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[1995] ZASCA 151
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Huisman v Minister of Local Government Housing and Works and Another (169/94) [1995] ZASCA 151; 1996 (1) SA 836 (SCA); (29 November 1995)
CG CASE NUMBER: 169/94
IN THE SUPREME COURT
OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between:
IVO LOUIS HUISMAN Appellant
and
THE MINISTER OF LOCAL GOVERNMENT
HOUSING AND WORKS [House of Assembly] 1st Respondent
THE MUNICIPALITY OF THE CITY
OF PORT ELIZABETH 2nd Respondent
CORAM:
JOUBERT, NESTADT, VAN DEN HEEVER, HARMS
JJA et SCOTT AJA
HEARD ON:
21 NOVEMBER 1995
DELIVERED ON:
29 NOVEMBER 1995
JUDGMENT
2
VAN DEN HEEVER JA
The appellant, a consulting engineer who lives at 46 Upper
Hill
Street, Central, Port Elizabeth, runs his practice
from offices he regards as unsuitable and inadequate. He bought Erf 2619, a
property
consisting of a block of three flats situate at 35 Havelock Street,
Central, intending to relocate his practice there after converting
the flat at
street level into a suite of offices. The upper storey would be retained, after
refurbishing, as two upmarket flats.
Erf 2619 is zoned as "general residential".
During March 1990 the appellant applied in terms of section 17 of the Land Use
Planning
Ordinance, No 15 of 1985 (Cape) ("the Ordinance") for the rezoning of
the property to permit of its being used for "special purposes
with proviso that
the groundfloor is used for office activities and the rest remains
residential".
A structure plan had been prepared and approved for the area in terms of
section 4 of the Ordinance. Section 5 of the Ordinance provides:
3
"(1) The general purpose of a structure plan shall be to lay down
guidelines for the future spatial development of the area to which
it relates
(including urban renewal, urban design or the preparation of development plans)
in such a way as will most effectively
promote the order of the area as well as
the general welfare of the community concerned.
(2)
A structure
plan may authorize rezoning in accordance with such structure plan by a
council.
(3)
A structure plan
shall not confer or take away any right in respect of
land."
Chapter II of the Ordinance deals
with Zoning Schemes, and provides for regulations to be made to control zoning.
In terms of section
9 such regulations "may authorize the granting of departures
and subdivisions" by a municipal council.
Erf 2619 falls within what is referred to in the structure plan
as
Area 3. Paragraph 2.2.3 of the structure plan
states:
"
Area 3 (residential: Other Users)
The existing General Residential zoning ... in respect of Area 3 as shown
on Plan 2 will not change. The residential character, atmosphere
and use in
these areas prevails and because of its strength and largely unspoilt
appearance,
4
needs to be conserved. Retail activities such as antique dealers, jewellers
and house crafts may be permitted in terms of clause 21.2
of the P E Zoning
Scheme. Where retail or office activities are permitted by the Council the
building must retain its residential
use and character, and therefore will not
be allowed to be altered to look like a shop or business premises. Owners
wishing to include
a retail activity on their properties will be required to
obtain the comments and agreement of abutting owners prior to their submitting
an application for such use. Office activities, in conjunction with a
residential use, could be permitted on the ground floor only
of blocks of flats
in this Land Use Category. The use of flats exclusively for office purposes
should be strongly resisted in order
to maintain a strong residential component.
On-site parking will be required for all non-residential use in terms of the
Council's
parking policy ..."
I return
later to the regulation, made under Chapter II of the Ordinance relating to
"other uses" permissible on property zoned as
residential in Area 3, referred to
in the passage quoted as "clause 21.2".
The structure plan envisages
the appointment of an advisory committee to report on all matters relating to
conservation within inter
5
alia. Area 3. The comments of the Environmental Affairs
Advisory
Committee ("EAAC") on the proposed rezoning having been
obtained,
the Land Use Committee of the second respondent refused
the appellant's
application.
