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[1997] ZAWCHC 1
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Evans and Others v Transitional Metropolitan Substructure of Llandudno/ Hout Bay and Another (10016/96) [1997] ZAWCHC 1; 2001 (2) SA 342 (C) (17 December 1997)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
no,: 10016/96
In
the matter between:
KENNETH
WARREN EVANS
................................................................................................
First
applicant
JULIA
MARY ELIZABETH EVANS
................................................................................
Second
applicant
EDGAR
LEOPOLD BISSCHOP
..........................................................................................
Third
applicant
CHRISTINE
FRITZ
............................................................................................................
Fourth
applicant
THE
TRUSTEES FOR THE TIME BEING OF
THE
LICHTENSTEIN TRUST
...............................................................................................
Fifth
applicant
CARLOS
ZEFERINO DE JESUS NOBREGA
......................................................................
Sixth
applicant
BELLA
TEIXEIRA NOBREGA
........................................................................................
Seventh
applicant
and
TRANSITIONAL
METROPOLITAN SUBSTRUCTURE
OF
LLANDUDNO/HOUT BAY or its successor in title
.................................................
First
respondent
CAPE
METROPOLITAN COUNCIL or its successor in title
....................................
Second
respondent
JUDGMENT
GIVEN THIS 17 DAY OF DECEMBER 1997
CLEAVER
J:
This
matter stems from the application by the respondents of the
provisions of section 31A of the Environment Conservation Act No.
73
of 1989 (the act), subsection (i) of which reads as follows:
If,
in the opinion of the Minister or the competent authority, iocai
authority or government institution concerned
,
any
person performs any activity or fails to perform any activity as a
result of which the environment is or may be seriously damaged,
endangered or detrimentally affected, the Minister
;
competent
authority, local authority or government institution, as the case may
be, may in writing direct such person -
(a)
to cease such activity; or
(b)
to take such steps as the Minister
;
competent
authority, local authority or government institution as the case may
be may deem fit,
within
a period specified in the direction, with a view to eliminating,
reducing or preventing the damage, danger or detrimental
effect”
The
applicants are the owners of plots of land that extend up the lower
slopes of the Karbonkelberg Mountains in Hout Bay. In March
of 1995,
the first applicant commenced the construction of a so-called jeep
track across his property and that of the other applicants
which
would enable him and the other applicants to reach a plateau at the
top of the properties from which the owners could enjoy
a spectacular
view of Hout Bay and Chapman’s Peak. A jeep track permits
travel by 4-wheel drive vehicles only. He says that
the plateau is in
a relatively inaccessible area and as he and the other applicants,
whom he represents in the application are
in the main elderly people
who cannot reach the plateau on foot, the construction of the jeep
track is essential to enable them
to reach the plateau and also to
afford them access to one of the most desirable portions of the land.
He contends that concomitant
benefits of the jeep track are
accessibility for the purposes of firefighting, the elimination of
alien vegetation and the propagation
of certain indigenous species of
plant growth. The erven owned by the applicants were created upon the
subdivision of the original
erf 3476 Hout Bay, measuring
approximately 105 hectares, into five separate erven. At the time of
subdivision, all five erven were
undeveloped, but certain of the
applicants were at the time of the launching of the application busy
constructing residences on
their properties. According to the first
applicant, the track which was constructed was carefully planned with
the assistance of
a surveyor. The construction work was done under
his personal supervision with care being taken to preserve the
topsoil for re-use
in the rehabilitation process, wherever possible.
By
letter dated 19 February 1996 the second respondent acting as
"the
principal agent'
of first respondent issued a notice in terms of section 31A of the
act. The notice, which was addressed to all the applicants read:
"NOTICE
IN TERMS OF SECTION 31A OF ACT 73/1989
Road
Construction on Erven No.s 4968 and 4869 Hout Bay
This
Council acts as the Principal Agent of the Transitional Metropolitan
Substructure Llandudno
/
Hout
Bay.
Council’s
records reveal that you are the joint owners of the above properties
in undivided shares, which are further identified
on the attached
extract of noting sheet
it
has been brought to the attention of this Council that you or persons
authorised by you, are in the process of constructing a
road across
the properties. Your activities in this regard are construed by the
Council as seriously damaging and detrimentally
affecting the
environment.
You
are accordingly, hereby given notice in terms of Section 31A of the
Environmental Conservation Act No. 73 of 1989 to immediately,
upon
receipt of this notice, cease such activities and furthermore, to
rehabilitate the damage already caused in accordance with
the
directions of Council’s Manager of Parks and Forests, Mr. C.M.
Theunissen, at the Hout Bay Forest Station, Main Road,
Hout Bay.
