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[2016] ZASCA 68
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Abbott v Overstrand Municipality and Others (99/2015) [2016] ZASCA 68 (20 May 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 99/2015
DATE:
20 MAY 2016
Reportable
In
the matter between:
DAVID
WILLOUGHBY
ABBOTT
..................................................................................
APPELLANT
And
OVERSTRAND
MUNICIPALITY
...................................................................
FIRST
RESPONDENT
THE
MINISTER, DEPARTMENT
OF
.......................................................
SECOND
RESPONDENT
ENVIRONMENTAL
AFFAIRS AND TOURISM
THE
MINISTER, DEPARTMENT
OF
..........................................................
THIRD
RESPONDENT
ENVIRONMENTAL
AFFAIRS AND DEVELOPMENT
PLANNING,
WESTERN CAPE
THE
KLEIN RIVER ESTUARY
FORUM
................................................
FOURTH
RESPONDENT
Neutral
citation:
Abbott v Overstrand
Municipality
(99/2015)
[2016] ZASCA 68
(20 May 2016)
Coram:
Lewis, Cachalia and Tshiqi JJA and Fourie and
Baartman AJJA
Heard:
6 May 2016
Delivered:
20 May 2016
Summary:
Application for the review and setting aside of a
municipality’s decision to refuse to take steps to prevent
damage being
caused to immovable property by flooding – failure
to prove that the municipality had the legal authority or obligation
to
take such steps – requirements for reliance on the doctrine
of legitimate expectation also not met.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town
(Blommaert AJ
sitting as court of first instance):
The
appeal is dismissed with costs including the costs consequent upon
the employment of two counsel.
JUDGMENT
Fourie
AJA (Lewis, Cachalia and Tshiqi JJA and Baartman AJA
concurring):
[1]
During 1982, the appellant, Mr David Willoughby Abbott, acquired
immovable property (the property) bordering on the Klein River,
in
the district of Hermanus, Western Cape Province. In 1989 he erected
buildings on the property, including a house on the bank
of the Klein
River. According to the appellant his house had subsequently been
damaged by the flooding of the Klein River, and
this led to
litigation between him and the first respondent, Overstrand
Municipality (the municipality), culminating in the present
appeal.
[2]
The Klein River forms part of the Klein River estuary (the estuary)
which is an estuarine lake that seasonally opens and closes
on normal
river flow regimes. The estuary stretches from the sea (or mouth of
the estuary, when closed) at Hermanus, to just beyond
the hamlet of
Stanford some 17.5 kilometres upstream. The estuary, and the
property, are situated within the area of jurisdiction
of the
municipality.
[3]
The estuary can be divided into three sections. The lower reaches,
stretching from zero to three kilometres from the mouth comprise
the
mouth area and the inlet channels. When the mouth is closed it is
separated from the sea by a sand-berm (the berm). To establish
connectivity with the sea, the berm needs to be eroded by water from
the estuary itself or by the sea, or to be artificially breached.
[4]
The second part of the estuary is known as the ‘vlei’. It
comprises a large unconstrained main water body upstream
of the mouth
and tidal channels to where the estuary becomes a narrow confined
channel. This stretches from approximately three
to eight and a half
kilometres from the mouth.
[5]
The remainder of the estuary comprises the Klein River which is the
area from eight and a half to 17.5 kilometres upstream from
the mouth
and stretches to a few hundred metres past the bridge at Stanford.
This is where the property is situated, approximately
16 kilometres
upstream from the mouth of the estuary.
[6]
In July 2014 the appellant approached the Western Cape Division of
the High Court, Cape Town, on application alleging that his
dwelling
had been damaged by the flooding of the Klein River in circumstances
where the municipality was obliged, but failed, to
take steps to
prevent such damage. The main relief sought by the appellant was the
review and setting aside, in terms of the Promotion
of Administrative
Justice Act 3 of 2000 (PAJA), alternatively in terms of the common
law, of the municipality’s decision
to refuse to take any steps
to prevent damage being caused to his house by the flooding of the
Klein River. The appellant further
sought the remittal of the matter
to the municipality for reconsideration, ‘which shall include
consideration of steps to
be taken to protect the house against any
flooding of the house, which might be caused by the failure to
artificially breach the
berm of the mouth of the Klein River or to
only breach such berm when the mean water level in the Klein River
estuary exceeds 2.1
metres’.
