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[2015] ZASCA 45
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Trustees of the Simcha Trust (IT 1342/93) v De Jong and Others (20001/2014) [2015] ZASCA 45; 2015 (4) SA 229 (SCA); [2015] 3 All SA 161 (SCA) (26 March 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 20001/2014
Reportable
In
the matter between:
THE
TRUSTEES OF THE SIMCHA TRUST (IT
1342/93)
..........................................
APPELLANT
and
MADELEINE
DE
JONG
..................................................................................
FIRST
RESPONDENT
GREGORY
NIGEL JOSEPH
WHITE
.......................................................
SECOND
RESPONDENT
MARTHINUS
JOHANNES
ELS
....................................................................
THIRD
RESPONDENT
MARGARET
JEAN
WOUTERS
................................................................
FOURTH
RESPONDENT
JOSHUA
SAMUEL JOHNSON
SOUTH
........................................................
FIFTH
RESPONDENT
NICOLE
GENEVIEVE
KYTE
........................................................................
SIXTH
RESPONDENT
JACQUES
SCHMIDT
................................................................................
SEVENTH
RESPONDENT
SUZANNE
WEHMEYER
(SCHMIDT)
.........................................................
EIGHT
RESPONDENT
EXCLUSIVE
ACCESS TRADING 585 (PTY)
LTD
.....................................
NINTH
RESPONDENT
EMANUEL
FEGUERA DE
ABREU
.............................................................
TENTH
RESPONDENT
SHIRAAZ
JOOSUB
................................................................................
ELEVENTH
RESPONDENT
BARRISTER
INVESTMENTS (PTY)
LTD
...........................................
TWELFTH
RESPONDENT
AMBER
VAN DER
WALT
.................................................................
THIRTEENTH
RESPONDENT
SARAH
ELIZBETH
HALLAS
........................................................
FOURTEENTH
RESPONDENT
JOAO
OSE RIBEIRO DA
CRUZ
.........................................................
FIFTEENTH
RESPONDENT
SKYE
MIDDLETON
.............................................................................
SIXTEENTH
RESPONDENT
RICHARD
DANIEL
KYTE
............................................................
SEVENTEENTH
RESPONDENT
THE
CITY OF CAPE
TOWN
...........................................................
EIGHTEENTH
RESPONDENT
Neutral
Citation:
Simcha Trust v Madeleine
de Jong
(20001/2014)
[2015] ZASCA 45
(26 March 2015).
Coram:
Navsa ADP, Brand, Mhlantla & Zondi
JJA and Schoeman AJA
Heard:
26 February 2015
Delivered:
26 March 2015
Summary:
Claim against City of Cape Town for
compensation in terms of s 8(1)
(c)
(ii)
(bb)
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) based
on improper approval of building plans that caused neighbouring
property owners to seek redress – high court unjustifiably
allowing litigation in terms of which aggrieved land owners had
sought a review into litigation in terms of which the offending land
owner was permitted to alter its position from co-respondent
into an
applicant seeking redress in terms of s 8(1)
(c)
(ii)
of PAJA – interpretation and application of that sub-section –
compensation not available when administrative decision
set aside and
where remittal should follow – courts slow to impose liability
on administrators who do their work negligently
but honestly –
‘exceptional cases’ as the expression appears in s
8(1)
(c)
(ii)
is concerned with appropriateness of remedy rather than quality of
decision sought to be impugned – even if sub-section
could be
employed in favour of the offending land owner the circumstances were
such that any decision would be premature in that
it was not possible
to say now what the ultimate outcome of either the old or new plans
would be.
ORDER
On
appeal from
: Western Cape Division,
Cape Town (Rogers J sitting as court of first instance): judgment
reported
sub nom De Jong & others v
The Trustees of the Simcha Trust & Another
2014
(4) SA 73
(WCC).
The
following order is made:
The
appeal is dismissed with costs including the costs attendant upon the
employment of two counsel.
