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[2018] ZAWCHC 36
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Habitat Council v City of Cape Town and Others (16920/2016) [2018] ZAWCHC 36 (20 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case no:
16920/2016
THE
HABITAT
COUNCIL
Applicant
v
THE
CITY OF CAPE
TOWN
1
st
Respondent
CORNELIS
ANDRONIKUS AUGOUSTIDES N.O.
2
nd
Respondent
MICHAEL
ANDRONIKUS AUGOUSTIDES N.O.
3
rd
Respondent
RAYMOND
JAMES WILSON
N.O.
4
th
Respondent
PANGIOTIS
ZITIANELLIS
N.O.
5
th
Respondent
(second
to fifth respondents in their capacities as the trustees
for
the time being of the Gera Investment Trust, IT 3449/2007)
HERITAGE
WESTERN CAPE
6
th
Respondent
THE
SOUTH AFRICAN HERITAGE RESOURCES AGENCY
7
th
Respondent
THE
PLANNING AND GENERAL APPEALS COMMITTEE
OF
THE CITY OF CAPE TOWN
8
th
Respondent
EXECUTIVE
MAYOR OF THE CITY OF CAPE TOWN
9
th
Respondent
THE
MAYORAL COMMITTEE OF
THE
CITY OF CAPE TOWN (“MAYCO”)
10
th
Respondent
Coram
:
Justice J Cloete
Heard
:
8 February 2018
Delivered
:
20 March 2018
JUDGMENT
CLOETE
J
:
Introduction
and background
[1]
On 3 November 2015 the 10
th
respondent (“MAYCO”)
approved an application by the 2
nd
to 5
th
respondents to develop erf 174009 Strand Street, Cape Town, on which
a 249 year old historic building known as the Melck warehouse
is
situated.
[2]
The applicant had previously objected to the proposed development. On
12 November 2015 it was informed in writing by the
1
st
respondent’s Director: Planning and Building Development
Management that it had a right to appeal the MAYCO decision to the
8
th
respondent (“PLANAP”). The applicant duly
lodged an appeal and it was refused by PLANAP on 11 March 2016.
[3]
The applicant was subsequently
made aware that it had no right to appeal the MAYCO decision; that
PLANAP was not empowered in terms
of the relevant statutory
provisions to entertain and therefore refuse its appeal;
[1]
and that accordingly the PLANAP decision ‘
is
a nullity and / or falls to be set aside as irregular’.
[4]
The applicant intends taking the MAYCO decision on review. Its case
however is that before it can competently do so, it is necessary
for
a court to first review and set aside the PLANAP decision, hence the
present application.
[5]
Only the 1
st
and 8
th
to 10
th
respondents filed a notice of opposition and an answering affidavit,
and for convenience I will refer to them collectively as “the
respondents”. They accept that PLANAP was not authorised in
terms of the applicable empowering provision
[2]
to hear and determine the applicant’s appeal. However they
contend that: (a) the applicant lacks
locus
standi
to seek the present
relief; and (b) PLANAP’s decision has no legal consequence and
it is therefore irrelevant whether it
is set aside by a court ‘
as
being a nullity’.
[6]
The applicant advanced two alternative grounds for the relief sought,
namely systemic bias on the part of the Democratic Alliance
and
various individuals, and the failure to consider relevant
information. These grounds are only relied upon in the event that
it
is found that PLANAP’s decision is not a nullity.
[7]
The allegations concerning bias run to 44 paragraphs in the founding
affidavit and are serious and wide ranging, are unsupported
by any
objective evidence, and include accusations levelled at individuals
who are not even party to these proceedings. Moreover,
once the
PLANAP record was made available in terms of uniform rule 53, the
applicant was unable to substantiate them, although
it is
acknowledged that the bias allegations extend beyond the PLANAP
decision itself.
[8]
This caused the 1
st
respondent to launch a striking out
application. Undeterred, the applicant persisted with the
allegations, even going so far as
to suggest in its replying
affidavit that the court ‘
can take judicial notice of the
concerns in this regard which are in the public domain and have been
reported in the media for some
time’.
[9]
On 8 December 2017 the
respondents, through their attorney, made an open tender. While
maintaining their stance that there was ‘
no
legal necessity’
for
the review and setting aside of the PLANAP decision, they tendered:
(a) that the PLANAP decision be set aside by agreement;
(b) the
applicant’s costs be paid on an unopposed basis up to the stage
of filing of the answering affidavit and application
to strike
out;
[3]
and (c) that each party otherwise pay their own costs. The
applicant rejected the tender.
