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[2021] ZAWCHC 73
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Adonisi and Others v Minister for Transport and Public Works: Western Cape and Others; Minister of Human Settlements and Others v Premier of the Western Cape Province and Others (7908/2017, 12327/2017) [2021] ZAWCHC 73 (23 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO: 7908/2017
In the matter between:
THOZAMA ANGELA
ADONISI
First Applicant
PHUMZA
NTUTELA
Second Applicant
SHARONE
DANIELS
Third Applicant
SELINA LA
HANE
Fourth Applicant
RECLAIM THE
CITY
Fifth Applicant
TRUSTEES OF THE
NDIFUNA UKWAZI TRUST
Sixth Applicant
And
MINISTER FOR TRANSPORT
AND PUBLIC WORKS:
WESTERN
CAPE
First Respondent
PREMIER OF THE
WESTERN CAPE PROVINCE
Second Respondent
THE PHYLLIS JOWELL
JEWISH DAY SCHOOL (NPC)
Third Respondent
CITY OF CAPE
TOWN
Fourth Respondent
MINISTER OF HUMAN
SETTLEMENTS
Fifth Respondent
THE PROVINCIAL
GOVERNMENT OF THE
WESTERN
CAPE
Sixth Respondent
THE MINISTER OF
PUBLIC WORKS
Seventh Respondent
THE MINISTER OF HUMAN
SETTLEMENTS:
WESTERN
CAPE
Eighth Respondent
SOCIAL HOUSING
REGULATORY AUTHORITY
Ninth Respondent
MINISTER OF RURAL
DEVELOPMENT
& LAND
REFORM
Tenth Respondent
MINISTER OF
FINANCE
Eleventh Respondent
GARY
FISHER
Twelfth Respondent
AND IN
CASE NO.12327/2017
In the matter between:
MINISTER OF HUMAN
SETTLEMENTS
First Applicant
NATIONAL
DEPARTMENT OF HUMAN SETTLEMENTS
Second Applicant
SOCIAL HOUSING
REGULATORY AUTHORITY
Third Applicant
and
PREMIER OF THE
WESTERN CAPE PROVINCE
First Respondent
MEC FOR TRANSPORT AND
PUBLIC WORKS:
WESTERN CAPE
PROVINCE
Second Respondent
MEC FOR HUMAN
SETTLEMENTS:
WESTERN CAPE
PROVINCE
Third Respondent
CITY OF CAPE
TOWN
Fourth Respondent
THE PHYLLIS JOWELL
JEWISH DAY SCHOOL (NPC)
Fifth Respondent
TRUSTEES OF THE
NDIFUNA UKWAZI TRUST
Sixth Respondent
Bench: P.A.L.Gamble and M.I.Samela, JJ
Heard: 13 November 2020, 12 March 2021
Delivered: 23 April 2021
This judgment was handed down electronically by circulation to the
parties' representatives via email and release to SAFLII. The
date
and time for hand-down is deemed to be 10:00 on 23 April 2021
JUDGMENT
– LEAVE TO APPEAL
GAMBLE, J:
INTRODUCTION
1.
On 31 August 2020 this Court handed down judgment in the two
applications conveniently heard together in November 2019, being case
no. 7908/2017 (“the RTC application”) and case
no.12327/2017 (“the National Minister’s application”),
colloquially referred to as “theTafelberg application”.
2.
On 22 September 2020, the City of Cape Town (“the City”)
lodged an application for leave to appeal the orders made
against it
and the following day the Provincial Government of the Western Cape
(“the Province”) did likewise. For the
purposes of this
judgment, the parties are cited to as they were before us and we
utilise the same abbreviations that we employed
in the main judgment.
3.
By arrangement with the parties, the application for leave to appeal
was set down for hearing in open court on Friday 13 November
2020.
Shortly before that hearing, the legal representatives for both RTC
and the National Minister advised the Court of certain
material
developments subsequent to the handing down of judgment in the main
matter and filed affidavits to this end. Mindful of
the approach in
Lamana
[1]
,
we considered the substance of the affidavits which was to inform the
Court of a joint statement issued by way of a press release
on 18
September 2020 by the Premier of the Province, Mr. Winde, and the
Provincial Minister of Human Settlements, Mr. Madikizela.
A copy of
that statement was annexed to one of the affidavits and it later
became common cause that it was duly issued.
4.
The statement was self-serving in many respects as the Province
sought to assure the public of its “commitment to achieving
spatial redress”, of its avowed intention “to push ahead
with spatial redress projects” and that it had “started
to develop an inclusionary housing policy”. The judgment of
this Court was also dealt with at length in the statement, including
the fact that the sale of the Tafelberg property had fallen by the
wayside as a consequence of the stance adopted by the Day School.
“
The decision to sell the
property in Sea point (sic) known as Tafelberg to the successful
bidder, The Phyllis Jowell Jewish Day
School, was taken in the
previous political term, by a cabinet different to the current one.
Whilst that agreement of sale
was the impetus for the litigation which has followed, it’s
clear that the real aspects of contestation
argued before the Western
Cape High Court, and therefore the judgment’s consequences,
span far beyond this particular site
and this particular purchaser,
which has been unable to take ownership of the site for over two
years already as a result of the
litigation.
