MEC for Environmental Affairs and Development Planning v Clairison’s CC (408/2012) [2013] ZASCA 82; [2013] 3 All SA 491 (SCA); 2013 (6) SA 235 (SCA) (31 May 2013)

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MEC for Environmental Affairs and Development Planning v Clairison’s CC (408/2012) [2013] ZASCA 82; [2013] 3 All SA 491 (SCA); 2013 (6) SA 235 (SCA) (31 May 2013)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 408/2012
Reportable
In the matter between:
MEC FOR ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT
PLANNING
.........................................................
APPELLANT
and
CLAIRISON’S
CC
................................................................................
RESPONDENT
Neutral
citation
:
MEC
for Environmental Affairs and Development Planning v Clairison’s
CC
(408/2012)
[2013] ZASCA 82
(31
May 2013)
Coram
: Nugent,
Ponnan and Tshiqi JJA and Willis and Swain AJJA
Heard
: 16 May 2013
Delivered:
31 May
2013
Summary
:
Administrative law – review – decision-maker required
to take relevant considerations into account - weight to be attached

to relevant consideration within discretion of decision-maker –
perception of predisposition to a decision not in itself

objectionable.
ORDER
On appeal from:
Western Cape High Court, Cape Town (Cloete AJ sitting as court of
first instance):
The appeal is upheld with
costs. The order of the court a quo is set aside and replaced with an
order dismissing the application
with costs. In both cases the costs
are to include the costs of two counsel.
­
JUDGMENT
_______________________________________________________________
NUGENT JA AND SWAIN
Aja
(
ponnan and tshiqi jja and willis aja
concurring):
[1] The respondent,
Clairison’s CC (Clairisons) a property developer, wishes to
establish a retirement village consisting
of 173 units, on a property
described as portion 53 (a portion of portion 3) of the farm Ganse
Vallei No 444 Plettenberg Bay (the
property) situated within the
jurisdictional area of the Bitou Municipality (the municipality) 4 km
to the north east of the Plettenberg
Bay central business district.
[2] In order to do so the
respondent was obliged to apply to the appellant, the MEC for
Environmental Affairs and Development Planning
(the MEC) for:
2.1. the amendment of the
designation of the property in the Knysna-Wilderness-Plettenberg Bay
regional structure plan (the structure
plan) from ‘Agriculture
and Forestry’ to ‘Township Development’ in terms of
s 4(7) of the Land Use Planning
Ordinance 15 of 1985 (Cape) (
Lupo
);
and for
2.2. environmental
authorisation in terms of ss 21, 22 and 26 of the Environmental
Conservation Act 73 of 1989 (ECA), because the
proposed development
entailed a change of land use from agricultural use to another use.
[3] The application in
terms of
Lupo
for the amendment of the designation of the
property was successful before the predecessor of the present
incumbent of the office
of MEC. The application was granted despite a
recommendation by the head of the department that it be refused.
[4] The recommendation by
the head of the department was in accordance with the policy of the
department that new, large residential
developments not be allowed to
the north of Plettenberg Bay. The present MEC maintains that it is a
policy based on legitimate
planning and environmental considerations,
which in part is derived from the Western Cape Provincial Spatial
Development Framework
(WCPSDF). The aims of the WCPSDF, it is stated,
include the restructuring of urban settlements to address apartheid
spatial patterns
and urban functional inefficiencies, and the
protection of biodiversity and agricultural resources. The means by
which the WCPSDF
is said to achieve these aims includes restricting
the outward growth of urban settlements until specified urban
densities are
achieved.
[5] Acting in accordance
with this policy, the director of the department refused the
application by Clairisons for environmental
authorisation in terms of
ss 21, 22 and 26 of the ECA. Clairisons thereupon appealed to the MEC
in terms of s 35(1) of the ECA
against the director’s decision.
The appeal was dismissed by the MEC. Clairisons then applied to the
Western Cape High Court
to review and set aside the decision by the
MEC. The application succeeded before Cloete AJ and the MEC appeals
with the leave
of that court.
