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[2010] ZAWCHC 134
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Meara v Van der Merwe and Others (6444/2007) [2010] ZAWCHC 134 (21 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 6444/2007
In
the matter between:
PAMELA
MEARA
Applicant
and
JOHAN
VAN DER MERWE N.O.
(The
Chairman of the Review Board)
First
Respondent
THE
BITOU MUNICIPALITY
Second
Respondent
LEXSHELL
507 INVESTMENTS (PTY) LTD
Third
Respondent
JUDGMENT
HANDED DOWN ON 21 JUNE 2010
Introduction
1.
The
applicant seeks an order reviewing and setting aside the decision of
the Review Board constituted in terms of section 9(1)
of the
National Building Regulations and Building Standards Act, 103 of
1977 (the Building Standards Act) dismissing the applicant's
appeal
in terms of section 9 of the Building Standards Act against the
second respondent's refusal to approve the applicant's
application
to build, submitted in terms of section 4(1) of the Building
Standards Act,
1
in respect of her dwelling house. Both the first respondent (the
chairman) and the third respondent have filed opposing papers.
The
Bitou Municipality withdrew its opposition to the application on
condition that the applicant would seek no cost order against
it.
2. In
May 2000 the applicant relocated to Plettenberg Bay from
Johannesburg and acquired a dwelling situate at No. 3 Tillamook
Road, Plettenberg Bay, erf 1581. Mr Gerhard Johannes and his wife
Rene, at the time both attorneys at Werksmans Incorporated
in
Johannesburg, are the directors of the third respondent, the owner
of the adjoining erf 1580, which serves as their holiday
home. The
applicant and the directors of third respondent accordingly are
neighbours. The parents of Mrs Johannes and the applicant
have been
cordial neighbours since 1971.
3. At
the stage that the applicant acquired the house it only had two
small spare bedrooms, with a single shower and a bath. Between
the
applicant's late partner and herself they have five children, all of
whom are adults and mostly married. The existing house
was
inadequate to accommodate the combined families over the holiday
period and would have to be enlarged.
4. Erf
1581 (as well as erf 1580) is situated in a single residential zone
in terms of the Plettenberg Bay Town Planning Scheme.
5. In
February 2002 the applicant, after enquiries made at the second
respondent, the Bitou Municipality, regarding the requirements
for
operating a bed and breakfast facility, caused building plans to be
drawn up and submitted for the alteration of the house
to
accommodate the extended family and for use as a bed and breakfast.
6. On
completion of the building work and at the applicant's request, the
second respondent's building inspector not only approved
the
alterations, but also confirmed that the house met with the local
requirements for a bed and breakfast.
7. The
applicant registered her establishment with both the Bitou
Municipality and the Plettenberg Bay tourist information centre,
prior to her letting out rooms with effect from September 2002. The
applicant had in fact moved out of the main part of the house
into
what had hitherto been quarters intended for a domestic servant, in
order to facilitate the letting out of the third bedroom.
8. During
2003 the applicant decided to embark on certain further alterations
to the house. To this end building plans were submitted
to the Bitou
Municipality and its approval in terms of section 7(1) of the
Building Standards Act
2
was obtained in respect of the applicant's application on 23 June
2003. The plans provided for two additional en-suite bedrooms
and
extensions to the existing kitchen, wooden deck and the main bedroom
which the applicant was now to occupy.
9. The
alterations served to create a more substantial house. It
facilitated the accommodation of the applicant's three grown-up
children, as well as her deceased partner's two children and their
families, who all tended to visit during the end of year festive
season. During family visits, the applicant does not operate the bed
and breakfast and the house is used solely for family accommodation.
10. The
alterations provoked a response from the Johannessen's who
considered that their sea view from their property had been
negatively affected by the alterations and that the applicant had
not adhered to undertakings given by her. This led to a break
down
in the harmony which had hitherto been in existence between the
neighbours.
11. They
brought a review application to set aside the approval of the
building plans in the name of the third respondent, together
with
interdict proceedings. The interdict proceedings sought to preclude
the applicant from utilising the house for the purposes
of a bed and
breakfast. As against the Bitou Municipality an interdict was sought
directing it to ensure compliance on the part
of the applicant with
certain title deed conditions applicable to the property and with
the provisions of the relevant zoning
scheme regulations. On 8
November 2004, and by agreement between the parties, the interdict
proceedings were postponed, subject
to the right of the
Johannessen's to re-enrol the matter for hearing in due course. This
application remains in limbo.
12. The
review application was argued before Mr Justice Foxcroft on 31
January 2005. In the final instance only a single ground
of review
was persisted with, namely the contention that the Bitou
Municipality's building control officer was not properly qualified
and had not been properly appointed. Mr Justice Foxcroft upheld this
ground and the Bitou Municipality's approval of the building
plans
was set aside. The Bitou Municipality strongly defended its approval
of the applicant's building plans before Mr Justice
Foxcroft. It
asserted that the building was neither unsightly nor objectionable,
nor did it derogate from the value of the Johannessen's
property,
nor was there any other basis for the refusal thereof in terms of
section 7(1) of the Building Standards Act.
13. The
applicant thereafter during May 2005 caused the identical building
plans to be re-submitted to the Bitou Municipality.
Despite its
earlier and strongly defended approval, the Bitou Municipality
performed, what Mr Rosenberg, who with Mr Melunsky,
appeared for
theapplicant, described as a regrettable about face - it declined to
grant approval of the building plans. The Bitou
Municipality
informed the applicant of its decision by way of a letter dated 13
July 2005. In a subsequent letter the reasons
for the decision were
given. Five grounds were furnished, four whereof were based upon
alleged infringements of the title deed
restrictions, while the
fifth was based on an alleged infringement of the zoning scheme
regulations.
3
14.
The applicant thereafter noted an appeal to the Review Board, in
terms of the provisions of section 9(1) of the Building Standards
Act,
4
by way of a letter dated 17 August 2005. By way of a letter dated 22
March 2006 the third respondent opposed the appeal. The
letter of
objection dated 13 March 2005 which had been submitted to the Bitou
Municipality
in opposition to the re-submission of the building plans was an
annexure to the letter opposing the appeal.
15.
The
Review Board appeal hearing took place at Plettenberg Bay on 5 and 6
October 2006. Thereafter, and in a finding dated 19 March
2007, that
is five months later, the Review Board dismissed the appeal, the
reasons being furnished as follows:
"(a)
Appellant can succeed in the appeal only if each and every reason
raised by Respondent for its refusal to approve is
decided in
Appellant's favour; Appellant has failed in this regard.
(b)
Of particular importance is Appellant's intention, frequently
admitted, to use the buildings built in terms of the proposed
building plans as bed and breakfast facilities.
(c)
Review Board Members, having inspected same, accept such admission
as correct, and reject the belated submission that the
design and
construction are consistent with an extension to a (domestic) single
dwelling.
(d)
This deviation from the Title Deeds is fatal to the Appeal.
(e)
Review Board Members unanimously reject the Appeal."
16.
The
Review Board's decision to dismiss the appeal was confined to a
single issue, namely that the use of the house for the purposes
of a
bed and breakfast constituted an infringement of the title deed
conditions. Since the Review Board was of the view that
the
applicant could succeed in the appeal only if each and every reason
raised by the Bitou Municipality for its refusal to approve
the
building plans was decided in her favour, it was not necessary for
the Review Board to go any further than it did. Hence
the much
abbreviated nature of the finding handed down by it.
17. It
is this finding which the applicant now seeks to review.
18. Mr
Rosenberg submitted that in coming to its conclusion the Review
Board heard and/or misdirected itself in the following
respects:
a) Upon
a proper construction of the title deed condition in question
(condition D.4.(b)), it does not preclude use of portion
of the
house for a bed and breakfast;
b) In
any event, if the title deed conditions precluded a bed and
breakfast use, this does not form a valid or sufficient basis
to
withhold approval of the building plans; and
c) the
Bitou Municipality have consented to the bed and breakfast use.
19. Mr
Rosenberg submitted that the appeal to the Review Board was an
appeal in the "wide" sense, as it was a rehearing
of the
application. The Review Board could call for evidence or conduct an
inspection -
as
it in fact did.