The Western Cape Government can
now confirm that, after reflecting on the recent judgment handed down
by the Western Cape High Court,
the Phyllis Jowell Jewish Day School
have indicated to us that they do not intend to pursue their rights
under this contract of
sale any further - a decision which we believe
will result in the mutual termination of the sales agreement and the
return of the
property to the Western Cape Government’s
property portfolio.
Its return to our portfolio will
give us the opportunity to re-consider (sic) its future use in light
of the priorities of this
new administration and I am grateful to the
board of Phyllis Jowell Jewish Day School for informing us of their
decision in this
regard and which will allow its use to be considered
afresh.”
5.
In an affidavit filed on 12 November 2020 - the eve of the hearing of
the application for leave to appeal – the legal adviser
in the
Department of the Premier of the Western Cape advised the Court that
an agreement of termination had been drafted in relation
to the sale
of the property but that at that stage it had not been concluded due
to certain suspensive conditions which were then
still pending. In
the result, said the Province, the original agreement of sale to the
Day School was still in place.
6.
When the application for leave to appeal commenced on 13 November
2020 we informed counsel and the parties that we were reluctant
to
proceed to hear the application until the outstanding issues relating
to the cancellation of the sale agreement between the
Province and
the Day School had been resolved. Despite requests by both sides that
we should continue with the hearing, we remained
of the view that all
the necessary formalities needed to be complied with before the
matter was ripe for hearing. We considered
that the Court needed to
be fully appraised regarding the question of mootness, if that was to
be the case. In the result, the
application for leave to appeal was
postponed sine die with the wasted costs of 13 November 2020 reserved
for later determination.
7.
Early in 2021, we were informed that the cancellation agreement in
relation to the Tafelberg property had been finalised and the
Court
was furnished with a copy thereof. Being satisfied that the matter
was ready for hearing, we directed that the parties agree
on a
suitable date, and the matter was then heard virtually on Friday 12
March 2021. The parties were represented as before, save
that the Day
School did not participate in the matter further. Due to prior
commitments, Ms Webber was unable to appear on behalf
of the SHRA,
which requested that the Court consider her written submissions in
relation to the application for leave to appeal.
In addition, there
was no further appearance by the
amicus curiae.
8.
We are indebted to counsel for their detailed heads of argument and
their submissions during a lengthy virtual hearing that lasted
well
beyond 17h30 on the Friday in question. Before dealing with the
application itself it is necessary to effect certain corrections
to
our earlier orders in light of firstly, a patent error therein, and
secondly, potential ambiguity.
CORRECTION OF ORDERS IN TERMS OF RULE 42(1)(b)
9.
In terms of Rule 42(1)(b) a court is permitted, either on application
or
meru motu
, to correct a patent error or ambiguity it its
order. It was drawn to our attention by the Province that there was a
patent error
(in essence a typographical mistake) in para 1(i) of the
order in the RTC application in that the reference to s25(1) of the
Constitution
should have read “s25(5)”.
10.
There being no objection by any of the parties, the correction will
be effected forthwith.
11.
During the initial hearing of the application for leave to appeal on
13 November 2020, it was drawn to our attention by Mr Hathorn
SC on
behalf of RTC that there were two potential ambiguities in our
declarations of invalidity regarding Reg 4(6). The ambiguity
lay
therein that the orders could be interpreted as being restricted to
the parties to the two applications, whereas the intention
was to the
contrary: in making our order, we did not intend that other parties
to contracts of sale of provincial land to whom
rights had already
accrued prior to our declaration of invalidity, should be prejudiced
or in any way negatively affected by the
declaration
12.
Given that our orders were guided by the notices of motion and draft
orders presented to us prior to, and during the course of,
the
hearing, we asked counsel to reformulate the suggested changes to the
orders so that they might fairly reflect what we intended.
We are
indebted to counsel for RTC for their contribution in this regard.
13.
In the result, and there being no objection from any of the other
parties, we direct that the following corrections are to be effected
to the orders made on 31 August 2020.
Ad Case No. 7908/2017
In para 11 of the order the phrase “
This declaration shall
operate prospectively and will not affect any rights which have
accrued to any party as at the date of this
judgment”
is
deleted and replaced with the following –
“The declaration of invalidity in paragraph 10 will not affect
any rights which have as at the date of judgment accrued to
any
person or entity that is not a party to these court proceedings.”
Ad Case No. 12327/2017
In para 5 of the order the phrase “
This declaration shall
operate prospectively and will not affect any rights which have
accrued to any party as at the date of this
judgment”
is
deleted and replaced with the following –
“The declaration of invalidity will not affect any rights which
have as at the date of judgment accrued to any person or
entity that
is not a party to these court proceedings.”
THE APPROACH TO APPLICATIONS FOR LEAVE TO APPEAL
14.
An applicant for leave to appeal must meet the requirements of
s17(1)
of the
Superior Courts Act, 10 of 2013
, which reads as follows.
“
17. Leave to Appeal –
(1)
Leave to appeal may only
be given where the…judges concerned are of the opinion that –
(a)
(i) the
appeal would have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under
consideration;
(b)
the decision sought on
appeal does not fall within the ambit of
section 16
(2)(a); and
(c)
where the decision sought
to be appealed does not dispose of all the issues in the case, the
appeal would lead to a just and prompt
resolution of the real issues
between the parties.”
15.