[7]
The appellant sought the following relief in the alternative:
(a)
an order declaring that an established practice exists in respect of
the breaching of the berm at the mouth of the estuary whenever
low-lying properties were threatened with damage;
(b)
an order declaring that the practice can only be lawfully departed
from if the municipality takes reasonable steps to protect
the
appellant’s house from damage resulting from a departure from
the established practice;
(c)
an order directing the municipality to take reasonable steps to
prevent the flooding of the appellant’s house.
I
should add that no relief was sought against the second to fourth
respondents.
[8]
The appellant’s notice of motion is certainly not a model of
clarity, but when it is read in conjunction with the founding
affidavit and in particular the appellant’s replying affidavit,
it appears that the case put forward by the appellant was
the
following:
(a)
for many years it had been the established practice of the
municipality and its predecessors to artificially breach the berm
at
the mouth of the estuary when the water level in the estuary exceeded
2.1 metres above mean sea level (amsl), so as to prevent
flood damage
to low-lying riparian properties;
(b)
during 2010 the municipality departed from this settled practice by
deciding to artificially breach the berm only at a much
higher level,
without taking steps to protect the properties of those affected by
such decision, including the property of the
appellant;
(c)
the decision to artificially breach the berm at this higher level
resulted in the flooding of the appellant’s property
by the
Klein River causing structural damage to his house;
(d)
on 12 August 2013 the municipality advised him in writing that it was
not legally bound to take any steps to prevent his house
from being
flooded by the Klein River.
[9]
It has to be emphasised that the relief sought by the appellant was
not aimed at addressing the artificial breaching of the
berm. He did
not seek an order compelling artificial breaching of the berm; in
fact, the relief sought by him was only directed
at the municipality
taking measures to protect his property from flood damage which, he
alleged, it had done in the past.
[10]
The municipality opposed the application and, in the event, it was
heard by Blommaert AJ who dismissed the application with
costs, but
granted the appellant leave to appeal to this court.
[11]
The court a quo approached the matter on the basis that, in order to
‘[get] out of the starting blocks’, the appellant
had to
prove that the municipality’s conduct, of which he complained,
was the cause of the damage to the house. However,
in view of the
disputes of fact on the papers as to the cause of the damage,
Blommaert AJ held that the matter had to be decided
on the
municipality’s version, and he accordingly dismissed the
application. Although I agree that the application fell to
be
dismissed, I intend to follow a different route in reaching this
conclusion.
[12]
As stated in
Bato Star Fishing (Pty) Ltd
v Minister of Environmental Affairs and Tourism & others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC) para 22, there is now only one system
of law grounded in the Constitution which regulates administrative
action. The court’s
power to review administrative action is
founded in PAJA and the Constitution itself. In s 1 of PAJA
‘administrative action’
in relation to an organ of state
(such as the municipality in this instance) is defined as the taking
of a decision, or the failure
to take a decision by the organ of
state, when exercising a power in terms of the Constitution or a
provincial constitution, or
exercising a public power or performing a
public function in terms of any legislation. Section 6 of PAJA
codifies the grounds for
judicial review of administrative action,
while s 8 prescribes the remedies a court may grant in proceedings
for judicial review.
[13]
In his notice of motion the appellant relied on s 6(1) of PAJA to
review and set aside the municipality’s decision to
refuse to
take any steps to prevent flood damage to his house. However, all
that s 6(1) provides is that any person may institute
proceedings for
review of an administrative action. As I see it, the application was
in effect one in terms of s 6(2)
(g)
of
PAJA, for the review of the municipality’s failure to take a
decision to prevent damage being caused to the appellant’s
house by the flooding of the Klein River. Therefore, to succeed with
the application he had to show that the municipality was under
a
legal obligation to take steps to prevent damage from being
occasioned to his house by the flooding of the Klein River. See
Commissioner, South African Revenue
Service v Trend Finance (Pty) Ltd & another
[2007] ZASCA 59
;
2007 (6) SA 117
(SCA) para 27;
Offit
Enterprises (Pty) Ltd & another v Coega Development Corporation &
others
[2010] ZASCA 1
;
2010 (4) SA 242
(SCA) para 43 and
Thusi v Minister of
Home Affairs & others
[2010]
ZAKZPHC 87;
2011 (2) SA 561
(KZP) para 42.
