IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 41/2003
In the matter between
OUDEKRAAL ESTATES (PTY) LIMITED Appellant
and
THE CITY OF CAPE TOWN First Respondent
THE MINISTER OF LOCAL GOVERNMENT AND DEVELOPMENT
PLANNING, WESTERN CAPE Second Respondent
THE SOUTH AFRICAN HERITAGE RESOURCES AGENCY Third Respondent
SOUTH AFRICAN NATIONAL PARKS Fourth Respondent
________________________________________________________________________
CORAM: HOWIE P, CAMERON, BRAND, NUGENT JJA AND
SOUTHWOOD AJA
________________________________________________________________________
Date Heard: 17 February 2004
Delivered: 28 May 2004
Summary: Administrative decision – whether validly taken - consequences of
invalidity.
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
2
HOWIE P and NUGENT JA
[1] This appeal raises important questions for the rule of law. It raises the
question whether, or in what circum stances, an unlawful administrative act
might simply be ignored, and on what basis the law might give recognition
to such acts.
[2] The appellant company is the owner of undevel oped land (Erf 2802
Camps Bay) on the slopes of the Twel ve Apostles on the Atlantic seaboard
of the Cape Peninsula, adjacent to th e suburb of Camps Bay. Its immediate
predecessor in title secured the laying out and approval of the land as a
township in terms of the Township s Ordinance 1933 of 1934 (Cape) (‘the
Ordinance’).
1 The township establishment process involved, among other
things, the then provincial Administrato r’s grant of permission to establish
the township, an endorsement on the title deed to the land by the Registrar of
Deeds to the effect that it had been laid out as a township, and the opening in
the deeds office of a to wnship register. The Administrator granted
permission, subject to certain conditi ons, in 1957, the ot her formalities were
carried out, and the official notifica tion in the Provincial Gazette of the
township as approved occurred in 1962. It has since been referred to as
Oudekraal Township.
3
[3] The appellant bought the land in 19 65. The only material step it has
taken to develop a township on the la nd consisted in the submission in 1996
to the relevant local author ity (the Cape Metropolitan Council) 2 of an
application for approval of an engin eering services plan. The response from
the local authority was that the plan could not be approved because the
development rights had lapsed.
[4] In correspondence between the re spective attorneys for the appellant
and the local authority it emerged that the latter’s stance was based on the
alleged failure by the township appli cant to comply timeously with two
requirements of the Ordinance. One wa s to lodge a general plan of the
proposed township with the Surveyor-General for approval. The other was to
lodge the general plan as approved by the Surveyor-General with the
Registrar of Deeds. For each lodgeme nt a time limit was prescribed and in
each case the Administra tor was empowered to de termine a further period
for compliance.3 Also in each case, if an a pplicant failed to comply within
the prescribed or extended period, the Ordinance provided that the
1 The Ordinance came into force on 1 January 1935 and was repealed in 1985 by the Land Use Planning
Ordinance 15 of 1985 (Cape). There were various amendments over the years. Its provisions pertinent to
this case are cited below as they read at the various times that are relevant.
2 At the time of the Administrator’s grant of permission the local authority within whose area the land was
situate was the Cape Divisional Council, established under the Divisional Councils Ordinance 15 of 1952.
In 1996 it fell under the jurisdiction of the Cape Metropolitan Council, the successor to the Divisional
Council.
3 Section 19(1) provided for twelve months for the lodgement of the general plan with the Surveyor-
General and section 20(1) allowed three months for lodgment with the Registrar of Deeds.
4
Administrator’s permission to establis h the township would ‘be deemed to
have lapsed’. 4 In respect of each lodgeme nt an extension of time for
compliance was granted by the Admini strator. (In the case of lodgement
with the Surveyor-General there were three extensions.) Each such extension
was granted only after expiry of the prescribed period. The Cape
Metropolitan Council’s contention that lapsing had occurred was based on
the proposition that the Administrato r’s extensions after the respective
prescribed periods were ultra vires . (It was also asserted in any event that
the lodgements were not effected with in the respective extended periods but
we have assumed in the appellant’s favour that the lodgements were within
the extended periods.)
[5] Timeously lodged or not, a genera l plan as required by the Ordinance
was approved by the Surveyor-General and, with other documentation
specified in the Ordinance, 5 duly acted upon by the Registrar of Deeds. It
was designated General Plan T.P. 1781 L.D.
[6] The appellant did not immediately tu rn to law to challenge the refusal
to approve the engineering services plan. Instead it attempted certain
4 Section 19(3) and section 20(3).
5 In terms of s 20(1) lodgement was required of the general plan and a diagram of the land, a copy of the
conditions, if any, on which the Administrator granted the application and the title deed by which the land
was held.
5
political initiatives to summon support for the township’s development but
to no avail.
[7] Eventually, in September 2001, the appellant applied to the Cape High
Court for declaratory relief. In the noti ce of motion, as am ended later, three
declarations were sought. The first tw o, broadly summarised, were to the
effect that the extensions of time granted by the Administrator were intra
vires and that the lodgement and a pproval of the general plan, its
incorporation in the Deeds Registr y records and every subsequent act
involved in the establishment and approval of the township were all intra
vires and of full force and effect. The third read as follows:
‘Declaring, in addition and in any event, that the App licant’s development rights
over Oudekraal Township (General Plan T. P. 1781 L.D.), on Erf 2802 Camps Bay in the
Municipality of Cape Town, Western Cape Province (previously known as Portion 7 of
Cape Farm 902), notification of the approva l of which was published in the Provincial
Gazette on 19 January 1962, under Public Notice 59 of 1962, are of full force and effect,
and that the Applicants have the right to subdivide the aforementioned land in accordance
with General Plan T.P. 1781 L.D.’
