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[2012] ZASCA 90
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City of Cape Town v Hendricks and Another (63/2011) [2012] ZASCA 90; 2012 (6) SA 492 (SCA) (31 May 2012)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 633/2011
Reportable
In the matter between
CITY OF CAPE TOWN
….................................................................................
Appellant
and
FAIZEL HENDRICKS
…......................................................................
First
Respondent
MOGAMAT SMITH
….....................................................................
Second
Respondent
Neutral citation:
City
of Cape Town v Hendricks
(633/11)
[2011] ZASCA 90
(31
May 2012)
Coram: NUGENT, VAN
HEERDEN, SNYDERS, MHLANTLA JJA and SOUTHWOOD AJA
Heard: 10 May 2012
Delivered: 31 May 2012
Summary:
Warning/compliance notice of contravention of By-Law and demand
that recipient comply to avoid legal action not ‘administrative
action’ for purposes of
Promotion of Administrative Justice Act
3 of 2000
.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SOUTHWOOD AJA (NUGENT,
VAN HEERDEN, SNYDERS and MHLATLA JJA concurring)
[1] On 10 May 2012 when
this appeal was called only the appellant was present. The court made
an order that the appeal was upheld
and that the order of the court a
quo was set aside and replaced with an order that ‘the
application is dismissed’.
1
The court indicated that
reasons would follow and these are the reasons.
[2] The appellant, the
City of Cape Town (the City), appealed against the order of the court
a quo (Mantame AJ) –
(1) Reviewing and setting
aside the City’s decision of April 2010 to compel the
respondents to remove and rebuild their business
structures daily on
their trading sites;
(2) Reviewing and setting
aside the City’s notices served on the respondents on 23 April
2010 to remove their business structures
from their trading sites;
(3) Declaring that the
respondents are entitled to remain in their existing structures until
the City has afforded the respondents
sufficient opportunity to make
representations as to why their trading pattern cannot be altered.
The issues before the
court a quo were whether the City took the first decision, whether
the City’s decision to issue the
notices on 23 April 2010 was
administrative action for the purposes of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA),
and, if so, whether the
City was entitled to depart from the provisions of s 3(2) of PAJA.
The court a quo granted leave to appeal.
[3] The first and second
respondents are informal traders who conduct their businesses from
large, sturdy, temporary structures
erected on pavements at the
corners of, respectively, Vanguard Drive and Highlands Drive and
Vanguard Drive and Morganster Street,
in Mitchells Plain. A portion
of each structure (and each business) encroaches onto a neighbouring
property where the Westgate
Mall is situated. The owner of the
property, Vusani Investments (Pty) Ltd, objects to this encroachment
and has called on the respondents
to remove their structures.
[4] The City is the owner
of the property where the respondents’ structures stand. The
structures were erected there without
the City’s consent or
authorisation and contravene a number of the City’s by-laws.
Despite having conducted their businesses
in the structures for a
number of years the respondents have not sought the City’s
consent or authorisation. On 23 April
2010, Constable Swartbooi, a
member of the City’s Specialised Law Enforcement Unit, issued
and handed to each respondent
a written notice in which each
respondent was informed that the structure placed on the City’s
property at the relevant intersection
had been placed there without
the necessary consent or authorisation of the City; that the
respondent was instructed to immediately
remove the offending
structure from the City’s property and, that in the event of
the respondent failing to comply with the
instruction by 10 May 2010,
a fine could be imposed and the offending structure removed by the
City at the respondent’s expense.
When serving the notices
Constable Swartbooi informed the respondents that the notices did not
prohibit the respondents from trading
on the property and (although
no such decision had been taken by the City) that the respondents
could erect temporary structures
at the beginning of the day but that
they would have to dismantle them at the end of the day. It is clear
that the respondents
would become entitled to erect such structures
only if the City granted permission.
[5] After receiving the
notices the respondents did not seek the City’s consent or
authorisation. Instead, on 10 May 2010
the respondents urgently
sought and were granted in the high court a rule nisi interdicting
and restraining the City from removing
their structures or
interfering with the respondents’ right to trade from those
structures. On 17 June 2010 this order was
confirmed. Curiously both
orders were sought and granted in the absence of the City which had
no knowledge of the proceedings,
so it is not surprising that, when
the City applied for the rescission of these orders, the respondents
did not oppose its application
and ultimately abandoned their
application for an interdict.
[6] The respondents still
did not seek to regularise their position regarding the structures.
On 16 August 2010 they launched their
review application which the
City opposed. The respondents did not file a replying affidavit or
insist on the production of the
record of the proceedings sought to
be corrected.