[14]
The logical starting point in determining whether the municipality
had the legal obligation (and the necessary power) to take
steps to
protect the appellant’s house from flooding, is the
Constitution. Section 156(1) of the Constitution confers on
municipalities executive authority and the right to administer the
local government matters listed in Part B of Schedules 4 and
5 of the
Constitution, and any other matter assigned to it by national or
provincial legislation.
[15]
The local government matters listed in Part B of Schedules 4 and 5 do
not confer any authority on the municipality relative
to the
breaching of the berm in the estuary and the protection of riparian
property owners against flooding. By contrast, Part
A of Schedule 4
of the Constitution lists the areas of ‘Environment’ and
‘Nature conservation’ as concurrent
national and
provincial functions.
[16]
It follows that any powers which the municipality may wish to
exercise with regard to the estuary have to be assigned to it
by
national or provincial legislation. By virtue of the amalgamation of
municipalities the estuary has since 5 December 2000 fallen
within
the areas of jurisdiction of the municipality and the Overberg
District Municipality (the latter’s area of jurisdiction
also
encompassing several other local municipalities). However, no power
or duty to manage or control the estuary and to take measures
to
protect riparian properties, has been assigned to the municipality by
national or provincial legislation.
[17]
The National Environmental Management Act 107 of 1998 (NEMA) which
commenced on 29 January 1999, provides in s 24(2)
(a)
that the national minister responsible
for environmental affairs may identify activities which may not
commence without an environmental
authorisation from the ‘competent
authority’. Various activities have subsequently been listed
under s 24(2)
(a)
of
NEMA, thereby empowering the third respondent (the MEC) to, inter
alia, authorise an activity such as the artificial breaching
of the
berm at the mouth of the estuary. The delegate of the MEC duly
authorised the artificial breaching of the berm when approving
the
mouth management plan and its revision submitted by the fourth
respondent (KREF) in 2010 and 2013, as recorded in more detail
in
para 30 infra.
[18]
The Nature Conservation Ordinance 19 of 1974 (Cape) also contains
provisions dealing with the management and control of ‘inland
waters’, ie all waters which do not permanently or at any time
during the year form part of the sea. This would include a
body of
water such as the estuary. Section 16(1)
(c)
(ii),
read with s 16(1)
(e)
,
of the ordinance, confers the power on CapeNature (the Western Cape
Nature Conservation Board) to take such steps as may be necessary
or
desirable for the achievement of the objects and purposes of the
ordinance, including the power to take such measures as may
be
necessary or desirable for the control of fish and aquatic growths in
the estuary. These powers conferred on CapeNature are
sufficiently
wide to encompass the power to manage the estuary, including the
management of the breaching of the berm between the
estuary and the
sea. I should add that, as explained by Ms Lara van Niekerk, an
estuarine specialist, employed by the CSIR and
an advisor to the
municipality, artificial breachings of the berm at lower than natural
breaching levels, reduces the volume and
duration of water-flow out
to sea with resultant increased sedimentation in the lower vlei. This
has had an adverse effect on the
ecology of the vlei. Therefore, the
breaching of the berm at higher and, if possible, natural levels,
will have (and has had) positive
results. In short, breaching at
higher levels is required to prevent the vlei from silting up to the
detriment of the estuarine
ecology.
[19]
It is possible that, in the future, the municipality may be
authorised to administer the estuary under the National Environmental
Management: Integrated Coastal Management Act 24 of 2008 (ICMA) which
commenced on 1 December 2009. Chapter 4 of ICMA provides
for
estuarine management in order to address the lack of effective
management of estuaries. To that end a protocol has been published
under ICMA in May 2013, which provides for the management of
estuaries through the development and implementation of individual
estuarine management plans. However, the municipality will only be
authorised to manage the estuary under the provisions of ICMA
if it
agrees, and has the capacity, to do so, in accordance with s 156(4)
of the Constitution. This has not happened and therefore
the
municipality does not have any authority under ICMA to manage the
estuary, including the breaching of the mouth of the estuary.
