Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others (Mukhwevho Intervening) (CCT 55/00) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) (29 May 2001)

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[2001] ZACC 19
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Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others (Mukhwevho Intervening) (CCT 55/00) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) (29 May 2001)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 55/00
MINISTER
OF PUBLIC
WORKS                                                                     First

Applicant
AHANANG
CC                                                                                            Second

Applicant
GOVERNMENT
OF THE REPUBLIC OF SOUTH AFRICA                            Third

Applicant
PREMIER
OF GAUTENG
PROVINCE                                                         Fourth

Applicant
versus
KYALAMI
RIDGE ENVIRONMENTAL ASSOCIATION                                First

Respondent
CHERYL
EILEEN
LOOTS                                                                      Second

Respondent
and
MPHEDZISENI
MUKHWEVHO                                                                              Intervenor
Heard
on: 15 March 2001
Decided on: 29 May 2001
JUDGMENT
CHASKALSON P:
The dispute
[1]
Towards the end of the summer of 2000 there were
heavy rains in parts of South Africa that led to the flooding of
rivers and extensive
damage to homes and property.  The
President appointed a cabinet committee to deal with this and to make
arrangements for
the relief of communities affected by the flooding.
The committee, known as the Inter-Ministerial Emergency
Reconstruction
Committee, was given a budget of R557 000 000 to
implement this mandate.  It established a Command Centre to deal
with the
disaster and appointed Ms L N Sisulu, then Deputy Minister
of Home Affairs, as the political head of the Centre and Mr Colin
Matjila
as the Chief Executive Officer.  Meetings were arranged
with the Premiers of the provinces affected by the flooding to assess

the damage and to establish priorities for the relief work.
[2]
Alexandra Township, a densely populated township
in the Greater Johannesburg Municipal area, was one of the affected
areas.
The Jukskei River that runs through the Township had
come down in flood during March 2000 destroying the homes of
approximately
300 people living on the banks of the river below the
flood line. Some of the Alexandra flood victims were given shelter by
the
Rhema Church in one of its halls and others in army tents erected
on land owned by the Sandton Municipality in Marlboro.  The

flood victims were living there in overcrowded and unhealthy
circumstances without sufficient water and sanitation.  Huts

were later erected on the land in place of the tents, but this did
little to improve the conditions in which the flood victims
were
living.
[3]
At a meeting attended by the Premier of Gauteng,
the Gauteng MEC for Housing and representatives of the Command Centre
it was agreed
that there was an urgent need to make provision for the
accommodation of the Alexandra flood victims and to establish a
transit
camp for this purpose.
[4]
After considering various options a portion of
state land on which the Leeuwkop Prison stands was identified as the
most suitable
site for the transit camp.  It is an area of 6.5
hectares on the northern most part of the farm on which the prison is
built,
rectangular in shape, and bounded by roads on its northwestern
and northeastern sides.
[5]
The Department of Correctional Services agreed
that the transit camp could be established there.  The Chief
Executive Officer
of the local authority in whose jurisdiction the
land is situated was consulted and offered no objection to the
establishment of
the transit camp.  The Department of Public
Works, as manager of state land, consented formally to the transit
camp being
established, and a contractor was appointed to undertake
the necessary work.
[6]
No discussions were, however, held with residents
in the vicinity of Leeuwkop.  They first learned of the
government’s
plans when a contractor moved onto the prison site
and started work.  Shortly after this a press conference was
held at the
site to inform the public of what was to happen.
This was on the afternoon of 13 June 2000.  Mr Matjila addressed
the
people who attended the conference, explained that the plan was
to establish a transit camp to house people from Alexandra Township

who had been displaced by the floods and that approximately 200
houses, each to accommodate four or five people, were to be built
on
the site.  Mr Paul Mashatile, the Gauteng MEC for Housing also
spoke, stressing that a transit camp was being established,
and that
the persons to be accommodated there would move to permanent housing
when that became available, and that the transit
camp would then be
dismantled.
[7]
A number of the residents were not satisfied with
this explanation.  They came together on 21 June and formed a
residents’
association (I will refer to the group as the
Kyalami residents).  Attorneys were consulted and a demand was
made through
them on 23 June to the Minister of Public Works to
suspend operations on the site or face court proceedings for an
interdict.
The grounds for this demand were that the
establishment of the transit camp on the site involved an alteration
in the use of the
land and was being carried out in contravention of
the Environment Conservation Act, 1989 and the
National Environmental
Management Act, 1998
.
[8]
The demand was not complied with and on 29 June
the Kyalami residents and an owner of land adjoining Leeuwkop Prison
brought an
urgent application in the High Court, citing the Minister
of Public Works and the contractor as respondents, claiming an
interim
interdict restraining the respondents from
(a) Proceeding with the
establishment of an informal settlement on the land on which Leeuwkop
Prison is situated.
(b)
Proceeding with the construction and/or erection of temporary or
permanent dwelling units for purposes of the establishment
of an
informal settlement on the property referred to in (a) above.
(c)
Permitting any persons to come onto the property referred to in (a)
above for purposes of settling there (temporarily or permanently)
as
residents.
The
national government (to which I will refer as the government) and the
Premier of Gauteng were subsequently added as respondents
as a result
of allegations made in the answering affidavits lodged on behalf of
the Minister of Public Works.  Although the
order does not form
part of the record before us, we were informed that the High Court
granted an interim interdict in the terms
claimed by the Kyalami
residents.
[9]
The interim interdict was to remain in force
pending the determination of an application in which the two
applicants claimed an
order setting aside the decision to establish
the transit camp on the prison farm, and directing the government to
reconsider the
decision after consulting the Kyalami residents and
taking into account any representations they might make, and after
giving due
consideration to the environmental impact of establishing
a transit camp there.  After hearing argument on the
application,
the High Court made an order substantially in those
terms.
The judgment of the
High Court
[10]
In the High Court, the Kyalami residents contended
that there was no legislation that authorised the government to take
the action
it took and that, absent legislation authorising it to do
so, the government’s decision to establish a transit camp for
the
flood victims on the prison farm was unlawful.  This the
government disputed, saying that it had a constitutional obligation

to assist the flood victims, and that as owner of the land it was
entitled, and indeed obliged, to make the land available for
such
purposes.  It contended that the only decision that had been
taken was to consent to the transit camp being erected on
state
property.  This, so it was alleged, was not an administrative
decision; it was a decision taken by the state as owner
of the land,
and did “not require authorisation or permission by or under
any law”.
[11]
The Kyalami residents later contended that the
decision to establish the transit camp was unlawful because it
contravened the relevant
town planning scheme and land and
environmental legislation, and had been taken without affording a
hearing to the residents.
The government disputed that it was
obliged to afford the residents a hearing before it took the
decision.  It also disputed
that it had breached the township –
or environmental legislation relied on by the Kyalami residents.
[12]
In support of its case the government lodged an
affidavit by Mr Matjila in which he described the circumstances in
which the Command
Centre was established and the decision taken to
provide relief to the victims of the flooding in Alexandra.  Mr
Matjila averred
that the property was zoned under the Peri-Urban Town
Planning Scheme for “undetermined use” which allowed the
construction
of dwelling houses and agricultural buildings, and that
accordingly no permission had to be obtained from the local authority
for
the erection of houses in a temporary transit camp.  He said
that care had been taken to address environmental concerns in
the
design and planning of the transit camp, that its erection on the
land of Leeuwkop prison would not contravene the provisions
of the
relevant town planning scheme and environmental legislation, and that
in any event, the legislation did not apply to the
establishment of a
temporary transit camp.
[13]
The judgment of the High Court does not deal with
all the issues raised in the application.  It proceeds on the
assumption,
but without deciding, that the legislation relied upon by
the Kyalami residents would not have been applicable if government’s

purpose was to provide temporary shelter for the Alexandra flood
victims.  This, however, so the court held, was not the case.