On 11 June 1991 the appellant noted an appeal in terms of
section
44 of the Ordinance against this decision. This
section reads:
"44(l)(a) An applicant in respect of an application to a council in terms
of this Ordinance, and a person who has objected to the
granting of such
application in terms of this Ordinance, may appeal to the Administrator, in such
manner and within such period as
may be prescribed by regulation, against the
refusal or granting or conditional granting of such application."
(No regulations have been promulgated prescribing in what manner
such
an "appeal" is to be conducted. Only time limits have been
determined.)
..."
(2) The Administrator may, after consultation with the council concerned,
in his discretion dismiss an appeal contemplated in subsection
(l)(a) ... or
uphold it wholly or in part or make a decision in relation thereto which
the
6
council concerned could have made.
(3) For the purposes of this Ordinance
-
(c) a decision made by the Administrator
under the provisions of subsection (2) shall be deemed to have been made by the
council concerned."
The powers of the former Administrator set out in section 44(2) above,
have devolved upon the first respondent.
The documents on which the
appellant relied in appealing to the first respondent, were voluminous. They
consisted of the following
items:
1.
The application
that had been submitted to the second respondent, containing a detailed
motivation report; photographs of the property
and its surroundings; letters of
support from neighbours and residents; a locality map, a zoning map, a land use
map, a layout plan
and the layout
proposed.
2.
A letter written
by the appellant's attorneys on 3 September 1990 to the Director: Administration
of the second respondent. The
appellant
7
had somehow learned that the EAAC had submitted advice adverse to his
application to the council via the department of the City Engineer.
The letter
urged that the appellant be provided with a copy of that advice in order to
enable him to comment on it; alternatively
that his own comments, set out at
length, on the report of the City Engineer be placed before the Land Usage
Committee for its consideration.
3.
The agenda and
minutes of the meeting of the EAAC held on 4 July 1990. This was adjourned with
a request for further information from
the City Engineer. These documents, along
with the City Engineer's ensuing report and the minutes of the adjourned
meeting, held
on 22 August 1990, had been made available to the appellant in
compliance with the request contained in item 3
above.
4.
A further letter,
dated 1 February 1991, from the appellant's attorney to the Director:
Administration. This acknowledged receipt
of the items in paragraph 3 above, and
set out detailed argument critical of the approach of the EAAC, contradicting
the allegations
of the
City
8
Engineer, and asking that the Land Usage Committee take cognisance of the
comments in this letter when considering any recommendation
to it from the City
Engineer.
5.
The letter dated
10 June 1991 from the Director: Administration to the appellant informing him
that the first respondent's Land Usage
Committee had turned down the appellant's
application for rezoning. The reasons which motivated that Committee were set
out, and
the appellant reminded of his right to
appeal.
6.
A copy of
paragraph 2.2.3 of the structure plan applicable to Area 3 (quoted earlier in
this judgment).
7.
A
newspaper cutting that municipal plans for the development of the square on
which erf 2619 is situated, have had to be scaled down
for financial reasons;
and
8.
A lengthy memorandum
dated 11 June 1991 dealing with all the above, and with the arguments advanced
adverse to the application as
they appeared from those. The memorandum goes
further, dealing
also
9
with issues allegedly "inadequately dealt with and/or misleading" and not
dealt with at all; in conclusion urging the first respondent
to reverse the
decision of the Land Usage Committee and approve of the appellant's
application.
During April 1992 the appellant was advised that the first respondent had
dismissed his appeal. No reasons were given.
In June 1992 the appellant launched review proceedings in the South
Eastern Cape Local Division, attacking the refusal of the first
respondent to
reverse the decision of the second respondent. The first respondent was called
upon in the Notice of Motion, by virtue
of Supreme Court Rule 53(l)(b), to
despatch to the Registrar of that court the "record of the proceedings" in which
the first respondent
arrived at its decision.
The grounds on which the decision of the first respondent were and are
attacked, have since then both changed, and narrowed, considerably.
10
In his founding affidavit appellant attacked the recommendation of the
EAAC on the grounds that it had misdirected itself by reporting
on a matter
which was in terms of the Ordinance none of its business, namely the
interpretation of the structure plan, and moreover
been wrong on that score. No
more need be said of this. The EAAC is a purely advisory body, and this
complaint was not pursued further.
