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[2012] ZAKZDHC 81
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Sealand Transport Services CC and Others v Ethekwini Municipality (4600/2012) [2012] ZAKZDHC 81 (23 November 2012)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE No: 4600/2012
In the matter between:-
SEALAND TRANSPORT
SERVICES CC
.......................................................................
First
Applicant
ROAD MARINE CC
.....................................................................................................
Second
Applicant
RAV TRANSPORT CC
...................................................................................................
Third
Applicant
CMT LOGISTICS CC
...................................................................................................
Fourth
Applicant
and
ETHEKWINI
MUNICIPALITY
......................................................................................
First
Respondent
JUDGMENT
Delivered
on 23 November 2012
Vahed J:
[1] The respondent
municipality ("the municipality”) owns certain immovable
property within its area of jurisdiction,
which is described as Sites
MA 129, 130 and 133 on Remainder of Erf 301, Springfield (Electron
Road) ("the property”).
The applicants (a term I will use
to refer to the applicants and the intervening applicant) are in
occupation of portions of the
property. In the present application
they seek an interdict restraining the municipality from evicting
them from the property pending:-
a. the municipality
providing the applicants with adequate notice and reasons for their
eviction;
b. the municipality
affording the applicants a fair hearing with an opportunity to make
representations as to why they they ought
not to be evicted from the
property; and
c. and in the event that
the municipality thereafter continues with the proposed eviction,
that the applicants be afforded a reasonable
opportunity to relocate,
such to be a period of at least twelve months.
[2] At the hearing of the
application the intervening applicant applied to join in the
proceedings as an applicant, to make common
cause with the original
three applicants, and to seek the same relief. That was not opposed
and I allowed their application to
join.
[3] Prior to 28 February
2008, and in terms of a written agreement, Zedek Trading 82 CC hired
the property from the municipality.
As at that date the applicants
were in occupation of separate portions of the property, each of them
concluding agreements for
that purpose with Zedek. In other words,
each of the applicants was a sub-tenant, with Zedek being their
landlord.
[4]
The municipality terminated Zedek’s occupation of the premises
with effect from 28 February 2008. Zedek failed to vacate
and
litigation ensued in terms of which the municipality sought the
eviction of Zedek, and all those occupying through it, from
the
property. In those proceedings (under
Case
No 12482/2008 in this Court) Zedek opposed the municipality’s
claim for
eviction and challenged the
termination of its tenancy. Ultimately all of
Zedek’s
defences were dismissed and, in terms of a written judgment handed
down on 28 March 2011, Murugasen J issued the
following Order:
"1. The respondent,
Zedek Trading 82 CC, and all other persons in occupation under or
through the respondent, are directed
to vacate the immovable property
described as Sites MA 129, 130 and 133 on Remainder of Erf 301,
Springfield, and situate at Electron
Road (‘the property’);
2. Failing immediate
compliance with paragraph 1 of the order, the Sheriff of the High
Court is authorised to evict the Respondent
and all persons in
occupation under or through the respondent, from the property.
3. The respondent is
ordered to pay the costs of the application on an attorney and client
scale.”
[5] It appears that
thereafter Zedek sought leave to appeal against that judgment and
Order which was refused. The correspondence
attached to the founding
papers contain a reference to a "writ of ejectment” dated
02 December 2011 being delivered
to, at least, the first applicant.
On 12 December 2011 attorneys representing the first applicant wrote
to the municipality’s
attorneys acknowledging receipt of the
writ by the first applicant and stating further that:
"We have been
provided with a copy of our landlord’s petition to the Supreme
Court of Appeal for leave to appeal the
ejectment order.
Can you confirm that the
ejectment will be held in abeyance pending the outcome of this
application?
In any event, our client
would like to continue occupying the property and would be happy to
conclude an agreement of lease with
your client and pay rental
directly to your client in respect of the property.
In this regard we have
suggested to our client that it withhold paying any further rental to
[Zedek] and that the rental is to be
paid into our trust account.
In the interim please
could you advise us as to your clients (sic) approach to our clients
(sic) ejectment and it (sic) willingness
to conclude an agreement
with our client regard (sic) to its continued occupation.”
[6] Thereafter the
eviction was held in abeyance pending the outcome
of the petition
proceedings. On 21 December 2011 the municipality’s attorneys
advised the first applicant’s attorneys
that the municipality
was not willing to conclude any lease with the first applicant and
that "[a]ny rental agreement between
[the first applicant] and
Zedek is a matter between the two parties”.
[7] On 23 January 2012
the first applicant’s attorneys responded to
that
communication in,
inter alia,
the following terms:
"Our client
understands completely that it does not have a valid or binding lease
agreement with your client and does not wish
to confuse the
litigation issues between your client and Zedek Trading with its
approach to your client.
Our client’s
position is that it is an innocent party who concluded a lease with
Zedek Trading in good faith, not being aware
of your client’s
rights or its position in regard to the apparent termination of our
client’s landlord’s lease.
Our client’s
business operations are heavily dependant (sic) upon its continued
operation on the property. Our client is merely
endeavouring to
enquire of your client as to its intentions in relation to the
property as it would seem that unless your client
intends some kind
of redevelopment, that it would be in its interest to receive rental
in respect of the property. It that is so,
then our client would like
to express its interest in leasing the property from your client. In
fact it would be prepared to pay
rental to your client immediately in
order to secure its rights.
