City of Cape Town and Others v Odekraal Estate (Pty) Limited and Others (8112/04) [2007] ZAWCHC 53 (9 October 2007)

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[2007] ZAWCHC 53
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City of Cape Town and Others v Odekraal Estate (Pty) Limited and Others (8112/04) [2007] ZAWCHC 53 (9 October 2007)

IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO. 8112/04
In
the matter between:
THE
CITY OF CAPE TOWN
1
st
Applicant
THE
SOUTH AFRICAN HERITAGE
RESOURCES
AGENCY
2
nd
Applicant
SOUTH
AFRICAN NATIONAL PARKS
3
rd
Applicant
and
OUDEKRAAL
ESTATES (PTY) LIMITED
1
st
Respondent
THE
MINISTER OF ENVIRONMENTAL
AFFAIRS
AND DEVELOPMENT PLANNING,
WESTERN
CAPE
2
nd
Respondent
THE
REGISTRAR OF DEEDS
3
rd
Respondent
THE
SURVEYOR GENERAL
4
th
Respondent
JUDGMENT:
9/10/2007
VAN
REENEN, J
[1] The applicants are
seeking an order in the following terms against the respondents:
‘
1.1
] Declaring
invalid and unlawful the grant of approval by the then Provincial
Administrator of the Cape of Good Hope on 17 September
1957, in terms
of section 18 of Ordinance 33 of 1934, of the application of Sir
Henry Phillip Price for permission to establish a
township named
Oudekraal, consisting of the erven and public places depicted on Plan
P.A. 16/A/1/36-A, as amended, on the remainder
of the farm Oudekraal
situate within the Cape Division and then held by Deed of Transfer
No. 725 dated 28 January 1954 (‘the decision’).
1.2] Reviewing
and setting aside the decision
2 Pursuant
to the setting aside of the decision:
2.1] Authorising
and directing the Fourth Respondent to cancel the General Plan
approved by the Fourth Respondent on 10 April 1961
under reference
number TP 1781 LD (“the General Plain”) in respect of Portion 7
of the Farm Oudekraal, now known as erf 2802
Camps Bay (‘the
property”) and currently registered under Deed of Transfer No.
T13636/1965 (‘the title deed”).
2.2] Authorising
and directing the Third Respondent:
2.2.1 to
endorse the title deed to record that the General Plan has been
cancelled and that accordingly, no transfer may be effected
of the
erven depicted on the General Plan, formerly known as erven 1-240
Oudekraal Township and Public Places 241-252 and now described
as
erven 2803-3042 and Public Places 3043-3054, Camps Bay.
to
record a caveat in the Third Respondent’s records reflecting the
cancellation of the General Plan and that the owner’s
title deed
in respect of the property is to be similarly endorsed if and when
it is lodged in the Deeds Registry”.
[2] The
Farm Oudekraal, which is located between the suburbs of Camps Bay in
the East and Hout Bay in the West, is bounded by the
Atlantic
coastline and the Twelve Apostles mountain range, originally belonged
to Dirk Gysbert van Reenen van Breda who, during his
lifetime,
disposed of and transferred portions 1 and 2 thereof to new owners.
Upon his death the remainder of the farm Oudekraal
902 was sold and
transferred to Sir Henry Phillip Price (Price) during 1954 who, in
turn, had portion 3 thereof transferred to a
new owner during 1955.
Price applied for and on 17 September 1957 was granted permission by
the Administrator of the Cape of Good
Hope (the Administrator) in
terms of Section 18 of the Townships Ordinance, No. 33 of 1934
(Ordinance 33 of 1934) to establish
a township on the remainder of
the farm Oudekraal. Such approval was for the establishment of a
township which consisted of the
area depicted on a plan PA16/A/1/36-A
(the Oudekraal Township) as well as three extensions numbered 1, 2
and 3 respectively. The
area depicted on the said plan later became
portion 7 and is presently known as erf 2802 Camps Bay (portion 7).
It is situated immediately
adjacent to the suburb of Camps Bay and is
approximately 41.488 hectares in extent. The areas encompassing
Extensions 1, 2 and 3
later became portions 6, 4 and 5 respectively
and Certificates of Registered Title in respect thereof as well as
portion 7 were issued
to Price on 1 November 1961. As Price failed
to timeously comply with the provisions of section 19 of Ordinance 33
of 1934 with
regard to the submission of general plans in respect
thereof the granting of the Administrator’s approval in respect of
portions
4, 5 and 6 is deemed to have lapsed by virtue of the
provisions of subsection 19(2) of the said Ordinance and explains why
the relief
which is being sought in this application has been
restricted to the approval for the establishment of a township on
Portion 7 only.
Oudekraal Estates (Pty) Ltd (the first respondent)
became the registered owner of Portion 7 on 28 May 1965.
[3] Of
the Respondents, only the first respondent actively resisted the
granting of the relief claimed by the Applicants. It is common
cause
that the second Respondent - the Minister of Environmental Affairs
and Development Planning, Western Cape - is the legal successor
to
the erstwhile Administrator for the purpose of the provisions of the
Land Use Planning Ordinance 15 of 1985 (LUPO) and that the
Premier
of the Western Cape, who has not been cited as a respondent in these
proceedings, - is his successor for the purpose of
the provisions
of Ordinance 33 of 1934 and that both have adequately signified their
intention of abiding this court’s judgment.
Also the Registrar of
Deeds (the Third Respondent) has signified his preparedness to abide
the decision of this court. The Surveyor
General (the Fourth
Respondent) has not formally opposed the granting of the relief
claimed but has filed and delivered a report
in terms of the
provisions of
Section 97(1)
of the
Deeds Registries Act, 47 of 1937
in which he drew attention to certain statutory provisions which are
required to be complied with as a pre-condition to the granting
of
the relief claimed in prayer 2.1.
[4] As the decision of
the Administrator which forms the subject-matter of this review had
been taken on 17 September 1957 and this
application was instituted
only on 23 September 2004, the consequences and impact of a delay of
such magnitude on the applicants’
entitlement to the relief claimed
by them, was focused upon intensely in the voluminous papers that
have been placed before this
court and in counsels’ able and
helpful arguments.
[5] Portion
7 has remained undeveloped. When the First Respondent, during August
1996, submitted an Engineering Services Plan compiled
by Wouter
Engelbrecht and Associates in respect of the approved township
thereon to the Acting Chief Executive Officer of the Cape
Metropolitan Council (CMC) for approval, as a prelude to implementing
the development rights that flowed from the approval of the
township,
the first Applicant, at a meeting held on 31 October 1996, resolved
not to approve the said plan as it had been advised
that such rights
had lapsed and informed its agent, the CMC, to advise the first
respondent accordingly. As a result of such refusal
the first
respondent instituted proceedings in this court against the
applicants in which it sought declaratory orders the gravamen
whereof
was that the first respondent’s development rights in respect of
Portion 7 in accordance with general plan TP1781 LD were
of full
force and effect. Davis J (with whom Veldhuizen J concurred)
dismissed the application with costs on the basis that the
Administrator’s extensions of the time limit within which the
general plan had to be submitted was invalid and resulted in the
approval for the establishment of the Oudekraal Township being a
nullity. That decision was reported as
Oudekraal
Estates (Pty) Ltd v The City of Cape Town and Others
2002(6)
SA 573 (C) (the original application). Despite the fact that the
legend to the Engineering Services Plan contains an item
“graves”
and a number of graves were clearly depicted thereon, the existence
of approximately 3 kramats and 53 Muslim graves
were identified on
Portion 7 during an inspection undertaken during December 2001 at the
instance of the third applicant (the third
respondent in the
original application) in preparation for the drafting of answering
affidavits. Although evidence of the presence
of graves on Portion 7
had been placed before the High Court in the original application,
the basis upon which that application was
dismissed, obviated the
need to have considered the impact of the presence thereon of graves
and kramats of religious and cultural
importance to the Muslim
community had on the validity of the Administrator’s decision of
having approved the establishment of
the Oudekraal Township.
[6] On
appeal to the Supreme Court of Appeal the High Court’s decision was
upheld and the appeal dismissed but for different reasons.
Howie P
and Nugent JA took cognisance thereof that the Engineering Services
Plan reflected the presence of 2 kramats and more than
20 graves of
special religious and cultural significance to the Muslim community
and that in particular the kramat of Sayed Jaffer
was one of a number
of graves situated approximately in the centre of an erf destined for
the building of a school (on the facts
before us it appears to be
situated in a public open space); the other kramat was among another
group of graves spread over what
was intended to be residential
erven; a number of other residential erven had graves within their
intended boundaries; and one grave
was directly in the path of a
proposed public road, and on the basis thereof, came to the
conclusion that their presence on Portion
7 constituted a factor that
should properly have been taken into account and evaluated even on
pre-constitutional principles in the
decision to have approved the
establishment of the Oudekraal Township. The learned Judges of
Appeal, on the evidence before them,
came to the conclusion that the
Administrator had either failed to take account of such material
information because it had not been
placed before him or, in the
unlikely event that it had been, wrongly failed to have regard
thereto but favoured the first-mentioned
as the more likely. The
Supreme Court of Appeal, on the basis thereof, concluded that such
failure rendered the Administrator’s
decision unlawful and invalid
from the outset and, in either event, ultra vires because it
permitted subdivision and land use in
criminal disregard for the
graves and kramats because it would be impossible to avoid their
desecration if the township had to be
implemented as approved. The
court in conclusion found that it followed inexorably from the
finding that the Administrator’s approval
was invalid and that the
first respondent was not entitled to an order that its development
rights in respect of the Oudekraal Township
were of full force and
effect or that it was entitled to the other relief which it found
were no more than precursors thereto. That
judgment is reported as
Oudekraal
Estates (Pty) Ltd v The City of Cape Town and Others
2004(6)
SA 222 SCA (the judgment in the appeal).
[7] Mr. Binns-Ward SC
(who with Mr. Farlam and Ms Pillay appeared for the first
Respondent), correctly in my view, did not in these
proceedings
endeavour to assail the correctness of the Supreme Court of Appeal’s
findings as regards the invalidity of the Administrator’s
decision
to have approved the establishment of the Oudekraal Township. That
stance is understandable as further investigations after
the judgment
of the Supreme Court of Appeal had been handed down have brought to
light that there are a greater number of burial
sites on Portion 7
than had been reflected in the papers in the original application.
On the facts before this court 5 graves occur
on areas intended for
the building of roads in the proposed township; 4 on an erf reserved
as a site for a school; 11, including
the kramat of Sayed Ahmed
Mahdika, occur in areas intended to become residential erven and 37
graves, including the kramat of Sayed
Jaffer, are situated in an area
intended as a public open space for the purposes of the township.
First respondent’s counsel,
on the strength of the Supreme Court of
Appeal’s finding of invalidity, contended that the relief claimed
by the applicants in
prayer 1.1 of the Notice of Motion is, strictly
speaking, superfluous and I am in full agreement therewith.
[8] In
view of the acceptance that the Administrator’s decision to have
permitted the development of the Oudekraal Township on Portion
7 was
an invalid administrative act from its inception, its review and
setting aside as claimed in prayer 1.2 of the Notice of Motion,
should follow unless the granting thereof is precluded by virtue of
the operation of the “delay rule”. The reviewing and setting
aside or the correcting of an administrative decision constitutes one
of a number of discretionary remedies in which courts, in the
exercise of their judicial discretion, may withhold relief on the
basis of, inter alia, delay despite substantive grounds for the
granting thereof having been made out (See
National
Industrial Council for Iron, Steel, Engineering and Metallurgical
Industry v Photocircuit SA (Pty) Ltd and Others
1993(2) SA 245 (C) at 252 H-I). The delay rule in terms whereof
review proceedings must be instituted within a reasonable time is
fundamentally procedural in character (See
Scott
and Others v Hanekom and Others
1980(3)
SA 1182 (C) at 1193 C-D) and was evolved by courts over time in the
exercise of their inherent power to regulate and control
their own
procedures, as prior to the advent of the
Promotion of Administrative
Justice Act, No. 3 of 2000
, no prescribed time-limits existed within
which review proceedings had to be initiated. The raisons d’etre
for its introduction
were an acknowledgement of the inherent
potential of prejudice to interested parties that may result from an
unreasonable time-lapse
as well as the public interest element in the
finality of administrative decisions and acts (See
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005(2) SA 302(SCA) at para 46;
Gqwetha
v Transkei Development Corporation Ltd and Others
2006(2) SA 603(SCA) at para 22). As is apparent from the fact that
it has been held in
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit Kaapstad
1978(1)
SA 13(A) at 42 (C) that proof of prejudice is not a necessary
precondition for the refusal to entertain review proceedings
because
of undue delay, the elevation of the raisons d’etre for the delay
rule as constituting requirements thereof, should be
guarded against.
[9] In
the context of applications for review it is now generally accepted
that an application of the delay rule requires that consideration
be
given to firstly, whether there has been an unreasonable delay with
the institution of review proceedings and if so, secondly,
whether
such delay should be condoned (See
The
Associated Institutions Pension Fund
case
(supra) at paragraph 47). The first enquiry entails a determination
whether, in all the circumstances of a particular case,
the delay was
reasonable and implies the making of a value judgment and not the
exercising of a judicial discretion and comparisons
with delays which
in other cases have been held to be unreasonable serve no useful
purpose See
Seksokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie
1986(2)
SA 57 (A) at 86 G). The second enquiry, if the need for it arises,
entails the exercise of a discretion on the basis of all
the relevant
circumstances of a particular case (See the
Associated
Institutions Pension Fund
case (supra) at paragraph 48). The need to enter into the second
enquiry only arises if the first enquiry results in a conclusion
that
the delay was unreasonably long and in such an event the court is
obliged
to consider whether it should be condoned or not (See
Mamabolo
v Rustenburg Regional Local Council
2001(1) SA 135 (SCA) at paragraph 11 and the other cases cited
there).
[10]Because
of the conclusion arrived at later in this judgment as regards the
question whether the applicants individually delayed
unreasonably in
connection with the institution of the present proceedings, it is
unnecessary to resolve the much debated and vexed
issue whether the
commencement of the delay should be assessed with reference to their
direct or imputed knowledge of the existence
of the Administrator’s
decision or their knowledge of the grounds on which the validity
thereof could be assailed. What however,
does require to be
considered is the submission of Mr. Seligson (SC) (who with Mr.
