About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
1997
>>
[1997] ZAWCHC 3
|
|
Evans and Others v Transtitional Metropolitan Substructure of Llandudno/ Hout Bay and Another (10016/96) [1997] ZAWCHC 3 (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 4868 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
(1) 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,
(2) that a financial guarantee was to
be furnished for an amount acceptable to the Council to ensure the
completion of the rehabilitation
requirements and
(3) 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 to
(a) issue a regulation or a
direction in terms of the provisions of this Act;
(b) make a declaration or
identification in terms of section 16(1), 18(1), 21(1) or 23(1); or
(c) 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.
(2) The draft notice referred to in
sub-section (1) shall include-
(a) the text of the proposed
regulation, direction, declaration, identification or determination
of policy;
(b) 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;
(c) the address to which such
comments shall be submitted.
(3) 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
,
/
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:
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 & Jowell
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