To this end, our client
would like to meet with your client’s representative to discuss
this possibility.
Our client does not wish
this approach to be misconstrued as an endeavour to cause any
difficulty in regard to the present litigation
or compromise your
client’s rights in any way.”
[8] On 24 April 2012 the
first applicant’s attorneys again wrote to the
municipality’s
attorneys, on this occasion in,
inter
alia,
the following terms:
"We confirm that we
represent Sealand Transport Services CC, Road Marine Logistics CC and
RAV Transport CC, who are the present
occupiers of the property
described as: Site MA129, 130 and 133 on Remainder of Erf 301
Springfield, known as 38-50 Electron Road,
Springfield.
As we have previously
stated, Sealand is paying rental into our trust account in respect of
its occupation of the property as it
is uncertain as to whether it
should be paying rental to your client or Zedek Trading. We have
advised our other clients to do
likewise.
We note that your client
has indicated that it is not willing to conclude a lease agreement
with Sealand. Our clients would like
to receive written reasons for
this decision given that it has tendered to pay your client market
related rental.
We would be grateful if
you could advise us as to the present status of the litigation under
Case No. 12482/2008 and whether you
are aware of the outcome of the
Applicant’s application to the Supreme Court of Appeal.
We
note at paragraph 42 of the judgment, the learned Judge records that
your client has advised "that it has an agreement with
the
subtenants and has given an undertaking that any occupier will not be
evicted without recourse to due procedure”.
Please could you provide
us with copies of your client’s affidavits in which this
arrangement is explained and provide us
with details of the
undertaking that your client has provided.”
[9] On 30 April 2012 the
municipality’s attorneys responded indicating that there was no
prospect of any lease being concluded
with the applicants, that the
Supreme Court of Appeal had refused Zedek’s petition and that
they had received instructions
to proceed with the eviction.
[10]
That evoked a response, dated 2 May 2012, in,
inter
alia,
the following terms:
"As you will
appreciate it is not in order for your client to proceed with the
eviction of our clients from the premises.
We require the requested
information from you and your client.
In particular our client
(sic) would like to receive reasons for the decision to refuse to
conclude a lease agreement. You will
appreciate that the reason
provided that "the site is desperately needed by their client
department” is not particularly
helpful nor does it assist our
client (sic) in understanding how the decision has been arrived at.
Please also provide us with
the documents evidencing the basis for
the decision.
In the interim our client
(sic) requires your confirmation that your client will not proceed
with the eviction until at the very
least we hear from you
meaningfully and our clients have had an opportunity to address your
client’s reasons in more detail.”
[11] On 4 May 2012 the
municipality’s attorneys advised that they were instructed to
proceed with the evictions and also furnished
the applicants’
attorneys with a copy of the Order made by the Supreme Court of
Appeal which had been requested in the interim.
[12] On 5 May 2012 the
applicant’s attorneys wrote indicating that this application
would be brought as a matter of urgency,
anticipating that the
application papers would be delivered by no later than 8 May 2012. As
matters turned out the application
papers were issued on 7 May 2012
and delivered by the sheriff on the same day. The matter was heard on
9 May 2012 when an Order
was issued, by consent, regulating the
exchange of affidavits and the further conduct of the matter. That
Order also recorded an
undertaking delivered by the municipality to
the effect that it would not proceed with the evictions pending the
final determination
of this application.
[13] I have quoted at
length from and referred in detail to that exchange of correspondence
because it is against that backdrop
that one gains a fine
understanding of how the applicants’ case developed.
[14] In the founding
papers the applicants contended that they were entitled to the relief
foreshadowed in the notice of motion
in that they entertained a
legitimate expectation that they would be accorded "due process”
by the municipality prior
to their eviction being sought and acted
upon. The "due process”, they explained, was their rights
to a hearing and
to make representations so as to ensure just
administrative action and the protections afforded by the Promotion
of Administrative
Justice Act, 3 of 2000 ("PAJA”).
[15]
They contend further that the municipality’s refusal to grant
them a lease to occupy the property and/or the refusal
to entertain a
hearing constitutes
administrative
action
as defined in PAJA. PAJA
defines that term thus:
“
'administrative
action'
means
any decision taken, or any failure to take a decision, by-
(a) an organ of state,
when-
(i) exercising a power in
terms of the Constitution or a provincial ; or
(ii) exercising a public
power or performing a public function in terms of any legislation; or
(b) a natural or juristic
person, other than an organ of state, when exercising a public power
or performing a public function in
terms of an empowering provision,
which adversely affects
the rights of any person and which has a direct, external legal
effect, but does not include-
(aa)
the executive powers or functions of the National Executive,
including the powers or functions referred to in sections 79 (1) and
(4), 84 (2)
,
(b), (c), (d), (f), (g), (h), (i)
and
(k),
85 (2)
(b), (c), (d)
and
(e),
91 (2), (3), (4) and (5), 92 (3), 93, 97, 98, 99 and 100 of the
Constitution;
(bb)
the executive powers or functions of the Provincial Executive,
including the powers or functions referred to in sections 121 (1)
and
,
125 (2)
(d), (e)
and
(f),
126, 127 (2), 132 (2), 133 (3)
(b),
137, 138, 139 and 145 (1) of the Constitution;
(cc)
the executive powers or functions of a municipal council;
(dd)
the legislative functions of Parliament, a provincial legislature or
a municipal council;
(ee)
the judicial functions of a judicial officer of a court referred to
in section 166 of the Constitution or of a Special Tribunal
established under section 2 of the Special Investigating Units and
Special Tribunals Act, 1996 (Act 74 of 1996), and the judicial
functions of a traditional leader under customary law or any other
law;
(ff)
a decision to institute or continue a prosecution;
(gg)
a decision relating to any aspect regarding the nomination, selection
or appointment of a judicial officer or any other person,
by the
Judicial Service Commission in terms of any law;
(hh)
any decision taken, or failure to take a decision, in terms of any
provision of the Promotion of Access to Information Act, 2000;
or
(ii) any decision taken,
or failure to take a decision, in terms of section 4 (1);”
[16]
The first problem that emerged was the contention that the
municipality’s decision relating to an apparently commercial
transaction with regard to the proposed letting of land owned by it
constituted
administrative action
as envisaged by PAJA, more so in circumstances where it (ie. the
municipality) wanted the land to further its civic duty.