JUDGMENT
Navsa
ADP (Brand, Mhlantla & Zondi JJA and Schoeman AJA concurring):
[1]
This appeal is directed against the dismissal by the Western Cape
Division, Cape Town (Rogers J), of a claim by the appellant,
the
Trustees of the Simcha Trust (Simcha), for compensation in terms of s
8(1)
(c)
(ii)
(bb)
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The
case turns on the interpretation and application of that section.
[2]
Simcha’s claim for compensation was based on the wrongful
approval by the eighteenth respondent, the City of Cape Town
(the
City), of building plans submitted by the former to the latter. The
plans had been set aside because of a challenge in the
Western Cape
Division by owners of an adjoining building, the first to seventeenth
respondents (the Seventeen), under the provisions
of PAJA. The
setting aside of the plans was by agreement between Simcha, the City
and the Seventeen. Desai ADP issued an order
to that effect. It is
necessary to note that when he did so, the matter was not expressly
remitted to the City for reconsideration.
It is now necessary to deal
in some detail with the background leading up to the order of Desai
ADP and to the adjudication of
the claim for compensation by Rogers
J.
[3]
The Seventeen are registered owners of sectional title units at Four
Seasons Sectional Title Scheme, situated at 43 to 47 Buitenkant
Street Cape Town. The sectional title units immediately abut the
property owned by Simcha, in respect of which the plans were
submitted to the City for approval. It appears that Simcha’s
adjoining property had been derelict for years and that the plans
in
question contemplated an exponential increase in the height and size
of the building. Subsequent to the approval of the plans,
construction work began in earnest on 14 May 2012. It was
contemplated that a hotel and a block of flats would be erected. The
Seventeen, realising what was taking place, conducted investigations
and were advised that the approval of the plans could be impugned
on
a number of grounds. That prompted a successful application for an
interdict, pending the outcome of an application to have
the approval
of the plans reviewed and set aside. The Western Cape Division, Cape
Town (Dolamo AJ) issued the following order:
‘
The
first respondent is hereby interdicted from carrying out or allowing
any further construction work on Erf 5284 Cape Town situated
at 41
Buitenkant Street, Cape Town pending a final determination of an
application to be commenced by the applicant within 14 days
from date
hereof for the review of the decision of the second respondent of 20
September 2008 to approve building plans submitted
to it by the first
respondent in terms of the National Building Regulation Standard Act
103 of 1977.’
The
court directed that the costs of the interdict stand over, pending
determination of the review application.
[4]
The Seventeen applied in the Western Cape Division, Cape Town for an
order reviewing and setting aside the approval by the City,
on 20
October 2008, of building plans submitted by Simcha in terms of the
National Building Regulations and Building Standards
Act 103 of 1977
(the NBRBSA) in respect of a building to be constructed on erf 5284
situated at 41 Buitenkant Street Cape Town.
It specifically sought an
order that Simcha pay the costs of the application and the related
interdict. In their founding papers
in the review application, the
Seventeen attacked the City’s approval of Simcha’s plans.
First, because of the extent
– mainly the height – of the
building to be constructed on behalf of Simcha, it was submitted that
there would be derogation
in value of their neighbouring properties.
It was contended that the regulatory statutory framework precluded
approval of plans
that derogated from the value of adjoining and
neighbouring properties. The principal statutory tools for regulating
land use in
the City is the Land Use Planning Ordinance 15 of 1985
(LUPO) and the zoning scheme regulations. The property in
construction was
described as being ‘too intrusive’ and
‘overwhelming’.
[5]
The Seventeen complained that the approval by the City of Simcha’s
high-rise building would ensure that they were deprived
of natural
light, privacy and ventilation, affecting their rights of full
enjoyment of their properties. The evidence of a professional
property-valuer was relied upon by the Seventeen to the effect that,
if Simcha’s property were to proceed to completion,
it would
occasion loss of value of the properties of the Seventeen of up to 30
per cent.