[6] The application
succeeded in the court below on two broad grounds. First, it was held
that the MEC had taken into account irrelevant
considerations, and
left out of account relevant considerations, when making his
decision, which is a ground for review under s
6(2)(
e
)(iii) of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA). And
secondly, the court below found that Clairisons had
reasonable
grounds for apprehending that the MEC was biased, another ground for
review, under s 6(2)(
a
)(iii). We deal with each ground in
turn.
The alleged failure to
take account of relevant considerations.
[7] Leaving aside one
matter that we come to presently, Clairisons alleges that the MEC
ought to have taken account of, but failed
to do so, three factors
that are all related.
[8] First, it was alleged
that he failed to take account of the fact that adjacent properties
were already urban in character, which
was in conformity with the
development that was proposed.
[9] Secondly, it was
alleged that he failed to take into account that the municipality had
determined the urban edge for urban development,
and that the
proposal fell within that urban edge and was thus permissible.
[10] Thirdly, it alleged
that the MEC failed to take account of the fact that his predecessor
had allowed the proposed development
when he approved the amendment
to the structure plan.
[11] The three factors we
have referred to are inter-related in that, taken together, and in
summary, they were said by Clairisons
to demonstrate that urban
development had already occurred, and further development had been
approved, in the area in which the
proposed development was to be
situated, and that the MEC failed to take account of that when
refusing the application.
[12] To expand upon those
factors, there is some factual controversy as to the nature of the
development that existed on adjacent
properties, but we have accepted
for present purposes that it was essentially urban in nature. As to
the second factor, an urban
edge is a planning tool that serves as a
guide in restricting the outward growth of urban settlements. There
is a dispute as to
whether the municipality had validly delineated
its urban edge, and where the urban edge delineated by the
municipality was situated,
but that is of no moment for present
purposes. It is sufficient to say that, when making his decision, the
MEC regarded the urban
edge to be the boundary to which urban
development had spread, and not the edge that had allegedly been
delineated by the municipality.
On the third, the MEC’s
predecessor had indeed approved an amendment to the structure plan
that would allow for the proposed
development, and other like
amendments, but the MEC said that he disagreed with those approvals,
and declined to follow them as
a precedent.
[13] The allegation by
Clairisons that the MEC failed to take account of those factors found
favour with the court below. The views
the learned judge expressed in
relation to each of them overlap to an extent, which is to be
expected because they are related.
[14] As to the first she
said that:
‘
[t]he
development trend in the area has for some years been away from
purely agricultural and recreational use. The general principle
of
planning in the area is thus to accommodate expansion in that area.
The approval of [Clairisons’ application] would have
been
consistent with the pattern of development in recent years and would
not have created a new node . . . . What [the MEC] did
in effect was
to disregard these adjacent approvals on the basis that in his view
they should not have been granted. In so doing
he misdirected himself
by failing to take into account relevant considerations and by
failing to apply his mind to the planning
position in the area as
reflected in the structure plan’.
[15] Dealing with the
second factor she said:
‘
In my view
it is . . . common cause that [Clairisons’] property falls
within the Municipality’s delineated wide urban
edge . . .
irrespective of whether the [MEC] regards that delineation as having
been rationally and lawfully determined . . . he
should have taken
into account that development on properties surrounding that of
[Clairisons] had, over the previous 6 years,
proceeded in accordance
with the wide urban edge as determined by the Municipality.. . . It
was not enough for the [MEC] to simply
ignore it; the factual
position which pertained as a result should also have been considered
and fairly weighed against all other
factors in light of the history
of development in the area’.
[16] With regard to the
third she said that:
‘
[the MEC]
appears to have approached the matter on the basis that
he
would not have granted these approvals – an entirely irrelevant
consideration in the context of the ECA authorisation sought
by the
applicant. The [MEC] was faced with the consequences of a clear set
of structure plan amendments in the area which he ignored.’