[17]
In asserting that contention, Mr
Voormolen,
who appeared for the applicants, referred me to
Grey’s
Marine Hout Bay (Pty) Ltd v The Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA), and in particular to paragraphs 23 to 26 and
paragraphs 30 to 32 thereof. Those paragraphs (omitting the
citations, footnotes
and case references) read as follows:
"[23] While PAJA's
definition purports to restrict administrative action to decisions
that, as a fact, 'adversely affect the
rights of any person', I do
not think that literal meaning could have been intended. For
administrative action to be characterised
by its effect in particular
cases (either beneficial or adverse) seems to me to be paradoxical
and also finds no support from the
construction that has until now
been placed on s 33 of the Constitution. Moreover, that literal
construction would be inconsonant
with s 3(1), which envisages that
administrative action might or might not affect rights adversely. The
qualification, particularly
when seen in conjunction with the
requirement that it must have a 'direct and external legal effect',
was probably intended rather
to convey that administrative action is
action that has the capacity to affect legal rights, the two
qualifications in tandem serving
to emphasise that administrative
action impacts directly and immediately on individuals.
Whether particular
conduct constitutes administrative action depends primarily on the
nature of the power that is being exercised
rather than upon the
identity of the person who does so. Features of administrative
action (conduct of 'an administrative nature')
that have emerged
from the construction that has been placed on s 33 of the
Constitution are that it does not extend to the exercise
of
legislative powers by deliberative elected legislative bodies, nor
to the ordinary exercise of judicial powers, nor to the
formulation
of policy or the initiation of legislation by the executive, nor to
the exercise of original powers conferred upon
the President as head
of State. Administrative action is rather, in general terms, the
conduct of the bureaucracy (whoever the
bureaucratic functionary
might be) in carrying out the daily functions of the State, which
necessarily involves the application
of policy, usually after its
translation into law, with direct and immediate consequences for
individuals or groups of individuals.
The law reports are
replete with examples of conduct of that kind. But the exercise of
public power generally occurs as a continuum
with no bright line
marking the transition from one form to another and it is in that
transitional area in particular that
'(d)ifficult
boundaries may have to be drawn in deciding what should and what
should not be characterised as administrative action
for the purposes
of s 33'.
In making that
determination
'(a)
series of considerations may be relevant to deciding on which side of
the line a particular action falls. The source of the
power, though
not necessarily decisive, is a relevant factor. So, too, is the
nature of the power, its subject-matter, whether
it involves the
exercise of a public duty and how closely it is related on the one
hand to policy matters, which are not administrative,
and on the
other to the implementation of legislation, which is. While the
subject-matter of a power is not relevant to determine
whether
constitutional review is appropriate, it is relevant to determine
whether the exercise of the power constitutes administrative
action
for the purposes of s 33.’
It has also been
emphasised that the difficult boundaries
'will
need to be drawn carefully in the light of the provisions of the
Constitution and the overall constitutional purpose of an
efficient,
equitable and ethical public administration. This can best be done on
a case by case basis.’
[26]
It was submitted on behalf of the Minister that because the State is
the owner of the property that is now in issue, and has
all the
ordinary rights of ownership, it may use the property as if it were a
private owner and its conduct in doing so is not
administrative
action. While it is true that the State enjoys the private rights of
ownership it was pointed out in
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Another (Mukhwevho Intervening)
that those rights are to be asserted within the framework of the
Constitution. What is in issue in the present case is not the
use to
which State ownership is being put but rather the manner in which
those rights of ownership have been asserted.”
......
"[30]
While 'rights' may have a wider connotation in this context, and may
include prospective rights that have yet to accrue,
it is difficult
to see how the term could encompass interests that fall short of
that. It has not been shown that any rights -
or even prospective
rights - of any of the appellants (or of any other person) have been
adversely affected by the Minister's decision.
None of the appellants
has any right to use the property that has been let, or to restrict
its use by others, nor has any case
been made out that their rights
of occupation of their own premises have been unlawfully compromised.
As pointed out in
Kyalami Ridge,
at para [95]:
'The
general rule is that the reasonable use of property by an owner is
not subject to
restrictions,
even if such user causes prejudice to others.’
