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[2015] ZASCA 193
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Plover's Nest Investment v De Haan (20590/2014) [2015] ZASCA 193 (30 November 2015)
SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20590/2014
In
the appeal between:
Plover’s
Nest Investments (Pty) Ltd
Appellant
and
Jacques Willem De
Haan
First
Respondent
The Bitou Local
Municipality
Second Respondent
Neutral
citation:
Plover’s
Nest Investments v De Haan
(20590/2014)
[2015] ZASCA (193) (30 November 2015).
Coram:
Lewis,
Mhlantla, Leach, Tshiqi and Majiedt JJA
Heard:
9
November 2015
Delivered:
30
November 2015
Summary:
Administrative
Law – administrative action – what constitutes –
effect of failure of official of municipal council
to communicate
resolution of council correctly – official not empowered to
make decisions on behalf of council – act
of official merely
administrative error not amounting to administrative action –
resolution of council valid and binding.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Eastern Circuit Local Division,
George (Griesel J sitting as court of first instance):
The appeal is
dismissed with costs.
JUDGMENT
Mhlantla
JA (Lewis, Leach, Tshiqi and Majiedt JJA concurring):
[1]
This appeal concerns the approval by the second respondent, Bitou
Local Municipality, formerly known as the Plettenberg Bay
Municipality (the municipality), of building plans submitted by the
appellant, Plover’s Nest Investments (Pty) Ltd (Plover’s
Nest). The plans were in respect of extensions and additions onto in
an area over which a neighbouring property had a servitude.
The first
respondent, Mr J W De Haan (De Haan), is currently the owner of the
dominant tenement. He claims that the building extension
plan
approved by the municipality interfere with his rights of ownership
in two main respects. He thus applied, amongst other things,
for an
order setting aside the municipality’s approval of the
extensions on the basis that the decision to approve the building
plans was unlawful. His application succeeded and the approval was
set aside by the Western Cape Division of the High Court (Griesel
J).
[2]
The primary issue both before the court a quo and this court on
appeal is whether conditions imposed on owners of unimproved
erven,
which were not communicated to them, and not registered against the
title deeds of the respective properties, were binding
on the owners.
The other issue is whether De Haan’s rights under the servitude
are impeded by the building that was approved.
These rights include
access to a pedestrian path to the public beach, which Plover’s
Nest’s property faces, obtained
by means of a right of way over
it registered in favour of De Haan’s property in terms of a
Notarial Deed of Servitude K
715/98 and a right to a view of the sea.
[3]
The litigation in this matter arose after De Haan discovered that the
municipality had approved Plover’s Nest’s
building plans
for extensions and additions to its property and that Plover’s
Nest had built within the servitude area. The
background to the
application in the court a quo is briefly the following. Certain
unimproved erven 3983, 3984, 3985 and 3986,
situated on Solar Beach
in Plettenberg Bay, were sold to Plover’s Nest and De Haan’s
predecessors in title. Erf 3984
extended to the beach by means of a
‘pan–handle pathway’. Plover’s Nest owned
erven 3983, 3985 and 3986
whilst its neighbours, Mr and Mrs
Douglas–Jones (the Douglas-Joneses) owned erf 3984. During May
1994 an application was
submitted to the municipality on behalf of
the owners of these erven for the subdivision and consolidation of
the vacant erven.
[4]
On 6 June 1994, the senior town planner in the employ of the
municipality, Mr J Geyer (Geyer), compiled and submitted a report
to
the municipal council in which he recommended that the application be
approved in principle, subject to compliance with the
provisions of
the Land Use Planning Ordinance 15 of 1985 (the LUPO) and the
provision of new service connection points for the
account of the
applicants. On 27 June 1994, Geyer’s report was considered by
the council and his recommendations were accepted.
An additional
condition imposed by the council was that it would not, as a result
of the re-subdivision, be prepared to support
any future requests for
relaxation of the building lines of the re-demarcated properties. The
application for the proposed consolidation
and re-subdivision was
duly advertised for comments and no objections were received. In
January 1995, Geyer submitted a report
to the Building, Planning and
Development Committee of the municipal council. In it, he recommended
that additional conditions
be imposed for the approval of the
consolidation and re-subdivision.