[20]
The appellant contends that, notwithstanding the provisions of s 156
of the Constitution and the other legislation referred
to above, the
municipality does have the necessary authority to manage the estuary
and to protect the riparian properties against
flood damage. For this
submission the appellant relies on a pre-constitution resolution,
embodied in a council minute of the then
Hermanus Municipality dated
9 September 1991, and the contents of a public newsletter distributed
by the Hermanus Municipality
in November 1991. The council minute
records that a letter had been received from the Chief Director:
Nature and Environmental
Conservation (CDNEC) (the predecessor to
CapeNature) suggesting that the Hermanus Municipality should take
over control of the
management of the estuary, including ‘die
oopmaak van die mond’. The Hermanus Municipality resolved that
it was prepared
to accept full control over the estuary, but
requested the CDNEC to define the council’s powers and
responsibilities in this
regard. There is no evidence of the CDNEC
defining these powers and responsibilities, but in the newsletter of
November 1991 the
Hermanus Municipality reported as follows:
‘
For
the first time the responsibility of deciding whether or not to open
the lagoon rested with the municipality as complete control
of the
lagoon, rather than just the recreational aspects thereof, has been
handed over to us. This includes the controversial opening
of the
lagoon each year, after prior consultation with the CSIR and in
accordance with the guidelines laid down by them.’
[21]
This submission of the appellant, however, takes no account of the
re-allocation of public powers and responsibilities by and
in terms
of the Constitution in 1996. In addition, as I will in due course
illustrate, the municipality did not, in fact, assume
control of the
management of the estuary and the breaching of the berm, but, at
most, was represented on committees, consisting
of various interested
parties which attended to these matters.
[22]
I should add that, in his replying affidavit, the appellant also
sought to rely on certain regulations (Overberg Regional Services
Council Regulations for the control of the sea-shore and the sea
situated within or adjoining the area of jurisdiction of the Overberg
Regional Services Council, GN R35,
GG
15624, 15 April 1994) made by the Overberg Regional Services Council
(the Overberg RSC), promulgated in 1994 pursuant to s 10(1)
of the
Sea-Shore Act 21 of 1935. The appellant avers that the control of the
sea shore within its area of jurisdiction then vested
in the Overberg
RSC and that the municipality as the successor of the Overberg RSC,
is now clothed with the powers conferred in
terms of the 1994
regulations. Therefore the appellant contends that the municipality
has in terms of the 1994 regulations the
power to control the sea
shore, including the estuary.
[23]
As pointed out by the municipality, there is simply no merit in the
appellant’s reliance on the 1994 regulations. Firstly,
the
Overberg District Municipality, and not the municipality, is the
successor-in-law to the Overberg RSC with regard to the management
of
the sea shore within the area of its jurisdiction. Furthermore, the
1994 regulations contain a prohibition on the opening of
the mouth of
a river where a bar of sand has developed between the mouth of the
river and the sea blocking tidal interchange. It
follows that the
municipality has derived no powers from the 1994 regulations to
exercise any authority or control over the estuary
or to take steps
to protect riparian owners from flooding. For the sake of
completeness I should add that the municipality does
exercise some
authority over the estuary, but with regard to certain constitutional
functional areas only, namely the licensing
and control of boats in
the lagoon and the recreational aspects of the lagoon.
[24]
From this it follows that there is no legislation (whether national
or provincial) which has assigned to the municipality the
power or
the duty to manage the estuary and to take measures to protect
riparian properties. Therefore, the appellant has failed
to show that
the municipality was under a legal obligation to take steps to
protect his house from flooding by the Klein River.
It should also be
borne in mind that the municipality cannot lawfully assume powers it
does not have, nor can it be compelled to
take steps it has no
authority to take. See
Fedsure Life
Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 56;
City
of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd
[2007] ZASCA 28
;
2008 (3) SA 1
(SCA) paras 11-13. The application for
review under PAJA accordingly had to fail.
[25]
Although it is not necessary, I consider it appropriate to briefly
deal with the factual premise of the appellant’s case,
to show
that, at a factual level too, the application for review was beset by
insuperable difficulties. At the outset I should
refer to the
appellant’s change of stance at the hearing of the appeal. His
case on the papers was that his house was damaged
by the flooding of
the Klein River. However, during argument on appeal, counsel for the
appellant attempted to pin his colours
to the mast of damage caused
to the house by the gradual ingress of water and not by flooding.
This was not the case that the municipality
was required to meet. It
is abundantly clear from the notice of motion and the affidavits
deposed to by the appellant that he relied
on the actual flooding of
his house as the cause of the damage. Counsel for the appellant
sought support in the affidavit of an
engineer who had inspected the
house on behalf of the appellant, but, ironically, the affidavit
contained references to the ‘continuous
flooding of the house’,
‘cracks [that] were caused by the water flooding the area’
and that steps are to be taken
‘to protect the house from
further flooding’. The appellant is accordingly not entitled to
stray from the case made
out on his papers.