[31]
Although in
Bullock's
case - in which the aggrieved party had continuously hired the
affected property over a period of 32 years and had erected
structures
on the property that were vital for the use of its own
property - an interest falling short even of a prospective right was
recognised,
it might be that the Court had in mind rather a
legitimate expectation, grounded in past practice, that the affected
property would
continue to be available for the use of the aggrieved
party. But even if reliance may be placed on an interest falling
short of
a prospective right - of which I am doubtful - I do not
think that the appellants have shown that they have a peculiar
interest
transcending those enjoyed by the public at large.
[32]
Nor has it been shown that any of the appellants (or any other
person) has a legitimate expectation that the property would
be left
vacant, or even that they would be consulted, or their comments
invited, before it was let. In considering what conduct
would give
rise to a legitimate expectation Corbett CJ, in
Administrator,
Transvaal, and Others v Traub and Others
,
cited the following passage from the speech of Lord Fraser of
Tullybelton in
Council of Civil
Service Unions and Others v Minister for the Civil Service
:
'Legitimate,
or reasonable, expectation may arise either from an express promise
given
on behalf of a public authority or from the existence of a regular
practice which
the
claimant can reasonably expect to continue.'
Those
requirements were considered in greater detail in National Director
of Public Prosecutions v Phillips and Others, which was
cited with
approval by this court in South African Veterinary Council and
Another v Szymanski.”
[18]
Developing that submission Mr
Voormolen
picked up the theme of paragraph 31 quoted above and referred to
paragraphs 13 and 14 in
Bullock
NO
& Ors v Provincial Government, North West Province, & Ano
2004 (5) SA 262
(SCA):
"[13]
It was not suggested that the Premier was unable to take the decision
to grant the servitude in the absence of legislation
which
specifically empowered him to do so:
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Another (Mukhwevho Intervening)
[2001] ZACC 19
;
2001 (3) SA 1151
(CC)
(2001 (7) BCLR 652)
paras [40], [41] and [55].
The submission on behalf of the first respondent was that the
decision by the Premier was taken by an
organ of State in its
capacity as owner of the land in question, and the State was
accordingly in no different position to that
of any landowner who may
freely grant or refuse to grant rights in property vested in such
private owner. It was accordingly submitted
that the decision is not
capable of constituting administrative action.
[14] I emphatically
disagree. The North West Province is landlocked. So is the adjacent
province of Gauteng, the most populous province
of South Africa,
which has the Hartebeestpoort Dam close to its western border. The
dam is a valuable recreational resource available
to the public at
large. Ownership of the foreshore is vested in an organ of State, the
first respondent. A decision by the first
respondent to grant, in
perpetuity, a right over a part of the foreshore to one property
owner to the exclusion of all other persons,
significantly curtails
access to that resource by the public. In my view, for the reasons
which follow, the decision to grant the
servitude can and must be
classified as administrative action and therefore liable to be set
aside by a court at the suit of a
person who has the standing to
claim such relief.”
[19]
As that portion of Mr
Voormolen’s
argument unfolded I entertained considerable doubt as to whether the
municipality’s decision not to entertain the applicants’
entreaties constitutes
administrative
action
entitling the applicants to
the relief they seek. When they read Murugasen J’s judgment the
applicants would have noted that
she carefully considered the terms
under which Zedek occupied the property.
[20] Zedek occupied the
property only as an "interim measure” and in terms of a
document described as a "short term
tenancy agreement”
which provided for its termination by the municipality on a number of
grounds including the situation
when "...the property was
required by the [municipality] for any purpose...”. The
judgment records that the property
was urgently required by the
municipality for use by its Water and Waste Service Unit.
[21] Notwithstanding that
aspect being dealt with in the judgment the correspondence dealt with
above reveals that the municipality’s
attorneys informed the
applicants that the property was ".desperately needed by their
client department”.
[22] In preparing their
founding papers in this application the applicants had recourse to
the papers that served before Murugasen
J. Indeed, a copy of the
founding affidavit (including its annexures) that served before
Murugasen J was annexed to the founding
affidavit in this
application. That document deals, in sufficient detail in my view,
with the municipality’s intended use
of the property by the
Water and Waste Service Unit.
[23]
In my view there is nothing wrong or prejudicial with or concerning
the municipality’s intended used of the property
and there was
nothing untoward in the manner in which it did things. Both the
intended use of the property and the manner in which
the municipality
went about achieving its objective were, in my view, perfectly
reasonable. Neither
Grey’s
Marine
nor
Bullock
is of assistance to the applicant. Instead the statement in
Minister
of Public Works & Ors v Kyalami Ridge Environmental Association &
Ano (Mukhwevho Intervening)
2001 (3)
SA 1151
(CC) to the effect that "[u]nder the common law an owner
of property ordinarily has no right to object to the use to which
neighbouring property is put. The general rule is that the reasonable
use of property by an owner is not subject to restrictions,
even if
such user causes prejudice to others” is the complete answer.
[24] I am accordingly of
the view that my doubt was justified and I am compelled to conclude
that the municipality’s actions
do not constitute
administrative action.
[25]
If I am wrong in that regard I turn to consider the contention that
the applicants’ entertained a legitimate expectation,
in the
sense described above, of fair administrative action on the part of
the municipality. That was because section 3(1) of PAJA
provides that
"[administrative action which materially and adversely affects
the rights or
legitimate
expectations
of any person must
be procedurally fair” (my emphasis).
[26] I need now to
examine the scope and extent of the legitimate expectation contended
for by the applicants.
