Brief Summary

Property Law — Servitude — Dispute over registered servitude restricting building height — Appellant, owner of Erf 2226, objected to proposed extensions by second respondent, owner of adjacent Erf 2228, citing servitude — Servitude established in 1948 to prevent building in designated no-build zone and regulate construction on remaining property — Appellant contended that proposed structures violated servitude terms — Respondents argued for relaxation of restrictions — Court held that the servitude was valid and enforceable, and that any amendment to it required proper registration to be effective.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an appeal to a Full Court of the Western Cape Division (Erasmus, Gamble and Papier JJ) against the dismissal of a judicial review application brought under the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The review sought to set aside a provincial decision taken under the Removal of Restrictions Act 84 of 1967 (RORA) to remove and amend restrictive conditions contained in a registered praedial servitude burdening immovable property.

The appellant, Johannes Jacobus Marthinus van Zyl, owned Erf 2226 Hermanus. The second respondent, Onshelf Property Eighty Seven (Pty) Ltd (beneficially owned by the Newmans), owned the adjoining Erf 2228 Hermanus. The first respondent was the Minister of Local Government, Environmental Affairs & Development Planning, Western Cape, who exercised the statutory power under RORA to remove or amend restrictive conditions. The third respondent was the Registrar of Deeds, Cape Town, and the fourth respondent was the Overstrand Municipality.

Procedurally, the Minister approved Onshelf’s RORA application on 15 August 2016, which was followed by a sequence of three Provincial Gazette notices (August 2016, September 2016, and February 2017) aimed at giving effect to the approval but correcting defects in earlier notices. Mr van Zyl launched a PAJA review in January 2018. The court a quo (Baartman J) dismissed the review without reaching the merits, holding that the review was brought outside PAJA’s 180-day period and that no extension under section 9 of PAJA had been sought. Baartman J also dismissed applications to strike out the Minister’s late explanatory affidavit and for a referral to oral evidence. Leave to appeal to the Full Court was granted by the Supreme Court of Appeal.

The dispute concerned the removal/amendment of title deed restrictions created by a servitude, the procedural regularity and legality of the administrative decision taken under RORA, and the timing and permissibility of review under PAJA in light of defective and later-corrected Gazette notices.

2. Material Facts

A praedial servitude was registered in 1949 over Erf 2228 (now Onshelf’s property) in favour of Erf 2226 (Mr van Zyl’s property). The servitude created two core restrictions. First, it established a 100-foot “no-build zone” from the Tenth Street boundary of Erf 2228, which had to remain vacant and unobstructed except for natural growth. Second, it confined any building on the remainder of Erf 2228 to a single-storey thatch-roof dwelling with specified external finishes and a maximum height of 21 feet (approximately 6.4m).

Onshelf sought to extend buildings on Erf 2228 and, in June 2015, applied under RORA for the removal of condition 3 (the no-build zone) and the amendment of conditions 4 and 5 (the remaining building controls), in order to enable construction of a second dwelling and related appurtenances. It also pursued departures under the (then applicable) Land Use Planning Ordinance 15 of 1985 (LUPO) for certain minor extensions, but the LUPO aspect was not the subject of the review.

A material and common-cause factual feature of the administrative process was that the application documents stated (in the supporting town-planning report) that a height limit of 6.4m above mean sea level would be imposed. Given the elevated cliff-side location of the properties, the court accepted that this measurement was practically incapable of implementation (it would imply subterranean construction). The Municipality requested clarification, and Brummer later clarified by email that height was “from base level and not sea level”, but the formal RORA application documents were not corrected at that stage and the incorrect baseline continued into later official documentation.

Objections were invited through publication in the Provincial Gazette and local newspaper (October 2015). Mr van Zyl, through his attorney, lodged a substantive written objection in November 2015. The Planning Advisory Board (PAB) recommended approval in December 2015 and again in February 2016 after reconsideration.

The Overstrand Municipality’s internal report to its MAYCO recommended that the RORA application be refused, principally because it conflicted with servitude restrictions benefiting Erf 2226 and lacked the beneficiary’s consent, and because (on the municipal view) the Municipality could not approve something in conflict with title conditions. The Municipality’s formal response was later transmitted to the Province.

The Head of Department (HOD) submitted a memorandum to the Minister dated 1 August 2016 recommending approval and repeating the incorrect formulation that buildings should not exceed 6.4m above mean sea level. The Minister approved the application on 15 August 2016. A first Gazette notice (26 August 2016) gave effect to this, including the “mean sea level” error. A second notice (2 September 2016) purported to cancel and replace the first to correct the height measurement baseline. However, a Deeds Office “rectification clerk” later identified a defect in the Afrikaans text of the second notice: it did not correspond to the English text and did not correctly reference the notarial servitude. A third notice (24 February 2017) was published to correct the language defect. After the third notice, the Registrar of Deeds endorsed the title deed on 27 March 2017, removing condition 3 and amending conditions 4 and 5.