Muller (SC) and Mr. Edmunds appeared for the First
Applicant) that
the delay rule, as a manifestation of the common law, should be
developed in terms of sections 39(2) and 173 of the
Constitution of
the Republic of South Africa, 1996 in order to promote the spirit,
purport and objects of the Bill of Rights and
also in the interests
of justice. The only reported case in which, to the best of my
knowledge, the constitutionality of the delay
rule was challenged was
Bellochio
Trust Trustees v Engelbrecht NO and Another
2002(3) SA 519 (C) in which Hlophe JP concluded that it does not
entail a blanket restriction of access to courts and therefore
does
not offend against the provisions of section 34 of the Constitution
and that, in any event, it constituted a justifiable limitation
of
such right in terms of section 36(1) of the Constitution. Being a
rule of procedure, the only manner in which the delay rule
could
possibly impact upon the normative values of the Constitution, is in
the consequences of its application. As is apparent from
what has
been set out above, both legs of the enquiry that needs to be
undertaken in terms of the delay rule, require a consideration
of all
relevant facts and circumstances. In the first place, to enable the
court to make a value judgment as regards the reasonableness
or
otherwise of the time-lapse and in the second place, to enable it to
exercise a judicial discretion as regards whether any unreasonable
delay should be condoned or not. That discretion is wide of ambit
and enables courts to have regard to a “number of incommensurable
and disparate features in coming to its decision” (per E.M.
Grosskopf JA in
Knox
D’Arcy Ltd and Others v Jamieson and Others
1996(4)
SA 348 (A) at 361 I) and encompasses the criteria to which, in terms
the Constitution, regard should be had in developing
the common law.
As, in my view, the application of the delay rule is sufficiently
flexible and adaptable to be capable of accommodating
and being
applied in a manner that promotes the spirit, purport and the objects
of the Bill of Rights and take the interests of justice
into account,
there is no need to develop it (Cf
K
v Minister of Safety and Security
2005(6)
SA 419 (CC) at paragraph 23). That conclusion not only makes it
unnecessary to consider the submission based on the conclusion
reached in
ex
parte
Minister
of Safety and Security:
In re
S
v Walters
2002(4) SA 613 (CC) at 646 G that this court is precluded from
developing the common law, but appears to be consonant with the
approach
of Plaskett J in
Ntame
v MEC for Social Development, Eastern Cape, and two similar cases
2005(6)
SA 248 (ECD) at paragraphs 24 – 29. Bearing in mind that the
Constitutional Court has consistently held that courts in
promoting
the objectives of section 39(2) are under an obligation to develop
the common law where it is deficient (See
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service and Another; First National Bank of SA
Ltd t/a
Wesbank v Minister of Finance
2002(4) SA 768 (CC)), it is not insignificant that the Supreme Court
of Appeal in the most recent reported cases that dealt with
the delay
rule (See
Mamabolo
v Rustenburg Regional Local Council (supra); Lion Match Co Ltd v
Paper Printing Wood & Allied Workers Union and Others
2001(4) SA 149(SCA);
Associated
Institutions Pension Fund
case
(supra);
and
Gqwetha
v Transkei Development Corporation Ltd and Other
(supra),
did not consider it necessary for it to be developed: on the
contrary, the rule was applied uncritically.
[11]In addressing the
question whether their clients have delayed unreasonably before
instituting the present proceedings Mr Seligson,
Mr Breitenbach (who
with Ms Bawa) appeared for the second applicant, and Mr Petersen SC
(who with Mr Fagan) appeared for the third
applicant, divided the 47
year period between 17 September 1957 and 23 September 2004 into
three segments: from 17 September
1957 when the impugned decision
was taken by the Administrator, to 29 August 1996 when the first
Respondent submitted the Engineering
Services Plan to the CMC for
approval (the first period); from 29 August 1996 to 28 May 2004 when
the Supreme Court of Appeal handed
down its judgment in the original
proceedings (the second period) and from 28 May 2004 to 23 September
2004 when the present proceedings
were instituted (the third period).
I am in full agreement
with the submissions of counsel for the Applicants that as their
clients are different and distinct organs
of state within the
definition thereof in section 239 of the Constitution, the question
whether there was an unreasonable delay should
be assessed with
reference to the conduct of each of the applicants independently in
respect of each of the aforementioned periods
and that the granting
of the relief claimed should follow upon a finding that any one of
them had not delayed unreasonably during
the whole of that period
before instituting the present proceedings.
[12]To
the extent that the absence or inadequacy of an explanation for delay
in an applicant’s founding papers may be a factor in
the assessment
of whether to consider the merits of a review application (See
Lion
Match Co Ltd v Paper Printing Wood and Allied Workers Union and
Others
(supra) at 158 C – D;
Scott
and Others v Hanekom and Others
(supra) at 1192 E – 1193 C);
South
African Transport Services v Chairman, Local Transportation Board,
Cape Town, and Others
1988(1)
SA 665 (C) at 668 F;
Jeffery
v President, South African Medical and Dental Council
1987(1) SA 387 (C) at 390 D), I agree with the submission of the
first Respondent’s counsel that the averments thereanent made
on
behalf of the first applicant in its founding affidavit, are not
compatible with the facts. As pointed out by the applicants’
counsel their clients’ explanation of the delay is not limited to
only a single paragraph in the founding affidavits of Richard
Keith
Wootton (Wootton) but is also dealt with by him in paragraphs 130 to
139; by the first respondent in paragraphs 84 to 92 of
its answering
affidavit; and also amplified by Wootton in paragraphs 8 to 42 of his
replying affidavit. What has been pointed out
as important by the
second applicant’s counsel is that the first respondent failed to
avail itself of the opportunity of filing
further affidavits in
amplification of its case as regards the inadequacy or implausibility
of the explanation for the delay (See
Scott
and Others v Hanekom and Others
(supra) at 193 E –F) as one would have expected if it had been
prejudiced thereby. In my view the applicants, as is to be expected
in the light of the self-evident magnitude of the delay, explained
their delay for the initiation of the present proceedings adequately
and timeously.
[13]The
first respondent’s counsel during argument, put forward a theory to
the effect that it cannot be excluded that there is
a possibility
that – as happened in the case of the old Muslim Cemetery in
Green Point as well as the office and retail site
in Prestwich Street
in Green Point - the Administrator and perhaps the members of the
Townships Board also, could have thought
when the development of the
Oudekraal Township was considered, that the human remains on Portion
7 could be exhumed and reinterred
and the graves and kramats
relocated without contravening any laws or offending any religious
practises or cultural sensitivities.
Because of an absence of any
reference to graves and kramats on plan PA 16/A/1/33-A (the plan
that accompanied the application)
and in the conditions of approval,
that theory, in my view, is so far-fetched that it can safely be
rejected as improbable. In the
light of the further documentation
which has been placed before this court, the only reasonable
inference is that all concerned with
the approval of the Oudekraal
Township were ignorant of the presence of the Muslim graves and
kramats on Portion 7. I fully agree
with the submission of the
first- and third applicants’ counsel that - as happened in the
case of the kramat of Tuan Mobeen on
erf 448 (later erf 474) - if
cognisance had been taken of the graves and kramats on Portion 7 at
the time, they would have been
recognised not only in the township
layout but also in the conditions of approval. That conclusion is
consistent with the stance
adopted by the first respondent in this
application, namely, that the basis upon which the Supreme Court of
Appeal found that the
Administrator’s decision was invalid was “not
an obvious review ground”. Such ignorance could, however, not have
persisted
after the first respondent had instructed Wouter
Engelbrecht and Associates to prepare the Engineering Services Plan
and submitted
it for approval to the CMC (the successor to the Cape
Divisional Council) within whose area of jurisdiction Portion 7 was
situated
as agent for the then City of Cape Town Municipality (who
until 4 December 2002 was the predecessor of the first applicant).
The
first applicant has from that date assumed all the rights and
obligations of the CMC as well as the City of Cape Town Municipality
in terms of the City of Cape Town Establishment Notice (PN 472 of 22
September 2000) as read with sections 12 and 14 of the Local
Government : Municipal Structures Act, No. 117 of 1998. It appears
to be common cause that the first applicant and the CMC independently
sought the advice of counsel when they were called upon to approve
the Engineering Services Plan. The first applicant, who required
to
be advised as regards the “validity of the development rights at
Oudekraal”, received advice to the effect that the approval
had
lapsed because the extensions granted by the Administrator for the
lodging of the general plan with the fourth respondent and
the third
respondent, were unlawful and that it was not only entitled to, but
legally precluded, from approving it. It is accentuated
that the
advice was that the approval had
lapsed
and not that it was
invalid
as was repeatedly and misguidedly stated in the first respondent’s
counsels’ heads of argument. The CMC was similarly advised
by its
counsel. The first applicant’s counsel conceded in their heads of
argument that they and their clients “were aware of
some kramats
and graves on Portion 7” but submitted that in the light of the
conclusion that the approval had lapsed it would be
artificial and
unrealistic to conclude that consideration should have been given by
the first applicant and the CMC to other grounds
on which the
validity of the Administrator’s approval could possibly be set
aside. That they and their client as well as the CMC
must have been
aware of the presence of graves and kramats is apparent from the fact
that a number of graves were demarcated and
clearly identified as
such on the Engineering Services Plan which was the subject-matter of
the opinions that were being sought at
the time. As the said plan
received the attention of not only the CMC’s Acting Executive
Officer and the Engineering Services
Committee, the Council of the
first applicant’s predecessor, as well as their experienced
professional advisors, I incline to the
view that the first
applicant’s predecessors, at decisionmaking- and executive levels,
were in possession of sufficient facts from
which it could have been
inferred that the Administrator’s approval was invalid. I say so
because it would have been obvious from
even a cursory perusal
thereof that the township as approved – as was found by the Supreme
Court of Appeal (at paragraph 35) of
its judgment, “permitted
subdivisions and land use in criminal disregard for the graves and
the Kramats”. Any lack of knowledge
on the part of the first
applicant’s predecessors of the religious and cultural significance
of the graves indicated on the Engineering
Services Plan could not
have persisted beyond the widely publicised and well attended mass
rally against any development of the Oudekraal
Township attended by
approximately 20 000 Muslims and others, held just below the kramat
of Shayk Mobeen in close proximity of Portion
7. Despite having been
so alerted, and accepting that the first applicant’s predecessors
had not been in possession of documentation
or information that
referred to or showed the presence of graves and kramats on Portion 7
or whether they had been taken into account
by the Administrator in
approving the Oudekraal Township, not even an iota of evidence has
been produced of the taking of even the
most self-evident steps such
as to have compared the Engineering Services Plan against plan PA
16/A/1/36-A which had been filed in
the offices of the fourth
respondent and the third respondent. Such failure must be assessed
in the light thereof that Brand JA
in the
Associated
Institutions Pension Fund
case
(supra) at paragraphs 50 and 51, warned that applicants are not
entitled to take a supine attitude but should “… take all
reasonable steps available to them to investigate the reviewability
of administrative decisions adversely affecting them as soon
as they
are aware of the decision.” Whilst the validity of the
Administrator’s decision might not have been of concern to the
first applicant’s predecessors prior thereto, the situation changed
when they were required to consider the approval of the Engineering
Services Plan. The first applicant’s predecessors, having been
advised that the Administrator’s decision was invalid, adopted
a
supine attitude as they had been advised to take no steps that could
be perceived to be hostile to the interests of the owner of
Portion 7
or the township developer. I agree with the submission of the first
respondent’s counsel that such advice amounted to
an injunction not
to take any positive steps and that it and its predecessor,
deliberately chose to ignore the approval of the Oudekraal
Township
on the basis thereof. Accordingly the submission that the first
applicant and its predecessors had until February 2002
– when the
point was identified in the course of the preparation of the third
applicant’s answering papers in the original application
– been
unaware of the facts on which the Supreme Court of Appeal had found
the Administrator’s approval to be unlawful and
invalid, is not
accurate as such knowledge must be imputed to them as from the time
they could reasonably have come into possession
thereof namely at the
end of 1996.
[14] The
first applicant and its predecessors, despite having had either
actual or imputed knowledge of the existence of facts on
which the
Administrator’s decision could have been reviewed and set aside,
deliberately refrained from taking any positive steps
to have it
reviewed and set aside, but chose to raise such invalidity for the
first time by means of a collateral challenge in the
original
proceedings instituted by the first respondent against the applicants
on 31 August 2001 rather than taking steps to have
it reviewed. They
did so in circumstances where a challenge of that nature had not
previously been recognised in our case law other
than, where on the
basis of the principles underlying the rule of law, a public
authority sought to force a subject to comply with
an unlawful
administrative act in proceedings of a coercive nature (cf
The
Photocircuit case
(supra) at 252J – 253 E).
[15]The
other reasons advanced during argument for not having instituted
review proceedings, namely, that the first respondent, on
a number of
occasions, indicated that it intended approaching this court for
relief; that the first respondent made several attempts
to resolve
the dispute between itself and the first applicant and its
predecessors on a political level and that the Supreme Court
of
Appeal had fundamentally developed the law in the field of
permissible collateral challenge, in my view, lack any merit. The
third applicant having established the presence of graves and kramats
on Portion 7 during December 2001 does not appear to have had
any
difficulty in grasping the consequences of their presence on the
validity of the Administrator’s initial decision and to gather
the
facts on the basis whereof the validity thereof was collaterally
challenged in papers compiled during February 2002. Bearing
in mind
that the applicants succeeded in instituting the present proceedings
within four months of the dismissal of the first respondent’s
appeal by the Supreme Court of Appeal, the first applicant, by having
delayed from the end of 1996 before instituting the present
proceedings, in my view, delayed unreasonably during the second
period.
[16]There
is no evidence that the second applicant, who was established only on
1 April 2000 by the National Heritage Resources Act
25 of 1999 (and
its predecessor the National Monuments Council (NMC)), and the third
applicant had or should have had any knowledge
of the presence of
graves and kramats on Portion 7 prior to their discovery during the
inspection undertaken on behalf of the first
applicant during
December 2001 and raised subsequently when answering papers were
prepared in the original proceedings during February
2002. The third
applicant, instead of instituting separate proceedings to have the
Administrator’s approval of the Oudekraal Township
reviewed and set
aside, contented itself with a collateral challenge of the validity
of the Administrator’s approval thereof and
the first- and second
applicants aligned themselves therewith both in the original
proceedings as well as in the Supreme Court of
Appeal. They did so
despite the absence of any supporting legal precedent. The
self-evidently long time-lapse since the Administrator’s
approval,
and its function in the application of the delay rule, appears to be
the obvious reason for why that modus operandi had
been followed.