The scheme was not one for temporary shelter.  Rather, it was
“
[a]t
best for [the government] . . . a development for an indefinite
period which on the probabilities will be utilized on a permanent

ongoing basis, either by the proposed occupants or by the government
in the future.”
[14]
The judge held that in the circumstances
“
.
. . the decision . . . [could not] . . . be validly implemented
without complying with the various statutes, laws, bye-laws and

regulations and it being the [government’s] attitude that it is
entitled to do so, that decision is clearly wrong and should
be set
aside.”
[15]
Having come to this conclusion the judge made an
order in these terms:
(a)
That the decision of the Department of Public Works to establish an
informal residential settlement on the land on which Leeuwkop
Prison
is situated, be reviewed and set aside.
(b)
That the Department be directed to reconsider the decision referred
to in (a) above, after proper consultation with the Kyalami
residents
and, in particular, with the applicants, and after having heard
representations on their behalf and after having given
due
consideration to the environmental impact of the establishment of
such settlement as well as other relevant factors to be taken
into
account for the purposes of such decision including compliance with
the provisions of such laws as may be applicable.
[16]
The order does not address the contention of the
Kyalami residents that in the absence of empowering legislation the
decision to
establish the transit camp was unlawful.  If that
contention had been upheld no purpose would have been served by
prayer (b)
of the order which seems to contemplate that the
government had the power to establish the transit camp, but in
exercising that
power, is obliged to take into account the
representations of the Kyalami residents and such laws as may be
applicable.  The
order does not identify the “relevant
laws” or indicate the respects in which the decision to
establish the transit
camp at Leeuwkop infringed any particular law
or laws.
The application for
leave to appeal
[17]
The government then applied to this Court for
leave to appeal directly to it against the order made by the High
Court, contending
that the appeal was urgent and raised important
constitutional issues.  The judge who dealt with the matter in
the High Court
gave a positive certificate in terms of
rule 18
,
stating that the appeal raised constitutional matters of substance on
which rulings by the Constitutional Court were desirable,
that the
evidence was sufficient to enable this Court to dispose of the
matter, that there was a reasonable prospect that this
Court may
reverse or materially alter the judgment that had been given, and
that it was in the interests of justice that the appeal
be brought
directly to this Court.
The application of Mr
Mukwevho to be joined as a party in the application for leave to
appeal
[18]
After the application for leave to appeal had been
lodged, Mr Mukwevho, one of the Alexandra flood victims, applied for
leave to
intervene in the application as a party, alternatively as an
amicus
curiae
.
In his application he said that he and the other Alexandra flood
victims were living in huts on the land in Marlboro.
The area
of each of the huts was approximately 12 square metres, many occupied
by more than one family.  Water and toilet
facilities were
inadequate.  The flood victims had been told that they would be
provided with accommodation at the transit
camp to be erected on the
prison farm and be accommodated there until they could be moved to
homes to be provided to them.
This had later been confirmed at
a public ceremony addressed by Mr Shilowa, the Premier of Gauteng.
[19]
According to Mr Mukwevho, he and the other
Alexandra flood victims are destitute.  He alleges that they
have a constitutional
right of access to adequate housing and that
the constitution imposes an obligation on the state to take
reasonable measures to
give effect to this right.  He contends
that in promising them accommodation at Leeuwkop the state was
undertaking to comply
with its constitutional obligations to them.
He contends further that the Alexandra flood victims, having been
promised accommodation
there, had a direct and substantial interest
in the outcome of the application for an interim interdict, and in
the outcome of
the application to set aside the government’s
decision to accommodate them at Leeuwkop, and that they ought to have
been
joined as parties in the High Court applications.
The attitude of the
Kyalami residents
[20]
The Kyalami residents lodged an affidavit in
response to the application for leave to appeal and Mr Mukwevho’s
application
to intervene in the proceedings.  They accept that
the application for leave to appeal raises constitutional issues of
substance,
and that it is in the interests of justice for the appeal
to be noted directly to this Court.  They also accept that the
state
has a constitutional duty to provide shelter or housing for the
Alexandra flood victims.  They point out, however, that the

appeal will involve a consideration of disputed facts.  It will
also involve the interpretation of various legislative provisions

that are not dealt with by the High Court in its judgment.  In
the circumstances they suggest that this Court might consider
it to
be undesirable for it to deal with the appeal without the benefit of
a judgment on such matters by another court.
[21]
They acknowledge, however, the importance of
finality being reached on the legal competence of the development at
Leeuwkop, and
do not oppose the application by Mr Mukwevho to
intervene in the application.
[22]
The application for leave to appeal and the
application by Mr Mukwevho to intervene in the appeal were set down
for hearing and
directions were given requiring the parties to deal
with the applications and also to address argument on the merits of
the appeal
so that the matter could be disposed of without further
argument should leave to appeal be granted.
[23]
The issues raised by the appeal concern the powers
of the national executive to provide relief to victims of flooding,
the legality
of the decision taken by the government to establish the
transit camp on the prison farm and the allegation of the Kyalami
residents
that their right to just administrative action has been
infringed.  These are all constitutional issues of substance.

This Court clearly has jurisdiction to deal with the appeal.
The question, however, is whether in the circumstances of the
present
case it ought to grant leave for the appeal against the decision of
the High Court to be brought directly to it.
[24]
In the hearing before this Court the legality of
the government’s decision to establish a transit camp on the
prison farm
was disputed by the Kyalami residents on various
grounds.  They contended that the government has no powers other
than those
conferred on it by legislation, that there is legislation
that could have been relied on by the government for the purpose of
making
provision for the Alexandra flood victims, but there is no
legislation that authorised the government to take the action that it

took.  They also contended that the decision taken by the
government infringed their constitutional right to just
administrative
action and to certain environmental rights, and that
it was in any event unlawful because of the failure by the government
to comply
with provisions of the Townships Ordinance, the relevant
town planning scheme, the
National Environmental Management Act, the
Environment Conservation Act, and the National Building Regulations
and Building Standards Act.  They further contended that
the
establishment of the camp on the prison farm would constitute a
nuisance.
[25]
There is a problem in the fact that the High Court
did not deal with these issues, being of the view that the only issue
that needed
to be resolved was whether the transit camp was or was
not a temporary settlement.  The problem is compounded by the
fact
that, in its argument to this Court, the government relies on
arguments that were not raised in the High Court, contending that

although the legislation on which the Kyalami residents relied might
possibly be relevant to the implementation of the decision
to
establish a transit camp on the prison farm, it is not relevant to
the legality of that decision.  It accordingly provides
no basis
for the relief claimed by the Kyalami residents that the decision be
set aside and the order to that effect made by the
High Court.
[26]
These are matters relevant to the question whether
this Court should grant leave for the appeal to be brought directly
to it.
It is undesirable that this Court should be asked to
deal with important issues, such as the interpretation of legislation
concerned
with property development, without the benefit of a
judgment of either the High Court or the Supreme Court of Appeal on
those issues.
Although it is possible to dispose of the
application without deciding all these issues, there are matters that
are not considered
in the judgment of the High Court that will have
to be dealt with.
[27]
On the other hand there are compelling reasons for
the legality of the government’s decision to be determined as
soon as possible.
The judge in the High Court has furnished a
positive certificate in terms of rule 18 and has said that it is in
the interests of
justice for the appeal to be brought directly to
this Court.  The Alexandra flood victims are still living in
deplorable conditions
and if the government was not entitled to take
the decision to establish the transit camp on the prison farm, other
arrangements
may have to be made for their accommodation.  The
parties are anxious that this be resolved and are in agreement that
this
Court should deal with the appeal.  So too is Mr Mukwevho,
who describes the plight of the flood victims and the importance
to
them of the matter being resolved expeditiously.
[28]
All the parties are agreed that the Alexandra
flood victims have a constitutional right to be provided with access
to housing.
Funds have been made available for this purpose.
The discharge of this obligation has been delayed by the litigation
over
the legality of the government’s decision to provide such
accommodation at Leeuwkop.  Those most vitally affected by
the
litigation, the homeless and destitute flood victims, were not party
to that litigation and had no say in the issues that were
raised or
in the way the proceedings were conducted.  They are the people
who will suffer the most if this Court were to refuse
the application
for a direct appeal.  The Constitution requires this Court to
grant leave to appeal directly to it if it is
in the interests of
justice to do so.  Justice demands that the dispute as to the
legality of the government’s decision
be resolved as
expeditiously as possible.  I am therefore of the opinion that
despite the problem to which I have referred
leave to appeal directly
to this Court should be granted.  Where possible I will avoid
deciding issues that are not considered
in the judgment of the High
Court.
The joinder
application
[29]
Mr Mukwevho asks to be joined as a party to the
proceedings in his own interest, and in terms of section 38(c) of the
Constitution,
in the interests of the other Alexandra flood victims
offered temporary accommodation at Leeuwkop.  In his application
he
describes the flooding, the predicament of the flood victims, the
deplorable conditions in which they are now living, and the fact
that
the government informed them that a transit camp was to be
established at Leeuwkop for their accommodation there until permanent

housing were made available to them.  He bases his right to be
joined as a party to the proceedings on his constitutional
right in
terms of section 26(1), to have access to adequate housing, and the
corresponding obligation of the state under section
26(2) of the
Constitution to take reasonable legislative and other measures within
its available resources to achieve the progressive
realisation of
this right.  He says that the decision by the government to
establish a transit camp at Leeuwkop was a measure
taken in terms of
its obligations under section 26(2) and that he has a direct and
substantial interest in securing the discharge
of that obligation.
[30]
Neither the government nor the Kyalami residents
object to the joinder.  Mr Mukwevho has a direct and substantial
interest
in the proceedings and he is entitled to be joined as a
party in his own right.  Indeed, the Alexandra flood victims
waiting
to be accommodated at Leeuwkop ought to have been joined as
parties to the High Court proceedings which vitally affected their
constitutional rights.  They were identified by Mr Matjila in
his affidavit and their names and the tents in which they were
living
at Marlboro were set out in an annexure to his affidavit.  There
would have been no difficulty in joining them as parties,
or at least
giving them notice of the application and inviting them to join if
they so desired.
[31]
As it will appear from what follows, nothing in
this judgment will prejudice the other flood victims waiting to be
accommodated
at Leeuwkop.  In the circumstances it is
unnecessary that they be joined as parties to this appeal.
Section 38(c)
[32]
We
did not hear argument on the question whether section 38(c)
contemplates a class action in which the persons on whose behalf
the
litigation is brought have to consent to be bound by the outcome.
1
In
the absence of such argument it is undesirable to express any opinion
on that issue and in the view that I take of this matter,
it is not
necessary to do so.  There is nothing to suggest that Mr
Mukwevho’s interests are different to those of the
other flood
victims or that they or he will be prejudiced if he is heard on his
own behalf and not on behalf of all of them.
It is sufficient
if Mr Mukwevho is joined in his own interest and I will make an order
to that effect.
The
record in the High Court
[33]
The
record of the proceedings in the High Court is somewhat confusing
because the government initially answered the claim for urgent