In
the event that you should fail to comply with this notice the Council
will have no option, but to approach the Supreme Court
on an urgent
basis, for an interdict
,
directing
that you be prevented from continuing with this unlawful conduct.
Furthermore,
should you fail to take ail the necessary steps to rehabilitate any
and all damage caused to the environment (the mountain)
the Council
will itself undertake the necessary rehabilitation work, the cost
whereof will be for your account
Unless,
by noon, on Wednesday, 21 February, we receive your written
confirmation, either by delivery or by facsimile, to the above
address, that you have ceased the said unlawful activities, that you
will not recommence such activities and that you will undertake
the
necessary rehabilitative procedures, the Council will have no
alternative, but to proceed with the necessary legal action.
Enclosed
is
an extract of Section 31A of the Environmental Conservation Act You
are also referred to the provisions of Section 29(3) of that
act
which provides that failure to comply with this notice is an offence.
We
trust that such drastic action shall not be necessary and await your
communication as a matter of urgency.
Yours
faithfully
FOR
CHIEF EXECUTIVE OFFICER
"
I
shall refer to the decision of the Council as set out in this letter
as the first decision.
The
applicants responded immediately to this notice on the next day when
their attorneys addressed a letter to the second respondent
in which
detailed reasons for the decision to issue the notice were requested.
In a letter dated 1 March 1996, second respondent
advised the
applicants’ attorneys as follows:
"The
Council of the Transitional Metropolitan Substructure Llandudno/Hout
Bay duly met on 27 February 1996 and deliberated
upon this matter.
The resolution of the Council is attached hereto for your
information.
While
the Council confirmed the notice served on your clients and other co
owners dated 19 February 1996, should your client for
any reason
whatsoever dispute the validity of that notice then please be
informed on behalf of your clients that this letter in
so far as it
may be necessary constitutes further notice to your clients in terms
of Section 31A of Act 73 of 1989”
I
shall call the decision made on 27 February 1996 the second decision.
The
extract from the minutes of the Council meeting referred to in the
letter revealed that copies of letters of objection (eight
in number)
to the road being constructed by the first applicant had been tabled
at the meeting and had been noted by the Council.
I will in due
course deal with the significance of these letters.
Although
the applicants were not given notice of the meeting of 27 February,
the
first
applicant became aware of the meeting and attended it, but was not
allowed to speak.
The
requested reasons for the first decision were furnished to the
applicants
5
attorneys in a letter from the council of the first respondent dated
19 March 1996. Three reasons for the decisions were furnished,
namely:
1.
The adverse visual effect that the track would have on the tourism
industry and on local residents.
2.
The fact that the track was in an unsuitable location from a
geotechnical point of view.
3.
The residua! impact and the impact of on the stability of the
mountain slope were stated to be undesirable.
Regard
being had to the fact that the properties fall within an area
proclaimed in terms of the provisions of Act 88 of 1967 as
a nature
area, known as the
"Cape
Peninsula Protected Nature Area",
the letter recorded that no preliminary environmental impact study
appeared to have been undertaken prior to the construction of
the
road and concluded:
"I
reiterate that no further work on the road must take place pending
the receipt by this Council of the Environmental Impact
Assessment
report and further consideration of the matter by the Council."
The
applicants’ response to this letter was contained in a letter
from their attorneys
to
first respondent on 25 March 1996. In this letter the three reasons
for the first
decision
were responded to and dealt with in some detail and the letter also
contained
reports from two professional advisors. A report by a Mr H van der
Hoven,
a landscape architect and environmental planner, dealt with a visual
analysis
and rehabilitation recommendations for the jeep track, while a report
by
a
Mr B Alexander, a consulting engineer and director of Ninham Shand
Inc. was
entitled
"Guidelines for Treatment of Stormwater for Jeep Track
Construction"
and
contained
his comments in relation to the general practice and requirements
pertaining
to the limiting of erosion on the jeep track. The letter to the
second
respondent
concluded in the following terms:
"In
conclusion therefore our client requests the "CMC" and the
relevant "TMSs" to reconsider the action
taken regarding
the construction of the road on the relevant erven. We are
furthermore instructed that council is meeting on Tuesday,
the 26th
instant and we request, on behalf of our client that the following
points be addressed:
The
reconsideration by the Llandudno\Hout Bay TMS of the action taken to
issue a section 31A Notice in respect of the road construction
on
erven 4868 & 4869, Hout Bay.
The
approval of the completion of the road, subject to our client, at his
own cost, abiding by the recommendations made by Messrs
H van der
Hoven and B Alexander.