There has been some debate in courts of first instance as to the
effect of
s17(1)
in determining the criteria to be applied when
considering an application for leave to appeal. It has been held that
the change
in wording of the relevant section through the use of the
word “would” in
s17(1)(a)(i)
, when compared to the word
“might” in the relevant section of the former Supreme
Court Act, 59 of 1959, has had the
effect of raising the bar for an
applicant for leave to appeal.
[2]
16.
Recently, in
Ramakatsa
[3]
,
the Supreme Court of Appeal (“SCA”), with reference to
its earlier decision in
Caratco
[4]
,
effectively put the debate to rest.
“
[10] Turning the focus to
the relevant provisions of the
Superior Courts Act (the
SC Act),
leave to appeal may only be granted where the judges concerned are of
the opinion that the appeal would have a reasonable
prospect of
success or there are compelling reasons which exist why the appeal
should be heard such as the interests of justice.
This Court in
Caratco
,
concerning the provisions of s 17(1)(a)(ii) of the SC Act pointed out
that if the court is unpersuaded that there are prospects
of success,
it must still enquire into whether there is a compelling reason to
entertain the appeal.
Compelling
reason would of course include an important question of law or a
discreet issue of public importance that will have an
effect on
future disputes. However, this Court correctly added that ‘but
here too the merits remain vitally important and
are often decisive’.
I am mindful of the decisions at high court level debating whether
the use of the word ‘would’
as opposed to ‘could’
possibly means that the threshold for granting the appeal has been
raised. If a reasonable prospect
of success is established, leave to
appeal should be granted. Similarly, if there are some other
compelling reasons why the appeal
should be heard, leave to appeal
should be granted. The test of reasonable prospects of success
postulates a dispassionate decision
based on the facts and the law
that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court.
In other words, the appellants
in this matter need to convince this Court on proper grounds that
they have prospects of success
on appeal. Those prospects of success
must not be remote, but there must exist a reasonable chance of
succeeding. A sound rational
basis for the conclusion that there are
prospects of success must be shown to exist.” (Internal
references omitted)
MOOOTNESS
17.
The reference in
s17(1)(b)
to s
16
(2)(a)(i) of the
Superior Courts Act
relates
to the question of mootness.
“
16(2)(a)(i) When at the
hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect
or result, the appeal
may be dismissed on this ground alone.”
18.
In
Normandien Farms
[5]
the Constitutional Court recently set out the principles relevant to
the issue of mootness.
“
[46] It is clear from the
factual circumstances that this matter is moot. However, this is not
the end of the inquiry. The central
question for consideration is:
whether it is in the interests of justice to grant leave to appeal,
notwithstanding the mootness.
A consideration of this Court’s
approach to mootness is necessary at this juncture, followed by an
application of the various
factors to the current matter.
[47] Mootness is when a matter
“no longer presents an existing or live controversy”. The
doctrine is based on the notion
that judicial resources ought to be
utilised efficiently and should not be dedicated to advisory opinions
or abstract propositions
of law, and that courts should avoid
deciding matters that are “abstract, academic or hypothetical”.
[48] This Court has held that it
is axiomatic that “mootness is not an absolute bar to the
justiciability of an issue [and
that this] Court may entertain an
appeal, even if moot, where the interests of justice so require”.
This Court “has
discretionary power to entertain even
admittedly moot issues”.
[49] Where there are two
conflicting judgments by different courts, especially where an appeal
court’s outcome has binding
implications for future matters, it
weighs in favour of entertaining a moot matter.
[50] Moreover, this Court has
proffered further factors that ought to be considered when
determining whether it is in the interests
of justice to hear a moot
matter. These include:
(a) whether any order which it
may make will have some practical effect either on the parties or on
others;
(b) the nature and extent of the
practical effect that any possible order might have;
(c) the importance of the issue;
(d) the complexity of the issue;
(e) the fullness or otherwise of
the arguments advanced; and
(f) resolving the disputes
between different courts.” (Internal references omitted)
19.
In
Hoerskool Fochville
[6]
the SCA stressed that the enumerated factors should be considered
together and that an appeal should only be heard in matters which
raise “a discrete legal issue of public importance.”
THE ORDERS SOUGHT TO BE APPEALED AGAINST
20.
It is useful to commence adjudication of this application by setting
out the orders (as duly amended in terms of
Rule 42(1)(b))
which we
made in these applications and against which the Province and the
City now wish to appeal.
“
CASE NO. 7908/2017: THOZAMA ANGELA ADONISI AND OTHERS v
MINISTER FOR TRANSPORT AND PUBLIC WORKS: WESTERN CAPE
1. It is declared that the fourth and sixth respondents have the
following obligations in terms of the Constitution of the Republic,
1996:
(i) under s25(5) the said respondents are obliged to take
reasonable and other measures, within their available resources, to
foster
conditions which enable citizens to gain access to land on an
equitable basis;
(ii) under s26(2) the said respondents are obliged to take
reasonable legislative and other measures, within their available
resources,
to achieve the progressive realisation of the right of
citizens to have access to adequate housing as contemplated in s26(1)
of
the Constitution.
2. It is declared that the fourth and sixth respondents have
failed to comply with their respective obligations under the
legislation
enacted to give effect to the said rights, namely, the
Housing Act, 107 of 1997
and the
Social Housing Act, 16 of 2008
, and
have accordingly breached their respective obligations under the
Constitution.