[5] On 30 January
1995, the report was tabled at the meeting of the council where it
resolved to approve the consolidation and re-subdivision
subject to
the six conditions proposed by Geyer. The resultant resolution of the
council which included these further conditions
was as follows:
‘
(i)
That approval be granted in terms of section 25(1) of Ordinance 15 of
1985 for the consolidation and re-subdivision of erven
3983 to 3986
(Solar Beach) into 3 erven as depicted on Plan No 1 dated October
1994;
(ii)
That
the provision of service connection points be for the account of the
owners of the land;
(iii)
Council
will not, as a result of the resubdivision, be prepared to support
any future requests for relaxation of the building lines
of the new
properties created;
(iv)
That
erf 5637 (19 m
2
in
extent) be consolidated with erf 3982 because of a previous
encroachment;
(v)
At
no time in future will the servitude area be used for building
purposes; and
(vi)
Reference
259.42.20 of erf 5638 will be the lateral building line for that
particular erf. (Plan No 2 dated October 1994).’
[6]
On 10 February 1995, Geyer, acting in terms of s 24(2)
(d)
(ii)
of the LUPO,
[1]
sent to Mr H van
Waart, who was Plover’s Nest’s land-surveyor, and to the
Surveyor-General, a letter in the following
terms:-
‘
My
council, at its meeting held on 30 January 1995 resolved as follows:-
1.
That
approval be granted in terms of section 25(1) of Ordinance No 15 of
1985 for the consolidation and re-subdivision of erven
3983 to 3986
(Solar Beach into 3 erven as depicted on Plan No 1 and 2 dated
October 1994.
2.
That
the provision of new service connection points be for the account of
the owners of the land.
Enclosed
please find three copies of the subdivision plan duly signed and
dated by the Town Clerk.’
It
will be noted that the other conditions in the council resolution
were omitted from this letter.
[7]
On 28 February 1995, the municipality approved Plover’s Nest’s
building plans. Between March 1995 and May 1996,
Plover’s Nest
and the Douglas-Joneses built their respective dwellings. A
certificate of consolidated title was issued in
respect of erf 5636
owned by the Douglas-Joneses.
[8]
On 3 January 1997, a Notarial Deed of Servitude between Plover’s
Nest and the Douglas–Joneses was executed and registered
by the
Registrar of Deeds. The body of the deed of servitude specified:-
‘…
.
The owner, his successors in the title or assigns of the Servient
Tenement [Plover’s Nest’s] shall allow the Dominant
Tenement [Douglas–Joneses’] the non–exclusive right
of pedestrian access over the Servient Tenement for the purposes
of
going to or departing from the beach. The figure BCDEFN on Diagram SG
No 4229/95 annexed to Certificate of Consolidated Title
NO T64903/98
represents the servitude area.
Such
access right shall be exercised by the Dominant Tenement at all times
in a reasonable manner so as to provide as little as
possible
disturbance to the privacy of the Servient Tenement. In the exercise
of this servitude, the owner of the Dominant Tenement
shall only use
the demarcated path to the beach.
The
Dominant Tenement from the upstairs section of the house shall be
entitled to unobscured visibility of the sea over the pathway
and a
view which will be partially obscured by vegetation elsewhere
.’
[9]
On 16 February 1999, the Douglas-Joneses sold their property to De
Haan. During February 2004, Plover’s Nest submitted
an
application to the municipality for the approval of building plans to
erect a swimming pool, boardwalk and a deck on erf 5638.
The
application was subsequently approved and all these structures were
built within the servitude area.