5
The nature of the proceedings before the Review Board is import by
virtue of the decision made by it. Mr Rosenberg was critical
of the
cursory nature of the decision, pointing out that it dealt with only
in a perfunctory manner with only one of the grounds
of appeal. The
hearing before the Review Board was a hearing
de
novo
and
the Review Board was not bound by the findings of the Bitou
Municipality. Mr Oosthuizen argued that it was not necessary to
deal
with the other grounds given the decision made by the Bitou
Municipality - the Review Board's decision, if I understood
him
correctly, was to be read as incorporating the findings of the Bitou
Municipality in its letter of 22 July 2005. If this
is indeed the
approach adopted by the Review Board it misconstrued its
jurisdiction, and wrongly, by implication, placed an
onus
on
the applicant. There is no
onus
in
an appeal in the wide sense.
6
The
standard of review
20.
In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24
(CC) Navsa AJ dealt with standard of review of applicable
under the Labour Relations Act, Act 66 of 1995, ("LRA")
and
whether it is constitutionally compliant. Section 3 of the LRA
provides,
inter
alia,
that
its provisions must be interpreted incompliance with the
Constitution. He held that section 145 of the LRA
which
provides for a review of arbitration proceedings under auspices of
the Commission for Conciliation, Mediation and Arbitration
must
be read to ensure that administrative action is lawful, reasonable
and procedurally fair.
7
Navsa AJ held that
"(t)he
reasonableness standard should now suffuse s 145 of the LRA."
21.
The
reasonableness standard was dealt with in the context of section
6(2)(h)
8
of the Promotion of Administrative Justice Act, Act 3 of 2000 (PAJA)
in
Bato
Star Fishing (Ptv) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) where O'Regan J said the following
9
"(A)n
administrative decision will be reviewable if, in Lord Cooke's
words, it is one that a reasonable decision-maker could
not reach."
22.
Navsa
AJ continued as follows in
Sidumo
"[109]
Review for reasonableness, as explained by Professor Hoexter, does
threaten the distinction between review and appeal.
The Labour Court
in reviewing the awards of commissioners inevitably deals with the
merits of the matter. This does tend to blur
the distinction between
appeal and review. She points out that it does so in the limited
sense that it necessarily entails scrutiny
of the merits of
administrative decisions. She states that the danger lies, not in
careful scrutiny, but in 'judicial overzealousness
in setting aside
administrative decisions that do not coincide with the judge's own
opinions'.
10
This court in
Bato
Star
recognised
that danger.
11
A judge's task is to ensure that the decisions taken by
administrative agencies fall within the bounds of reasonableness as
required by the Constitution.
[110]
To summarise,
Carephone
12
held that s 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision should
be
justifiable in relation to the reasons given for it. The better
approach is that s 145 is now suffused by the constitutional
standard of reasonableness. That standard is the one explained in
Bato
Star
.
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect
not
only to the constitutional right to fair labour practices, but also
to the right to me constitutional right to fair labour
practices,
but also to the right to me constitutional right to fair labour
practices, but also to the right to administrative
action which is
lawful reasonable and procedurally fair."
23.
Mr
Rosenberg, if I understood him correctly, was careful to point out
that the review was not a review based on lack of reasonableness.
24. I
shall, nonetheless, endeavour to remain mindful of prof Hoexter's
warning about overzealousness in setting aside an administrative
decision which do not coincide with my own opinion.
25. Mr
Rosenberg submitted that the Review Board has misconstrued the title
deed conditions and review was, accordingly predicated
on a mistake
of law, that is the review of an administrative act which was
"materially
influenced by an error of law. "
13
26. As
Fourie J pointed out in
Seafront
for All
14
at paragraph [29]
"Judicial
review is in essence concerned not with the decision, but with the
decision-making process. Review is not directed
at correcting a
decision on the merits. Upon review the court is in general terms
concerned with the legality of the decision,
not with its merits.
The function of judicial review is to scrutinise the legality of
administrative action, not to secure or
to substitute a decision by
a Judge in the place of the decision of an administrator."
27.
It
is against this background that I turn to consider the grounds of
review advanced by the applicant. Before doing so it would
be
appropriate the legislative framework against which the application
is to be considered.
The
legislative framework
28.
The
Building Standards Act has as its objective to promote uniformity in
the law relating to the erection of buildings within
local
authorities.
15
It provides for the approval of building plans by local authorities.
Section 7 thereof provides that if the local authority,
having
considered the recommendation of the building control officer
7s
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.
Section
7(1 )(b) provides that if the local authority
7s
not
so satisfied...
such local authority shall refuse to grant its
approval in respect thereof
and give written reasons for such
refusal".
The
first ground - the proper construction of the title deed condition
.
29.
The
building plans in question provided in the main for the addition of
two en-suite bedrooms. The contention advanced on behalf
of the
third respondent was that because the applicant's intention was to
usethe two new bedrooms as part of the existing bed
and breakfast,
the Bitou Municipality was obliged to refuse approval. This
contention was accepted as correct by the Review Board.
30. Mr
Rosenberg emphasised that throughout the interdict and review papers
the Bitou Municipality and the third respondent accepted
that prior
to the alterations in question, the applicant's house was undeniably
a dwelling, despite the fact that she utilised
three bedrooms for
the bed and breakfast. Following from that it was submitted that the
subsequent addition of two en-suite bedrooms
did not alter the basic
character of the building which remained that of a dwelling.
31. Condition
D.4. (b) reads as follows
16
"This
erf... shall be used only for the purpose of erecting thereon one
dwelling..."
32. Mr
Rosenberg submitted with regard to condition D4(b) that, provided
that what has been erected on the property is a dwelling,
there is
nothing to indicate that, for example, the condition would prevent
an architect working from home or a householder letting
out any part
of the house, be it to a lodger or a bed and breakfast guest.
33. The
question then is what is meant by
"dwelling"
and
whether Mr Rosenberg is correct in his contention that the condition
would not
prevent
an architect from working from home, or the operation of a bed and
breakfast.
34.
In
this regard it was pointed out by Mr Rosenberg that it is a well
established principle that provisions creating a servitudal
right
are to be interpreted in a manner least burdensome to the affected
property. In other words, a restrictive rather than
a wide
interpretation is to be applied in construing the possible ambit of
the restriction. Thus in
Von
Wielligh v Mimosa Inn (Ptv) Ltd
1982 (1) SA 717
(A) at 724-725 Rabie JA (as he then was), held as
follows:
17
"Ten
slotte wil ek daarop wys dat dit in hierdie saak om beperkende
bepalings gaan - te wete beperkings op die gebruik van
grond deur
die eienaar daarvan - en dat waar daar in so 'n geval twyfel bestaan
oor die vraag of die beperkings die gebruiksreg
van die eienaar van
die grond beperk, die bepalings 'streng en die mins besparend' vir
hom uitgele moet word, soos dit in hierdie
Hof in
Pieterse
v du Plessis
1972 (2) SA 597
(A) te 599H gestel is. Ek meen, soos hierbo
aangedui, dat aan 'hotels' nie die beperkte betekenis van 'private
hotels' gegee
moet word nie. Sou dit egter nie duidelik wees dat
'hotels' die wyer betekenis het wat ek meen gegee moet word nie,
meen ek dat
dit ten minste twyfelagtig is of die woord die eng
betekenis het wat appellant daaraan gee, en in so 'n geval sou dit
die reel
waarna in
Pieterse
v du Plessis
(supra) verwys word, geld. By die toepassing van hierdie reel sou
dit myns insiens geregverdig wees om aan 'hotels' die wyer
betekenis
te heg."
35.
Further,
and with regard to interpretation Feetham JA set out the approach in
Cliffside
Flats (Ptv) Ltd v Bantrv Rocks (Ptv) Ltd
1944 AD 106
as follows at 111-112
"In
seeking to interpret the restriction with which we have to deal, I
propose in the first instance to confine my attention
to the
question of the meaning of the words themselves, used in their
ordinary sense, and later to consider what assistance,
if any,
towards their interpretation can be obtained from the context, or
from such surrounding circumstances as can properly
be taken account
off."
36.
Mr
Rosenberg submitted that the title deed condition seeks to limit the
nature and number of buildings to be erected on the property
to a
single dwelling. What is precluded is the erection of any building
other than one dwelling. Mr Rosenberg distinguished this
from
Pollard
v Friedlander
1959 (4) SA 326
(C) where the condition in terms limited
use to
residential use.
18
In my respectful view, Beyers JP correctly held that the conducting
of a school is a clear breach of the condition. In the instant
case,
so Mr Rosenberg submitted, the title deed condition does not purport
to deal with the extent to which the dwelling can
be used for any
other purpose.
37.
Mr
Oosthuizen submitted that the contention that a guesthouse can be
regarded as a dwelling within the meaning of this condition
is
misconceived. He relied on
Castelijn
v Sim & Others
1929 NPD 253
where the Court interpreted a title deed condition
reading:
"The
erection of only one dwelling with necessary outbuildings will be
permitted on this lot..."