[6]
In addition, the Seventeen contended that a building control officer
appointed in terms of the NBRBSA had an obligation to investigate
property value derogations and to make a recommendation to persons to
whom the City had delegated the power to approve or refuse
applications for building plan approvals. Such a recommendation, so
it was contended, required a motivated report in respect of
a
conclusion reached by him in relation to the derogation of property
values. It is common cause that in the present case, no such
report
was completed by the building control officer.
[7]
The review application was not opposed by the City. After the interim
order had been granted, Simcha filed an affidavit in the
review
application styled ‘first respondent’s further
affidavit’, which described events after the grant of the
interim order. The interdict did not have an immediate impact on
continued building operations because it had been granted towards
the
end of the year when the builders’ holiday was imminent. Simcha
insisted that the only basis for the interdict was the
decision of
the Constitutional Court
Walele v City of Cape Town
[2008] ZACC 11
;
2008 (6)
SA 129
(CC). At this stage, it is necessary to interrupt this
narrative to consider ss 6 and 7 of the NBRBSA and the decision in
Walele
. The relevant parts of s 6 provide:
‘
(1)
A building control officer shall –
(a)
make recommendations to the local
authority in question, regarding any plans, specifications, documents
and information submitted
to such local authority in accordance with
section 4(3);
(b)
ensure that any instruction given in
terms of this Act by the local authority in question be carried out;
(c)
inspect the erection of a building, and
any activities or matters connected therewith, in respect of which
approval referred to
in section 4(1) was granted;
(d)
report to the local authority in
question, regarding non-compliance with any condition on which
approval referred to in section
4(1) was granted.
[8]
The relevant parts of s 7 provide as follows:
‘
(1)
If a local authority, having considered a recommendation referred to
in section 6(1)
(a)
–
(a)
is satisfied that the application in
question complies with the requirements of this Act and any other
applicable law, it shall
grant its approval in respect thereof;
(b)
(i) is not so satisfied; or
(ii) is satisfied
that the building to which the application in question relates –
(aa)
is to be erected in such a manner or will of such
nature or appearance that –
(aaa)
the area in which it is to be erected will
probably or in fact be disfigured thereby;
(bbb)
it will probably or in fact be unsightly or
objectionable;
(ccc)
it will probably or in fact derogate from the
value of adjoining or neighbouring properties;
(bb)
will probably or in fact be dangerous to life or
property, such local authority shall refuse to grant its approval in
respect thereof
and give written reasons for such refusal.’
[9]
The Constitutional Court, in
Walele
held that the purpose of the recommendation by the building control
officer, contemplated in s 6, must be to furnish the decision-
maker
with a basis for his or her opinion, one way or the other, and that
the decision-maker must assess and himself or herself
be satisfied
about these issues. In the present case, as in
Walele
,
there was no motivation for a decision reached by the building
control officer that the plans were in accordance with statutory
prescripts and more particularly that there would be no derogation in
the value of neighbouring property. As in
Walele
,
he only ticked an appropriate box in a standard form.
[10]
In its further affidavit, Simcha stated that after appreciating the
effect of the decision in
Walele
,
it decided to concede the review application. From its perspective,
that decision was solely based on the failure of the building
control
officer and the City to comply with the prescripts of ss 6 and 7 of
the NBRBSA.
[11]
Continuing its narrative of what happened after the grant of the
interim interdict, Simcha described how it attempted to reach
an
agreement with the City concerning the continuation of building
operations. Predictably, the City was not receptive. Ultimately
Simcha decided to submit new plans. There were subsequent legal
skirmishes between the Seventeen and Simcha about whether steps
taken
to protect the building under construction, in the interim, amounted
to further building activity in violation of the interdict,
but those
disputes were resolved.