interim relief and later answered the claim to set the decision
aside.  This resulted in there being two sets of answering

affidavits and two sets of replying affidavits, all being relevant to
the issues raised in the application for leave to appeal.
I
will refer to these affidavits as the answering and replying
affidavits without identifying on each occasion whether the evidence

comes from the first or the second set of affidavits.
Did
the government have the power to establish a transit camp on the
prison farm for the accommodation of the Alexandra flood victims
?
[34]
The Kyalami residents contend that government
acted beyond its powers in deciding to establish a transit camp at
Leeuwkop.
The argument proceeded as follows: Government has no
power other than that vested in it by legislation.  If it wishes
to provide
relief for flood victims it must, therefore, act in terms
of legislation empowering it to do so, or not at all.  In the
present
case government did not act in terms of any legislation.
Its decision to establish a transit camp at Leeuwkop was accordingly

unlawful.  This, they contend, is an incident of the separation
of powers provided for by the Constitution, and a requirement
of the
rule of law, a founding value of the Constitution.
[35][
In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council
and
Others
2
this
Court held:
“
[I]t
is a fundamental principle of the rule of law, recognised widely,
that the exercise of public power is only legitimate where
lawful.
The rule of law — to the extent at least that it expresses this
principle of legality — is generally
understood to be a
fundamental principle of constitutional law.”
3
Later
in the same judgment it is said that:
“
[i]t
seems central to the conception of our constitutional order that the
Legislature and Executive in every sphere are constrained
by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by law.  At least
in this sense,
then, the principle of legality is implied within the terms of the
interim Constitution.”
4
The
Constitution now states explicitly that the rule of law is a
foundational value of our legal order.
5
[36]
It follows that government can only establish
transit camps for the victims of the floods if the power to do so is
conferred on
it by law.  What has to be decided in the present
case is whether the government has such power, and if so, whether it
acted
in terms of its powers when it decided to establish a transit
camp on the prison farm.
[37]
The
Constitution makes provision for a separation of powers between the
legislature, the executive and the judiciary.  This
separation
ordinarily implies that the legislature makes the laws, the executive
implements them and the judiciary determines whether
in the light of
the Constitution and the law, conduct is lawful or unlawful.
Though the separation prescribed by the Constitution
is not absolute,
and on occasions some overlapping of functions is permissible, action
that is inconsistent with the separation
demanded is invalid.
6
[38]
Section
26(2) of the Constitution requires the state to take “reasonable
legislative and other measures, within its available
resources, to
achieve the progressive realisation” of the right that everyone
has to have access to housing.  In this
context the state
includes the various legislative and executive organs in all spheres
of government.
7
In
discharging their obligations these organs must act consistently with
the Constitution and the separation of powers mandated
by it.
[39]
In
Government
of the Republic of South Africa and Others v Grootboom and Others
8
it
was held that:
“
.
. . the national sphere of government must assume responsibility for
ensuring that laws, policies, programs, and strategies are
adequate
to meet the State’s s 26 obligations.”
9
This
includes the need
“
.
. . to facilitate access to temporary relief for people who have no
access to land, no roof over their heads, for people who are
living
in intolerable conditions and for people who are in crisis because of
natural disasters such as floods and fires, or because
their homes
are under threat of demolition”
1
0
and
an obligation
“
.
. . to devise, fund, implement and supervise measures to provide
relief to those in desperate need.”
1
1
[40]
The
government contends that these obligations require it to come to the
assistance of the victims of the flooding throughout the
country,
including the victims in Alexandra, and that in doing so it cannot be
said to be acting contrary to the rule of law. As
owner of the
property in question it has all the rights that a private owner would
have, including the right to erect buildings
on its property.  A
decision to assert such a right to give effect to its constitutional
obligations is therefore a lawful
decision.  The government also
relies on section 85(2) of the Constitution,
1
2
contending
that its duty to take reasonable measures to meet its section 26
obligations falls within the power vested in the executive
to
implement national policy
1
3
and
to perform any other executive function provided for in the
Constitution.
1
4
[41]
Hogg describes the Canadian government’s
rights as owner of property as follows:
“
.
. . unless there are legislative or constitutional restrictions
applicable to a piece of property, it may be sold, mortgaged,
leased,
licensed or managed at the pleasure of the responsible government,
and without the necessity of legislation.  The
Crown’s
power to do these things is not a prerogative power, because the
power is not unique to the Crown, but is possessed
in common with
other legal persons”.
1
5
I
can see no reason why the government as owner of property should not
under our law have the same rights as any other owner.
If it
asserts those rights within the framework of the Constitution and the
restrictions of any relevant legislation, it acts lawfully.
[42]
Where legislation prescribes the manner in which
particular functions are to be performed by government, it may be
implicit in that
legislation that such functions can only be
performed in terms of the legislation.  In that event the
legislation would override
any powers that the government might have
as owner of property.
[43]
Mr
Jansen, who represented the Kyalami residents in this Court,
contended that there is a legislative framework that empowers the

government to deal with the consequences of natural disasters and if
the government wanted to make provision for the Alexandra
flood
victims it should have acted within the parameters of this
framework.  The legislative framework relied upon by counsel

consists of the Development Facilitation Act,
1
6
the
Less Formal Township Establishment Act,
1
7
the
Civil Protection Act,
1
8
and
the Civil Defence Ordinance.
1
9
[44]
The
Development Facilitation Act makes provision for the sanctioning of
projects aimed at changing the use of land, including using
the land
for residential purposes.
2
0
It
prescribes the principles according to which land development must
take place
2
1
and
the permission necessary for such development may be given.
2
2
One
of the relevant principles for the land development is that it should
result in security of tenure.
2
3
Plans
prepared by a surveyor have to be lodged with the Surveyor-General
and the Registrar of Deeds.
2
4
What
is contemplated by the Act is the establishment of informal townships
of a permanent nature in which lots may be acquired and
sold.
2
5
A
development tribunal deals with applications for land development
under the Act.  A formal application is necessary, notice
has to
be given to various interested persons, a hearing takes place before
the tribunal and there is a right of appeal.
2
6
Although
there is provision for the tribunal to grant exemptions from the
prescribed procedures,
2
7
the
purpose of the Act is not to regulate the temporary settlement of
people rendered
homeless
by natural disaster.
The
Act is not directed to dealing with disasters and is not appropriate
for that purpose.
[45]
The
Less Formal Township Establishment Act, as its name suggests, also
makes provision for the development of townships on a permanent
basis
through the opening of a township register
2
8
and
the allocation of lots in the township for the settlement of
persons.
2
9
It
does not deal with the establishment of temporary settlements for the
housing of victims of natural disasters and its provisions
are not
appropriate for that purpose.
[46]
The
Civil Protection Act and the Civil Defence Ordinance deal with
disasters.  The Act makes provision for provincial ordinances
to
be passed to deal with civil protection where a state of emergency or
a state of disaster has been declared.  A state of
emergency
exists for the purposes of the Act
3
0
where
there has been a declaration to that effect under the Public Safety
Act,
3
1
or
in time of war as defined in the Defence Act.
3
2
A
state of disaster exists if a declaration to that effect is made by
the Minister administering the Act because he or she is of
the
“
.
. . opinion . . . that any disaster is of such a nature and extent
that extraordinary measures are necessary to assist and protect
the
Republic and its inhabitants and to combat civil disruption, or that
circumstances are likely to arise that such measures will
be
necessary . . . .”
3
3
[47]
The
Civil Defence Ordinance was passed pursuant to these provisions.
It conferred powers on the Administrator of the Transvaal
to be
exercised in circumstances contemplated by section 3(1) of the
Act.
3
4
These
powers now vest in the Premier of Gauteng and contemplate the giving
of directions by the Premier to local authorities in
regard to
special measures to be taken to cope with the emergency or
disaster.
3
5
[48]
The Act and the Ordinance deal with civil
protection in a state of emergency or a state of disaster.  No
such declaration was
made as a result of the flooding and there is no
reason to believe that the floods resulted in a disaster of such
nature and extent
as to warrant the extraordinary protective measures
contemplated by the Act and the Ordinance.
[49]
It follows that the legislative framework referred
to by Mr Jansen was neither designed for nor appropriate to the
provision of
relief to the victims of the floods.  It cannot be
said that these laws excluded or limited the government’s
common
law power to make its land available to flood victims pursuant
to its constitutional duty to provide them with access to housing.
[50]
The floods were widespread, affecting residents of
different parts of the country, in different provinces.  The
seriousness
of the damage done by the floods is not disputed.
In response to the disaster the government took a policy decision to
provide
relief to the victims of the flooding.  As already
mentioned, a budget of R557 000 000 was made available by the cabinet
for
this purpose and a cabinet committee was appointed to attend to
the implementation of the decision.  There is no suggestion
that
the spending of this money would not be within the parameters of the
national budget sanctioned by parliament.
[51]
According to Mr Matjila the implementation of the
decision involved rescue operations, the re-establishment of access
to communities
which had been cut off from surrounding areas, the
re-establishment of communication lines and essential services, and
the temporary
settlement of communities rendered homeless by the
floods.  It also involved the construction of temporary transit
camps at
which people rendered homeless by the floods could be housed
and provided with clean water and the most basic services, until more