We
await your comments hereto and record that our clienfs rights are
fully reserved. We emphasise that your urgent attention hereto
is
required as further delays in the completion and rehabilitation of
the road may have an undesirable long and short-term effect
on the
properties in question ”
The
next communication was a letter by way of facsimile transmission from
the first respondent to the applicants’ attorney
dated 29 April
1996 enclosing a set of recommendations made by the Executive
Committee of the first respondent which were stated
to be subject to
confirmation. The main thrust of the recommendations was that the
initial prohibition against the construction
of the jeep track to a
certain point was to be withdrawn, that the remaining disturbed area
up to a point higher up was to be constructed
as a footpath, but no
further construction work other than a foot path was to be permitted
beyond the second point. Although these
concessions ameliorated the
initial stance of the first respondent to a degree, the effect
thereof was still to prevent the applicants
from getting to the top
of their properties. The recommendations preventing any further
construction of the jeep track, had never
been put to the applicants.
These were
that
the applicants were to employ two sets of consultants at their own
expense in order to implement the recommendations in the
reports
prepared by them which had been submitted by the applicants and that
in doing so, the rehabilitation works were to be
under the
supervision of the consultants and be acceptable to the second
respondent’s Chief Engineer: Design and the Manager,
Parks and
Forests,
that
a financial guarantee was to be furnished for an amount acceptable
to the Council to ensure the completion of the rehabilitation
requirements and
that
acceptable proposals were to be submitted in respect of fire
protection measures for the revegetation programme.
The
applicants responded to this letter on 8 May 1996 in the form of a
letter from their attorneys by dealing with and taking issue
with
certain of the recommendations. It is clear that, as far as the
applicants were concerned, they were at that stage under the
impression that they were in the process of negotiating a
satisfactory conclusion of the dispute with the council for the
letter
records
inter
alia
"For
the purpose of engaging in discussions regarding your
recommendations, our clients do not propose to deal with the validity
or otherwise of the Notice which you have issued or the grounds for
challenging such Notice..."
The
next step in the saga was a letter from the second respondent to the
applicants’ attorneys dated 14 May 1996 in which
the applicants
were notified that the recommendations of the Executive Committee had
been adopted by the council of the first respondent
at a meeting on
30 April, i.e. the day after the day on which a copy of the
recommendations had been forwarded to the applicants’
attorneys. The letter went on to amplify some of the recommendations
which had been accepted by the council. In a letter dated
10 June
1996 the applicants’ attorneys requested reasons for the
decision taken by the council on 29 April and on 12 July
the second
respondent advised the attorneys
"This
Council has only issued your clients with one notice in terms of
Section 31A of Act 73 of 1989. The notice was issued
as an emergency
measure to prevent the damage and detrimental effects to the
environment caused by your clients’ actions
from continuing.
The subsequent correspondence exchanged with yourselves sought to
give content to this notice by providing reasons
for our actions and,
after negotiations and meetings between the parties, the details of
the steps which are required to eliminate
and reduce the damage,
danger and detrimental effects of your clients’ actions. The
details were provided in terms of Section
31A of the Act and were
parts of, what has always been one administrative act by this
Council. Accordingly, we are not prepared
to provide you with any
further reasons as at this time and we refer you again to the
contents of our letter of 19 March 1996 where
the reasons for our
action in terms of Section 31A were set out in detail. These still
remain valid."
Notwithstanding
the fact that the second respondent as at the time of writing this
letter took up the view that only one decision
in terms of Section
31A had been made, Mr
Burger,
who
together with Mr
Breytenbach
appeared
for the respondents, conceded that three decisions had been in fact
taken in terms of the section.
On
7 August 1996 the applicants launched the application before me to
review and set aside all three decisions and after respondents’
answering affidavit and the applicants’ reply thereto had been
filed, the applicants brought a substantive interlocutory
application
for a declaratory order to determine various issues of fact and law
separately and before the remaining issues were
dealt with. This, in
turn, led to an order being granted by consent in which the various
issues in respect of which a declarator
has been sought were set out.
The issues, together with one additional issue agreed to by the
parties, were argued before me. There
are a number of issues and I
will not record them at this stage, but will do so together with my
rulings at the conclusion of this
judgment. I turn now to the various
attacks made by the applicants on the three decisions.
DID
SECTION 32 OF THE ACT APPLY?
Section
32 of the act reads as follows:
"32.
Publication for comment- (1) If the Minister
;
the
Minister of Water Affairs, a competent authority or any local
authority
,
as
the case may be, intends tote) issue a regulation or a direction
in terms of the provisions of this Act;
make
a declaration or identification in terms of section 16(1), 18(1),
21(1) or 23(1); or
determine
the policy in terms of section 2,
a
draft notice shall first be published in the Gazette or the Official
Gazette in question as the case may be.