[12]
The City’s approval process for Simcha’s new plans
dragged on without an end in sight, in the short term. Despite
the
relief sought by the Seventeen being conceded by both the City and
Simcha and despite the former not seeking costs in relation
to the
review application, Simcha, nonetheless, filed its further affidavit,
its declared object for doing so was to require the
court below to
order the City, (a) to pay the costs of the interim interdict and the
review application, and (b) to order it to
refund the scrutiny fees
of R82 327.60, paid in respect of the first set of plans. In
addition, Simcha sought an order that
the City should compensate it
for out-of-pocket losses resulting from the grant of the interim
interdict. I pause to state that
the costs related to the interdict,
in the main, comprised the costs occasioned by Simcha’s
opposition. Simcha contended
that it was entitled in terms of s
8(1)
(c)
(ii)
(bb)
of
PAJA to the compensation, set out above, which appeared to include
the scrutiny fees. It insisted that it was entitled to an
order in
terms of that subsection on the basis that the plans were approved,
notwithstanding that the approval was preceded by
the Constitutional
Court decision in
Walele.
[1]
In
support of this claim, Simcha argued that the City’s conduct in
not implementing the
Walele
decision and causing affected persons to suffer loss, was
unconscionable and incomprehensible. In paragraph 21 of its further
affidavit, it contended:
‘
The
City “
abides”
the
review. Having been grossly negligent in failing to implement
Walele
;
and having thus far made no attempt to assist the Trust (whether it
be by way of the urgent consideration of fresh building plans
or
otherwise) the City has now taken the ultimate step of betrayal,
which was to wash its hands in innocence and leave the Trust
to its
own devices in the review.’
The
costs orders sought and the claim to compensation were adjudicated by
Rogers J.
[13]
The
lis
concerning the validity of the approval of the plans had been
settled. The only outstanding issue was costs, which ought to have
been decided with reference to the facts of the review application.
Ordinarily, the successful party – the Seventeen –
would
have been entitled to an order for costs of the application, to be
paid by Simcha, the only initially opposing party. The
Seventeen, in
any event, did not seek the costs of the review application. All that
was left was consideration of the costs related
to the interim
interdict for which Simcha, ordinarily, would have been liable. I do
not understand how the dispute, concerning
the correctness of the
City’s approval of the plans, transformed from litigation in
respect of which Simcha, was a co-respondent
with the City, to
litigation in terms of which Simcha was now seeking redress against
the City on the basis of the latter’s
asserted reckless or
negligent conduct in approving the plans. And that transformation
occurred purely on the strength of a ‘further
affidavit’.
What was required was some new process to be instituted by Simcha
against the City, which would then have been
adjudicated on the
merits. By permitting this unjustifiable metamorphosis, Rogers J
allowed an extension of the litigation. That
being said, it is now
necessary to deal with the Western Cape Division’s adjudication
of Simcha’s claim to compensation,
purportedly in terms of s
8(1)
(c)
(ii)
(bb)
of PAJA.
[14]
In deciding Simcha’s claim to compensation, the high court’s
starting point was the provisions of s 8(1) of PAJA
which read as
follows:
‘
(1)
The court or tribunal, in proceedings for judicial review in terms of
section 6(1), may grant any order that is just and equitable,
including orders –
(a)
directing the administrator –
(i)
To give reasons; or
(ii)
To act in the manner the court or tribunal
requires;
(b)
prohibiting the administrator from
acting in a particular manner;
(c)
setting aside the administrative action
and –
(i)
remitting the matter for reconsideration by
the administrator, with or without directions;
or
(ii)
in exceptional cases –
(
aa
)
substituting or varying the administrative action or correcting a
defect resulting from the administrative action; or
(
bb
)
directing the administrator or any other party to the proceedings to
pay compensation;
(d)
declaring the rights of the parties in
respect of any matter to which the administrative action relates;
(e)
granting a temporary interdict or other
temporary relief; or
(f)
as to costs.’
[15]
Rogers J considered the three submissions on behalf of the City.
