Walele v City of Cape Town and Others (CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June 2008)

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[2008] ZACC 11
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Walele v City of Cape Town and Others (CCT 64/07) [2008] ZACC 11; 2008 (6) SA 129 (CC); 2008 (11) BCLR 1067 (CC) (13 June 2008)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 64/07
[2008]
ZACC 11
AZEEM HASSAN WALELE                                                                     Â
          Â
Applicant
versus
THE CITY OF CAPE TOWN                                                            Â
         First
Respondent
AKBER HOOSAIN ALLIE                                                             Â
     Â
Second Respondent
MAYMONA ALLIE                                                                           Â
     Â
Third Respondent
RAZIA ISMAIL                                                                               Â

       Fourth Respondent
MOGAMAT SHAFICK ISMAIL                                                       Â

       Fifth Respondent
with
THE CITY OF JOHANNESBURG                                                      Â
 Â
     Amicus Curiae
Heard on         :           21 February
2008
Decided on     :           13 June 2008
JUDGMENT
JAFTA AJ:
Introduction
[1]
This is an application for leave to appeal
against the judgment of the Cape High Court dismissing an application brought
by the
applicant for an order reviewing and setting aside a decision of the
first respondent, the City of Cape Town (the City), in terms
of which the City
approved the building plans submitted to it by the second respondent, on behalf
of the second to fifth respondents
(the respondents).
[2]
The central issue in this matter is whether the
City properly approved the building plans submitted by the respondents, in terms

of which they intend to erect a four-storey block of flats on their property.Â
The applicant contends that the erection of the
four-storey building will
devalue his own property which adjoins the respondents’ site.  The underlying
dispute is therefore
between neighbours, and the facts of this case demonstrate
that there is a need to strike the right balance between, on the one
hand, the
landowner’s right to erect a building of his or her own choice on his or her
property, and the rights of owners of
the neighbouring properties, on the
other.  The National Building Regulations and Building Standards Act (the Building
Standards
Act)
[1]
provides for a framework within which such balance ought to be accomplished.
[2]
[3]
The Building Standards Act requires building
plans to be approved for every building erected within a municipal area and thus
prohibits
construction of buildings without the prior approval of plans by the local
authority within whose area a building is to be erected.Â
The breach of this
prohibition constitutes a criminal offence punishable by means of a fine.
[3]
Factual background
[4]
The respondents are joint owners of erf 168217
situated at Walmer Estate, Woodstock, Cape Town.  The applicant is the owner of
the adjoining erf 168218.  On 2 March 2006 the respondents submitted to
the City an application for the approval of building
plans for the construction
of a four-storey block of flats on erf 168217.  Once submitted to the City, the
plans were first perused
by the Zoning Plans Examiner whose role was to determine
whether they complied with the conditions of the zoning scheme before they

could be passed to other departments within the establishment of the City.  On
2 May the zoning plans examiner expressed
the opinion that the plans in
question complied with the zoning scheme and that the erf fell within the area
where property owners
were entitled to erect blocks of flats of up to seven
storeys.
[5]
The respondents’ plans were subsequently passed
to various departments for consideration and comment.  The comments were made

on a pro forma form designed for that purpose.  Having considered the plans,
each department inserted the phrase “no objection”
in the relevant block,
either by means of a departmental stamp or in handwriting.  A report of the Chief
Fire Officer was annexed
to the plans before they were forwarded to the Building
Control Officer.  The latter officer is under a statutory duty to make

recommendations to the City “regarding any plans, specifications, documents and
information submitted to such local authority
in accordance with section 4(3)”
of the Act.
[4]
 On 26 July 2006 the Building Control Officer made an endorsement in the
relevant block on the form.  His endorsement reads:
“BCO recommended in terms of
section 6(1)(a) of Act 103/1977” and his signature appears below the
endorsement.
[6]
The respondents’ plans (together with the
endorsed form and the report by the Chief Fire Officer) were then forwarded to
Mr Clive
Griffiths (the decision-maker) who was authorised by the City to
consider and approve building plans on its behalf.  Mr Griffiths
is an employee
of the City.  On 28 July 2006, he approved the plans and signified this by
appending his signature on the form.
[7]
On 16 September 2006, the respondents cleared
erf 168217 so as to commence construction of the flats.  During that process, a
wall
on the applicant’s property was damaged and his attention was drawn to the
activities on the respondents’ erf.  On 18 September
the applicant addressed a
letter to the City, demanding that he be furnished with reasons for approving
the respondents’ plans.Â
Two reasons were given.  The first was that erf 168217
was in a zoned general residential area (subzone R3) and thus the erection
there
of a block of flats up to seven storeys was allowed “as of right”.  The second
was that the plans in question complied
with the relevant zoning scheme
requirements.  Dissatisfied with these reasons the applicant asked for a list
of the documents
which were placed before the decision-maker prior to the
approval of the plans.
[5]
Â
In part, the letter making the request reads as follows:
“2.        In both your e-mails of 18 September 2006, it is stated
that since erf 168217 is zoned for general residential
purposes, the
development proposal is allowed “
as of right
”.  That, however, is not the
end of the enquiry.  It is inconceivable that a development proposal can be
allowed purely on
the basis of the zoning of the relevant property.  This
aspect will be fully addressed in the appropriate forum in due course.
3.
We now ask you to provide us forthwith with
copies of all documents that were before the official who approved the proposed
development,
including but not limited to:
3.1        the application for the approval of the building plans
for the development of erf 168217;
3.2
the building plans that were approved;
3.3
the date on which the building plans were
approved;
3.4
all documents submitted by the owner/developer
in support of the application;
3.5
all notices (if any) of the proposed development
sent by the City to interested or affected parties.
3.6
copies of objections and consent (if any) to the
proposed development by interested and affected parties.”
[8]
In response to the request for information, the
City furnished the applicant with two documents on 26 September 2006.  They
were
a copy of the application for the approval of building plans, which included
the form endorsed by various departments, and a copy
of the document titled
“Land Information System – Ratepayers Data”.  On 28 September the applicant
requested the City to
confirm that these documents were the only documents
placed before the decision-maker.  On 2 October the City confirmed this by

email.
Proceedings in the High Court
[9]
The applicant instituted a review application in
the Cape High Court, challenging the validity of the approval of the respondents’

plans.  He held the view that the erection of the four-storey block of flats on
the adjacent erf would devalue his own property.Â
The challenge mounted by the
applicant against the approval was based on a number of grounds.  To mention
the main ones will suffice
for present purposes.  They are: the alleged lack of
authority of the decision-maker to approve the building plans; the City’s

failure to give the applicant a hearing before the approval, in compliance with
section 3 of the Promotion of Administrative Justice
Act (PAJA);
[6]
and non-compliance with the jurisdictional
requirements necessary for the exercise of the power to approve the plans.  In
the
context of the last ground, reference was made to the alleged absence of a
recommendation, as contemplated in section 6 of the Building
Standards Act, and
reasonable bases on which the decision-maker could have been satisfied that
none of the disqualifying factors
in section 7(1)(b)(ii)
[7]
would be triggered by the
erection of the block of flats.
[10]
The High Court rejected the meaning placed on
the word “recommendation” by the applicant and held that by appending his
signature
to the form, the Building Control Officer had made a positive
recommendation as envisaged in section 6 of the Building Standards
Act.
[8]
  He held further that none of
the disqualifying factors was present in this case.
[9]
Â
[11]
Regarding the applicant’s contention that he was
entitled to a pre-decision hearing, the High Court held that the applicant had

failed to establish a factual foundation for claiming that he had legitimately
expected to be heard before the approval of the
plans.
[10]
  Cleaver J declined to follow
Wunsh J’s judgment in
Erf 167 Orchards CC
[11]
(on which the applicant had
relied) and preferred the judgment of Lewis AJ in
Odendaal
.
[12]
  He held that in the
circumstances of the present case the applicant was not entitled to receive notice
nor the opportunity to
make representations to the decision-maker before the
plans were approved.
[13]
[12]
The High Court also rejected, as lacking merit,
the submission that the decision to approve the plans was irrational and
unreasonable.
[14]
Â
As stated above, he dismissed the application with costs.  Applying the rule in
Plascon-Evans
,
[15]
the High Court concluded that the applicant had failed to prove that the construction
of the block of flats would reduce the market
value of his property because the
views of the applicant’s valuer in this regard were sharply disputed by the
City’s witnesses.
[16]
Â
The application for leave to appeal was refused and the petition to the Supreme
Court of Appeal was also unsuccessful.
[17]
Proceedings in this Court
[13]
The City of Johannesburg (the amicus) was
admitted as amicus curiae and argument both in written and oral form was
addressed to
this Court on its behalf.
[14]
The applicant seeks leave to appeal against the
High Court judgment.  It is now settled that for the applicant to succeed, he
must
comply with two threshold requirements.  First, the case must raise a
constitutional issue or an issue connected therewith so as
to fall within the jurisdiction
of this Court.  Secondly, it must be in the interests of justice that leave to
appeal be granted.Â
A two-stage approach is adopted in the enquiry as to
whether these requirements are met.  The first stage relates to the
jurisdiction
issue and the second concerns the exercise of a discretion by this
Court.  The second stage is reached only if the first has yielded
a positive
finding.
Does the application raise a
constitutional issue?
[15]
There can be no doubt that the present case
raises a constitutional issue.  In challenging the City’s decision in the High
Court,
the applicant invoked the provisions of section 6 of PAJA.  The
interpretation and application of the provisions of PAJA raise
a constitutional
issue.  In
Bato Star
[18]
this Court held that cases such as the present fall within its
jurisdiction.  In that case O’Regan J said:
“The provisions of s 6 divulge a clear
purpose to codify the grounds of judicial review of administrative action as
defined in
PAJA.  The cause of action for the judicial review of administrative
action now ordinarily arises from PAJA, not from the common
law as in the past.
 And the authority of PAJA to ground such causes of action rests squarely on
the Constitution.  It is not
necessary to consider here causes of action for
judicial review of administrative action that do not fall within the scope of
PAJA.
 As PAJA gives effect to s 33 of the Constitution, matters relating to
the interpretation and application of PAJA will of course
be constitutional
matters.”  (Footnote omitted.)
The
interests of justice
[16]
Relying on three bases, counsel for the amicus
argued that it is not in the interests of justice to grant leave in this
matter.Â
First, he submitted that there was no compliance with Rule 16A of the
Uniform Rules of the High Court
[19]
which requires notice of a constitutional issue to be given.  Any
constitutional issue relied on by the applicants, it was argued,
was not
properly raised.  The Uniform Rules of the High Court, as the title suggests,
do not apply to proceedings in this Court.Â
Instead what is required is that
evidence supporting a constitutional issue raised must be placed before the
court of first instance.Â
But even this principle is not inflexible.  This
Court permits evidence to be placed before it where there are compelling
reasons
to do so.
[20]
Â
However, in this case, the constitutional issue relied on was raised in the
applicant’s founding papers.  It follows that
the constitutional issue was
properly raised.  The objection might possibly have had substance if it was
raised in the High Court,
but it was not.
[17]
Secondly, the amicus submitted that, due to the
existence of extensive factual disputes, there can be no proper consideration
of
the issues on appeal.  The factual disputes to which the amicus refers
relate solely to the narrow points of whether the applicant
has established
that the construction of the block of flats will trigger any of the
disqualifying factors listed in section 7(1)(b)(ii)
of the Building Standards Act.Â
As already stated, the High Court found that the applicant failed to prove this
issue in the light
of the conflict in the evidence of various experts.  The
finding was based, I must emphasise, on the application of the
Plascon-Evans
rule.  Before us, the applicant did not challenge this finding which is, in my
view, for present purposes unassailable.  It does
not however stand in the way
of enquiring into the correctness of the High Court’s findings on the right to
be heard before the
approval of the plans and other issues.  It was common cause
between the parties that the applicant was not afforded a hearing.Â
Furthermore,
the applicant also raised the issue of jurisdictional requirements, which does
not depend on any of the disputed facts.
[18]
Thirdly, the amicus, relying on section 7 of
PAJA
[21]
read with section 62 of the Local Government: Municipal Systems Act 32 of 2000
(the Municipal Systems Act),
[22]
submitted that the applicant was obliged to exhaust internal appeals before
approaching the High Court.  Since he has not applied
in terms of section 7 of
PAJA to be exempted from this requirement, so the argument continued, the High
Court lacked the authority
to entertain his application.  This Court must,
concluded the argument, refuse to hear the appeal until the internal remedies
are exhausted.
[19]
This point was abandoned by the City in the High
Court, and the judgment of that Court does not deal with it at all.  In this
Court,
the City raised the point in the alternative to the argument that none
of the applicant’s rights was affected by the impugned
decision, and the issue
was raised in relation to relief.  The question is whether the internal appeal
provided for in section
62 of the Municipal Systems Act was available to the
applicant, who was not a party to the application for the approval of the
plans.  The answer to this question lies in the interpretation of section
62(1).  The opening words of the section identify the
class of persons who are
entitled to invoke the appeal procedure.  It speaks of persons whose rights are
affected by a decision
taken by a local authority or some other body or person
within it, all of whom are listed in the subsection.  This means that for
the
applicant to qualify as a member of the designated class, it must be shown that
he had an identifiable right which was affected
by the decision to approve the
plans.  This has not been established on the papers.  The amicus and the other
respondents contend
that none of the applicant’s rights was affected by the
approval.  Therefore, in view of their stance in this regard, they cannot