permanent accommodation could be established for them, to replace the
housing destroyed by the floods.
[52]
This was an essential national project implemented
in terms of a policy decision taken by government that called for a
co-ordinated
effort by different spheres of government and the
application of substantial funds.  The provision of relief to
the victims
of natural disasters is an essential role of government
in a democratic state, and government would have failed in its duty
to
the victims of the floods, if it had done nothing.  There was
no legislation that made adequate provision for such a situation,
and
it cannot be said that in acting as it did, government was avoiding a
legislative framework prescribed by parliament for such
purposes.
Nor can it be said that government was acting arbitrarily or
otherwise contrary to the rule of law.  If regard
is had to its
constitutional obligations, to its rights as owner of the land, and
to its executive power to implement policy decisions,
its decision to
establish a temporary transit camp for the victims of the flooding
was lawful.  The contentions to the contrary
advanced by the
Kyalami residents must therefore be rejected.
Administrative action
[53]
When
the decision was taken to establish the transit camp at Leeuwkop the
relevant provisions of section 33 of the Constitution
were deemed by
schedule 6 to the Constitution
3
6
to
read as follows:
“
Every
person has the right to—
(a) lawful administrative
action where any of their rights or interests is affected or
threatened;
(b) procedurally fair
administrative action where any of their rights or legitimate
expectations is affected or threatened;
(c) be furnished with
reasons in writing for administrative action which affects any of
their rights or interests unless the reasons
for that action have
been made public; and
(d)
administrative action which is justifiable in relation to the reasons
given for it where any of their rights is affected or
threatened.”
[54]
The Kyalami residents contend that the
establishment of a transit camp at Leeuwkop affects their rights and
interests and that the
decision to do so was an administrative
decision that was neither lawful nor procedurally fair.  I deal
first with the question
of legality.
Legality
[55]
The
doctrine of legality applies to the exercise of all public power.
3
7
It
is not necessary, therefore, for the purposes of a decision on
legality, to consider whether the decision to establish a transit

camp at Leeuwkop affects the rights or interests of the Kyalami
residents.  If it were an unlawful decision it would be invalid

and liable to be set aside whether it infringed their rights or not.
[56]
The principal challenge to the legality of the
decision is that the government could not take such a decision in the
absence of
legislation specifically empowering it to do so.  For
the reasons that I have already given, that contention must be
rejected.
[57]
The
Kyalami residents also contended that the establishment of a transit
camp at Leeuwkop would contravene various statutes, and
that the
decision to establish the transit camp there was accordingly unlawful
and invalid.  In their founding affidavits
they based their
contention on the damage that would be done to the environment if a
transit camp were to be established at Leeuwkop.
They relied on
the provisions of the
National Environmental Management Act,
3
8
the
Environment Conservation Act,
3
9
and
their environmental rights under section 24 of the Constitution.
They subsequently argued that there had also been a failure
to comply
with the provisions of the town planning scheme in force in the area
in which the Leeuwkop property is situated
4
0
and,
in this Court, they also relied on breaches of the National Building
Regulations and Building Standards Act
4
1
and,
the Town-Planning and Townships Ordinance (Gauteng).
4
2
[58]
Much of their argument on these issues turned on
provisions of legislation said to prohibit the work to be done
without the permission
of a Minister or other authorised functionary,
which, so it was alleged, had not been obtained.
[59][
In the High Court the decision was held to be clearly wrong because
it could not be implemented without complying with the
various
statutes and other relevant legislation.
4
3
This
finding failed to distinguish between the taking of the decision and
its implementation.  There may be cases where the
process of
decision-making and implementation are so closely related that they
have to be treated as a single transaction for the
purpose of
evaluating their validity.
4
4
In
the present case, however, the legislative impediment, if there be
one, is relative and not absolute which means that the decision
can
be lawfully implemented if the necessary consents are obtained.
[60]
The taking of a decision is logically anterior to
the procurement of consents that may be necessary for its execution.
Indeed,
it is only after a decision has been taken and details of the
work to be done have been determined, that an application for consent

can properly be made and considered.  The absence of such
consent may found an application for an interdict to restrain
implementation
of the decision.  In itself, however, it is not a
ground on which the decision can be set aside.
[61]
I am prepared to assume for the purposes of
dealing with this contention, that some or all of the consents
required by the legislation
on which the Kyalami residents rely are
necessary for the implementation of the decision.  It is not
alleged that such consents
as may be necessary cannot and will not be
given, nor that there is any insuperable obstacle to the
implementation of the project.
Nor could such an allegation
reasonably have been made.  If regard is had to the plight of
the flood victims, the constitutional
obligation of the government to
come to their assistance, the shortage of suitable land available to
the government for this purpose
in the reasonable proximity of
Alexandra Township, the fact that the site chosen is the government’s
own land on which a
prison was established before the township was
proclaimed, on which there are already many dwellings and on which
many activities
are being conducted, it could hardly be said that
there is no prospect that the consents that are needed will be
obtained.
[62]
According to Mr Matjila there were consultations
with the Premier and with the local authority, and advice was
obtained that the
project would not be contrary to the town planning
scheme.  There is no suggestion that the government took the
decision intending
to ignore legislation that it knew to be
applicable, or that its decision was taken in bad faith.  If the
government is mistaken
in its belief that consents are not necessary,
the Kyalami residents will be entitled to assert and enforce any
rights that they
might have under the relevant legislation.
[63][
Mr Jansen contended that in any event the decision is invalid because
the government acted in the mistaken belief that there
was no need to
secure the approval of any authority or functionary.  So
fundamental an error, he contended, made the decision
a nullity.
In support of this contention he relied on a passage from Baxter.
4
5
In
this passage, Baxter deals with the question whether an error of law
made by a public authority provides grounds for review.
He is
concerned with cases where the public authority has misunderstood the
nature of the power vested in it by legislation because
of a
misreading of that legislation.  He points out that courts have
declined to hold that all errors of law are reviewable,
saying that
they have held that “the error must be such as to have led the
decision-maker to misconceive the nature of his
powers or to have
prevented him from properly exercising them”.
4
6
[64]
This principle has no application to the present
case.  The government did not misunderstand the nature of its
powers.
At most, it failed to appreciate that it might have to
secure the consent of certain Ministers or other functionaries in
order
to implement its decision.  If consents are not necessary
there is no basis for this objection.  If consents are necessary

and are obtained, the validity of the decision cannot be questioned.
If consents are necessary and are not obtained, the
decision cannot
be implemented, not because it was an invalid decision, but because
the conditions necessary for its implementation
have not been
fulfilled.
[65]
Mr Jansen contended that if the decision is not
set aside, the Kyalami residents are at least entitled to an
interdict restraining
the government from implementing the decision
until the requirements of the various statutes have been complied
with.  This,
however, was not the relief sought in the main
application.  If the validity of the decision had been accepted
and the only
relief sought had been an interdict, the proceedings
might have taken a different course.  The appeal must be dealt
with on
the basis that the order claimed and granted was the setting
aside of the decision.
The
National
Environmental Management Act
[66
]
The
Kyalami residents contend that in deciding to establish the camp at
Leeuwkop the government failed to comply with certain principles
set
out in the
National Environmental Management Act (the
Management
Act).
4
7
The
Management Act is framework legislation that makes provision for the
preparation of environmental implementation and management
plans.
These plans are to be drawn up by each of the provinces and by
certain departments of state that exercise functions
that may affect
the environment.
4
8
This
must be done on a co-operative basis to ensure as far as possible
that there is consistency between the various plans.
The
Management Act prescribes what has to be addressed in these plans.
4
9
A
Committee for Environmental Co-ordination established by the
Management Act
5
0
has
to scrutinise the plans and make recommendations as to whether an
environmental implementation plan should be adopted or revised.
5
1
Where
there is disagreement between the Committee and the Department or
Province concerned, provision is made for the procedures
to be
followed in resolving such differences.
5
2
When
the environmental implementation and management plans have been
adopted and promulgated in the Government Gazette, the relevant