In
giving judgment Dove-Wilson JP said the following at 261:
"This
is a residential quarter, and its continuance as such is sought to
be ensured by these conditions, by the prevention
of congestion
whether of houses or families. 'Dwelling-house' or 'dwelling', in my
opinion, must be read in their ordinary meaning
of habitation for
one family."
38.
In
Transvaal
Consolidated Land and Exploration Company Limited v Black
1929 AD 454
Wessels JA had to determine the meaning of
"one
residence"
in
a condition which laid down that the purchaser of a lot
"shall
only have the right to erect one residence with the necessary
outbuildings and accessories on the said lot."
Wessels
JA equated the words
"one
residence"
with
"one
dwelling house"
in
posing the
question
"Does
the clause mean that there is to be one dwelling house in the
ordinary acceptation of this word in which the owner
or occupier
lives as his home?"
He
went on to say that the words
"one
residence"
mean
in this country in ordinary parlance -
"one
house in its narrow and ordinary sense in which the owner or
occupier lives with his household."
And
in reference to a dwelling house continued
"when
we speak of a person's residence we do not conjure up in our minds a
huge block of buildings used for residential purposes,
but a
dwelling house in the ordinary sense of the word.
39.
In
Cliffside
Flats (Ptv) Ltd v Bantrv Rocks (Ptv) Ltd
1944 AD 106
, the following was said by Feetham JA at page 120:
"I
think we should construe 'dwelling-house' in this condition in the
sense impliedly given to that term by Wessels, JA in
Transvaal
Consolidated Land and Exploration Company Limited v Black
1929 AD 454
at 462-3, as a dwelling house in the ordinary meaning of
the word, that is 'one house', in its narrow and ordinary sense in
which
the owner or occupier lives with his household' -
or
a building of such character as would make it suitable for use in
that way.
"
(Emphasis
added)
See
also
R
v Jewell and Another
1965 (1) SA 863
(N) at 865D-F;
Braham
v Wood
1956 (1) SA 654
(N).
40.
It
is important in my view to have regard to the latter qualification
by Feetham JA - if the character of the building is such
as to make
it suitable for use as a dwelling then, in my view the building
complies with the condition imposed. This was the
cornerstone of the
argumentadvanced by Mr Rosenberg, and it is supported, in my
respectful view by what Feetham JA had stated
in
Cliffside
Flats
.
41.
In
Abrahamsohn
v Voluntary Workers Housing Utility Company
1953 (3) SA 220
(C) Herbstein J, after consideration of the
judgments by Wessels JA and Feetham JA concluded as follows:
"The
condition which calls for construction here differs in no material
respect from those with which the Appellate Division
had to deal.
There does not appear to be any ground which would justify this
Court in departing from the narrow and ordinary
sense and in giving
to the words any wider meaning than that given in the decisions
cited above. I come to the conclusion that
the respondent cannot on
any of the four plots erect anything but a house in the narrow and
ordinary sense of that word - namely,
a house in which the owner or
occupier would live with his family."
42. What
Herbstein J has stated, I respectfully view as confirmation for the
conclusion I have drawn in paragraph 40 above.
43. Mr
Oosthuizen, in a subsequent note, also placed reliance on
Nelson
Mandela Bay Metropolitan University v Harlech-Jones N.O. &
Others
,
case No. 2243/08, a judgment by Roberson J in an application for an
interdict against the utilisation of a property for a restaurant.
There the restrictive title condition
19
was similar to condition D.4.(b) above. Roberson J found that the
word
"used"
contained
in the restrictivecondition related to the purpose for which the
property was to be used. In making that he finding
he relied on the
fact that
"If
one looks at examples of restrictive conditions in title deeds, some
reference is usually made to the shop purposes,
for a garage service
site) for industrial purposes, etc. The word 'used' in condition
therefore, in my view, leads to an interpretation
that the property
was to be used for residential condition."
20
This
led Roberson J to conclude that the property was to be
"used
for residential purposes"
and
that the operation of a restaurant was therefore in breach of the
restrictive condition. I have not had the benefit of comparing
examples of restrictive conditions, nor do I agree, with respect,
that such comparison would be constitute a permissible aid
in
interpreting such conditions. The case, therefore, at least on the
facts is distinguishable.
44. To
the extent that regard may also be had to dictionary definitions of
a word or phrase
(Association
of Amusement and Novelty Machine Operators v Minister of Justice
1980 (2) SA 636
(A) at 660G-661B), Mr Oosthuizen placed reliance on
the
Collins
Concise Dictionary
(21
st
Century
edition) which defines a dwelling as a
"place
of residence"
and
the
Concise
Oxford English Dictionary
(11
th
edition revised) which defines dwelling as meaning
"a
house or other place of residence".
45. "Guesthouse"
is
defined in the
Concise
Oxford English Dictionary
,
10
th
edition,
revised, as a
"private
house offering accommodation to paying guests".
If
this definition is applied to the property under discussion, it is
clear that what is under consideration is a
"private
house offering accommodation to paying guests."
46. Mr
Oosthuizen submitted that an overnight visitor to a guesthouse would
hardly refer to the guesthouse as his place of residence.
This may
be so, but to my mind the question is whether Mrs Meara would refer
to it as her residence, and the answer to that must
be yes.
47. Mr
Oosthuizen submitted with regard to the town planning scheme of the
local authority, that it defines the term
"dwelling
house"
as
meaning a
"building
containing only one dwelling unit,"
while
a dwelling unit means
"a
self-contained interleading group of rooms used only for the living
accommodation and housing of a single family".
48. It
will be recalled that the applicant's property is zoned as a
"single
residential zone."
49. It
was submitted by the third respondent that a bed and breakfast
establishment and/or guest house is an establishment which
provides
accommodation on a commercial basis to paying guests who are not
members of the single family. The building plans clearly
show that
the dwelling unit does not consist of a self contained inter leading
group of rooms.
50. Thus
it was contended that a use of the dwelling for purposes of a bed
and breakfast establishment and/or guest house constitutes
a
contravention of the relevant provisions of the Plettenberg Bay
Townplanning Scheme, until such time as Erf 1581 has been rezoned
appropriately and the restrictive conditions of title have been
removed in terms of the appropriate legislation.
51. The
response to these contentions by the applicant was as follows:
a) The
suggestion that the house does not fall within the definition of a
"dwelling
unit"
as
contained in the scheme regulations is without merit.
b) The
Review Board, never addressed the point (and it was not a ground
relied upon by the Bitou Municipality for refusing the
application).
Had the point been considered, the finding would and should have
been that there are no rooms in her house which
have a separate
entrance or kitchen, and that they are all inter-leading within the
meaning of that word as contemplated in the
relevant definition
contained in the scheme regulations.
52. Mr
Rosenberg submitted that the applicant's house was at all material
times a single dwelling. The additions forming the subject-matter
of
the
June 2003 approval did not change the situation. The house did not
become anything else.
53. In
addition, the intention of the applicant, when adding the bedrooms
and extending the kitchen, was to create a more substantial
dwelling
for a two-fold purpose. The extended premises could comfortably
accommodate the applicant's family during which she
does not operate
the bed and breakfast. When not required for the applicant's family,
the additional rooms are available to be
utilised for bed and
breakfast purposes.
54. The
Bitou Municipality, in the review proceedings, endorsed the
aforegoing construction of condition D.4.(b) where Mr L Gericke
stated as follows:
"First
respondent (i.e. the Municipality) points out to the above
Honourable Court that only one dwelling has been constructed
on erf
1581. Title deed condition D.4.(b) envisages that a single dwelling
be erected on the property. The addition of the additional
bedrooms
to the existing dwelling did not alter its character as a dwelling
house."
55.
Mr
Rosenberg argued that the intention of the applicant was irrelevant
when it came to consider whether the plans submitted complied
with
the condition. The plans objectively complied and the Building
Standards Act was not concerned with the purpose of the building,
but was concerned with the structure of the building. In this regard
he
submitted that Regulation A25, in fact, supported the
applicant as it required
"use"
of
any building to be in accordance with
"the
purpose shown on the approved plans."
56.
In
Sandton
Town Council v Gourmet Property Investments CC
1994 (4) SA 569
(A) Kumleben JA, writing for the majority (Nicholas
AJA did not express a different view in his minority judgment), held
with
regard to Regulation A25(1) as follows at 576G-H:
"The
latter applies to a building which has been erected in accordance
with the approval given (that is inter alia 'for a
purpose . . .
shown on the approved plans') and which is subsequently used for a
purpose 'other than the purpose shown on the
approved plans'. In
such a case the proviso may be invoked to establish that the
building is suitable for such other unauthorised
use."
