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[2016] ZASCA 81
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Caine Bros (Pty) Limited t/a Triple A Beef v Development Tribunal for KwaZulu-Natal and Others (471/2015) [2016] ZASCA 81 (30 May 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No:471/2015
DATE:
30 MAY 2016
Reportable
In
the matter between:
CAINE
BROS (PTY) LIMITED T/A TRIPLE A
BEEF
.................................................
APPELLANT
And
THE
DEVELOPMENT TRIBUNAL FOR
KWAZULU-NATAL
..........................................................................................
FIRST
RESPONDENT
THE
DEVELOPMENT APPEAL TRIBUNAL
FOR
KWAZULU-NATAL
............................................................................
SECOND
RESPONDENT
THE
TRUSTEES OF THE SURREY ROAD
PROPERTY
TRUST BEING KANTHILALL
PREMRAJH
NO AND SITA PREMRAJH
NO
.............................................
THIRD
RESPONDENT
Neutral
Citation: Caine Brothers v Development Tribunal for KwaZulu-Natal
(471/2015)
[2016] ZASCA 81
(30 May 2016)
Coram:
Lewis, Leach, Tshiqi, Seriti and Pillay JJA
Heard:
20 May 2016
Delivered:
30 May 2016
Summary:
An objector to an application for land development is not entitled to
review a decision on the basis that it has not had
a hearing prior to
the decision being made when in fact it has been heard on more than
one occasion and in more than one forum.
ORDER
On
appeal from: KwaZulu-Natal Division of the High Court,
Pietermaritzburg (D Pillay J sitting as court of first instance).
1
The appeal is dismissed, save as set out below, with costs.
2
The words in paragraph 1 of the order ‘on an attorney and
client scale’ are deleted.
3
The order of the high court in respect of the costs of the
interlocutory application is replaced with:
‘
The
costs of the interlocutory application are to be paid by the third
respondent.’
JUDGMENT
Lewis
JA (Leach, Tshiqi, Seriti and Pillay JJA concurring)
[1]
The appellant, Caine Brothers (Pty) Ltd t/a Triple A Beef (Caine
Brothers), is the owner of the largest cattle farm and feedlot,
as
well as an abattoir, in KwaZulu-Natal. It sought to review the
decision of the first respondent, the Development Tribunal for
KwaZulu-Natal (the tribunal) that approved a land development
application in terms of s 25 of the Development Facilitation Act
67
of 1995 (DFA). Caine Brothers had appealed unsuccessfully against the
decision to approve the development to the second respondent,
the
Development Appeal Tribunal for the province (the appeal tribunal).
It was unsuccessful in that body too, and so applied to
the
KwaZulu-Natal Division of the High Court (the high court) for the
appeal tribunal’s decision to be reviewed and set aside
as
well. The high court (D Pillay J) declined the application in respect
of both decisions, awarding attorney and client costs
against Caine
Brothers, but gave leave to appeal to this court. The first and
second respondents do not oppose the appeal.
[2]
The application for development was brought in terms of the DFA. It
should be noted at the outset that in
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
& others
[2010] ZACC 11
;
2010 (6) SA 182
(CC) the Constitutional Court,
confirming a decision of this court
[2009] ZASCA 106
;
(2010 (2)
SA 554
(SCA)), declared that chapters V and VI of the DFA were
constitutionally invalid. It suspended the order of invalidity for
two
years after the order, made on 18 June 2010. The chapters dealt
with land development and the application for development was made,
and the tribunal and appeal tribunal made their decisions, in terms
of their provisions. The procedures and tribunals in the litigation
under appeal became inoperative by virtue of the court’s
declaration on 17 June 2012. The DFA has now been repealed, with
effect from 1 July 2015, and replaced by the
Spatial Planning and
Land Use Management Act 16 of 2013
. Nothing in this appeal turns on
these changes to the legislation. The tribunal had concluded its work
before the order of invalidity
had taken effect, and the appeal to
the appeal tribunal was treated as a matter pending.