The Supreme Court of Appeal, unlike the court a quo, found that the
reliance on a collateral challenge of the Administrator’s
approval
was misplaced because even an invalid administrative act is capable
of producing legally valid consequences for as long
as it is not set
aside. It for that reason held that the first applicant and its
predecessors, as public authorities, could not
have refused approval
of the Services Engineering Plan by simply ignoring the approval of
the Oudekraal Township on the basis of
their perception of the
invalidity thereof but were obliged to have approached the court to
have it reviewed and set aside. By the
time the present proceedings,
which had been foreshadowed by the Supreme Court of Appeal, were
instituted on 23 September 2004 a
period of approximately 30 months
had elapsed from the time the facts upon which the invalidity of the
Administrator’s approval
was based came to light. Having regard to
the factors that have in the past been taken into account by courts
in the assessment
of the reasonableness, or otherwise, of delays
(See eg
Radebe
v Government of the Republic of South Africa and Others
1995(3)
SA 787(N) at 799 B – F;
Liberty
Life Association of Africa v Kachelhoffer NO and Others
2001(3) SA 1094 (C) at 1112 G – 1113 A;
Camps
Bay Ratepayers and Residents Association and Others v Minister of
Planning, Culture and Administration, Western Cape, and
Others
2001(4)
SA 294 C at 306 I – 307 B) and again using the fact that it took
the applicants no longer than four months from the date
of the
Supreme Court of Appeal’s judgment to launch the present
proceedings, I incline to the view that the second- and third
applicants
(and also the first applicant) delayed for an
unreasonably long time during the latter part of the second period
before instituting
the present proceedings. The conclusion reached
in this and in the immediately preceding paragraphs makes it
unnecessary to consider
counsels’ painfully detailed, but
nevertheless helpful, submissions about whether any of the applicants
delayed unreasonably during
the first and third periods.
[17]Having
concluded that the applicants individually delayed unreasonably
before instituting the present proceedings, I am obliged
to consider
whether this court, in the exercise of its discretion, should condone
what has been found to have been an unreasonable
delay.
[18]The
fact that a court’s discretion to condone an unreasonable delay in
the institution or the prosecution of review proceedings
is a wide
one in which all the relevant circumstances are carefully balanced,
does not in any way detract from its being a judicial
discretion that
has “to be exercised on judicial grounds, not capriciously but for
substantial reasons” (See:
Rex
v Zackay
1945 AD 505
at 513). The Supreme Court of Appeal in paragraph 46 of
its judgment provided some guidance as to what the different factors
are
that could in the instant case have a bearing on the exercise by
the court of its discretion. I am in agreement with the submission
of Mr Binns-Ward that the reference to “discretion” and “the
balancing of all the relevant circumstances” in the said paragraph
strongly indicate that that court was contemplating the exercising of
a discretion in relation to the second leg of the delay rule.
Such
circumstances, without pretending that it is a closed list, are the
long period of time that has elapsed since the Administrator
granted
the impugned approval but with the caveat that it is not a decisive
consideration; the need for finality of administrative
decisions and
the exercising of administrative functions; the extent to which the
first respondent or third parties might have acted
in reliance on the
impugned decision and the consequences to the public at large and
future generations of an invalid decision being
allowed to stand.
Those guidelines, some of which, to a certain extent, are either
interrelated or overlapping, require a comparison
of the possible
impact upon the interests of all persons who may be affected should
the impugned approval be reviewed and set aside
as well as the
obverse. Should the administrator’s said approval not be reviewed
and set aside in this application, his admittedly
invalid decision
will become immune from attack and will in a sense be “validated”
by virtue of the court’s decision (See:
Harnaker
v Minister of the Interior
1965(1) SA 372 (C) at 381 C;
Mamabolo
v Rustenburg Regional Local Council
(supra) at paragraph 13;
Lion
Match Co Ltd v Paper Printing Wood and Allied Workers Union and
Others
(supra) at paragraph 32) so that the respondent will be entitled to
develop the Oudekraal Township as approved as long as its
implementation
does not conflict with other statutory or regulatory
restrictions. That conclusion obviates the need to resolve the
debate between
counsel whether such validation is a consequence of an
undue delay or the court’s intervention. In the circumstances it
is not
surprising that the applicants’ counsel in advancing grounds
why this court should exercise its discretion of condoning the
unreasonable
delay in their clients’ favour, in addition to relying
on an absence of significant prejudice in the event of the
application succeeding,
focused intensely upon the consequences a
refusal of the application would have upon firstly, the right to
freedom of religion of
members of the Muslim community, in that their
ability to practise their culture and exercise their religious
beliefs by having access
to and visiting the graves and kramats on
Portion 7, will be infringed and secondly, the interest of members of
the general public
to have it preserved as a “heritage place” of
“high significance”; a cultural landscape and an area of
environmental importance.
Also the Supreme Court of Appeal seems to
have considered that infringements of the constitutional rights to
religion and culture
of the Muslim community would occur when it at
248 E – F (paragraph 41) said the following:
“
Even
if the township had been lawfully established we have little doubt
that the development of the land in accordance with the existing
general plan is constrained by the protection that is afforded to
culture and religious
practices
by section 31 of The Bill of Rights.”
[19]From
a historical as well as an environmental point of view, Portion 7 and
the land immediately adjacent thereto is unique. On
the uncontested
evidence of Antonia Malan, an archaeologist and heritage
practitioner, the graves and kramats came into being during
the 18
th
and early 19
th
century and precede the granting of private ownership in 1836 over
farm Oudekraal 902. It appears from the undisputed evidence of
suitably qualified experts placed before this court, that the graves
and kramats in the Oudekraal area form an integral part of the
cultural history of the Cape Muslim community which owes its
existence to predominantly enforced Afro-Asian emigration to the Cape
during the 17
th-
to
the early years of the 19
th
century and consisted mainly of political prisoners, slaves and
captured or exiled religious leaders – mostly learned and highly
literate – from the mainland of India, Java, Batavia and Indonesia.
The presence of the graves and kramats in the Oudekraal area
is
attributable to the fact that the graves of Cape Muslims were often
established in isolated areas on the lower slopes of mountains
near
streams. The reason for that appears to have been that political
prisoners from the Asian colonies of the Dutch were banished
to
isolated parts of the Cape Colony; slaves were not permitted to be
buried in normal burial grounds; escaped slaves, for obvious
reasons,
went to live in isolated areas of the Table Mountain range and were
buried where they had lived and many Shaykhs sought
the solitude of
the mountain slopes for spiritual growth and seclusion and when they
passed away, their religious adherents continued
to visit their
graves and when they in turn passed away were buried in close
proximity. That explains why many graves are found
in the vicinity
of the kramat of Sayed Jaffer. The Muslim belief is that the mercy
of God is continually present at the burial places
of persons
considered to have been righteous and accordingly a major
socio-religious tradition has developed around such shrines.
It is
common for Muslims to visit such shrines regularly in order to recite
litanies there and to seek God’s blessings because
it is believed
that the obtaining of peace of mind and prayers are facilitated in
such sanctified places. As pilgrimage to the Prophet
Mohamed’s
grave is a central precept of the Muslim faith, those about to go on
pilgrimage to Mecca visit the burial sites in the
Oudekraal area
accompanied by family members and friends in order to greet them and
seek God’s blessings in the belief that the
departed will intercede
with God on their behalf. The poor, unable to afford travelling to
Mecca, would visit the kramats of those
who are considered to have
been pious and friends of God as a surrogate for a pilgrimage to
Mecca. The aforegoing explains why such
graves and kramats were
venerated in the past and continue to be so. All that remains today
of the cultural origins of the Muslim
community are its religion,
some foreign words and the graves and the kramats. The visiting of
the latter is considered as culturally
precious and is deeply rooted
in the Cape Muslim’s religion and unwritten history. There are
three kramats on Portion 7. Of those
the most important one is that
of Sayed Jaffer which forms part of the holy circle of Muslim graves
and includes kramats extending
from the top of Signal Hill across the
Peninsula to Faure and ending on Robben Island. The other two
kramats are those of Sayed
Adnaan Khashoggi Ibre’ Ali Rab Ra and
Sayed Ahmad Mahdi Ra. From a religious point of view the kramats of
Sayed Jaffer and that
of Tuan Mobeen on the erstwhile extension 2
(now portion 5) are the second most important kramats in the Western
Cape and are extremely
popular because of their close proximity to
the City Bowl and the Bo-Kaap. It is estimated that as many as
fifteen thousand people,
including two thousand pilgrims to Mecca
currently, visit the graves and kramats on Portion 7 every year.
According to oral tradition
and living memory the graves and kramats
on Portion 7 have been visited over a considerable period of time.
That is corroborated
by the observations of Brian James Mellon
(Mellon) a professional landsurveyer, who, on the basis of his
first-hand knowledge of
the topography of Portion 7 and the evidence
of footpaths depicted on aerial photographs taken in 1945, 1951, 1986
respectively,
has concluded that they are still being used to access
the graves and kramats situated thereon. As approximately a third of
the
area of Portion 7 is inaccessible due to heavy infestation by
impenetrable alien vegetation it cannot be assumed that the 53
ordinary
graves that have been located thereon are the only ones and
Mellon anticipates that more graves would be visible if the terrain
were to be cleared. Malan has classified
Portion 7 as a heritage
place of high significance for the purposes of preparing a Heritage
Resources Management Plan for the Table
Mountain National Park.
Malan and Mowlam Yousoof Karaan (Karaan) – head of the fatwa
committee of the Muslim Judicial Council
(MJC) – consider the
Oudekraal area as an informal burial ground and that it, as well as
the area around the kramat of Tuan Mobeen
on portion 5, known as
Belsfontein to observant Muslims, are regarded as holy or sacred.
The first respondent’s denial of the
correctness of that view,
however, is not supported by any expert opinion or evidence. In the
absence thereof there is no basis
on which the overwhelming expert
evidence presented thereanent by the applicants can be rejected.
Seen against the aforementioned
factual back-drop, the egregiousness
of the Administrator’s decision to have approved the establishment
of Oudekraal Township without
having taken the presence of the graves
and kramats thereon into account and, other than a formal technically
worded notice hidden
between a number of others in the Provincial
Gazette and in two local newspapers, without any consultation with or
involvement on
the part of members of the Muslim community or the
leaders of bodies that represented them in religious and cultural
matters, becomes
glaringly manifest. It is in the light of the
aforegoing facts that the applicants’ counsel contended that in the
event of the
application failing and the first respondent
implementing the township as approved, the constitutionally
guaranteed rights under
section 15(1) and 32(1) of the Constitution
of all members of the Muslim community of the Cape to freedom of
religion as well as
the right to enjoy their culture and practise
their religion would be infringed.
[20]In addition to the
cultural and religious significance of Portion 7 due to the presence
thereon of graves and kramats as well
as footpaths providing access
thereto, it is not open to doubt that the Oudekraal area, in its
undeveloped state, is of inestimable
scenic value and constitutes a
national asset which not only adds to the overall tourist experience
of the Cape Peninsula, but also
to the recreational enjoyment and
pursuits of Capetonians generally. The Oudekraal area, including
Portion 7, adjoins the Table
Mountain National Park which is part of
the “Cape Floral Region” which is listed as a World Heritage Site
and is universally
considered to be of “outstanding universal
significance to humanity”. It is regarded as highly
conservation-worthy in terms
of the consolidation strategy of the
conservation partnership between the World Wildlife Fund for Nature
of South Africa, the Table
Mountain Fund, the Ukuva Firestop
Campaign, the first applicant and the Park Forum of the Table
Mountain National Park. It geographically
constitutes an important
missing component to nature conservation in the Cape Peninsula.
Norman Guy Palmer, an ecologist, has expressed
the view that all
humanity would be poorer if township development thereon is to be
allowed. Portion 7, which is situated in the
transitional zone
between mountain fynbos and Renosterbos, a habitat poorly represented
in other parts of the Cape Peninsula and
is recognised as being one
of the most threatened eco-systems in the whole of South Africa, is
considered to be very important from
a biodiversity point of view.
It furthermore is one of the few remaining instances where the
connection between the high altitude
mountain zones and the coastline
has been preserved and, because of the vast variety of habitats
supported by it, is of equal if
not greater botanical importance than
the land currently situated within the Table Mountain Natural Park.
It harbours endangered
species such as the vulnerable and rare
“Scarce Mountain Copper” butterfly as well as a rare oil
colleting bee which is rare
or extinct in large parts of the Cape
Peninsula and typically occurs in Renosterveld. Also present thereon
is a dense population
of Grey tree pincushions which support a
population of Cape Sugarbirds. It appears to be beyond dispute that
urban development on
Portion 7 would bring about a significant and
possibly irretrievable loss of biodiversity to the possible prejudice
of future generations.
The first respondent generally did not take
issue with the proposition that Portion 7 is worthy of conservation
from an environmental
point of view but it did take issue with the
proposition that adverse effects are likely to result from urban
activities in coastal
developments on adjacent marine environments.
The resolution of that factual conflict is not material to the
outcome of this application.
The statement of Dumisani Blessing
Sibayi, Acting Chief Executive Officer of the second applicant, that
the conservation of the
Oudekraal area is critical to the
conservation of Table Mountain in its entirety and that its
development “would severely devalue
Table Mountain as a heritage
resource and its potential to be conserved for public benefit in
perpetuity” has, significantly, not
been placed in issue. The
applicants’ counsel, in the light of the facts enumerated in this
paragraph, contended that in the event
of the application being
refused and the first respondent – as it is in law would be
entitled to do – developing the Oudekraal
township as approved, the
constitutional rights of everyone to an environment that is not
harmful to their well-being and also to
have it protected for the
benefit of present as well as future generations as guaranteed by
Section 24 of the Constitution, will
be infringed.
[21]The first
respondent’s counsel, in countering the applicants’ counsels’
submissions on the constitutional infringements
that would occur
should the application fail and the township be developed as
approved, inter alia, contended that the provisions
of the
Constitution cannot be used as a tool to undo rights that have vested
or were acquired in the 1950’s and 1960’s as it
has repeatedly
been held that the Constitution does not find retrospective
application and that the Bill of Rights does not apply
to events that
preceded its commencement. That submission appears to lose sight of
the fact that this is not an instance where the
relevant planning
legislation or the Administrator’s decision is being tested for
invalidity against the provisions of the Constitution.
In this
matter the possible infringement of constitutional rights arise in
the context of the impact an infringement of such rights
ought have
on the exercise by this court of its discretion whether to condone
the undue delay on the part of the applicants in instituting
the
present proceedings if the development of the township as approved
were to proceed.
[22]The
first respondent’s counsel dealt with the applicants’ arguments
relating to the infringement of constitutional rights
on two levels.
The first was to question the permissibility of raising the issue of
religious freedom in the context of the implementation
of “facially
neutral” planning provisions and decisions. The second was by
referring in great detail to the existence of procedures
and
legislative- and regulatory measures that would be more than adequate
to secure and protect the religious and cultural rights
of the Muslim
community as well as the protection of the environmental well-being
of the public.
