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[2008] ZASCA 10
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Antoy Investments (Pty) Ltd v Rand Water and Others (159/2007) [2008] ZASCA 10 (20 March 2008)
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
NOT REPORTABLE
Case number : 159/2007
In the matter between :
ANTOY INVESTMENTS (PTY) LTD
... APPELLANT
and
RAND WATER ... FIRST
RESPONDENT
EMFULENI
MUNICIPALITY ... SECOND RESPONDENT
SHERIFF, VANDERBIJLPARK
... THIRD RESPONDENT
CORAM : SCOTT, MTHIYANE
et
COMBRINCK JJA
DATE : 25 FEBRUARY 2008
DELIVERED : 20 MARCH 2008
Summary
: Review – when
matter to be remitted in successful review – decision made by
CEO instead of decision making body.
Neutral citation:
Antoy
Investments v Rand Water Board
(159/2007)
[2008] ZASCA10 (20 March 2008)
JUDGMENT
COMBRINCK
JA
/
COMBRINCK JA
:
[1] The development of the Vaal River Barrage Area was
regulated by a Guide Plan issued under the Physical Planning Act 88
of 1967.
In the Plan a so-called 1975 control flood line of the Vaal
River was proclaimed. Development below this line was prohibited save
with the consent of the Rand Water Board. The body is now known as
Rand Water by virtue of the provisions of the
Water Services Act 108
of 1997
. It has been referred to throughout the papers as ‘the
Board’ and for convenience shall in this judgment be referred
to as such. Since 1990 the present appellant has unsuccessfully
through the courts sought to obtain permission to build a dwelling
house below the control flood line. This appeal, strangely enough,
arises from the one decision where the appellant was substantially
successful in that the purported decision of the Board refusing
permission was set aside on review by Ledwaba J in the Pretoria
High
Court. The appeal, with leave of the court
a
quo,
is confined to the order referring the
matter back to the Board for reconsideration and the costs order.
Appellant contends that
the court
a quo
should
not have remitted the matter but have determined the merits itself.
In addition it maintains that it was entitled to its
costs.
[2] The history of the matter is fully set out in the
judgment
a quo
and I
will merely give a short summary as the necessary background to the
issues debated in this court. In 1990 the Board applied
for an order
restraining the appellant from continuing with the construction of a
dwelling below the 1975 fifty year control flood
line. A consent
order was taken affording the Board the relief sought which was an
interdict coupled with a demolition order in
respect of that portion
of the dwelling situated below the flood line. Subsequently the Board
granted permission for the dwelling
to encroach five metres below the
flood line only later to discover that the appellant had proceeded
with the construction 35 metres
below the flood line. The Board then
applied for and was granted an interdict restraining appellant from
building below the agreed
flood line. This order, in 1993, was also
coupled with a demolition order. By 1998 effect had still not been
given to the order
and the Board filed an application to compel the
appellant to carry out the order. The appellant brought a
counter-application
for review of the refusal by the Board in 1996 to
allow relaxation of the prohibition against building below the flood
line. The
matter was heard in August 2000 and the Board’s
application was successful and the appellant’s
counter-application
was dismissed. Undaunted by this
setback appellant launched a further application this time asking
the court
to order the Board to re-determine the control flood line
due to changed circumstances, alternatively to declare the 1975 flood
line to be no longer operative. In addition and pending this
determination, an interdict was sought restraining the Board from
executing on the August 2000 court order. In March 2002 the
application was dismissed with costs. In the course of his judgment
the learned judge remarked that it was always open to the appellant
to apply to the Board in terms of the Guide Plan for relaxation
of
the building restrictions. This precipitated a voluminous application
to the Board for consent as envisaged in para 2.2 of Annexure
C to
the Guide Plan to permit the dwelling to be retained insofar as it
had been constructed below the flood control line. By letter
dated 26
April 2002 the Chief Executive Officer (‘CEO’) advised
the appellant that the Board declined the consent sought.
The
appellant, (then in voluntary liquidation – the liquidation was
set aside in terms of s 354 of the Companies Act 61 of
1973 prior to
the hearing of this appeal and the company substituted as appellant
for the joint liquidators) then launched the
present review
proceedings in which it sought the following order:
‘
1. Reviewing and setting aside the decision of
the first respondent (‘the Board’) or the one or the
other of its officers
taken upon or about 25 April 2002 to refuse
application lodged by Antoy Investments (Pty) Ltd for its consent, as
envisaged in
paragraph 2.2 of Annexure C to the Guide Plan approved
by the then Minister of Internal Affairs in terms of s 6A of the
Physical
Planning Act, 1967 (Act No 88 of 1967) so as in effect to
permit the dwelling erected on Portion 1 Northdene 5891Q
Vanderbijlpark
to be retained insofar as it had been constructed
below the flood control line;
2. Granting the applicant the consent required in terms
of paragraph 2.2 or 2.10 of the said Annexure C, alternatively
directing
the Board to request the Minister of Water Affairs to amend
the Guide Plan in terms of paragraph 5.12 thereof, read with
paragraph
4 of the court order granted in case number 20632/903 . .