3. It is declared that in so failing to comply with their
obligations as aforesaid, the fourth and sixth respondents have
failed
to take adequate steps to redress spatial apartheid in central
Cape Town (the boundaries of which were in 2017 as depicted on the
map annexed hereto marked “A”);
4. The fourth and sixth respondents are directed to comply with
their constitutional and statutory obligations as set out in paras
1
to 3 above. 5. The fourth and sixth respondents are directed to
jointly file a comprehensive report under oath, by 31 May 2021,
stating what steps they have taken to comply with their
constitutional and statutory obligations as set out above, what
future
steps they will take in that regard and when such future steps
will be taken. Without derogating from the generality of the
aforegoing,
the fourth and sixth respondents are specifically
directed to:
(i) consult with all departments of State and organs of State
necessary to discharge their duty in so reporting to the Court; and
(ii) include in their report their respective policies and the
integration thereof in regard to the provision of social housing as
contemplated in the
Social Housing Act within
the area of central
Cape Town as depicted on annexure “A” hereto.
6. The applicants are granted leave to file an affidavit (or
affidavits) responding to the reports filed by the fourth and sixth
respondents in terms of paragraph 5 above within one month of them
having been served on their attorneys of record.
7. The November 2015 decision of the Premier of the Western Cape
Province, acting together with other members of the Provincial
Cabinet, to sell Erf 1675, an unregistered portion of Erf 1424 Sea
Point, and remainder of Erf 1424 Sea Point (hereinafter collectively
referred to as “the Tafelberg Property”) to the third
respondent, together with the deed of sale in respect of the
Tafelberg Property entered into between the third and sixth
respondents is hereby reviewed and set aside.
8. The 22 March 2017 decision of the Premier of the Western Cape
Province, acting together with the other members of the Provincial
Cabinet, not to resile from the contract of sale concluded with the
third respondent is hereby reviewed and set aside.
9. It is declared that Sea Point falls within the restructuring
zone ‘CBD and surrounds (Salt River, Woodstock and
Observatory)’
as contemplated in sub-regulation 6.1 of the
Provisional Restructuring Zone Regulations published under General
Notice 848 in Government
Gazette 34788 of 2 December 2011.
10.It is declared that Regulation 4(6), and the proviso in
Regulation 4(1), of the Regulations made under section 10 of the
Western
Cape Land Administration Act, 6 of 1998 by Provincial Notice
No. 595 published in Provincial Gazette No. 5296 on 16 October 1998
(hereinafter referred to as “the Regulations”) are
unconstitutional and invalid.
11. It is declared that the disposal of the Tafelberg Property in
accordance with Regulation 4(6), and the proviso in Regulation
4(1),
of the Regulations is unlawful. The declaration of invalidity in
paragraph 10 will not affect any rights which have as at
the date of
judgment accrued to any person or entity that is not a party to these
court proceedings.
12. The applicants’ costs of suit (which are to include the
costs of two counsel where employed), are to be borne by fourth
and
sixth respondents, jointly and severally.
13. Save as aforesaid, each party is to bear its own costs of suit
in relation to this application.
CASE NO. 12327/2017: THE MINISTER OF HUMAN SETTLEMENTS AND
OTHERS v PREMIER OF THE WESTERN CAPE PROVINCE AND OTHERS
1. It is declared that the failure of the Western Cape Provincial
Government (hereinafter “the Province”) to inform the
National Government (represented by the first and second applicants
herein) of its intention to dispose of Erf 1675, an
unregistered
portion of Erf 1424 Sea Point, and the remainder of Erf 1424 Sea
Point (hereinafter collectively referred to as “the
Tafelberg
Property”) and to consult and engage with National Government
(represented as aforesaid) in this regard, constitutes
a
contravention of the Province’s obligations in terms of Chapter
3 of the Constitution, and the
Intergovernmental Relations Framework
Act, 13 of 2005
.
2. The November 2015 decision of the Premier of the Western Cape
Province, acting together with other members of the Provincial
Cabinet, to sell the Tafelberg Property to the fifth respondent,
together with the deed of sale in respect of the Tafelberg Property
entered into between the first and fifth respondents are hereby
reviewed and set aside.
3. The 22 March 2017 decision of the Premier of the Western Cape
Province, acting together with the other members of the Provincial
Cabinet, not to resile from the contract of sale concluded in respect
of the Tafelberg Property with the fifth respondent is hereby
reviewed and set aside.
4. It is declared that the deed of sale between the Province and
the fifth respondent in respect of the Tafelberg Property is void,
of
no force and effect and is hereby set aside.
5. It is declared that
Regulation 4(6)
, and the proviso in
Regulation 4(1)
, of the Regulations made under section 10 of the
Western Cape Land Administration Act, 6 of 1998 by Provincial Notice
No. 595 published
in Provincial Gazette No. 5296 on 16 October 1998,
are unconstitutional and invalid. The declaration of invalidity will
not affect
any rights which have as at the date of judgment accrued
to any person or entity that is not a party to these court
proceedings
6. The first and third applicants’ costs of suit (which are
to include the costs of two counsel where employed) are to be borne
by the first respondent.
7. Save as aforesaid, each party is to bear its own costs of suit
in relation to this application.
”
THE PROVINCE’S APPLICATION FOR LEAVE TO APPEAL THE RTC
ORDERS
21.