insist on the obligation to exhaust domestic remedies.
[20]
The High Court dealt with the matter on its
merits and construed sections 6 and 7 of the Building Standards Act in a
particular
way.  For as long as that judgment stands, it will have to be
followed by all municipalities and property owners falling within
its area of
jurisdiction.  As a party to this litigation, the applicant is entitled to
appeal against the High Court’s judgment,
provided the requirements necessary
for such an appeal are met.  The applicant’s attempt to appeal has been
unsuccessful in
the High Court and in the Supreme Court of Appeal.
[21]
What is required at this stage is to weigh all
the factors relevant to the exercise of this Court’s discretion.
[23]
  The case raises issues of
great importance in the field of town planning and development in cities and
towns throughout the country.Â
The implicated sections of the Building
Standards Act have been construed in conflicting decisions of the High Court.Â
The particular
issues that arise in this case have not been considered by this
Court or the Supreme Court of Appeal.  The latter Court has declined
to
entertain the appeal.  The prospects of success on the merits appear to be
good.  All these factors weigh in favour of granting
leave in the interests of
justice.
The issues
[22]
The grounds of review which the applicant
pressed in this Court were the following: (a) there was no valid delegation of
powers
to the decision-maker; (b) the City failed to comply with mandatory
procedural requirements prescribed by the Building Standards
Act; (c) the
decision to approve the plans was procedurally unfair, arbitrary and
capricious; and (d) the City failed to act in
an open and accountable manner as
required by section 195(1) of the Constitution.  With regard to relief, the
City argued that
the applicant was not entitled to an order setting aside the
approval because he had failed to exhaust domestic remedies provided
for in
section 62 of the Municipal Systems Act.
[24]
Â
I address these issues in turn.
Delegation of power
[23]
Section 28(4) of the Building Standards Act
authorises a written delegation of powers by a local authority to any of its
committees
or employees, excluding only the power conferred on the local
authority by section 5 of that Act.  The latter section deals with
the
appointment of a Building Control Officer.  The power to appoint this officer is
reserved to be exercised by the local authority
itself.  All other powers can
be delegated to either committees or employees.  It is common cause in this
case that the power
to approve the building plans was exercised by Mr Griffiths
who is an employee of the City.
[24]
In raising this point, the applicant alleged (in
his founding affidavit):
“It is not clear from the documents filed
in terms of rule 53 of the Rules, who the decision-maker was; whether he or she
possesses
the requisite qualifications; and whether he or she was properly
delegated to approve the building plans in question.  Consequently,
it will be
argued that the administrative action in question was not authorised [by] the
empowering provision; or that the decision-maker
acted under a delegation of
power which was unauthorised”.
[25]
When read in context, the above challenge means
no more than that the record filed in terms of Rule 53 did not inform the
applicant
about who the decision-maker was and whether the power had been
properly delegated to him or her.  In its answering affidavit (deposed
to by
the Building Control Officer), the City identified Mr Griffiths as the
decision-maker to whom the power had been duly delegated.Â
The Building Control
Officer alleged:
“On 28 July 2006, First Respondent approved
the plans.  Mr Clive Griffiths, duly delegated, appended his signature and
approval.Â
In this regard, I refer to the Confirmatory Affidavit of Mr Griffiths,
filed of record herewith.”
In his affidavit Mr Griffiths
confirmed these allegations.
[26]
In reply the applicant simply disputed that
there was a proper delegation of power to Mr Griffiths.  Clearly a dispute of
fact
arose on the delegation issue and since these are motion proceedings, the
City’s averments must be taken as correct upon the application
of the
Plascon-Evans
rule.
[25]
Â
Moreover, at the hearing of the matter, counsel for the City undertook to
furnish the Court with a copy of the delegation.Â
Indeed, shortly after the
hearing such copy was furnished to the Court and the other parties.  As a
result, this complaint has
fallen away.
Was the decision to approve the
plans procedurally unfair?
[27]
There can be no doubt that when approving
building plans, a local authority or its delegate exercises a public power
constituting
administrative action.  The normative value system of the
Constitution imposes a duty on decision-makers to act fairly towards
parties
who are affected by their decisions.
[26]
Â
The most important component of procedural fairness is the one expressed by the
audi alteram partem principle (the audi principle)
which requires that parties
to be affected by an administrative decision be given a hearing before the
decision is taken.  What
gives rise to the right to be heard is the negative
impact of the decision on the rights or legitimate expectations of the person

claiming to have been entitled to a hearing before the decision was taken.  In
Masetlha
Ngcobo J said:
“The procedural aspect of the rule of law
is generally expressed in the maxim
audi alteram partem
(the
audi
principle).
 This maxim provides that no one should be condemned unheard.  It reflects a
fundamental principle of fairness that
underlies or ought to underlie any just
and credible legal order.  The maxim expresses a principle of natural justice.Â
What
underlies the maxim is the duty on the part of the decision-maker to act
fairly.  It provides an insurance against arbitrariness.
 Indeed, consultation
prior to taking a decision ensures that the decision-maker has all the facts
prior to making a decision.
 This is essential to rationality, the sworn enemy
of arbitrariness.  This principle is triggered whenever a statute empowers
a
public official to make a decision which prejudicially affects the property,
liberty or existing right of an individual.”
[27]
Â
(Footnote omitted.)
[28]
Regarding the procedural aspect of the right to
fairness, the applicant’s case was based on the provisions of section 3 of
PAJA.
[28]
Â
This section acknowledges in express terms that the required standard for
procedural fairness differs from case to case.  The
facts and circumstances of
a particular case determine the content of procedural fairness required.  But
the express precondition
for the requirement to act fairly, in terms of the
section, is that the administrative action must materially and adversely affect

the rights or legitimate expectations of the aggrieved person.  This
requirement is consistent with the common law position referred
to by Ngcobo J
in
Masetlha
.
[29]
Â
The audi principle evolved and its scope was expanded under the common law also
to cover cases where the impugned decision did not
affect rights.  If the
aggrieved person had a legitimate expectation to be heard, the principle applied.Â
The incorporation of
the doctrine of legitimate expectation into South African
law was endorsed by Corbett CJ in
Traub
.
[30]
  In terms of the doctrine, the
audi principle applies to cases where the aggrieved person’s legitimate
expectation was affected
by the decision reached, even if such person had no
antecedent rights affected thereby.
[29]
When the legislature enacted PAJA, it sought to
codify extensively grounds of review, including the denial of a pre-decision
hearing.Â
This Court has held that applications for review of administrative
action must ordinarily be based on PAJA.
[31]
Â
In
New Clicks
,
[32]
Ngcobo J said:
“Where, as here, the Constitution requires
Parliament to enact legislation to give effect to the constitutional rights
guaranteed
in the Constitution, and Parliament enacts such legislation, it will
ordinarily be impermissible for a litigant to found a cause
of action directly
on the Constitution without alleging that the statute in question is deficient
in the remedies that it provides.Â
Legislation enacted by Parliament to give
effect to a constitutional right ought not to be ignored.  And where a litigant
founds
a cause of action on such legislation, it is equally impermissible for a
court to bypass the legislation and to decide the matter
on the basis of the
constitutional provision that is being given effect to by the legislation in
question.”
[33]
Â
(Footnote omitted.)
[30]
It is within the above context that the
interpretation of section 3 of PAJA must be approached.  Moreover, when
Parliament enacted
PAJA, it must have been aware of judicial decisions which
applied the audi principle in its original and expanded forms, incorporating

the doctrine of legitimate expectation.  Hence the rights and legitimate
expectations referred to in section 3 of PAJA are not
defined.  The section requires
that procedural fairness be adhered to where the administrative action affects
materially and adversely
“the rights or legitimate expectations of any person”.Â
In so doing, the section apparently limits the scope of the right to
procedural
fairness envisaged in section 33 of the Constitution.  The applicant did not
challenge its constitutionality but invoked
it in its present form, as a basis
for his cause of action.  We must therefore proceed on the assumption that
section 3 is consistent
with the Constitution.
[31]
On a proper construction of section 3, the
applicant’s claim to a hearing can only succeed if he establishes that the
decision
to approve the building plans materially and adversely affected his
rights or legitimate expectations.  The parties involved in
the application for
the approval were the respondents and the City.  The applicant was not a party
to that process nor was he
entitled to be involved.  The building plans in
question were drawn at the instance of the respondents who wanted to erect the

four-storey block of flats on their own property.  The granting of the approval
could not, by itself, affect the applicant’s
rights.
[32]
It will be recalled, however, that the applicant’s
case is that the erection of the flats will devalue his own property and may
trigger
other disqualifying factors in section 7(1)(b)(ii) of the Building Standards Act.Â
He does not contend that the approval
itself will lead to those consequences.Â
The question is whether “administrative action” as contemplated in section 3 of
PAJA
should be construed to encompass the subsequent erection of flats.  I
think not.  Such interpretation would not constitute a reasonable
reading of
the section which requires a pre-existing right or legitimate expectation to be
materially and adversely affected by
the administrative decision itself.Â
Furthermore, there is no need to read section 3 so widely because section 7 of
the Building
Standards Act makes the erection of a building in a manner that
devalues neighbouring properties, on its own, a ground of review.Â
If the
applicant in this case had proved that the erection of the flats devalued his
property, he could have succeeded in having
the approval of the plans in
question set aside on that basis alone.  As observed by the Supreme Court of
Appeal in
Paola
,
[34]
a local authority is not authorised to approve plans in circumstances where
their execution will diminish the value of neighbouring
properties.  In that
case Farlam JA, writing for the Court, said:
“Once it is clear, as it is on the facts
presently before us, that the execution of the plans will significantly
diminish the
value of the adjoining property, then, on its plain meaning,
[section 7(1)(b)(ii)] prevents the approval of the plans. . . . In
the circumstances
I am satisfied, on the facts presently before us, that the appellants first
ground of attack on the third respondent’s
approval of the plans must be
sustained.”
[35]
[33]
In the present case the applicant’s allegation
that the erection of the flats will reduce the value of his property was denied