[7] In their founding
affidavit the respondents state that their right to trade on the
relevant sites is not being challenged or
assailed by the City. They
say that the apparent purpose of the notices was ‘to require us
to demolish our business structures
at the end of the day and to
re-erect the same at the start of the following day.’ Their
main ground of review was that the
City was obliged to give them
notice and give them an adequate opportunity to make representations
before taking the decision to
act against them (i.e. by delivering
the notices to them). It is not necessary to deal with the other
grounds alleged.
[8] At the hearing before
the court a quo the City pointed out that the City had not taken a
decision that the respondents must
remove and rebuild their
structures daily and argued that the issue and delivery of the
notices did not constitute administrative
action for the purposes of
PAJA and merely constituted notification to the respondents of the
City’s intention to enforce
compliance with the relevant
By-law. The City contended that the issue and service of the notice
was not reviewable as the notices
do not constitute a final decision;
do not adversely affect the rights of any person and have no direct,
external legal affect.
[9] The court a quo found
that the notices were issued and served on the respondents after the
City had taken a decision; that the
notices themselves qualified as a
decision; that the decisions threatened the respondents’ right
to trade and accordingly
that the decisions constituted
administrative action and were reviewable. The court a quo also found
that the City was obliged
to afford the respondents sufficient
opportunity to make representations prior to the issue of the notice
and had not done so.
The court a quo further found that the decisions
violated the respondents’ legitimate expectations (which was
not part of
the respondents’ case).
[10] It is clear that the
City did not take a decision that the respondents are obliged to
remove and rebuild their business structures
daily on their trading
sites and that the notices cannot reasonably be construed to mean
that. The notices simply informed the
respondents that they must
comply with the law (i.e. remove the structures which contravene the
by-laws and the Ordinance) and
informed them of the consequences
should they fail to do so. This was not administrative action as
defined in PAJA.
[11] As contended by the
City, by issuing and delivering the notices to the respondents,
the City’s conduct
did not have direct and immediate consequences for the respondents
2
;
it was a preliminary step by the City (a notification or warning that
it would enforce the by-laws)
3
;
and did not adversely affect the respondents’ rights or have
any direct or external legal effect
4
.
The City was doing no more than it was entitled to do in terms of the
section of the relevant by-law.
5
The provisions of PAJA
therefore did not apply and all the orders were wrongly granted by
the court a quo.
6
_________________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: A. Katz SC
Instructed by:
Fairbridges Attorneys, Cape Town;
McIntyre & Van Der
Post Attorneys, Bloemfontein.
FOR RESPONDENTS: No
appearance
Instructed by: Petersen’s
Attorneys, Cape Town.
1
On
19 and 20 April 2012 the appellant’s attorney served notices
of set down on the respondents personally and on their attorneys
of
record and the respondents did not file heads of argument or appear
at the hearing.
2
Greys
Marine Hout Bay (Pty) Ltd v Minister of Public
works
[2005] ZASCA 43
;
2005 (6) SA
313
(SCA) para 24.
3
Eastern
Metropolitan Substructure v Peter Klein Investments
2001 (4) SA
661
(W) para 15.
4
Greys
Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA
313
(SCA) paras 29 to 30;
Joseph v City of Johannesburg
2010
(4) SA 55
(CC) para 27;
City of Cape Town v Bouley Properties
(Pty) Limited
[2010] ZAWHC 650 (21 December 2010) para 32; J de
Ville
Judicial Review of Administrative Action in South Africa
LexisNexis Butterworths (2003) para 2 1 6 p 54.
5
The
section provides:
“
THE
CITY MAY ACT AND RECOVER COSTS
22. (1) Notwithstanding
any other provision of this by-law, the City may –
(a)
where the
permission of the City is required before a person may perform a
certain action or build or erect anything, and such
permission has
not been obtained; and
(b)
where any
provision of this By-law is contravened under circumstances in which
the contravention may be terminated by the removal
of any structure,
object, material or substance, serve a written notice on the owner
of the premises or the offender, as the
case may be, to terminate
such contravention, or to remove the structure, object, material or
substance, or to take such other
steps as the City may require to
rectify such contravention within the period stated in such notice.
(2) Any person who fails
to comply with a notice in terms of subsection (1) shall be guilty
of an offence, and the City may, without
prejudice to its powers to
take action against the offender, take the necessary steps to
implement such notice at the expense
of the owner of the premises or
the offender, as the case may be.”
6
Joseph
v City of Johannesburg
2010 (4) SA 55
(CC) para 27.