The
draft notice referred to in sub-section (1) shall include-
the
text of the proposed regulation, direction, declaration,
identification or determination of policy;
a
request that Interested parties shall submit comments in connection
with the proposed regulation, direction, declaration, Identification
or determination of policy within the period stated in the notice,
which period shall not be fewer than 30 days after the date
of
publication of the notice;
the
address to which such comments shall be submitted.
If
the Minister, competent authority or local authority concerned
thereafter determines on any alteration of the draft notice
published as aforesaid, it shall not be necessary to publish such
alteration before finally issueing the notice
The
first issue to be decided is whether each of the notices given to the
applicants constituted a "
direction"
as envisaged in section 32(1)(a), in which event the first respondent
would have been obliged to follow the procedure prescribed
in section
32(1). The answer to this question is, of course, to be found in the
interpretation which should be placed on section
31 A. Section 31A
was not part of the act as originally promulgated. It was introduced
as a separate section by section 19 of Act
No.79 of 1992 and applied
with effect from 26 June 1992, some three years after the act itself
was promulgated. Mr
Burger
argued
that the section is a self- contained one and does not apply to the
type of directions which are to be dealt with in terms
of section 32.
He contended that, when analysed, section 32 governs the procedure
for administrative action which affects the community
at large and
that the "
directions
"
to which section 32(1 )(a) apply are those with "
legislative
"
or ”
quasi-legislative
"
impact, e.g. those such as directions in respect of any land or water
in a protected natural environment that the Minister
may issue in
order to achieve the general policy and objects of the act (section
16(2)) and directions regarding the control, management
and
decommissioning of waste disposal sites referred to by the Minister
of Water Affairs (section 20(5)). Mr
Viljoen,
on
the other hand, who appeared for the applicants together with Mr
Goodman,
contended
that one must give effect to the clear words and meaning contained in
the act and that consequently the "
direction
"
referred to in section 32(1 ){a) includes anything that the competent
authority has in writing "
directed
"
anyone
to do in terms of section 31A of the act. There is of course a duty
on the Courts to give effect to the clear meaning of
a statute and
not to improve legislation and there is no general warrant for
importing limiting words to a statute when none are
expressly
provided.
Ex
parte
(Slater
Walker Securities SA Limited
1974
(4) SA 657
(W)
List
v Jungers
1979 (3) SA 106
(A) at 123B-E
Mr
Viljoen
contends
that the legislature must have been aware of the existing provision
in section 32 when the far-reaching powers introduced
by way of
section 31A were included in the act and that consequently Section 32
applies. Although I consider that there is much
to be said for Mr
Burger’s
view
that section 31A is a self-contained section which is intended to
deal with matters which do not fall under section 32,1 do
not propose
to make a finding in respect of this issue in view of the conclusions
that I have come to in regard to certain of the
other issues which
are to be determined.
DOES
NATURAL JUSTICE APPLY?
It
is the applicants’ case that they were not given notice of and
any opportunity to be heard in respect of the three decisions
in
question and that, accordingly, the decisions fall to be set aside.
The application of the
audi
alteram partem
principle has received much judicial recognition in recent times and
it is not necessary to set out the principles relating thereto
in
great detail. In
Administrator
Transvaal and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
,
Corbett
CJ,
in discussing the maxim, expressed himself as follows at 749G-H:
"The
maxim expresses a principle of natural justice which is part of our
law. The classic formulations of the principle state
that
,
when
a statute empowers a public official or body to give a decision
prejudicially affecting an individual in his liberty or property
or
existing rights, the latter has a right to be heard before the
decision is taken (or in some instances thereafter - ....) unless
the
statute expressly or by implication indicates the contrary."
In
South African Roads Board v Johannesburg City Council
1991
(4) SA 1
(A) the audi principle
was
described by
Corbett
CJ
(at 10G -
1)
as
being
"...
a
rule of natural justice which comes into play whenever a statute
empowers a public official or body to do an act or give a decision
prejudicially affecting an individual in his liberty or property or
existing rights, or whenever such individual has a legitimate
expectation entitling him to such a hearing, unless the statute
expressly or by implication indicates the contrary;..."
The
audi
principle
is, of course, a facet, and an important one of the general
requirement of natural justice that when steps are taken by a public
official or body which prejudicially affect an individual in his
liberty or property or existing rights, that official or body
must
act fairly. See
Du
Preez and Another v Truth and Reconciliation Commission
[1997] ZASCA 2
;
1997
(3) SA 204
at (G),
Van
Huyssteen and Others NNOv Minister of Environmental Affairs and
Tourism and Others
1996
(1) SA 283
(C) at 304A - 305D.