57. As
will be set out below the class of occupancy
"hospitality"
was
not yet in existence at the time that approval was sought, or the
appeal was heard, and the plans, as stated above, reflected
the
nature of the alterations and additions and their purpose, namely
extension to the suites and kitchen and two new suites.
58. In
my view the plans do reflect the purpose as required by the Building
Standards Act, and bearing it mind that the occupancy
class H4
-Hospitality - was not yet in existence, the applicant cannot be
criticised for not stating that the alterations would
be used for
the purposes of a bed and breakfast establishment.
59. As
stated above, the Bitou Municipality, before the Review Board,
reversed its position and there adopted an approach which
gave a
broad reach to the condition, so as to prohibit the letting out of
any room in a dwelling house by the occupier, whether
to a lodger or
in the course of a bed and breakfast facility. Mr Rosenberg
submitted that this is not what the condition stipulates,
nor is
there any indication that this was the Administrator's intention. I
agree.
60. The
question is whether the operation of a guesthouse falls within the
definition of the term
"dwelling".
If
dwelling includes the operation of a guesthouse, then there would be
no contravention of the township subdivision condition
embodied in
paragraph B.4(d).
61. I
have already herein above set out that it is clear to me that
"dwelling"
includes
the use of the property also for the purposes of guests, whether for
free or paying and that, accordingly, the applicant
did not fall
foul of the provisions of the restrictive condition. It seems to me
that the condition, in its own terms, expressly
restricts the
purpose to that of a dwelling.
62. It
is also supported, as Mr Melunsky, who addressed me in reply,
pointed out, in the new zoning conditions which provide for
a new
category
"bed
and breakfast".
That
category did not exist at the time that the applicant applied for
the approval of her building plans.
63. In
the premises the use of the property, also for a bed and breakfast
business, is not contrary to, or even excluded by the
condition
D.4.(b). A dwelling is one in which the owner or occupier may
receive guests, whether they are paying or not. In the
premises the
construction contended for by the applicant is neither strained, nor
misconceived.
64.
In
the premises I am of the respectful view that the Review Board
had
misdirected itself in coming to the finding that it did.
The
Second Ground
-
"Approval
not to be withheld because of potential unlawful use
.
65. In
the alternative Mr Rosenberg submitted that when considering an
application to build, the nature or character of the structure
in
question is the crucial determinant. The Building Standards Act, in
essence, purports to regulate what may be built, and to
lay down
building standards in this regard.
66. He
submitted that the future use of the structure to be built is
something of a different order. The apprehended, impermissible
use
might not materialise, or it may be altered in due course. It is a
fluid and time related concept. For this reason it was
submitted
that the possible potential illegal use of a building must be dealt
with in terms of the appropriate legislation and
legal remedies
available to control any such unlawful activity. In this regard he
relied upon what Mr Gericke had stated on behalf
of the Bitou
Municipality (in the original application which served before Mr
Justice Foxcroft), namely that
"the
use of the additions concerned is irrelevant for the purpose of this
matter in view of the relief sought by the Applicants.
If use of the
dwelling as a bed and breakfast establishment is not permitted, this
will only imply that the affected en-suite
bedrooms may not be used
for that purpose, and not that they be demolished".
67. In
this context Mr Rosenberg submitted that LUPO and the zoning scheme
regulations framed in terms thereof serve to regulate
and control
land use. In short, building plans cannot be refused on the basis
that from time to time future use may be unlawful.
68. Mr
Oosthuizen submitted that it is clear that the applicant uses the
building as a guesthouse even if she uses the house solely
for the
family's accommodation during the Christmas festive period.
69. Mr
Oosthuizen submitted that the local authority is obliged to refuse a
plan approval application submitted to it, if not
satisfied that the
application in question complies with the requirements of the
Building Standards Act and any other applicable
law.
70. Mr
Oosthuizen relied upon the principle that a duty imposed on a local
authority to refuse plan approval as was set out by
Heher JA in
True
Motives 84 (Ptv) Ltd v Mahdi & Another
2009 (4) SA 153
(SCA) at paragraph 19:
"The
refusal of approval under section 7(1 )(a) is mandatory and not only
when the local authority is satisfied that the
plans do not comply
with the Act and any other applicable law, but also when the local
authority remains in doubt. The plans
may not be clear enough. For
instance, no original ground levels may be shown on the drawings
submitted to it for approval, with
the result that the local
authority is uncertain as to whether a height restriction imposed
with respect to original ground levels
is exceeded. In those
circumstances the local authority (a) would not be satisfied that
the plans breached the applicable law,
but equally (b) would not be
satisfied that the plans are in accordance with the applicable law.
The local authority would therefore
have to refuse to grant its
approval of the plans. Thus, the test imposed by section 7(1 )(a)
requires the local authority to
be positively satisfied that the
parameters of the test laid down are met."
71.
Mr Oosthuizen submitted that the phrase
"any
other law"
has
been interpreted as referring to any other statutory enactment,
including a by-law of the local authority (
R
v Kisten
1959 (1) SA 105
(N) at 108G-109D). He is supported in his submission
by
Muller
NO and Others v City of Cape Town
2006 (5) SA 415
(C) where Yekiso J held as follows
"[27]
The zoning scheme regulations referred to in para [23] and elsewhere
in this judgment would obviously be 'any other
applicable law'
referred to in s 7(1) (a) of the National Buildings Act. The
building plans submitted for approval would have
to comply with both
the provisions of the National Buildings Act and the relevant zoning
scheme regulations. Once such building
plans are drawn, these will
be submitted to the local authority by the building control officer,
together with such recommendations
the building-control officer may
make."
72.
Moreover,
Mr Oosthuizen argued that when submitting a plan, it is obligatory,
in terms of Regulation A25
21
of the Building Standards Act, to reflect thereon the purpose for
which the building is to be used and that a building may not
be used
for a different purpose - unless the building is suitable for such
other purpose. The
"class
of occupancy"
is
dealt with in Regulation A20 as follows:
"(1)
The occupancy of any building shall be classified and designated
according to the appropriate occupancy class given
in column 1 of
Table 1 and such classification shall reflect the primary function
of such building..."
73.
It
follows from this, so it was submitted by Mr Oosthuizen, that
applications for plan approval would have to comply with the
building standards promulgated under the Building Standards Act -
and if they did not, then the local authority would be obliged
to
refuse such planning approval by virtue of the provisions of section
71(1)(b) of the
Building Standards Act.
22
74.
The
aforesaid table designates as
a) H1
-
"Hotel
.
Occupancy where persons rent furnished rooms, not being dwelling
units."
b) H3
"Domestic
residence
Occupancy
consisling of two or more dwelling units on a single site."
c) H4
"Dwelling
house
Occupancy
consisting of a dwelling unit on its own site, including a garage
and other domestic outbuildings, if any."
75.
I
pause to point out that in with effect from 1 October 2008
23
a further
category H5 was added to table 1. It provides as
follows:
"Occupancy
where unrelated persons rent furnished rooms on a transient within a
dwelling house or domestic residence with
sleeping accommodation for
not more than 16 persons within a dwelling unit."
The
plans, in fact submitted, reflect the extension to be made and
the
purpose of such extensions, such as bedrooms, kitchen and
the like.
77. Logically,
it must follow from this that the local authority had to take
cognisance of the intended use to which the building
is to be put,
as reflected on the submitted plans.
78. Mr
Oosthuizen further submitted that if regard is had to the package of
planning legislation, which is aimed at harmonising
the utilisation
of land and the development of erven areas, it would be myopic to
interpret section 7 of the Building Standards
Act as requiring the
local authority to approve a pian, even though the local authority
knows that the building work, if approved,
will be used in a manner
contrary to certain other relevant and applicable planning
legislation. He submitted that it would be
far more sensible to
interpret section 7, and particularly the obligation to consider
whether the proposed building contravenes
the Act or any other law,
as entitling a local authority to give consideration also to the
extent to which the proposed building
complies or otherwise
contravenes legislative measures such as LUPO.
79. Consequently
it was submitted that the Bitou Municipality did not err by taking
into account the fact that the applicant would
be utilising the
buildings she intended constructing for the running of a guesthouse.