As to knowledge and timing (relevant to PAJA time-bars), Baartman J relied on an alleged meeting in November 2016 at which it was said that Mr van Zyl’s attorney became aware of the approval. The Full Court did not accept that the evidence conclusively established that Mr van Zyl (through his attorney) had the requisite knowledge then. In any event, the Full Court treated the legally effective amendment as occurring only when the third notice was published (and the defective second notice as legally irrelevant), with the consequence that the relevant “clock” for PAJA purposes was linked to the third notice and its communication.

After becoming aware of the third notice (by May/June 2017), Mr van Zyl sought the record via a PAIA request (June 2017) and requested reasons under section 5 of PAJA (August 2017). Reasons were furnished in October 2017. The review application was served in January 2018.

3. Legal Issues

The appeal raised two principal clusters of issues.

The first was a PAJA time-bar issue involving the application of section 7(1) of PAJA. The central question was when the 180-day period began to run, given that (i) the Minister’s approval was followed by multiple Gazette notices, (ii) earlier notices were cancelled or superseded, and (iii) the second notice was defective in a way that prevented Deeds Office endorsement. This dispute concerned the application of legal rules to a sequence of facts (publication, defects, legal effect), and also involved an evaluative assessment of reasonable delay.

The second cluster concerned the merits of review under section 6 of PAJA. The central question was whether the Minister’s approval under RORA was vitiated by reviewable irregularity, particularly whether relevant considerations were not considered or irrelevant considerations were taken into account within the meaning of section 6(2)(e)(iii) of PAJA. This was largely an application-of-law-to-fact enquiry focused on what information was before the decision-maker, what was considered, and whether material errors in the departmental memorandum and reasons demonstrated non-application of mind.

A further procedural issue was whether the Minister’s late-filed explanatory affidavit (after filing a notice to abide and shortly before hearing) should have been admitted, and whether the court a quo erred in refusing to strike it out. This involved the court’s discretion, but also the fairness of permitting a decision-maker to enter the fray late and expand or bolster reasons.

Finally, if review succeeded, the court had to decide an appropriate remedy under section 8 of PAJA, including whether to remit, substitute, or set aside in a manner that was just and equitable, and how that interacted with the statutory framework (RORA having been repealed and replaced by a SPLUMA regime for future applications).

4. Court’s Reasoning

PAJA delay and the legal effect of Gazette notices under RORA

The Full Court emphasised that, under RORA, removal or amendment of a restrictive condition in a title deed becomes effective only when properly published in the Provincial Gazette. Relying on authority indicating that the removal only takes effect upon valid gazetting, the court treated publication as integral to the process giving the decision direct external legal effect.

On the facts, the court held that the second notice was “fatally defective” because the English and Afrikaans versions were in conflict in a way that prevented the Deeds Office from endorsing the title deed. The evidence from the Deeds Office (the rectification clerk’s letter) demonstrated that the defect required correction and republication. The court therefore treated the second notice as legally irrelevant for purposes of an enforceable amendment to the title conditions, and concluded that the operative step giving effect to the Minister’s approval was the third notice.

The court rejected the contention that the later notices were mere “clerical corrections” that did not affect the reviewability timeline. It distinguished Kuzwayo v Representative of the Executor in the Estate of the Late Masilela on the basis that RORA’s statutory scheme requires a chain of administrative steps culminating in gazetting and registration, and that changing the height baseline and correcting linguistic inconsistencies entailed choices and not merely mechanical acts. The court considered these corrective steps to be part of the administrative process necessary to give the decision external legal effect.

Having identified the third notice as the legally effective notice, the court held that the PAJA period began to run, at the earliest, when the third notice was sent to Mr van Zyl’s attorney (12 May 2017), rather than from the earlier, superseded notices. The court also noted that neither the Minister nor the Provincial Directorate had themselves provided notice of the decision to Mr van Zyl; communication occurred through municipal channels.

Reasonableness of the timing of the review

The court then applied section 7(1)(b) of PAJA, emphasising that the provision requires proceedings to be instituted without unreasonable delay and not later than 180 days after the relevant date. It accepted that the inquiry is not purely arithmetical: there is an anterior question whether the delay was unreasonable in the circumstances, and only if it was not unreasonable does the 180-day limit become decisive in the manner described in the authorities discussed.