[26]
In his founding papers the appellant alleged that his house was
subjected to continuous or repeated flooding. In due course
it became
common cause that this was a gross exaggeration. In his replying
affidavit the appellant made it clear that from 1989
to 2010 no
flooding of his property had occurred. He stated that it was ‘only
when the decision was taken that artificial
breaching of the river
mouth would cease’, that the flooding of his property
commenced. This decision was taken in March
2010. However, the
appellant mentioned only two specific flooding incidents subsequent
to March 2010, namely one in September 2011
and the other in November
2013 (the latter, however, being a kind of flooding for which the
municipality was not responsible).
This left only one incident of
flooding (in September 2011), which is a far cry from his allegations
of continuous or repeated
flooding of his property. I should add
that, during the flood of September 2011, as depicted in photographs
taken by the appellant,
the water did not reach his house.
[27]
Apart from this gross exaggeration, the appellant’s version
that it was only after the decision in March 2010, to artificially
breach the berm at the higher water level of 2.6m amsl, that rising
water levels caused damage to his property, is seriously undermined
by the evidence of the municipality. This undisputed evidence shows
that in 1997, 1998, 1999, 2001, 2003, 2006 and 2007 the berm
was
breached at levels between 2.63m and 2.8m amsl, all of which are
years when the appellant says he suffered no damage to his
property.
It is further significant that on 14 August 2012, when the berm
breached naturally with the water level at 2.77m amsl,
the appellant
experienced no flooding at his property. All of this tends to show
that any flooding of the appellant’s house
(which on the
appellant’s version had in any event only taken place in
September 2011) was probably not related to the breaching
of the
berm.
[28]
A repeated allegation in the appellant’s papers is that, during
episodes of flooding, the municipality had taken preventative
measures to protect low-lying riparian properties, including his
property. The impression gained from the founding affidavit is
that
there had been a long established practice by the municipality to
protect riparian properties against flooding, including
properties
along the Klein River where the appellant had constructed his house.
The municipality, however, denied the existence
of such a practice,
stating that the only protective measures which were taken were those
to protect low-lying properties on the
vlei against strong wind and
wave action. This was confirmed by Mr Martens who, at the relevant
time, was the officer at CapeNature
who attended to the taking of
such protective measures. According to Mr Martens no protective
measures were ever taken to protect
the low-lying properties along
the banks of the Klein River, other than to communicate
telephonically with the appellant as to
the water levels in the vlei.
Mr Martens also denied that he ever went to the appellant’s
property, as suggested by the appellant.
It follows that there was a
material dispute of fact as to the existence of the practice
contended for by the appellant. The version
of the municipality can
certainly not be rejected out of hand as being far-fetched and
untenable, particularly where it is confirmed
by Mr Martens of
CapeNature.
[29]
To this one should add that the evidence also does not bear out the
existence of a practice (particularly prior to 2010 as
suggested by
the appellant) of artificially breaching the berm at the mouth of the
estuary when the water level in the vlei reached
a level of 2.1m
amsl. On the contrary, the available breaching evidence shows that
during the period 1990-2010 artificial breaching
at a level of 2.1m
amsl took place on only three occasions, ie in 1990, 1994 and 1996.
Thereafter artificial breaching took place
on seven occasions at
water levels substantially in excess of 2.1m amsl.
[30]
The appellant’s contention that the municipality was the party
who managed the estuary and attended to the breaching
of the berm, is
also incorrect. What the evidence shows is that various role players,
including the municipality, have through
the years been responsible
for deciding whether or not the berm should be artificially breached
and, if so, at what level breaching
should take place. To this end
advisory committees were formed, the present being KREF, consisting
of representatives of various
government agencies and civil society
organisations with an interest in the proper management of the
estuarine ecosystems, including
representatives of the municipality.