80. He
submitted that a local authority is obliged, in carrying out its
duties under sections 7(1 )(a) and 7(1 )(b) of the Building
Standards Act, to have regard to other laws including the provisions
of the Townships Ordinance, LUPO and any conditions which,
under
those legislative enactments, have to be met by the owner of land
81. Mr
Rosenberg placed reliance on the unreported judgment in this
division by Smit AJ in
Kenneth
Bruce Sinclair-Smith and Mary-Ann Davies v The trustees for the time
being of the Saphrev Trust and the City of Cape Town
case number 9987/09 where, in an interdict application, it was
argued that because the intention to use the property at some
future
date as a guest house, the application to have the plans approved
was not
bona
fide.
Smit
AJ held as follows at paragraph 8.2
"I
am of the view that it is incumbent on the Municipality to consider
whether the plans objectively comply with the zoning
and building
regulations and that the subjective intention on the part of the
person who submits the plans is irrelevant. I accordingly
conclude
that Applicants have not established a prima facie case that they
are likely to succeed on this ground."
82. In
this regard Mr Rosenberg pointed out that when the applicant's
family stays with her, then she is not letting out any rooms
and
there can be no question of a contravention of the title deed
condition. If the operation of the bed and breakfast establishment
is unlawful, steps must be taken to prevent such unlawful use. It is
not the purpose of the National Building Standards Act to
also
regulate and control the actual use of buildings - this is the
provenance of the land use and town planning legislation
and title
deed restrictions.
83. It
seems to me that once it is accepted that the plans as submitted
falls within the definition of dwelling, then it must
follow that
the use reflected thereon, as bedrooms or kitchens, is adequately
reflected. The fact that the dwelling would then
be utilised for a
bed and breakfast would be irrelevant.
84.
I
am of the view that the application also has to succeed on this
ground.
The
Third Ground: The Bitou Municipality's Consent to the Bed and
Breakfast Use
85.
The
factual background against which this ground was advanced is as
follows. The consent derived from the Bitou Municipality being
advised of the fact that the applicant intended operating a bed and
breakfast and advising that the 2002 alterations met with
the local
requirements for a bed and breakfast and thereafter registering the
applicant's establishment as a bed and breakfast,
pursuant to which
it charged
additional rates of the applicant. The Bitou
Municipality is the competent authority for the purposes of
approving subdivisions
in terms of LUPO and therefore had the
authority to agree to the relaxation of the title deed condition. Mr
Rosenberg submitted
that,
accordingly, building plan approval
should not have been withheld on this ground. He relied upon what Mr
Gericke, on behalf of
the Bitou Municipality, had stated in the
previous review proceedings, namely that
"it
has always been my understanding that second respondent (i.e.
myself) is entitled to operate a guesthouse and/or bed
and breakfast
establishment from her property".
Mr
Gericke, in the submissions made on behalf of the Bitou Municipality
before the Review Board, stated that it was the policy
of the Bitou
Municipality to permit the operation of a three-bedroom bed and
breakfast from single residential properties. Mr
Rosenberg
furthermore pointed out that there are substantially in excess of
100 bed and breakfasts in Plettenberg Bay and that
they are a
relatively recent phenomenon, as is evidenced by the fact that they
were not formerly provided for in the zoning scheme
regulations of
local authorities in the Western Cape. He submitted that it was
never the intention of either the title deed condition
in question
or the zoning scheme regulations to preclude the letting out of a
limited number of rooms in a single dwelling for
the purposes of a
bed and breakfast. I have already herein above dealt with this
contention.
86.
In this regard reliance was place on the decision in
BEF
(Ptv) Ltd v Cape Town Municipality and Others
1983 (2) SA 387
(C) where Grosskopf J, as he then was, held as
follows at 397 C-E:
"I
cannot agree with these contentions. It is true that the conditions
have the force of law, but rights there under may
validly be waived
by all persons entitled thereto. See Alexander v Johns (supra)
24
and the cases following thereon which are quoted above. In waiving
the contravention, the Council did not purport to do more
than waive
its own private right. I cannot see on what basis I can compel the
Council to exercise its rights if it does not want
to do so. I can
also see no basis upon which the Council could be compelled to
reject building plans merely because the execution
of such plans
would infringe the servitutal rights of others. In this regard it
must be emphasized that the approval of building
plans by the
Council does not grant an unqualified right to erect a building
pursuant to such approval. The conditions of approval
cover a whole
page. And include the following:
'(b)
Approval of the plans does not absolve the erector or Owner from
compliance with any condition in the title deeds of the
property
upon which the work to which the plans relate is to be
executed.""
87. Mr
Oosthuizen contended that it was inconceivable that the applicant
would have submitted building plans for the purpose of
a bed and
breakfast. Such plan approval was unnecessary because of an alleged
consent by the local authority. It seems to me
that this is not the
applicant's stance - she accepts that she had to submit plans, but
she suggests that the plans could not
be refused on the basis that
she could not use the premises as a bed and breakfast as the Bitou
Municipality had already consented
thereto.
88. Clause
2.7.1 of the Bitou Municipality's own zoning scheme regulations
stipulates that the letting of rooms by any occupier
of a dwelling
house shall not constitute an infringement of the property's single
residential zoning status.
89. Section
2.7 of the Scheme Regulations provide as follows:
2.7
SAVING
FOR SPECIAL PURPOSES
Without
prejudice to any powers of the Council derived from any other law,
nothing in this scheme shall be construed as prohibiting
or
restricting the following or enabling the Council to prohibit or
restrict the following:
2.
7.1 The letting, subject to the Council's Regulations relating to
lodging and boarding-houses, by any occupier of a dwelling
house, of
any part of the house otherwise than as a tenement."
90. It
is in this context import to bear in mind, as has already been set
out above, that the Bitou Municipality had approved
the bed and
breakfast operation conducted by the applicant. The most recent
license was granted on 18 September 2007 to the applicant
to carry
on business as a bed and breakfast under the name
"Dolphins'
Playground B&B"
at
3 Tillamook Avenue, Plettenberg Bay. The only condition attached to
this license is that it is not transferable from one premise
to
another.
91. It
was submitted by the applicant that section 2.7.1 intends and
permits the use of parts of a house for the business of providing
accommodation to outsiders. Whether such accommodation is short term
or long term is irrelevant as far as the section is concerned.
What
is important is that the letting must be by the occupier of the
dwelling house. There is no limit on the extent to which
an occupier
may make available portions of his or her dwelling house for
accommodation purposes, save as contained in the municipality's
regulations relating to lodging and boarding houses and presumably
in any other relevant regulations of the municipality.
92. It
was presumably under the aegis of this section that the Bitou
Municipality permitted scores of bed and breakfast establishments
to
operate. The applicant went as far as to state that it was the
policy of Bitou Municipality to permit the operation of bed
and
breakfast establishments (up to three bedrooms) from properties
zoned single residential. Mr Rosenberg also stressed that
the Bitou
Municipality levied rates on the basis that rooms were being let
out.
93. The
Bitou Municipality could relax the title deed and township approval
conditions and, in fact, did do so. It was therefore
not open to the
Bitou Municipality to now adopt a different position.
94. Accordingly,
and on this ground also the review has to succeed.
The
other additional grounds upon which the appeal could have been
dismissed
95. Both
Mr Rosenberg and Mr Oosthuizen addressed me on these additional
grounds. It will be recalled that the Review Board dismissed
the
applicant's appeal on a single ground.
96. Mr
Rosenberg submitted that it is no assistance for the chairperson or
the Review Board to contend that there were other grounds,
not
relied upon by the Review Board in its findings, justifying the
dismissal of the appeal.
97. It
should be noted that the first respondent did not take issue with
the allegation that the Review Board's decision to dismiss
the
appeal was confined to a single issue, namely that the use of the
house for the purposes of a bed and breakfast operation
constituted
an infringement of title deed condition D.4.(b). The alleged
contraventions of title deed condition D.4.(c) and conditions
E.2
and E.4 were not relied upon before the Review Board at all.
98. Only
the alleged encroachment over the building line restriction of 1,57
metres contained in condition D.4.(d) could be of
any possible
relevance. The chairperson did not regard the encroachment as being
so inconsequential as to require the applicant's
counsel to deal
with them.
99. It
seems me that the non-compliance is so insignificant that it amounts
to
de
minimis non curat lex.
100. In
the premises I am satisfied that the decision by the Review Board
was:
(a)
materially
influenced by an error of law;
(b)
failed
to take into account relevant considerations and took
into
account irrelevant considerations;
(c) not
rationally connected for the purpose for which it was taken and/or
the purpose of the empowering legislation and/or the
information
before the Review Board;
(d) unlawful.
101. In
the premises the review has to succeed.
102. It
is, however, not the only basis upon which the applicant is entitled
to have the decision set aside.