by the City.  The parties presented conflicting expert evidence on the issue
and since these were motion proceedings the High
Court applied the
Plascon-Evans
rule and accepted the City’s version on the issue.  On the papers, the
applicant has failed to prove that his property would
be devalued by the
erection of the flats.
Did the approval materially and
adversely affect the applicant’s legitimate expectations?
[34]
As indicated above, at common law, before the
adoption of the doctrine of legitimate expectation, the audi principle was
confined
to cases where an administrative decision affected pre-existing rights
of the party challenging the validity of the decision on
the basis that it was
denied a hearing.  Upon the realisation that pre-existing rights may be absent
but the facts of a particular
case may still require compliance with procedural
fairness, the courts in South Africa imported the doctrine of legitimate
expectation
in order to expand the scope of the audi principle.  In doing so,
the courts underscored the importance of the principle that the
question whether
there should have been a pre-decision hearing depends on the circumstances of
each case.
[36]
[35]
The doctrine of legitimate expectation, however,
has its own limitations.  It cannot be precisely defined.  In some cases it has

been expressed as a—
“substantive benefit or advantage or
privilege which the person concerned could reasonably expect to acquire or
retain and which
it would be unfair to deny such person without prior
consultation or a prior hearing”.
[37]
The doctrine applies where a person
enjoys a privilege or benefit which it would be unfair to deny that person without
giving him
or her a hearing.  A legitimate expectation may arise either from a
promise made by the decision-maker or from a regular practice
which is
reasonably expected to continue.
[36]
In
Traub
Corbett CJ cautioned against the
danger of freely applying the doctrine in determining whether or not procedural
fairness required
a pre-decision hearing.  The Chief Justice said:
“There are many cases where one can
visualise in this sphere – and for reasons which I shall later elaborate I
think that the
present is one of them – where an adherence to the formula of ‘liberty,
property and existing rights’ would fail to provide
a legal remedy, when the
facts cry out for one; and would result in a decision which appeared to have
been arrived at by a procedure
which was clearly unfair being immune from
review.  The law should in such cases be made to reach out and come to the aid
of persons
prejudicially affected.  At the same time, whereas the concepts of
liberty, property and existing rights are reasonably well defined,
that of
legitimate expectation is not.  Like public policy, unless carefully handled it
could become an unruly horse.  And, in
working out, incrementally, on the facts
of each case, where the doctrine of legitimate expectation applies and where it
does not,
the Courts will, no doubt, bear in mind the need from time to time to
apply the curb.  A reasonable balance must be maintained
between the need to
protect the individual from decisions unfairly arrived at by public authority
(and by certain domestic tribunals)
and the contrary desirability of avoiding
undue judicial interference in their administration.”
[38]
[37]
Since the concept of legitimate expectation
referred to in section 3 of PAJA is not defined, it must be given its ordinary
meaning
as understood over a period of time by the courts in this country.  But
the difficulty is that administrative action is defined
in section 1 of PAJA as
a decision which adversely affects the rights of another person.
[39]
  In the definition no
reference is made to a decision affecting legitimate expectations.  Yet section
3 refers to administrative
action that affects legitimate expectations.  Applying
the definition to the interpretation of section 3 will lead to absurdity.Â

Therefore, I am willing not to apply it and to assume that section 3 of PAJA
confers the right to procedural fairness also on persons
whose legitimate
expectations are materially and adversely affected by an administrative
decision.  In the context of section
3, administrative action cannot mean what
was intended in the definition section.  Applying the definition to section 3
would
lead to an incongruity or absurdity not intended by Parliament.  The
general rule is that a definition meaning may not be applied
if its application
will lead to such consequences.
[40]
 The Supreme Court of Appeal in
Grey’s
Marine
[41]
held that the definition of
administrative action in PAJA ought not to be given its literal meaning.  In
that case Nugent JA said:
“While PAJA’s definition purports to
restrict administrative action to decisions that, as a fact, ‘adversely affect
the rights
of any person’, I do not think that literal meaning could have been
intended.  For administrative action to be characterised
by its effect in
particular cases (either beneficial or adverse) seems to me to be paradoxical
and also finds no support from the
construction that has until now been placed
on s 33 of the Constitution.  Moreover, that literal construction would be
inconsonant
with s 3(1), which envisages that administrative action might
or might not affect rights adversely.  The qualification, particularly
when
seen in conjunction with the requirement that it must have a ‘direct and
external legal effect’,
was probably
intended rather to convey that administrative action is action that has the
capacity to affect legal rights, the two
qualifications in tandem serving to
emphasise that administrative action impacts directly and immediately on
individuals.”
[42]
Â
(Footnotes omitted.)
Has the applicant established any
legitimate expectation affected by the approval of the plans?
[38]
In order to answer this question, it is
necessary to look at the test formulated by the courts for determining the
existence of
legitimate expectation.  The enquiry is primarily factual and the
focus during this stage is on objective facts giving rise to
the expectation.Â
The aggrieved party’s state of mind is irrelevant to the enquiry.  Once the
facts supporting an expectation
are established, the enquiry moves to the
second stage which is whether, in the circumstances of the case at hand,
procedural fairness
required a pre-decision hearing.  In
SARFU
,
[43]
this Court applied the
test in two stages.  In relation to the first stage the Court said:
“The question then is whether, on the facts
outlined above, which were not in material dispute between the parties, the
respondents
have established any legitimate expectation that the President
would not, in conflict with any undertaking which might have been
given by the
Minister, make the provisions of the Commissions Act applicable to the
commission, without first affording the respondents
an opportunity of being
heard.  They did not assert such an expectation in the correspondence addressed
to the Department on 26
August 1997, after they had been informed that the
Department considered the appointment of a commission to be its only option.
 Nor
did they assert such an expectation in their letter to the President on 29
September 1997 when they sought his reasons.”
[44]
And later the Court concluded by
saying:
“Indeed, any such expectation could not in
the circumstances of this case have been considered to be legitimate, giving
rise to
a right to be heard by the President.  The question whether an
expectation is legitimate and will give rise to the right to a hearing
in any
particular case depends on whether in the context of that case, procedural
fairness requires a decision-making authority
to afford a hearing to a
particular individual before taking the decision.  To ask the question whether
there is a legitimate
expectation to be heard in any particular case is, in
effect, to ask whether the duty to act fairly requires a hearing in that case.
 The
question whether a ‘legitimate expectation of a hearing’ exists is therefore
more than a factual question.  It is not
whether an expectation exists in the
mind of a litigant but whether, viewed objectively, such expectation is, in a
legal sense,
legitimate; that is, whether the duty to act fairly would require
a hearing in those circumstances.”
[45]
[39]
In this case, the legitimate expectation sought
to be invoked is not founded upon an express representation made by the
decision-maker
but on an alleged practice.  The requirement is that the conduct
underlying the expectation must reasonably lead to the belief
that the
aggrieved party would be given a hearing before the decision is taken.  In
Traub
Corbett CJ cited with approval the following statement from the speech of Lord
Fraser in
Council of Civil Service Unions and Others v Minister for the
Civil Service
:
[46]
“But even where a
person claiming some benefit or privilege has no legal right to it, as a matter
of private law, he may have
a legitimate expectation of receiving the benefit
or privilege, and, if so, the courts will protect his expectation by judicial

review as a matter of public law. . . . Legitimate, or reasonable, expectation
may arise either from an express promise given on
behalf of a public authority
or from the existence of a regular practice which the claimant can reasonably
expect to continue.”
[47]
[40]
The applicant bases his legitimate expectation
claim on two facts.  First, he alleges that in a similar application for
approval
of plans for the erection of a building in the same area, the City
invited interested parties to inspect the plans and make representations,
before
the plans were considered for approval.  Secondly, the fact that the applicant
was the owner of the adjoining property
on which “the block of flats would cast
a large shadow in winter.”
[41]
The fact that the City had afforded interested
parties a hearing in one application does not constitute a regular practice
which
the applicant could reasonably expect to be extended to him.  That was an
isolated case which could hardly amount to a general
practice necessary to
found a reasonable expectation.  Moreover, we do not have full facts relating
to the case relied upon.Â
We do not know if the City had the authority to make
such invitation in the first place.  For, if it lacked the power to do so,

reliance thereon could not be legitimate because the invitation would have been
incompetent and unlawful.
[48]
[42]
I fail to appreciate how the second fact could
have given rise to a legitimate expectation.  Being the owner of the
neighbouring
property cannot give rise to an expectation to be heard in
circumstances such as the present, let alone a reasonable expectation.Â
A legitimate
expectation may arise from an express promise or a regular practice.  It cannot
arise from ownership of a neighbouring
property.  It follows that the applicant
has failed to establish that he had a right or a legitimate expectation
materially and
adversely affected by the approval of the plans.  Absent an
affected right or a legitimate expectation, the applicant cannot challenge
the
approval on the basis that he ought to have been heard and was denied a
pre-decision hearing.
[49]
Conflicting decisions of the High
Court
[43]
Before I leave the audi principle, I must
briefly comment on the conflicting decisions of the Johannesburg High Court.  In
Erf 167 Orchards CC
,
[50]
Wunsh J, relying on the decision of the Supreme Court of New South Wales in
Porter
,
[51]
held that owners of adjoining
properties have a right to be heard before building plans are approved by a
local authority.  However,
he did not clarify whether his conclusion was based
on a finding that the approval affected the rights or legitimate expectations

of such owners.  Following a quotation from
Porter
, Wunsh J said:
“So that seems either that the right of
inspection is conferred by the statute in accordance with the general rules
relating to
the audi alteram partem doctrine or that the applicant justifiably
had a legitimate expectation that it would be given notice of
any application
and an opportunity to make representations.  As it seems to me that the rule
applies by reason of potential prejudice
to the applicant’s property, I decline
to consider whether any curbs should be imposed on its rights.  The second
respondent’s
counsel argued that the audi rule did not apply in the instant
case because the first respondent was not exercising powers but discharging

duties.  This distinction is not material.  The principles of natural justice
apply where an administrative organ makes a decision
affecting the interests of
parties in the circumscribed manner in fulfilling a statutory duty.”
[52]
[44]
The concluding sentence in the above dictum adds
to the confusion created.  Since Wunsh J dealt with the issue under the common

