acceptance of the correctness of what was recorded in that letter."

[25] During June 2007 the respondent took the decision to expropriate the property. However, she did not immediately communicate this decision to the applicant but in stead wrote a letter dated 26 June 2007 to the applicant in which she gave notice of her intention to have a valuer obtain access to the property to conduct an evaluation. This was presumably to determine the amount of compensation to be paid to the applicant on expropriation.

[26] In August 2007, the applicant's attorney's reminded the respondent of applicant's previous complaints but nevertheless went on to acknowledge that there was no clear right to deny the valuer access to the property.

[27] In September 2007 the Director-General of the Department responded to the applicant's attorney's letter and informed the applicant that it had been afforded ample opportunity to make representations and that it had been given sufficient disclosure of the facts as is permissible in the circumstances with due regard to the future security of the estate.

[28] On 3 January 2008, the Minister signed a notice of expropriation which was delivered to the applicant on 7 January 2008. Compensation in the amount of R7, 620,800.00 was offered.

[29] It is this notice of expropriation which forms the subject of the present review proceedings launched by the applicant on 27 February 2008.

THE REVIEW PROCEEDINGS
[30] After launching the review proceedings the applicant, in terms of Rule 53(1 )(b), requested the record of the proceedings sought to be reviewed and set aside.

[32] The respondent stated that her decision to expropriate the property was based on a consideration of three categories of documents -

32.3      Five consultants' reports including the Bryntirion Report. The Minister further stated that her decision was based on a consideration of the record in its entirety.

[33] The applicant was of the view that since respondent's decision to expropriate was based on all three categories of documents it had a procedural and constitutional right to have access to all those documents and not just a part or edited version thereof before deciding whether to file a supplementary founding affidavit and whether to amend the terms of the notice of motion of the review application. The applicant said appropriate arrangements could be made between the parties to protect the alleged secrecy and sensitivity of the information and to ensure that the unedited report does not become part of the public record.

[34] The respondent refused to waive her reliance on legal privilege insofar as the three legal opinions were concerned and she was also not prepared to waive her objection to the disclosure of the edited portion of the Bryntirion Report, on the basis of National Security.

"The applicant does not acquiesce in the judgment of SERITI J. Should the main review application eventually be decided against the applicant, its rights are
reserved to raise the incompleteness of the record filed in terms of Rule 53

THE APPLICABLE LAW
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[37] Section 3 of PAJA provides:
"(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.
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(b) In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection(4) must give a person referred to in subsection (1) -

[38] Reasonable and timeous notice is to be given to enable the person concerned to gather information and to prepare and submit his or her representations.4Adequate notice includes the duty to provide the person concerned with the essential information which motivates the impending action.5 What is sufficient information will depend upon the circumstances of each case but will in any event include all adverse information and
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[39] The respondent says she acted in terms of the Expropriation Act 63 of 1975 when she took the decision to expropriate applicant's property. In her answering affidavit the respondent admits that her decision to expropriate the applicant's property was also an administrative action as defined in PAJA.

THE REASONS FOR THE EXPROPRIATION
[40] A common thread that runs through the letters written by both the Department and the respondent to the applicant and its attorneys is that the reasons for the expropriation are primarily based on security concerns for the Brytirion Estate. The Bryntirion Estate is comprised of the Presidential Residence, the Presidential Guest House and houses of other cabinet ministers.

[41] Counsel for the applicant submitted that the respondent's reasons are in fact not reasons but merely opinions and conclusions. That submission is in my view not tenable. The respondent and her department were provided with several reports including one from the National Intelligence Agency, the South African Police Services and other consultants. It is those reports that contain the opinions and conclusions. The reports spell out the security concerns relating to the Bryntirion Estate. The respondent
gives those security concerns as a reason for the decision to expropriate the applicant's property.

[42] The security concerns are described in the Bryntirion Report. The report gives considerable detail of various potential threats including theft of assets, sabotage, perimeter security and access control.