[8] The respondents in the court below and on appeal are these. The first
respondent is City of Cape Town wh ich came into being in 1998 as the
single successor in law to both th e erstwhile City of Cape Town
6
Municipality and the Cape Metropolitan Council. 6 (For convenience we
shall refer to the first respondent as the City Council.)
[9] The second respondent is the Mi nister of Local Government and
Development Planning, Western Cape, being in law the successor of the
erstwhile Administrator and having th e power to perform certain duties in
relation to conditions imposed, inter alia, in terms of the Ordinance.7
[10] The third respondent is the Sout h African Heritage Resources Agency
which was established under the Nati onal Heritage Resources Act, 25 of
1999.8 In terms of that Act 9 its function is to co-ordinate the management of
what is called ‘the national estate ’ which includes places of cultural
significance, historical graves and s ites of significance to the history of
slavery in South Africa. 10 It was joined because of its ‘potential interest’ in
the matter but no relief was sought against it.
[11] The fourth respondent is South African National Parks (formerly the
National Parks Board) established under the National Pa rks Act 57 of 1976.
It is a corporate body and owns la nd adjoining the appellant’s land.
11 It was
similarly joined for its potential interest in the matter.
6 The relevant enactment was the Local Government: Municipal Structures Act, 117 of 1998.
7 The power is conferred by s 39 of the Land Use Planning Ordinance (see footnote 1).
8 Section 11.
9 Section 13(1)(b).
10 Section 3(2)(a), (g) and (h).
11 The adjoining land falls within the Cape Peninsula National Park which was proclaimed in terms of
s 2B(1) of the National Parks Act.
7
[12] The appellant’s application, wh ich was opposed by all the respondents
save for the second, was dismissed. The court’s judgment, given by Davis J,
Veldhuizen J concurring, is reported in 2002 (6) SA 573 (C). Essential to its
decision was the finding that the Admi nistrator’s extensions of time were
invalid (at 587E-F). The court went on to say that the grant of the relief
sought by the appellant woul d have the effect of proclaiming that an illegal
action had somehow evolved into a le gal decision and that would undermine
the principle of legality. Taking that into account and, amongst other things,
the fact that the existe nce of various Muslim burial sites on the land had not
been properly considered when the establishment of the township was
approved (an issue that we deal with more fully below) the court exercised
what it took to be its discretion to permit a collateral challenge by the City
Council to the validity of the Administra tor’s actions, and it refused to grant
the declaratory relief. Leave to appeal was refused by the learned judges but
granted by this court. The appeal is opposed by the first, third and fourth
respondents.
[13] In the view that we take of the case it is not necessary to decide
whether the extensions of time that were granted by the Administrator were
lawful. In our view the matter can properly be decided by focusing on the
Administrator’s grant of the applica tion to establish Oudekraal Township.
8
That was not an issue that was relied upon by the Cape Metropolitan Council
initially when it refused to consider th e engineering services plan. It was
first pertinently raised by the fourth respondent (South African National
Parks) in these proceedings and wa s adopted by the City Council. Because
of its centrality to the establishment of the township it has a crucial bearing
on the third declarator, which is the central relief that was sought by the
appellant.
[14] The evidence reveals that at various places on the land in question
there are in all more than twenty gr aves. They have special religious and
cultural significance to the members of Cape Town’s Muslim community.
Two of the graves are kramats. A kramat is the grave of somebody who,
among adherents of the Islamic faith, is regarded as having attained, through
conspicuous piety, ‘an enlightened sp iritual situation’. Such person having
thus been a ‘friend of God’, the spirit of God is to be found at the site.
[15] The kramats and other graves on the land are also important cultural
symbols in the Muslim community of its history in the Western Cape going
back to the era of slavery. Many of the graves are thos e of escaped slaves
and some of the kramats are the burial sites of spiritual leaders of the
community during those times. It is believed by followers of the faith that
by spending time at these sites they can enhance their own spirituality. One
9
of the kramats on the land encompassed by the approved township is that of
Sayed Jaffer. Thousands visit it each year. Moreover, the indications are that
the kramats generally have been visited regularly since before the end of the
nineteenth century. In the circumstan ces, access to the kramats is of great
importance to the Muslim people of Cape Town.
[16] The engineering services plan put before the Cape Metropolitan
Council in 1996 reflects the details of General Plan T.P. 1781 L.D.
(hereafter ‘the general plan’) as well as the location of the graves and the
two kramats. As explained by couns el for the third respondent during
argument – and these intimations were not contradicted or queried – the
position is this. The kramat of Sayed Ja ffer was one of a number of graves
more or less in the centre of a larg e erf destined for a school. The other
kramat was among another group of grav es spread over what were intended
to be three adjoining residential erven. Other proposed residential erven had
single graves within their boundaries. Finally, one of the graves was directly
in the path of a proposed public road.
[17] The general plan shows none of the graves. What has been found of
the documentation comprising or accomp anying the township application
makes no reference to them either . Nor do the conditions which were
imposed by the Administrator when gr anting the application. The township
10
application papers included a plan (numbered 16/A1/36/A) which accorded
in all material respects with the subdi vision and configuration of the general
plan. If the presence of the graves was known to the officials concerned they
would have seen with no difficulty wh at impact implementation of the plan
would have on the existence and physical integrity of the burial sites.