law, regard to the common law requirements is necessary for determining the
correctness of the dictum.  As stated above, under
the common law, the audi
principle originally applied where the decision affected the “liberty, property
or existing rights”
of the claimant, and it was later extended to decisions
affecting legitimate expectations of claimants.  Thus, even before the
present
constitutional order, courts in this country did not apply the audi principle
to administrative decisions which affected
interests falling short of rights or
legitimate expectations.  Presently, section 3 of PAJA makes it clear that the
right to a
hearing is available to persons whose rights or legitimate
expectations are affected by administrative action.
[45]
The Building Standards Act does not confer on
owners of adjoining property the right to inspect building plans lodged with a
local
authority for approval.  Therefore, Wunsh J’s finding in this regard was
incorrect and so was the allied finding that “the
applicant justifiably had a
legitimate expectation that it would be given notice of any application and an
opportunity to make
representations.”
[53]
Â
The requirements for establishing the existence of a legitimate expectation were
not met and the Judge omitted to consider this
issue in his judgment.  In
Odendaal
[54]
Lewis AJ refused, correctly in
my view, to follow the decision in
Erf 167 Orchards CC
on the basis that
it was wrong, and held that the owner of a neighbouring property has no right
to be heard in an application for
the approval of building plans.
Failure to comply with mandatory
procedural requirements
[46]
Two major submissions were made by the applicant
under this ground of review which was based on section 6(2)(b) of PAJA.
[55]
  First, it was argued that the
decision-maker did not have before him a recommendation as contemplated in
sections 6(1) and 7(1)
of the Building Standards Act, prior to approving the
plans.  It was submitted that the word “recommendation” in the context
of these
sections means motivated advice which covers the merits and demerits of the
application for approval.  Second, it was
submitted that section 7(1)(b)(ii) of
the Building Standards Act enjoins the decision-maker to be satisfied, prior to
approving
the plans, that the erection of the building to which the plans apply
will not disfigure the area; be unsightly or objectionable;
be dangerous to
life or property; or derogate from the value of adjoining properties.  The
existence of any one of these factors,
it was contended, disqualifies the plans
concerned from approval.  As the consideration of these issues requires a
proper interpretation
of the relevant sections of the Building Standards Act,
it is convenient to commence with an overview of those provisions, which
is set
out hereafter.
[47]
The Building Standards Act, as the long title
proclaims, promotes uniformity in the law relating to the construction of
buildings
within municipal areas, by prescribing general requirements and
building standards which must be adhered to.  Section 4 of the
Building
Standards Act requires approval by a local authority of building plans before
any construction can commence.  Section
5 obliges every local authority to
appoint a Building Control Officer whose powers and functions are specified in
the Building
Standards Act.  This Officer is given extensive powers and plays a
critical role towards achieving the objectives of this Act.Â
Once an
application for the approval of plans is lodged with a local authority, the Building
Standards Act authorises the Building
Control Officer to enter the land to
which the plans in question apply, prior to the approval of the plans by the
decision-maker.
[56]
 He or she is entitled to inspect the site in preparation for consideration of
the application for the approval of the plans by
the relevant decision-maker.  Any
person who prevents the Building Control Officer from entering such land or in
any other way
hinders or obstructs him or her from performing his or her
duties, commits a criminal offence punishable by a fine not exceeding
R4 000 or
imprisonment for a period not exceeding 12 months.
[57]
[48]
The Building Control Officer must make
recommendations on all plans submitted to the local authority in terms of
section 4.  Such
recommendations must, where necessary, incorporate reports
relating to fire protection plans.  Once the plans are approved and
the
building is under construction, the Building Control Officer is mandated to
inspect it in order to determine whether the plans
and conditions under which
they were approved are followed.  Where there is non-compliance he or she must
report it to the local
authority.
[58]
Â
He or she is also empowered to exempt from the obligation to submit plans,
persons who undertake minor building work.
[59]
[49]
Quite a number of the Building Control Officer’s
functions are contained in section 6, which is one of the two sections that the

applicant contended were not complied with during the approval of the plans in
the instant case.  In part, section 6 provides:
“(1)      A building control officer shall—
(a)         make recommendations to the local authority in question,
regarding any plans, specifications, documents and information
submitted to
such local authority in accordance with section 4(3);
(b)         ensure that any instruction given in terms of this Act
by the local authority in question be carried out;
(c)         inspect the erection of a building, and any activities
or matters connected therewith, in respect of which approval
referred to in
section 4(1) was granted;
(d)         report to the local authority in question, regarding
non-compliance with any condition on which approval referred
to in section 4(1)
was granted.
(2)       When a fire protection plan is required in terms of this
Act by the local authority, the building control officer
concerned shall
incorporate in his recommendations referred to in subsection (1)(a) a report of
the person designated as the chief
fire officer by such local authority, or of
any other person to whom such duty has been assigned by such chief fire
officer, and
if such building control officer has also been designated as the
chief fire officer concerned, he himself shall so report in such

recommendations.”
[50]
The process of approving building plans is
governed by section 7 of the Building Standards Act.  It provides:
“(1)      If a local authority, having considered a recommendation
referred to in section 6(1)(a)—
(a)         is satisfied that the application in question complies
with the requirements of this Act and any other applicable
law, it shall grant
its approval in respect thereof;
(b)         (i)         is
not so satisfied; or
(ii)        is satisfied that the building to which the application
in question relates—
(aa)      is to be erected in such manner or will be of such nature
or appearance that—
(aaa)    the area in which it is to be erected will probably or in
fact be disfigured thereby;
(bbb)    it will probably or in fact be unsightly or objectionable;
(ccc)    it will probably or in fact derogate from the value of
adjoining or neighbouring properties;
(bb)      will probably or in fact be dangerous to life or property,
such local
authority shall refuse to grant its approval in respect thereof and give written
reasons for such refusal:
Provided that
the local authority shall grant or refuse, as the case may be, its approval in
respect of any application where the
architectural area of the building to
which the application relates is less than 500 m
2
, within a period
of 30 days after receipt of the application and, where the architectural area
of such building is 500 m
2
or larger, within a period of 60 days
after receipt of the application.
(2)        . . . .
(3)        When a local authority has granted its approval in
accordance with subsection (1)(a) in respect of any application,
such approval
shall be endorsed on at least one of the copies of the plans, specifications
and other documents in question returned
to the applicant.
(4)        Any approval granted by a local authority in accordance
with subsection (1)(a) in respect of any application shall
lapse after the
expiry of a period of 12 months as from the date on which it was granted unless
the erection of the building in
question is commenced or proceeded with within
the said period or unless such local authority extended the said period at the
request
in writing of the applicant concerned.
(5)       Any application in respect of which a local authority
refused in accordance with subsection (1)(b) to grant its approval,
may,
notwithstanding the provisions of section 22, at no additional cost and subject
to the provisions of subsection (1) be submitted
anew to the local authority within
a period not exceeding one year from the date of such refusal—
(a)         (i)         if the plans, specifications and other
documents have been           amended in respect
of any aspect thereof which gave
cause for the refusal; and
(ii)        if the plans, specifications and other documents in
their amended form do not substantially differ from the plans,
specifications
or other documents which were originally submitted; or
(b)        where
an application is submitted under section 18.
(6)        The provisions of this section shall not be construed so
as to prohibit a local authority, before granting or refusing
its approval in
accordance with subsection (1) in respect of an application, from granting at
the written request of the applicant
and on such conditions as the local
authority may think fit, provisional authorization to an applicant to commence
or proceed with
the erection of a building to which such application relates.
(7)        (a)        An application which is substantially the same
as an application
referred to in
this Act and which before the date of commencement of this Act has been lodged
with a local authority for its consideration
and in respect of which such local
authority on that date has not yet granted or refused its approval, shall be
considered by such
local authority as if this Act had not been passed.
(b)        Approval granted by a local authority before the date of
commencement of this Act in respect of an application
substantially the same as
an application referred to in this Act, shall be deemed to have been granted in
terms of this section
if the erection of the building in question has not been
commenced with before the said date.”
The context in which sections 6
and 7 must be construed
[51]
Since section 7 authorises the exercise of
public power, the starting point in determining the relevant context is that
the Building
Standards Act must be read consistently with PAJA.  All statutes
which authorise the making of administrative action must now be
read with PAJA
unless their provisions are inconsistent with it.  PAJA was intended to interface
with all statutes (whether enacted
before or during the current constitutional
order) which authorise administrative action.  In
Zondi
,
[60]
Ngcobo J, writing for the
Court said:
“PAJA was enacted pursuant to the
provisions of section 33, which requires the enactment of national legislation
to give effect
to the right to administrative action.  PAJA therefore governs
the exercise of administrative action in general.  All decision-makers
who are
entrusted with the authority to make administrative decisions by any statute
are therefore required to do so in a manner
that is consistent with PAJA.  The
effect of this is that statutes that authorise administrative action must now
be read together
with PAJA unless, upon a proper construction, the provisions of
the statutes in question are inconsistent with PAJA.”
[61]
  (Footnotes omitted.)
[52]
As noted earlier, the Building Standards Act
prohibits landowners from erecting buildings on their land without prior
approval by
the local authority, which may also impose conditions for the
exercise of the landowner’s rights over his or her own property.Â
While the approval
of the plans itself cannot affect the rights of other parties, the subsequent execution
thereof may result in
the erection of a building which might affect the rights
of the owners of neighbouring properties.  This necessitates that the
relevant
provisions of the Building Standards Act be construed in a manner that promotes
the implicated rights, consistently with
the obligation imposed on courts by
section 39(2) of the Constitution.
[62]
Â
This Court has held in a long line of cases that section 39(2) applies to the interpretation
of all statutes.
[63]
Â
In
Fraser
,
[64]
Van der Westhuizen J described this requirement as a “mandatory constitutional
canon of statutory interpretation”.
[65]
Â
Elaborating on the point Van der Westhuizen J said:
“The question raised by this application is
whether the Supreme Court of Appeal’s interpretation of s 26 has failed to
promote
the spirit, purport and objects of the Bill of Rights in terms of s
39(2).  This differs from an attack on an allegedly wrong factual
finding or
incorrect interpretation or application of the law, as in the cases referred to
earlier.  Section 39(2) requires more
from a court than to avoid an
interpretation which conflicts with the Bill of Rights.  It demands the
promotion of the spirit,
purport and objects of the Bill of Rights.  These are
to be found in the matrix and totality of rights and values embodied in the

Bill of Rights.  It could also in appropriate cases be found in the protection
of specific rights, like the right to a fair trial
in s 35(3), which is
fundamental to any system of criminal justice, and of which the rights to legal
representation and against
unreasonable delays are components.  The spirit, purport
and objects of the protection of the right to a fair trial therefore have
to be
considered.”
[66]
[53]
Sections 6 and 7 of the Building Standards Act
must also be construed in the context of the other provisions of the Building
Standards
Act.  The two sections must be read together.  This approach ties in
neatly with the “mandatory constitutional canon of statutory
interpretation”
referred to above.
[67]
Â
I begin with construing section 7.
[54]
The language employed in section 7 reveals four
key issues relating to the process of exercising the power to approve building
plans.Â
First, the decision-maker must consider the Building Control Officer’s
recommendation made in terms of section 6.  Secondly,
if he or she is satisfied
that the application for approval complies with the requirements of the Building
Standards Act and other
applicable law, he or she must grant the approval
unless he or she is also satisfied that the erection of the building to which

the plans apply will trigger one of the disqualifying factors in section
7(1)(b)(ii).  Thirdly, if the decision-maker is satisfied
that the
disqualifying factors will be triggered, he or she “shall refuse to grant [his
or her] approval in respect thereof and
give written reasons for such
refusal”.  Lastly, if the decision-maker is not satisfied that the application
complies with the
necessary requirements, he or she shall refuse to grant
approval and give reasons for the refusal.
[55]
Accordingly the decision-maker must be satisfied
of two things before granting approval.  The first is that he or she must be
satisfied
that there is compliance with the necessary legal requirements.Â
Secondly, he or she must also be satisfied that none of the disqualifying

factors in sections 7(1)(b)(ii) will be triggered by the erection of the building
concerned.  This is so because any approval
of plans facilitating the erection
of a building which devalues neighbouring properties, for example, is liable to
be set aside
on review.
[68]
Â
An approval can be set aside on this ground irrespective of whether or not the
decision-maker was satisfied that none of the
disqualifying factors would be
triggered.  All that is needed for an applicant to succeed is to prove to the
satisfaction of the
reviewing court that the erection of the building will
reduce the value of his or her property.  The legislature could not have