[10]
On 13 August 2012, Plover’s Nest submitted an application to
the municipality for the approval of building
plans for the extension
of the house. The application was accompanied by submission forms for
building plans which contained the
relevant information and
requirements in terms of the National Building Regulations and
Building Standards Act 103 of 1997. One
of the questions asked in
these forms was whether there were any impediments that could affect
the granting of the approval. It
was couched in the following terms:
‘
Title
Deeds
Are
there any restrictions in the title deed, in respect of this Erf
which may have an effect on this application and which should
be
lifted in terms of the Removal of Restrictions Act, Act 84 of 1967?
Answer:
No.’
[11]
On 4 February 2013, erven 5635 and 5638 owned by Plover’s Nest
were consolidated to create erf 12702. Nine
days later, on 13
February, the municipality approved the building plans for the
extensions and additions to the buildings on erf
12702. Plover’s
Nest thereafter proceeded with the building extensions over the
property despite the condition precluding
building in the servitude
area. During April 2013, De Haan, who then lived in Australia,
received a report that Plover’s
Nest had done some extensions
on its property and in the servitude area. The report came from the
manager of the guest house that
De Haan was running on the property.
Upon inspection, he discovered that extensive building works had
already been constructed
in the servitude area without his prior
consent.
[12]
Consequently De Haan launched an application in the Western Cape
Division of the High Court, Eastern Circuit Local
Division, Ge
orge
fo
r
the review and setting aside of the municipality’s approval of
Plover’s Nest’s building plans for the
extension.
He also sought an interdict restraining Plover’s Nest from
proceeding with the building operations pending the
finalisation of
the review application. The application was founded on the basis that
the municipality’s approval of the
building plans was
inconsistent with s 39(1)
(a)
and
(c)
of
the LUPO and also with s 7(1)
(a)
of
the National Building Regulations and Building Standards Act 103 of
1997,
[2]
because the approved
building work was incompatible with the provisions of the notarial
deed of servitude executed and registered
between Plover’s Nest
and the predecessors-in-title of the property (the Douglas-Joneses)
now owned by De Haan.
[13]
De Haan argued also that a municipality is obliged to enforce
compliance with its own decisions. In this regard,
s 39(1)
(a)
and
(c)
of the LUPO reads:
‘
Compliance
with provisions of zoning scheme and of conditions of subdivision.-
(1)
Every local authority shall comply and enforce compliance with –
(
a
)
The provision of this Ordinance or, in so far as they may apply in
terms of this Ordinance,
the provisions of the Township Ordinance,
1934 (Ordinance 33 of 1934);
(
b
).
. .
(
c
)
Conditions imposed in terms of this Ordinance or in terms of the
Township Ordinance,
1934, and shall not do anything, the effect of
which is in conflict with the intention of this subsection.’
[14]
The deponent to the answering affidavit on behalf of the municipality
admitted that the council’s resolution
dated 30 January 1995
had contained six conditions. He averred that an error had occurred
when Geyer communicated its resolution
to Plover’s Nest, in
that the letter written by Geyer referred only to two conditions
instead of to all six. This resulted
in four conditions being
omitted. Furthermore, he averred that the municipality’s
officials had not been aware of this mistake
until De Haan’s
attorneys threatened legal action. The mistake was also not noticed
when the application for the approval
of the building plans for the
extension was considered. The municipality averred that it would not
have approved the application
had it been aware of the existence of
the restrictive conditions.
[15]
On the other hand, Mr Thomas, the deponent to the answering affidavit
of Plover’s Nest, denied the allegations
that Plover’s
Nest had breached the conditions of approval. According to him, the
municipality’s approval and decision
was what had been
officially communicated by Geyer to Plover’s Nest and the
Surveyor-General containing two conditions only,
without any
restrictions on the proposed building project. He contended that, for
the past 19 years, Plover’s Nest had not
been aware of the
restrictive conditions and that had it known about them, it would
have lodged an appeal to the Administrator
in terms of s 44 of the
LUPO against the imposition of the condition prohibiting building. He
further averred that Plover’s
Nest had expended an amount in
excess of R1 million in effecting the building extensions approved by
the municipality.