Bias
103.
In
her replying affidavit the applicant introduced a further ground
upon
which to set aside the review. The point arose as follows:
(a). The
review application was instituted on 21 May 2007. On 23 August 2007
the chairperson, acting through attorneys Messrs
Nongogo Nuku
Incorporated, caused the record of the proceedings to be filed. Some
eight months after the record had been filed,
answering affidavits
were filed on behalf of the chairperson and the third respondent on
29 April 2008.
(b). These
answering affidavits, together with a further confirmatory
affidavit, were presented under cover of a filing notice
emanating
from Messrs Werksmans, described as being the attorneys of the
first, second and third respondents. It was not apparent
why Messrs
Werksmans, the third respondent's attorneys, were now also acting on
behalf of the chairperson, in the stead of Messrs
Nongogo Nuku
Incorporated.
104.
Mr
Rosenberg submitted that the chairperson's affidavit and that of Mr
Gerhard Johannes filed on behalf of the third respondent,
revealed
the following disconcerting features:
(a) Both
affidavits appear to have been produced in the office of Mr
Johannes. This much is apparent from the computer file reference
which appears at the top of each page of both affidavits.
(b) The
composition of the two affidavits appears to have taken place on the
basis of close co-operation; it is probable that
the two affidavits
were drafted or settled by the same person as is indicated by the
fact that both affidavits at various points
make the same error of
referring to the record by means of the numbering at the foot of the
page, rather than the
"m"
sequence
appearing at the top right of each page.
105.
Mr
Rosenberg further pointed out that the chairperson's affidavit
was
notable for:
(a)
the extent to which it seeks to justify the Review Board's
decision
on grounds other than those put up in its decision
as
handed down; and
(b)
the fact that the chairperson in effect joins forces with the
third
respondent in the latter's purported application for a
demolition
order.
106. I
pause to point out that the application for a demolition order was
not pursued.
107. Mr
Rosenberg pointed out that it would be wholly inappropriate for the
chairperson to adopt a stance on an unrelated issue,
namely that of
a demolition order, and seek to persuade the Court to grant such a
claim.
108. At
the hearing before the Review Board which spanned two days, the
chairperson interrupted Mr Rosenberg to advise him that
it was not
necessary to deal at all with the question of encroachment. It is
therefore surprising and of concern that the chairperson
felt
motivated to adopt advance encroachment arguments which involve
insignificant margins.
109. Mr
Rosenberg submitted that the level of co-operation demonstrated
between the chairperson and the third respondent was most
unusual.
Added to this it was singularly inappropriate that the chairperson
should have extended himself to joining the third
respondent in
seeking demolition of the alterations to the applicant's house. The
applicant states that at the time of the appeal
she had no reason to
suspect that the chairperson might have been biased, but that her
position had subsequently altered. She
had regard to the lengthy
time taken after the conclusion of the hearing to produce the
cryptic and unreasoned finding of the
Review Board and, taking into
account the unusual and inappropriate level of co-operation between
the chairperson and the third
respondent, she now had an
apprehension or suspicion that such inappropriate proximity was not
necessarily confined to the period
after the handing down of the
Review Board's finding.
110.
Mr Rosenberg relied upon
section 6(2)(a)(iii)
of the
Promotion of
Administrative Justice Act, 32 of 2000
, namely that administrative
action falls to be reviewed in the event of the administrator being
biased or reasonably suspected
of bias. The requirements for a
reasonable suspicion of bias is as follows:
(a)
there must be a suspicion that the administrator might (not
"would")
be
biased;
(b)
the suspicion must be that of a reasonable person in the position of
the litigant;
(c)
the suspicion must be based on reasonable grounds;
(d)
the
rule against bias applies to all types of decisions.
(See:
BTR
Industries South Africa (Ptv) Ltd v Metal and Allied Workers Union
[1992] ZASCA 85
;
1992 (3) SA 673
(A);
S
v Roberts
1999 (4) SA 915
(SCA); and
President
of the Republic of South Africa v South African Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC)).
111. Mr
Rosenberg submitted that one would have expected the first and third
respondents not only to answer the fresh challenge
raised in reply,
but also to explain what, on the face of it, amounted to most
inappropriate and irregular conduct. Whether an
answer or
explanation is required depends on the circumstances of each matter.
Thus in
Tantoush
v Refugee Appeal Board & Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T), Murphy J was of the view that the material in
the replying affidavit
"could
and should"
have
been dealt with (at paragraph [51]). In
Pretoria
Portland Cement & Another v Competition Commission & Others
2003 (2) SA 385
(SCA) at paragraph [53], Schutz JA stated that he
"would
have expected"
any
material to be dealt with. In
Zuma
& Others v National Director of Public Prosecutions & Others
2009 (1) SA (CC) at paragraph [325] Ncobo J, as he then was, felt
that it was
"incumbent"
on
the party concerned to have dealt with the matter raised in reply.
112. In
Cash
Paymaster Services (Ptv) Ltd v Eastern Cape Province
1999 (1) SA 324
(Ck HC) Pickard JP had occasion to consider
allegations of bias levelled at provincial tender board. He
expressed himself as
follows at 353F - 354B
"The
perception of bias may quite possibly be enhanced by another factor
which appeared to the Court to be somewhat unusual.
Unlike
what normally occurs in review matters of this nature, the tribunal
(the Board) has in this case offered extremely strenuous
opposition
to the review proceedings. I have great difficulty in understanding
why.
It
is almost standard practice that an independent tribunal such as the
Tender Board would in review proceedings comply with the
requirements of rule 53 of the Uniform Rules of Court by making
available the record of its proceedings and its reasons and such
other documentation as the Court may need to adjudicate upon the
matter and, if necessary, to file an affidavit setting out the
circumstances under which the decision was arrived at. It seems,
however, unusual to me that an independent tribunal such as
the
Tender Board should file such comprehensive and lengthy papers and
offer such stringent opposition by employing senior counsel
and the
like to argue their case. More often than not independent tribunals,
having done their duty in terms of the provisions
of rule 53, take
the attitude that they abide the decision of the Court and leave the
other matters to the interested parties
to dispute before the
Court...
Regrettably
this attitude of the Board in this case may well be to some extent
support for a suggestion that they are not entirely
independent and
disinterested."
113.
In
Tantoush
v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
Murphy J held as follows
[85]
The perception of bias is strengthened to some degree by the
strenuous opposition put up by the first and second respondents
to
this application. The RAB
25
is an adjudicative tribunal. All its members are members of the
International Association of Refugee Law Judges. They are
administrators
tasked with quasi-judicial functions.
[86]
....Thirdly, and most importantly for the purposes of the present
discussion, the strenuous opposition conducted by the RAB,
the
adjudicative functionary, on behalf of one of the parties to the
appeal before it, the Department of Home Affairs, the successful
party, compromises its independence and adds force to the
applicant's legitimate or reason or reasonable apprehension of
bias."
114.
Though
the parties were at issue whether there was an invitation extended
to the respondents to reply, it seems to me that if
any of the facts
advanced as set out above were in issue, then the respondents would
have replied thereto. Mr Oosthuizen, in
the additional note that
Ihad invited the parties to submit, pointed out that the only
primary facts which the applicant had
advanced were the following:
(a)
that both affidavits appear to have been produced in the office of
Messrs Werksmans;
(b)
that the composition of the affidavits
"appears
to have taken place on the basis of close co-operation"
given
the formatting, the similarities in certain portions of the
affidavits and certain erroneous references to the record; and
(c)
that the chairperson's affidavit
"in
effect joins forces with the third respondent in the tatter's
purported application for a demolition order".
(d)
The conclusion suggested is that
"such
a level of cooperation between the chairperson of an appeal
tribunal and a party to the appeal is most unusual'.
115.
It seems to me that I can accept the above as facts. Had they been
incorrect, no doubt these respondents would have responded
thereto
and answered them.
26
Given the seriousness of the conclusions the applicant sought to
draw from these facts, if they were untrue, or ifthere was an
adequate explanation for them, leave could have been sought - and
probably would have been granted - to answer these allegations.
27
The respondents did not seek to do so.
116. It
was argued that what the applicant does not show is the link between
this unfortunate conduct and the decision made by
the Review Board.
117. The
starting point is to be found in
R
v Sussex Justice, ex party McCarthy
1924 1 KB 256
, where a clerk to justices went into a room with
justices when they considered judgment. The judgment was set aside
on this account.