intended to authorise an invalid exercise of power.  In order to avoid this
consequence, the decision-maker must at least be satisfied
that none of the
invalidating factors exist before he or she grants approval.  This
interpretation is consistent with the obligation
to promote the spirit, purport
and objects of the Bill of Rights.  It demonstrates that it is not only the
landowner’s right
of ownership which must be taken into account, but also the
rights of owners of neighbouring properties which may be adversely affected
by
the erection of a building authorised by the approval of the plans in
circumstances where they were not afforded a hearing.Â
The section, if
construed in this way, strikes the right balance between the landowner’s
entitlement to exercise his or her right
of ownership over property and the
right of owners of neighbouring properties.  The interpretation promotes the
property rights
of the landowners and those of its neighbours.
[69]
[56]
Indeed the construction that section 7(1)(b)(ii)
requires that the decision-maker must be satisfied that none of the disqualifying

factors will be triggered before approving plans, was adopted by the High Court
in the instant matter and was supported by the
parties before us.  In its judgment,
the High Court said:
“While the local authority is entrusted
with the power to approve plans, it must, in a manner of speaking, act on
behalf of the
neighbours by ensuring that the disqualifying factors mentioned
in s 7(1)(b) are not present before approving plans which otherwise
comply with
all applicable laws.”
[70]
On this interpretation, section 7
creates an adequate self-contained protection which safeguards the rights of
owners of neighbouring
properties.  As a result it becomes unnecessary for such
owners to be heard before the approval is granted.  The presence of a

disqualifying factor precludes the granting of the approval and where the
approval is granted despite a disqualifying factor, the
process becomes invalid
and can be set aside on that ground.  Therefore the entitlement to a
pre-decision hearing will not arise
in such a case, as nobody is entitled to
claim a hearing prior to an invalid exercise of public power.  Construing the
provision
in a manner that allows the decision-maker to infer from the
recommendation that the disqualifying factors will not be triggered
undermines
the protection afforded to owners of neighbouring properties by the section.Â
The section requires that the decision-maker
himself or herself must be
satisfied that the protection requirements are met.  The word “recommend” used
by the Building
Control Officer in this matter cannot be a sufficient basis for
the required state of mind on the part of the decision-maker.Â
The relevant section
requires the decision-maker to bring his or her mind to bear on the
non-existence of the disqualifying factors.
Â
[57]
Although the High Court held that the
decision-maker was required to make certain that none of the disqualifying
factors was present
before approving the plans, it did not determine whether the
decision-maker did that in the present instance.  Instead, it approached
the
matter on the basis that there was no proof that the decision-maker did not
take into account the relevant provisions.  In
this regard, the High Court
said:
“Finally, it was submitted that the
decision of the first respondent was otherwise unconstitutional or unlawful
since it was alleged
that the only documents before the decision maker were the
documents comprising the application in terms of s 4(2) of the Act and
a document
titled
“Land Information Systems Ratepayers Data”
.  Based on this, it
was submitted that the decision maker could not have taken into account the
provisions of s 7(1)(b) of the
Act and more specifically, the factors in
7(1)(b)(ii).  I have already referred to the process which was undertaken in
examining
the application before it received approval and recommendation from
the building control officer and having regard to the affidavit
filed by the
latter, there is no reason to conclude that the decision maker did not take
into account the provisions of s 7(1)(b)
of the Act.”
[71]
[58]
It appears to me that the High Court misunderstood
the issue when it dealt with the question as to whether the impugned decision
was
unlawful.  In outlining the grounds of review, the High Court stated that one
such ground was that the City had failed to
comply with a mandatory and
material procedure prescribed by sections 6 and 7 of the empowering Act.Â
Having found that, on a
proper construction, section 7(1)(b) required the
decision-maker to ensure that none of the disqualifying factors was present
before
approval, the High Court should have determined on the papers before it,
whether it could be found that the decision-maker had so
ensured.
[59]
In this case, the City asserts that the
decision-maker was satisfied before approving the plans that none of the
disqualifying factors
would be triggered.  The difficulty with this contention is
that it is not borne out by the objective facts provided by the City
itself.Â
As mentioned earlier, when asked to furnish the list of documents placed before
the decision-maker, the City mentioned
the application for the approval of
plans, the form endorsed by various departments and a document titled “Land
Information System
– Ratepayers Data”.  It was asked to confirm if these were
the only documents placed before the decision-maker and the City
confirmed this
to have been the position.
[60]
There can be no doubt that these documents could
not reasonably have satisfied the decision-maker that none of the disqualifying

factors would be triggered.  None of these documents refers to those factors.Â
If indeed the decision-maker was so satisfied
on the basis of these three
documents, his satisfaction was not based on reasonable grounds.  The documents
fall far short as
a basis for forming a rational opinion.  Nor does the mere
statement by the City to the effect that the decision-maker was satisfied

suffice.  In the past, when reasonableness was not taken as a self-standing
ground for review, the City’s ipse dixit could have
been adequate.
[72]
  But that is no longer the
position in our law.  More is now required if the decision-maker’s opinion is
challenged on the
basis that the subjective precondition did not exist.  The
decision-maker must now show that the subjective opinion it relied on
for
exercising power was based on reasonable grounds.
[73]
  In this case, it cannot be
said that the information, which the City admitted had been placed before the
decision-maker, constituted
reasonable grounds for the latter to be satisfied.
[61]
The determination of whether the decision-maker
was satisfied that the disqualifying factors will not be triggered by the
erection
of the block of flats concerned entails a factual enquiry.  The fact
that the Building Control Officer had considered those factors
is irrelevant to
this enquiry unless it is established that this fact was communicated to the
decision-maker.  There is no evidence
in the record showing that such
communication took place.  Consequently, it is not correct in my view, for the
City to assert
that, since the relevant factors had been considered by the Building
Control Officer, it must be accepted that the decision-maker
had also
considered them.
[62]
The word “recommendation” on its own, does not
objectively indicate what was considered by the Building Control Officer before

he reached the decision to recommend approval of the plans.  Accordingly, the
decision-maker was not entitled to assume, from
the use of this word alone,
that the Building Control Officer had considered the issue of the disqualifying
factors, and that he
reached the opinion that they did not exist.
[63]
The fact that the Building Control Officer (who
deposed to the City’s main affidavit which was confirmed by the decision-maker)

had extra information in his possession which could, when taken together with
the documents in question, have formed an adequate
basis for the opinion, does
not cure the defect.  Such additional information as the Building Control
Officer had was not placed
before the decision-maker.  Therefore, the
reasonableness of the decision-maker’s satisfaction can be determined with
reference
only to the information he had before him at the time he considered
the building plans in question.  An evaluation of such information
reveals that
it was inadequate.  It follows that the decision-maker had failed to properly determine
that none of the disqualifying
factors would be triggered by the erection of
the block of flats.  I proceed to consider whether the decision-maker had the
necessary
recommendation before granting the approval.
The meaning of “recommendation” in
the context of sections 6 and 7 of the Building Standards Act
[64]
Relying on
Ex parte Porritt
,
[74]
counsel for the applicant
argued, both in the High Court and this Court, that “recommendation” as
contemplated in section 7,
entails the weighing of the merits and demerits of
the subject matter with a view to giving advice on the course to be taken by

the decision-maker.  He submitted that the grounds supporting the advice given
must appear in the body of the recommendation for
the benefit of the
decision-maker, so that he or she can be in the position to independently
assess the cogency of the advice.Â
In this case, the endorsement and signature
of the Building Control Officer, it was argued, did not constitute a
recommendation
contemplated in the section.  Without such recommendation,
continued the argument, the necessary jurisdictional fact was lacking
and
consequently the approval of the plans was invalid.
[65]
Counsel for the City argued that, since
“recommendation” is not defined in the Building Standards Act, it must be given
its
ordinary meaning within the context and purpose of the relevant
provisions.  I agree with this proposition.  Counsel then referred
us to the
dictionary meaning of “recommendation”.  He submitted that “recommendation” means
“a suggestion or proposal
as to the best course of action, especially one put
forward by an authoritative body”.  Invoking this definition, counsel for
the
City submitted that all that is required by the relevant provisions is a
proposal or suggestion that the building plans be
approved.
[66]
The interpretation proposed by the City attaches
prominence to the literal meaning of the term with no regard to the context and

purpose of sections 6 and 7.  For the proper making of recommendations and performance
of other functions listed in the Building
Standards Act, section 5 requires
that the Building Control Officer be suitably qualified.  Section 6(2) requires
the recommendation
to incorporate the report of the Chief Fire Officer where a
fire protection plan is needed.  The section does not require that
such report
be annexed to the recommendation, but that it be incorporated as an integral
part of the recommendation.  In addition,
section 7 does not only make the
recommendation a jurisdictional fact, but it also obliges the decision-maker –
in express terms
– to consider the recommendation before he or she takes the
decision to approve or refuse to grant an approval of particular plans.Â
The
structure of section 7 is such that the ultimate decision by the decision-maker
depends on the opinion he or she reaches following
a consideration of the
recommendation.  If he or she is satisfied that the application for approval complies
with the necessary
requirements and that none of the disqualifying factors will
be triggered, the decision-maker has no choice but to approve the plans.Â
If,
on the other hand, he or she is satisfied that one or more disqualifying
factors will be triggered, he or she must refuse to
grant approval.  He or she
must also refuse the application if not satisfied that there was compliance
with the necessary requirements.
[67]
The discretion conferred on the decision-maker
is highly circumscribed because the decision taken is reliant upon the
antecedent
opinion reached.  The opinion of being “satisfied” or “not
satisfied” is reached upon a consideration of the recommendation.Â
This emerges
from the opening words employed in section 7(1) which in part reads:
“If a local authority, having considered a
recommendation referred to in section 6(1)(a) . . .  is satisfied that the
building
to which the application in question relates— is to be erected in such
a manner or will be of such nature or appearance that .
. . it will probably or
in fact derogate from the value of adjoining neighbouring properties . . .
such local authority shall
refuse to grant its approval . . . and give reasons
for such refusal.”
For section 7(1)(b)(ii) to make
sense, it must be read in this way.  The part of the section dealing with the
disqualifying factors
is inextricably linked to the opening part, which requires
the decision-maker to be satisfied, following a consideration of the

recommendation.
[68]
What emerges from this interpretation is that
the purpose of the recommendation is to furnish the decision-maker with a basis
for
his or her opinion, one way or the other.  This much was conceded by
counsel for the City.  In its written argument they submitted:
“The decision-maker would be aware of the
provisions of section 7(1), and would know that the Building Control Officer (a
specialist
official) would be aware of them.  The recommendation of the
Building Control Officer can only mean that the application complied
with the
requirements of the Act and any other applicable law, that it had not been
found that any of the disqualifying factors
was present, and that the
decision-maker was accordingly advised to approve the application.”
[69]
The decision-maker must, however, assess and be
satisfied of these issues himself or herself.  He or she is not expected to
accept
without more the proposal of the Building Control Officer.  Nor is he or
she expected to infer from the word “recommend” that
none of the disqualifying
factors will be triggered.  Section 7(1) requires the decision-maker to be
“satisfied” before making
a decision on whether to grant or refuse the
application.  In a different but not unrelated context, in
New Clicks
,
[75]
Ngcobo J stated:
“The Minister is required to make regulations
based on the recommendation of the Pricing Committee.  The Minister does not
merely
rubber stamp the recommendation of the Pricing Committee.  She is required
to apply her mind to the recommendation and make a decision
whether to accept
such recommendation.  She cannot therefore accept the fees proposed by the Pricing
Committee simply because
they have been proposed by the Pricing Committee.  She
must satisfy herself that the fees proposed by the Pricing Committee are