organs of state must carry out their functions in accordance with the
plans that affect them.
5
3
There
are various other provisions dealing with decision making and
conflict management,
5
4
integrated
environmental management,
5
5
international
obligations and agreements,
5
6
duties
on persons not to pollute or degrade the environment and what has to
be done to secure compliance and enforcement of these
duties and to
protect workers required to work in hazardous environmental
conditions.
5
7
Other
related matters are also dealt with.
[67]
Chapter
1 of the Management Act makes provision for national environmental
management principles.  It has only one section,
Section 2,
which sets out what the principles are.  The Kyalami residents
contend that the government failed to comply with
the principles of
section 2(4)(g) and (k) which require that “decisions must take
into account the interests, needs and values
of all interested and
affected parties . . .”
5
8
and
that “decisions must be taken in an open and transparent manner
. . .”.
5
9
[68]
Section 2(1), which deals with the application of
the principles, provides:
“
The
principles set out in this section apply throughout the Republic to
the actions of all organs of state that may significantly
affect the
environment and—
(a) shall apply alongside
all other appropriate and relevant considerations, including the
State's responsibility to respect, protect,
promote and fulfil the
social and economic rights in Chapter 2 of the Constitution and in
particular the basic needs of categories
of persons disadvantaged by
unfair discrimination;
(b) serve as the general
framework within which environmental management and implementation
plans must be formulated;
(c) serve as guidelines
by reference to which any organ of state must exercise any function
when taking any decision in terms of
this Act or any statutory
provision concerning the protection of the environment;
(d) serve as principles
by reference to which a conciliator appointed under this Act must
make recommendations; and
(e)
guide the interpretation, administration and implementation of this
Act, and any other law concerned with the protection or
management of
the environment.”
[69]
Seen
in the context of the Management Act as a whole the principles are
directed to the formulation of environmental policies by
the relevant
organs of state, and the drafting and adopting of their environmental
implementation and management plans, rather
than to controlling the
manner in which organs of state use their property.  The section
does not make provision for rights
and obligations; instead it sets
out principles expressed at times in abstract rather than concrete
terms.  These principles
must be taken into account by the
relevant departments of state and the provincial governments in the
preparation of their environmental
implementation plans;
6
0
by
municipalities in the preparation of their policies including
integrated development plans and the setting of land development

objectives;
6
1
by
conciliators in resolving differences between the Committee for
Environmental Co-ordination and Departments of State;
6
2
and
in the preparation of environmental impact reports required for the
granting of permission for certain prescribed activities
that may not
be undertaken in terms of the Management Act without the sanction of
a Minister or an MEC.
6
3
They
must be balanced against other relevant considerations including the
state’s obligation to fulfil its constitutional
obligations in
respect of social and economic rights.
6
4
[70]
The question whether the Management Act binds the
government other than as framework legislation was raised in the
written argument
but was not traversed fully during the hearing of
the application.  In the circumstances I do not consider it
appropriate
to decide whether the principles in section 2 can be
applied in a dispute between members of the public and the government
concerning
activities that are not regulated by environmental
implementation plans or other provisions formulated under the
Management Act.
For the purposes of this judgment I will assume
that they can be applied.
[71]
In contending that the government failed to comply
with the principles set out in section 2(4)(g) and (k) of the
Management Act,
the Kyalami residents rely on a report of an
environmental expert, Claudia Holgate.  Ms Holgate describes her
report as a
“preliminary environmental report” which
identifies “potential environmental issues”.  The
report
raises concerns about the possibility of soil erosion, air
pollution due to the use of coal fires, water pollution if sewerage
and solid waste removal services are not provided for the residents
of the camp, the possible damage to flora and fauna by the residents

of the camp, the possible loss of the agricultural potential of the
land and the impact that the establishment of the camp will
have on
the socio-cultural environment of the area and property values.
The report is to some extent based upon hypotheses,
having been
prepared by Ms Holgate after only one visit to the site and without
knowledge of the details of the proposed development.
[72]
In an answering affidavit on behalf of the
government, Mr Matjila deals in some detail with the planning of the
development and
the steps that will be taken by the government to
minimise any harm to the environment.  It is clear from his
affidavit that
attention was given by the government to environmental
considerations in its planning.  He gives the following details
of
the planning and the contract that has been entered into for the
establishment of the transit camp:
“
(a)
200 Houses of 30,47 m
2
will be constructed with 16 mm thick Novaclad water resident particle
board which will be stapled to a 50 x 75 mm timber frame.
(b) The roof will be
covered with cranked IBR sheets screwed to 50 x 152 mm and 50 x 75 mm
rafters.
(c) The structure will be
constructed on a concrete slab.
(d) The houses will have
a door, three windows and will have no internal partitioning.
(e) The external surface
of the house will be painted with one coat of PVA.
(f) A density of
approximately 40 houses per ha will be maintained.
(g) A wet core consisting
of a shower area with an externally fitted wash trough as well as a
separate toilet will be provided amidst
every block of four houses.
Gas heating will be provided to provide hot water at the showers and
wash troughs.
(h) A 1000 litre
Calcamite digester tank will be supplied for every wet core to accept
sewerage.  The grey water from the Calcamite
digesters will be
taken off with a 15 mm uPVC pipe that will gravitate to the lowest
point on the development where it will be
fed into a rock bed system
for percolation purposes.  This sewerage system has been
approved as being environmentally acceptable
for low cost housing.
I annexe hereto as annexure MCM/2 an extract from a certificate of
approval issued by the CSIR certifying
the approval of the sewerage
system as complying with the National Building Regulations.
(i) A 50 000 litre water
tank will be erected at the highest point on the land from where the
water will be gravity fed throughout
the development.
(j) The roads through the
area will be graded and stormwater will be removed by means of sheet
flow and open stormwater ditches.
(k) The entire
development will be fenced with a 3 m diamond mesh fence with one
entrance gate and an emergency entrance exit gate
to the main road.
These gates coincide with existing access and egress points to the
property.  No new access points
to the surrounding public road
structure will be established.
(l) Access will be
controlled and only those persons who are resettled at the camp will
be allowed to live at the camp.
(m) There is an Escom
substation which has been erected for the Leeuwkop prison close to
the proposed location of the camp and Escom
has agreed to provide
electricity from this substation for the lighting of the camp.
(n)
Due to the fire risk and environmental pollution the burning of coal
or wood will not be allowed at the camp.  The people
will be
required to utilise either gas or electricity (which Escom has
undertaken to provide to those units prepared to pay for
the
electricity consumed) for purpose of cooking and heating of the
houses.”
[73]
The Kyalami residents did not deny these
allegations, nor did they lodge a further affidavit or report by Ms
Holgate.  The
only dispute raised in respect of Mr Matjila’s
description of the project concerns the sewerage system.  In a
replying
affidavit deposed to by one of the residents, they say that
it is wrong to allege that the sewerage system has been approved by

the CSIR and is acceptable in terms of the National Building
Regulations, without dealing with the density of the housing.

They say that the acceptability of the system to be installed can
only be judged by reference to the permeability of the sub-surface

soils and rocks and that this must be the subject of an engineering
report.  They also say that the camp will be out of line
with
the standard of one dwelling per hectare that is applied by local
authorities in the area.
[74]
Mr Matjila stresses that the accommodation of the
flood victims on the prison farm is a temporary measure to “house
homeless
and destitute people . . . until such time as they can be
provided with permanent and adequate housing”.  He
contends
that there was no obligation on the government to comply
with the legislative requirements referred to in the Holgate report
and
that the report itself is based on the mistaken assumption that
the development on the site was to be of a permanent nature.
He
says that access and egress to the camp will be strictly controlled,
that apart from the security fence of the prison, the camp
itself
will be fenced and a satellite police station will be provided inside
or in close proximity to the camp.  Open fires
will be
prohibited and attention will be directed to the sewerage system and
any other aspect that might cause pollution to underground
water
resources.  He contends that the negative impact foreseen in the
report will not materialise and any adverse consequences
that might
possibly ensue can be rectified after the camp has been removed.
[75]
The section 2 principles are applicable only to
activities that may “significantly affect the environment”.
The
Kyalami residents, who assert that the provisions of the
Management Act were not complied with, had at least to show that the
proposed
development would be of such a character.
[76]
There was, as I have already indicated, no reply
by Ms Holgate to Mr Matjila’s affidavit and no suggestion that
if the work
is carried out in the manner described by Mr Matjila, it
will “significantly affect the environment”.  In the
circumstances the Kyalami residents have not shown as a probability
that the establishment of the camp at Leeuwkop will have a
significant effect on the environment.  It follows that even if
the development has to be carried out in accordance with principles

recorded in section 2 of the Management Act, it has not been shown
that the provisions of this Act were infringed by the government’s

decision to locate the camp at Leeuwkop.
The Environment
Conservation Act
[77]
Section
21 of the Environment Conservation Act (the Conservation Act)
6
5
empowers
the Minister of Environmental Affairs and Tourism to identify
activities that in his opinion may have a substantial detrimental

effect on the environment.  If he does so, and publishes notice
to that effect in the Gazette, no person is entitled to undertake
an
activity identified in the notice, or cause such an activity to be
undertaken,
“
except
by virtue of a written authorisation issued by the Minister or by a
competent authority or a local authority or an officer,
which
competent authority, authority or officer shall be designated by the
Minister by notice in the Gazette”.
6
6
[78]
In the written argument on behalf of the
government it was contended that the provisions of section 22(1) are
not yet applicable
because the Minister had not designated the
authorities or officers to have authority to consent to the
activity.  In argument
before us, however, Mr Trengove correctly
conceded that the section was not inchoate because the Minister
himself has authority
in terms of the section to grant the requisite
permission.
[79]
The Minister has published a notice identifying
various activities for the purposes of section 21 of the Conservation
Act.
These include any activity that involves a change of land
use from “undetermined” to any other use and the building