[23]I
am in agreement with the first applicants’ counsels’ submissions
that the correctness of the categorization of Ordinance
33 of 1934 as
a “facially neutral” planning provision is questionable because
section 3(b)(i) thereof provided for the need
of having regard to
policy considerations such as whether, in all the circumstances, it
was desirable that a township be established.
The submission that
the extent to which religious freedom can permissibly be limited -
in the context of generally applicable
planning provisions which
inadvertedly i.e. without any intention of prejudicing a particular
religion; in the absence of coercion
violating any religious
beliefs; and without penalising engagement in religious activities
- is difficult and permits of no ready
answer, was effectively
countered by first applicant’s counsel by having referred to the
judgment of the Canadian Supreme Court
in
Syndicat
Northcrest v Anselem
2004(2) SCR 551, as an illustration of the interface between
facially neutral planning legislation and the right to religion. The
majority of the judges in that case held that by-laws which, in the
interests of achieving a harmonious external appearance of a
block of
flats and the use as fire-escapes of the balconies of individual
flats prohibited “constructions of any kind whatsoever”
thereon,
infringed the religious beliefs of occupiers who for the duration of
the nine day period of a Jewish religious festival
built temporary
structures on the balconies of their flats. I am in agreement with
the submission of the first applicant’s counsel
that the decision
of the United States Supreme Court in
Lyng
v
Northwest
Indian Cemetery Protective Association
485
US 439
(1988) which, was referred to by the first respondent’s
counsel as being “of some relevance in this regard” i.e. that
there
is no need for this Court to intervene to protect the religious
and cultural rights of Muslims, is not of much assistance. That
case, which concerned the impact of the building of a road through a
state-forested area used by contemporary Indians for specific
spiritual activities and was positioned so as to avoid archaeological
sites, turned on conflicting demands on state land and the
negative
formulation of the “free exercise” provision of the First
Amendment of the Constitution of the United States of America
which
is radically different to section 15 of our own Constitution. The
submission that if any action or conduct on the part of
the first
respondent in implementing the Administrator’s decision which may
require the first applicant’s prior approval, and,
if granted,
would infringe the Muslim community’s constitutional rights to
freedom of religion, would constitute a legitimate ground
for the
refusal thereof and, in any event, could be interdicted, is
unconvincing, in my view. Not only would such an application
be
required to be assessed on the basis of the existence of valid
township development rights if this application were to be refused,
but it in my view, would not be appropriate for this court to have
regard, in the exercise of its judicial discretion, to postulate
ill-defined remedies that might be invoked or decisions that might be
taken in the future, the effect whereof could be that any possible
infringement of the religious and cultural rights of Muslims is
avoided. In my view, such nebulous considerations would not
constitute
a legitimate basis upon which this court could decline to
exercise its discretion.
[24]The
first respondent’s counsel submitted that in the assessment of the
extent to which this court should have regard to the
infringement of
the Muslim community’s religious and cultural rights in the
exercise of its discretion should the development of
the approved
township proceed, is complicated by the fact that such rights must be
weighed against the first respondent’s right
to property and that,
in the instant case, one is not dealing with considerations of
limitations-clause nature but with a conflict
of constitutional
rights. I have a number of difficulties with that submission. The
first is the notion of a diminution of property
rights flowing from
an invalid township approval before it has been “validated” by
this court by declining to entertain the application.
The second is
that it fails to give sufficient recognition to the fact that the
Constitutional Court in
Prince
v President, Cape Law Society, and Others
2002(2) SA 794 (CC) at paragraph 24, held that the constitutional
right to practise one’s religion is of fundamental importance
in an
open and democratic society and is one of the hallmarks of a free
society. It also fails to take account thereof that the
alleged
conflict is limited to the first respondent’s ability of
implementing the approved township, the granting whereof is invalid
and in law incapable of having contributed anything to the bundle of
rights constituting the respondent’s rights of ownership in
Portion
7. The third is that it completely disregards any possibility of the
curtailment of the first respondents rights of ownership
as a result
thereof that, on the facts before this court, members of the Cape
Muslim community have since time immemorial exercised
rights of
access to the graves and kramats on Portion 7 for the purpose
exercising their religious beliefs and culture and in doing
to
established rights in favour of the public by operation of the legal
notion of vetustas or immemorial user (See: Nel v Louw and
Another
1955(1) SA 107(C ) at 110 H – 111B and generally CG van der Merwe:
Sakereg (2
nd
Edition) at 544/550).
[25]The
first respondent’s counsel also submitted that a further factor
that should be borne in mind by this court is that, on the
papers
before it, there is a dispute regarding the precise area on Portion 7
that might be regarded as sacred as well as competing
positions in
the Muslim community at various times, as regards certain religious
issues and that this court should be astute not
to become enmeshed in
debates about the validity, merits or truths of religious beliefs or
their importance to believers. I am in
agreement with the submission
of the first applicant’s counsel that the instant is not a matter
in which the court is required
to be the “arbiter of religious
dogma” as it does not involve the assessment of the correctness, or
otherwise, of competing positions
regarding the understanding by
Muslims of the importance of Muslim graves and kramats in their
religious practice; their cultural
heritage; or their abhorrence of
exhumation, because those matters are to a large extent common cause
and the first respondent has
not seen fit to challenge the views of
the applicants’ experts thereanent or to challenge the correctness
thereof by placing any
opposing views of other experts before this
court. The endeavour on the part of the first respondent to question
the correctness
of the applicants’ reliance on the abhorrence of
Muslims to the exhumation of graves by having referred to incidents
where it had
been permitted in the past, floundered because it cannot
be disputed that in terms of a Hukem issued in 1973, Muslim burial
grounds
are considered to sacred and have been prohibited from being
sold or the bodies buried there exhumed.
[26]The
first respondent and his counsel have not strenuously contested the
correctness of the applicants’ contentions that the
development of
the Oudekraal Township, as approved, would on the one hand infringe
upon the Muslim community’s right of freedom
of religion; their
rights of enjoying their culture and the practice of their religion
and on the other hand, degrade the environment
and undermine
conservation and, in addition, infringe the right of everyone to have
the environment protected for the benefit of
present en future
generations, through reasonable measures that would, inter alia,
prevent ecological degradation and promote conservation.
They,
instead, have chosen to rely on the comprehensive legislative and
regulatory framework that has come into being during the
past decade
to ensure that religious and cultural sensitivities are respected and
accommodated; that places or structures of regional
and national
significance are preserved and properly managed; and that the
environment is conserved and protected, in contending
that as such
measures provide effective protection against the desecration of
sites of religious significance or potential damage
to the
environment in the context of the development of the Oudekraal
Township. It was argued on the first respondents behalf that
as the
graves and kramats on Portion 7 are precisely what is envisaged to be
protected and managed under the National Heritage Resources
Act, 25
of 1999 (NHRA) and that any environmental and conservation concerns
are adequately addressed by the measures contained in
the National
Environmental Management Act 107 of 1998 (NEMA) and the proclamations
enacted as well as the Environmental Impact Assessment
Regulations
made in terms thereof, no need exists for this Court to take the
“extreme measure” of granting this application as
a means of
ensuring that development in accordance with the administrator’s
decision made as far back as 1957 does not take place
thereon.
[27]The applicants’
counsel, whilst fairly conceding that the legislative- and regulatory
procedures on which the first respondent
relies are capable of being
applied to ameliorate any religious and cultural concerns of the
Muslim community as well as the environmental
and conservation
concerns of the general public if a township (not necessarily the
approved one) is developed on Portion 7, have
advanced cogent reasons
why such steps as may be necessary to counter any adverse
environmental or other consequences that may result
therefrom should
not be left to largely unidentified subsequent administrative
processes and thereby deprive interested parties of
their entitlement
to protection under the law which this court is capable of providing
immediately as all the relevant issues have
been fully ventilated by
them. If the approval of the Administrator is validated as a result
of a refusal of this application, the
first respondent would be
legally entitled to implement the development of the township as
approved save as may be curtailed by the
aforementioned legislative
and regulatory procedures. In such an event any administrative
measures envisaged would have to proceed
from the premise that the
Administrator’s approval is unassailable and fashion the required
intervention around it as an immutable
fact. As a consequence it is
not possible to predict, with any degree of certainty, what the
nature and/or the extent of such interventions,
if any, are likely to
be. Whilst it appears from counsels’ submissions that the first
respondent appears to have reconciled itself
therewith that some
curtailment of the intended development is inevitable, there appears
to be a resolve to undertake a development
in some shape or form on
Portion 7. It is noticeable that the first respondent, in the face
of an almost overwhelming case on the
papers that, from
environmental, heritage, protection and town planning points of view
no development should be allowed on Portion
7 at present, has not
maintained a consistent position as regards the extent of the
development envisaged by it. Another concern
is that the legislative
and regulatory measures on which the first respondent has placed
reliance are of recent origin and have come
into being long after the
administrator’s approval. The essential validity of those measures
and the validity of their application,
in the context of an invalid
township approval at a juncture prior to their coming into existence,
have not been tested in a court
of law and if it were to happen, the
outcome thereof could not be predicted and is likely to result in
long drawn-out litigation.
I reiterate, that in view of the nature
of the discretion this court is required to exercise in deciding
whether an undue delay
should be condoned or not, it is at the very
least questionable whether uncertain and speculative considerations
of that nature,
should be taken into account.
[28]On
the basis of what has been set out in the immediately preceding
paragraphs I am not satisfied that, on the facts of this case,
the
measures provided for in NHRA and NEMA (and the proclamations and
regulations made under the latter) are adequate to ensure and
protect
the religious and cultural rights of the Muslim community of the Cape
or to protect the environmental well-being of the general
public.
[29]Kasper
Andre Wiehahn (Wiehahn junior), the alter ego of the first
respondent, in response to views of that tenour expressed by
the
Supreme Court of Appeal in paragraph 42 of the judgment in the
appeal, concedes that it is not entitled to proceed with development
on Portion 7 in accordance with the layout on the approved general
plan. He, in order to accentuate the ease with which the general
plan could be modified in order to purge it of its (one must assume
impliedly conceded) shortcomings, proposed certain ameliorating
measures that could be considered to be implemented namely, the
exhumation and re-interment elsewhere of human remains found thereon;
the rerouting of roads and amending the layout of erven in order to
ensure that burial sites remain undisturbed. The first respondent,
despite having proposed such self-evident measures - other than a
rebuffed attempt during October 2004 to treat with the Muslim
community through its attorney about their concerns regarding the
impact of the intended development on the burial sites and their
access thereto - has not done anything with a view to implementing
them despite having known of the presence thereof as well as
the
Muslim community’s attitude thereto since 1996. The debate whether
the suggested modifications to the general plan would amount
to a
revision or a complete redesign, the statutory provisions that find
application and who is obliged to give effect thereto appear
to have
been an exercise in futility. I say so because the uncontroverted
evidence before this court is that in terms of Muslim
religious
precepts the burial sites on Portion 7 are sacred and exhumation and
reinternment anathema thereto especially, because
of the undisputed
opinion of Malan, that the bones of those buried there will still be
in a state of preservation. According to
her, Portion 7 may well
have been an informal burial site because of the number of graves on
it; their relative proximity to one
another and the absence of
formal cemeteries for Muslim slaves at the time. That view is
supported by Karaan, a member of the Supreme
Council of the MJC.
According to Karaan the entire Belsfontein area, which includes
Portion 7 and the land adjacent to the kramat
of Tuan Mobeen, has
always been regarded as sacred. Jassiem Harris, the Imam of
Woodstock; Makmood Limbada the Chairman of the Cape
Mazaar Society,
an organization founded in 1982 to protect kramats; and Mahmood
Akleker the Vice-Chairman of the Cape Mazaar Society
support that
view. In view of the fact that when the original proceedings were
launched there were only slightly more that twenty
identified graves
on Portion 7; that another thirty graves have since come to light and
approximately a third of the area thereof
is inaccessible because of
the presence of impenetrable alien vegetation, there is a strong
likelihood of there being more, as yet
undiscovered, marked as well
as unmarked burial sites. I have little difficulty in taking
judicial notice thereof that the installation
of services, the
construction of roads and the erection of buildings in the intended
township must inevitably entail a disturbance
of the soil as a result
of necessary earthworks and that it has the potential of desecrating
unidentified burial sites which, according
to Muslim religious
beliefs, will constitute sacrilege. Even if it were possible to
somehow isolate the burial sites on Portion
7 from any township on
it, according to Karaan, a spokesperson for the MJC, it would detract
from the sanctity of the area and its
historic use and that to have
secular activities of a probably largely non-Muslim community in
close proximity to religious sites
which are constantly used and at
times frequented by large numbers of adherents of the Muslim faith,
would be a sacrilege. As would
appear from what has been set out in
some detail above, the alleviating measures alluded to by Wiehahn
junior fall far short of adequately
addressing the religious and
cultural concerns of the Muslim community of the Cape. In any event,
any reconfiguration of the approved township, which at present
has no
physical manifestation other than demarcations on the general plan,
is an aspect best dealt with by those officials and institutions
who,
by virtue of their qualifications and expertise have been deputed to
do so in terms of LUPO and not the courts. That conclusion
was
arrived at with full knowledge of the fact that review is
fundamentally a discretionary remedy and for that reason, permits of
some elasticity as regards an appropriate remedy.
[30]The
first respondent adopted the stance that the inability on the part of
the applicants to cogently demonstrate why the statutory
and
regulatory framework, to which reference has been made above, is
inadequate to regulate the development of Portion 7 by the relevant
administrative authorities in accordance with the public interest but
instead, insist on “exceptional intervention” by this court,
lends credence to the assertion that the applicants’ interest is
directed at choreographing a situation in which it could be
expropriated
at a consideration much lower than would be payable if
township development rights existed. That thát is the applicants’
motive
has been denied by Wootton. The applicants have adopted the
attitude that the importance of protecting the public against the
ramifications
of an invalid township approval in respect of Portion 7
stands independently of whether it should be expropriated or not.
They,
whilst admitting that the third applicant and members of the
Land Consolidation Group do not have the funds to acquire it at the
market value thereof as determined by the first respondent’s
valuator Erwin Rode, do concede that expropriation might be a
last-resort
method for securing the incorporation of it into the
Table Mountain National Park but contend that it would be neither
fair nor reasonable
to burden the public purse with compensation
based on the notional value it would have had, had it enjoyed valid
township approval.