[16]
In the court a quo, Plover’s Nest contended that conditions 5
and 6 were not operative as the letter sent
by Geyer did not contain
them. According to Plover’s Nest, the operative decision was
the one communicated to them by the
official of the municipality and
that the municipality could not ignore that letter and seek to rely
on its decision of 30 January
1995.
[17]
The learned judge did not decide the question relating to the effect
and consequence of Geyer’s mistake when
he communicated the
council’s resolution, but disposed of the matter on a different
point. He concluded that Plover’s
Nest had omitted relevant and
crucial information in the forms submitted with the building plans
and that its answers were misleading.
He concluded also that had the
municipality been aware of the current facts – that there were
restrictions in the title deed
– it would not have approved the
plans. The court a quo thus granted an order reviewing and setting
aside the approval of
the building plans dated August 2012. Plover’s
Nest appeals against that finding with the leave of this court.
[18]
The appeal raises the question of the consequences of the failure of
an official of the municipality to communicate
a decision of the
municipal council correctly and whether the action of that official
constitutes administrative action. Simply
put, whether, as Plover’s
Nest contended, the decision as communicated constituted the decision
of the municipality.
[19]
There is no doubt that the conduct of the municipality in approving
the consolidation and subdivision of erven,
subject to conditions,
amounts to administrative action and that its decision affects the
legal rights of an individual. It is
necessary in view of the
provisions of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) to identify the administrative
action which under review would
stand to be set aside. To that end, Professor Hoexter
identifies seven main elements under
the PAJA namely:
[3]
(a)
A decision; (b) by an organ of State (or natural or juristic person);
(c) exercising public power or performing a public function;
(d) in
terms of any legislation (or an empowering provision); (e) that
adversely affects rights; (f) and has a direct, external
legal
effect; and (g) which does not fall within one of the listed
exclusions (eg legislative, executive and judicial functions).
[20]
The PAJA further broadly defines the term ‘decision’
under s 1 as meaning, for current purposes:
‘
any
decision of an administrative nature made, proposed to be made, or
required to be made, as the case may be, under an empowering
provision, including a decision relating to—
.
. .
(b)
giving,
. . . or refusing to give . . . approval, . . . or permission;
.
. .
(d)
imposing
a condition or restriction;
.
. . or
(g)
doing
or refusing to do any other act or thing of an administrative nature,
and a reference to a failure to take a decision must
be construed
accordingly.’
[21]
Before us, counsel for Plover’s Nest submitted that Geyer’s
failure to notify the owners and the Surveyor-General
of the
municipal council’s decision to impose conditions 5 and 6 meant
that these conditions were inoperative and that Geyer’s
defective notification constituted administrative action. In support
of his submission counsel relied on the decisions of
Kirland
[4]
and
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000 (1) SA 1
(CC) (SARFU III)
.
[22]
In my view, the reliance on these decisions is misplaced. The facts
of these cases are distinguishable from the
facts of this matter. In
Kirland
the
relevant administrator made two conflicting decisions: the first had
been correctly taken (but not communicated by the relevant
official
to the applicant entity), while the second – relied and acted
upon – which was communicated to the applicant,
had been
defective and unlawful.
The
two decisions were taken by functionaries vested with the necessary
legislative powers to approve or refuse the application.
The question
before the court was whether the approval by the acting
superintendent-general and the withdrawal by the
superintendent–general
constituted unlawful administrative
action. The administrative action is mentioned in para 69 of the
majority judgment, where the
following appears:
‘
The
problem arises from two decisions on applications Kirland submitted
to the Eastern Cape government in 2006 and 2007 to establish
private
hospitals in the province. The first said No. The second said Yes.
The first, the refusal, was never signed off or communicated
to
Kirland. This was because Mr Boya, the superintendent-general who
took that decision, became incapacitated. The second, the
approval,
was taken on 23 October 2007 by an acting superintendent-general, Dr
Diliza, while Mr Boya was away. That decision was
communicated to
Kirland, but Dr Diliza took it in circumstances that make it
vulnerable to challenge on review.’