[27] It was argued by
Zenek before Murugasen J that the municipality’s failure to
join the sub-tenants in that application
was fatal. She dealt with
that aspect of the case thus:
"
THE
PROTECTION OF THE CONSTITUTIONAL RIGHTS OF THE SUBTENANTS
38] Mr Marnewick argued
that while traditionally sub-lessees did not have the right to
receive notice of ejectment proceeding or
to be joined in ejectment
proceedings, the applicant was constrained by the provisions of
Articles 25 and 34 of the South African
Constitution to join the
sub-lessees as interested parties with the right not to be deprived
of property.
He also exhorted the
court not to persist with an apartheid era attitude that the rights
of the registered landowner were paramount
to the exclusion of the
rights of all others, including subtenants, by failing to afford
recognition to the property rights of
the subtenants, which extended
to any property, movable or immovable which the sub-tenants had on
the leased land to conduct their
business, albeit subsidiary to those
of the landowner.
39] This court recognizes
that there is a constitutional imperative that the property right of
all occupiers of land must be weighed
against that of the owner of
the property, and that these property rights have been recognized by
the superior courts as rights
worthy of protection.
However
this property is utilised for commercial purposes and the benefit
derived by the subtenants is financial as is the benefit
to the
respondent. The same constitutional protection afforded to the
occupants of residential property does not apply.
(Ndlovu
v Ngcobo; Bekker & Another v Jika 2003(1) SA 113 S C A)
40] The effect of the
respondent as lessee subletting is to create a lease between the
respondent and the sublessee without creating
a contractual nexus
between the sublessee and the original lessor, viz, the applicant and
without affecting the original lease
or the contractual rights and
obligations between the applicant and respondent.
41] It is therefore not
for the respondent to insist that the subtenants be joined. The
decision lies with the applicant and a risk
that the applicant must
take should it decide not to join the subtenants as parties to this
application.
42] Furthermore any order
of this court will not preclude the subtenants from exercising any
right of recourse that they may have
against the applicant and any
grievance that the subtenants may feel against the Applicant may be
ventilated at their instance
and in any forum they consider
appropriate. The applicant has in any event advised that it has an
arrangement with the subtenants
and has given an undertaking that any
occupier will not be evicted without recourse to due procedure.
43] I am therefore not
persuaded that should this court order the ejectment of the
respondent given the facts and circumstances
of this case, it would
be neglecting its constitutional and common law obligations to
protect the rights of the subtenants.”
[28] In the founding
affidavit in the present proceedings the deponent, who is the first
applicant’s managing member, says
that:
"Upon perusing the
judgment the First Applicant became aware of the undertaking given by
the Respondent, and despite not having
any knowledge of any
agreement, expected the Respondent to contact them in due course
regarding its eviction or potential further
agreement regarding the
leasing of its share of the property. A legitimate expectation of a
fair procedure in respect of the Applicants
(sic) future on the
property was thus formed. Despite the undertaking, none of the
Applicants were ever contacted by the Respondent,
no agreement was
ever reached with them and no hearing or fair procedure has been
given.”
[29] The second and third
applicants, in confirmatory affidavits, merely confirmed what the
deponent to the founding affidavit said
without adding any additional
facts.
[30] After the matter was
first in court on 9 May 2012 the founding papers were, by agreement,
supplemented. The supplementary affidavit,
deposed to by the same
person who deposed to the founding affidavit, says the following
about the legitimate expectation:
"I wish to make it
clear that the undertaking provided by the Respondent in the earlier
proceedings (case number 12482/2008)
created the legitimate
expectation on the part of the Applicants that the Respondent would
follow fair administrative procedure
in dealing with the Applicants.
It is that administrative procedure that the Applicants seek to
enforce in this application and
the right to lawful, reasonable and
procedurally fair administrative action in terms of section 33 of the
Bill of Rights and of
PAJA.”
[31]
The deponent to the affidavit delivered by the intervening applicant,
in addition to confirming that he had read the founding
papers, says
that intervening applicant ".equally requires a fair
administrative procedure to be followed before the Respondent
makes a
decision regarding the Intervening Applicant’s continued
operation from the premises”.
[32] I am accordingly
unable to ascertain when and how the second, third and intervening
applicants came to form, each for their
own part, the legitimate
expectation relied upon. They do not claim to have read Murugasen J’s
judgment and neither do they
say when and how they gained knowledge
of its contents.
[33] As for the first
applicant, it appears that until shortly prior to 24 April 2012 it
only contended for a right to remain on
the property because Zedek
was pursuing its appeal remedies.
[34] In addition, the
applicants claim not to have any knowledge of the ".arrangement
with the subtenants.” and of the
".undertaking that any
occupier will not be evicted without recourse to due procedure.”
as referred to by Murugasen
J in paragraph 42 of her judgment. They
were not present at court when Zedek’s case was argued and were
not party to those
proceedings.
[35] Notwithstanding
those shortcomings I shall assume, for the purposes of what follows
in this judgment, that the applicants gained
knowledge of that
judgment and of the terms quoted above soon after it was delivered.
[36]
In
Administrator, Transvaal & Ors
v Traub & Ors
[1989] ZASCA 90
;
1989 (4) SA 731
(A) Corbett CJ, after extensively reviewing the authorities, both
foreign and local, at 758 D described the doctrine of legitimate
expectation as being ".sometimes expressed in terms of some
substantive benefit or advantage or privilege which the person
concerned could reasonably expect to acquire or retain and which it
would be unfair to deny such person without prior consultation
or a
prior hearing; and at other times in terms of a legitimate
expectation to be accorded a hearing before some decision adverse
to
the interests of the person concerned is taken”.