On the uncontested timeline as accepted by the court (May/June 2017 knowledge of the operative notice), Mr van Zyl had sought the record through PAIA and requested reasons under section 5 of PAJA within the statutory timeframes. The court regarded these steps as consistent with diligence rather than delay. In those circumstances it concluded that Mr van Zyl did not unreasonably delay the review and that the court a quo should have determined the merits.

The review on the merits: failure to consider relevant considerations and material errors

The court framed the merits as a review of the decision-making process, not an appeal on the substantive desirability of building. It nonetheless recognised that constitutional reasonableness review can require engagement with the substantive rationality of reasons, while cautioning against judicial usurpation of administrative functions, consistent with the guidance in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others.

A critical feature of the court’s merits analysis was the HOD’s memorandum to the Minister. The court found that the memorandum contained fundamental mistakes. First, it recorded that the Municipality had provided “no comment”, which was plainly wrong given that the Municipality had recommended refusal through MAYCO and had transmitted the report. The court treated municipal comment as significant because RORA required the application to be lodged through the local authority with its comments and recommendation, and because municipal input addresses local planning considerations. The omission suggested either that the report was absent from the file or, if present, was not considered, and in either event it revealed a failure to properly discharge the statutory function.

Second, both the HOD memorandum and the Minister’s later PAJA reasons adopted an argument premised on the proposition that the Newmans’ existing dwelling was a double-storey structure and that they could extend it towards Tenth Street with potentially more negative effect than the proposed second dwelling. The court accepted that this was a material misstatement, because the existing Newman house was single storey, and because the servitude already restricted height to single storey. The court also noted that this argument did not appear to be grounded in the reports of the PAB or the provincial planner, reinforcing the inference that the memorandum and reasons reflected a deficient engagement with the file and applicable restrictions.

The court held that these features constituted a basis for review under section 6(2)(e)(iii) of PAJA, because relevant considerations were not considered and/or irrelevant considerations were taken into account. The decision-maker’s reliance on an inaccurate factual premise and the apparent failure to engage with municipal opposition were treated as indicative of non-application of mind in the administrative process leading to the Minister’s approval.

The Minister’s late explanatory affidavit and procedural fairness

The Minister had initially filed a notice to abide. Shortly before the hearing, he filed an extensive explanatory affidavit that the court characterised as argumentative and as effectively taking sides, including by advancing matters beyond the initial reasons furnished under PAJA. The court considered this approach to be problematic, including from a fairness and costs perspective, because it attempted to bolster a weak case after litis contestatio and close to hearing, and because it had been prompted by Onshelf’s concerns.

The court distinguished Camps Bay Residents’ & Ratepayers Association and others v Hartley and others, where a late explanatory affidavit was allowed in different circumstances tied to the absence of an administrative record and the procedure adopted. Here, by contrast, Mr van Zyl had sought the record and reasons through proper statutory mechanisms and prepared his case on the basis of the Minister’s earlier stance. The court concluded that the striking out application should have succeeded and that the Minister’s explanatory affidavit should have been ignored.

Remedy under section 8 of PAJA

The court treated section 8(1) of PAJA as conferring a wide remedial discretion to make a just and equitable order. It considered the possibility of substitution but held that this was not an exceptional case warranting substitution, partly because the matter required administrative evaluations (including policy and planning considerations) better addressed through the administrative process.

Although both parties urged the Full Court to determine the merits rather than remit to the court a quo, the remedy question concerned whether the matter should be remitted to the Minister or set aside to enable a fresh process. The court declined to remit to the Minister because of the Minister’s firm stance in the explanatory affidavit, which could generate a perception of bias and invite further litigation if he reconsidered the matter. It also considered that remittal to the Minister alone would bypass the multi-level administrative input required in such applications.

The court therefore held it was just and equitable to set aside the decision, with the consequence that the deed endorsement would have to be reversed and the original servitude conditions reinstated. The court left it to Onshelf to decide whether to recommence an application under the statutory regime then in force (noting that RORA had been repealed and that a future application would fall under SPLUMA).

5. Outcome and Relief

The appeal succeeded. The Full Court set aside the order of the court a quo and substituted it with an order reviewing and setting aside the Minister’s decision to remove and amend the servitude conditions burdening Erf 2228 in favour of Erf 2226.

The Registrar of Deeds was directed to reinstate the servitude conditions as they stood prior to the removal/amendment, and any Deeds Office fees or charges for reinstatement were ordered to be paid by Onshelf.

As to costs, the Full Court ordered that the appeal was upheld with costs, including the costs of leave applications in the court a quo and in the Supreme Court of Appeal, and including the costs of two counsel where employed. In the substituted order concerning the review proceedings, the court made no order as to costs.