As
to how the principle of fairness is to exercised, see
Doody
v Secretary of State for the Home Department and Other appeals
[1993] 3 All ER 92
(HL), quoted with approval in
Du
Preez and Another Truth and Reconciliation Commission (supra)
at 231 (I), in which Lord Mustill stated in his speech which was
concurred in by the remaining members of the Court (at 106d -
h)
"What
does fairness require in the present case? My Lords
,
I
think it is unnecessary to refer by name or to quote from, any of the
often-cited authorities in which the Courts have explained
what is
essentially an intuitive judgment. They are well known. From them I
derive the following:
Where
an act of Parliament confers an administrative power there is a
presumption that it will be exercised in a manner which
is fair in
all circumstances.
The
standards of fairness are not immutable. They may change with the
passage of time, both in general and in their application
to
decisions of a particular type.
The
principles of fairness are not to be applied by rote Identically in
every situation. What fairness demands is dependent on
the context
of the decision and this is to be taken into account in all its
aspects.
An
essential feature of the context is a Statute which creates the
discretion, as regards both its language and the shape of the
legal
and
administrative system within which the system within which the
decision is taken.
Fairness
will very often require that a person who may be adversely affected
by the decision will have an opportunity to make
representations on
his own behalf either before the decision is taken with a view to
producing a favourable result, or after
it is taken with a view to
procuring its modification or both.
Since
the person affected usually cannot make worthwhile representations
without knowing what factors may weigh against his interests
fairness will often require that he be informed of the jist of the
case which he has to answer."
As
to whether the affected person should be heard before or after a
decision affecting him is taken
Corbett
CJ
held in
Traub’s
case at 750C - D:
"Generally
speaking, in my view, the
audi
principle requires the hearing to be given before the decision is
taken by the official or body concerned, that is while he
or it still
has an open mind on the matter. In this way one avoids the natural
human inclination to adhere to a decision once taken,...
although he
made it clear that when it is necessary to act with expedition or
where for some other reason it is not feasible to
give a hearing
before the decision is taken the individual concerned may be afforded
a hearing after the prejudicial decision has
been taken. Baxter in
Administrative
Law
has
this to say (p587) "A subsequent hearing will be of no real
substitute: one has then to do more than merely present one’s
case and refute the opposing case - one also has to convince a
decision-maker that he was wrong. In a sense the decision-maker
is
already prejudiced. As a principle, therefore, failure to observe
natural justice before the decision is taken will lead to
invalidity." It is implicit in a proper hearing that it must
include a "fair opportunity to those who
are
parties in the controversy for correcting or contradicting anything
prejudicial to
their
view ."
This has been explained by Lord Denning to mean
"If
the right to be heard is to be a real right which is worth anything,
it must carry with it a right in the accused man to
know the case
which is made against him. He must know what evidence has been given
and what statement have been made affecting:
and then he must be
given a fair opportunity to correct or contradict them."
See
Wade and Forsythe
Administrative
Law
(7th
Edition) at p531 and
Board
of Education v Rice
[1911
] AC 179 and
Kanda
v Government of Malaya
[1962]
AC 322.
Bearing
the above principles in mind I now deal with the three decisions
taken by and on behalf of the first respondent.
THE
FIRST DECISION
On
the face of it, it would appear that no notice was given to the
applicants and the first applicant also testified that he had
received no notice of the intended action taken on behalf of the
first respondent prior to the issuing of the notice. Mr
Burger
argued
in the first place that the first decision constituted what he called
a "
stop-
order
M
which would prevent the applicants from proceeding with the
construction of the road, but at the same time allow them an
opportunity
to exchange views with the Administratve Body as to how
the problem was to be solved. On this basis no prior notice would
have
been necessary. If I understood him correctly, he argued that in
the event of my holding that the first decision was a decision
in
respect of which prior notice was necessary, I should find that on
the papers there is a dispute of fact as to whether notice
was given
and that this aspect should be referred for ora! evidence.
Mr
Burger’s
basis
for the argument that no prior notice was required was that an
emergency had arisen and that urgent action was required. While
there
is no doubt that situations can arise where, because of the urgency
involved, the giving of notice and the convening of a
hearing prior
to an administrative decision being made may have the effect of
delaying the matter to such an extent that irreparable
harm will be
caused, this was not a case which justified such an approach. The
facts of this case are that the first respondent
had been aware of
the fact that the applicants were constructing the jeep track in the
area in question for many months. The second
respondent filed an
affidavit by a Mr Theunissen, its manager of the Parks and Forests,
who is stationed at the Hout Bay Forestry
Station and who testified
to several conversations which he had had with the first applicant
about the construction of the road.