[18] Among the papers relating to the application is a copy of a document
reading as follows:
‘EXTRACT FROM THE MINUTES OF A MEETING HELD ON THURSDAY THE
22ND DECEMBER, 1955.
(6) Oudekraal Township.
The Board inspected the township on the 22nd December 1955.’
The reference to the Board in th e document is a reference to the
Townships Board constituted under s 2 of the Ordinance whose task it was
under s 11 to make recommendations to the Administrator whether to grant
or refuse a township application.12
[19] There is an affidavit in the re cord by the appellant’s attorney, Mr
Koumbatis, in which he submits that th e existence of kramats and graves on
the land would have been readily appa rent on the occasion of the Board’s
inspection. The suggested inference, we perceive, is that the existence of the
graves must have been pr esent to the minds of the Board and, consequently,
11
the Administrator. In our view that inference cannot necessarily be drawn.
The extract from the minutes does not indicate what was inspected or
observed. The reference to ‘the township’ is meaningless. There was none in
existence. But Mr Koumbatis’s submission carries an important concession,
namely, that the kramats and graves are indeed readily visible features of the
relevant landscape. The importance of that consideration is that a land owner
applying for permission to establish a township at that time was required to
complete a form detailing, among other things, all relevant physical features
of the land to be developed. A copy of the form used in this instance is part
of the record. It shows that the applicant’s response read thus: ‘See plans and
reports attached’. The attachments ar e not part of the record, hence the
submission on behalf of the appellant that one would not be justified,
without having all the documentation s ubmitted in the township application
or considered by the Board and the Ad ministrator, in concluding that the
graves and kramats were overlooked or ignored. Although press publication
advertised the application no objections appear to have been elicited.
[20] On the evidence we are unable to reach any conclusions other than the
following. The first is that the appli cant for the township made no reference
to the graves with the result that all the officials concerned, and particularly
12 Section 18(1)
12
the Administrator, were ignorant of their existence. The second, in the
alternative, is that if their existe nce was known it was i gnored. There simply
is no other realistic inference notw ithstanding that not all the relevant
documents are available.
[21] The first conclusion reflects a more likely state of affairs than the
second. We say so because it has alwa ys been an offenc e at common law to
desecrate a grave: Joubert (ed) The Law of South Africa 1 st reissue vol 20
part 2 at 279 para 324. It is unlikely th at that was not known to the officials
concerned who constantly dealt with matters of land rights.
[22] At the time of the Administrato r’s grant of approval there was no
provincial exhumation legislation in the then Cape Province. Subsequently
the Exhumations Ordinance of 1980 13 came into force but it made provision
for exhumation only in a cemetery. Of note, however, is that s 4 validated
exhumation effected pursuant to a permit issued by the Administrator before
the commencement of the Ordinance. That section does not speak of
exhumations specifically from a grave but if it is an indication of a
previously existing unlegislated procedure whereby the Administrator would
grant ad hoc permits for exhumation it is significant that if the officials
concerned knew about the graves no condition was attached to the
13 Ordinance 12 of 1980 (Cape).
13
Administrator’s permission for Oudekraal township requiring application for
such permits in this case. Township a pplications had to be considered by the
Provincial Secretary, then by the Townships Board and finally by the
Administrator.14 It would be extraordinary if the need for some provision to
cater for the presence of th e graves escaped them all if they knew of them.
The Surveyor-General (or his surrogate ) and the Registrar of Deeds of Cape
Town were members of the Township s Board (see s 2 of the Ordinance).
Had they and the Administrator been aware of all the relevant facts it is
probable that it would have been requi red that the general plan be drawn
excising the graves and kramats or w ith conditions for their preservation
being imposed. The Administrator had the power to amend conditions even
after the grant of his permission 15. There was therefore by inference no
realisation of the need for appropriate conditions even belatedly. Of course,
it is irrelevant how easily the position could have been rectified then. What
the appellant wants now is a declarator that its township rights are in all
respects enforceable, without any qualification, reservation or amendment.
[23] The deponent to the founding affidavit said:
‘I understand that there are no kramats and shrines on [the land].’
14 Section 11 read with section 18.
15 Section 18(3) and (3) bis of the Ordinance.
14
If this curious, and unexplained, stat ement was made in ignorance it could
arguably have been that the town ship applicant was himself equally
ignorant, thereby leading to the resu lting omission of this aspect from the
application papers and the failure of the relevant officials to consider it.
[24] There can be no doubt, however, that the presence on the land of
religious and cultural sites of particular significance to a sector of the Cape
Town community was a factor that should properly have been taken into
account and evaluated, also on pre- Constitutional principles, in coming to
the decision whether to permit the establishment of a township.
[25] Whether the Administrator, as the ultimate decision maker, was
ignorant of the graves and kramats or not, the inescapable conclusion must
be that he either failed to take account of material information because it was
not all before him or if, in the unlikel y event that it was before him, that he
wrongly left it out of the reckoning when he should have taken it into
account. In either situation his deci sion to lend approval on the terms he
granted was invalid. 16 It was, in addition, in either event ultra vires for the
reason that it permitted subdivisions and land use in criminal disregard for
16 Johannesburg Stock Exchange and another v Witwatersrand Nigel Ltd and another 1988 (3) 132 (A) at
152A-E. In the former situation the material facts should have been available to him for the decision
properly to be made: Pepcor Retirement Fund and another v Financial Services Board and another 2003
(6) SA 38 (SCA) para 47.