Cases Cited

Beck and others v Premier, Western Cape and others 1998 (3) SA 487 (C)

Gamevest (Pty) Ltd v Regional Land Claims Commissioner, Northern Province and Mpumalanga and others 2003 (1) SA 373 (SCA)

Kuzwayo v Representative of the Executor in the Estate of the Late Masilela [2011] 2 All SA 599 (SCA)

Nedbank Ltd v Mendelow and another NNO 2013 (6) SA 130 (SCA)

Opposition to Urban Tolling Alliance v South African National Roads Agency Limited [2013] 4 All SA 639 (SCA)

Thabo Mogudi Security Services CC v Randfontein Local Municipality [2010] 4 All SA 314 (GSJ)

Basson v Hugo and others 2018 (3) SA 46 (SCA)

Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 3 All ER 141 (HL)

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and others [2004] ZACC 15; 2004 (4) SA 490 (CC)

Camps Bay Residents’ & Ratepayers Association and others v Hartley and others [2010] ZAWCHC 215 (16 November 2010)

Jockey Club of South Africa v Forbes [1992] ZASCA 237; 1993 (1) SA 649 (A)

South African Football Association v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons and Another 2003 (3) SA 313 (A)

Bengwenyama Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and others 2011 (4) SA 113 (CC)

Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC)

Minister of Local Government and Land Tenure v Inkosinathi Property Developers (Pty) Ltd 1992 (2) SA 234 (TkA)

Tantush v Refugee Appeal Board and others [2007] ZAGPHC 191; 2008 (1) SA 232 (T)

Legislation Cited

Removal of Restrictions Act 84 of 1967

Spatial Planning and Land Use Management Act 16 of 2013

Provincial Land Use Planning Ordinance 15 of 1985

Promotion of Administrative Justice Act 3 of 2000

Promotion of Access to Information Act 2 of 2000

Deeds Registries Act 47 of 1937

Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988

Rules of Court Cited

Uniform Rules of Court, Rule 30(2)(b)

Uniform Rules of Court, Rule 53

Uniform Rules of Court, Rule 30

Held

The Full Court held that the review application was not time-barred under section 7 of PAJA, because the legally effective implementation of the Minister’s RORA approval occurred only upon publication of the third Provincial Gazette notice, after earlier notices were cancelled or were defective in a manner preventing Deeds Office endorsement. The court held that the defective second notice could not be treated as giving the decision direct external legal effect for PAJA timing purposes.

On the merits, the court held that the Minister’s decision was reviewable under section 6(2)(e)(iii) of PAJA, because the process reflected material deficiencies including the apparent failure to consider the Municipality’s negative recommendation (despite its statutory significance) and reliance on a materially incorrect factual premise regarding the existing building being double storey and the implications of potential extensions.

The court held further that the Minister’s late explanatory affidavit should have been struck out (or disregarded), and that it was not appropriate to remit the matter to the Minister for reconsideration. A just and equitable remedy was to set aside the approval and require reinstatement of the original servitude conditions, leaving Onshelf free to recommence a new application under the prevailing statutory regime.

LEGAL PRINCIPLES

A decision under the Removal of Restrictions Act 84 of 1967 to alter, suspend or remove restrictive conditions in a title deed becomes operative through proper publication in the Provincial Gazette, and the legal effectiveness of the administrative action is tied to a valid notice capable of implementation and registration.

For purposes of PAJA, the running of the review period in section 7(1)(b) depends on when the affected person is informed of, becomes aware of, or reasonably should have become aware of the administrative action and the reasons for it, in circumstances where the administrative action has direct external legal effect. Where earlier implementing notices are cancelled or fatally defective and later replaced, the operative notice may determine when the PAJA time period begins.

The question of delay under PAJA entails more than an arithmetic count: an anterior inquiry remains whether the applicant acted without unreasonable delay, and the statutory mechanisms to obtain the record and reasons (including PAIA requests and PAJA section 5 requests for reasons) are relevant to assessing reasonableness.

Under section 6(2)(e)(iii) of PAJA, administrative action is reviewable where relevant considerations are not considered or irrelevant considerations are taken into account. Material factual errors and the omission of mandated or materially significant inputs (such as municipal recommendations required within the statutory process) may demonstrate a reviewable failure of proper consideration.

A reviewing court’s remedial discretion under section 8 of PAJA is broad and must produce an order that is just and equitable. Substitution is reserved for exceptional cases; remittal may be inappropriate where it could create a perception of bias or bypass required administrative inputs. In appropriate circumstances, setting aside and restoring the status quo ante, while leaving the administrator or applicant to recommence under the current statutory regime, may be the fairest course.

van Zyl v Minister of Local Government , Environmental Affairs and Development Planning , Western Cape and Others (A24/2020) [2021] ZAWCHC 2 (15 January 2021)