appropriate within the meaning of s 22G(2).  She can only do this if she is furnished
with an explanation as to how the fees were
arrived at.  Without such information,
the Minister cannot properly evaluate the appropriateness or otherwise of the
fees proposed
by the Pricing Committee.”
[76]
[70]
If the purpose of the recommendation is merely
to inform the decision-maker of the Building Control Officer’s attitude or view

on the approval, as argued by the City’s counsel, it is difficult to imagine
why the recommendation is made a jurisdictional
fact, when the decision-maker
can investigate on his or her own, matters relating to compliance with
requirements and the disqualifying
factors.  It is equally difficult to find the
reason why the legislature would oblige the decision-maker to consider the
recommendation
before forming an opinion as to whether he or she was satisfied
about a particular state of affairs, if the recommendation was not
intended to
be the primary source of information leading to being satisfied.  The facts of
the present case demonstrate that the
Building Control Officer had information
concerning the very issues which the decision-maker was required to consider,
but this
information was not placed before the decision-maker.  As a specialist
the Building Control Officer is best suited to advise the
decision-maker about
disqualifying factors.  This is so because the determination of these factors
involves a prediction of what
may happen in the future as a result of the
erection of the building to which the plans apply.
[71]
The recommendation therefore is the proper means
by which information on disqualifying factors can be placed before the
decision-maker.Â
I am satisfied that the endorsement and signature of the Building
Control Officer in this case did not constitute a recommendation
as envisaged
in sections 6 and 7 of the Building Standards Act.  Although the Building
Standards Act does not strictly require
this, it will be helpful and enhancing
to the process if the Building Control Officer, at the stage of compiling the
recommendation
invites, from owners of neighbouring properties, representations
about the impact the proposed building might have on their properties.Â
Such
approach would help in dealing with issues relating to disqualifying factors.Â
This would significantly reduce chances of
approval of plans in cases where
some of the disqualifying factors exist but were not discovered by a local
authority.  As we
now know, the existence of such factors, if proved,
constitutes a valid ground for setting aside the approval after it had been

acted upon and at high cost to all parties concerned.
[72]
The above finding does not subtract anything from
the rigorous and impressive process followed by the amicus and the City up to
the stage when the application for the approval is placed before the Building Control
Officer.  Most of the steps taken during
that process are not even required by
the Building Standards Act but they constitute a salutary procedure which must
be encouraged.Â
No matter how impressive the process might be, it is no
substitute for the mandatory requirements of the Building Standards Act.Â
The Building
Control Officers must ensure that adequate information is placed before
decision-makers so that they can consider
applications for approval of building
plans properly and in a balanced way.  The recommendations they make must serve
this purpose.Â
The approval of plans in the absence of such recommendation in
this matter means that the necessary jurisdictional fact was lacking.Â
It
follows that the approval is invalid and must be set aside.  This being the
view I take on the matter, it becomes unnecessary
to consider the other issues
raised by the applicant.
Relief
[73]
Counsel for the City argued that the applicant
is not entitled to any relief, because he had failed to exhaust internal
remedies
provided for in section 62 of the Municipal Systems Act.  I have
already found that this section does not apply to the applicant’s
case.  In the
event of this Court setting aside the approval, counsel for the City submitted
that a just and equitable remedy
is to remit the matter to the City.  I agree.
Costs
[74]
The applicant has been successful and therefore
he is entitled to his costs.  The City is responsible for the defect in the
impugned
decision.  Although the respondents defended the decision, both in the
High Court and this Court, it would be unfair to order them
to pay costs
arising from their defence of the decision.  Fairness will best be served if
the City is ordered to pay the applicant’s
costs.  The amicus and the
respondents must pay their own costs.
Order
[75]
The following order is made:
1.         The
application for leave to appeal is granted.
2.         The
appeal is upheld with costs, including costs of two counsel.
3.         The City of Cape Town is ordered to pay the applicant’s
costs in this Court, and in the Supreme Court of Appeal,
and the costs
occasioned by the application for leave to appeal in the High Court.
4.         The order of the High Court is set aside and replaced
with the following order:
(a)       The decision of the City of Cape Town, in terms of which
it approved the respondents’ building plans, is hereby
set aside.
(b)       The matter is remitted to the City of Cape Town for
consideration afresh.
(c)       The City of Cape Town is ordered to pay the costs of the
application, including costs consequent upon the employment
of two counsel.
Madala J, Mokgoro J, Ngcobo J, Nkabinde
J and Skweyiya J concur in the judgment of Jafta AJ.
O’REGAN ADCJ
[76]
I have had the opportunity of reading the
judgment prepared in this matter by my colleague, Jafta AJ.  I disagree with
him that
the appeal should be allowed.  Although my disagreement with him is
only on some of the issues in the case, the issues in this
matter are so
tightly intertwined that it has been necessary to set out my approach to the
application for leave to appeal fully.
[77]
The facts are set out in the judgment of Jafta
AJ.  For ease of reading, I shall repeat only the key facts here.  Mr Walele,
the
applicant, owns a property adjacent to a property owned by the second to
fifth respondents (the joint owners).  Both properties
are situated in an inner
city residential suburb of Cape Town, known as Walmer Estate.  The joint owners
had applied to the City
of Cape Town for approval in terms of the National
Building Regulations and Building Standards Act 103 of 1977 (the Building
Standards
Act) for the building of a four-storey block of flats on their
property, and the City approved those plans.  Mr Walele objects
because he
considers that the proposed building will impair the value of his property and
mar the general character of the surrounding
neighbourhood.  He thus seeks an
order setting aside the City’s decision to approve the building plans submitted
to it by the
joint owners.
[78]
It is common cause that the proposed building
falls within the terms of the zoning scheme applicable to the area.  The
applicable
zoning scheme is titled “general residential: subzone R3” and
permits the erection of apartment blocks up to a maximum of seven
storeys.  The
applicant’s objection, therefore, is not based on the fact that the proposed building
breaches zoning regulations.Â
It is based on nine other grounds of review under
the Promotion of Administrative Justice Act 3 of 2000 (PAJA).  These grounds

are:
(a)       that the power to approve building plans had not been duly
conferred on the decision-maker, Mr Griffiths, by the
City;
[1]
(b)       that the decision-maker had not complied with a mandatory
condition
[2]
of the Building Standards Act in four respects:
(i)        that he had not exercised an independent discretion to
approve the plans;
(ii)       that he did not have a recommendation of a Building
Control Officer before him as section 7 of the Act requires;
(iii)     that the report of the Chief Fire Officer as contemplated
in section 6(2) of the Act had not been incorporated in the
recommendation; and
(iv)      that he failed to have regard to the factors listed in
section 7(1)(b)(ii) of the Act;
(c)       that the approval by the decision-maker was a result of
the unauthorised dictates of another person,
[3]
being the Building Control Officer;
(d)       that the approval was arbitrary or capricious
[4]
in that the decision-maker
adopted the view that the owners of neighbouring property did not have a right
to be heard prior to
the approval being granted;
(e)       that the grant of the approval was procedurally unfair and
therefore in breach of section 3 and section 6(2)(c) of
PAJA,
[5]
because owners of neighbouring
properties were not given an opportunity to be heard prior to the approval
being granted;
(f)        that the grant of the approval was unreasonable
[6]
in that the decision-maker
failed, inter alia, to have regard to the provisions of section 7(1)(b)(ii) of
the Act or to the impact
of the approval on Mr Walele’s property;
(g)       that the grant of approval fell to be set aside because
the decision-maker took into account irrelevant considerations
and ignored
relevant ones – these being the requirements of section 6(1) and (2) and
section 7(1) of the Act;
[7]
(h)       that the approval was not rationally connected to the
purpose for which it was taken, the purpose of the empowering
provision, the
reasons given for the decision or the information placed before the City;
[8]
and
(i)        that
the approval was unconstitutional and unlawful.
[9]
[79]
These grounds overlap significantly.  In
particular, grounds (b)(i) and (c) – that the decision-maker did not make an
independent
decision and that he acted under the unauthorised dictates of
another – are not materially distinguishable and I shall deal with
them
together.  Similarly, grounds (d) and (e) – both of which challenge the
decision for want of procedural fairness – will
be dealt with together; as will
grounds (b)(iv), (f) and (g), all of which raise the question of the failure by
the decision-maker
to consider the factors set out in section 7(1)(b)(ii) of
the Building Standards Act.
[80]
The judgment therefore identifies the following
separate arguments for consideration:
(a)
whether Mr Griffiths was properly delegated to
approve the plans;
(b)
whether the Building Control Officer made a
recommendation as contemplated by section 6(1)(a) of the Building Standards
Act;
(c)
whether the report of the Chief Fire Officer was
properly included in any recommendation made to Mr Griffiths by the Building
Control
Officer;
(d)
whether Mr Griffiths failed to exercise an
independent discretion or acted under unlawful dictation;
(e)
whether Mr Griffiths’ decision should be set
aside because he failed to have regard to the factors mentioned in section
7(1)(b)(ii)
of the Building Standards Act;
(f)
whether the decision falls to be set aside
because neighbours were not given an opportunity to be heard; and
(g)
whether the decision falls to be set aside
because it was not rationally connected to the information before the City or
was otherwise
unlawful or unconstitutional.
[81]
Before dealing with each of these arguments, I
address two matters that will have a bearing on the rest of the judgment: the
process
for the approval of building plans in terms of the Building Standards
Act and a brief factual description of the manner in which
the approval was
granted by the City in this case.
The process for the approval of
building plans: sections 4, 5, 6 and 7 of the Building Standards Act
[82]
It is important in any application for judicial
review of administrative action to start with an analysis of the empowering
provisions.Â
Many, if not all, of the grounds for judicial review are context-specific,
so whether administrative action in any particular case
falls to be reviewed
will depend upon the context within which the administrative action took place.
[83]
Section 4(1) of the Building Standards Act
provides that no person may erect any building in a municipal area
[10]
without the prior approval of
plans by the relevant local authority.
[1]
Â
Subsections 4(2) and (3) provide that applications for approval must be made in
writing and stipulate the information required
in the application.
[12]
  Section 4(3)(b) of the Act is
supplemented by the National Building Regulations promulgated in terms of
section 17 of the Act
[13]
which set out carefully the precise information required.
[14]
  So, an application must
contain, for example, a site plan, layout drawings, water and drainage
installation drawings and particulars
of existing buildings.
[15]
[84]
Section 5 of the Building Standards Act provides
for the appointment of a Building Control Officer by every local authority and
stipulates that a Building Control Officer may not be appointed without the
permission of the Minister if he or she does not have
the prescribed
qualifications.  The appointment of the Building Control Officer may not be
delegated by the local authority.
[16]
Â
The fact that the power is not delegable emphasises the importance vested in
the employment of a suitable and qualified Building
Control Officer.  The
qualifications of Building Control Officers are set out in the National
Building Regulations.  The current
Regulations provide for the qualifications
of a Building Control Officer as follows:
“The minimum qualification of any building
control officer appointed in terms of section 5 of the Act shall be of a
standard equivalent
to a senior certificate plus three years tertiary
education, as evaluated by the Human Sciences Research Council, in one of the