He spoke to him in 1995 and on 24
January 1996 he had a telephone conversation with the first applicant
during which the disputed
road was discussed in detail. During this
conversation the first applicant told him that he did not intend
applying for permission
to construct the road as he as owner could
build a road over his own property. If the matter was indeed urgent
the second respondent
could have sought an undertaking from the
applicants to undertake no further construction of the track pending
a decision in terms
of Section 31A after hearing the applicants. If
the applicants had failed to furnish such an undertaking, the second
respondent
would then have been perfectly justified in approaching
the courts for urgent relief in the form of an interdict. As will be
seen
from the letter containing the first notice in terms of Section
31 A, the second respondent was well aware of the fact that this
court could be approached for urgent relief. Mr
Burger
also
sought to justify the failure to give notice to the applicants on the
basis that the second respondent’s reason for making
the first
decision were conveyed to the applicant in an exchange of views and
correspondence which took place after the second
decision had been
made and that the applicants then had a sufficient opportunity to
respond to these reasons. I can find nothing
in the wording of
Section 31 which justifies the interpretation placed thereon by Mr
Burger
that
the second respondent was entitled to issue a direction in terms of
Section 31A without giving the applicants notice of its
intention to
do so and without giving them an opportunity to answer or respond to
the views of the second respondent. As to the
notice which is
required by persons liable to be directly affected by proposed
administrative acts, decisions or proceedings, it
is clear that such
persons must be given adequate notice of what is proposed so that
they may be in a position:
1.
To make representations on their own behalf, or
2.
To appear at a hearing or enquiry (if one is to be held) and
3.
Effectively to prepare their own case and to answer the case (if any)
they will have to meet.
See
de Smith Woolf & Joweil Judicial Review of Administrative Action
(5th
Edition)
p432 and Baxter
Administrative
Law
366
and 544.
It
is clear that no written notice of the council’s intention to
issue a direction in terms of Section 31A was given to the
applicants, but respondents argue that the conversations which Mr
Theunissen had with the first applicant constitute such notice.
In
his affidavit, Mr Theunissen states that during the course of his
performance of his duties over the years he has come to know
the
first applicant and certain of the other applicants. He says that on
several occasions in the past the first applicant indicated
to him
that he intended building the road in question. The first applicant
initially told him that he intended using the road for
fire-fighting
purposes and for clearing alien plant infestations, but during the
course of the telephone conversation in January
of 1996 previously
referred to, the first applicant told him that he was building the
road in order to gain access to the splendid
views which could be had
from the top of his property. Mr Theunissen says that when he heard
that the first applicant was building
the road he urged him not to
build the road without first obtaining the permission of the relevant
government department. (I interpose
to say that there appears to have
been a suggestion that a small portion of the road either traversed
State land or would traverse
State land and it was that land which Mr
Theunissen had in mind when he indicated that the permission of the
relevant government
department would have to be obtained. The issue
of the State land, as such, is however, not relevant to this case.)
After the telephone
conversation in January 1996, Mr Theunissen says
that he requested the first applicant to cease building the road
until he had
obtained approval from the Cape Peninsula Protected
Natural Environment (CPPNE) Management Committee, but the first
applicant refused,
saying that the road was on his property and that
he could build a road on his property if he wished. This is the
extent of the
communication between Mr Theunissen and the first
applicant which Mr
Burger
contends
is sufficient notice of the second respondent’s intention to
issue the Section 31A notice. I cannot agree. The intimation
by the
manager of the Parks and Forests of the Cape Metropolitan Council
that the first applicant should obtain the permission
of the CPPNE is
not by any stretch of the imagination the notice which the applicant
would be entitled to receive prior to a notice
in terms of Section
31A of the act being issued. There is therefore, in my view, no
dispute of fact as to whether or not such notice
was given. I will in
due course deal with the interchange of views which took place
between the parties after the second decision
had been made.
THE
SECOND DECISION
The
second decision seems to have been nothing more than a precautionary
move by the second respondent in order to avoid any dispute
about the
validity of the first decision. It is quite clear that no notice of
the second respondent’s intention to take a
second decision was
given to the applicants and the applicants were certainly not given
any opportunity to make representations
to the second respondent
prior to the decision being taken, for although the first applicant
had come to hear of the fact that
the council would be deliberating
about the matter, he was refused a hearing when the meeting took
place.
As
previously mentioned, the letter from the first respondent included
copies of eight objections. These, which had in effect been
canvassed
by Mr van der Spuy, the Director: Administrative Service (Legal and
Estates) of the second respondent, were from the
Wildlife Society
(Western Cape Branch), the National Parks Board, Hout Bay Museum, the
CPPNE, the Hout Bay and Llandudno Heritage
Trust and private
individuals. The applicants were not apprised of these objections,
nor were they given an opportunity to respond
to them before the
second decision was made.