Applying the approach enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3) SA 623 (A) at 634 E – 635 C to the dispute about the
value of Portion 7 if valid development rights existed, it must
be
accepted it was worth approximately R570 million in 2004 and that
without such rights, approximately R20 million. It follows
that if
the Administrator’s approval is “validated” it will provide
the first respondent with an immediate unrealised windfall
of stellar
proportions, as a result of what the third applicant’s counsel
aptly described as “a thoroughly obnoxious township
development
plan”, as a product of the repressive socio-political and
regulatory environment in which it was conceived and brought
forth.
It will also provide the first respondent with a firm basis in
negotiations for a higher price or compensation in the event
of a
sale or an expropriation should the “validated” development
rights be curtailed as a result of the implementation of the
regulatory provisions provided for by NHRA or NEMA. The entitlement
to expropriate property and the compensation payable pursuant
thereto
is dealt with in subsections 25(2) and (3) of the Constitution. The
deprivation of property is dealt with in subsection
25(1) which does
not make provision for payment of compensation. It has been argued
on the first respondent’s behalf that the
doctrine of constructive
expropriation is not recognised in our constitutional law so that the
mere deprivation of property rights
in terms of a statute or
regulation would not amount to an expropriation requiring the payment
of compensation as a condition to
its validity. That question was
left undecided in
Steinberg
v South Peninsula Municipality
2001(4)
SA 1243(SCA). The third applicant’s counsel submitted that the
argument put forward on the first respondent’s behalf
fails to have
regard to the fact that the court in the
First
National Bank of SA Ltd t/a Wesbank
case
(supra) at 796 E – I, held that any expropriation of property as
contemplated by section 25 of the Constitution is a species
of
deprivation of property and that as subsection (1) thereof provides
that no law may permit “arbitrary” deprivation of property,
the
question of the constitutionality of a statute providing for
deprivation without compensation, would not be confined to only
whether it amounts to an expropriation but also the constitutionality
of a deprivation for which no compensation is payable. Similar
sentiments were expressed by second applicant’s counsel. I need
say no more than that the uncertainty about whether a mere
curtailment
of development rights over Portion 7 would require the
payment of compensation, strips the submission that the Muslim
community’s
religious and cultural interests as well as the general
public’s environmental concerns could be adequately served by the
already-mentioned
statutory and regulatory framework rather than by
having the Administrators decision set aside, of its only attractive
feature.
Although the compensation paid in the case of expropriation
must in terms of subsections 25(2) and (3) be just and equitable, the
market value of the expropriated property remains a relevant factor.
I agree with the second respondent’s counsels’ submission
that a
materially different value could result depending on whether the
market value of Portion 7 is determined with or without development
rights. I am also in agreement therewith that it would be an affront
to the norms and values of our Constitution to increase the
compensatory burden on the public purse where the impugned rights
were granted 47 years ago and without an appreciation of the need
to
conserve and protect the environment and without any regard to the
religious and cultural sensitivities of the Muslim Community;
that no
significant steps had been taken by the first respondent for over 30
years to implement the development; that the value of
Portion 7 even
without development rights, is worth many times the original purchase
price of R110 000; and that available resources,
because of the
demands on the public purse by the substantial economic implications
of the Government’s various constitutionally
prescribed
commitments, are not unlimited (Cf:
Fose
v Minister of Safety and Security
1997(3)
SA 786 (CC) at paragraph 72).
[31]The
issue of prejudice if the Administrator’s decision were to be set
aside, due to its being assailed after such a long period
of time has
elapsed, featured in counsels’ argument on the following bases:
The first is the extent to which third parties, acting
in reliance of
the Administrator’s decision, have been prejudiced and the second
is whether, and if so, the extent to which the
first respondent has
been or will be prejudiced as a result thereof.
[32]It
was submitted on behalf of the first respondent that prejudice to
third parties manifested itself in a number of ways. The
first is
that Price, in consequence of the approval of the Township, appointed
land-surveyors to draw up a general plan and submitted
it to the
fourth respondent in 1960; took steps in 1961 to lodge the approved
general plan with the third respondent and applied
for and obtained
Certificates of Registered Title in respect of not only Portion 7 but
also portions 4, 5 and 6, the practical effect
whereof was that they
then became separate entities of land. The second is that Theodorus
Wiehahn (Wiehahn senior), who died a
number of years ago and was the
guiding mind of the first respondent at the time, as is alleged to be
apparent from certain contemporaneous
documents, purchased Portion 7
with a view to subdividing and developing it when optimal to do so
and that he would not have done
so had he known that the
administrator’s decision was invalid or vulnerable and have tied up
so much capital for in excess of
40 years instead of investing it in
other land capable of yielding a better return. The third is that
Wiehahn senior and his advisors,
relied thereon that development
rights had been registered against Portion 7 and had remained
unchallenged for approximately 4½
years and therefore cannot be
blamed for not having done anything more. The fourth is that the
first respondent, early in 1980,
when it would still have been
possible to amend “the conditions of township approval”, had
discussions with French and German
architects about a different
layout for the township. The fifth is that the first respondent
engaged Wouter Engelbrecht and Associates
during 1996 to prepare an
Engineering Services Plan based on the general plan. The sixth is
that the first respondent on 31 August
2001 launched the original
proceedings and would not have done so had the township approval not
stood unchallenged for in excess
of 40 years.
As
is apparent upon even a cursory reading thereof, the last three of
the aforementioned grounds involved the first respondent and
not
third parties.
To
the extent that the steps taken by Price pursuant to the approval of
the township to have enabled him to exploit it commercially
may prove
to have been abortive, it is directly attributable to his failure to
have divulged the presence of graves and kramats on
Portion 7 in the
documents prescribed by the regulations formulated under section 60
of Ordinance 33 of 1934 in the applications
submitted by him during
1949 and 1954 for the establishment of the township. It would
therefore seem that any abortive efforts and
wasted expenditure in
that regard are attributable to such failure and not to any neglect
on the part of any of the applicants to
have taken timeous steps to
have the administrator’s decision set aside. The assertion that
Wiehahn senior and/or the first respondent
placed reliance on the
fact that the township had been registered and had remained
unchallenged for 4½ years - as will appear
from what follows later
- has been strenuously disputed by the applicants. But even if it
were to be accepted that he had, it
would appear that any enquiries
made and steps taken on the strength thereof, were not for his
personal benefit but for that of the
corporate entities (of which
the first respondent is one) which later became the registered owners
of Portion 7 and also portions
4, 5 and 6. Not only is it
contentious on the papers before this court whether any prejudice in
fact resulted therefrom but it is
unclear how such prejudice, if any,
could be categorised as having been suffered by a third party.
The
contention that the first respondent, in acquiring Portion 7, placed
reliance on the existence of the administrator’s approval
in
procuring the acquisition of Portions 4, 5, 6 and 7 was strenuously
disputed by the applicants’ counsel. They did so on a number
of
grounds. The first was that the proposition that he had done so has
been considered and rejected by the Supreme Court of Appeal
in
paragraph 46 of the judgment in the appeal for the reasons enumerated
in paragraph 47 thereof. The second is that further significant
items of information which support the same conclusion have come to
light since the papers in the original application had been
finalised.
They are, firstly, that the first respondent and Devland
Construction (Pty) Ltd on 25 January 1996 (ie. before the
institution
of the original proceedings), concluded an agreement -
subsequently abandoned - relating to the development of Portion 7
in the
preamble whereof it was recorded that:
“
The
nature of the existing township layout is not suitable for the
beneficial exploitation of the development rights in the current
and
future environment. Redesign of the layout and consequent rezoning
will therefore be required to make the development viable
and
financially attractive and will be proceeded with in terms of a
master plan to be agreed between the parties.”
Secondly,
that it appears that Price had acquired the whole of the remainder of
the farm Oudekraal 902 on 23 April 1953 from the estate
of the
previous owner thereof at a purchase price of £60,000 and that the
same land, from which portion 3 had by then been excised
and
transferred, had been acquired on behalf of or by the first
respondent and its group of sister companies at a purchased price
of
£5,000 less than had be paid twelve years earlier, despite the fact
that the development of a township had in the interim been
approved
thereon. That a reduced purchase price had been paid appears to be
consistent with the view expressed by Wiehahn senior
and is supported
by the consultations that had been held with foreign architects in
the 1980’s as well as the preamble of the aforementioned
contract,
that the approved “single grid layout” of the approved township
had by then already become outdated as well as the
evidence that it
was acquired for its unique location and the favourable purchase
price.
It
was disavowed on behalf of the first respondent that the fact that it
had over a period of three decades failed to take any steps
to
develop Portion 7 in accordance with the administrator’s approval
and the general plan, was attributable to the fact that it
had
considered it as having become outdated. As was submitted by first
applicant’s counsel, such disavowal is belied by the contents
of
three contemporaneous documents, namely, Annexure RW 56 (a letter
dated 18 May 1964 addressed by Wiehahn senior’s partner,
W Coetzer
to Federale Volksbeleggings); Annexure RW58 (a letter addressed by
Wiehahn senior to his partner W Coetzer); the agreement
with Devland
Construction (Pty) Ltd (Annexure RW 59) as well as the following
statements made by Wiehahn junior in the original
application namely
that:
“
My
father was … of the view that the single residential grid layout of
the township on Portion 7 which he had acquired had already
became
outdated since approved”
(founding
affidavit paragraph 56) and that his father had held the view that:
“
Land
that is close to, or on the slopes of Table Mountain is valuable land
and should be acquired if and when possible”
(founding
affidavit paragraph 53).
[33]The
first respondent’s counsel, on the basis that certain specific acts
and conduct on the part of the first applicant and its
predecessors;
the second- and third applicants; and other state officials and
public bodies, manifested assent and acquiescence
submitted that it
is not permissible for them, as organs of state, to make an
about-face decades later and now challenge the Administrator’s
decision. That submission is based on the following acts and
conduct: -
33.1] That the first
applicant and its predecessors appear to have been content with the
Administrator’s decision because they,
despite the fact that they
had been fully apprised of the township application and the granting
thereof and that the “Oudekraal
development” had been in the
news in 1964 (approximately a year before the first respondent
purchased Portion 7) chose not to
institute proceedings, despite
having obtained legal advice during 1996 to the effect that the
approved township was invalid, (a
statement which is factually
incorrect in that the advice was that it had lapsed).
33.2] That
also the Administrator did not have any doubts or misgivings about
the efficacy of the administrator’s decision as he
during June 1964
advised the NMC that nothing could be done about it.
33.3] That
the Provincial Secretary had informed Wiehahn senior’s
representatives that the restoring of the lapsed development rights
over portions 4, 5 and 6 would be a mere formality.
33.4] That
the NMC had no fundamental difficulty with the approval of the
township and was prepared to content itself with representations
to
the Administrator despite the fact that it, for aesthetic reasons,
would have preferred alterations to the conditions of approval
and
further acknowledged the existence of such rights by having issued
notices in terms whereof Portions 4, 5 and 6 were provisionally
declared national monuments but not Portion 7.
33.5] That
when the boundaries of the Cape Peninsula Protected National
Environment (CPPNE) were delineated the commonage on Portion
7 was
included therein on the basis that it was to be transferred to the
local authority pursuant to the development.
33.6] That
the Metroplitan Area Guide Plan for the Peninsula (The Guide Plan)
indicates Portion 7 for urban development and implied
that
development thereon would be permitted in that it provided that no
urban development will be permitted in the Peninsula Mountain
Area
except where the establishment of any township had already been
approved; and
33.7] That
the Sub-Regional Structure Plan for the Coastline of Metropolitan
Cape Town (the Sub-Regional Structure Plan) recognised
that urban
development along the coastline would include Oudekraal Township but
noted that because of steep and hazardous slopes
and depressions
development should proceed only after consideration of an improved
layout.
[34]That
submission proceeded from the premise that the applicants and/or
their predecessors, by not having taken steps to have the
Administrator’s decision reviewed and set aside, have tacitly
acknowledged that it was regularly granted and as a consequence have
forfeited the right of challenging it in these proceedings. Is the
inference that the applicants, by having failed to challenge
the
Administrator’s approval, in the circumstances alluded to above, a
tacit acknowledgement of the regularity of the granting
thereof,
consistent with all the proven facts before this court? The answer
to that question, in my view, is an emphatic “no”
as such an
inference postulates an awareness on the part of the applicants of
the existence of the facts on which the Supreme Court
of Appeal’s
finding of invalidity from inception was based, which appears to be
common cause, came to light only during 1996.
The first applicant
and its predecessors could not reasonably have become privy to such
knowledge before that date and the second
and third applicants became
privy thereto only as from the early part of 2002 and there further
is no evidence on record which shows
that anyone else had any
knowledge thereof. Apart from the fact that the Guide Plan and the
Sub-Regional Structure Plan must be
seen for what they truly are,
namely, blueprints for intended future orderly, cohesive and
co-ordinated town-planning and there is
no evidence that those
involved in the compilation thereof had any knowledge of the
existence of the facts which rendered the administrator’s
decision
invalid either before or after the publication thereof in 1988. The
most plausible explanation for the applicants’ inaction,
in my
view, appears to be that they and the other officials and public
bodies involved acted on the erroneous but reasonable belief
that the
Oudekraal Township had been validly granted.
[35]I
accordingly incline to the view that it has not been shown, on a
balance of probabilities, that the applicants acquiesced in
the
Administrator’s decision and as a consequence have forfeited the
right to assail it in these proceedings. On the contrary,
on the
basis of the Supreme Court of Appeal’s judgment, they as public
bodies exercising public powers were obliged to do so.
[36]Counsel for the
parties when submitting argument as regards the prejudice the first
respondent is alleged to have suffered because
this application has
been instituted after such a long delay and the prejudice it is
likely to suffer should the administrator’s
decision be set aside
at this stage, divided their submissions into broad compartments. I
intend to do likewise but not necessary
in the same sequence.
[37]The
first respondent’s counsel submitted that this case is a classic
example of the forensic prejudice that could result if
an application
for review is instituted an inordinately long time after the decision
the impugnment whereof is sought. He, on the
basis of the
applicability of certain of the criteria that have in the past been
enumerated by judges namely, the fading of the memory
of the
decision-maker, the parties themselves or any of their witnesses;
the non-availability of necessary witnesses; and the destruction
or
the unavailability of physical or documentary evidence (See:
Radebe
v Government of the Republic of South Africa
(supra)
at 799 B – F;
Liberty
Life Association of Africa v Kachelhoffer N.O. and Others
(supra)
at 1114 B – C;
Camps
Bay Ratepayers and Residents Association and Others v Minister of
Culture, Planning and Administration, Western Cape, and
Others
(supra)
at 307 C – D) submitted that it would not be fair for this review
to be entertained at this “extreme degree of remoteness”
from
the date of the Administrator’s decision, as the first respondent
has been placed in an unfairly disadvantaged position to
oppose it.