Mouth management plans were devised by these bodies, which included a
plan approved under
the auspices of KREF, following a ‘breaching
indaba’ on 4 March 2010. This mouth management plan was
approved by the
Western Cape Department of Environmental Affairs and
Development Planning and is the plan presently in place for the
management
of the estuary, including the artificial breaching of the
berm when necessary. This plan provides that, in the absence of
crisis
conditions, the minimum water level at which artificial
breaching could be considered is 2.6m amsl. During June 2013 KREF
revised
the mouth management plan to allow breaching even if the
water level in the vlei was lower than the minimum preferred water
level
of 2.6m amsl. The revision was sought due to the decreased mean
annual runoff, which meant that there may be years in future where
the system does not reach the required level for breaching, which
would be ecologically damaging. On 22 August 2013 the revised
mouth
management plan was approved by the Western Cape Department of
Environmental Affairs and Development Planning.
[31]
Finally with regard to the factual difficulties faced by the
appellant, the court a quo correctly held that there was a material
dispute on the papers as to the cause of the damage to the
appellant’s house. I do not intend traversing the respective
versions in any detail, save to allude to the municipality’s
contention that flooding which might occur at the appellant’s
property is in all probability related to the occurrence of major
river floods, rather than to high water levels in the vlei. The
municipality’s version is based on expert opinion that flooding
of the appellant’s property would occur regardless
of whether
the mouth is open or closed. This version can certainly not be
rejected out of hand as being so far-fetched and clearly
untenable
that it can confidently be said, on the papers alone, that it is
demonstrably and clearly unworthy of credence. It follows
that, on
this basis too, the review application was doomed to failure.
[32]
What remains, is the appellant’s alternative cause of action
(see para 7 supra) in which he invoked the doctrine of legitimate
expectation. He submitted that, as the municipality and its
predecessors had for many years exercised various levels of control
over the estuary, in particular by following a policy of breaching
the berm at the lower level of 2.1m amsl to protect low-lying
riparian properties, this has given rise to a legitimate expectation
on his part that the practice would only be departed from
if
reasonable steps were taken by the municipality to protect his
property from flooding by the Klein River.
[33]
It will be immediately apparent that the appellant attempted to
invoke the doctrine of legitimate expectation to substantiate
his
claim for substantive relief, ie an order directing the municipality
to take reasonable steps to prevent his house from flooding.
In
Meyer
v Iscor Pension Fund
[2002] ZASCA 148
;
2003 (2) SA 715
(SCA) para 27, this court confirmed that the doctrine
of substantive legitimate expectation has not yet been adopted as
part of
our law. Our courts have applied the doctrine in the narrow
procedural sense only, ie as being confined to the right to a hearing
before the legitimate expectation is disappointed, and not in the
wider sense of conferring substantive benefits on the party having
the expectation. See
Meyer v Iscor
Pension Fund
, supra, para 25;
South
African Veterinary Council & another v Szymanski
[2003] ZASCA 11
;
2003 (4) SA 42
(SCA) para 15;
Walele
v City of Cape Town & others
[2008]
ZACC 11
;
2008 (6) SA 129
(CC) para 35 and
MEC
for Education, Northern Cape Province & another v Bateleur Books
(Pty) Ltd & others
[2009] ZASCA 33
;
2009 (4) SA 639
(SCA) para 23.
[34]
As emphasised in
Walele
,
para 38, the inquiry for determining the existence of a legitimate
expectation is primarily factual, and the focus is on objective
facts
giving rise to the expectation. In view of my findings above with
regard to the factual premise of the application, it follows
that,
even on the acceptance of the doctrine of legitimate expectation of a
substantive benefit as part of our law, the application
was doomed to
failure. This is so as the appellant had in several respects failed
to establish the factual basis for his alleged
legitimate
expectation. In particular, he failed to establish the existence of
an established practice where the berm was artificially
breached at a
maximum water level of 2.1m amsl. He also failed to show that the
decision to breach was taken by the municipality.
Further, the
appellant failed to prove that the breaching of the berm was a
protective measure taken for the benefit of his property,
as opposed
to the low-lying properties adjacent to the vlei. In fact, the
evidence showed that he had never benefited from the
protective
measures taken to protect low-lying properties along the vlei against
wind and wave action.
[35]
In the result the appeal is dismissed with costs including the costs
consequent upon the employment of two counsel.
P B FOURIE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For Appellant: A
C Oosthuizen SC (with him J H Loots)
Instructed
by: KSS Keller Snyman Schelhase, Cape Town
Phatsoane
Henney Inc., Bloemfontein
For
Respondent: A Breitenbach SC (with him A Erasmus)
Instructed
by: Fairbridges Attorneys, Cape Town
McIntyre
van der Post, Bloemfontein