[37]
In MEC for Education: Northern Cape Province, & Ano v Bateleur
Books (Pty) Ltd & Ors 2009 (4) SA 639 (SCA) Jafta JA
said
(footnotes omitted):
"[67]
The application of the doctrine of legitimate expectation is
determined on a case-by-case basis. The test for establishing
whether
a legitimate expectation exists is twofold. A party claiming that its
expectation has been adversely affected by administrative
action must
prove, by means of accepted facts, either that the decision-maker had
made a promise or that it followed a regular
practice which the
claimant reasonably expected to continue and be extended to it. Once
this is established, then the court must
determine whether, in the
circumstances of the particular case, the facts introduce a legal
duty which obliges the decision-maker
to afford the claimant a
predecision hearing. This entails a value judgment to be made by the
court while bearing in mind the need
to strike the balance referred
to in
Traub."
[38] Although that
statement was made in a minority judgment it appears that the
majority judgment accepted that it correctly reflects
the state of
our law.
[39]
In an earlier decision in
Walele v
City of Cape Town & Ors
[2008] ZACC 11
;
2008 (6)
SA 129
(CC) Jafta AJ (he was then an acting judge in the
Constitutional Court) said (footnotes omitted):
"[37] Since the
concept of legitimate expectation referred to in s 3 of PAJA is not
defined, it must be given its ordinary
meaning as understood over a
period of time by the courts in this country. But the difficulty is
that administrative action is
defined in s 1 of PAJA as a decision
which adversely affects the rights of another person. In the
definition no reference is made
to a decision affecting legitimate
expectations. Yet s 3 refers to administrative action that affects
legitimate expectations.
Applying the definition to the
interpretation of s 3 will lead to absurdity. Therefore, I am willing
not to apply it and to assume
that s 3 of PAJA confers the right to
procedural fairness also on persons whose legitimate expectations are
materially and adversely
affected by an administrative decision. In
the context of s 3, administrative action cannot mean what was
intended in the definition
section. Applying the definition to s 3
would lead to an incongruity or absurdity not intended by Parliament.
The general rule
is that a definition meaning may not be applied if
its application will lead to such consequences.”
[40]
In paragraph 15 of the decision in
Duncan
v Minister of Environmental Affairs & Tourism & Ano
2010 (6) SA 374
(SCA) I am reminded that:
"[r]eliance on the
doctrine of legitimate expectation for any purpose presupposes that
the expectation qualifies as legitimate.
The requirements for the
legitimacy of such expectation have been formulated thus:
(a) The representation
inducing the expectation must be clear, unambiguous and devoid of any
relevant qualifications.
(b) The expectation must
have been induced by the decision-maker.
(c) The expectation must
be reasonable.
(d) The representation
must be one which is competent and lawful for the decision-maker to
make.
(See,
for example,
National Director of
Public Prosecutions v Phillips and Others
2002
(4) SA 60
(W)
(2001 (2) SACR 542
;
2002 (1) BCLR 41)
para 28;
South
African Veterinary Council and Another v Szymanski
2003 (4) SA 42
(SCA)
(2003 (4) BCLR 378)
para 19; Lord Woolf, J
Jowell & A Le Sueur
De Smith's
Judicial Review
6 ed (2006) paras
12-029 et seq.)”
[41]
It is useful to track the authorities relied upon in
Duncan.
[42]
South African Veterinary
Council & Ano v Szymanski
2003 (4) SA
42
(SCA) refers, with approval, to the following passage in
National
Director of Public Prosecutions v Phillips & Ors
2002 (4) SA 60
(W):
"[28] The law does
not protect every expectation but only those which are 'legitimate'.
The requirements for legitimacy of
the expectation, include the
following:
(i)
The representation underlying the expectation must be 'clear,
unambiguous and devoid of relevant qualification':
De
Smith, Woolf and Jowell (op cit
at
425 para 8-055). The requirement is a sensible one. It accords with
the principle of fairness in public administration, fairness
both to
the administration and the subject. It protects public officials
against the risk that their unwitting ambiguous statements
may create
legitimate expectations. It is also not unfair to those who choose to
rely on such statements. It is always open to
them to seek
clarification before they do so, failing which they act at their
peril.
(ii)
The expectation must be reasonable:
Administrator,
Transvaal v Traub (supra
at 756I -
757B);
De Smith, Woolf and Jowell
(supra
at 417 para 8-037).
(iii)
The representation must have been induced by the decision-maker:
De
Smith, Woolf and Jowell (op cit
at
422 para 8-050);
Attorney- General of
Hong Kong v Ng Yuen Shiu
[1983] UKPC 2
;
[1983]
2 All ER 346
(PC) at 350h
-
j.
(iv)
The representation must be one which it was competent and lawful for
the decision-maker to make without which the reliance
cannot be
legitimate:
Hauptfleisch v Caledon
Divisional Council
1963 (4) SA 53
(C) at 59E - G.”