15
the graves and kramats. It would be impossible to avoid desecration or
violation if one were to make a road over a grave site or to build over it.
[26] For those reasons it is clear, in our view, that the Administrator’s
permission was unlawful and invalid at the outset. Whether he thereafter
also exceeded his powers in granting extensions for the lodgement of the
general plan thus takes the matter no fu rther. But the question that arises is
what consequences follow from the c onclusion that the Administrator acted
unlawfully. Is the permission that wa s granted by the Administrator simply
to be disregarded as if it had never ex isted? In other words, was the Cape
Metropolitan Council entitled to disregard the Administrator’s approval and
all its consequences merely because it believed that they were invalid
provided that its belief was correct? In our view it was not. Until the
Administrator’s approval (and thus also the consequences of the approval) is
set aside by a court in proceedings for ju dicial review it exists in fact and it
has legal consequences that cannot simply be overlooked. The proper
functioning of a modern state would be considerably compromised if all
administrative acts could be given eff ect to or ignored depending upon the
view the subject takes of the validity of the act in question. No doubt it is
for this reason that our law has alwa ys recognized that even an unlawful
16
administrative act is capab le of producing legally va lid consequences for so
long as the unlawful act is not set aside.
[27] The apparent anomaly (that an unlawful act can produce legally
effective consequences) is sometime s attributed to the effect of a
presumption that administrative acts are valid, which is explained as follows
by Lawrence Baxter: Administrative Law 355:
‘There exists an evidential presumption of validity expressed by the maxim omnia
praesumuntur rite esse acta ; and until the act in questi on is found to be unlawful by a
court, there is no certainty that it is. Hence it is sometimes argued that unlawful
administrative acts are ‘voidable’ because they have to be annulled.’
At other times it has been expl ained on little more than pragmatic
grounds. In Harnaker v Minister of the Interior 1965 (1) SA 372 (C)
Corbett J said at 381C that where a cour t declines to set aside an invalid act
on the grounds of delay (the same woul d apply where it declines to do so on
other grounds) ‘in a sense delay would . . . “validate” the nullity’.
Or as Lord Radcliffe said in Smith v East Elloe Rural District Council
[1956] AC 736 (HL) 769-70:
‘An [administrative] order…is still an act capable of legal consequences. It bears
no brand of invalidity upon its forehead. Un less the necessary proceedings are taken at
law to establish the cause of invalidity and to get it quashed or ot herwise upset, it will
remain as effective for its ostensible purpose as the most impeccable of orders.’
17
[28] That has led some writers to sugge st that legal validity (or invalidity)
in the context of administrative acti on is never absolute but can only be
described in relativ e terms. In Wade: Administrative Law 7 ed by H.W.R.
Wade and Christopher Forsyth at page s 342-4 that view is expressed as
follows:
‘The truth of the matter is that the court will invalidate an order only if the right
remedy is sought by the right person in the right proceedings and circumstances. The
order may be hypothetically a nullity, but the co urt may refuse to quash it because of the
plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because
he has waived his rights, or for some other legal reason. In any such case the ‘void’ order
remains effective and is, in reality, valid. It follows that an order may be void for one
purpose and valid for another; and that it may be void against one person but valid
against another… ‘Void’ is th erefore meaningless in any absolute sense. Its meaning is
relative, depending upon the court’s willingness to grant relief in any particular situation.’
[29] In our view the apparent anom aly – which has been described as
giving rise to ‘terminological and conceptual problems of excruciating
complexity’17 – is convincingly explained in a recent illuminating analysis
of the problem by Christopher Forsyth. 18 Central to that analysis is the
distinction between what exists in law and what exists in fact. Forsyth points
17 De Smith, Woolf & Jowell: Judicial Review of Administrative Action 5 ed para 5-044
18 Christopher Forsyth: “‘The Metaphysic of Nullity’: Invalidity, Conceptual Reasoning and the Rule of
Law” in Essays on Public Law in Honour of Sir William Wade QC ed Christopher Forsyth and Ivan Hare
(Clarendon Press) 141. Cited with approval by Lord Steyn in Boddington v British Transport Police [1999]
2 AC 143 (HL) 172B-D.
18
out that while a void administrative act is not an act in law, it is, and
remains, an act in fact, and its me re factual existence may provide the
foundation for the legal validity of later decisions or acts. In other words
‘… an invalid administrative act may, notw ithstanding its non-existence [in law], serve as
the basis for another perfectly valid decisi on. Its factual existe nce, rather than its
invalidity, is the cause of the subsequent act, but that act is valid since the legal existence
of the first act is not a precondition for the second.’19
It follows that
‘[t]here is no need to ha ve any recourse to a con cept of voidability or a
presumption of effectiveness to explain what has happened [when legal effect is given to
an invalid act]. The distinction between fact and law is enough.’20
The author concludes as follows:
‘[I]t has been argued that unlawful admini strative acts are void in law. But they
clearly exist in fact and they often appear to be valid; and those unaware of their
invalidity may take decisions and act on th e assumption that these acts are valid. When
this happens the validity of these later ac ts depends upon the legal powers of the second
actor. The crucial issue to be dete rmined is whether that second actor has legal power to
act validly notwithstanding the inva lidity of the first act. And it is determined by an
analysis of the law against the background of the familiar proposition that an unlawful act
is void’21 (our emphasis).