It is convenient to address the Province’s application first.
Its Notice of Application for Leave to Appeal dated 18 September
2020
is a lengthy document running to some 21 pages. It seeks to appeal
against the whole of the order made in the RTC application
and the
whole of the order made in the National Minister’s application.
What is rather surprising about the application,
though, is that it
sought to appeal the order setting aside the sale of the Tafelberg
property (paragraphs 7 and 8 of the order
in the RTC application),
notwithstanding its knowledge of the fact that the Day School had
decided to withdraw from the sale, and
notwithstanding the fact that
at the same time it had issued the statement referred to earlier.
22.
However, when the application was argued in March 2021, counsel for
the Province did not persist in the application to appeal the
order
invalidating the sale and accepted that that the relief granted in
paragraphs 7 and 8 of the RTC application was moot.
23.
Nevertheless, Mr Fagan SC, relying on s16(2)(a)(i), went on to argue
that there were “discrete legal issue[s] of public importance”
which warranted an appeal hearing in the interests of justice in
respect of the order of invalidity of the sale. In this regard,
it
was argued that a number of our findings in relation to the
interpretation and application of the Government Immovable Asset
Management Act, 2007 (“GIAMA”) and our comments thereon
were flawed.
24.
The point of departure is that the basis for our finding of the
invalidity of the sale to the Day School was the invalidity of
the
Regs. That much is clear from para 267 of the judgment. What follows
thereafter in the judgment is an evaluation of the arguments
put up
by the Province in the event that we were wrong in our finding that
the Regs were invalid. Given that the sale has been
cancelled, those
additional findings are now to be regarded as
obiter dicta.
25.
Then, in their heads of argument in the application for leave to
appeal, counsel for the Province set out seven issues that they
said
constituted some of the “discrete legal issues of public
importance” and which warranted leave to appeal being
granted,
notwithstanding the mootness. They include the following -
[25.1.]
Whether immovable property
must be “surplus” under GIAMA
before it may be disposed of;
[25.2.]
Whether GIAMA is over-arching
legislation, with the WCLAA being a
procedural mechanism applicable to sales of land in the Western Cape;
[25.3.]
The import of ss5(1)(f)
and 13(3)(a) of GIAMA;
[25.4.]
The necessity for the availability
of U-AMPS and C-AMPS before
disposals of land can take place; and
[25.5.]
Whether it is a legitimate
purpose to ensure best value for money
when government land is disposed of.
26.
In my view, what the Province now seeks to do is to procure an
opinion from the SCA as to the correctness of these
obiter
findings. That is not the purpose of an appeal hearing as the
judgment of Navsa JA in
Radio Pretoria
[7]
so trenchantly reminds us.
“
Courts of appeal often
have to deal with congested court roll. They do not give advice
gratuitously. They decide real disputes and
do not speculate or
theorise. Furthermore, statutory enactments are to be applied to or
interpreted against particular facts and
disputes and not in
isolation.”
That
dictum
follows the approach, more than a century ago, of
Innes CJ in
Geldenhuys
[8]
“
After all, Courts of Law
exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce
upon abstract questions, or
to advise upon differing contentions, however important.”
27.
Furthermore, to decide these issues, a court of appeal would be
required to delve into the facts and background circumstances to
address the multiplicity of issues raised now by counsel against the
background of an agreement between the Province and the Day
School
that the sale, which RTC so strenuously opposed, has been set aside
and all outstanding issues in relation thereto have
been resolved. On
that score, it is apposite to refer to the following
dictum
in
the judgment of Maya JA (as she then was) in
Legal-Aid South
Africa
[9]
.
“
The appeal raises no
discrete legal point which does not involve detailed consideration of
facts and no similar cases exist or are
anticipated so that the issue
will most likely need to be resolved in the near future.”
28.
In the result, I am not persuaded that this is a case in which we
should exercise the limited discretion which we enjoy under
s16(2)(i)(a) and grant leave to the Province notwithstanding the
mootness of the sale issue. That mootness has the consequence that
the application for leave in respect of the RTC application otherwise
reduces into two distinct areas – the constitutional
relief and
the declarations of invalidity in respect of the regulations
promulgated under the Western Cape Land Administration
Act (“the
Regs”). For the sake of convenience, I shall deal with the
latter first.
Invalidity of the Regs
29.
In our judgment we considered the idiosyncracy of the Regs that we
believe fly in the face of a sensible administrative process
of
hearing parties before a decision in which they might have an
interest is made, thereby giving effect to the constitutional
concept
of participatory democracy. The rationale put up by the Province for
the Regs remains difficult to follow and, in the circumstances,
I
thus have significant reservations about the prospects of success on
appeal against paragraphs 10 and 11 of our order.
30.
That having been said, the Regs are a critical part of the Province’s
property disposal machinery. While the effect of our
order does not
affect any disposals of provincial land which are in the process of
being finalised, the finding of invalidity of
the regulations in
question does, in my considered view, constitute “a discreet
issue of public importance that will have
an effect on future
disputes”, as the SCA put it in
Ramakatsa.
31.
On that basis, I am satisfied that the Province should be give leave
to appeal the orders made in paragraphs 10 and 11 of the RTC
application.
The constitutional relief
32.