..‘
[3] It transpired from the Board’s answering
affidavit that the decision, ostensibly taken by the Board, was in
fact taken
by the CEO without reference to the other members of the
Board. After considering the relevant sections of the
Water Services
Act relating
to the activities, powers and duties of a Water Board,
the judge
a quo
concluded
that the CEO was not empowered to make the decision and that such
decision had to be made by the Board. The review therefore
succeeded.
The following order issued:
‘
1. The application served on Rand Water in April
2000, which may be supplemented and/or amended is hereby referred
back for consideration
by the Water Board within five (5) months from
date of this order;
2. The outcome of the application to be served on the
applicant within thirty (30) days after the decision;
3. Should the application be unsuccessful the Rand Water
Board may not execute the court order dealing with the demolition of
the
house for a period of thirty (30) days for applicant to have an
opportunity to file a review application if the applicant deems
it
necessary.
4. Each party to pay its own costs.’
[4] The present appeal is directed against paragraphs 1
and 4 of the aforesaid order. There was no cross appeal and in heads
of
argument filed in this court the Board conceded the correctness of
the decision that the CEO was not empowered to determine the
matter
on behalf of the Board.
[5] The following were the contentions put forward by
the appellant:
a) The court
a quo
did
not in terms set aside the ostensible decision of the Board and the
appellant had to appeal to this court to rectify this omission;
b) (i) The facts of the matter were such that the court
a quo
should have come
to its own conclusion on the merits instead of referring the matter
back; and
(ii) there had been an agreement between the parties
that if the review was successful the court would determine the
merits without
reference back to the Board;
c) It was common cause between the parties that the
appellant’s dwelling does not constitute a risk of pollution.
The consent
of the Board for relaxation of the building restriction
below the flood line is, in terms of Annexure C to the Guide Plan,
only
required if there is a risk of pollution. There being no such
risk the Board had no jurisdiction to grant or refuse the
application;
d) The appellant having been substantially successful
should have been granted a costs order in its favour.
[6] The first point can be disposed of swiftly. It is
trite that a judgment like any other document must be read as a whole
in order
to ascertain its intention. (
Firestone
South Africa (Pty) Ltd v Genticuro
1977 (4)
SA 298
(A) at 304D;
Administrator, Cape v
Ntshwaqela
1990 (1) 705 (A) at 715F.) Read as
a whole it is abundantly clear that the intention of the judge was to
set aside the decision
of the Board. Why else one asks, rhetorically,
would the court order a reference back to the Board for decision?
[7] Turning next to issues 2(i) and (ii). The Board’s
CEO made it clear that he, and he alone, had taken the decision. He
sets out in his answering affidavit what steps he took to reach an
informed decision. He consulted certain experts, he took a boat
trip
up the river to view the site and he studied the documents filed in
the various court applications. He then concludes:
‘
I on behalf of Rand Water accordingly decided to
reject the application.’
Later he records the following:
‘
In this regard it must be borne in mind that the
decision in question had been taken by an individual, myself, and
there was no
“record” of any “proceedings” .
. . ‘
When questioned as to why the court
a
quo
should have substituted its decision for
that of the Board where as a fact the Board had never considered the
matter and consequently
not made a decision, counsel contended that
the Board subsequently adopted and/or ratified the CEO’s
decision. This he said
was to be inferred from the fact that the
decision was conveyed to the appellant on the Board’s
letterhead and the fact that
the Board had stoutly defended the
‘decision’ in the review proceedings. Nowhere in the
papers filed by the Board was
it contended that there was such
adoption or ratification. The point was not advanced before the judge
a quo,
it does not
appear in the application for leave to appeal nor in the notice of
appeal. The letter relied upon was written and signed
by the very
person who admitted that he had taken the decision on behalf of the
Board. In short, there is no substance in this
argument. Clearly the
judge was correct in refusing to determine the issues when the Board
had not had an opportunity of applying
its mind and coming to a
decision. The so-called agreement also does not assist the appellant.
It was never proved in evidence.