And
‘
[T]he
[MEC’s] views as to whether the applications should or should
not have been granted by his predecessors are irrelevant.
. . [The
MEC] was obliged to consider the factual consequences [of the
amendment to the structure plan] as evidenced by the land
usage
surrounding the applicant’s property. He did not do so because
he had already formed the view that the structure plan
amendments
should not have been granted in the first place and he would for that
reason disregard their factual consequences. In
doing so he failed to
consider a relevant consideration and his decision thus falls to be
reviewed.’
[17] The finding by the
court below that the MEC failed to take account of those factors is
incorrect on each count. On the contrary,
if there is one thing that
is clear from the evidence it is that the MEC pertinently took
account of each of the factors –
indeed, the application was
refused precisely because he took them into account. The true
complaint of Clairisons – endorsed
by the court below –
is instead that he attached no weight to one of the factors, and in
the other cases he weighed them
against granting the application,
whereas Clairisons contends that they ought to have weighed in favour
of granting it, which is
something different.
[18] We think it apparent
from the extracts from her judgment we have recited, and the judgment
read as a whole, that the learned
judge blurred the distinction
between an appeal and a review. It bears repeating that a review is
not concerned with the correctness
of a decision made by a
functionary, but with whether he performed the function with which he
was entrusted. When the law entrusts
a functionary with a discretion
it means just that: the law gives recognition to the evaluation made
by the functionary to whom
the discretion is entrusted, and it is not
open to a court to second-guess his evaluation. The role of a court
is no more than
to ensure that the decision-maker has performed the
function with which he was entrusted. Clearly the court below,
echoing what
was said by Clairisons, was of the view that the factors
we have referred to ought to have counted in favour of the
application,
whereas the MEC weighed them against it, but that is to
question the correctness of the MEC’s decision, and not whether
he
performed the function with which he was entrusted.
[19] The power of review
is sourced today in the Constitution, and not the common law, but
sound principles are not detracted from
because they were expressed
in an earlier era. As was said in
Pharmaceutical
Manufacturers of South Africa: In re Ex parte President of the
Republic of South Africa
1
‘
That
is not to say that the principles of common law have ceased to be
material to the development of public law. These well-established

principles will continue to inform the content of administrative law
and other aspects of public law, and will contribute to their
future
development’.
[20] It has always been
the law, and we see no reason to think that PAJA has altered the
position that the weight or lack of it
to be attached to the various
considerations that go to making up a decision, is that of the
decision-maker. As it was stated by
Baxter:
2
‘
The court
will merely require the decision-maker to take the relevant
considerations
into
account
;
it will not prescribe the
weight
that must be accorded to each consideration, for to do so could
constitute a usurpation of the decision-maker’s discretion.’
[21] That was expressed
by this court as follows in
Durban Rent Board and Another v
Edgemount Investments Ltd,
3
in relation to the discretion of a rent board to determine a
reasonable rent:
‘
In
determining what is a reasonable rent it is entitled and ought to
take into consideration all matters which a reasonable man
would take
into consideration in order to arrive at a fair and just decision in
all the circumstances of the case …. How
much weight a rent
board will attach to particular factors or how far it will allow any
particular factor to affect its eventual
determination of a
reasonable rent is a matter for it to decide in the exercise of the
discretion entrusted to it and, so long
as it acts
bona
fide,
a
Court of law cannot interfere’.
[22] What was said in
Durban
Rent Board
is
consistent with present constitutional principle and we find no need
to re-formulate what was said pertinently on the issue that
arises in
this case. The law remains, as we see it, that when a functionary is
entrusted with a discretion,
the
weight to be attached to particular factors, or how far a particular
factor affects the eventual determination of the issue,
is a matter
for the functionary to decide, and as he acts in good faith (and
reasonably and rationally) a court of law cannot interfere.
That
seems to us to be but one manifestation of the broader principles
explained – in a context that does not arise in this
case
4
–
in
Bel
Porto School Governing Body v Premier, Western Cape
5
and
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs.