Turning to the constitutional relief, we found that the Province was
in breach of its obligations under ss25(5), 26(1) and 26(2)
of the
Constitution insofar as it had failed to give effect to its
obligations under the
Housing Act, 1997
and the
Social Housing Act,
2008
. We were of the view that the Province did not have any,
alternatively suitable, policies in place to address these
shortcomings
and we exercised our powers under s172 of the
Constitution to ensure that the Province complied with its
constitutional obligations.
33.
We were concerned, too, that the Province had adopted a reactionary
response to the RTC challenges to the absence of such policies
rather
than being possessed of a planned, long-term programme that would
begin to address the effects of spatial apartheid in central
Cape
Town and the absence of affordable housing. We remain concerned that,
rather than addressing the core issues at hand, the
Province now
seeks to take steps to litigate and protract further the delays
occasioned by its constitutional delinquency. We do
not for one
moment deny the Province its constitutional entitlement to litigate
in our courts and beyond, but we note that in the
press statement
issued on 18 September 2020 the Province implicitly acknowledged its
shortcomings and we would have expected that
it would have employed
its resources to that end rather than on the high cost of litigation.
34.
In the application for leave to appeal we were criticised by the
Province for breaching the separation of powers principle in granting
wide ranging orders which were said to trench upon the “heartland”
of executive prerogative. We attempted to demonstrate
that our orders
were constitutionally sanctioned and in accordance with a wide range
of judicial authorities, and we do not agree
that we have
impermissibly gone beyond our constitutional remit. In the result, we
remain of the firm belief that we exercised
our discretion judicially
in this matter.
35.
We accept that, at the end of the day, our orders are wide-ranging
and break new ground, as it were. Further, we are not so bold
as to
consider that our constitutional orders are beyond further judicial
scrutiny and it seems to me therefore that it is fair
to say that
there are compelling issues of public importance which warrant a
higher court considering our orders. Indeed, the interests
of justice
demand so.
36.
In the result, I am persuaded that, in terms of s17(1)(a)(ii), the
Province should be granted leave to appeal against paragraphs
1, 2,
3, 4, 5 and 6 of our orders in the RTC application.
Paragraph 9
37.
In paragraph 9 of the RTC orders we issued a declarator regarding the
status of Sea Point in relation to certain provisional restructuring
zone (“RZ”) regulations issued by the National Department
of Human Settlements in 2011. We do not know whether there
have been
any subsequent amendments or variation to that status but that is
neither here nor there for purposes of this application.
38.
It is not clear to us what the Province’s motivation is for
seeking leave to appeal against a determination that essentially
operates in its favour. We say this because the declaration of an RZ
would entitle either provincial or local government to apply
to the
National Minister (or a relevant agency such as the SHRA) for central
government funding to erect subsidised housing. The
papers before us
show that when it decided not to resile from the sale on 22 March
2017, the Provincial Cabinet was uncertain as
to whether Sea Point
fell within the RZ described as “CBD and surrounds” –
some said it did, others (including
Mr Fagan who advised Cabinet at
the time) said it appeared not to fall within the RZ, while yet
others, including the Premier’s
legal adviser, appeared to be
ambivalent. In the circumstances, we would have thought that the
Province would have welcomed our
finding in that regard which would
have clarified any uncertainty.
39.
Surely, the Province does not now want to adopt a stance in which it
can resist later demands that it pursue a social housing project
in
Sea Point on the basis that the suburb does not fall within an RZ? On
the other hand, were the Province to apply, for instance,
to the SHRA
for funding for a social housing project in Sea Point, and such
application not be favourably entertained by that entity,
the
Province would be entitled to rely on our order to attempt persuade
the authority otherwise.
40.
Be that as it may, we consider that the issue traversed in paragraph
9 of the RTC order is essentially moot and should not waste
the time
and resources of a higher court. The National Minister has never
objected to the contention that Sea Point fell into the
RZ in
question and she does not seek to appeal our order in that regard. In
any event, the National Minister is entitled to make
a final
determination regarding the extent of the RZ, or to vary its
boundaries, at any stage.
41.
For these reasons, I am of the view that any appeal against paragraph
9 of the order in the RTC application will fall squarely
within the
purview of
s16(2)(a)(i)
of the
Superior Courts Act and
that leave to
appeal should be refused on that basis alone. If I am wrong in that
regard, I consider, in any event, that the evidence
before us
concerning the issues covered by paragraph 9 was more than sufficient
to warrant the declaratory relief granted. In the
result, I am of the
view that are, in any event, no reasonable prospects of success on
appeal against the granting of the order
in paragraph 9 of the RTC
application and that leave to appeal in that regard should thus be
refused.
Costs
42.
Lastly, in the RTC application, the Province seeks leave to appeal
the costs order that it and the City be held jointly and severally
liable for RTC’s costs. We deal below with the issue of costs
generally when considering the City’s application for
leave to
appeal. It will be convenient to deal with the Province’s
application for leave in this regard at that stage.
THE PROVINCE’S APPLICATION FOR LEAVE TO APPEAL IN THE
NATIONAL MINISTER’S APPLICATION
The Invalidity of the Regs
43.
For the reasons set out earlier in relation to the RTC application, I
am satisfied that we should grant the Province leave to appeal
against paragraph 5 of the order of invalidity in the National
Minister’s application.
Mootness
44.
