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[2013] ZAFSHC 20
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Reizis NO v MEC for the Department Sport, Arts, Culture and Recreation and Others (A99/2012) [2013] ZAFSHC 20 (28 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A99/2012
In the matter between:
STYLIANOS REIZIS
N.O.
..............................................................
Applicant
and
MEC FOR THE
DEPARTMENT OF SPORT, ARTS,
CULTURE &
RECREATION
................................................
1
st
Respondent
FREE STATE HERITAGE
RESOURCES
AUTHORITY
.......................................................................
2
nd
Respondent
FREE STATE HERITAGE
RESOURCES
AUTHORITY COUNCIL
.......................................................
3
rd
Respondent
_______________________________________________________
CORAM:
RAMPAI, J
et
LEKALE, J
_______________________________________________________
HEARD ON:
4
FEBRUARY 2013
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
DELIVERED ON:
28 FEBRUARY 2013
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] On 28 September 2009
the applicant, in his capacity as trustee of the Reizis Trust (the
trust), applied to the second respondent
in terms of section 35(1) of
the National Heritage Resources Act 25 of 1999 (the NHRA) for
permission to demolish the trust dwelling
which is older than 60
years in favour of a new business development.
[2] The application was,
however, not successful with the second respondent’s permit
committee communicating its decision
to the applicant in terms of a
letter dated 14 October 2009.
[3] The applicant,
thereafter, lodged an appeal with the third respondent’s appeal
committee on 29 October 2009 in terms of
applicable regulations.
[4] The appeal committee
heard the appeal on 26 November 2009 and on 3 December 2009 it
decided that:
“
1. The
applicant will submit detailed proposals showing at least two
alternatives. These alternatives should include an option that
incorporates the existing residence within the larger development, or
a second option that will produce a new development plan
that will
replace the residence with a development that could enhance the area
as a whole...
2. After the proposals have been
completed they will be presented to the Permit Committee who will
then reconsider these proposals
and could reconsider their original
decision if they deem one of both of the alternatives satisfactory.
3. The Appeal Committee will then
consider the recommendation from the Permit Committee in this regard.
It is recommended that the
new proposals be presented to the Permit
Committee at the first meeting in February 2010...
”
[5] The applicant,
eventually, submitted the proposals solicited by the appeal committee
for the attention of the permit committee
on 10 February 2011 after a
delay attributed to the involvement of experts in compiling the
proposals.
[6] On 13 March 2011 the
applicant, through its attorneys, notified the permit committee of
its intention to approach the court
in terms of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) for an injunction in the
event of failure, on its part
,to take a decision within ten days.
[7] On 7 April 2011 the
chairman of the second respondent responded to the said letter and
advised the applicant that the first
respondent had appointed a new
Provincial Heritage Resources Authority Council on 7 February 2011
and that the said council had
taken note of the applicant’s
appeal against the decision of the appeal committee and was in the
process of referring the
matter to the first respondent to make a
final decision in terms of section 49(2) of the NHRA.
[8] The applicant’s
attorneys, thereafter, directed a letter dated 12 May 2011 to the
second respondent drawing its attention
to,
inter alia
, the
decision of the appeal committee and requesting clarification on
whether or not the permit committee had already reconsidered
the
matter and made recommendations to the appeal committee.
[9] The applicant could,
however, not get joy from the second respondent and, on 12 August
2011, launched an application in this
court under case number
A218/2011 for an order,
inter alia
, compelling the latter to
deal with the matter as directed by the appeal committee.
[10] On 17 October 2011
and before the application to compel the second respondent could be
heard, the first respondent notified
the applicant as follows, among
others:
“
2. After
due consideration of the grounds of appeal and other relevant
information, I decided to confirm the decision of the independent
tribunal committee.
Your appeal is therefore
unsuccessful.
”
[11] The injunction
application was, thereupon, regarded as having been overtaken by
events and the parties agreed to remove the
same from the roll with
the respondents paying the costs.
[12] The applicant feels
aggrieved by the first respondent’s decision and now approaches
this court in terms of Rule 53 of
the Uniform Rules of Court for,
inter alia
, an order reviewing and setting aside the same and
directing:
“
2. That
the second and/or third respondent’s decision of the 14
th
October
2009... in terms of which the applicant’s application for a
permit to demolish the structures on Erf 1768, 3 Torbet
Street,
Waverley, Bloemfontein was refused, be reviewed and set aside;
3. That the first and/or second
and/or third respondent be ordered to issue a permit to the applicant
in terms of the
National Heritage Resources Act No 25 of 1999
for
permission to demolish the structures on Erf 1768, 3 Torbet Street,
Waverley, Bloemfontein;
4.