6
[23] It is clear from the
reasons given by the MEC that the factors on which he was taken to
task were pertinently considered: they
were the very justification he
advanced for his decision. His and his department’s view, in
broad terms, was that the proposed
development would contribute to
what is colloquially called ‘urban sprawl’ – to
which he and his department were
opposed – that had already
manifested itself in the surrounding area, and that the approvals of
his predecessor, and the
urban edge proposed by the municipality,
threatened to compound. The case advanced by Clairisons was that the
existing development,
and the approvals of the former MEC, had set a
precedent for urban development that the MEC ought to have adopted.
That is no more
than a difference of opinion. There has been no
suggestion that the avoidance of urban sprawl was not a legitimate
environmental
concern upon which the MEC was entitled to found his
decision on. Whichever opinion might be thought to be the correct
one, the
law entrusts the decision to the MEC. Once having correctly
identified the question for decision and applied his mind to deciding

it – both of which he clearly did – then it is the view
of the MEC that is required by law to prevail.
[24] There is one further
matter under this heading that we need to deal with. The MEC shared
the opinion of his department that
the proposed development was
detrimental to the biodiversity of the area, and to an environmental
corridor between two rivers.
Expert opinion advanced by Clairisons
challenged that opinion. On that controversy the court below said the
following:
‘
Much of the
information relied upon by the [MEC] seems to amount to academic
statements about, and definitions of, the nature of
critical
biodiversity areas and corridors and very little is provided in the
way of factual evidence under the guise of engaging
with the critique
provided by [Clairisons] specialist. As far as the functionality of
the corridor between the rivers is concerned,
it seems to me that
this type of dispute cries out for independent specialist input
(which it was open to the [MEC] to call for)..
. . It is difficult to
understand how the [MEC] could have made an informed decision merely
by weighing up [Clairisons] input against
the department’s
input and without at least having given serious consideration to
further specialist advice. The inference
is that he failed to place
due weight on the necessity of making a properly informed decision
about the impact of the proposed
development on the natural
environment and as a result the grounds relied upon by him were
insubstantial. This also constitutes
a ground for review.’
[25] Once again, it is
clear from the evidence that the MEC was pertinently aware of the
competing opinions of his department and
that of the specialist, and
preferred to adopt the view of his department. We think it is also
safe to assume that he was well
aware that he was entitled to take
independent advice if he considered it prudent to do so. The extract
from the judgment we have
referred to reflects only that the court
below was of the view that he ought to have sought such independent
advice, but that was
not what the learned judge was called upon to
decide. Clearly the MEC took account of the opinion of the
specialist. What occurred
is only that he gave greater weight to the
opinion of his department, which it was within his discretion to do.
[26] In our view there
were no grounds for finding that the MEC failed to take account of
relevant considerations when making his
decision and the court below
ought not to have set it aside on those grounds.
The alleged perception
of bias.
[27] It was submitted
that the MEC was perceived to be biased for various reasons. The
first was that the department’s director
was the same official
responsible for the preparation and submission of the report which
recommended that Clairisons proposed structure
plan amendment be
refused. Because that recommendation was not followed by the previous
MEC who granted the approval, the same
director, so the argument
went, when considering Clairisons application for environmental
authorisation, could not have approached
it objectively and would
have been influenced by his previous recommendation.
[28] Secondly, it was
submitted that the appeal process, as conducted by the MEC, did not
result in an independent review of the
director’s decision,
because of the reliance by the MEC on the recommendations of
officials in the department on the validity
of the grounds of appeal.
And thirdly, the MEC was perceived to be biased because he held the
view that the structural plan should
not have been granted by his
predecessor.
[29] In our view the
complaint that the MEC was reasonably perceived to be biased is
misconceived. Clearly an administrative official,
when making a
decision, must not be partial towards one party or another, but there
is no suggestion that that occurred in this
case, nor even that there
was a perception that that had occurred. The complaint was only that
the MEC was perceived to be partial
to refusing the application,
which is not the same thing.