of “reservoirs for public water supply”.
[80]
In the affidavits lodged by the parties it is
accepted that the Leeuwkop property is zoned as “undetermined”
in the
relevant town planning scheme.  Mr Trengove indicated
that there is some doubt now as to whether this is in fact so, but
that
is the case made out on the affidavits and both parties dealt
with the matter on the assumption that this is the zoning of the
property.  For the purposes of this appeal it must be accepted
that the present zoning of the property is “undetermined”.
[81]
Mr Matjila describes in his affidavit how the
dwellings will be provided with water by gravity from a 50 000 litre
water tank.
In a replying affidavit, the Kyalami residents
contend that a rezoning change from “undetermined” to
some other use
will be necessary for the camp to be established and
in addition this tank is a reservoir within the meaning of the
Minister's
notice.  The installation of the tank is therefore
also an activity covered by the terms of the notice.
[82]
There is a dispute on the papers as to whether the
establishment of a transit camp on the property is permissible under
an “undetermined”
zoning and whether the 50 000 litre
tank is a reservoir for the supply of water to the public within the
meaning of the Minister’s
notice.
[83]
In the view that I take of this matter it is not
necessary to resolve these disputes. Even if the Minister’s
notice applies
to the proposed development of the property (and I
express no opinion as to whether it does or not) the Minister has the
power
under the Act to give his consent to the development.  The
objections raised are therefore relevant only to the implementation

of the decision, and not to its validity.
Town-Planning and
Townships Ordinance
[84]
The
Kyalami residents contend that the transit camp will be a township
within the meaning of the Town-Planning and Townships Ordinance

(Gauteng)
6
7
and
that it can only be established in accordance with the provisions of
section 66 of that Ordinance.
6
8
This,
so it is contended, affects the validity of the decision to locate
the transit camp at the prison site.
[85]
The Kyalami residents did not raise this issue in
the High Court.  There is a cursory reference to the Ordinance
in the first
replying affidavit but that was in the context of the
town planning scheme on which reliance was then placed.  In the
second
replying affidavit there is again a reference to the town
planning scheme, but no reference at all to the provisions of the
Ordinance.
[86][
The provisions of the Ordinance were raised crisply for the first
time by the Kyalami residents in the answering affidavit
to the
application for leave to appeal.  Mr Trengove objects to this
issue being raised now saying it was not canvassed in
the High Court
and that facts that might have been relevant to the issue have not
been canvassed in the affidavits.  He contends
that in any event
the Ordinance is not specifically declared to be binding on the state
and that in the absence of such a provision,
it should not be
construed as binding on the government.
6
9
He
seeks support for this proposition from the provisions of sections
65(2) and 66(3) of the Ordinance.  Section 65(2) provides
that
for the purposes of the chapter dealing with the establishment of
townships by owners of land, a local authority is to be
treated as an
owner, in so far as it owns land outside its area of jurisdiction.
The specific inclusion of the third sphere
of government, but not
other spheres of government, within the scope of the chapter, and the
absence of any reference to the state
in section 66(3) which empowers
the Administrator to exempt statutory bodies and certain other
institutions from the provisions
of the chapter, is relied upon in
support of this contention.
[87]
Another issue raised by Mr Trengove is whether the
establishment of a transit camp on the prison site can properly be
said to be
the establishment of a township within the meaning of the
Ordinance.  Once again the point is made that evidence might be
relevant to this issue.  The basis on which past development of
housing on the prison site took place was also not canvassed
in the
affidavits.
[88]
The
question whether the Ordinance is binding on the state is a question
of importance.  It raises not only factual issues
but also a
constitutional issue concerning the applicability of the common law
presumption that the state is not bound by its own
enactments, except
by express words or by necessary implication
7
0
and
the correct approach to such an argument in the light of the
provisions of the Constitution.  It is not desirable that
an
issue as important as this should be raised belatedly in an
application for leave to appeal.  In the circumstances Mr
Trengove’s objection to the issue being raised for the first
time on appeal must be upheld.
The town planning
scheme
[89]
It was not originally part of the case for the
Kyalami residents that the establishment of a transit camp on the
land of the Leeuwkop
prison would infringe the provisions of the town
planning scheme.  This was, however, raised as an issue during
the course
of the proceedings, was fully traversed in the affidavits,
and was an issue at the time the application was heard in the High
Court.
The town planning scheme prohibits the erection of more
than one dwelling on any property without the consent of the local
authority.
It is not clear what application this provision has
to the property at Leeuwkop on which there are already a multiplicity
of dwellings
and other buildings.  But even if it is applicable
and the scheme is binding on the government, it is relevant only to
the
implementation of the decision and not its validity.
National Building
Regulations and Building Standards Act
[90]
In a replying affidavit to the main application
the Kyalami residents refer to the National Building Regulations and
Building Standards
Act.  This affidavit states baldly that
“
In
addition, the definition of ‘building’ and the provisions
of . . . the National Building Regulations and Building
Standards Act
103 of 1977, do not render the Local Authority irrelevant.”
[91]
This is the first and only reference to this Act
in the High Court application.  Mr Trengove objected to any
reliance being
placed on this Act, contending that there are no
averments dealing with the respects in which it is alleged that the
Act has been
infringed.  There is substance to this objection.
But in any event section 2(4)(b) of the Act makes provision for the

Minister of Economic Affairs to grant exemptions from the Act “by
virtue of economic considerations, necessity or expediency”.

If the Act is applicable, it is open to the government to seek that
exemption.  It follows that this contention is also relevant

only to the implementation of the decision and not to the decision
itself.
Procedural fairness
[92]
The
Kyalami residents contended in the alternative that if the
government’s decision to establish the transit camp was lawful,

the procedure followed in choosing the prison farm as the site
infringed their right under section 33 of the Constitution to
procedurally
fair administrative action.  Section 33(b) of the
Constitution, as it was deemed
7
1
to
be at the time of the decision, entitled everyone to
“
procedurally
fair administrative action where any of their rights or legitimate
expectations is affected or threatened.”
The
Kyalami residents do not rely on legitimate expectation.  They
contend, however, that the establishment of a transit camp
on the
prison farm will affect their “rights”, that they were
not given a hearing before the decision was taken and
that their
right to procedurally fair administrative action was accordingly
infringed.
[93]
I have previously referred to the issues raised by
the Kyalami residents concerning the implementation of the decision
by the government.
They do not contend that the decision cannot
be implemented lawfully.  Their contention in this regard is
that it can be implemented
only if and when the relevant provisions
of township, environmental and other legislation are complied with.
The government
disputes the scope and the applicability to it in the
circumstances of the present case, of the legislation relied on by
the Kyalami
residents.  It does not, however, claim to be
entitled to establish the camp contrary to the provisions of any
legislation
that may be applicable to it or to infringe any rights
the residents might have under such legislation or any other law.
If the legislation is applicable, the government acknowledges that it
must comply with its provisions.  It follows that in
so far as
the Kyalami residents have rights under such legislation or any other
law, those rights remain intact and are not affected
in any way by
the choice of the prison farm as the site of the transit camp.
[94]
The complaint that the Kyalami residents have
concerning the choice of the prison farm as the site of the transit
camp is that this
will affect the character of the neighbourhood and
reduce the value of their properties.
[95]
The evidence concerning the reduction in the value
of the properties is skimpy.  I am willing to assume, however,
that there
is sufficient evidence on the papers to support this
contention.  Although the issue is not free from doubt, I am
also willing
to assume that the decision of the government to build
the transit camp on its own land at Leeuwkop was an administrative
decision
within the meaning of section 33.
[96][
In their opposing affidavits the Kyalami residents contended that the
transit camp would constitute a nuisance.  Under
the common law
an owner of property ordinarily has no right to object to the use to
which neighbouring property is put.  The
general rule is that
the reasonable use of property by an owner is not subject to
restrictions, even if such user causes prejudice
to others.
7
2
The
Kyalami residents did not raise any contention to the contrary, nor
did they seek in argument before us to support the claim
that the
transit camp would be a nuisance.
[97]
The prison farm is sufficiently close to Alexandra
Township to meet the needs of the flood victims.  The Department
of Public
Works which is in charge of government property, the
Premier of the Province and the Chief Executive of the local
authority were
all consulted and they could not suggest any
government owned property other than the prison farm that would have
been suitable
as a site for a transit camp for the Alexandra flood
victims.
[98]
The prison was established in 1923 before the
township in Kyalami was proclaimed.  There are now four prison
complexes on the
land, one a maximum security prison, the other three
medium security prisons.  In all approximately 4600 prisoners
are housed
in the complex.  There are housing villages scattered
over the land for 851 staff members and their families, training
centres,
sports and recreation facilities, two shops and two
creches.  There are also farming installations including
workshops, a
dairy, cattle camps, an abattoir, dog training camps, a
piggery, a facility for fruit and vegetable production, a stone
quarry,
a rubbish dump site, a petrol station and a holiday resort
with guest houses.  Apart from the prisoners, approximately 1500