Alternatively to
paragraph 3 above
, that the second respondent be ordered
to consider the applicant’s proposals as set out in annexure
‘E’ to the
applicant’s founding affidavit within 21
days after the granting of this order and to make recommendations, in
writing, to
the first respondent in terms of the decision dated 3
rd
December 2009, annexure ‘D’ to the applicant’s
founding affidavit, whereafter the matter be remitted to the first
respondent for a decision on the applicant’s appeal as
contemplated in
section 49
of the
National Heritage Resources Act 25
of 1999
;
5.
In the further
alternative to paragraphs 3 and 4 above
that the
applicant’s appeal against the refusal of the permit as
referred to in paragraph 2 above, be remitted to the first
respondent
for reconsideration, together with the proposals set out in annexure
‘E’ to the applicant’s founding
affidavit, which
shall be reconsidered by the first respondent within 30 days after
the granting of this order;
6. The respondents, jointly and
severally, be ordered to pay the costs of this application.
”
RESPONDENT PARTIES
[13] The first respondent
is the Member of the Executive Council (MEC) responsible for the
Department of Sport, Arts, Culture and
Recreation in the Free State
Province.
[14] The second
respondent is the Free State Heritage Resources Authority, a body
corporate established in terms of
section 23
of the NHRA and
responsible for the management of the relevant heritage resources
within the Free State Province.
[15] The third respondent
is the Council of the Free State Heritage Resources Authority
appointed in terms of
Regulation 2
of the Regulations regarding the
Free State Heritage Resources Authority and which governs the second
respondent in terms of
section 23
of NHRA.
ISSUES IN DISPUTE
[16] The applicant relies
on a number of grounds in support of its prayer for the review of the
relevant decision. It is, however,
not necessary for us to deal with
such grounds in toto in the light of the facts that are common cause
between the parties as well
as the view we have taken of the matter.
[17] The primary question
to be determined is whether or not the first respondent’s
decision of 17 October 2011 is reviewable
in terms of
section 6(2)(a)
of PAJA on,
inter alia
, the ground that the first respondent
was not authorised and/or entitled to take a final decision on the
applicant’s appeal
when he purported to do so.
[18] In the event of this
question being decided in the affirmative, the next enquiry, which
only arises in that eventuality, is
whether or not it is fair, in the
circumstances of the instant matter, for the court to substitute its
discretion for that of the
respondents by directing any or all of
them to issue the relevant permit to the applicant.
APPEAL STRUCTURES
IN TERMS OF NHRA AND RELEVANT REGULATIONS
[19] Section 49(1) of the
NHRA requires the regulations published by the Minister and the MEC
to provide for a system of appeal
to the South African Heritage
Resources Authority (SAHRA) or a provincial heritage resources
council, such as the third respondent,
against the decision of a
committee or other delegated representative of SAHRA or a provincial
heritage resources authority in
the position of the second
respondent.
[20] In compliance with
this legislative injunction the office of the first respondent
published regulations providing for,
inter alia
, an appeal to
the third respondent against a decision of a committee or other
delegated representative of the second respondent
on 10 October 2003
in terms of Provincial Notice No 195 of 2003 (see Regulation 6 of
Regulations regarding the Free State Heritage
Resources Authority).
[21] Section 49(2) of
NHRA provides,
inter alia
, for an appeal to the MEC against
the decision of a council in the position of the third respondent in
the following terms:
“
2.
Anybody wishing to appeal against a decision of the SAHRA Council or
the council of a provincial heritage resources authority
must notify
the Minister or MEC in writing within 30 days. The Minister or MEC
shall then appoint an independent tribunal consisting
of three
experts having expertise regarding the matter.
”
[22] It follows,
therefore, that in the Free State Province an appeal against the
decision of the permit committee of the second
respondent lies to the
appeal committee which is a committee of the third respondent. The
MEC, on his part, is the ultimate appellate
body and only entertains
appeals from the decisions of the third respondent.
SUBMISSIONS BY THE
PARTIES
[23] It is clear from the
papers before us that the parties are in agreement that the applicant
never lodged an appeal with the
MEC.