[30] Government
functionaries are often called upon to make decisions in relation to
matters that are the subject of pre-determined
policies. As pointed
out by Baxter:
7
‘
[It] is
inevitable that administrative officials would uphold the general
policies of their department; in this broad sense it follows
that
they must be prejudiced against any individual who gets in their way.
But this “departmental bias”, as it has
been labelled, is
unavoidable and even desirable for good administration. It does not
necessarily prevent the official concerned
from being fair and
objective in deciding particular cases.’
[31] Nor can there be any
objection to the political head of a department adopting
recommendations made by the departmental officials,
no matter that
their recommendations are emphatic. It is precisely to formulate and
ensure adherence to policy that departmental
officials are there. It
must be borne in mind that an appeal in the present context is not a
quasi-judicial adjudication. It is
a reconsideration by the political
head of a department of a decision made by his officials. Baxter
observes that:
8
‘
Since the
primary function of a minister is a political one, this form of
appeal is obviously only appropriate where it is considered
that
policy and administrative considerations are paramount and that
disputes involving such considerations require his personal

settlement. The minister can hardly be expected to adopt a detached
posture, acting as an independent arbitrator. If this is expected
of
him then he should not be bothered with such appeals since a lower
administrative tribunal could do the job instead, leaving
him free to
devote his time to more important matters of policy.’
[32] If the MEC was
predisposed to refusing the application because it was contrary to
the policy of his department that is not
objectionable ‘bias’.
A government functionary is perfectly entitled to refuse an
application because it conflicts
with pre-determined policy. No doubt
when exercising a discretion on a matter that is governed by policy
the functionary must bring
an open mind to bear on the matter, but as
this court said in
Kemp NO v Van Wyk
,
9
that is not the same as a mind that is untrammelled by existing
principles or policy. It said further that the functionary concerned
‘was entitled to evaluate the application in the light
of the directorate’s existing policy and, provided that he was

independently satisfied that the policy was appropriate to the
particular case, and did not consider it to be a rule to which he
was
bound, I do not think it can be said that he failed to exercise his
discretion’.
10
[33] There was no basis
for finding that the MEC, or the officials who guided him, exhibited
bias. In our view the decision ought
not to have been set aside on
either ground.
[34] Accordingly, the
appeal is upheld with costs, including the costs of two counsel. The
order of the court a quo is set aside
and replaced with an order
dismissing the application with costs. In both cases the costs are to
include the costs of two counsel.
R W NUGENT
JUDGE OF APPEAL
K G B SWAIN
ACTING JUDGE OF APPEAL
Appearances:
FOR APPELLANT: A M
BREITENBACH sc (WITH HIM F ESSOP)
THE
STATE ATTORNEY, CAPE TOWN
THE
STATE ATTORNEY, BLOEMFONTEIN
FOR respondeNT: S P
ROSENBERG SC (WITH HIM P S VAN ZYL)
TRUTER ATTORNEYS,
WITTEDRIF
SYMINGTON & DE KOK,
BLOEMFONTEIN
1
Pharmaceutical
Manufacturers of South Africa: In re Ex parte President of the
Republic of South Africa
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 45.
2
Lawrence
Baxter
Administrative Law
1ed (1984) at 505.
3
Durban
Rent Board and Another v Edgemount Investments
Ltd
1946 AD 962
at 974, adopted in
Johannesburg City Council v The Administrator,
Transvaal and Mayofis
1971 (1) SA 87
(AD).
4
Bel
Porto was concerned with the rationality, and Bato Star with the
reasonableness, of executive decisions.
5
[2002] ZACC 2
;
2002
(3) SA 265
(CC) para 45.
6
2004
(4) 490 (CC) esp paras 44 and 45.
7
Baxter,
supra, at 567.
8
Baxter,
supra, at 264.
9
2005
(6) SA 519
(SCA) para 1.
10
Para
10.