19 Forsyth, above, 147.
20 Forsyth, above, 148.
21 Forsyth, above, at 159.
19
[30] Lord Hoffmann drew the same distinction in Regina v Wicks 1998 AC
92 (HL) when he said the following at 117A-C:
‘[T]he statute may upon its true construction merely require an act which appears
formally valid and has not been quashed by judicial review. In such a case, nothing but
the formal validity of the act will be relevant to an issue before the justices.
[31] Thus the proper enquiry in each case – at least at first – is not whether
the initial act was valid but rather wh ether its substantive validity was a
necessary precondition for the validity of consequent acts. If the validity of
consequent acts is depende nt on no more than the factual existence of the
initial act then the consequent act will have legal effect for so long as the
initial act is not set aside by a competent court.
[32] But just as some consequences might be dependent for validity upon
the mere factual existence of the cont ested administrative act so there might
be consequences that will depend for their legal force upon the substantive
validity of the act in question. Wh en construed against the background of
principles underlying the rule of law a statute will generally not be
interpreted to mean that a subject is compelled to perform or refrain from
performing an act in the absence of a la wful basis for that compulsion. It is
in those cases – where the subject is sought to be coerced by a public
authority into compliance with an unl awful administrative act – that the
subject may be entitled to ignore the unl awful act with impunity and justify
20
his conduct by raising what has come to be known as a ‘defensive’ or a
‘collateral’ challenge to the va lidity of the administrative act. 22 Such a
challenge was allowed, for example, in Boddington v British Transport
Police,23 in which the defendant was char ged with smoking a cigarette in a
railway carriage in contravention of a prohibitory notice posted in the
carriage pursuant to a byelaw. The Hous e of Lords held that the defendant
was entitled to seek to raise the defenc e that the decision to post the notice
(which activated the prohibition in the byelaw) was invalid because the
validity of the decision was essential to the existence of the offence. (It
happened that the decision to post the no tice was held to be valid but that is
not material for present purposes). At 153H-154A Lord Irvine LC said the
following:
‘It would be a fundamental departure from the rule of law if an individual were
liable to conviction for contravention of some rule which is itself liable to be set aside by
a court as unlawful. Suppose an individual is charged before one court with breach of a
byelaw and the next day another court quashes that byelaw – for example, because it was
promulgated by a public body which did not ta ke account of a relevant consideration.
Any system of law under which the individua l was convicted and made subject to a
criminal penalty for breach of an unlawful bye law would be inconsistent with the rule of
law.’
22 A challenge to the validity of the administrative act that is raised in proceedings that are not designed
directly to impeach the validity of the administrative act.
21
And at 160 and 161 he went on to say the following:
‘[160C-G] However, in every case it will be necessary to ex amine the particular
statutory context to determine whether a c ourt hearing a criminal or civil case has
jurisdiction to rule on a defence based upon arguments of invalidity of subordinate
legislation or an administrative act under it . There are situations in which Parliament
may legislate to preclude such challenges being made, in the interest, for example, of
promoting certainty about the legitimacy of administrative acts on which the public may
have to rely … [161C-D] However, in appro aching the issue of statutory construction the
courts proceed from a strong appreciation that ours is a country subject to the rule of law.
This means that it is well recognised to be important for the main tenance of the rule of
law and the preservation of liberty that individuals affected by legal measures
promulgated by executive public bodies should have a fair opportunity to challenge these
measures and to vindicate their rights in court proceedings.’
As Lord Steyn pointed out at 173A-B:
‘Provided that the invalidity of the byelaw is or may be a defence to the charge a
criminal case must be the paradigm of collateral or defensive challenge.’
Dealing with an earlier decision of the Divisional Court that precluded
a collateral challenge to th e procedural validity of subordinate legislation in
criminal proceedings24 he went on to say the following at 173E-G:
‘My Lords, with the utmost deference to eminent judges sitting in the Divisional
Court I have to say the consequences of Bugg’s case are too austere and indeed too
23 Citation in footnote 18.
24 Bugg v Director of Public Prosecutions [1993] QB 473.
22
authoritarian to be compatible with the traditions of the common law. In Eshugbayi
Eleko v Government of Nigeria [1931] A.C. 662, a habeas corpus case, Lord Atkin
observed, at p 670, that “no member of the ex ecutive can interfere with the liberty or
property of a British subject except on conditi on that he can support the legality of his
action before a court of justice.” There is no reason why a defendant in a criminal trial
should be in a worse position. And that seems to me to reflect the spirit of the common
law.’
[33] So, too, is it implicit in the decision in National Industrial Council for
the Iron, Steel, Engineering & Metallu rgical Industry v Photocircuit SA
(Pty) Ltd and Others 25 that the coercive powers that the industrial council
purported to assert were dependent for their validity upon the lawful
establishment of the council and hence were subject to collateral challenge
when they were sought to be enforced.26
[34] Forsyth explains it as follows: 27
‘… only where an individual is required by an administrative authority to do or
not to do a particular thing, may that indi vidual, if he doubts th e lawfulness of the
administrative act in question, choose to treat it as void and await developments.
Enforcement proceedings will have to be brought by the administrative authority
involved; and the individual will be able to raise th e voidness of the underlying
administrative act as a defence.’