[24] It is further,
effectively, common cause between the parties that the decision of
the third respondent, through the appeal
committee, was not final or
appealable and was in the nature of a directive or an advice
requiring further proposals from the applicant
and recommendations
thereon by the second respondent.
[25] The parties are,
furthermore,
ad idem
that the applicant did not consent to the
abridged appeal procedure which saw the matter serve before the MEC
without a final decision
by the third respondent and, further,
without a written notice to the MEC as contemplated by section 49(2)
of NHRA.
REVIEW
[26] The MEC derives the
powers to hear and determine appeals in matters of the present nature
from section 49(2) of NHRA which
is the source of his administrative
authority in that regard.
[27] In the exercise of
the relevant appellate powers the MEC is
“
constrained
by the principle that he may exercise no power and perform no
function beyond that conferred upon
”
him by
the NHRA. (See
FEDSURE LIFE ASSURANCE LTD
AND OTHERS v GREATER JOHANNESBURG TRANSITIONAL METROPOLITAN COUNCIL
AND OTHERS
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para
[58]
.)
[28] An administrative
action taken by an administrator who was not authorised by the
empowering provision to take it is judicially
reviewable. (See
section 6(2)(a) of PAJA.)
[29] In order for the MEC
to lawfully deal with an appeal the following must exist
simultaneously:
29.1. A final decision on
an applicant’s appeal by a body in the position of the third
respondent’s appeal committee;
29.2. A written notice of
appeal to the MEC by an applicant submitted within 30 days of the
date of the impugned decision.
[30] In the instant
matter the MEC was, consequently, not legally authorised or entitled
to assume and exercise appellate powers
over the matter in the
absence of such jurisdictional facts and, as such, exceeded his
powers in so doing. His decision is, ipso
facto, reviewable in terms
of section 6(2)(a)(i) of PAJA. In our judgment the first respondent,
in effect, purported to entertain
an appeal against the decision of
the second respondent which was the only appealable decision in
existence as at the date of the
impugned decision.
REMEDY
[31] The next question
which arises for determination is whether or not the court can, in
the circumstances, fairly direct the respondents
to issue the
relevant permit to the applicant.
[32] Mr Pienaar, for the
applicant, passionately beseeches the court to make such an order. We
are, however, not persuaded that
it would be fair to the parties to
do so regard being had to what is dealt with below.
[33] Section 8(1)(c) of
PAJA empowers a court in the instant proceedings to set aside the
impugned action and to either remit the
matter for reconsideration by
the relevant administrator with or without directions or, in
exceptional cases, to substitute or
vary the administrative action in
question or correct a defect resulting from such an administrative
action.
[34] A court undertaking
a judicial review is, further, empowered to,
inter alia
,
direct the taking of a decision by the relevant administrator. (See
section 8(2)(a) of PAJA).
[35] The courts are
generally loath to substitute their decision for that of the original
decision-maker and do so only under exceptional
circumstances. (See
PREMIER, MPUMALANGA, AND ANOTHER v EXECUTIVE COMMITTEE,
ASSOCIATION OF STATE-AIDED SCHOOLS, EASTERN TRANSVAAL
1999
(2) SA 91
(CC) at p 133 paragraph [50]).
[36] In the instant
matter the MEC simply did not have authority to deal with the matter
and same was, as such, not properly before
him. The matter was in the
third respondent’s court. The appeal committee had retained
jurisdiction over it and still had
to deal with it when the same was
improperly escalated to the first respondent. The third respondent
still has a discretion in
the matter because it has not yet made a
final or appealable decision and the result cannot, reasonably, be
said to be a foregone
conclusion. (Compare
PREMIER, MPUMALANGA
v ASSOCIATION OF STATE-AIDED SCHOOLS
,
supra
.)
[37] There is, further,
nothing before us indicative of bias or incompetence on the side of
the third respondent. (See
COMMISSIONER, COMPETITION COMMISSION
v GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA AND OTHERS
2002
(6) SA 606
(SCA) at paragraph [16]).
[38] Although time
considerations may be important in the circumstances of the present
matter due to the need for finality, among
others, it is not, in our
view, of such essence as to justify depriving the third respondent an
opportunity to finalise what it
has already started lawfully.
(Compare
RUYOBEZA AND ANOTHER v MINISTER OF HOME AFFAIRS AND
OTHERS
2003 (5) SA 51
(C) at p 65 C – 66 B.)