THE
THIRD DECISION
It
is clear that the applicants were at no stage aware that the second
respondent intended to take a third decision which would
result in a
notice in terms of Section 31A of the act being issued: indeed, as
late as 12 July 1996 the second respondent itself
still held the view
that only one notice in terms of Section 31A of the act had been
issued.
It
was only when the second respondent came to file a reply to the
application by means of an affidavit by Mr van der Spuy, that
the
second respondent, after having obtained legal advice, conceded that
the resolution adopted by the council of the first respondent
on 30
April 1996 did constitute an administrative act in terms of Section
31A of the act, because,
"not
least"
says Mr van der Spuy
"It
differed in significant respects from the 'stop
3
notice
delivered to the applicants on 19 February 1996".
Counsel are agreed that the validity of the third decision is really
the crux of this matter. Argument was addressed to me about
whether,
in the light of the fact that when the council took the third
decision, it was of the view that it had taken only one
administrative act, a decision affecting the validity of the third
decision would have a domino effect on the other decisions.
Although
the three decisions might all be separate decisions requiring each to
be considered separately, the third decision is
clearly the most
important one. Should it be found to have been validly taken, any
finding concerning the validity of the first
and second decisions
will be of academic interest only. In as much as the third decision
was more wide-ranging than the two earlier
decisions, the striking
down of the third decision would theoretically require the earlier
decisions also to be considered.
As
far as the applicants are concerned, they responded to the reasons
furnished by the respondents for the first decision and had
requested
the respondents to reconsider that decision in the light of their
response. Although the applicants were not given notice
of the third
decision, the respondents contend that in the light of the exchange
of correspondence which preceded the decision
of 30 April, and also
in the light of a joint site inspection which took place on 5 March
1996, the applicants had, in effect,
been given an opportunity to be
heard before the third decision was taken. As far as the site
inspection is concerned, the purpose
of the inspection was, according
to Mr van der Spuy
"to
inspect the work on the disputed road'.
It was most certainly not an opportunity at which to discuss ail the
reasons previously given by the respondents or to place the
applicants’ concerns before the respondents. In any event, at
the time the respondents’ reasons for the first decision
had
not yet been communicated to the applicants. It is also quite clear
that the applicants were not given an opportunity to respond
to or
comment on the nine recommendations of the Executive Committee which
the second respondent accepted and which then became
the third
decision. Those of the recommendations which were contrary to the
proposals made by the applicants’ environmental
consultant,
particularly in regard to the portion of the road beyond the point at
which the first respondent required all construction
work to cease,
were never put to the applicants and, furthermore, the decision was
based on, or influenced by, damaging (for the
applicants’)
views held by the CPPNE and National Parks Board, which had been
communicated to the second respondent in writing
but which had not
been disclosed to the applicants. Even allowing for the natural and
"permissible"
bias, which the second respondent may have as custodian of the
environmental legislation, (see de Smith, Woolf & Jowell
supra
546
- 7,
An
Introduction to Administration
3rd
Edition (1996) 171 and Baxter
supra
567) it seems clear that the applicants were never treated in a fair
manner in that they were never properly informed that the
respondents
were considering taking adverse decisions against them, nor were they
properly apprised as to the basis on which such
decisions might be
taken. In the result, they were not given an opportunity to deal with
the
prima
facie
view of the first respondent. Whatever view the first respondent
might have taken in the papers, it is quite clear that until November
1996 it was of the view that only one administrative decision had
been made. That decision was also taken without informing the
applicants of the various objections that it had received and the
argument put forward on behalf of the applicants that they had
been
unfairly treated by the second respondent, is therefore hardly
surprising.
The
respondents contend that any failure of natural justice which might
be found to have occurred in relation to the first and second
decisions were remedied in March and in April 1996 by the
respondents
5
efforts to reach agreement with the applicants on the future of the
disputed road and the implementation of the rehabilitative
measures
in the reports of Van der Hoven and Ninham Shand. The answer to this
is that the applicants were at no stage informed
that the Council was
contemplating making another decision. They were under the impression
that they were still dealing with the
first decision and furthermore,
they were never afforded the opportunity of dealing with the
recommendations of the Executive Committee
which were made on 29
April and adopted by the Council of first respondent on 30 April
1996. These covered matters which had not
been dealt with or referred
to in the reasons which had been furnished for the first decision. As
at 30 April the reasons furnished
to the applicants on 19 March
constituted the only written intimation of the basis of the Council’s
objection to the construction
of the road. A further site meeting
took place between officials of the second respondent and the first
applicant on 13 June 1996,
but the view of the second respondent with
regard to the applicants’ objections to the recommendations of
the council, as
contained in a letter from the second respondent to
the first applicant on 20 June 1996, was"
That
Council officials are not in a position to deviate/amend any of the
Substructure’s resolutions
It
is clear from the aforegoing that I am of the view that the
applicants were not treated fairly in accordance with the principles
of natural justice in that they were not given notice of, or any
opportunity to be heard in respect of any of the three decisions
made
by the first and/or second respondents and that the correspondence
and meetings between the parties which ensued after the
first
decision had been taken did not exonerate the respondents from their
failure to give the required notice and opportunity
to be heard.