First, that compensation in terms of s 8(1)
(c)
(ii)
could not be granted where the court had set aside the administrative
action and remitted the matter for reconsideration by
the
decision-maker. That being so, it was contended that the alternative
remedy, of compensation, set out in s 8(1)
(c)
(ii)
was not available. Second, that the circumstances which render a case
‘exceptional’ within the meaning of s 8(1)
(c)
(ii)
are not concerned with the egregiousness of the impugned conduct but
with the appropriateness of departing from the usual remedy
of
remittal. Third, that the sub-section can only be invoked by an
aggrieved applicant seeking a review of a decision rather than
by a
respondent.
[16]
The court a quo agreed with the first two submissions referred to in
the preceding paragraph. Rogers J considered them to accord
with the
structure of s 8(1)
(c)
.
He took the view: Firstly, that the use of the word ‘and’
at the end of the introductory part of paragraph
(c)
followed by the separation of sub-paragraphs (i) and (ii) with the
word ‘or’ is a strong ‘syntactical pointer’
in favour of the view that the remedies in those two sub-paragraphs
are alternatives that are mutually exclusive. And secondly,
that
sub-paragraph (ii) was qualified by the phrase ‘in exceptional
circumstances’, indicating that the remedies in
sub-paragraph
(ii) apply in circumstances different from those in sub-paragraph
(i). In consequence, he concluded that at least
in the case of item
(aa)
of
sub-paragraph (ii), the remedy can only ever be a true alternative to
the remedy in sub-paragraph (i). He reasoned that a court
could not
remit a matter for reconsideration by the decision-maker and also
substitute or vary the action complained of.
[17]
With reference to the decision of this court in
Gauteng
Gambling Board v Silver Star Development Ltd & others
2005
(4) SA 67
(SCA) para 28, Rogers J agreed with the contention that the
phrase ‘in exceptional cases’ was not concerned with
whether
the administrative decision ‘was a conspicuously bad
one but with whether there are unusual circumstances which make it
appropriate
to grant the exceptional remedy in item (aa) or (bb)
rather than the usual remedy of remittal.’ He concluded that
exceptionality
was concerned with the choice of remedy, not the
quality of the administrator’s decision in the abstract.
[18] Rogers J also
agreed with the submission on behalf of the City that the remedy of
compensation must have been intended by the
legislature as a remedy
for the benefit of an aggrieved party in the review proceedings
because such party will enjoy, neither
a reconsideration of his
administrative application by the original administrator, nor obtain
the benefit of a substituted administrative
decision by the court. At
the end of paragraph 22 he said the following:
‘
I
do not say that an aggrieved party in review proceedings is entitled
to compensation merely because there has been neither a remittal
nor
a substitute decision by the court but I do hold that compensation is
not available as a remedy if the usual remedy of remittal
has been
granted or if exceptionally the court has substituted its own
decision for that of the administrator.’
[19]
As part of his reasoning, Rogers J was rightly concerned that
affected parties could, on his interpretation of the relevant
section
of PAJA, be precluded from obtaining compensation under PAJA in
respect of loss suffered as a result of really egregious
administrative decisions, because in such cases the remedy of
remittal will often remain appropriate, or there may be scope for
a
substituted administrative decision by the court. However, he did not
see this as justification for departing from what appeared
to him to
be the clear meaning of s 8(1)
(c)
of
PAJA. He stated that it should be borne in mind that the law of
delict remained at the disposal of an affected party. The court
below
was rightly aware that our courts have been conscious of the dangers
of imposing liability on public bodies for the negligent
but honest
exercise of powers. In this regard he relied on the decision of the
Constitutional Court in
Steenkamp NO v
Provincial Tender Board, Eastern Cape
2007
(3) SA 121
(CC) paras 38-56.