25 1993 (2) SA 245 (C).
26 See, too, the case of Wandsworth London Borough Council v Winder [1984] 3 All ER 976 (HL) relied
upon by the court a quo (see 592F-J) and other examples cited in Wade: Administrative Law 7ed 321-324.
27 Forsyth, above, 156.
23
[35] It will generally avail a person to mount a collateral challenge to the
validity of an administrative act where he is threatened by a public authority
with coercive action precisely because the legal force of the coercive action
will most often depend upon the legal validity of the administrative act in
question. A collateral chal lenge to the validity of the administrative act will
be available, in other words, only ‘i f the right remedy is sought by the right
person in the right proceedings’. 28 Whether or not it is the right remedy in
any particular proceedings will be de termined by the proper construction of
the relevant statutory instrument in th e context of principles of the rule of
law.
[36] It is important to bear in mi nd (and in this regard we respectfully
differ from the court a quo) that in those cases in which the validity of an
administrative act may be challenged collaterally a court has no discretion to
allow or disallow the raising of that defence: the right to challenge the
validity of an administrative act collaterally arises because the validity of the
administrative act constitutes the essentia l prerequisite for the legal force of
the action that follows and ex hypothesi the subject may not then be
28 Per Conradie J in Metal and Electrical Workers Union of South Africa v National Panasonic Co
(Parow Factory) 1991 (2) SA 527 (C) 530C-D and Scott J in Photocircuit, above, at 253E-F, citing Wade:
Administrative Law 6th ed at 331 (repeated in 7 ed, see para 28 above).
24
precluded from challenging its validity. 29 On the other hand, a court that is
asked to set aside an invalid administ rative act in proceedings for judicial
review has a discretion whether to grant or to withhold the remedy. 30 It is
that discretion that accords to judicial review its essential and pivotal role in
administrative law, for it constitutes th e indispensable moderating tool for
avoiding or minimizing injustice when legality and certainty collide. Each
remedy thus has its separate application to its appropriate circumstances and
they ought not to be seen as interc hangeable manifestations of a single
remedy that arises whenever an administrative act is invalid.
[37] In our view that analysis of the problems that arise in relation to
unlawful administrative action recognizes the value of certainty in a modern
bureaucratic state, a valu e that the legislature s hould be taken to have in
mind as a desirable objective when it en acts enabling legislation, and it also
gives proper effect to the principle of legality, which is fundamental to our
legal order. (Fedsure Life Assurance Ltd & Others v Greater Johannesburg
Transitional Metropolitan Council & Others 1999 (1) SA 374 (CC) paras
56, 58 and 59; Pharmaceutical Manufacturers Association of SA & Another:
In re Ex Parte President of th e Republic of South Africa & Others 2000 (2)
29 See the comments in Wade: Administrative Law 6 ed 354. (The passage appears to have been
inadvertently omitted from 7 ed: see Forsyth, above, fn. 68.)
30 Wandsworth London Borough Council v Winder, footnote 26. Generally , as to discretion, see De
Smith, Woolf and Jowell, para 20-007.
25
SA 674 (CC) para 50). While the legislat ure might often, in the interests of
certainty, provide for consequences to follow merely from the fact of an
administrative act, the rule of law dict ates that the coercive power of the
state cannot generally be used agains t the subject unless the initiating act is
legally valid. And this case illustrates a further aspect of the rule of law,
which is that a public authority cannot justify a refusal on its part to perform
a public duty by relying, without more, on the invalidity of the originating
administrative act: it is required to ta ke action to have it set aside and not
simply to ignore it.
[38] It will be apparent from that anal ysis that the substantive validity or
invalidity of an administrative act will seldom have relevance in isolation of
the consequences that it is said to have produced – the validity of the
administrative act might be relevant in relation to some consequences, or
even in relation to some persons, and not in relation to others – and for that
reason it will generally be inappropria te for a court to pronounce by way of
declaration upon the validity or invalidit y of such an act in isolation of
particular consequences that are said to have been produced.
[39] The City Council’s reliance upon a collateral challenge to the validity
of the Administrator’s decisions in the present case was, in our view,
misplaced. The approval of the township was, in truth, no more than a
26
permission to the land owner to devel op the land in a particular way (which
would otherwise be prohibited by the Or dinance) that took effect once the
various steps prescribed by the Ordina nce had been complied with (i.e. once
the approval had been granted, the va rious officials had performed their
respective functions, and the approval had been notified in the Provincial
Gazette.) On a proper construction of the Ordinance the validity of each of
those steps was not dependent on the legal validity of the Administrator’s
approval but merely upon the fact that it was given. The legislature could not
have expected the Surveyor-General first to satisfy himself that the
Administrator’s approval was valid befo re he approved th e general plan. It
also could not have intended the Registr ar of Deeds first to satisfy himself
that the approval was valid before he opened a township register. And it
could not have expected the townsh ip owner and the public at large to
enquire into the validity of the Admini strator’s approval before they relied
upon the notification in the Provincial Gazette that the township had been
approved. In our view the functionaries were authorized to act as they did
merely upon the fact of the Administ rator’s approval and their acts were
accordingly lawful. The effect of th e notification of the approval in the
Gazette, which was the final step in th e process, was that the owner of the
land was permitted to exercise the ordinary rights of an owner to develop the
27
land, provided, of course, that the de velopment was in accordance with the
approval and did not conflic t with other restrictions. (We might add that in
our view the Surveyor-General and th e Registrar of Deeds were similarly
authorised by the Ordinance to act upon the extensions that were granted by
the Administrator for the lodgement of the general plan even if those
extensions were invalid and their c onduct in doing so was thus authorised.)