As in the case of the RTC application, counsel for the Province
accepted that any appeal against the orders made in paragraphs
2, 3
and 4 of the National Minister’s application – orders
relating to the invalidity of the sale to the Day School
– were
moot. For the reasons already given, I am of the view that there is
no basis to exercise our discretion under
s16(2)(i)(a)
of the
Superior Courts Act in
favour of the Province and leave to appeal
paragraphs 2, 3 and 4 of the order in the National Minister’s
application must
therefore be refused. What remains then in the
National Minister’s application is the declaratory relief
granted in paragraph
1 of our order.
45.
I am of the view that the declaratory relief granted in paragraph 1
of the National Minister’s orders is fact-specific, having
been
based, in particular, on the facts that had arisen after the Province
had taken the decision to sell the Tafelberg Property
to the Day
School. It will be recalled that the National Minister claimed that
she had recently come to hear of the sale, and demanded
to be
consulted thereon in terms of the Intergovernmental Regulations
Framework Act, 13 of 2005.
46.
Given that the sale has been terminated, there is no longer any
lis
between the National Minister and the Province – there is
nothing that she needs to be consulted on - and thus there is no
live
issue which can be claimed to be the subject of litigation.
In
National
Coalition,
[10]
the Constitutional Court approached the matter as follows.
“
A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law. Such
was the case in
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[
1997
(3) SA 514
(CC)]
where Didcott J said the following at para [17]:
(T)here can hardly be a clearer
instance of issues that are wholly academic, of issues exciting no
interest but an historical one,
than those on which our ruling is
wanted have now become.”
47.
In the circumstances, I am of the view that the matter ruled on in
paragraph 1 of the National Minister’s order is moot.
For the
reasons already set out, I do not agree with counsel for the Province
that the order in paragraph 1 raises discrete issues
of law which
fall within the ambit of s16(2)(i)(a) warranting the exercise of our
discretion and leave to appeal that order must
accordingly be
refused.
THE CITY’S APPLICATION FOR LEAVE TO APPEAL
48.
The application by the City is for leave to appeal the constitutional
relief granted against it in the RTC application (paragraphs
1 to 6
of the orders) and the costs order made against it in both that
application (paragraph 12 thereof) and the National Minister’s
application (paragraph 7 thereof).
The Constitutional Relief
49.
In our judgment we expressed the view that the issue in regard to the
persistence of spatial apartheid in central Cape Town and,
in
particular, the absence of a coherent policy on the part of the City
to address affordable housing, both the City and the Province
bore
the responsibility of addressing the situation. This is particularly
so, because there are large tracts of land to which the
Province has
access which it could utilise in conjunction with the City’s
initiatives. For this reason, we considered it
constitutionally
appropriate to direct both spheres of government to come up with a
cohesive plan.
50.
Given the purpose and form of our orders in the RTC application, the
City’s fate is inextricably bound in with that of the
Province,
albeit that the City has gone some limited way towards coming up with
a policy of sorts. It was argued by Ms Bawa SC
in the application for
leave that we had impermissibly conflated the duties and functions of
the two spheres of government in making
our order binding on both the
Province and the City.
51.
I am of the respectful view that there may be some merit in this
argument and upon consideration of all the facts and circumstances,
I
believe that the City has reasonable prospects of success on appeal
against the constitutional relief granted against it in the
RTC
application.
Costs
52.
Turning to the question of costs, the City complains that it was
unreasonable to burden it with joint and several responsibility
for
RTC’s costs as its only interest in resisting that application
was in relation to the constitutional relief. For the
rest, the City
did not oppose any of the relief in relation to the sale of the
Tafelberg property, the challenge to the Regs or
the RZ issues. The
City points out that the time spent by it on the various legs of the
RTC application was disproportionate to
its potential liability for
50% of the costs and says that an award against it of no more than
10% of the total costs in the RTC
application was more reasonable in
the circumstances.
53.
In relation to the National Minister’s application, the City
points out that no relief was sought against it therein and
our
finding that it litigated at its peril in that application and that
it was fair to require it to bear its own costs in that
application
is wrong. Rather, says the City, the National Minister should have
been ordered to bear its costs (or a part thereof).
54.
It is established law that the award of costs is customarily within
the discretion of the court of first instance, and that a court
of
appeal
“
will not reverse the
decision of a lower court as to costs unless it is quite clear that
some important factor escaped the attention
of the lower court or
unless the discretion exercised has not been a judicial
discretion.”
[11]
55.
But where the court of appeal is persuaded that the lower court did
not exercise its discretion judicially, or where that court
was moved
by a wrong principle of law or an incorrect appreciation of the
facts, then it is incumbent upon that court to correct
the wrong.
[12]
56.
While a court would generally not consider granting leave to appeal
only a costs order, in circumstances such as the present, where
[56.1.]
the City will be participating
in the appeal on the constitutional
issue;
[56.2.]
the time taken on appeal
to address the question of costs will not be
extensive;
[56.3.]
the costs involved
are not insignificant;
[56.4.]
the costs must come from
the public purse; and
[56.5.]
there are reasonable prospects
of success on appeal in regard to the
costs issues;
I am of the considered view that leave to appeal the costs orders
should be granted to the City.
57.
As regards the Province’s application for leave to appeal the
costs orders made against it, we consider that the basis for
granting
of leave on costs to the City must mean that the Province has
reasonable prospects of success in this regard in the RTC
application. Similarly, in relation to the National Minister’s
application, we have granted the City leave to appeal the
order made
in relation to costs and it is just and equitable in the
circumstances that the Province be granted leave on this score.