[10]
The issues for determination are thus: (a) the applicant’s
locus standi
; (b) whether an order of court is required
to review and set aside the PLANAP decision; (c) whether the
offending allegations
fall to be struck out; and (d) liability
for costs.
Locus
standi
[11]
The respondents argue that,
because the applicant was not a party to the development application
in respect of which its appeal
served before PLANAP,
[4]
and thus had no
locus standi
to appeal to PLANAP, it therefore has no
locus
standi
to take the PLANAP
decision on review.
[12]
To my mind this argument is
flawed for the following reasons. First, there is no suggestion by
the respondents that the applicant
lacks
locus
standi
to take the MAYCO
decision (the genesis of the PLANAP decision) on review. Second,
although not spelt out in the applicant’s
founding affidavit,
it is clear that the impugned PLANAP decision is sought to be
reviewed under s 6 of PAJA,
[5]
and the principle of legality, as was confirmed in the applicant’s
replying affidavit. S 6(1) of PAJA provides that
any
person may institute proceedings in a court or tribunal for the
judicial review of an administrative action, and there is no dispute
that the PLANAP decision constitutes administrative action.
[13]
Section 33(1) of the Bill of Rights in the Constitution provides that
everyone has the right to administrative action that
is lawful,
reasonable and procedurally fair. Section 38 of the Constitution in
turn confers
locus standi
on any one of the following persons
to approach a court, alleging that a right in the Bill of Rights has
been infringed or threatened:
13.1
Anyone acting in their own interest;
13.2
Anyone acting on behalf of another person who cannot act in their own
name;
13.3
Anyone acting as a member of, or in the interest of, a group or class
of persons;
13.4
Anyone acting in the public interest; and
13.5
An association acting in the interest of its members.
[14]
The applicant is a voluntary association of persons and organisations
not for gain, with such powers as may be necessary to
give effect to
its objectives, which are to promote matters pertaining to the
environment, with a view to ensuring sustainable
conservation, and
the utilisation and management of the built and natural environments.
It has also been formally recognised by
the 6
th
respondent
as a heritage conservation body. It avers that it has an intrinsic
interest in lawful administrative action and, in
particular, a direct
and substantial interest in the lawful application of the planning
laws applicable within the municipal jurisdiction
of the 1
st
respondent. It further avers that it is also acting in the public
interest to ensure that the conduct of administrators and, in
this
case, the 1
st
respondent and its delegated bodies, is
lawful, reasonable and procedurally fair. These allegations are not
denied by the respondents,
who simply aver that they either have no
knowledge thereof or note them.
[15]
The preamble to PAJA states that its purposes include promoting an
efficient administration and good governance, and creating
a culture
of accountability, openness and transparency in the public
administration, or in the exercise of a public power or the
performance of a public function, by giving effect to the right to
just administrative action.
[16]
In Hoexter:
Administrative
Law in South Africa
2
nd
Edition, the learned author considers the issue of
locus
standi
under the Bill of
Rights and its relationship to PAJA.
[6]
She concludes with the following:
‘
In
the context of administrative law the most pressing question is which
requirements of standing apply in relation to cases brought
under the
PAJA. The version of the Act that was recommended by the South
African Law Reform Commission replicated the wording of
s 38
[of
the Constitution]
,
although without mentioning its provenance. Unfortunately the
provision was deleted in the final stages of the parliamentary
process, thus causing some uncertainty as to the position. However,
in the light of the arguments made above, and in view of the
fact
that the PAJA aims to gives effect to s 33 of the Constitution, it
seems clear that the provisions of s 38 ought to be read
into the
statute.’
[17]
Moreover, given the findings in the next section of this judgment, I
am persuaded that the applicant indeed has the necessary
locus
standi
to have approached court for the relief sought.
Whether
an order of court is required
[18]
Given that the PLANAP decision is clearly a nullity it is not
necessary to consider the alternative review grounds.
[19]
In their answering affidavit the respondents not only denied that the
PLANAP decision was required to be set aside by a court,
but also
sought the dismissal of the application with costs.