In the form in which the matter comes before us the invalid administrative
act that is in issue is not sought to be applied coercively by a public authority
or to provide the foundation for coer cive action against the subject and
hence no rule of law considerations m ilitate against the construction that we
have given to the legislation.
[40] It follows that for so long as the Administrator’s approval (and the
extensions) continues to exist in fact the township owner has been permitted
to develop the township and the Cape Metropolitan Council was not entitled
simply to ignore that when deciding whether or not to carry out its public
functions. The statutory duties that are imposed upon a local authority to
consider plans of that nature were not canvassed before us, but there was no
suggestion that the relevant legislati on that imposes any such duties falls to
be construed as doing so only if the approval of the township was
substantively valid.
28
[41] But it does not follow that the appe llant was entitled to the declaratory
relief that it sought. On the contrary, in our view it was correctly refused,
for two reasons in particular.
[42] The first relates to only a portion of the third declaratory order and it
arises independently of the issues that have been dealt with thus far in this
judgment. Amongst other things the a ppellant sought a declaration that it
‘has the right to subdivide the … land in accordance with [the general plan
that has been registered].’ Clearly it is not entitled to proceed with the
development of the land in accordan ce with that general plan. The
exploitation of property rights is alwa ys constrained by such laws as exist at
the time that they are sought to be implemented. We have already drawn
attention to the fact that the layout of the township as depicted on the general
plan contemplates the development of residences and roads on various burial
sites. Even if the township had b een lawfully established we have little
doubt that the development of the la nd in accordance with the existing
general plan is constrained by the protec tion that is afforded to cultural and
religious practices by s 31 of the Bill of Rights. In any event the burial sites
are protected against disturbance by s 36(3) of the National Heritage
Resources Act 25 of 1999, quite apart from the common law constraint. On
29
those grounds alone the appellant was not entitled to that portion of the relief
that it sought and persisted in before us.
[43] But the second reason is more f undamental and goes to the heart of
what the appellant sought to achieve in this application. In prayers 1 and 2
the appellant sought declarations that the extensions by the Administrator of
the periods for the lodgement of the ge neral plan with the Surveyor-General
and with the Registrar of Deeds resp ectively were lawful. Those prayers
sought to meet and overrule the resi stance of the Cape Metropolitan Council
on the basis that it gave for refusing to consider the appellant’s engineering
services plan. The question whether the Administrator’s approval was
invalid for disregard of the existence of the burial sites had not arisen when
the Notice of Motion was first drafted and none of the prayers was directed
specifically to that issue. That i ssue – and, indeed, any other ground upon
which the lawful establishment of th e township might be challenged – was
sought to be catered for by prayer 3 in the omnibus form into which it was
amended. In that prayer (quoted in paragraph 7 above) the appellant sought
an undifferentiated declaration that its ‘development rights … are of full
force and effect.’
[44] The rather vague term ‘developmen t rights’ was used to encompass all
the consequences that generally follo w from the lawful establishment of a
30
township. In the form in which the re lief directed at them is sought the term
takes no account of whether those consequences are dependent for their legal
effect upon the factual existence of the approval of the township, or whether
they are dependent upon the substantive validity of the approval. What was
sought by the appellant, in effect, was an order declaring that all the ordinary
consequences that follow upon the lawful establishment of a township are
not open to any challenge. The attempt to obtain relief in this all-embracing
and undifferentiated form was, we think, wholly misdirected.
[45] We have already observed that it will generally be inappropriate to
make such a declaration in a vacuum . Perhaps the appellant might have
been entitled to a declaration in ge neral terms that the Administrator’s
approval and the subsequent acts of th e Surveyor-General and the Registrar
of Deeds existed in fact and that any consequences th at were dependent
merely upon the existence of those facts were of full force and effect. And
perhaps the City Council in those circumstances would be obliged to
consider the engineering services pl an that was submitted for approval and
the appellant was entitled to a declarat ory order to that effect. (We have
already observed that the City Council’s statutory powers and obligations in
that regard were not canvassed in th ese proceedings and we are not in a
position to decide whether that is so.) But the appellant did not confine the
31
relief that it sought in that way, either in the court a quo or before us. It
persists in seeking a declaration that has the effect of declaring unassailable
all the consequences that generally follow from the lawful establishment of a
township. Clearly it is not entitled to that relief. Bearing in mind that the
approval of the township was invalid at the outset all the consequences of
the approval clearly cannot be said to be unassailable.
[46] One of those consequences is that the invalid approval is liable to be
set aside in proceedings properly brough t for judicial review. It is not open
to us to stifle the right that any person might have to bring such proceedings,
or to pre-empt the decision that a court might make if it is called upon to
exercise its discretion in that regard . That is not a remote and academic
prospect, bearing in mind that the a pproval was invalid. No doubt a court
that might be called upon to exercise its discretion will take account of the
long period that has elapsed si nce the approval was granted, 31 but the lapse
of time in itself will not necessarily be decisive: much will depend upon a
balancing of all the re levant circumstances, 32 including the need for
finality,33 but also the consequences for the public at large, and, indeed for
future generations, of allowing the invalid decision to stand. In weighing the
31 Lawrence Baxter: Administrative Law 715
32 Per Miller JA in Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13
(A) 42C-D.