[20]
As part of his reasoning, Rogers J also had regard to
Darson
Construction (Pty) Ltd v City of Cape Town & Another
2007 (4) SA 488
(C). What that case held was that, having regard to
the facts, (a) it was impractical to remit the decision for
reconsideration;
(b) there had been no basis for the court to
substitute its own decision for that of the decision-maker; and (c)
that an applicant
was entitled to some compensation for the manner in
which the City had breached the applicant’s right to
administrative justice.
Rogers J noted that in
Darson
there had been no analysis of the
structure of s 8(1)
(c)
of PAJA and considered it significant that compensation was only
awarded because neither the remedy of remittal nor a substituted
order was feasible.
[21] Returning to
the facts before him, Rogers J held that Simcha’s claim for
compensation could not succeed. He took into
account that, even
though the order of Desai ADP did not expressly provide for remittal
to the City for reconsideration, it could
readily be concluded that
it had that effect. The following part of the judgment reflects his
reasoning:
‘
[I]t
is perfectly clear from the history of the matter that nobody
understood the order as finally determining that the building
plans
submitted by Simcha in 2008 were not able to be approved. All that
was set aside was the approval of the application. The
review court
did not substitute for that approval a refusal of the building plan
application. The legal position, upon the granting
of the review
order, was that the 2008 application for building plan approval
remained before the City and Simcha was entitled
to a decision on
that application. That being the obvious purport of the order, it is
not open to the review court to grant either
of the exceptional
alternative remedies in para (ii) of sub-section 8(c).’
[22]
Although the court below also held that the City’s approval of
Simcha’s plans, along with thousands of others,
in violation of
Walele
,
was a serious dereliction of duty and stated that, in its view, the
decision to approve Simcha’s plans was a conspicuously
bad one,
it did not consider it to be ‘exceptional’ within the
meaning of that expression in s 8(1)
(c)
(ii).
It is necessary to record that although the City’s explanation
for its tardiness in implementing
Walele
is not particularly persuasive, the picture that emerges from its
explanation for the delay is one of a lumbering bureaucracy trying
to
come to terms with the implications of
Walele
,
taking advice on it and not being very effective in finding a
solution in dealing with plans that had already been approved and
with plans still to be considered.
[23]
The court below considered causation to be a further problem
confronting Simcha. In that regard Rogers J rightly asked whether
a
properly motivated report by the building control officer might, in
any event, have led to the plans being rejected or, if approved,
be
overturned on review. It brings into sharp focus the manner in which
Simcha required the issue to be determined, namely, by
way of its
further affidavit and unacceptably transforming the litigation in the
manner described above.
[24]
It was rightly accepted on behalf of Simcha that, if the compensation
claim failed, Simcha ought to pay the City’s costs
in the
review application. Ironically, Rogers J restricted those to costs
arising out of the affidavits filed in connection with
compensation
as well as to the appearance related to the claim for compensation.
This once again illustrates the distortion caused
by extending the
litigation. In respect of the costs of the interdict, Rogers J
considered that Simcha’s persistent opposition
was such that
Simcha probably knew, prior to the institution of legal proceedings,
that no building control inspector’s report
existed. In the
view of the court below the costs of the interdict should follow the
result, namely, that Simcha should pay the
applicant’s
interdict costs and that the City should not be ordered to pay the
costs of either the applicant or of Simcha.
In the result the
following order was made:
‘
[a]
The first respondent’s claim against the second respondent for
compensation in terms of
s 8(1)
(c)
(ii)
(bb)
of the
Promotion of Administrative Justice Act 3 of 2000
is
dismissed.
[b] The first
respondent is directed to pay the second respondent’s costs in
relation to the said claim for compensation,
including the costs of
two counsel.
[c]
In regard to the costs in case 22197/12 reserved by this court’s
judgment of 12 December 2012, the first respondent is
directed to pay
the applicant’s costs, including the costs of two counsel.’