[20]
In heads of argument filed subsequently on their behalf, it was
contended that there was no obligation on the 1
st
respondent to have approached court for the review and setting aside
of the PLANAP decision because:
‘…
as
the law presently stands, the City is entitled, in the appropriate
circumstances, to raise a challenge reactively to a defective
administrative decision of an organ of state, even if it was its own
invalid decision… The City has in fact raised a reactive
(or
“collateral”) challenge… in the City’s
answering affidavit wherein it declared, inter alia, that it
regarded
the
[PLANAP decision]
as null and void and
stated that the applicant should have brought an application for the
review and setting aside of the MAYCO
decision.’
[21]
However, as pointed out by counsel for the applicant, a collateral
challenge is one raised to resist
coercive
compliance with an
invalid or void decision:
‘
The
settled law is that the target of such compulsion is entitled to
await events and resist only when the unlawful condition is
invoked
to coerce it into compliance…’
[7]
[22]
In the present matter the applicant has not sought to compel PLANAP
to implement the impugned decision – quite the opposite.
All
that it asks is that the bar to it instituting review proceedings in
respect of the MAYCO decision be removed by setting aside
the PLANAP
decision. It follows that the respondents’ reliance on a
collateral challenge is misplaced.
[23]
As
Merafong
[8]
makes clear, the respondents cannot ignore the PLANAP decision on the
basis that it is a nullity. It nonetheless remains legally
effective
until it is set aside by a court, given that it is the exclusive role
of the courts to determine legality. Cameron J
explained this as
follows:
‘
Where
Kirland
above…
says that a decision not properly set aside “remains
valid”
,
it means that it remains
legally
effective
.
Absence of challenge by the right litigant in the right forum at the
right time doesn’t magically heal the administrative-law
flaws
in the decision. It means that the decision continues to have
effect
in law
until
properly set aside.’
[9]
[24]
By the same token
Merafong
recognises that it was not
incumbent on the respondents to themselves have approached court to
have the PLANAP decision set aside:
‘
Oudekraal
and
Kirland
did
not impose an absolute obligation on private citizens to take the
initiative to strike down invalid administrative decisions
affecting
them. Both decisions recognised that there may be occasions where an
administrative decision or ruling should be treated
as invalid even
though no action has been taken to strike it down. Neither decision
expressly circumscribed the circumstances in
which an administrative
decision could be attacked reactively as invalid. As important, they
did not imply or entail that, unless
they bring court proceedings to
challenge an administrative decision, public authorities are obliged
to accept it as valid. And
neither imposed an absolute duty of
proactivity on public authorities. It all depends on the
circumstances.’
[10]
[25]
Given the above, it seems clear that the legal effect of the PLANAP
decision remains extant until set aside by the court. Having
pursued
a flawed appeal process the court must “undo” the
decision that followed in order for the applicant to competently
institute proceedings for a review of the MAYCO decision.
[26]
I accordingly disagree with the respondents’ submission that
the applicant, upon being made aware that they agreed the
PLANAP
decision was a nullity (i.e. when their answering affidavit was
filed), ought to have amended its application to seek the
review and
setting aside of the MAYCO decision. Nor do I agree that it was
alternatively incumbent on the applicant to have simultaneously
launched proceedings for the review and setting aside of both the
PLANAP and MAYCO decisions.
The
striking out application
[27]
In terms of rule 23(2) of the uniform rules, a court can only strike
out offensive matter if satisfied that the complaining
party will be
prejudiced in the conduct of its claim or defence if it is not struck
out.
[28]
Counsel for the applicant argued that the question of prejudice
cannot arise given the respondents’ concession (in its
tender)
that the PLANAP decision falls to be set aside. He also submitted
that if the material is struck out, the applicant will
be placed in
an invidious position, since in the contemplated review of the MAYCO
decision, it will be open to the respondents
to challenge the bias
allegations on the ground that they have already been struck out in
these proceedings.
[29]
I have certain fundamental difficulties with this approach. First,
and while I appreciate that the applicant needed to foreshadow
alternative grounds for review of the PLANAP decision (since it was
only in the answering affidavit that the respondents conceded
that it
is a nullity), this does not mean that the respondents were not, and
will not in future be, prejudiced. This is because
the bias
allegations extend way beyond the PLANAP decision, and may have a
material impact in the review of the MAYCO decision
that will follow.