[43] As I said earlier, although the applicant advances some fourteen grounds of review in the founding affidavit, they are essentially variations of three broad themes, namely, that the expropriation;

THE INCIDENCE OF ONUS

[45] The applicant's counsel submitted in their heads of argument that the respondent bears the onus to convince the court that a departure from the requirements of sections 3(2)(b) of PAJA was reasonable and justifiable in the circumstances and that the respondent had failed to do so. For the reasons that follow, I am of the view that the respondent does not bear such onus as, in my view she did not depart from the requirements of PAJA.

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THE DECISION TO EXPROPRIATE
[48] The requirements for a valid expropriation are that it -

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[51] The applicant takes issue with the respondent's view that it would be impossible to cordon off the entire estate for effective security measures unless the applicant's property was included in the estate. The applicant says that if regard is had to the consolidation plan annexed to annexure "FA7" to the founding affidavit, the proposed consolidation of the erf, that is the Bryntirion Estate excludes the applicant's property. In my view, that does not avail the applicant. It is clear that the consultants who drew up the consolidation plan, that is Metro Plan, who are town and regional planners, had drawn up this consolidation plan in the context of a proposed closure of Nassau Street and did not consider security issues.

[52] Another contention raised by the applicant is that a perimeter boundary wall has already been erected around the applicant's property and the property has a street front on Dumbarton Road. Applicant further submits that a further perimeter fence or wall could quite feasibly be erected around the consolidated erf of Bryntirion Residential Estate without including the applicant's property in the new security perimeter.

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revert to the aspect of public purpose presently. Suffice to say that the constitutional
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"In treating the decisions of administrative agencies with the appropriate respect, a Court is recognizing the proper role of the Executive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government A court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a Court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a Court should pay due respect to the route selected by the decision-maker. This does not mean, however, that where the decision is one which will not reasonably result in the achievement of the goal, or which is not reasonably supported on the facts or not reasonable in the light of the reasons given for it, a Court may not review that decision. A Court should not rubber-stamp an unreasonable decision simply because of the complexity of the decision or the identity of the decision-maker."

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WAS THE DECISION RATIONAL?

[57] The circumstances in which a statute or conduct will be characterized as irrational are extremely narrow. The Constitutional Court has recently stated:
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WHETHER THE EXPROPRIATION IS FOR A PUBLIC PURPOSE
[58] I Turn then to the question whether the expropriation is for a public purpose.

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It follows, therefore, in my view, that the expropriation in the present case manifestly falls within the requirements of the Act. It is an expropriation for "public purposes'.

WHETHER THE DECISION TO EXPROPRIATE WAS JUSTIFIABLE
[60] From the lengthy exchange of correspondence between the applicant and its attorneys and the respondent there was never been any doubt about the reasons for the expropriation, that is, that it was required for security reasons. This is apparent from the first letter addressed by the respondent's Department and consistently thereafter. The

WAS THE EXPROPRIATION PROCEDURALLY FAIR?
[61] The respondent has quite correctly submitted that the decision to expropriate must be procedurally fair. In this regard the applicant was invited to make representations on four separate occasions, that is, 26 January 2006, 4 August 2006, 10 October 2006 and 13 February 2007. The applicant in fact made representations on two separate occasions, that is, 2 November 2006 and 13 March 2007.

[63] In all the circumstances I am of the view that the applicant has not made out a case for the relief sought.

[64] I make the following order:
The application is dismissed with costs including the costs consequent upon the employment of two counsel.

JUDGE OF THE NORTH GAUTENG HIGH COURT
Representation for the applicant:
Counsel: N.G.D. Maritz (SC) K.W. Luderitz
Instructed by Attorneys: Steggmanns Inc. - Pretoria
Representation for the respondent:
Counsel: G.J. Marcus (SC) M. Sikhakhane
Instructed by Attorneys: Edward Nathan Sonnenbergs - Sandton C/o: Friedland Hart Solomon & Nicolson - Pretoria