[43]
And in
Attorney-General of Hong Kong
v Ng Yuen Shiu
[1983] UKPC 2
;
[1983] 2 All ER 346
(PC) at 350h -
j
the Privy Council said:
"The expectations
may be based on some statement or undertaking by, or on behalf of,
the public authority which has the duty
of making the decision, if
the authority has, through its officers, acted in any way that would
make it unfair or inconsistent
with good administration for him to be
denied such an inquiry.”
[44]
During argument Mr
Voormolen
conceded that an examination of the "undertaking” recorded
by Murugasen J is necessary to underpin the applicants’
reliance on the doctrine of legitimate expectation. That concession
was, in my view, correctly made. He however contended that
that
examination must be one confined to the judgment alone, without
regard to anything that unfolded before Murugasen J during
argument.
I do not agree.
[45]
In
Administrator, Cape, & Ano v
Ntshwaqela & Ors
1990 (1) SA 705
(A) Nicholas AJA said at 715 F - 716 C:
"
In
Firestone South Africa (Pty) Ltd v
Genticuro AG
1977 (4) SA 298
(A)
Trollip JA made some general observations about the rules for
interpreting a Court's judgment or order. He said (at 304D -
H) that
the basic principles applicable to the construction of documents also
apply to the construction of a Court's judgment or
order: the Court's
intention is to be ascertained primarily from the language of the
judgment or order as construed according to
the usual well-known
rules. As in the case of any document, the judgment or order and the
Court's reasons for giving it must be
read as a whole in order to
ascertain its intention. If on such a reading, the meaning of the
judgment or order is clear and unambiguous,
no extrinsic fact or
evidence is admissible to contradict, vary, qualify, or supplement
it. Indeed, in such a case not even the
Court that gave the judgment
or order can be asked to state what its subjective intention was in
giving it. But if any uncertainty
in meaning does emerge, the
extrinsic circumstances surrounding or leading up to the Court's
granting the judgment or order may
be investigated and regarded in
order to clarify it.
The
position is essentially no different from that where a patent
specification is interpreted. That consists of three main parts:
the
title, the body of the specification and the claims. And the
interpreter must be mindful of the objects of a specification
and its
several parts. The purpose of the claims is to delimit the monopoly
claimed. If the meaning of a claim is clear and unambiguous,
it is
decisive and cannot be restricted by anything else stated in the body
or title of the specification. On the other hand, if
it is ambiguous,
the body or title of the specification must be invoked to ascertain
whether at least a reasonably certain meaning
can be given to the
claim. See
Gentiruco AG v Firestone
SA (Pty) Ltd
1972 (1) SA 589
(A) at
615B - D. Similarly, the order with which a judgment concludes has a
special function: it is the executive part of the judgment
which
defines what the Court requires to be done or not done, so that the
defendant or respondent, or in some cases the world,
may know it.
It may be said that the
order must undoubtedly be read as part of the entire judgment and not
as a separate document, but the Court's
directions must be found in
the order and not elsewhere. If the meaning of an order is clear and
unambiguous, it is decisive, and
cannot be restricted or extended by
anything else stated in the judgment.”
[46]
It will be recalled that the Order made by Murugasen J (see para 4
above) is not qualified in any respect. It was not made
subject to
the "undertaking” or "arrangement” recorded in
paragraph 42 of her judgment nor does it even refer
to that
paragraph. It would seem therefore, in the light of
Gentiruco
and
Ntshwaqela,
and adopting a generous interpretation, that the Order made by
Murugasen J is at odds with paragraph 42 of her judgment.
[47] Given that
discrepancy, was it safe for the applicants to rely upon paragraph
42? Was the "representation underlying the
expectation . clear,
unambiguous and devoid of relevant qualification”? Did the
applicants seek clarification or did they
simply proceed at their
peril?
[48] In the applicants’
replying affidavit the deponent states:
"Furthermore, I
point out that when the judgment was handed down, the applicants’
attorneys wrote to the respondent’s
attorneys bringing the
attention of the relevant paragraphs of the judgment to the
respondent’s attorneys. The respondent’s
attorneys did
nothing to dispel the legitimate expectation that had been created in
the mind of the applicants. They merely said
they would revert once
taking instructions.”
[49]
That statement is misleading in the extreme and the deponent to the
affidavit and its draftsperson are both deserving of censure.
As I
have set out above, the judgment was delivered on 28 March 2011 and
the first time that paragraph 42 thereof was referred
to or a
suggestion that a request for reasons would be forthcoming was made
was in the letter of 24 April 2012; four days short
of a year and a
month later! As the correspondence reveals, a pertinent request for
reasons was only made on, Wednesday, 2 May
2012. The respondent’s
attorneys, on 3 May 2012 indicated that that request had been
referred to the municipality. On, Saturday,
5 May 2012 this
application was threatened, with the papers being delivered on,
Monday, 7 May 2012. I am in full and perfect agreement
with the
submission made by Mr
Broster
,
who appeared for the municipality, that given the pace at which
matters unfolded, that it was eminently reasonable for the
municipality
to focus its attention on the application and furnish
such explanation and reasons as may be necessary when it delivered
its answering
papers.
[50] In my view the
matter demanded further investigation by applicants before resorting
to litigation. The apparent conflict between
Murugasen J’s
Order and paragraph 42 of her judgment, if the applicants wanted to
ignore the clear terms of that Order and
rely on any suggestion of a
legitimate expectation, was clearly indicative of such an approach.