[39] In our view it would
not be fair
in casu
to assume the powers of the appeal
committee by exercising the discretion conferred upon it by law. (See
generally
LIVESTOCK AND MEAT INDUSTRIES CONTROL BOARD v GARDA
1961 (1) SA 342
(A) at 349 G.)
COSTS
[40] The applicant is, at
common law, entitled to his costs regard being had to,
inter alia
,
the success it has attained in the matter. The general rule that
costs follow the event is, therefore, applicable.
[41] Mr Pienaar persists
in the applicant’s prayer for the respondents to be ordered to
pay costs jointly and severally.
[42] Ms Van Rhyn, for the
respondents, effectively leaves the issue in the hands of the court.
[43] Section 8(1)(f) of
PAJA permits the court to make just and equitable orders including,
inter alia
, orders as to costs.
[44] In matters
concerning the award of costs the determinative issue is justice or
fairness to all the parties involved regard
being had to,
inter
alia
, their conduct relative to the proceedings. (See
FRIPP
v GIBBON & CO
1913 AD 354
at
363 and
GELB v HAWKINS
1960 (3) SA 687
(A) at
694.)
[45] It is not apparent
from the papers that the third respondent played any role whatsoever
in either the delay involved in finalising
the matter or in the
referral of the appeal to the first respondent. The applicant
submitted further proposals to the permit committee
as directed by
the third respondent’s appeal committee. The chairperson of the
second respondent communicated with the applicant’s
attorneys
and, eventually, advised them that the matter was being referred to
the first respondent as an appeal against the decision
of the appeal
committee. The applicant’s attorneys wrote to the second
respondent to set the record straight but nevertheless
the matter was
erroneously tabled before the first respondent.
[46] On his part the
first respondent acknowledges and reiterates in the opposing
affidavit that the applicant did not lodge an
appeal against the
decision of the appeal committee in terms of section 49(2) of NHRA.
(See p 154 paragraph 13.2 as well as p 155
paragraph 13.4 of the
indexed bundle of review papers.)
[47] It is, further,
evident ex facie the provisions of section 49 of NHRA that its
language is clear, unambiguous and comprehensible.
The first
respondent was clearly aware or ought reasonably to have been aware
of the applicable appeal procedures.
[48] In paragraph 13.4 of
opposing affidavit and on p 155 of the indexed bundle of review
papers the first respondent deposes to
the effect that he decided to
invoke the provisions of section 49(3) of NHRA and appointed the
independent tribunal to deal with
the matter because of the fact that
the applicant had issued the application under case number A218/2011
notwithstanding the fact
that no appeal was lodged against the
decision of the third respondent.
[49] It is, thus,
apparent that the first respondent was alive to the provisions of the
NHRA with regard to his appellate powers
when he usurped the powers
of the third respondent by effectively dealing with an appeal against
the decision of the second respondent.
ORDER
[50] In consequence I
make the following order:
50.1. The decision of the
first respondent dated 17 October 2011 is hereby reviewed and set
aside.
50.2. The matter is
remitted to the second respondent who is directed:
(a) to reconsider afresh,
within 21 days hereof, the applicant’s amplified application
taking into account the proposals as
set out in annexure “e”
to the founding affidavit;
(b) to submit to the
third respondent, within 7 days thereafter, recommendations in
accordance with the latter’s directives
as set out in annexure
“d” to the founding affidavit;
(c) to communicate to the
applicant, within the same period as referred to in sub-par (b)
supra
, its decision as well as the recommendations it has made
to the third respondent.
50.3. The third
respondent is directed, within 21 days after receipt of the second
respondent’s recommendations
(a) to hear the
applicant’s appeal; and
(b) to communicate its
decision thereon, within 7 days, to the applicant;
50.4. The second and the
third respondents respectively shall afford the applicant an
opportunity of presenting its case or its
appeal before they make
their respective decisions concerning the application or appeal.
50.5. The first and
second respondents shall pay the applicant’s costs, jointly and
severally, the one paying the other to
be absolved.
______________
L. J. LEKALE, J
I concur.
______________
M.H. RAMPAI, J
On behalf of applicant:
Adv C D Pienaar
Instructed by:
Rossouws Attorneys
Aliwal Street
BLOEMFONTEIN
On behalf of respondents:
Adv I van Rhyn
Instructed by:
Office of the State
Attorney
BLOEMFONTEIN
/spieterse