In the course of his judgment Lord Hewart CJ said
at p 234
"There
is no doubt, as has been said in a long line of cases, that it is
not merely of some importance, but of fundamental
importance, that
justice should both be done and be manifestly seen to be done. The
question is not whether in this case this
gentleman, went with the
justices, made any observation or offered any criticism which he
could not properly make or offer; the
question is whether he was so
related to the case by reason of the civil action as to be unfit to
act for the justices in the
criminal proceedings. The answer to that
question depends not on what actually was done, but on what might
appear to be done.
The rule is that nothing is to be done which
creates even a suspicion that there has been an improper
interference with the courts
of justice."
118. To
the same effect was, in our jurisdiction,
S
v Moodie
1961 (4) SA 752
(A).
119. In
Anderton
v. Auckland City Council
1978 1 NZLR 657.
At p. 686 Mahon J. said:
"Looking
then at what I have called 'presumptive bias,' in my opinion the
test of real likelihood and reasonable suspicion
are distinct, and
the invalidation of proceedings on one ground, or the other, or
both, will depend upon the evidence. Discovery
of documents and the
production of the record of the tribunal may disclose such an
association between one party and the tribunal
that a real
likelihood of bias is established, no matter how fairly the
proceedings may seem to have been conducted. In such
a case it will
be the opinion of the Court, and not the objectively assumed
response of an observer of those proceedings, which
will be the
decisive factor. But if there is no evidence of such a connection
between one party and the tribunal as to justify
real likelihood of
bias the manner of conducting the proceedings may in itself create a
reasonable suspicion of bias, founded
upon nothing but the outward
aspect of the determination under review."
Again
at p. 688 he said:
"A
party may prove 'reasonable suspicion of bias' by relying solely
upon the manner in which proceedings were conducted.
That is, he may
have no evidence at all of relevant facts or circumstances not
referred to or disclosed in the proceedings. The
law is now clear,
certainly in Australia and in Canada and I think also in New
Zealand, that the presence of a 'reasonable suspicion'
of bias found
by a court to be attributable to an observer unacquainted with the
hidden facts, will be sufficient to disqualify
the tribunal or to
invalidate his decision. Such was the basis of each decision, as I
have said already,
in
re Watson ex p Armstrong
[1976] HCA 39
;
(1976) 50 ALJR 778
and in
Police
v Pereira
1977 1 NZLR 547.
"
120. I
am mindful of the fact that
Anderton
and the cased cited by Mahon J involved the bias predated the
decisions impugned.
121. In
In
re Pinochet
[1999] UKHL 1
;
[1999] 1 All ER 577
(HL) the House of Lords had on appeal made an
order for the restoration of a warrant for the extradition of
Senator Pinochet.
Prior to the appeal Amnesty International had been
given leave to intervene in the hearing before the House of Lords.
Pinochet
and his legal team subsequently established that Lord
Hoffmann had an interest in Amnesty International. Lord
Browne-Wilkinson
held as follows with regard to
"apparent
bias"
"The
fundamental principle is that a man may not be a judge in his own
cause. This principle, as developed by the courts,
has two very
similar but not identical implications. First it may be applied
literally: if a judge is in fact a party to the
litigation or has a
financial or proprietary interest in its outcome then he is indeed
sitting as a judge in his own cause. In
that case, the mere fact
that he is a party to the action or has a financial or proprietary
interest in its outcome is sufficient
to cause his automatic
disqualification. The second application of the principle is where a
judge is not a party to the suit
and does not have a financial
interest in its outcome, but in some other way his conduct or
behaviour may give rise to a suspicion
that he is not impartial, for
example because of his friendship with a party. This second type of
case is not strictly speaking
an application of the principle that a
man must not be judge in his own cause, since the judge will not
normally be himself benefiting,
but providing a benefit for another
by failing to be impartial."
122.
Lord Browne-Wilkinson, in
Pinochet
,
cited
Webb
v The Queen
[1994] HCA 30
;
(1994) 181 CLR 41
with approval. Deane J there held as follows at
74:
"The
area covered by the doctrine of disqualification by reason of the
appearance of bias encompasses at least four distinct,
though
sometimes overlapping, main categories of case. The first is
disqualification by interest, that is to say, cases where
some
direct or indirect interest in the proceedings,
whether
pecuniary or otherwise,
gives rise to a reasonable apprehension of prejudice, partiality or
prejudgment. ... The third category is disqualification by
association. It will often overlap the first and consists of cases
where the apprehension of prejudgment or other bias results
from
some direct or indirect relationship, experience or contact with a
person or persons interested in, or otherwise involved
in, the
proceedings."
(emphasis
by Deane J).
123. There
is no doubt in my mind that had the chairman collaborated with the
third respondent in the manner set out above prior
to the decision
made by Review Board, that such decision would be set aside on the
basis that the chairman was disqualified to
hear the matter.
124. I
also have little doubt that if some association was established
between the third applicant, its directors and the chairman
of the
Review Board, then the same result would follow.
125. The
question is whether the above subsequent conduct establishes or
points to such association. As Lord Browne-Wilkinson
had observed in
Pinochet
"There
is no room for fine distinctions if Lord Hewart's famous dictum is
to be observed: it is
"of
fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to be done."
(see
Rex
V.
Sussex
Justices, Ex parte McCarthy
119241 K.B. 256, 259)"
126.
In
President
of the Republic of South Africa and Others v South African Rugby
Union Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) a decision on an application by a party to
proceedings before the court for the recusal of certain of its
members, including
Chaskalson P, on the basis of a
'reasonable
apprehension'
that
they would be biased
against the applicant, the Constitutional
Court held in part at page 177, paragraph [48] that:
"[T]he
correct approach to this application for the recusal of members of
this Court is objective and the onus of establishing
it rests upon
the applicant. The question is whether a reasonable, objective and
informed person would on the correct facts reasonably
apprehend that
the Judge has not or will not bring an impartial mind to bear on the
adjudication of the case, that is a mind
open to persuasion by the
evidence and the submissions of the counsel. The reasonableness of
the apprehension must be assessed
in the light of the oath of office
taken by the Judges to administer justice without fear or favour;
and their ability to carry
out that oath by reason of their training
and experience. It must be assumed that they can disabuse their
minds of any irrelevant
personal beliefs or predispositions. They
must take into account the fact that they have a duty to sit in any
case in which they
are not obliged to recuse themselves. At the same
time, it must never be forgotten that an impartial Judge is a
fundamental prerequisite
for a fair trial and a judicial officer
should not hesitate to recuse herself or himself if there are
reasonable grounds on the
part of a litigant for apprehending that
the judicial officer, for whatever reasons, was not or will not be
impartial."
127.
The test in our law has more recently been summarised by Mpati AJ,
in
Islamic
Unity Convention v Minister of Telecommunications and Others
[2007] ZACC 26
;
2008 (3) SA 383
(CC)
"[40]
In considering the constitutional challenge, the High Court
28
reasoned that the test for bias as applied in recusal applications
was equally appropriate in the present matter. The test was
in
BTR
Industries South Africa (Ptv) Ltd and Others v Metal and Allied
Workers' Union and Another
29
as follows:
'(T)he
existence of a reasonable suspicion of bias satisfies the test; and.
. . an apprehension of a real likelihood that the
decision maker
will be biased is not a pre-requisite for
disqualifying
bias.
30
The
question,
as
posed
in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others (SARFU).
is
'whether
a reasonable, objective and informed person would on the correct
facts reasonably apprehend that the Judge has not or
will not bring
an impartial mind to bear on the adjudication of the case, that is a
mind open to persuasion by the evidence and
the submissions of
counsel. '
31
The
test is objective and the onus of establishing it rests on the
applicant."
128. The
question is not whether there was indeed bias, the question is
whether the applicant has a reasonable suspicion of bias.
129. Both
the directors of the third respondent, as well as the chairman of
the Review Board are, or were, legal practitioners.
It may be said
that they ought to have been even more attuned to the perception
that would be created by collaboration in opposing
the application.
Be that as it may, I am of the view that a lay person in the
position of the applicant may very well have a
reasonable
apprehension of bias with regard to the decision handed down by the
Review Board in view of the subsequent conduct
of the respondents in
opposing the review application. It seems me that a Review Board,
being taken on review, should remain
particularly astute to being
objective and impartial.
130. In
my respectful view, the applicant has made out a case of bias in
respect of the decision made by the Review Board.
131. She
is accordingly entitled on that basis alone, to have the decision
set aside.
132. Given
this finding and where the appeal is to be remitted to the Review
Board it should be a Review Board differently constituted,
that is,
excluding the first respondent. I am of the view that any reasonable
litigant in the position of the applicant would
have a legitimate
reason for concern where it appears that there is co-operation
between the decision-maker and a party who had
appeared before the
decisionmaker in the review process.