[23]
The decision of this court in
Oudekraal
[5]
(ie
that defective decisions of administrators remain binding until they
are set aside through judicial review) was affirmed by
the
Constitutional Court in
Kirland
.
That court essentially required organs of state to apply for the
review and setting aside of their own erroneous decisions upon
learning of them, where applicants for the decisions wish to rely
upon them. These principles are further in line with the
principle underlying the term
functus
officio
,
which
entails that once an administrator has made a decision it has no
power to change it or set it aside.
[6]
[24]
SARFU
III
related
to the exercise of presidential executive powers to appoint a
commission of enquiry in terms of s 84(2)
(f)
of
the Constitution. The question before the court was whether the
exercise of the power conferred on the President constituted
administrative action.
The
Constitutional Court held that the decision was executive rather than
administrative action. But Plover’s Nest argued
that
SARFU
III
was
authority for the proposition that a decision takes effect only when
communicated. The court said (para 44) that the appointment
of a
commission of enquiry ‘only takes place when the President’s
decision is translated into an overt act, through
public
notification’. The argument loses sight of the fact that the
President was the repository of power in terms of the
Constitution:
only he could take such a decision and he was required to make it
public. In this matter Geyer was not the repository
of power. The
council was. Geyer simply miscommunicated its decision.
[25]
In this case the municipality resolved to grant the application for
consolidation and re-subdivision subject to
six conditions. It is
clear that some of the conditions were extracted from the motivation
submitted on behalf of Plover’s
Nest although the applicant
owners were not aware of their land-surveyor’s submission at
the time. The municipal council
did not err when it made its
decision. The only issue is the effect of Geyer’s failure to
communicate the decision correctly.
[26]
Kuzwayo
v Representative of the Executor in the Estate of the late
Masilela
[7]
is pertinent authority on the distinction between clerical and
administrative actions. In that case, a delegate of the
Director-General
for the Department of Housing issued a declaration
that Kuzwayo had been granted the right of ownership in respect of a
site that
had already been allocated to Masilela. It was not in
dispute that Masilela had paid for the site and had built a house on
it:
he and his family had lived in the house for 13 years prior to
his death. In determining the question, whether the act of the
official
amounted to a decision in terms of the PAJA, Lewis JA for
this court held (para 28):
‘
The
only administrative decision that could and should have been made was
that of the Director-General or his delegate, after the
inquiry
mandated by s 2 of the Conversion Act [81 of 1988]. And that was the
only decision that could be subject to review. The
act of signing the
declaration and the deed of transfer were but clerical acts that
would have followed on a decision. Not every
act of an official
amounts to administrative action that is reviewable under PAJA or
otherwise.’
[27]
In this case, it is common cause that Geyer’s action was an
obvious mistake: whoever had typed the letter
had not turned over to
the page that contained the rest of the conditions including that
prohibiting building in the servitude
area. One need merely
scrutinise the letter to see that Geyer had not made any decision.
The introductory part reads:
‘
My
council, at its meeting held on 30 January 1995 resolved as follows:
. . .’
In
my view, it cannot be said that Geyer made any decision when regard
is had to the introductory part of the letter. He did not
evaluate
the council’s decision but merely conveyed it. The act of
writing the letter was a notification that followed on
a decision. It
has to be borne in mind that he had a duty to notify Plover’s
Nest of the municipal council decision and the
conditions imposed and
that he was not vested with any authority to take a decision. It is
clear that Geyer did not intend to do
anything other than communicate
the decision of the council. He performed a clerical act and in the
process committed an error.
The communication of the decision had
nothing to do with the decision – only the notification was
defective. His error cannot
be imputed to the council and elevated as
the decision of council. It follows that the clerical error does not
constitute administrative
action that would substitute the resolution
of the municipality. In the result, the resolution of council dated
30 January 1995
is valid and binding on the municipality. It follows
that the decision of the municipality on 13 February 2013 to grant
approval
to Plover’s Nest’s building plans is fatally
flawed and stands to be reviewed and set aside.