The major grounds of complaint as regards the alleged forensic
prejudice are that because of the non-availability, as
a result of
death or other reasons, of Price, the Administrator, members of the
Townships Board and the professionals who had assisted
in the
township application as well as the inadequacy of the review record
because of the absence of material documents, it is not
possible for
the first respondent to show why the plan which accompanied the
township application, the general plan and the township
conditions
did not contain any reference to the graves and kramats on Portion 7
and that without such knowledge, it is not possible
to exclude the
possibility that the Administrator, with full knowledge of their
presence thereon took a reasoned and considered decision
that the
graves and kramats could be preserved, relocated or exhumed and
reinterred without contravening any law or offending any
religious
sensibilities or cultural practices. The allegedly material
documents are the minutes of the meetings of the Cape Town
Joint
Planning Committee and Technical Sub-Committee, minutes of the
meetings of the Townships Board and lack of certainty about
the
identity of the plan on the basis whereof the Oudekraal Township was
approved. The possibility that the absence of any reference
to
graves and kramats in the approval of the township is attributable to
a considered and reasoned decision has not only been rejected
by me
as improbable but is difficult to reconcile with the acceptance by
the first respondent’s counsel in their heads of argument
that the
first of the two scenarios suggested by the Supreme Court of Appeal
namely, that the Administrator and all others involved
in the
consideration and approval of the township application were
completely unaware of the presence of graves and kramats on Portion
7. I am in full agreement with the first respondent’s counsel that
this complaint has a bearing only on whether the Administrator’s
decision was unlawful. As the Supreme Court of Appeal based its
finding of the invalidity of the administrator’s approval thereon
that the Administrator and all the officials concerned therewith had
been ignorant of the presence of the graves and kramats, the
complaint of the non-availability of witnesses and an absence of
documentation falls away because the fact that none of the persons
involved in the approval of the township is alive or available and
that the record may not be entirely complete, did not, in my view,
in
any way handicap the first respondent in the presentation of its case
in these proceedings. In any event as appears from paragraphs
75 to
81 of the first applicant’s counsels’ heads of argument in reply,
the record which has been filed by the second respondent
in terms of
the provisions of Rule 53(1)(b) (the Minister’s record) is replete
with documents containing references to the views
and recommendations
of the Joint Planning Committee as well as documents pertaining to
the views and recommendations of the Townships
Board in the
performance of its functions in relation to the approval of the
Oudekraal Township. Significantly, not a single one
of such
documents contains any reference to the presence of graves and
kramats on Portion 7 or even hints at their relocation and/or
exhumation and reinternment.
The
first respondents counsels’
cri
de coeur
that the plan which accompanied the application when it was approved
in 1954 has not been made available because plan, PA 16/A/1/36-A

(Annexure RW 5) is dated 17 April 1956 (ie. almost two years after
Price’s application had been submitted) and deals only with
Portion
7 whereas the plan which it alleged had been submitted (presumably
Annexure RW 4), was in respect of portions 4, 5, 6 and
7 lacks
substance. The first applicant’s counsel have in their heads of
argument shown conclusively that this complaint is unfounded
because
of a misinterpretation or lack of understanding of the facts. It
transpires from Annexure RW 5 that it was not dated 17
April 1956 but
that the fourth respondent, on that date,
endorsed
that the erf numbers thereon had been amended. Furthermore, the
first paragraph of the township conditions which form part of the
approval, contains the following statement:
“
This
township shall consist of the erven and public places shown on Plan
PA 16/A/1/36 – A”
That
is the number which appears on the top right-hand corner of Annexure
RW 5. It further appears that the Minister’s record is
replete
with references, from as early as 1954 already, to plan PA
16/A/1/36-A when referring to the Oudekraal Township and to plans
PA
16/A/1/43-A to PA 16/A/1/46-A when referring to extensions 1, 2 and
3. In the circumstances there can be no doubt that Annexure
RW 5 was
the plan which had been submitted in connection with the Oudekraal
Township application and that it was the plan which was
considered
when the desirability of establishing a township on Portion 7 was
considered and approved. Annexure RW 5 does not disclose
or depict
any graves and kramats.
In
view of the aforegoing I incline to the view that it has not been
shown that the first respondent has been materially prejudiced
in the
presentment of its case in these proceedings, despite of what I have
already found constituted an unreasonably long delay.
[38]The argument
advanced on the first respondent’s behalf regarding the prejudice
it will suffer if the administrator’s decision
were to be reviewed
and set aside in this application proceeded on the bases firstly,
that the acquisition and the long-term holding
of immovable property
for eventual development is a well-recognised investment strategy and
that Wiehahn senior, the guiding mind
behind the first respondent in
1965, acquired Portion 7 for that purpose in the knowledge that the
Oudekraal Township had been proclaimed
as such for slightly longer
than three years and secondly, in reliance on the “legal
certainty” engendered by the fact that
its approval, being a
planning decision which by its very nature and the fact that it
affected also the rights of land use in surrounding
areas needed to
be challenged promptly, had not been assailed. It is in that context
that it was submitted that the first respondent
suffered financial
prejudice which “has increased exponentially with the passage of
time”. The prejudice the first respondent
has allegedly been
exposed to is attributed to the applicants’ delay in not having
instituted these proceedings within a reasonable
time and
necessitates a comparison of the first respondent’s patrimonial
position if the administrator’s decision is set aside
at this
juncture with what it would have been if it had been done within a
reasonable time.
The
present market value of Portion 7, without an approved township,
appears to be in the order of R20 million as Erwin Rode the
property
economist and property valuer consulted by the first respondent and
Jaques Francois du Toit (Du Toit) a professional valuer
and
appraiser, consulted by the applicants, were in agreement that that
is what its market value was as on 1 December 2005. What
its market
value would have been had this application been brought within a
reasonable time will have to be determined with reference
to the
juncture at which it should have been brought. Because, as has
already been found, all concerned with the approval of the
Ouderkaal
Township, including the applicants, were oblivious of the existence
of graves and kramats on Portion 7 prior to the latter
part of 1996,
it cannot be found that there was an unreasonable delay with the
institution of this application prior to the latter
part of 1996. I
have already found that the first applicant delayed unreasonable from
1996 onward and that the second- and third
applicants did so from
February 2002. For prejudice - other than lost alternative
investment opportunities - to have manifested
itself there needs to
be proof that had Portion 7 been sold at any time after 1996 it would
have realised a higher selling price
than it would if sold at
present. Such a possibility can best be described as illusory. It
has been submitted that had the bringing
of this application not been
delayed unreasonably and had the administrator’s decision been set
aside earlier, Portion 7 could
have been disposed of and the proceeds
yielded thereby invested in “equivalent or comparable land
investments with significant
capital growth in the intervening
period”. The quantum of such lost opportunity costs, which has
been described as “irremediable”
in the first respondent’s
counsels’ heads of argument, will depend on the determination of
the approximate date on which it would
have become available and
which, as I have already concluded, could not have been prior to
1996. Alternative investment opportunities
in equivalent or
comparable land as from that date, on the basis of the selling price
obtained, are relevant and not the investment
of the purchase price
paid in respect of Portion 7 in 1965 in different kinds of investment
products as was done by Du Toit. Save
that I shall assume that the
reference to “equivalent or comparable land investments” was
intended to refer to raw land with
potential for - or existing
township development rights there is no clear identification or
elucidation in the papers of such alternative
opportunities and their
respective returns except for Rode and Du Toit’s average annual
increase of the value of residential properties
over a number of
years of 24.4% and 14.73% respectively. Accepting that the market
value of undeveloped rural land with existing
or potential township
development rights would be more valuable and appreciate at a faster
rate than similar land without such rights,
I shall assume that the
first respondent will suffer prejudice from the delay in the
institution of this application by the applicants
even if the growth
in the value of Portion 7 during that period is brought into account
against it. Due to a dearth of relevant
information it is not
possible to determine the extent thereof even by means of an
approximation, other than to say that it could
not be anywhere near
its market value of R570 million, if this court were to validate the
Administrator’s decision by refusing
this application. That,
however, is not the basis on which the submission under consideration
was made.
On
the basis of what has been set out above I shall, in the exercise of
my discretion, accept that the submission that the unreasonable
delay
on the part of the applicants in the bringing of this application has
deprived the first respondent of more favourable investment
opportunities in land that could have been exploited by it if the
present application had been brought within a reasonable time and
had
been successful.
[39]The
first respondent contends that, as a result of the delay in the
launching of these proceedings, it has been prejudiced in
that it has
been denied the opportunity of remedying the administrator’s
invalid decision by means of a “fresh approval” for
the
establishment of a township on Portion 7 because it would have had a
substantially greater chance of succeeding with such an
application
if it had been brought within the first thirty years of the granting
of the approval. The fact that the Provincial Secretary
had in 1964
intimated that the obtaining of fresh approval for the already lapsed
township approval in respect of Portions 4, 5 and
6, would be a
“blote formaliteit” but that the attitude of the provincial
authorities at present would be diametrically opposed,
was invoked in
support of that contention. That the chances of an application for
the establishment of a township on Portion 7 in
the present
legislative and regulatory environment succeeding are unfavourable is
consistent with all the information at this court’s
disposal. As
this contention was predicated on the assumption that a fresh
approval application would have been brought, it would
not serve any
purpose to consider the applicability, meaning and ambit of the
statutory provisions in terms whereof an application
would have been
made for the amending of the township conditions and/or the amending
or cancellation of the general plan in respect
of the Oudekraal
Township. This contention is flawed, however, in that it is
predicated on a hypothesis which presupposes that an
application for
the setting aside of the Administrator’s decision would have been
brought within thirty years and would have been
successful. The flaw
stems from the fact that, as has already been found above, none of
the interested parties could have had any
knowledge of the existence
of the facts upon which the validity of the administrator’s
decision could have been successfully assailed
prior to late in 1996.
Accordingly an opportunity for the bringing of such an application
would not have arisen so that there is
no causal connection between
the undue delay and any prejudice the first respondent claims to have
suffered as a result thereof
(Cf:
Spier
Properties (Pty) Ltd and Another v Chairman, Wine- and Spirit
Board, and Others
1999(3)
SA 832 (C) at 844 H – I; 845 D – C).
It
was also submitted on the strength of the approval in 1999 of a
housing development on the slopes of the Dassenberg Mountains
in
Noordhoek that had the Administrator’s decision been set aside
during the latter part of the 1990’s it is “hardly fanciful”
that a fresh application for development rights on Portion 7 on
condition of the donation of the “top portion of the property”
to the Table Mountain National Park might have been favourably
received. In my opinion that submission is purely speculative as
by
then the changed statutory and regulatory environment to which
reference has been made earlier herein had already established
itself
firmly and, as has already been pointed out above, the problem of
reconciling any form of urban development on Portion 7 with
the
Muslim community’s religious and cultural sensitivities and its
uniqueness, from conservation and environmental points of view.
What
must, in the context, not be lost sight of is that the second
respondent - the successor to the Administrator - has signified
an acute awareness of the need to protect the rights of the Muslim
community to practice their religion and enjoy their culture.
[40]It was also
contended on behalf of the first respondent that it suffered
prejudice resulting from the applicants’ undue delay
because it
“caused” the area of land referred to as the commonage to be
included in the CPPNE without any challenge, unlike
what it would
otherwise have done, as happened in the case of other land owned by
it. It was submitted that had the present application
been brought
“even after a couple of decades after the Administrator’s …
approval” it could have objected to the incorporation
of the
commonage into the CPPNE. The commonage (± 308,59 hectares in
extent) originally formed part of farm Oudekraal 902. It
became
known as the remainder of the farm Oudekraal 902 when Price, pursuant
to the granting of township rights over the whole of
the property by
means of defined and numbered extensions, took out Certificates of
Registered Title on 1 November 1961 in respect
of Portions 4
(Extension 3), 5 (Extension 2), 6 (Extension 1) and 7 of the
remainder of the farm Oudekraal 902 and in that manner,
excised them
from it. Clause 14(c) of the Conditions of the Oudekraal Township
provided that the commonage should be given in trust
to trustees
appointed by the Administrator “after deduction of the small scale
diagrams of this township and its three extensions”.
It has not as
yet been so “given” in trust and the whole of the commonage is
at present registered in the name of, not the
first respondent, but
in that of a sister company, namely, Oudekraal Properties (Pty) Ltd
(Oudekraal Properties) pursuant to its
sale to it by Price. The
commonage was on 10 February 1984 proclaimed as a “nature area”
in terms of the provisions of the
Physical Planning Act, 88 of 1967
and by virtue of the provisions of section 44(2) of the ECA, became
known as the CPPNE as from
9 June 1989. The effect of the inclusion
of land in the CPPNE is that the development thereof is prohibited
without ministerial
permission. That the first respondent suffered
any prejudice from the inclusion of the commonage in the CPPNE, in my
view, is illusory
as no part thereof ever formed part of Portion 7 so
that any prejudice that flows therefrom accrued to Oudekraal
Properties which
appears to be the only party with the required
standing in law to have objected to its inclusion. That effectively
destroys the
basis upon with the first respondent’s alleged
prejudice under this head was predicated in argument.
In
any event, it on the facts before this court appears exceedingly
unlikely that any prejudice has been suffered as a result of
such
incorporation. There is not even a hint that Oudekraal Properties
ever intended developing any part of the commonage below
the 152
meter contour line or sought permission to do so in terms of Act 88
of 1987; section 16(1A) of the ECA; and section 29
of the
Protected Areas Act, 57 of 2003. Because of the considerable expense
of installing engineering services at such a distance
from the
central business district of Cape Town and, unlike in the case of
Portion 7, bulk services would have to be paid for, the
feasibility
of developing that part of the commonage lying below the 152 meter
contour line appears to be highly unlikely. As was
conceded by the
first respondent’s consulting engineers, Nkuthalo Wouter
Engelbrecht (Pty) Ltd, the commonage above the said contour
line is
not suitable for urban development. What’s more: the Guide Plan
discourages urban development on gradients steeper than
1 : 6 and the
gradients of most slopes on the theoretically developable section of
the commonage exceed this.