[3]
The third respondent is the Surrey Road Property Trust (the trust)
represented by its two trustees. It does oppose the appeal.
The trust
had applied, in February 2009, in terms of the DFA to change the
zoning of a portion of a farm so that it could erect
various
buildings for different uses on it. The proposed development was
named Platinum Ridge and is in the district of Hanover.
The trust
also applied to the Minister of Agriculture for permission to
subdivide the farm in terms of the Subdivision of Agricultural
Land
Act 70 of 1970, which was granted during the course of the
proceedings that are the subject of the appeal.
[4]
Caine Brothers objected to the proposed development on 20 April 2009.
It would have included a fuel filling station, a garage,
a commercial
area for shops and offices, and a hospital. The essence of the
objection was that the development would jeopardize
agricultural
activities nearby because the area was not fit for habitation by
people using such facilities, given the proximity
of more than 20 000
head of cattle, the feedlot and the abattoir. The odours, cattle
flies and other hazards attendant on such
agricultural activities,
Caine Brothers maintained, would make the proposed development unfit
for the proposed activities.
[5]
The tribunal to which the application was made convened for a
prehearing conference on 28 April 2009, at which Caine Brothers
was
represented not only by a director but also by an advocate, Mr A J
Dickson SC, who has represented it throughout the proceedings
and has
appeared for it on appeal. The tribunal called for further clarity on
the application. It met again on 1 April 2011. Starting
on 31 May
2011, the tribunal met and heard representations by a land use
planner representing the trust, and by Mr Dickson, representing
Caine
Brothers, amongst several others. The hearing was adjourned twice and
met, in all, over three days. At the end of the hearing
the chairman
indicated that the tribunal had deliberated for a brief period, and
had already concluded that it would not approve
a hospital on the
site. It required the trust to submit an amended plan and conditions
of establishment, which the trust did on
12 December 2011.
[6]
The amended plan and conditions of establishment excluded a hospital,
and proposed that the land on which it would have been
built be zoned
as agricultural. The trust also asked for a reduced site for
commercial use. It did not ask expressly for a quick
shop to be
attached to the filling station, although that would have been
permissible in the commercial zone.
[7]
In June of the following year the tribunal met and announced its
decision. In the course of doing so, it said that members had
conducted a comprehensive inspection of the site, listened to
representations and read voluminous reports. It had taken account
of
objections and serious reservations about the proposed development.
It concluded that it could approve only the filling station,
a quick
shop attached to it, a garage site, service industry sites,
agricultural sites and private open space. It rejected the
development of the commercial site. In effect, the tribunal took
account of Caine Brothers’ and others’ objections,
and
granted the application in much more limited terms than originally
asked for by the trust.
[8]
Despite this, Caine Brothers lodged an appeal to the appeal tribunal,
which was heard over two days in 2013. On the first day,
Mr Dickson
objected that Caine Brothers had not been furnished with the amended
plan and had not had an opportunity to be heard
on it – the
audi alteram partem principle had been violated. The appeal tribunal
afforded him the opportunity to furnish
further heads of argument and
adjourned for that purpose. The objections were once again considered
and expert reports furnished
by Caine Brothers considered.
[9]
It should be noted at this point that the appeal was a full
rehearing, taking into account further evidence and submissions.
Cora
Hoexter
Administrative Law in South
Africa
2 ed (2012), the leading
authority on South African administrative law, points out that, in
general, administrative appeals are
established to deal with the
merits of a decision, and the appellate tribunal will step into the
shoes of the decision-maker (p
65). She refers to the classic
decision in
Tikly & others v
Johannes NO & others
1963 (2) SA
588
(T) at 590F-591A, in which Trollip J distinguished between a wide
appeal, which amounts to a complete re-hearing and redetermination
on
the merits of a matter, and a narrow appeal where the appellate body
is confined to the record. This was a wide appeal.