The appellant alleged that the Land Usage Committee had been guilty of
the same misdirection. It had not only misinterpreted the structure
plan, but
held itself to be rigidly bound by its terms. It was also wrong in its
assessment of the facts. The merits of the application,
so the appellant
alleged, are so patent, and refusing it so unreasonable, that the inference is
inescapable that
(a)
the first
respondent did not apply his mind to the
matter
(b)
alternatively, he
took account of improper or irrelevant matter.
The
appellant explained:
"I verily believe further reports, information and input
was obtained for and on behalf of the First Respondent prior
to
11
considering such appeal."
Mr Dercksen, as Ministerial Representative: Eastern and Northern Cape
Region of the Minister's Council of the House of Assembly is
the person
entrusted with the powers formerly conferred on the Administrator by Section 44
of the Ordinance. The second respondent
falls within his jurisdiction. In
compliance with Rule 53 he produced the departmental file relating to the
appellant's re-zoning
application, under cover of an affidavit in which he made
it clear that the first respondent was not opposing the review proceedings,
which was not to be construed as a concession that he, Dercksen, had erred as
alleged in the appellant's affidavit. Dercksen set
out how he had gone about
dealing with the matter. He had received the file in March of 1992. He not only
read all the documents,
but held two inspections in situ, where he saw i.a. that
the house on the property was weathered but not dilapidated. He lists the
facts
of which he took cognisance, which included the Port Elizabeth Zoning Scheme
regulations. He says that he accepted that the
structure
12
plan was merely a policy guideline for the future development of the
area; that he properly and honestly applied his mind to all the
representations,
suggestions and viewpoints advanced, and took his own, honest, bona fide
decision that the appeal should be dismissed.
The file was
voluminous. It contained all the documents submitted by the appellant for
purposes of his appeal, as listed above, along
with departmental memoranda,
minutes of meetings, correspondence - largely of a formal nature - and so on. Of
relevance are, in chronological
order: 1. A lengthy letter from the Town Clerk
dated 25 October 1991 in reply to the appellant's contentions. It contains
submissions
on "the true intent" of Section 2.2.3 of the structure plan and the
import of regulation 3.11, which had formerly been numbered 21.2,
made for
purposes of the Zoning Scheme. It counters arguments advanced in the appellant's
papers, and points out i.a. that despite
assurances that the appellant's own
practice would not be an undesirable activity nor cause serious parking problems
in the area,
there could be no guarantee that a future purchaser
13
of the property, were it rezoned, would conduct a similar business there.
Moreover grant of the rezoning sought would set a precedent.
2. Internal
memoranda which passed between officials in Dercksen's department in February
1992. They were Sue Geyser and Charl Marais,
and favoured upholding the
appellant's appeal. Geyser submitted an undated report to Mr Nel, the Assistant
Director: Local Government,
containing a summary of prior events and arguments,
and her recommendation which was based almost entirely on the facts urged by
the
appellant, with two of her own. An inspection had revealed that "the building is
dilapidated", and "the proposals by the appellant
promote the interests of the
city - there are very few consulting structural engineers in Port Elizabeth".
The contents of her memorandum
were adopted by Nel in a memorandum dated 6 March
1992. Geyser had however on 27 March consulted with the town planners and staff
in the office of the Town Clerk, been persuaded that she had misinterpreted the
structure plan relating to area 3, changed her mind,
and reported accordingly
to
14
her superior. He deleted in his own memorandum the
paragraph
containing his recommendation, replacing it with an
annexure. This set
out that on the strength of discussions with
municipal officials on 27
March 1992, he was persuaded that in terms
of clause 2.2.3 (Area 3) of
the structure plan read with clause 3.11 of the Port Elizabeth
Zoning
Scheme regulations, approval of the appellant's application
would
override the intentions of the Zoning Scheme. This document was
signed
by Dercksen on 30 March 1992.
The predecessor of regulation 3.11, then numbered 21.2, was
applicable when the appellant originally applied for rezoning of erf
2619.