following building disciplines:
(a)        Civil
engineering;
(b)        structural
engineering;
(c)        architecture;
(d)        building
management;
(e)        building
science;
(f)        building
surveying; or
(g)        quantity
surveying.”
[17]
The Act and the Regulations provide
that the Building Control Officer in each local authority must be a specialised
and skilled
official.  The reason for this becomes plain when the powers and
functions of Building Control Officers are considered.
[85]
Section 6(1)(a) provides that a Building Control
Officer shall make recommendations to the local authority regarding any plans
submitted
to the local authority in terms of section 4(3) of the Act.  (I shall
return to the question of what the recommendation should
entail below.)  The
Building Control Officer is responsible for ensuring that there is compliance
with instructions given by the
local authority in terms of the Act.
[18]
  She or he is also required to
inspect buildings when they are being erected
[19]
and to report to the local authority regarding any non-compliance with
conditions it has imposed.
[20]
[86]
In understanding these powers, it is important
to recognise that many applications for the approval of building plans are
received
by large municipalities every day.  Indeed, the City of Johannesburg, which was admitted as an amicus curiae, told the Court that
it receives 2000
applications per month.  The number of applications will obviously vary
depending on the size of the municipality
and its rate of economic growth at
any given time, but it is clear that the number of applications can be very
high.  The Building
Control Officer is a key official in a municipality.  A
municipality may not function without one, and it may not approve building

plans without having received the recommendation of a Building Control Officer.
[21]
[87]
The Building Control Officer must furnish a
recommendation to the local authority.  Thereafter, section 7(1)(a) of the
Building
Standards Act provides that, if the local authority is satisfied that
the application complies with the requirements of the Act
and any other
applicable law, it shall grant the application.  Section 7(1)(b) then provides
for the circumstances in which approval
should be refused.  For ease of
reference, I set out the full text of section 7(1):
“If a local authority, having considered a recommendation referred
to in section
6(1)(a)—
(a)
is satisfied that the application in question
complies with the requirements of this Act and any other applicable law, it
shall
grant its approval in respect thereof;
(b)
(i)         is not so satisfied; or
(ii)
is satisfied that the building to which the
application in question relates—
(aa)
is to be erected in such manner or will be of
such nature or appearance that—
(aaa)    the area in which it is to be erected will probably or in
fact be disfigured thereby;
(bbb)    it will probably or in fact be unsightly or objectionable;
(ccc)    it will probably or in fact derogate from the value of
adjoining or neighbouring properties;
(bb)
will probably or in fact be dangerous to life or
property,
such local
authority shall refuse to grant its approval in respect thereof and give
written reasons for such refusal:
Provided that the local authority shall
grant or refuse, as the case may be, its approval in respect of any application
where the
architectural area of the building to which the application relates
is less than 500 m
2
, within a period of 30 days after receipt of the
application and, where the architectural area of such building is 500 m
2
or larger, within a period of 60 days after receipt of the application.”
[88]
The provision thus contemplates that the
municipality must refuse an application if it considers that the proposed
building will
probably or in fact (a) disfigure the area; (b) be unsightly or
objectionable; (c) derogate from the value of adjoining or neighbouring

properties; or (d) be dangerous to life or property.  It should be emphasised
that the Building Standards Act requires not merely
a risk or possibility of
the harmful consequences occurring.  The bar is higher: the proposed building
must probably or in fact
result in one of the identified harmful consequences.
[89]
The question that now needs to be considered is
the recommendation required of a Building Control Officer in terms of section
6(1).Â
Put differently, what are the considerations a Building Control Officer
should take into account when preparing a recommendation
for the municipality,
and in what form should his or her recommendation be conveyed?  This question
needs to be answered by an
understanding of the proper role of the Building
Control Officer discussed above.  As discussed in paragraphs 84 and 85, the
prescribed
qualifications for Building Control Officers and their powers and
functions show that the Building Control Officer is an essential
official in
all municipalities tasked with overseeing building and development in the area
of jurisdiction of the municipality.Â
This is underscored by the very title of
the post.
[90]
In making recommendations to a municipality on
an application for the approval of building plans, a Building Control Officer
must
consider two primary issues.  He or she must have regard to all the
requirements in the Building Standards Act and other applicable
legislation
which might have a bearing on whether or not the plans should be approved.Â
Section 7(1)(a) makes plain that if the
plans do not comply with the Act or
other applicable legislation, the municipality may not approve them.
[22]
  Similarly, the Building
Control Officer must pay regard to the requirements set out in section 7(1)(b)
of the Act and consider
whether the proposed building will probably or in fact:
disfigure the area; be unsightly or objectionable; derogate from the value
of
adjoining or neighbouring properties; or be dangerous to life or property.  All
of these matters must be considered by the
Building Control Officer.  The
Building Control Officer may not recommend the approval of the plans if he or
she is not satisfied
that the proposed building does comply with the Act and
all applicable legislation, or if he or she thinks that the proposed building

will have or probably have any of the harmful effects mentioned in section
7(1)(b).
[91]
The final question that arises is the nature of
the task imposed upon the decision-maker by section 7(1) of the Building
Standards
Act.  In this regard, it is important to understand the nature of the
decisions in question.  The Act requires that the erection
of all buildings
[23]
be approved by a municipality
before they are built.  As stated above, in many municipalities this will
involve a large number
of applications on a monthly basis.  It would therefore
be impractical to expect a municipality to consider each and every application

for building approval.  It is not surprising, then, that the Act permits a
municipality to delegate its power to approve plans
to a committee or to one of
its employed officials.
[100]
Â
It is also clear that it is the Building Control Officer who has the expertise
to determine whether the proposed building will
be unlawful, or whether it
will, probably or in fact, result in the harmful consequences adverted to in
section 7(1)(b).  The
ultimate decision-maker may not have the expertise to
assess these matters at all, and it will not be inappropriate or unlawful
for
the ultimate decision-maker to rely on the recommendation of the Building
Control Officer in this regard.  This is a matter
to which I return later.
The process of approval in this
case
[92]
The record before us shows that, despite the
large number of building plans that have to be considered, the process of
determining
whether the Building Control Officer should approve a particular
set of plans in the City of Cape Town is complex and careful and
involves a
range of differently skilled officials.
[93]
In this case, the Building Control Officer of
the City of Cape Town, Mr Moir, explains in his affidavit that the plans were
first
considered by a Zoning Plans Examiner to determine whether the plans
complied with the relevant zoning scheme.  This required the
Examiner to
consider which zoning scheme was relevant, and then to consider whether the
site abutted a main road or a divisional
road, then to consider amongst other
things the building lines, height of the buildings, land coverage, proposed
use, and the open
space to the side and rear of the proposed building.  The
Examiner then had to state whether the plans should be approved on the
basis
that they complied with the zoning scheme.
[94]
The plans were then considered, amongst others,
by the Director of Survey and Land Information, the Health Directorate, the
Chief
of Fire and Emergency Services, the Sewage Department, the Water
Management Department, the Transport and Roads Department and the
City Engineer’s
Department.  Each of these departments considered the plans and then each
affixed their stamp to or made a note
on a document titled “Building
Development Management”.  At the end of this process, this single document bore
the stamps
or notes of each of the departments stating that they had no
objection to the plans being approved.
[95]
In addition to the individual departmental
scrutiny of the plans, Mr Moir states that a meeting of the Building Plans
Liaison Team
was held (which comprises representatives from the departments of
Land Use Management, Traffic Engineering, Roads and Survey).Â
This meeting
approved the plans.  Once Mr Moir had received back the plans from all the
separate departments and the document
titled “Building Development Management”,
he knew from the latter document that each department had considered the plans
in
the light of their specific areas of expertise and that, despite some having
imposed certain conditions, there was no objection
to the plans being passed
provided that the imposed conditions would be observed.
[96]
Mr Moir then signed the “Building Development
Management” document in the space allotted to the Building Control Officer,
which
states “BCO recommended in terms of section 6(1)(a) of Act 103/1977”.  In
his affidavit, he states that in so doing he made
a positive recommendation
that the plans be approved and that, in reaching this decision, he had had regard
not only to the absence
of objections from all the relevant municipal
departments, but also to the question whether the proposed building would be
lawful
and whether it would give rise to the harmful effects described in
section 7(1)(b) of the Building Standards Act.  He specifically
states that in
his view the proposed building would be lawful and would not give rise to the
harmful effects that section 7(1)(b)
seeks to avoid.  In this regard, he states
that he is familiar with the area where the building was to be erected, and
that in
his view, the building would not destroy the sense of scale or
streetscape in the area and would not cause risks to life because
of increased
traffic flow.  He points out that the zoning scheme for the area has always contemplated
the erection of blocks of
flats and asserts that the building in question will
not be the only multi-storey building in the area.
[97]
Once he had attached his positive recommendation
to the plans, he forwarded the recommendation, together with the “Building
Development
Management” document, the Chief Fire Officer’s report and the plans
to the decision-maker, Mr Griffiths, who approved them in
terms of sections 6
and 7 of the Building Standards Act.
[98]
I turn now to consider the specific grounds of
review raised by the applicant.
Delegation of power to approve
plans to Mr Griffiths
[99]
It is common cause that the final decision to
approve the plans in this case was taken by Mr Griffiths, a building
development manager
in the employ of the City.  The applicant disputes that Mr
Griffiths had the delegated authority to approve the plans, as Jafta
AJ sets
out in paragraphs 23 – 26 of his judgment.  At the hearing before this Court,
the City offered to lodge the document
in terms of which Mr Griffiths was
delegated the power to approve plans.  It has since done so.  This ground of
attack therefore
falls away.  I deal with the question of the implications of
this argument for costs at the end of this judgment.
Did the Building Control Officer
make a “recommendation” as contemplated in section 6(1)(a)?
[100]
As appears from the description of the process followed, the
documents before Mr Griffiths were the set of building plans, the document

titled “Land Information System – Ratepayers Data” and the document titled
“Building Development Management”, which bore
the approval of all the separate
municipal departments and which had been signed by the Building Control Officer
under a printed
section stating “BCO recommended in terms of section 6(1)(a) of
Act 103/1977”.  Mr Moir also enclosed the Chief Fire Officer’s
report.  The
High Court held that this constituted a recommendation “as evidenced” by the
signature of the Building Control
Officer.
[24]
Â
The applicant argues, however, that in addition to the plans and the document
containing his signature, section 6(1)(a) of the
Building Standards Act
requires the Building Control Officer to prepare a report giving reasons for
his recommendation and that,
to the extent that he did not do so, the document
forwarded by him did not constitute a recommendation as required by the Act.
[101]
The applicant relies on
Ex parte Porritt
.
[25]
Â
That case concerned the rehabilitation of an
insolvent.Â
Section 124(2)
of the
Insolvency Act 24 of 1936
provides that an
insolvent may not be rehabilitated within four years of his or her insolvency,
save upon the recommendation of
the Master.  The question in that case was
whether the report prepared by the Master supporting the rehabilitation of the
insolvent
did in fact constitute a “recommendation” within the meaning of the
Insolvency Act.  The Court held:
“Bearing in mind that ‘to recommend’ is to
name or speak of a person as worthy of a particular attention or consequence —

see
The Shorter Oxford Dictionary
sv ‘recommend 4(b)’, recommendation is
the action of commending someone or something as worthy or desirable for such a
result.Â
Implicit in that, to my mind, is the notion of considering and
weighing the merits and demerits of the subject of recommendation
in relation
to what is recommended, particularly when the word is considered in the context
of the subsection in question.”
[26]
[102]
The judge then considered the recommendation presented by the Master
and noted that it did not list the factors adverse to the insolvent.Â
The court
thus concluded that the Master had not engaged in the exercise of “weighing the
merits and demerits” of the application
for rehabilitation and held that the
recommendation from the Master did not constitute a recommendation as
contemplated in the
empowering statute.
[27]
[103]
The power under consideration in
Porritt
is quite different
to the power at issue here.  In that case, the Master was asked to apply his
mind to essentially the same question
that the court which hears the
application for rehabilitation has to decide – whether an insolvent should be
rehabilitated.Â
This question involves a careful consideration of whether the
insolvent is likely to manage his affairs properly in future and requires
the
exercise of judgement in the light of all the relevant facts.  The Master’s
views on that matter must form the subject matter
of the recommendation which
is required before the rehabilitation application can be made.  As Leach J
noted in
Anderson
, the Master might well have more knowledge than the
court in a particular case, and it is thus important for the Master to consider