33 Wolgroeiers Afslaers, above, 41D-F.
32
question whether the lapse of time should preclude a court from setting aside
the invalid administrative act in que stion an important – perhaps even
decisive34 – consideration is the extent to which the appellant or third parties
might have acted in reliance upon it. On the material that is before us it is
by no means clear that the appellant – or any third party for that matter – has
in fact acted in reliance on the a pproval notwithstanding the elapsing of
some forty years.
[47] We have drawn a ttention to the fact that the land remains
undeveloped. The only transaction that has occurred since the township was
approved is the purchase of the land by the appellant. The appellant does
not allege that it purchased the land in reliance on the fact that the township
had been established. On the c ontrary, the deponent to the founding
affidavit suggests that it was the lo cation of the land, rather than the
approval of the township, that caused th e land to be purchased. At the time
of the purchase the appellant was c ontrolled by the deponent’s father who,
according to the deponent, 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.’ There is a suggestion in the papers that a premium was paid
on the purchase price of the property because a township had been approved,
34 Wolgroeiers Afslaers, above, 42C.
33
in comparison with the prices that were paid by related companies, also
controlled by the depondent’s father, for adjoining properties. This
suggestion is discounted by the conten ts of a contemporaneous letter written
by the deponent’s father to a fellow prospective township developer, in
which he said that his practice was, for tax reasons, to assign a larger portion
of the overall price paid for a parcel of land to that piece of land in the parcel
that he intended to develop first. In the present case that would have been
the land that is now in issue. Nor doe s the deponent’s father appear to have
had any intention of developing the land in accordance with the approval
that was granted because he was ‘also of the view that the single residential
grid layout of the township on Portio n 7 which he had ac quired had already
become outdated since being approve d.’ (Portion 7 was the land now under
consideration.) It is difficult to see in those circumstances in what way the
appellant, or any other person for that matter (other than the functionaries
who played a role in the establishment process), can be said to have placed
reliance on the Administrator’s approval in the time since it was granted.
[48] Of course, s 7 of the Promotion of Administrative Justice Act 3 of
2000 prescribes a period of 180 days fo r the institution of proceedings for
judicial review in terms of that Act, but it is by no means certain that that
34
legislation applies to the administrative ac t that is now in issue, or that it is
exhaustive of the remedy of judicial review.
[49] But these are all matters upon whic h we are not called upon to express
any final view (and we do not do so). We mention them merely to highlight
that there is a real pros pect that a court might yet be called upon to set aside
the Administrator’s approval in proper proceedings for judicial review.
Whether it would be appropriate to se t aside the approval was not canvassed
in the present case, but the appellant is not entitled to a declaratory order that
pre-empts such proceedings, or that pre-empts an attack upon any other
consequences of the approval that might depend upon its substantive
validity, if there are any. Indeed, once it is clear, as we have found, that the
Administrator’s approval was invalid , it follows inexorably that the
appellant was not entitled to a declaratory order in terms as wide as prayer 3.
In the absence of a request by the appellant, both in the court a quo and in
this court, for relief in more limited terms, that prayer was properly refused.
Prayers 1 and 2 were little more than precursors to the relief that was sought
in prayer 3. Because of the view that we have taken of the matter the issues
that are dealt with by thos e prayers have become irrelevant and they should
also not be granted.
35
[50] There is one more matter that needs to be dealt with. The fourth
respondent (South African National Parks) submitted that in any event the
Administrator’s approval came to an end after it was granted. That
submission has no merit and we will de al with it briefly. One of the
conditions of establishment required the owner to reserve a specified portion
of land as a commonage for the benefit of any future local authority. The
condition went on to provide that
‘. . . [the commonage] will be transferred to the trustees appointed by the
Administrator for the future urban local authority; the said land to be regarded as reserved
land as referred to in section 21 of Ordinan ce No. 33 of 1934 and to be transferred prior
to the transfer of any land in the said . . . Township’
Section 21(1) of the Ordinance provi ded that before the transfer of
any erf in an approved to wnship was registered in the deeds registry the
owner had to transfer any land reserved as commonage to trustees appointed
by the Administrator in trust for any lo cal authority that might thereafter be
constituted for the township, or to the local authority itself if one already
existed. When the land that is now in issue was sold and transferred to the
appellant the commonage was simultan eously sold and transferred to an
associated company of the appellant. It was submitted on behalf of the
fourth respondent that the effect of the transfer of the commonage to a
private owner instead of to the Admini strator in trust, as required by the
36
conditions of establishment, was that ‘any approval for the establishment of
[the township] which may have existed prior to [that date] would, as a matter
of law, have come to an end at that time.’ (The quotation is from the heads
of argument.) There is no suggestion th at the appellant, as successor to the
initial owner, would not be able to fulfil the obligation to transfer the
commonage were it to be called upon to do so. On the contrary the
commonage is held by an associated company and there is every reason to
believe that the appellant w ill be capable of fulfilling that obligation. In the
circumstances we see no grounds upon which the act of transferring the
commonage somehow brought the approval to an end.
[51] The appeal is dismissed with costs including the costs occasioned by
the employment of two counsel.
CT HOWIE
PRESIDENT: SUPREME COURT OF APPEAL
RW NUGENT
JUDGE: SUPREME COURT OF APPEAL
37
CAMERON JA: )
BRAND JA: ) CONCUR
SOUTHWOOD AJA: )