people were living on the prison complex at the time the decision was
taken to establish the transit camp there.
[99]
The site is ideal for this purpose.  There
are already thousands of people living on the site which has housing
villages as
well as prison complexes.  The property is extensive
and there is more than adequate space for the transit camp.
Because
the site is in prison grounds, access can be controlled,
unlawful occupants can be excluded, and supervision of activities
within
the camp can be maintained.  It cannot be said that under
these circumstances the use to which the government intended to put

its own property was unreasonable.
[100]
It
follows that even if they are prejudiced by the use to which the
property is put, the Kyalami residents have neither legal rights
nor
legitimate expectations that are affected by the decision to locate
the transit camp on the prison farm.  Sub-paragraph
(b) of
section 33 as it was then deemed to be, made provision for
procedurally fair administrative action for everyone where, “any

of their
rights
or legitimate expectations
is affected or threatened”.  In contrast, sub-paragraph
(a) entitles everyone to lawful administrative action where
“any
of their
rights
or interests
is affected or threatened”, and sub-paragraph (c) entitles
everyone whose “
rights
or interests”
have been affected to obtain reasons for the decision.
7
3
The
interest that the Kyalami residents have in the value of their
property and the character of their neighbourhood may therefore
not
be sufficient in itself, to justify a claim based on s 33(b).
[101][
The question whether persons with interests other than “legal
rights” or legitimate expectations can claim the
protection of
the procedural fairness provisions of s 33 was left open by this
Court in
Premier,
Mpumalanga, and Another v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal.
7
4
It
may well be that persons with prospective rights such as applicants
for licences or pensions, are entitled to protection, but
it is open
to greater doubt whether this is so in the case of persons whose
interests fall short of actual or prospective rights.
7
5
It
is not necessary however, to decide these issues in the present case,
and they can again be left open.  I am willing to
assume for the
purposes of this judgment that procedural fairness may be required
for administrative decisions affecting a material
interest short of
an enforceable or prospective right.
[102]
Where
as in the present case, conflicting interests have to be reconciled
and choices made, proportionality, which is inherent in
the Bill of
Rights, is relevant to determining what fairness requires.
Ultimately, procedural fairness depends in each case
upon the
balancing of various relevant factors including the nature of the
decision, the “rights” affected by it, the
circumstances
in which it is made, and the consequences resulting from it.
7
6
[103]
Here, there was a need for a decision to be taken
quickly in order to address the plight of the flood victims.  In
Premier, Mpumalanga, and Another v
Executive Committee, Association of State-Aided Schools, Eastern
Transvaal
, this Court held that
“
[i]n
determining what constitute procedural fairness in a given case, a
court should be slow to impose obligations upon government
which will
inhibit its ability to make and implement policy effectively . . .
.”
7
7
It
is material, therefore, to consider the impact of the decision on
those affected by it and the consequences in a case such as
this of
requiring the government to hear all persons with interests such as
the Kyalami residents had before making a choice as
to the site of
the transit camp.
[104]
The interests of the Kyalami residents affected by
the choice of the prison farm as the site of the transit camp, are
similar to
interests that landowners in other places would have had
if the choice had been made to locate the camp at a different site
close
to them.  They are essentially interests in property
values and in a peaceful environment that might be disturbed by the
temporary
settlement of a large number of persons in a transit camp
in their vicinity.  Other countervailing interests that were
relevant
would have been the interests of the flood victims to be
accommodated at a place reasonably close to the place where they had
previously
been living and the interests of other homeless
communities in search of land on which to settle.  It is well
known that there
are many such people in the Gauteng area desperately
looking for a place to live and this Court must take judicial
cognisance of
this.  If land suitable for permanent settlement
had been chosen as the site of the transit camp, there would have
been competition
between the flood victims and such persons for the
use of the land and these competing interests would have had to be
taken into
account in the decision-making process.
[105]
If all persons with an interest in the
choice of the location of the transit camp would have had to be heard
before the choice was
made, the process would almost certainly have
been contentious and drawn out.  The decision, however, was one
that had to
be made expeditiously because the urgent needs of the
flood victims called for prompt action on the part of the government.
[106]
The power that the government has to use its own
land for the purpose of establishing a transit camp, is not a power
that in itself
entitles it to eliminate or ignore rights that the
Kyalami residents might have under environmental, township or other
legislation.
If they have such rights, they are entitled to
seek to enforce them.  But their rights, if any, lie there.
As long as
the decision is implemented lawfully, they have no right
to object to the prison farm as the site of the proposed development.
[107]
Although the interests of the Kyalami residents
may be affected this case concerns not only their interests, but also
the interests
of the flood victims.  The flood victims have a
constitutional right to be given access to housing.  The prison
farm
was chosen by the government as the place where access would be
given to them.  Their concerns would also have had to have
been
taken into account in the decision-making process.  Mr Mukwevho
intervened in the proceedings to express these concerns.
He
objects to the setting aside of the decision to choose Leeuwkop
prison as the site of the transit camp, stressing the intolerable

conditions in which the flood victims are living and the need for
their predicament to be addressed as a matter of urgency.
[108]
The fact that property values may be affected by
low cost housing development on neighbouring land is a factor that is
relevant
to the housing policies of the government and to the way in
which government discharges its duty to provide everyone with access

to housing.  But it is only a factor and cannot in the
circumstances of the present case stand in the way of the
constitutional
obligation that government has to address the needs of
homeless people, and its decision to use its own property for that
purpose.
[109]
If the environmental and property interests that
the Kyalami residents have are protected by township, environmental
or other legislation
binding on the government, the government will
have to apply in terms of the provisions of such legislation for
permission to establish
the transit camp on the prison farm.
Procedural fairness does not require in addition, and prior to such
applications being
made, that the government also consult the Kyalami
residents as to whether or not such permission should be sought.
[110]
If the interests of the Kyalami residents
are not protected by the town planning, environmental or other
legislation on which they
rely, and there is no legal impediment to
the government establishing a transit camp on its own ground at
Leeuwkop, procedural
fairness does not require the government to do
more in the circumstances of this case than it has undertaken to do.
That
was to consult with the Kyalami residents in an endeavour to
meet any legitimate concerns they might have as to the manner in
which
the development will take place.  To require more, would
in effect inhibit the government from taking a decision that had to

be taken urgently.  It would also impede the government from
using its own land for a constitutionally mandated purpose, in

circumstances where legislation designed to regulate land use places
no such restriction on it.
[111]
It may have been better and more consistent with
salutary principles of good government if the government had found an
appropriate
method to inform the neighbouring residents of its
intentions before contractors went onto the site, and if it had
engaged them
in discussion and the planning at an early stage of the
project.  However,  for the reasons that I have given, the
absence
of such consultation and engagement did not invalidate the
decision.
The order to be made
[112]
This has been a most unfortunate case.  When
the proceedings were commenced the government contemplated that the
flood victims
would be accommodated on the prison farm temporarily
and that they would be allocated permanent accommodation elsewhere
within
6 to 12 months.  Later it was said that the time would at
most be 12 to 24 months.  Nearly a year has passed since then.

In the meantime the flood victims have been living in deplorable
circumstances, and there is no word as to when permanent
accommodation
will become available.  It is time that attention
be paid to their needs.
[113]
In responding to the application for leave to
appeal, the Kyalami residents said that if there is no other place in
the vicinity
of Alexandra Township for the flood victims to be given
temporary accommodation, they would be willing to consent to this
being
done on the prison site if they are consulted and if their
concerns relating to access to the site from the main road and the
sewerage
system to be installed are addressed.  They also seek
greater certainty as to when and where the permanent housing will be

provided for the victims.  For its part, the government has said
in the affidavits lodged by it in the High Court proceedings
that it
would do everything possible to allay the residents’ fears.
It wants to meet its constitutional obligations
to the flood victims
and to that end it is willing to negotiate with the residents on
matters relevant to the construction of the
camp and to finding
solutions to problems they might have.
[114]
Mr Budlender, who represented Mr Mukwevho in the
appeal, contended that the flood victims have a constitutional right
to be given
access to housing and that this right takes precedence
over any rights the Kyalami residents might have under town planning,
environmental
or other legislation.  He contends that they are
entitled in the circumstances to an order that will protect their
rights
and make clear that the development of the site should proceed
as planned.  In their application to intervene, however, they
do
not seek such relief and the issues that may be relevant to such a
claim have not been canvassed in the affidavits.  There
is,
moreover, nothing on the papers to suggest that the government is not
willing to implement its undertaking if it is lawfully
able to do
so.  On the contrary the government has engaged in the
litigation with the stated purpose of enabling it to carry
out the
promise it made to the flood victims.
[115]
The constitutional rights of the flood victims and
the corresponding obligations on the government are clearly relevant
to any consent
that may be required for the development to take
place.  The government must, however, discharge its
constitutional obligations
lawfully.  If the law requires it to
secure such consent it must seek and obtain it, or pass legislation
that either exempts
it from the provisions of such legislation, or
enables it to override its provisions in cases of emergency.  It
cannot, however,
on the basis of its rights as owner of the land and
a constitutional obligation to provide access to housing, claim the
power to
develop its land contrary to legislation that is binding on
it.  Whether there are such constraints is a matter which is
left
open in this judgment and on which I express no opinion.
The order to be made cannot anticipate this issue.
[116]
The government has succeeded on grounds different
to those on which it fought the case in the High Court.  If it
had raised
this argument in the High Court the proceedings there
might have taken a different course.  It is not possible now to
say
what would have happened, but it seems appropriate to take this
into account in deciding what is an appropriate order to make
concerning
the costs in this Court and in the High Court.
[117]
The main argument raised in this Court on behalf
of the Kyalami residents was that the government’s decision to
establish
a transit camp for the victims of the floods was invalid
because there was no legislation that empowered it to take such
action.
This challenge went to the validity of the decision
itself, and if successful, would have put an end to the plans the
government
had formulated for the purpose of assisting the victims of
the floods.  The challenge to the validity of the decision was
therefore a matter of substance and not of form.  It also had
implications beyond the present case and if successful, might
have
invalidated other action taken by the government through the
structures it established to deal with the consequences of the