[28]
What remains is the question relating to the finding of the court a
quo that the answers provided by Plover’s
Nest in the forms
submitted with the building plans stating that there were no
restrictions in the title deed were misleading.
In terms of the
Notarial Deed of Servitude, Plover’s Nest allowed the
Douglas-Joneses, and later De Haan, the non-exclusive
right of
pedestrian access to and from the beach. It furthermore provided that
De Haan would be entitled to an unobscured view
of the sea over the
pathway from the upstairs section of the house. The registered
servitude did not expressly or by necessary
implication prohibit
building in the servitude area as contended by De Haan. In the
result, it was not necessary for Plover’s
Nest to bring the
existence of the servitude to the attention of the municipality when
it applied for the approval of its building
extension plans. The
court a quo therefore erred when it made the finding that the
omission by Plover’s Nest of relevant
information resulted in
the municipality granting the approval because relevant
considerations were not taken into account.
[29]
This conclusion does not, however, assist Plover’s Nest as the
1995 resolution of the municipal council remains
valid. The
municipality was bound by its previous decision when it approved the
application for extension in February 2013. The
appeal must therefore
fail.
[30]
There may be some merit in Plover’s Nest’s argument that
it would not make sense to sterilise an area
as large as the
‘servitude area’ which is about 15 times the size of the
pre-existing ‘tongue’ (formerly
the pan-handle of the
stand) and is 66l square metres in extent, the equivalent to a full
front-row stand in the Solar Beach area.
It may also be correct that
it was not fair that Plover’s Nest has been paying rates and
taxes on a full front-stand value
whereas the Douglas-Joneses and De
Haan in turn had been paying on a back-stand value. However the LUPO
does provide several alternative
remedies for Plover’s Nest (eg
a s 30 amendment to the subdivision and a s 40 rectification of
contraventions). Moreover,
Plover’s Nest may claim damages
against the municipality for the negligent conduct of its official,
and, given that it learned
of the decision only 19 years after it was
made, it may well still be able to apply to court to set it aside.
[31]
In the result, the appeal is dismissed with costs.
__________________
N
Z MHLANTLA
JUDGE
OF APPEAL
APPEARANCES
:
For
Appellant: AM Breitenbach SC
AE
Erasmus
Instructed
by: Kuilman Mundell & Arlow
Attorneys, Johannesburg
Claude
Reid Inc, Bloemfontein
For
Respondent: D L Van Der Merwe
Instructed
by: Hutchison, Du Plessis, Robin
& Stoloff, Plettenberg Bay
Symington
& De Kok, Bloemfontein
[1]
Section
24(2)
(d)
(ii)
of the LUPO provides as follows in relation to applications for
subdivision:
‘
the
said town clerk or secretary shall where his council may act under
section 25(1) notify the owner and the Surveyor-General
concerned of
his council’s decision and where applicable furnish them with
a copy of any conditions imposed by that council’.
[2]
Section
7(1)
(a)
of
the National Building Regulations and Building Standard Act
provides:
‘
If
a local authority, having considered a recommendation referred to in
section 6(1)
(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’.
[3]
Cora Hoexter
Administrative
Law in South Africa
2
ed (2012) at 197.
[4]
MEC for Health, Eastern Cape
& another v
Kirland
Investments
(Pty)
Ltd
t/a
Eye & Laser
Institute
2014 (3) SA
481 (CC).
[5]
Oudekraal Estates (Pty) Ltd v
City of Cape Town & others
2004
(6) SA 222 (SCA).
[6]
Lawrence
Baxter
Administrative
Law
(1984)
at 372-380 and Hoexter op cit at 278-281.
[7]
Kuzwayo
v
Representative of the Executor in the Estate of the late Masilela
[2011] 2 All SA 599
(SCA) para
28. See also
Nedbank
Ltd v Mendelow & another NNO
2013
(6) SA 130
(SCA) paras 24-26 and
Seale
v Van Rooyen NO & others; Provincial Government, North West
Province v
Van
Rooyen & others No
2008
(4) SA 43
(SCA) para 12.