[41]A further
manifestation of prejudice to the first respondent was postulated on
the basis that had the Administrator’s decision
been set aside
prior to 1965, the continued need for the division of the Oudekraal
farm into four separate units would have fallen
away and Price would
thereafter have divided the land up in a different and “more
favourable manner”, alternatively, Castle
Estate Agency (Pty) Ltd
would have “purchased” the said property in an undivided state
and could then have subdivided it in the
most optimal way. If that
had occurred, so runs the argument, it would have been less
prejudicial in the event of township rights
on any of the portions
thereof being set aside because “a company like Oudekraal Estates
might not be left with two or more properties
covering what is now
Portion 7 on which (at the very least) a single dwelling could be
built”. On my understanding thereof this
complaint limits the
period of the failure to have instituted proceedings reviewing the
Administrator’s decision, to the period
preceding the date on which
the first respondent became the owner of Portion 7, namely, 28 May
1965. In view thereof that the subdivision
of the remainder of the
farm Oudekraal 902 came into effect only on 1 November 1961 when
Price took out certificates of Registered
Title in respect of
Portions 4, 5, 6 and 7, the delay to which the alleged prejudice is
attributed is limited to a period of approximately
3½ years. I am
in agreement with the argument of the applicants’ counsel that a
finding that any of the applicants had during
thát period delayed
unreasonably, any failure to have done so prior thereto is of no
relevance, as would be any undue delay subsequent
thereto. As the
facts on the basis whereof the Supreme Court of Appeal found that the
Administrator’s decision could be assailed
had not and could not
reasonably have been expected to have been known by the applicants
during that period there, in my view,
is no factual basis for a
finding that they delayed unreasonably during that period. The first
applicant’s counsel were correct,
in my view, in having submitted
that the alleged prejudice is entirely hypothetical and based on a
notional hypothesis not justified
by the facts or supported by any
probabilities. Nothing precluded Wiehahn senior, as the controlling
mind behind the different entities
involved in the acquisition of
farm Oudekraal 902 from the estate of Price, to have undone such
subdivisions and to have reconfigured
it into such entities as would
have suited his and their individual or combined interests.
[42]A further issue
raised by the first respondent was that the Administrator’s
decision to allow the establishment of a township
on farm Oudekraal
902 was a composite one of which the approval of the Oudekraal
Township on Portion 7 was an integral part and that
one cannot set
aside the Administrator’s approval in respect thereof and leave the
subdivision of the remainder intact especially
as only the first
respondent as the owner of Portion 7, has been cited as a party in
these proceedings and the owners of what are
presently known as
Portions 4, 5 and 6 have not. That submission was predicated thereon
that the Administrator, as was alleged to
have been his practice,
granted four separate approvals, three whereof were in respect of
Extensions 1, 2 and 3 (Portions 6, 5 and
4) - because the fourth
respondent preferred to restrict the erven reflected on individual
general plans to no more than 200;
that Certificates of Registered
title in respect of portions 4, 5, 6 and 7 were issued by the third
respondent as a consequence of
the decision to grant such approvals
and that the units of land referred to in the Certificates of
Registered Title in respect of
portions 4, 5, 6 and 7 owe their
existence to the Administrator’s approval. The first applicants’
counsel challenged the factual
correctness of all the assumptions of
fact on which that submission was based. John Godfrey Obree, the
Surveyor-General, disavows
knowledge of a preference to limit the
number of erven on general plans as alleged, and succeeded in
locating 27 general plans for
the period 1954 to 1957 that comprise
more than 200 so that the existence of a policy of the nature alleged
is unlikely. A more
likely explanation for the breaking up of large
townships into extensions appears to be a preparedness on the part of
the authorities
to accommodate developers who would then not have to
bear the up-front costs of installing the entire infrastructure of a
township
before being able to sell erven. As the township approvals
of Portions 4, 5 and 6 had lapsed on 31 December 1959, only Portion 7
retained its development rights and Portions 4, 5 and 6 reverted to
their original rural zoning and retained that status until 1
November
1961 when the Certificates of Registered Title were granted in
respect thereof. The effect thereof was that each of Portions
4, 5,
6 and 7 from then on became independent land units which are
presently owned by different but related legal entities. Also
the
commonage became a separate entity held under separate title by
Oudekraal Properties. The fact that Certificates of Registered
Titles were applied for and granted in respect of also those units of
land of which the previously granted development rights had
lapsed
and had reverted to their original agricultural zoning, militates
against their having been granted as a consequence of the
granting of
the original township approvals. Also the assumption that Portions
4, 5, 6 and 7 owe their existence to the Administrator’s
approval
is contentious. Prior to the Certificates of Registered Title having
been applied for and granted, the units of land comprising
portions
4, 5, 6 and 7 existed as extensions in a single composite township.
When the township approvals in respect of those portions
lapsed the
planned extensions discontinued to exist. The taking out of
Certificates of Registered Title was not a condition of township
approval nor a requirement imposed by the Administrator. It was the
result of a decision by the previous owner, for reasons best
known to
himself, from then on to hold the remainder of farm Ouderaal 902 in
subdivided units that corresponded with the areas on
which the
different extensions would have been located. Whilst Portions 4, 5,
6 and 7 certainly originated from the Administrator’s
approval of
township development rights on farm Oudekraal 902 they, in my view,
do not owe their existence thereto.
The
submission that the approval of the township in respect of Portion 7
was also in respect of Portions 4, 5 and 6 was based thereon
that
Condition 14 of the Oudekraal Township refers to Extensions 1, 2 and
3 (Portions 6, 5 and 4) and reserved the commonage for
the benefit
of Oudekraal Township (ie Portion 7 as well as Extensions 1, 2 and
3). The first applicant’s counsel did not question
that that
condition was imposed, but submitted that it did not stand in the way
of the granting of the relief the applicants are
seeking herein. I
am in agreement with the submission that as the approval of township
rights in respect of the extensions referred
in that condition have
lapsed, the reference thereto in the approval in respect of Portion 7
and “the benefit” of the commonage
in relation to “Extensions
1, 2 and 3” have become redundant and that, if the Administrator’s
approval in respect of Portion
7 is set aside, the obligations
imposed by, inter alia, that condition would similarly fall away. I
also agree that the effect of
the aforegoing will be that the
commonage would no longer be regarded as a commonage for “this
township” and its extensions,
and that neither the owner of Portion
7 nor the owner of the commonage would be under any obligation to
transfer it to trustees in
terms of the provisions of Oudekraal
township Condition 14 (c).
I
accordingly find that the approval of the Oudekraal Township and the
taking out of Certificates of Registered Title and of sub-divisional
diagrams in respect of Portions 4, 5, 6 and 7 are unrelated and that
the setting aside of the former will not adversely or otherwise
affect the registration thereof as separate entities of land.
[43]The
first respondent’s counsel advanced a number of factors as
militating against the setting aside of the Administrator’s
approval of the Oudekraal Township.
The
first is that if the application should succeed, ownership of the
roads and public places on which the kramat of Sayed Jaffer
and most
of the graves are situated would revert to private ownership and
enable the first respondent, in the exercise of its rights
of
ownership, to “fence its entire property” and leave members of
the Muslim community worse off than they are at present.
However,
not all the graves and kramats, such as the kramat of Sayed Ahmed
Madhi Ra, are located in public places depicted on the
general plan.
Portion 7 does not appear to have been fenced at any time and the
Muslim community has exercised unfettered access
to the burial sites
thereon for religious and cultural purposes since time immemorial,
not because the roads and public places vested
in the local authority
in terms of the provisions of section 24(1) of Ordinance 33 of 1934,
but because the owners thereof failed
to object thereto. Should the
exercise of any rights in favour of the public established thereby be
frustrated by the erecting of
a fence or by any other means, it could
be undone by means of appropriate interdictory relief. That the
Muslim Community will be
worse off if the application should succeed
is therefore not a given.
The
second is that Portion 7 is relatively small in size and constitutes
only a small portion of the present undeveloped land extending
from
Camps Bay towards Llandudno and that as its southern boundary abuts
Rontree Estate, Camps Bay, any development thereon would
involve a
relatively small southward extension of Camps Bay and accordingly
have only a limited impact. The superficial attractiveness
of that
submission is, however, emasculated by the fact that, on the facts
before this court, the importance of Portion 7 from a
religious,
cultural, conservation and an environmental point of view, is in
inverse proportion to its actual extent.
The
third is the inappropriateness of allowing the applicants to derive a
benefit from having delayed for “almost 50 years” before
launching these proceedings because it would be “contrary to all
principles of administrative fairness” if any advantage flowing
therefrom should enure to the applicants. The following were
categorised as constituting such benefits. Firstly, that it has
since
the handing down of the judgment of the Supreme Court of Appeal
in
Pepkor
Retirement Fund and Another v Financial Services Board and Another
2003(6) SA 38 (SCA) been precluded from asserting as a defence that
an unwitting mistake of fact does not constitute a ground of
review.
The second is that had the present proceedings been launched ten
years sooner the applicants would not have enjoyed the
advantage of
the present more beneficial township considerations and spatial
frameworks that have come into being during that period
of time. The
first-mentioned basis was not persisted with by the first
respondent’s counsel during argument, correctly in my view,
as the
Pepkor
judgment
did no more than expound and apply the law as it is. The second of
the said bases, at best, is of doubtful validity as due
to an absence
of knowledge of the relevant facts on the part of the applicants they
could not reasonably have been expected to have
instituted the
proceedings prior to 1996 by which date such townplanning
considerations had already been put in place.
[44]The
applicants’ counsel in turn submitted that this case has certain
features that are unusual and unprecedented, if not unique,
which
ought to be considered by this court in exercising its discretion
whether to condone the unreasonable delay. They are –
44.1] that
the applicants are public bodies, acting in the public interest in
seeking to set aside an invalid administrative decision
taken during
the height of the apartheid era on the basis of its momentous and
deleterious implications for present and future generations
when
viewed from religious, cultural, heritage and environmental
perspectives.
44.2] that
the second respondent, the successor to the decision-maker, the
Administrator, accepts that the decision was invalid and
not only
chose not to oppose the application but adopted the stance that any
attempt to remove the graves and kramats from Portion
7 would be
contemptuous of the religious feelings, social traditions and
cultural beliefs of the Muslim community, and that the developing
of
a township as approved would virtually be impossible without
desecrating or violating at least some of such graves and kramats.
44.3] that
the provisions of section 81 of the Constitution of the Western Cape,
which requires the Provincial Government to adopt
and implement
policies that actively promote and maintain the welfare of the people
of that Province, including policies aimed at
achieving the promotion
of respect for the rights of cultural, religious and linguistic
communities.
44.4] the
stand adopted by the second respondent that to allow the
Administrator’s decision to stand and allow such development
on
Portion 7 to be implemented will have a significant effect on the
rights of the Muslim community of the Cape to enjoy their culture
and
practice their religion and
“…
that
it is in the public interest that such rights be protected and that
both the Constitution and the Constitution of the Western
Cape … be
given effect to.”
And,
furthermore, constitutes a significant distinguishing feature from
the typical case where the administrative authority which
took the
decision raises the defence of delay because of the need for finality
or efficient administration;
44.5] that
the approval of a township on Portion 7 has not been acted on and no
development has taken place thereon, or anything else
done therewith,
despite the fact that approval had been granted nearly 50 years ago;
44.6] that
since long before the land of which Portion 7 formed part had passed
into private hands it has played a central role in
the religious and
cultural life and the heritage of the Muslim community of the Cape
who have continued to visit the graves and kramats
thereon and to
treat the area as a spiritual haven;
44.7] that
Portion 7 has remained unspoilt and preserved as a richly diverse and
ecologically important environmental resource in
its original natural
state;
44.8] that
the Administrator’s approval was not only invalid due to his having
failed to take the presence of the graves and kramats
into account,
but also because it permitted subdivisions of land use in criminal
disregard thereof since the graves and kramats would
be desecrated or
violated if development occurred in terms of the approved township
plan and that if the invalid approval were allowed
to stand, this
Court would not only be breathing judicial life into an invalid
administrative decision, but in doing so would be
placing its
imprimatur on development the implementation whereof would involve
criminal conduct; and
44.9] that,
as has been conceded by the first respondent’s own expert, Timothy
Afred Strain Turner, there is “no prospect whatsoever”
that the
township approval which the first respondent is desirous of having
validated by the invocation of the delay rule (or any
other
township) would be permitted on Portion 7 at the present time by
reason of currently accepted planning and environmental norms.
[45]The
public interest element in the finality of administrative decisions
and acts is a further factor that needs to be considered
by a court
in the exercise of its discretion as regards whether an unreasonable
delay in the instituting of review proceedings should
be condoned or
not: it after all is recognised as one of the raisons d’etre of
the delay rule. It, however, is clear from paragraph
46 (at 249 G
- 250 A) of the judgment of the Supreme Court of Appeal that the
need for finality is but one of the relevant circumstances
that
should be considered. Accordingly, there is no warrant for assigning
any elevated ranking or weight to it. In my view, the
prominence to
be assigned to it must surely be determined with reference to the
facts of each particular case because the ramifications
of
administrative decisions and acts are self-evidently not homogeneous.
The extent to which an administrative decision or act impacts
upon
the interests and/or conduct of persons other than the litigants is
recognised as a consideration in the assessment of the weight
that
should be assigned to it (See:
Ntame’s
case
(supra) at 261 G – H). As amply appears from the judgment of the
Supreme Court of Appeal (at paragraph 46) as well as the
findings
made earlier in this judgment, there is little, if any, evidence of
third parties having altered or rearranged their affairs
on the
strength of the Administrator’s decision and the first respondent
has not materially done so either. In the circumstances
the need for
the finality of administrative decisions and acts does not in the
instant case outweigh the other factors which have
already been
enumerated at length in this judgment.
[46]I
am in full agreement with the submission of the second applicant’s
counsel that when a court in our present constitutional
order is
required to exercise its discretion whether to allow a review,
despite the passing of an unreasonable time, cannot disregard
the
Constitution and is obliged to give consideration to its values,
particularly the spirit, purport and objects of the Bill of
Rights as
well as the interests of justice. I, on the basis that the delay
rule as it has evolved over the years, is sufficiently
flexible in
its application for such values and interests to be accommodated and
given effect to, came to the conclusion earlier
in this judgment that
no need exists for the development of the common law in that regard.