floods.  This too is relevant to the issue of costs.  The
most appropriate order in these circumstances is to make no
order as
to costs.
[118]
There remains the question of the intervenor’s
costs.  The intervenor is represented by the Legal Resources
Centre, a
public interest law centre.  The application to
intervene does not include a prayer for costs, nor was such an order
claimed
in either the written or oral argument addressed to us.
In the circumstances it would not be appropriate to make any order
as
to the intervenor’s costs.
[119]
The following order is made:
1. The application by the
applicants for leave to appeal is granted.
2. The application by Mr
Mukwevho to join the proceedings as a party is granted.
3. The appeal is upheld
and the following order substituted for that made by the High Court:
(a)
The application is dismissed.
(b) No
order is made as to the costs of the application.
4. No order is made as to
the costs of the appeal.
Ackermann J, Goldstone J,
Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J,
Madlanga AJ and Somyalo AJ concur in the
judgment of Chaskalson P.
For
the applicants: W Trengove (SC), P C van der Byl (SC) and L G
Nkosi-Thomas instructed by the State Attorney, Pretoria
.
For
the respondents: C R Jansen instructed by Kern and Partners,
Johannesburg
.
For the intervenor: G
Budlender instructed by the Legal Resources Centre, Constitutional
Litigation Unit, Johannesburg.
1
Maluleke
v MEC, Health and Welfare
,
Northern
Province
1999
(4) SA 367 (T).
2
[1998] ZACC 17
;
1999
(1) SA 374
(CC);
1998 (12) BCLR 1458
(CC).  The passages cited
come from the joint judgment of Chaskalson P, Goldstone J and
O’Regan J.  Although
there was disagreement within the
Court on certain issues raised in this judgment, there was agreement
on what is said concerning
the doctrine of legality and the rule of
law.  See also
President
of Republic of South Africa and Others v South African Rugby
Football Union
and
Others
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) para 148 and
Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) para 17.
3
Para
56.
4
Para
58.
5
Section
1(c).
6
Executive
Council, of Western Cape Legislature and Others v President of the
Republic of South Africa
and
Others
[1995] ZACC 8
;
1995
(4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) para 55,
Ex
Parte Chairperson of the Constitutional Assembly, In Re
Certification of the Constitution of Republic of South Africa,
[1996] ZACC 26
;
1996
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) para 111,
Ex
Parte Speaker of the Western Cape Provincial Legislature: In Re
Certification
of the Constitution of the Western Cape,
1997
1997
(4) SA 795
(CC);
1997 (9) BCLR 1167
(CC) para 63,
De
Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) para 124, and
South
African Association of Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) paras 23-6.
7
Government
of Republic of South Africa and Others v Grootboom and Others
2001
(1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) para 40.
8
Id.
9
Id
para 40.
10
Id
para 52.
11
Id
para 96.
12
Section
85 provides:
“
(1)
The executive authority of the Republic is vested in the President.
(2)
The President exercises the executive authority, together with the
other members of the Cabinet, by—
(a) implementing
national legislation except where the Constitution or an Act of
Parliament provides otherwise;
(b) developing and
implementing national policy;
(c) co-ordinating the
functions of state departments and administrations;
(d) preparing and
initiating legislation; and
(e) performing any other
executive function provided for in the Constitution or in national
legislation.”
13
Section
85(2)(b).
14
Section
85(2)(e).
15
Hogg
Constitutional
Law of Canada
4 ed, vol 1 (Carswell, Canada 1997) at 28.3 (footnotes omitted).
16
Act
67 of 1995.
17
Act
113 of
1991.
18
Act
67
of 1977.
19
Ordinance
20 of 1977 (Gauteng).
20
See
the definition of “land development” in section 1 of the
Act.
21
Section
3.
22
Section
4.
23
Section
3(k).
24
Sections
37 and 55.
25
Sections
37, 61 and 62 of the Act makes provision for the registration of a
general plan and the registration of ownership of
lots in the
development area.
26
Sections
23, 31, 32, and 33.
27
Section
30.
28
Section
6.
29
Section
8.
30
See
the definition of state of emergency in section 1 of the Act.
31
Act
3 of 1953.
32
Act
44 of 1957.
33
Section
2.
34
This
section makes provision for an ordinance to be enacted—
“
.
. . in connection with any matter, other than a matter which
requires or entails armed action or the prevention or the combating

of crime, relating to civil defence, including—
(a) the protection of
persons and property, and the rendering of assistance to persons, in
the province with a view to or in connection
with a state of
emergency or disaster; and
(b) the combating of
civil disruption in the province in a state of emergency or
disaster”.
35
These
are extensive and invasive powers which are detailed in sections 3,
9, 11, 12 and 13 of the Ordinance.  They include
the power to
commandeer land, buildings or materials, to call up persons required
to render emergency services, to enter premises
and remove property,
and to search persons.
36
Schedule
6 Item 23(2)(b) of the Constitution.
37
See
Fedsure
para 56 and
Sarfu
para 148, above n 2.
38
Act
107 of
1998.
39
Act
73
of 1989.
40
Peri-Urban
Town Planning Scheme of 1975.
41
Act
103 of 1977.
42
Ordinance
15 of 1986.
43
Para
[14] above.
44
Diepsloot
Residents’ and Landowners’ Association and Another v
Administrator, Transvaal
[1994] ZASCA 24
;
1994
(3) SA 336
(A) at 348C - 349C and 350J - 351B.
45
Baxter
Administrative
Law
1
ed (Juta, Cape Town 1984) at 468.
46
Id
at 470.
47
Above
n 38.
48
Section
11(1) and (2).  The departments that have to draw up these
plans are listed in schedules 1 and 2 to the Management
Act.
Environmental implementation plans have to be drawn up by the
departments of Environmental Affairs and Tourism, Land
Affairs,
Agriculture, Housing, Trade and Industry, Water Affairs and
Forestry, Transport and Defence, and environmental management
plans
by the departments of Environmental Affairs and Tourism, Water
Affairs and Forestry, Minerals and Energy, Land Affairs,
Health, and
Labour.
49
Section
13 deals with “environmental implementation plans” and
section 14 with “environmental management plans”.
50
Section
7.
51
Section
15(1) and (2).
52
Section
15(3), (4) and (5).
53
Section
16(1).
54
Chapter
4.
55
Chapter
5.
56
Chapter
6.
57
Chapter
7.
58
Section
2(4)(g).
59
Section
2(4)(k).
60
Section
13(1)(c).
61
Section
16(4)(b).
62
Section
18(3).
63
Section
24(7)(h).
64
Section
2(1)(a).
65
Above
n 39.
66
Above
n 39 section 22(1).
67
Above
n 42.
68
Section
66(1) provides: subject to the provisions of subsections (2), (3)
and (4), no person shall establish a township otherwise
than in
accordance with the provisions of this Ordinance.  Subsection
(3) makes provision for the Administrator [now the
premier of the
province] to exempt certain bodies from the provisions of the
Chapter dealing with the establishment of townships.
These
include a statutory body, a cooperative as defined in Act 91 of
1981, and a welfare organisation as defined in Act 100
of 1978.
69
Administrator,
Cape v Raats Rontgen & Vermeulen (Pty) Ltd
[1991] ZASCA 126
;
1992
(1) SA 245
(A) 262A-D.
70
Id.
71
Above
n 36.
72
Regal
v African Superslate (Pty) Ltd
1963
(1) SA 102
(A) at 106H.
73
Emphases in the quotations have b
een supplied.
741999
(2) SA 91 (CC), 1999 (2) BCLR 151 (CC) para 31.
75
This
is discussed by Cora Hoexter, in the context of the Administrative
Justice Act, in “The Future of Judicial Review in
South
African Administrative Law”,
(2000) 117
SALJ
484
at 516 et seq.
76
Janse
van Rensburg NO & Another v Minister of Trade & Industry NO
& Another
2001
(1) SA 29
(CC); 2000(11) BCLR 1235(CC) para 24,
Premier,
Mpumalanga and Another v Executive Committee, Association of State
Aided Schools, Eastern Transvaal
above
n 74 para 39.
77Above
n 74 para 41.