133. In
the premises I grant an order
Reviewing
and setting aside the decision of the Review Board constituted in
terms of section 9(1) of the National Building Regulations
and
Building Standards Act, 103 of 1977 (the Act) dismissing the
applicant's appeal in terms of section 9 of the Act against
the
second respondent's refusal to approve the applicant's application
to build submitted in terms of section 4(1) of the Act
in respect
of the dwelling house situate at No 3 Tillamook Road, Plettenberg
Bay.
Directing
the first respondent to pay costs of this application.
S.
OLIVER, AJ
1
"4.
Approval
local authorities of applications in respect of erection buildings.
-
(1)
No
person
shall without the prior approval in writing of the local authority
in question, erect any building in respect of which
plans and
specifications are to be drawn and submitted in terms of this Act."
2
"7. Approval by local authorities in respect of erection of
buildings. -
(1)
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 n respect thereof."
3
The
letter read as follows
"Further
to our previous letter regarding the above dated 13 July 2005, it is
hereby continued that the decision to refuse
approval of the
building plans was based on the following considerations:
(i)
The
proposed "New Whale Suite" and "New Dolphin Suite"
as reflected on the building plans submitted were purposefully
designed as part of a "Bed and Breakfast" establishment,
and not as part of "a house designed for use as a dwelling
for
a single family". These additions are therefore in conflict
with Title Condition D4 (b).
(ii)
(ii)
The new additions encroach over the 1,57m building' line stipulated
in Title Condition D(4) (d).
(iii)
The new additions in our opinion represent a structure with a flat
roof, and is therefore in conflict with Title Condition
E2.
(iv)
The
elevational treatment of the new additions does not comply with
Title Condition E4.
(v)
The
new additions encroach over the 1.5m building line as stipulated in
the Zoning Scheme Regulations."
4
"9.
Appeal against decision of local authority.
-
(1) Any person who -
(a)
feels
aggrieved by the refusal of a local authority to grant approval
referred to in section 7 in respect of the erection of a
building;
(b)
feels
aggrieved by any notice or prohibition referred to in section 10; or
(c)
disputes
the interpretation or application by a local authority of any
national building regulation or any other building regulation
or
by-law,
may,
within the period, in the manner and upon payment of the fees
prescribed by regulation, appeal to a review board."
5
Tickly
and Ohters v Johannes NO and Others
1963 (2) SA 588
(T);
Sea
Front for AH and Another v The MEC: Environmental and Development
Planning, Western Cape Provincial Government and Others
WCHG case number 15974/07 handed down on 26 March 2010 at para
[21]-[24]
6
Connan
v Sekretaris van Binnelandse Inkomste
1973 (4) SA 197
(NC) at 202D; JR de Ville
Judicial
Review of Administrative Action in South Africa
,
at 324
7
At
par [105]
8
Section
6(2)(h) of PAJA provides as follows
"A
Court or tribunal has the power to judicially review an
administrative action if
(h)
the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which
the
administrative actions was purportedly taken, is so unreasonable
that no reasonable person could have so exercised the power
or
performed the function.;"
9
At
para [44]
10
Hoexter,
Administrative
Law in South Africa
Juta, Cape Town 2007, at 318
11
At
paragraph [45]
12
Carephone
fPtv) Ltd v Marcus NO and Others
1999 (3) SA 304
(LAC)
13
see
Hira
& Another v Booysen & Another
1992 (4) SA69 (A), Hoexter,
Administrative
Law
,
at 91; Section 6(2) of PAJA
13
14
Footnote
5 above
15
The
Campsbay Ratepayers' and Residents Assocation v Harrison
(560/08)
[2010] ZASCA 3
917 February 2010
16
The
relevant title deed conditions in the applicant's title deed are as
follows:
"D.
SUBJECT FURTHER to the following conditions contained in the said
Deed of Transfer No. 6463 dated 1(f
h
May 1963 imposed by the Administrator when approving the
establishment of Plettenberg Bay Township Extension No. 5 under the
provisions of Ordinance No. 33 of 1934.
No.
1...
No.
2...
No.
3...
No
4.
This
erf shall be subject to the following further conditions,
provided
especially that where, in the opinion of the Administrator after
consultation with the Townships Board and the Local
Authority, it is
expedient that the restriction in any such conditions should at any
time be suspended or relaxed, he may authorise
the necessary
suspension or relaxation subject to compliance with such conditions
as he may impose:-
(a)
It
shall not be subdivided;
(b)
It
shall be used only for the purpose of erecting thereon one dwelling
together with such outbuildings as are ordinarily required
to be
used therewith;
(c)
Not
more than half the area thereof shall be built upon;
(d)
No
building or structure or any portion thereof except boundary walls
and fences, shall be erected nearer than 4,72 metres to
the street
line which forms the boundary of this erf nor within 3,15 metres of
the rear or 1,57 metres of the lateral boundary
common to any
adjoining erf, provided that with the consent of the Local
Authority, an outbuilding not exceeding 3,05 metres
in height,
measured from the floor to the wall space and no portion of which
will be used for human habitation, may be erected
within the above
prescribed rear space. On consolidation of any two or more erven
this condition shall apply to the consolidated
area as one erf;
(e)
In the event of the provisions of a Town Planning Scheme being
made applicable to this erf, which provisions are more
restrictive
than the provisions contained in the above, then the provisions of
such a scheme shall apply.
E.
SUBJECT FURTHER to the following conditions contained in Deed of
Transfer No. 6463 dated 10
th
May 1963 imposed by Plettenberg Bay Estates Limited for the benefit
of itself, its successors in title and assigns as owners
of the
remainder of Plettenberg Bay Extension No. 5 Township, held by
Certificate of Amended Title on Consolidation No. 9101/1956
dated
28
h
June 1956 reading as follows:-
1.
…...
2.
The erection of flat, lean-to or monopitch roofs or of flat or
corrugated iron or asbestos fencing is prohibited. No wood
and/or
iron buildings of any description shall be erected on the erf. The
main buildings which shall be a complete building and
not ono partly
erected and intended for completion at a later date, shall be
erected simultaneously with or before the erection
of the
outbuildings.
3.
…..
4.
The elevational treatment of all buildings shall conform to good
architecture so as not to interfere with the amenities of
the
neighbourhood."
(emphasis
added)
17
See also
Kruqer
v Joles Eiendomme (Ptv) Ltd and Another
2009 (3) SA 5
(SCA) at par [8] per Cloete JA
18
The
condition there under consideration read:
"That
the erf be used for residential purposes only. No shop or hotel,
commercial or industrial business of any kind shall
be permitted
thereon."
19
B4(b)
"it
[this erf] shall be used only for the purpose of erecting thereon
one dwelling together with such outbuildings as are
ordinarily
required to be used therewith;"
20
At paragraph [8]
21
"No person shall use any building or cause or permit any
building to be used for a purpose other than the purpose shown
on
the approved plans of such building, or for a purpose which causes a
change in the class of occupancy as contemplated in these
regulations, whether such plans were approved in terms of the Act or
in terms of any law in force at any time before the date
of
commencement of the Act, unless such building is suitable, having
regard to the requirements of these regulations, for such
first-mentioned purpose or for such changed class of occupancy. "
22
"7.
Approval
by local authorities in respect of erection of buildings -
(1)
If a local authority, having considered a recommendation referred to
in section 6(1) (a) -
…...
(b)
(i) is not so satisfied;
…..
Such
local authority shall refuse to grant its approval in respect
thereof and give written reasons for such refusal:"
23
Item
H5 added by GN R547 of 30 May 2008
24
1912
AD 431
25
The Refugee Appeal Board, with whom appeals against decisions of the
Refugee Status Determination Officer may be lodged in terms
of
section 26
of the
Refugees Act 130 of 1998
.
26
Tantoush
v Refugee Appeal Board and Others
2008(1) SA 232 (T) at par [51];
Siqaba
v Minister of Defendence and Police and Another
1980 (3) SA 535
(Tk) at 550F.
27
Thint (Ptv) Ltd v National Director of Public Prosecutions and
Others; Zuma and Another v National Director of Public Prosecutions
and Others
2009 (1) SA 1
(CC) at paragraph [324] per Ngcobo J, as he then was;
28
Islamic Unity Convention v Minister of Telecommunications and Others
case No 06/3431, 26
29
[1992] ZASCA 85
;
1992
(3) SA 673
(A)
30
Id
at693I-J
31
Sarfu
at para [48]