It read:
"The Council may by special consent permit the practice, subject to the
Council's By-laws, by
any resident
of a dwelling house or residential
building, of a profession or occupation provided that: -
(a) the house or building shall continue at all times to be used mainly
for the purpose of a dwelling house or residential building."
(Emphasis
added.)
15
Its successor, in force by the time the appellant submitted
his
documents for purposes of his appeal in terms of
section 44, had become
more precise, providing that -
"3.11.1 ... The Council may consent to the practise ... by any resident
of a dwelling unit, of a profession or occupation ... provided
that such
profession or occupation does not,
in the opinion of the Council
, involve
-
(vii) the use of more than a minor portion of the floor area of the
dwelling unit for the practise of the profession or occupation.
3.11.4 The consent of the Council granted in terms of this regulation
shall attach to the applicant personally and not to the premises
on which the
business is conducted." (My emphasis.)
Having had sight of these additional documents, the appellant filed what
may be called a supplementary founding affidavit. In this
he argues that
Dercksen's file makes it clear that additional submissions were made by the
second respondent without those being
forwarded to the appellant for comment. He
says that input, consisting of new matter not
16
previously raised by the second respondent was obtained by Dercksen's
officials from those of the municipality without any reference
to the appellant
whatsoever. Dercksen was obliged "to fully inform me of the additional
submissions which had been made by the second
respondent" and his failure to do
so had resulted in the appeal proceedings being contrary to the principles of
natural justice.
The affidavit continues with argument at length on the merits,
the main thrust of which is that Dercksen had been persuaded to change
his
favourable view by his officials, who had changed theirs as a consequence of a
meeting with municipal officials on 27 March.
There the latter had propounded an
incorrect interpretation of the Structure Plan by incorporating the provisions
of clause 3.11
of the Port Elizabeth Zoning Scheme regulations.
The second respondent opposed the appellant's application for review. Its
affidavits consist almost entirely of argument. A relevant
factual allegation
made by the Chief Estates Officer of the second
17
respondent, one Zeiss, is that he was present at the meeting on 27
March.
It was one held in the normal course of municipal business,
was of a
general nature, in which no new matter relating to the
appellant's appeal
had been raised:
"All that happened was that Second Respondent's officials reiterated
their stance on the interpretation of the structure plan and
the question of
parking. All this the [appellant] had already replied to."
The appellant then filed a replying affidavit. This too consists almost
entirely of argument, save that appellant annexed further
charts and photographs
in support of his contentions on the merits of his cause.
The court a quo, Mullins J, in a careful judgment, held that the new
"input" of 27 March, complained of, consisted of argument and
submissions to
meet the specific grounds of appeal raised by the then applicant, all of which
arguments were already known to the
appellant. In the circumstances of the case,
the fact that the appellant had not been afforded the equivalent of a right of
reply
to the material placed before
18
Dercksen, or information which Dercksen had himself obtained by his
inspections, was not unfair. There had been no breach of the rules
of natural
justice, nor had any case been made out to justify asking that his decision be
set aside. The application for review accordingly
failed, with costs. The
subsequent application for leave to appeal was likewise dismissed with costs.
The appellant came before us
by virtue of leave of this Court on an unopposed
application therefor.
Before us Mr Buchanan, who appeared for the appellant, had two strings to
his bow. He again urged that the merits of the application
to re-zone were so
manifest, that the only inference to be drawn from Dercksen's failure to uphold
the appeal was that he could not
have applied his mind properly to the matter. I
do not propose to enter upon any in-depth discussion of the facts, which have
now
been canvassed for the fourth time. One of the arguments relied upon
throughout by the appellant, is that failure to rezone will
result in the
building inevitably deteriorating, to the detriment of the entire area, since it
is not a viable
19
economic proposition for him to upgrade the building unless he gets what
he wants. Such an argument makes a mockery of municipal attempts
to "promote the
order of (an) area as well as the general welfare of the community concerned",
since the "disadvantage" to the community
allegedly inherent in refusing the
appellant's application, is prima facie one of the appellant's making. There is
no evidence of
the price he paid for the property, nor any suggestion that
suitable offices are not available elsewhere in Port Elizabeth. The decision
to
take an investment risk was his own. At the right price a buyer prepared to
upgrade the building without altering its use could
presumably be found. There
can be no merit in the argument that confronting the Council with a fait
accompli (his purchase) and a
veiled threat (that the property will be permitted
to decay) make accession to the appellant's application inevitable. And on the
other side of the coin, there is merit in the arguments advanced throughout by
the second respondent, i.a. that, being concerned
about traffic flow and
parking, it could not take cognisance of only the
20
appellant's intentions. A future owner with assured rights to rezoned
property, might well alter the picture entirely. I find nothing
in Derckson's
reasons as set out in his affidavit which constitute a misdirection in his
approach to the exercise of his discretion.