[30]
Second, the allegations are, in the main, in such broad and sweeping
terms that the respondents have been severely prejudiced
in
attempting to answer them.
[31]
Third, courts determine issues, not crusades, and the applicant
should have placed facts before the court which could have
assisted
it in determining whether there is any substance to these
allegations. This the applicant failed to do, ultimately retreating
to the position of an invitation to the court to take ‘
judicial
notice’
of what has allegedly appeared in the media and the
public domain. This approach to litigation cannot be countenanced.
[32]
As was held by the
Constitutional Court in
Helen
Suzman Foundation v President of the Republic of South Africa and
Others; Glenister v President of the Republic of South Africa
and
Others
:
[11]
‘
[29]
The allegations in the struck-out material amount to reckless and
odious political posturing or generalisations
which should find no
accommodation or space in a proper court process. The objective
appears to be to scandalise and use the court
to spread political
propaganda that projects others as irredeemable crooks who will
inevitably actualise…
[the]
alleged projection
that South Africa may well become a failed state. This stereotyping
and political narrative are an abuse of court
process…
[30]
These assertions or conclusions are scandalous, vexatious or
irrelevant. Courts should not lightly
allow vitriolic statements of
this kind to form part of the record or as evidence. And courts
should never be seen to be condoning
this kind of inappropriate
behaviour, embarked upon under the guise of robustness…’
[33]
It is for these reasons that the offending paragraphs in the founding
affidavit must be struck out. However, I make it clear
that it is
nevertheless open to the applicant, in the contemplated MAYCO review,
to revive its allegations of bias on a proper
basis, and the order
that follows should not be construed as a finding by this court that
such allegations are necessarily baseless.
Costs
[34]
The applicant is correct that it had to approach court to have the
PLANAP decision reviewed and set aside. It is also correct
that the
respondents only formally consented to such an order in their tender
of 8 December 2017, almost 4 months after the applicant
delivered its
replying affidavit. The respondents’ tender to pay costs on an
unopposed basis up to the filing of their answering
affidavit and
striking out application was thus inadequate.
[35]
However, the applicant should have seriously considered the formal
consent tendered by the respondents to have the PLANAP decision
reviewed and set aside. This it failed to do, and unnecessary costs
were incurred by the applicant persisting in having the merits
ventilated thereafter, and in its refusal to withdraw the offending
material that forms the substance of the striking out application.
[36]
With this in mind, it is my view that an appropriate costs order is
the one that follows.
[37]
In the result the following order is made:
1.
The decision of the eighth respondent (“PLANAP”)
dated 11 March 2016 refusing the applicant’s appeal is
reviewed
and set aside.
2.
Paragraphs 97 to 141 of the applicant’s founding
affidavit are struck out, and the applicant shall pay the first
respondent’s
costs attendant upon the striking out application.
3.
The first, eighth, ninth and tenth respondents shall pay the
costs of the main application up to and including 8 December 2017,
jointly and severally, the one paying, the others to be absolved.
4.
Save as aforesaid, there shall be no order as to costs.
________________
J
I CLOETE
For
Applicant
: Adv A
Maher
– 4239690
Instructed
by: D Beukman, Beukman & Associates, 8500696
For
1
st
, 8
th
,
9
th
and 10
th
Respondents
: Adv M
Schreuder
– 4246300
Instructed by: MHI
Attorneys Bellville
[1]
City of Cape
Town v Reader and Others
[2008] ZASCA 130
;
2009 (1) SA 555
(SCA) at paras [30] – [32].
[2]
S 62
of the
Local Government: Municipal Systems Act 32
of 2000
.
[3]
The reference to ‘
counterclaim’
instead of ‘
striking
out application’
in
the tender was a patent error as confirmed by counsel for the
respondents during argument.
[4]
The only parties to that application were the
prospective developers, i.e. the 2
nd
to 5
th
respondents.
[5]
Promotion of Administrative Justice Act 3 of 2000
.
[6]
At pp491-494.
[7]
City of Cape
Town v Helderberg Park Development (Pty) Ltd
2008
(6) SA 12
(SCA) at para [50] and the authorities cited therein.
[8]
Merafong City
v Anglogold Ashanti
2017
(2) SA 211
(CC) at paras [41] to [43].
[9]
At fn 63.
[10]
At para [44].
[11]
2015 (2) SA 1
(CC) at paras [23] – [30] especially at paras
[29] – [30].