A letter said to record the
agreement was handed up from the Bar during the course of argument in
the court below. Counsel for
the Board disputed that any such
agreement had been reached. The judge correctly found that no such
agreement had been proved and
that in any event even if there was
such an agreement, he was not bound by it. His attitude in this
regard was, in my view, entirely
correct. It is furthermore in
accordance with the general principle reaffirmed in
Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan
Council
[1998] ZASCA 91
;
1999 (1) SA 104
(SCA) at 109F that a
matter (in a successful review) will be sent back unless there are
special circumstances giving reason not
to do so.
[8] The next issue is whether the Board had any
authority (or as it was stated, jurisdiction) to decide whether to
grant permission
or not, absent any proof of pollution. The argument
advanced by the appellant rested in the main on the preamble to
Annexure C
of the Guide Plan referred to herein before. Annexure C
contains the ‘Requirements for development in the Vaal Dam and
the
Vaal River Barrage Area’. The preamble reads as follows:
‘
With a view to combating pollution in the
catchment areas of the Vaal Dam and the Vaal River Barrage Area, all
future developments
must, apart from complying with any other
relevant legislation, satisfy the following requirements . . . ‘
In terms of paragraph 2.2, no habitable buildings or
structures, toilets, french drains, conservancy or septic tanks,
sewerage pumping
installations or sewerage works are permitted below
the flood control line, except with the written consent of the Board.
In terms
of
s 29(3)
of the
Development Facilitation Act, 67 of 1995
,
the Guide Plan with the exception of Annexure C was withdrawn as a
statutory document with effect from 25 December 1996. The argument
advanced was that, with the withdrawal of the major part of the Guide
Plan, the provisions of Annexure C were only applicable once
there
was proof of possible pollution caused by the activity envisaged in
the regulated area. This was said to be a jurisdictional
fact which
had to be established before consent is required. It was argued that
it was common cause that the building erected by
the appellant
constituted no danger of pollution. Accordingly the Board had no
power to refuse to grant written consent. I have
some difficulty in
understanding why, if Annexure C only applied once it had been
established that there was a danger of pollution,
the appellant
nevertheless applied to the Board under the provisions of the
Annexure for consent. Surely all it needed to do was
apply for a
declaratory order to the effect that no consent was required because
there was no danger of pollution. I am also far
from being persuaded
that on the proper reading of Annexure C the preamble restricted the
inquiry by the Board to the question
as to whether the structures and
activities proposed in the regulated area would constitute a danger
of pollution. In any event
it is for the Board to consider and decide
whether there is a danger of pollution. It must decide whether the
jurisdictional fact
exists, assuming the correctness of appellant’s
argument. The Board has neither considered nor made a decision on
this issue
and must be given an opportunity of doing so. It was not
common cause as suggested by appellant that there was no danger of
pollution
should appellant’s dwelling remain where it is. In
answer to the appellant’s contention in the founding affidavit
that
it was common cause that the dwelling created no danger of
pollution, the deponent to the Board’s answering affidavit said
the following:
’
Ad Paragraph 3.9:
28.1 The dwelling
per se
should not cause pollution;
28.2 However, if the dwelling is flooded, which is the
very risk created by its erection under the flood control line, it
could,
and in all likelihood will, cause extensive pollution apart
from other damage to person and property and the resources of Rand
Water.’
[9] I turn finally to the issue of costs. The appellant
was successful in that the review application succeeded and the
‘decision’
of the Board was set aside. There was, counsel
submitted, no reason to depart from the usual rule that costs follow
the result.
Unfortunately the judge
a quo
gave
no reasons for deciding that each party should pay its own costs. One
does therefore not know what factors he took into account
when
exercising his discretion. The appellant was substantially successful
and was obliged to bring the review proceedings and
have the
purported decision of the Board set aside to prevent the dwelling
from being demolished. The Board defended ‘its
decision’
right up to the stage of the filing of heads of argument in this
court. In these circumstances I cannot see why
the appellant should
bear its own costs. The appellant also contended that the court
a
quo
should have ordered that the costs
reserved in a number of preliminary applications preceding the review
application be paid by
the Board. We are not in possession of any of
the judgments in those matters and the record contains no information
as to the facts
and circumstances which motivated those courts in
reserving costs. We are unable therefore to consider this issue.
Appellant’s
remedy is to apply by way of substantive
application in the court below for those costs.
[10] In the result the following order is made:
1. Save to the extent set out in para 2 of this order,
the appeal is dismissed with costs, such costs to include the costs
consequent
upon the employment of two counsel;
2. Paragraph 4 of the order of the court
a
quo
is set aside and there is substituted the
following:
‘The first respondent is ordered to pay the
applicant’s costs.’
………………………
.
P C COMBRINCK
JUDGE OF APPEAL
Concur
:
SCOTT JA
MTHIYANE JA