As was done by Plaskett J in
Ntame’s
case
(supra) at paragraph 25, I, in exercising my discretion, shall be
mindful thereof that the fundamental right of access to the
courts
ensconsed by Section 34 of the Constitution forms part of the Bill of
Rights, the spirit, purport and object whereof this
court is obliged
to promote in terms of the provisions of section 39(2) of the
Constitution; that section 1(c) of the Constitution
entrenches the
rule of law and its over-arching principle of legality, as a founding
value and that, for that reason, as few invalid
exercises of
administrative power as possible, should be allowed “to slip
through the net”; and that the applicants, acting
in the public
interest, are in these proceedings seeking to enforce the fundamental
rights of members of the Muslim community of
freedom of religion,
their rights of practicing their religion and to enjoy their culture,
in terms of sections 15(1) and 31(1) of
the Constitution, as well as
the rights of everyone to an environment that is not harmful to their
well-being and to have it protected
for the benefit of present as
well as future generations as guaranteed by Section 24 of the
Constitution. I shall also have regard
thereto that a large
proportion of the members of the Muslim community were previously
socially, politically and economically disadvantaged
because of the
repressive and disempowering political policies of the past and, for
that reason, have not been in a position to effectively
assert and
protect their interests. As the Constitution is the supreme law of
the country and the Bill of Rights binds also the
judiciary,
deference to the principle of legality which in its wider sense
applies to all state authority including judicial authority
(See:
S
v Mabena
[2007]
2 All SA 137
(SCA)) played an important, if not decisive role, in the
exercise of my discretion because, in my view, the granting of an
order,
the practical effect whereof would be that it will place this
court’s imprimatur on an administrative decision, the
implementation
whereof would not only offend against the fundamental
rights in the Bill of Rights but constitute criminal conduct, will be
disharmonious
therewith. I have also taken account of the importance
of Portion 7 from a historical, cultural, religious and heritage
point of
view as well as its uniqueness from a conservation and
environmental point of view and have further not lost sight of its
inestimable
scenic beauty in the context of the constitutional
imperative contained in Section 24(b) of the Constitution that the
environment
should be protected for future generations. I have, in
addition, been mindful of the factors which have been enumerated in
paragraph
45 above and have lent this application its unique and
unprecedented character as well as that there is no evidence that the
interests
of third parties have been materially influenced by their
having acted in reliance on the Administrator’s decision and as a
consequence
the need for finality furthermore does not feature
prominently. I have also given consideration to the fact that, other
than to
the first respondent, no material prejudice would result
should the administrator’s decision be set aside. Against that
backdrop
I have given some weight to the fact that if the application
should succeed the first respondent, in the context of a capitalist
society in which the financial rewarding of entrepreneurial foresight
and skill is the foundation of commercial activity, the first
respondent stands to forfeit an extremely substantial enhancement of
its patrimony should the administrator’s decision be set aside
especially if regard is had of the fact that the area that will be
affected by this court’s order is of limited extent and will
preclude the continuation of further urban development adjacent to
Camps Bay of only a relatively small area of the original Oudekraal
farm. I have also not lost sight of the fact that if the
administrator’s decision should be set aside by this court, the
first
respondent will be exposed to losses occasioned by its having
been precluded from pursuing alternative investment opportunities the
quantum whereof is difficult to determine at this juncture.
After a holistic
weighing of not only the aforementioned factors, but also the other
submissions in favour of and against condoning
the delay in the
institution of these proceedings, I have come to the conclusion that
I should exercise the discretion with which
I have been imbued in
favour of condoning the applicants’ unreasonable delay. I am not
unmindful thereof that the condoning of
the instituting of review
proceedings 47 years after the taking of a decision which is being
impugned, is unprecedented in South
African law in a context other
than the exercise of coercive powers. But, as was stated by the
Supreme Court of Appeal in paragraph
46 of its judgment in the appeal
“… the lapse of time in itself will not necessarily be decisive
…” and that much will
depend on a balancing of all relevant
circumstances. A pertinently relevant circumstance in the instant
case is that one of the
consequences that flows from a validation of
the administrator’s decision would be irreconcilable with the
principle of legality,
an aspect of the rule of law binding also on
courts of law,in that it would allow criminal conduct in the form of
the desecration
of graves. In view of thát conclusion and the fact
that it was accepted that the administrator’s decision was invalid
from its
inception, it follows that the applicants are entitled to an
order in terms of prayer 1.2 of the notice of motion.
[47]The
fourth respondent, in response to prayer 2.1 of the notice of motion,
has provided the first applicant’s attorneys with
a report in which
he pointed out that the provisions of section 37(2) of the Land
Survey Act, 8 of 1997 (Land Survey Act) would
have to be complied
with as a prerequisite to the general plan for Portion 7, Plan TP
1781 LD, being cancelled. That subsection
contains a proviso which
provides that where an amendment or cancellation of a general plan
affects “any street, road, thoroughfare,
… square or open space
shown on a general plan of a township” the Premier must prior to
the amendment or cancellation thereof,
advise the fourth respondent
that “the provisions of the laws relating to the permanent closing
of any public place or part thereof
have been complied with.”
As
pointed out by the fourth respondent the roads and public places
shown on general Plan TP 1781 LD are by virtue of the provisions
of
section 24(1) of Ordinance 33 of 1934 deemed to exist and vest in the
local authority upon notification of the registration of
the township
by publication in the Provincial Gazette. As the notification of
the registration of the Oudekraal Township took place
in the
Provincial Gazette of 19 January 1962 the roads and public places
therein are deemed to have vested in the local authority
since that
date.
The
closure of roads and public places in this court’s area of
jurisdiction is regulated by at least two enactments. The first
is
the by-law relating to the Management and Administration of the City
of Cape Town’s Immovable Property with effect from 28 February
2003, section 6(1) whereof provides that the municipality may close
public places and public streets or any portions thereof, only
after
it has advertised its intention of doing so and has considered and
rejected any objections lodged, and recorded its reasons
for doing so
in writing. The second is The Roads Ordinance, 19 of 1976 section
3(1) whereof provides for the closure, of his own
accord, of an
existing public road by proclamation in the Provincial Gazette by the
Administrator (now the Premier or the Minister
to whom the Ordinance
has been assigned) subject to compliance with subsection 3(3), unless
it is one contemplated in subsection
3(1)(b) or (c), in which event
it can be done only on the application of the relevant local
authority and then only if such local
authority has advertised its
intention of closing or applying for the closure thereof and has
served the advertisement allowing for
21 days’ notice on the owners
of all land abutting the proposed or existing public road and, in
certain cases, on any other road
authority.
It
was submitted on the first respondent’s behalf that as the outcome
of the notification process envisaged by the said enactments
cannot
be predicted it “demonstrates the dangers of overturning
administrative decisions many years down the line”. The submission
that the outcome of any process in terms whereof notice is given and
objections invited as a precursor to the closing of roads and
public
places on Portion 7 is predicated on its impact on various interested
parties such as the first respondent and Oudekraal Properties;

members of the Muslim community whose access to the areas demarcated
as roads and public places on the general plan will be affected
and
the motoring public who will be deprived the reasonable expectation
of in the future using the roads traversing it as a shortcut
from
Camps Bay to Victoria Road.
That submission
self-evidently does not apply to the relief claimed in prayer 1.1 of
the notice of motion.
Section 37(2)
of the
Land Survey Act finds
application only if it is required of the
fourth respondent, to, inter alia, cancel a general plan either
partially or totally with
the consent of the Premier or by an order
of Court. Whilst on the face thereof it appears that thát is what
prayer 2.1 requires
the fourth respondent to do, the question arises
whether, on the facts of this matter, that is the true nature of the
function he
is required to perform.
In
considering that question it must be borne in mind that the granting
of the relief sought in prayer 2.1 only follows upon the granting
of
the relief sought in prayer 1.2 of the notice of motion. Whilst,
prior to that order having been made, the approval of the Oudekraal
Township existed in fact only, the effect of the granting thereof has
been to transform it from being relatively or functionally
voidable
to being void in an absolute sense and accordingly, devoid of any
existence either in law or in fact, ie. a nullity, and
as such
incapable of supporting any legal consequences. Condition No 1 of
the Oudekraal Township approval was that
“
This
township shall consist of the erven and public places shown on Plan
No P.A. 16/A/1/36 - A”
a copy whereof appears
to have been annexed thereto.
General plan TP 1781
LD, which forms the subject-matter of prayer 2.1, was submitted to
the fourth respondent in terms of the provisions
of
section
19(1)(a)(i)
of Ordinance 33 of 1934 which provides for the framing of
a general plan “… in accordance with the conditions approved by
the
Administrator and showing the numbers assigned to the erven.”
As is to be expected, a comparison of the general plan TP 1781 LD

with plan PA 16/A/1/36-A, shows that the configuration of the
township on the former is identical to the latter and warrants the
inference that the latter served as the basis for the framing of the
former. It appears to follow logically that if the township
configured as depicted on plan PA 16/A/1/36-A falls away as a result
of the Administrator’s approval having been set aside, general
plan
TP 1781 LD which owes its whole existence thereto, must suffer a
similar fate and discontinue to be of any further practical
or legal
effect. Although that general plan may continue to have a physical
existence in the offices of the third- and fourth respondents
as a
sheet of paper, it is a general plan in name only. An inevitable
consequence of the township as configured on the said general
plan
discontinuing to exist, is that the roads and public places
demarcated thereon also cease to have any existence and accordingly,
are no longer capable of vesting in anyone. To the extent that it
may notionally be possible to cancel the general plan of a township,
the approval whereof has discontinued to exist, I am of the view that
the proviso to
section 37(2)
of the
Land Survey Act does
not find
application in the instant case and that there is no need to comply
with the requirements prescribed by the aforementioned
two
enactments. I say so because the terms of the proviso only apply if
a partial or total cancellation, which “affects a public
place”,
is envisaged and the only possible manner in which the public places
as demarcated on general plan TP 1781 LD could be
affected by the
granting of prayer 1.2 is that they will simply discontinue to exist.
Such a state of affairs is a consequence of
this court’s order and
not any purported cancellation of the general plan on which they have
been demarcated. In view thereof,
I incline to the view that there
is no need to comply with the provisions of the proviso to
section
37(2)
of the
Land Survey Act as
a precondition to the making of any
order in terms of prayer 2.1 of the notice of motion.
I have already
articulated my views regarding the status of general plan TP 1781 LD
from the moment an order is granted in terms
of prayer 1.2 of the
notice of motion and whether any purpose will be served by a purely
formalistic “cancellation” thereof.
If, as I have already
found, the said general plan has lost its raison d’etre and serves
no purpose other than as encapsulating,
in a two-dimensional form,
the configuration of a now defunct approved township as a historical
fact, the only purpose the intended
cancellation thereof could
possibly serve is to ensure the integrity and reliability of the
records in the offices of the third-
and fourth respondents. That
purpose, in my view, can be equally achieved if the terms of this
order are endorsed thereon as well
as all the other records and
documents referred to in prayer 2.2. Accordingly the follow orders
are made in substitution of the
orders sought in prayers 2.1 and 2.2
of the notice of motion.
“
2.1 The
fourth respondent is authorised to endorse the terms of this order on
the General Plan approved by the fourth respondent on
10 April 1961
under reference number TP 1781 LD in respect of Portion 7 of the Farm
Oudekraal, now known as erf 2802 Camps Bay and
currently registered
under Deed of Transfer No. T13636/1965 and annex a copy thereof or
file it with the said General Plan.
2.2 The
Third Respondent is authorised and directed
2.2.1to
endorse the title deed of erf 2802 Camps Bay to record that this
order has been made as well as the terms thereof and that
no transfer
may be effected of the erven formerly known as erven 1 - 240
Oudekraal Township and Public Places 241 - 252 and now described
as
erven 2803 -3042 and Public Places 3043 - 3054, Camps Bay as depicted
on General Plan TP
1781 LD;
2.2.2to
record a caveat in its records reflecting that this order has been
made as well as its terms and to similarly endorse the owner’s
title deed in respect of Erf 2802 Camps Bay if and when it is lodged
in the Deeds Registry.”
[48]What
remains to be considered is the question of costs. The first
respondent’s counsel submitted that in the event of the application
succeeding it should not be penalised in costs because, in relation
to the invalid approval, it was an innocent third party and that
it
did not oppose the application unnecessarily. Second applicant’s
counsel submitted that whilst the first respondent’s invocation
of
the delay rule was not unreasonable, the same could not be said of
its defence of an egregious decision of the Administrator due
to its
total disregard of the disenfranchised and otherwise oppressed
members of the Muslim community during the apartheid era.
In my view
the reasonableness of the invocation of the delay rule is not in
itself a sufficiently cogent reason for depriving the
applicants of
their costs.
The first
respondent’s counsel submitted in the alternative that the
applicants individually are not entitled to the costs of all
the
counsel employed by them as they could have advanced their causes
equally efficiently by having employed a single team of advocates
to
represent them and should be allowed the costs of only one counsel
each or that the costs of the employment of a team consisting
of
three counsel should be divided equally between them.
Counsel
for each of the applicants have contended that their respective
clients are entitled to the costs of all the counsel employed
by
them.
This
case is undoubtedly one of exceptional difficulty and complexity with
voluminous documentation and papers and a multitude of
factual and
legal issues. By agreement between the parties and in order to avoid
duplication, the first applicant’s counsel bore
the brunt of the
preparation of the papers. It furthermore is a matter of importance
for the first applicant and its constituents.
In the circumstances
the employment of three counsel by the first applicant, in my view,
was not an unwarranted luxury but necessary.
That conclusion is
consonant with the first respondent’s own perception of what was
prudent as regards the employment of counsel
in that it was in these
proceedings represented by an experienced silk and two juniors one
whereof is of senior-junior status.
The
third applicants’ counsel submitted that each of the applicants
were entitled to have used their own counsel because they are
not
from the same sphere of government; that each of them derive their
existence and capacity to sue from different legal sources;
that
each has been established to perform distinct functions in pursuit of
distinct statutory or constitutional objectives; and
that despite
their common purpose in opposing the relief claimed, the interests
served by them are not identical and that they would
not have been
entitled to delegate their respective functions and powers to each of
the other. He furthermore submitted that employment
by the second-
and third applicants of their own counsel was justified in the
interests of maintaining continuity; that the public
functions and
the particular aspects of the public interests promoted by each are
not identical; and that the historical and other
issues pertaining
to the reasonableness or otherwise of the delay in launching the
application and the possible need for the condonation
thereof
differed in important respects from applicant to applicant. These
factors as well as the factors that have been mentioned
in the
context of the reasonableness of the employment of three counsel by
the first applicant, in my view, show convincingly that
the
employment by each of the applicants of their own counsel as well as
having employed more than one counsel was warranted in the
particular
circumstances of this case.
[49]I
accordingly order the first respondent to pay each of the applicants’
costs of suit on a party and party basis and further
direct that in
the case of the first applicant such costs shall include the costs of
employing three counsel and in the case of the
second- and third
applicants the costs of the employment of two counsel.
[50]As
I am satisfied that the qualifying expenses in respect of the
following experts were reasonable incurred, it is ordered that
the
costs recoverable from the first respondent shall include the
qualifying expenses of: -
L R Le Roux
N
D Smith
J
F du Toit
J
E Avis
P
N Tomalin
J
P Rossouw
A
Malan
S
C Nicks
B
K Tait
E
Abrahams
and
in the case of the second applicant of: -
Y.
Da Costa
B
J Mellon
A.
Ballantyne
______________
D. VAN RENEEN
YEKISO,
J:
I
agree.
___________
N.J.
YEKISO