In any event, and given additionally
that the applicants wanted to
rely on a statement, not made to them personally by the author
personally, but instead recorded "third-hand”
so to speak,
called for a cautious approach to be adopted.
[51]
It is for those reasons that I reject Mr
Voormoolen’s
submission that I ought to look solely at the judgment and conclude
that regard must be had to what unfolded before Murugasen J
and the
submissions made to her. The applicants, in reply, have put up a
complete transcript of the argument before Murugasen J.
It is to that
that I now turn.
[52]
As the above extract from the judgment reveals, Mr
Marnewick
appeared for Zedek. Ms
Norman
appeared for the municipality. When the matter was called Mr
Marnewick
raised a point
in limine,
supported by an application handed up from the Bar, which he said
entitled him to argue first. The point related to the non-joinder
by
the municipality of,
inter alia,
the present applicants whom he referred to as "sub-tenants”.
He explained it thus:
".the fact that we
have a number of named persons who are carrying on business there who
have no knowledge of these proceedings
and the point I wish to argue
is that the old law which we had before 1994 where the rights of such
persons were actually ignored
in court. They were ignored. The first
thing they would see would be a warrant of execution, a warrant of
ejectment from the Sheriff
throwing them off the property.”
[53]
During the course of argument it transpired that in addition to
Zedek’s sub-tenants there were 15 families, described
as
"informal residents”, also residing on a portion of the
property. During the course of argument Ms
Norman
said the following:
"M’Lady, I
have had a look at the application and I have had a look in
particular to paragraph 3.1 which deals with these
15 other families
who are not named and I’ve referred to them in passing to my
learned friend as ghosts because they are
not identified. We don’t
know whether in fact there are any 15 other families. But be that as
it may, M’Lady, this
does not affect the case that is before
M’Lady because the respondent, that is the deponent to this
affidavit, if I may draw
M’Lady’s attention to page 13,
paragraph 3.2, he says:
‘
I was under the
mistaken impression that as these informal residents were unlawful
occupants of the subject property, it was not
important to have
mentioned them.’
So clearly these
occupants are not occupying that piece of land through the
respondent. So whatever order M’Lady would grant,
it would not
affect them because they are in, according to the respondent’s
view, they are in unlawful occupation. He did
not grant them
permission. They are not occupying this land through the respondent.
So even if the respondent is evicted, they
will not be affected. And
my instructions are in fact to give an undertaking to M’Lady
that these families, because according
to the respondent, they are in
the process of dealing with the council to get housing. If that is
the case and even if it were
not the case, these 15 families, if the
order is granted, they would be not be evicted until and unless there
has been compliance
with the PIE Act. So it doesn’t change the
situation at all.”
[54]
Ms
Norman
continued her argument by making reference to a then recent decision
of the Supreme Court of Appeal dealing with informal residents
on
commercial property and went on thus:
"But be that as it
may, M’Lady, we say in so far as these people are concerned, if
they are there, my instructions are
to give an undertaking and to
make that recorded by this Court that they will not be removed in any
way other than in terms of
the PIE Act”.
[55]
Ms
Norman’s
reference to the PIE Act is, of course, a reference to the Prevention
of Illegal Eviction from and Unlawful Occupation of Land
Act, 19 of
1998.
[56]
To my mind it is absolutely clear that the undertaking delivered by
Ms
Norman
was restricted to the informal occupation by the, so-called, "15
families” and was by no stretch of the imagination
extended to
include the "sub-tenants”. I have carefully examined the
entire transcript and although in one or more other
instances the
terms "15 families” or "ghosts” or
"subtenants”, when taken out of context,
could be
said to have become confused, the import of the undertaking outlined
above was in no way diluted. To put matters beyond
the pale, towards
the end of her argument, Ms
Norman,
said the following:
"We ask M’Lady
to grant the applicant the orders sought in the Notice of Motion and
in so far as the subtenants, if M’Lady
finds that the
subtenants, they are nameless according to this, M’Lady as a
matter of proper precaution, M’Lady could
incorporate in the
order that the order must be executed as it is sought with the
exclusion of those families, if there are any
families on site”.
[57]
Although Ms
Norman
again used the term "subtenant” her submission is
abundantly clear. She was referring
only
to the 15 families.
[58] And so it is that
context is everything.
[59] The applicants
cannot contend for any legitimate expectation and are accordingly not
entitled to the relief sought.
[60] Having said that I
need to address specifically the applicant’s request for time
to relocate as foreshadowed in sub-paragraph
1 c above. To my mind
everything the applicants sought was underpinned by the legitimate
expectation contended for. As I have found,
that contention was
unfounded. The result is that the applicants find themselves in no
better position than Zedek. When Zedek’s
right of occupation
terminated so did that of the applicants; and when Zedek is compelled
to vacate the property they are similarly
compelled. There is
consequently no basis in law for the applicants to claim to be
allowed a period of time to relocate.
[61] The application is
dismissed with costs, such costs to be borne jointly and severally by
the applicants, the one paying, the
others to be absolved, and are to
include all costs reserved on previous occasions.
Vahed J
CASE DETAILS:
Date of Hearing: 18
October 2012
Date of Judgment: 23
November 2012
For the Applicants: V
Voormolen
Instructed by: Cox Yeats
21 Richefond Circle
Umhlanga Ridge
For the Respondent: J P
Broster
Instructed by : Ndamase
Incorporated
4 Palm Boulevard
Gateway