[10]
The principal objection raised was that the quick shop had not been
part of the original plan and was not even referred to
in the amended
plan submitted by the trust. Had Caine Brothers known that the trust
would have been given the right to establish
a quick shop it would
have objected to it. As it did not know, it was not afforded an
opportunity to be heard.
[11]
However, no new or material information actually came to light, even
after the adjournment, and the appeal tribunal concluded
that Caine
Brothers, through Mr Dickson, had had a full hearing on all the
matters before the tribunal. Of course if new information
is
presented there is an obligation on an administrator to give an
affected person a hearing in respect of it:
Huisman
v Minister of Local Government, Housing and Works
(House of Assembly) & another
[1995] ZASCA 151
;
1996 (1) SA 836
(A) at 845F-G and
Earthlife Africa (Cape
Town) v Director-General: Department of Environmental Affairs and
Tourism & Another
[2005] ZAWCHC 7
;
2005 (3) SA 156
(C) paras 62 and 63. But, at least before the appeal
tribunal, if not the tribunal, objections to the quick shop had been
heard.
[12]
Caine Brothers also argued before the appeal tribunal that the
tribunal’s decision was irrational as it allowed the
application, as limited after the first hearing, despite serious
reservations about it. The appeal tribunal rejected that argument
too, pointing out that the reservations had been taken into account
in refusing the hospital and commercial sites. The appeal tribunal
concluded that there had been no unfairness in the process and that
the tribunal’s decision had been entirely rational. The
process
indicated ‘a desperate attempt by [Caine Brothers] to delay the
development’.
[13]
The grounds of review of this decision raised by Caine Brothers are
that the tribunal failed to allow representations on the
amended
application (it was in fact an amended plan and conditions of
establishment) and was thus in breach of the audi alteram
partem
principle, set out in s 3(2), s 3(3), s 6(2)(
c
)
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and
was also substantially unfair and unlawful in terms of s 6(2)(
h
)
and (
i
) of
the PAJA. The decision of the appeal tribunal was alleged to be
unlawful on the same grounds. The high court rejected both
grounds of
review.
[14]
From the brief history of the matter that I have traced, it is
immediately apparent that Caine Brothers was given more than
a fair
hearing at every stage of the process. Mr Dickson and Mr Caine made
representations at every opportunity. The fact that
the amended plan
was not furnished to it for comment is of no moment. The request by
the tribunal for the plan and amended conditions
of establishment,
and the decision that followed on it, was precisely to take account
of the objections made by Caine Brothers
and others. The amendment
was a result of the hearings that were afforded to Caine Brothers.
And the appeal tribunal afforded Mr
Dickson, representing it, yet a
further opportunity to put its case, adjourning the proceedings so
that he could furnish a second
set of heads of argument.
[15]
There comes a time when an end must be put to hearings and
consultations or no administrative decision would ever be given
effect. In my view, the high court correctly found that the
decisions were not reviewable on the ground of procedural
irregularity.
[16]
As to the irrationality argument, it rests on the basis that an urban
development is incompatible with the agricultural uses
to which Caine
Brothers puts its property. The tribunal, it was argued, had
expressed serious reservations about the development
of Platinum
Ridge, yet approved the development of a filling station, a quick
shop attached to it, and a garage. This, submits
Caine Brothers, is
irrational. For it has paved the way for other commercial uses in the
future. The owner of the site, it argues,
may apply to the
municipality for a consent use to open the way for commercial
development. The obvious response to that is that
if and when such
application is made, Caine Brothers may object, as it is entitled to
do, and the municipality will have to take
those objections into
account.