In short, the merits and
dements of the application were and remain arguable. Dercksen said under oath
that he did apply his mind
properly and honestly to the issue. On this score
there is not even a dispute of fact on the papers, since the appellant relies on
no more than inferential reasoning for his denial of Derckson's positive
allegation. The inference falls away where there is no reason
to suggest that
Dercksen committed perjury. The court a quo correctly held that the appellant
had not discharged the formidable onus
burdening him on this issue.
The second string to Mr Buchanan's bow, was the alleged procedural
irregularity resulting in a failure of justice.
Were new
facts
to be placed before the "Administrator" which could
be prejudicial to an appellant, it would be only fair that the latter
21
be given an opportunity to counter them if he were able to do so, more
particularly were the matter one in which the extant rights
of an appellant
could be detrimentally affected. That is however not what happened here. No
extant rights of the appellant were in
danger. He was seeking to have those
increased. Mr Buchanan could not point to any additional information contained
in either the
written memorandum submitted by the Town Clerk in reply to that of
the appellant, or the documentation in Dercksen's file, of which
the appellant
had not been aware and with which he had not dealt earlier. Indeed, the
complaint voiced persistently in the appellant's
affidavits was that he had not
been given an opportunity to deal with the
submissions
advanced by the
officials of the municipality. Mr Buchanan repeated this initially: the
appellant wanted to have the last word. He
had been entitled to a right of
reply
.
Mr Buchanan offered no authority undermining the common-sense approach of
the court a quo, that proceedings could be endlessly protracted
were any such
"right" be held to exist. Why should the
22
municipality not then have a right in turn to reply to the appellant's
submissions, and so on? When Mr Buchanan was reminded that
in terms of the Rules
of this Court, an applicant for leave to appeal and the respondent were
ordinarily each offered only one bite
at the cherry, without any suggestion ever
being advanced that that is ipso facto unfair, he altered his attack and
submitted that
in terms of the rules of natural justice a hearing should not
only be fair, but be perceived to be fair. Written submissions had
been made by
both parties. Thereafter Dercksen consulted with some of the first respondent's
officials without the appellant being
present; which in itself was perceived to
be unfair. That in itself, he argued, must lead to Dercksen's decision being set
aside.
I pointed out in the beginning of this judgment that, although section
44(1) of the Ordinance authorizes the making of regulations
to deal with the
time-limits and manner in which appeals should be dealt with, only the former
have been so prescribed. There can
be no
23
suggestion that such an "appeal" is one comparable to a judicial
proceeding conducted according to set rules and based on sworn testimony.
Section 44(2) obliges the "Administrator" to consult with the very body whose
decision is placed in issue. Accepting - without deciding-
that the municipality
is to be regarded thereafter as the opponent of the appellant in the matter on
which Dercksen has to exercise
his own discretion, the sub-section does not
stipulate in what manner such "consultation" is to be effected, nor limit it to
a choice
between either written or oral submissions, or if the latter, to such
submissions made on a single occasion only. Nor is there any
suggestion that the
appellant should be present or given a copy of written or resume of oral
statements before Dercksen made up his
mind.
According to the uncontradicted evidence the appellant's alleged
perception was wrong, nothing improper occurred behind his back,
and no
injustice in fact occurred.
24
The appeal is dismissed with costs, including the costs of two
counsel.
L VAN DEN HEEVER JA
CONCUR:
JOUBERT JA) NESTADT JA) HARMS JA) SCOTT AJA)