[25]
I agree with the conclusion of the court below that, although Desai
ADP did not expressly remit the matter to the City for
reconsideration, the legal effect of the setting aside of the City’s
approval would have been a remittal. This is particularly
so where a
party has not requested it, and a court has not seen fit to
substitute a decision-maker’s decision with one of
its own. In
any event, having regard to the structure of
s 8(1)
of PAJA, that
could only occur in an exceptional case. Courts are not overly
enthusiastic to substitute their decisions for those
of
decision-makers where technical proficiency is required, particularly
where the decision-maker’s experience and skills
are beyond
those of a court.
[2]
This does
not however mean that a court will shirk its responsibility in
ensuring that the principle of legality is met, even where
the issues
are intricate and complex and in respect of which a decision-maker
has institutional experience and expertise.
[26]
The legal effect of remittal referred to in the preceding paragraph
remains unaffected by Simcha’s decision, in pursuance
of its
own interests, to submit new plans in an attempt to expedite a
planning approval process to enable the building it contemplates
on
its property to be completed as soon as possible.
[27]
A careful reading of
s 8
of PAJA leads one to the conclusion that in
respect of some of the sub-provisions of
s 8(1)
one could have a
combination of remedies. However, when an administrative action is
set aside in terms of
s 8(1)
(c)
a
court can follow only one of the two alternatives provided for in
s
8(1)
(c)
(i)
or (ii). I therefore agree with the conclusion reached by the court
below, set out in paragraph 16 above, that the remedy of
compensation
is not available when an administrative act has been set aside and
the matter remitted for reconsideration. I find
the reasoning of the
court a quo set out in paragraph 16 above to be compelling.
[28]
In
Gauteng Gambling Board
this court said the following at
para 28:
‘
The
power of a court on review to substitute or vary administrative
action or correct a defect arising from such action depends
upon a
determination that a case is “exceptional”:
s
8(1)
(c)
(ii)
(aa)
of the
Promotion of Administrative
Justice Act 3 of 2000
. Since the normal rule of common law is that an
administrative organ on which a power is conferred is the appropriate
entity to
exercise that power, a case is exceptional when, upon a
proper consideration of all the relevant facts, a court is persuaded
that
a decision to exercise a power should not be left to the
designated functionary. How that conclusion is to be reached is not
statutorily
ordained and will depend on established principles
informed by the constitutional imperative that administrative action
must be
lawful, reasonable and procedurally fair.’
The
court below was correct in relying on that decision in reaching its
conclusion that the phrase ‘in exceptional cases’,
as it
appears in
s 8(1)
(c)
(ii),
was not concerned with whether the administrative decision ‘was
a conspicuously bad one but with whether there are unusual
circumstances which make it appropriate to grant the exceptional
remedy in item (aa) or (bb) rather than the usual remedy of
remittal.’
Hence I agree with its conclusion that
exceptionality was concerned with the choice of remedy, not the
quality of the administrator’s
decision in the abstract.
[29]
In
Steenkamp
the Constitutional Court was concerned with the
question whether financial loss caused by improper performance of a
statutory or
administrative function should attract liability for
damages in delict. Moseneke DCJ said the following at para 29:
‘
It
is nonetheless appropriate to note that ordinarily a breach of
administrative justice attracts public-law remedies and not
private-law
remedies. The purpose of a public-law remedy is to
pre-empt or correct or reverse an improper administrative function.
In some
instances the remedy takes the form of an order to make or
not to make a particular decision or an order declaring rights or an
injunction to furnish reasons for an adverse decision. Ultimately the
purpose of a public remedy is to afford the prejudiced party
administrative justice, to advance efficient and effective public
administration compelled by constitutional precepts and at a
broader
level, to entrench the rule of law.’
In
Steenkamp
s
38 of the Constitution was implicated.
[3]
In the present case, reliance was placed solely on the provisions of
s 8(1)
(c)
of PAJA. In para 30 of
Steenkamp
the
following appears:
‘
Examples
of public remedies suited to vindicate breaches of administrative
justice are to be found in s 8 of the PAJA. It is indeed
so that s 8
confers on a court in proceedings for judicial review a generous
jurisdiction to make orders that are “just and
equitable”.