[17]
Ironically, Caine Brothers contended that its own business was a
source of various diseases that could negatively impact on
people
within a radius of 20 kilometers. Despite that, it employs some 500
employees and has shown no evidence of ill-health that
they have
suffered. Moreover, during the course of these proceedings, a group
of unlawful occupiers (represented by the Gonawakhe
Informal
Settlement Residents Association) living on a neighbouring farm,
applied to court for an order compelling Caine Brothers
to disclose
to it the reports on the negative impacts of cattle farming that it
had submitted to the tribunal. In opposing the
application, Caine
Brothers denied that its farming activities had a negative impact on
people and created health problems. (The
application was dismissed:
Gonawakhe Informal Settlement Residents
Association & others v Caine Brothers (Pty) Ltd & others
,
KwaZulu-Natal Division of the High Court, Case 5480/2014, 7 October
2015.)
[18]
Indeed, there are a number of other developments where there are
shops and even a lodge and conference centre, closer to Caine
Brothers’ property than Platinum Ridge would be. There is no
evidence to suggest that they have suffered the adverse effects
of
cattle farming. In my view, the tribunal and the appeal tribunal,
correctly followed the general principles of land development
laid
down in the DFA. Section 3(1)
(j)
provided:
‘
Each
proposed land development area should be judged on its own merits and
no particular use of land, such as residential, commercial,
conservational, industrial, community facility, mining, agricultural
or public use, should in advance or in general be regarded
as being
less important or desirable than any other use of land.’
As
the trust argues, the tribunal made a balanced decision, giving
considerable weight to agricultural use but also recognizing
the need
for other uses in the development it approved. The argument that the
decision is irrational must also fail, as the high
court correctly
found.
[19]
The last issue is costs. Pillay J made a punitive costs award against
Caine Brothers. She also ordered that the costs
of an
interlocutory application by the trust to introduce the papers in the
Gonawakhe
application into the review application should be borne equally by
Caine Brothers and the trust. I shall deal with the latter costs
first.
[20]
The trust applied to introduce the
Gonawakhe
papers at a late stage of the proceedings. It asked for an
indulgence. Caine Brothers did not oppose the application but argued
that the papers were irrelevant. Pillay J considered that these
papers demonstrated that Caine Brothers, which had argued before
the
tribunal that cattle farming and feedlots were health hazards, had
contradicted itself in the
Gonawakhe
papers because it denied that its farming operations were hazardous
to the people living on the adjacent farm. However, Bezuidenhout
AJ
in
Gonawakhe
found that the applicants had not shown that there were health
problems arising from cattle farming on the adjacent farm, such
that
their rights to a safe environment had been infringed. There
was thus no contradiction in the versions of Caine Brothers.
I see no
reason why the trust should not fully bear the costs of the
interlocutory application.
[21]
One of the reasons for ordering attorney and client costs against
Caine Brothers was its allegedly contradictory stance in
different
proceedings. As I have held, this was not justified. Moreover, Pillay
J held that Caine Brothers’ pursuit of the
litigation was
unreasonable as was its opposition to the development of Platinum
Ridge. In fact, however, its opposition to the
development was
largely successful, hence the changes to the plan and conditions of
establishment, which followed its, and others’,
opposition.
This reason for an award of punitive costs is also based on faulty
reasoning.
[22]
A court of appeal will rarely interfere in the exercise of a
discretion by a court of first instance. But in this case, in
my
view, interference is warranted. The order of punitive costs was not
justified by the reasons advanced by the high court. The
ordinary
rule that party and party costs be awarded against the unsuccessful
party to litigation should be made.
[23]
I accordingly make the following order:
1
The appeal is dismissed, save as set out below, with costs.
2
The words in paragraph 1 of the order ‘on an attorney and
client scale’ are deleted.
3
The order of the high court in respect of the costs of the
interlocutory application is replaced with:
‘
The
costs of the interlocutory application are to be paid by the third
respondent.’
C
H Lewis
Judge
of Appeal
APPEARANCES
For
the Appellant: A J Dickson SC
Instructed
by: Stowell & Co, Pietermaritzburg
Symington
& De Kok, Bloemfontein
For
the Third Respondent: S Nankan (Heads of Argument also prepared by M
G Roberts SC)
Instructed
by: Dev Maharaj & Associates, Pietermaritzburg
Honey
Attorneys, Bloemfontein