WASTED COSTS OF 13 NOVEMBER 2020
58.
Mr. Hathorn pressed us to award the wasted costs of 13 November 2020
to RTC in light of the fact that the Province had left the
filing of
its explanatory affidavit very late, the suggestion being that had it
been done earlier the costs of the day and the
preparation therefor
would have been saved, or at least reduced. It bears mention that
both Mr Fagan and Mr Hathorn indicated their
willingness to argue the
matter on the day on the assumption that the sale would be cancelled
by agreement. Counsel had filed heads
of argument by that stage and
indicated that they had spent considerable time preparing for the
hearing. However, we indicated
to counsel that we required the matter
to be finally determined before the application for leave was heard,
as we did not wish
to run the risk of anything coming unstuck.
59.
The wasted costs were therefore strictly speaking not attributable to
the conduct of any of the parties, and given that the postponement
of
the application was ultimately occasioned by the Court’s
insistence on finality being reached, it would be unfair to mulct
any
of the parties now with an order for the wasted costs. The fairest in
my view is to make an order that the wasted costs be
costs in the
cause.
60.
As far as the costs of the applications for leave to appeal
themselves are concerned, the customary order will apply and the
costs
thereof will be costs in the appeal. I would simply add for the
benefit of the Supreme Court of Appeal and the Taxing Master that
we
are of the view that the employment of two counsel was warranted.
IN THE CIRCUMSTANCES THE FOLLOWING ORDER IS GRANTED:
In case no 7908/2017 (“the RTC application”)
A. In para 11 of the order the phrase “
This
declaration shall operate prospectively and will not affect any
rights which have accrued to any party as at the date of this
judgment”
is deleted and replaced with the following –
“The declaration of invalidity in paragraph 10 will not affect
any rights which have as at the date of judgment accrued to
any
person or entity that is not a party to these court proceedings.”
B. The First, Second, Sixth and Eighth Respondents (“the
Province”) are granted leave to appeal to the
Supreme Court of
Appeal against the orders made against them in paragraphs 1, 2, 3, 4,
5, 6, 10, 11 and 12 of the order of 31 August
2020. Save as
aforesaid, the application for leave to appeal is dismissed.
C. The Fourth Respondent (“the City”) is
granted leave to appeal to the Supreme Court of Appeal against
the
orders made against it in paragraphs 1, 2, 3, 4, 5, 6 and 12 of the
order of 31 August 2020.
D. The wasted costs occasioned by the postponement on 13
November 202 will be costs in the cause.
E. The costs of the application for leave to appeal will
be costs in the appeal.
In case no 12327/2017 (“the National Minister’s
application”)
F. In para 5 of the order the phrase “
This
declaration shall operate prospectively and will not affect any
rights which have accrued to any party as at the date of this
judgment”
is deleted and replaced with the following –
“The declaration of invalidity will not affect any rights which
have as at the date of judgment accrued to any person or
entity that
is not a party to these court proceedings.”
G. The Province is granted leave to appeal to the Supreme
Court of Appeal against the order made against it in paragraphs
5 and
6 of the order of 31 August 2020. Save as aforesaid, the application
for leave to appeal is dismissed.
H. The City is granted leave to appeal against the order
made in paragraph 6 of the order of 31 August 2020.
I. The wasted costs occasioned by the
postponement on 13 November 2020 will be costs in the cause.
J. The costs of the application for leave to appeal
will be costs in the appeal.
GAMBLE, J
SAMELA, J:
I
AGREE
SAMELA, J
[1]
South African Police Service Medical Scheme
2011 (4) SA 456
(SCA)
[2]
See for example
Mont Chevaux Trust v Goosen and others
(LCC14R/2014) 3 November 2014;
South African Breweries (Pty) Ltd
v Commissioner of South African Revenue Services
[2017] ZAGPPH
340 (28 March 2017);
ABSA Bank Ltd v Transcon Plant and Civil CC
and another
[2020] ZAKZPHC 19 (23 June 2020).
[3]
Ramakatsa and others v African National Congress and another
[2021] ZASCA 31
(31 March 2021)
[4]
Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5)
SA 35 (SCA)
[5]
Normandien Farms (Pty) Ltd v South African Agency for Promotion
of Petroleum Exploration and Exploitation SOC Ltd and another
2020 (4) SA 409 (CC)
[6]
Centre for Child Law v The Governing Body of Hoerskool Fochville
and another
2016 (2) SA 121
(SCA) at [11]
[7]
Radio Pretoria v Chairman, Independent Communications Authority
of South Africa and another
2005 (1) SA 47
(SCA) at [44]
[8]
Geldenhuys & Neethling v Beuthin
1918 AD 426
at 441
[9]
Legal-Aid South Africa v Magidiwana and others
2015 (2) SA
568
(SCA) at [31]
[10]
National Coalition for Gay and Lesbian Equality and others v
Minister of Home Affairs
2000 (2) SA 1
(CC) at [21] fn18
[11]
Molteno Bros v SA Railways
1936 AD 408
at 417
[12]
Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd
1948 (1) SA 839
(A) at 863-4;
Ferris and another v First rand
Bank Ltd
2014 (3) SA 39
(CC) at [28] – [29]