Yet it is clear that the power of a court to order a decision-maker
to pay compensation is allowed only in “exceptional
cases”.
It is unnecessary to speculate on when cases are exceptional. That
question will have to be left to the specific
context of each case.
Suffice it for this purpose to observe that the remedies envisaged by
s 8 are in the main of a public law
and not private law character.’
[30]
Steenkamp
was
rightly relied on by Rogers J for his statement that our courts have
been slow to impose liability on public bodies for negligent
but
honest decisions. As noted in
Steenkamp
,
if administrative or statutory decisions are made in bad faith or
under corrupt circumstances or completely outside the legitimate
scope of the empowering provision, different public policy
considerations may well apply.
[4]
There is no suggestion that those circumstances obtain in the present
case.
[31]
I also agree that in the ordinary course the remedies provided for in
s 8(1) of PAJA are envisaged to be at the disposal of
a party
aggrieved and negatively affected by administrative action and
seeking to have the decision reviewed. In the present case
the
Seventeen were the parties seeking the review. The Seventeen might
have been entitled to compensation in the event that none
of the
other remedies envisaged in s 8 of PAJA were available to them. That,
however, is not a factual permutation we need concern
ourselves with.
Rogers J’s reasoning in this regard, set out in paragraph 18
above, appears to me to be correct.
[32]
When counsel on behalf of Simcha was asked why it did not pursue a
delictual remedy, he surprisingly, but without much conviction,
submitted that it could be deduced that s 8(1)
(c)
(ii)
had the effect of displacing that remedy. I do not intend to engage
with that contention, save to say that it is entirely without
merit.
[33]
In any event, in the circumstances of the present case, a claim for
compensation on any basis, whether in terms of s 8 of PAJA
or by way
of a delictual action appears premature. We do not know the ultimate
fate of the new plans that have been submitted for
approval. And in
any event, the impugned plans have been abandoned. There is no basis
on which to determine finally whether they
would ultimately have
passed muster. The causation problems foreseen by the court below are
real.
[34]
Whilst it might, with hindsight, be argued that the exercise engaged
in by the court below in adjudicating the claim for compensation
was
useful and will provide future guidance, a court must guard against
embarking on exercises it considers jurisprudentially useful,
when
the effect is an unjustifiable extension of litigation which must be
prejudicial to a contesting party.
[35]
For all the reasons set out above the appeal must fail. The following
order is made.
The
appeal is dismissed with costs including the costs attendant upon the
employment of two counsel.
________________________
MS
NAVSA
ACTING
DEPUTY PRESIDENT
APPEARANCES:
FOR
APPELLANT: Adv. H J de Waal
Instructed
by:
Brink
De Beer & Potgieter Inc., Tygervalley
Honey
Attorneys, Bloemfontein
FOR RESPONDENTS:
Adv. S P Rosenberg SC (With him E F van Huyssteen)
Instructed
by
Webber
Wentzel, Cape Town
Matsepes
Attorneys, Bloemfontein
[1]
The
Walele
judgment
was delivered on 13 June 2008 and Simcha’s plans approved on
20 October 2008 – more than four months later.
[2]
See
Minister
of Environmental Affairs and Tourism and others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and
Tourism and others
v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA) para 50 and
Associated
Institutions Pension Fund v Van Zyl
2005
(2) SA 302
(SCA) and the discussion in C Hoexter
Administrative
Law in South Africa
2ed
(2012) at 151-153.
[3]
Section
38 read as follows:
‘
Anyone
listed in this section has the right to approach a competent court,
alleging that right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are:
(a) anyone acting
in their own interest;
(b) anyone acting
on behalf of another person who cannot act in their own name;
(c) anyone acting
as a member of, or in the interest of, a group or class of persons;
(d) anyone acting
in the public interest; and
(e) an association
acting in the interest of its members.’
[4]
Para
55.