I
will now deal with the specific issues which were argued and in
respect of which a declarator is sought.
1.
Did the applicants comply with section 36 of the Environment
Conservation Act, 73 of 1989 and, if not, should the application
be
dismissed for this reason alone?
I
was advised by counsel that this issue had fallen away.
2.
Were the review proceedings in relation to the relief sought in
paragraph (a)(i) and (ii) of the notice of motion brought within
a
reasonable time and, if not should those prayers be dismissed for
this reason alone?
Counsel
advised me that this issue had also fallen away.
3.1.
Did the applicants have a right to be given notice and/or to a
hearing prior to the decision referred to in paragraph (a)(i)
of the
notice of motion?
The
applicants had the right to be given notice and/or to a hearing prior
to the decision.
3.2.
If the answer to the above question is that applicants had a right to
be given notice and/or a hearing prior to the decision,
was such
right afforded to them or does the decision fall to be set aside by
reason of the failure to afford them such right?
Such
right was not afforded to the applicants and the decision therefore
falls to be set aside by reason of the failure to afford
them such
right.
3.3.
Were the second respondent and Mr van der Spuy authorised to take the
decision referred to in paragraph (a)(i) of the notice
of motion?
In
the light of my other findings, it is not necessary to consider this
question.
4.1.
Did the applicants have a right to be given notice and/or to a
hearing prior to the decision referred to in paragraph (a)(ii)
of the
notice of motion?
The
applicants did have a right to be given notice and/or to a hearing.
4.2.
Was the decision referred to in paragraph (a) (ii) of the notice of
motion validly taken?
The
decision referred to in paragraph (a)(ii) of the notice of motion was
not validly taken.
5.
Is the validity of the resolution of the first respondent referred to
in paragraph (a)(iii) of the notice of motion dependent
on the
validity of either or both of the decisions referred to in paragraphs
(a)(i) and (a)(ii) thereof? The validity of the resolution
of the
first respondent referred to in paragraph (a)(iii) of the notice of
motion is not dependent upon the validity of either
or both of the
decisions referred to in paragraphs (a)(i) and (a)(ii) thereof.
6.
What are the
"jurisdictional
fact(s)"
for the exercise of the power to make directions in section 31 A(l)
of the act?
7.
What standard of review applies to the exercise of the power to make
directions in section 31 A(1) of the act?
8.
What is the effect, if any, on the answers to the questions set out
in 1 to 7 above, of section 24 of the Constitution of the
Republic of
South Africa Act, 200 of 1994, alternatively, Item 23(2) (b) of
Schedule 6 to the Constitution of the Republic of South
Africa Act,
108 of 1996?
In
the light of the findings which ! have made as to the invalidity of
the three decisions taken by the first and/or second respondent
questions 6, 7 and 8 have become academic and do not require to be
decided.
Mr
Viljoen
has
requested that in the event of my making a finding which will have
the effect of disposing of the matter, I should make an appropriate
order. In view of my findings in regard to the three decisions, the
application succeeds and the following decisions of the first
and/or
second respondent are hereby set aside:-
(1)
the decision contained in the letter dated 19 February 1996 entitled
"Notice in terms of section 31A of Act 73/1989",
being
Annexure "KWE 9" to the founding affidavit of first
applicant;
(2)
the decision contained in the letter dated 1 March 1996 entitled
"Notice in terms of section 31A of Act 73 of 1989: road
construction erven 4868 and 4869 Hout: Mr K.W. Evans and others"
and the resolution of first respondent dated 27 February
1996
accompanying such notice, being Annexures "KWE 11" and
"KWE12" to the founding affidavit of first applicant;
(3)
the resolution of first respondent dated 30 April 1996 entitled
"Environmental damage resulting from road construction
on erven
4868 and 4869 Hout Bay", being Annexure "KWE 27B" to
the founding affidavit of first applicant.
I
am satisfied that the matter justified the employment of two counsel
by the applicants and the first and second respondents are
therefore
ordered to pay the costs of the application including the costs of
the interlocutory application referred to in the notice
of motion
dated 11 August 1997, jointly and severally. Such costs are to
include the costs of two counsel.
R
B CLEAVER