all the facts, adverse and favourable to an insolvent, in making his or her
recommendation.
[28]
Â
The question whether an insolvent should be rehabilitated, however, is a
nuanced and difficult one upon which the considered
view of the Master will be
of great assistance to the court, which must decide whether to grant
rehabilitation or not.  Its importance
flows from the fact that the decision to
be made is a difficult one that involves the exercise of judgement based on a
wide range
of considerations, some of which will favour the decision and some
of which will not.  A report analysing all these factors and
weighing them one
against the other will be of value to the court deciding the rehabilitation
application.
[104]
In this case, on the other hand, we are concerned with a
recommendation in relation to the approval of building plans.  In considering

what constitutes a recommendation in this regard, the first meaning of
“recommend” as contained in the
Concise Oxford English Dictionary
seems
appropriate.  That meaning is “to suggest as fit for some purpose or use”.  In
this case, the Building Control Officer
is asked to suggest to the local
authority that a set of building plans are “fit” for approval.  There is
nothing in this
meaning which suggests that a written report is necessary in
order to recommend approval.  Indeed, the ordinary use of the word
makes clear
that one can recommend without written reasoning.  The question is whether the
word should be interpreted to impose
a written report as a requirement or not.Â
In my view, this turns on an understanding of the context within which this
legislation
operates.
[105]
In most municipalities, one can assume that numerous applications
for building plans are received each year.  Requiring that not
only plans and
approval documents, but also a report from the Building Control Officer setting
out the factors favourable and adverse
to the approval of the plans, be placed
before the ultimate decision-maker would impose a heavy burden on municipalities.Â
It
is not an interpretation of the legislation which one would adopt unless one
were persuaded that written reports would serve an
important function as they
do in the context of applications for rehabilitation.
[106]
In deciding whether a recommendation should entail a written report,
it is necessary to analyse carefully what the Building Control
Officer must do
in deciding whether to recommend the plans for approval or not.  Her or his
task is twofold.  First, she or he
must decide whether the plans comply with
the legal rules regulating building development.  This, in turn, requires a
consideration
of the zoning and other requirements to see whether the plans
comply with them.  If they do, then the plans comply with the law
and that is
the end of the matter.  The second set of considerations are those set out in
section 7(1)(b)
of the Building Standards Act.  These require the Building
Control Officer to consider whether the threshold set by
section 7(1)(b)
has
been met.  If in her or his view it has not, that too is the end of the
matter.  If the Building Control Officer concludes
that the building will be
unlawful or likely to produce an effect contemplated in
section 7(1)(b)
, she or
he will not recommend the plans for approval.
[107]
In neither case is it likely that many countervailing considerations
will need to be weighed.  Either the plans do comply with local
zoning
regulations or they do not.  Either the proposed building will in fact or
probably give rise to the harmful consequences
contemplated by
section 7(1)(b)
or it will not.  The Building Control Officer, unlike the Master considering an
early rehabilitation, will not have to weigh a
range of countervailing
considerations.  The questions that the Building Control Officer will have to
decide are relatively straightforward
and susceptible to “yes” or “no”
answers.  In these circumstances, it cannot be said that the preparation of a
report
by the Building Control Officer would be of great assistance to the
ultimate decision-maker. In addition, reading section 6(1)(a)
of the Building
Standards Act to require the preparation of a report would unduly burden the
task of the administration.
[108]
As long as the decision-maker has the plans for which approval is
sought as well as the recommendation of the Building Control Officer,
the
decision-maker will know that it is the view of the Building Control Officer
that the proposed building is lawful and that
it will not in fact or probably
present the harmful consequences proscribed by section 7(1)(b).  I am not persuaded
that this
case can be compared to
Porritt
,
[29]
as it does not seem evident
that a report will play an important role in assisting the ultimate
decision-maker.  I conclude, therefore,
differently from my colleague, Jafta
AJ, that the word “recommendation” in section 6(1)(a) should not be read to
require a
report of the Building Control Officer.
[109]
What the Building Control Officer did here was to forward to the
decision-maker a copy of the plans together with the evidence that
those plans
had been considered by all the key municipal departments concerned with
building and planning.  He had also affixed
to the covering document his
signature indicating that he recommended the approval of the plans.  In
considering whether this
constitutes a “recommendation” as contemplated by the
section, it is important to note that the decision-maker has the crucial

information to hand – the plans themselves – together with the evidence that
they have been considered not only by all the
relevant departments in the city
but also by the Building Control Officer himself or herself.  In these
circumstances, the applicant’s
argument that these documents did not constitute
a “recommendation” within the meaning of section 6(1)(a) must be rejected.
Fire control report: failure to
comply with section 6(2) of the Building Standards Act
[110]
Another of the applicant’s submissions concerning the alleged
failure to comply with a mandatory condition of the legislation is
that the
City did not comply with section 6(2) of the Building Standards Act.  Section
6(2) provides:
“When a fire protection plan is required in
terms of this Act by the local authority, the building control officer
concerned shall
incorporate in his recommendations referred to in subsection
(1)(a) a report of the person designated as the chief fire officer
by such
local authority, or of any other person to whom such duty has been assigned by
such chief fire officer, and if such building
control officer has also been
designated as the chief fire officer concerned, he himself shall so report in
such recommendations.”
[111]
The applicant argues that this provision required a fire control
report to be included in a written recommendation prepared by the
Building
Control Officer.  It is common cause that the Chief Fire Officer’s report was obtained
and was annexed to the plans
and the “Building Development Management” document
furnished to Mr Griffiths.  I have already dismissed the applicant’s argument

that a full written recommendation needed to be prepared by the Building
Control Officer.  This argument falls to be dismissed
on the same grounds.  It
is clear that Mr Griffiths had before him the report of the Chief Fire Officer
when he approved the plans,
and that is all that section 6(2) requires.
Failure to exercise an independent
discretion/unlawful dictation
[112]
The applicant’s next argument was that Mr Griffiths failed to
exercise an independent discretion when approving the plans.  This
argument is
closely allied to the argument he makes that Mr Griffiths acted under unlawful
dictation.  I consider both arguments
together.  The evidence on the record is
that the plans and the “Building Development Management” document (containing
the
approval of the separate municipal departments and Mr Moir’s
recommendation) were forwarded to Mr Griffiths on or about 26 July
2006 and
that Mr Griffiths then approved the plans on 28 July 2006.
[113]
The applicant relied on the following dictum of Ngcobo J in a
minority judgment in
New Clicks
:
“The Minister is required to make
regulations based on the recommendation of the Pricing Committee.  The Minister
does not merely
rubber stamp the recommendation of the Pricing Committee.  She
is required to apply her mind to the recommendation and make a decision
whether
to accept such recommendation.  She cannot therefore accept the fees proposed
by the Pricing Committee simply because
they have been proposed by the Pricing
Committee.  She must satisfy herself that the fees proposed by the Pricing
Committee are
appropriate . . . .  She can only do this if she is furnished with
an explanation as to how the fees were arrived at.  Without
such information,
the Minister cannot properly evaluate the appropriateness or otherwise of the
fees proposed by the Pricing Committee.”
[30]
That case concerned the Minister’s
power to make regulations to regulate the prices of medicines.  What needs to
be understood
is that, in determining whether a decision-maker in any
particular case has failed to exercise an independent discretion or acted
under
unlawful dictation, the context of the power in question and the manner of its
exercise are all important.  It is impossible
to lay down a general rule as to
what will be required.
[114]
Thus, to decide whether an official has failed to exercise an
independent discretion or acted under unlawful dictation will require
an
understanding of the context of the legislation in question.  The importance of
context was recognised by Scott JA in
Minister of Environmental Affairs and
Tourism and Another v Scenematic Fourteen (Pty) Ltd
:
“A functionary in whom a discretionary
power is vested must himself exercise that power in the absence of the right to
delegate.
. . . .
But it does not follow that a functionary
such as the DDG in the present case would have to read every word of every
application
and may not rely on the assistance of others
.
Â
Indeed,
given the circumstances,
Parliament could hardly have intended otherwise.Â
What the functionary may not do, of course, is adopt the role of a rubber stamp

and so rely on the advice of others that it cannot be said that it was he who
exercised the power.  If in making a decision he
were simply to rely on the
advice of another without knowing the grounds on which that advice was given
the decision would clearly
not be his.  But, by the same token, merely because
he was not acquainted with every fact on which the advice was based would not

mean that he would have failed properly to exercise his discretion.
. . . .
Whether, therefore, there has been an
abdication of the discretionary power vested in the functionary is ultimately a
question that
must be decided on the facts of each case
.”
[31]
Â
(My emphasis.)
[115]
It is necessary then to consider the context of this case.  There
are three elements of the legislative scheme regulating the approval
of
building plans which are relevant to a consideration of the unlawful dictation
argument made by the applicant.  First, the
Building Standards Act contemplates
a two-stage process: a recommendation by the Building Control Officer, followed
by an approval
by the municipality or its duly appointed delegate.  Secondly,
the skills of the Building Control Officer are considered essential,
and
municipalities may not approve plans without the recommendation of a Building
Control Officer.
[32]
Â
It is clear that it is the Building Control Officer who has the expertise to
decide whether the plans are lawful or not and whether
they will probably or in
fact produce the harmful consequences described in section 7(1)(b).  Finally,
the extent of the discretion
conferred upon the ultimate decision-maker is
narrow: it is clear that if the proposed building is lawful
[33]
and will not probably or in
fact give rise to the harmful consequences contemplated in section 7(1)(b),
[34]
the decision-maker has no
discretion to refuse the application.
[35]
Â
Once he or she knows that the plans are lawful and will not probably or in fact
give rise to a section 7(1)(b) harmful consequence,
both issues upon which he
or she will have received a recommendation from the Building Control Officer,
the plans must be approved.
[116]
The question that arises then is how much weight the decision-maker
may place on the recommendation of the Building Control Officer.Â
In my view,
the decision-maker is entitled to place considerable weight on that
recommendation.  There are two issues to which
the recommendation is primarily
directed: the lawfulness of the plans and the question of whether the proposed
building will probably
or in fact produce the section 7(1)(b) harmful
consequences.  The Building Control Officer is a skilled expert responsible for

building development in an area.  If the proposed building is lawful and there
are no probable section 7(1)(b) harmful consequences
in the view of the
Building Control Officer, and the decision-maker does not take a different
view, then the decision-maker is
required to approve the plans.  There is
little room for the exercise of discretion.  There is accordingly nothing wrong
with
the decision-maker following the recommendation of the Building Control
Officer.  This is not to say that the decision-maker must
always follow the
advice of the Building Control Officer.  The decision-maker may, upon a perusal
of the plans, form a different
opinion to that of the Building Control Officer,
and if she or he does so, may decide to refuse to approve the plans.  But if,

upon a perusal of the plans, the decision-maker concludes that the
recommendation of the Building Control Officer is correct, then
the
decision-maker must approve the plans.
[117]
There is nothing on the facts of this case to suggest that the
decision-maker did not consider the documents forwarded to him.Â
It cannot be
said that it was improper for the decision-maker to conclude that the Building
Control Officer’s recommendation
was correct, and so this argument of the
applicant must also fail.
Failure by the decision-maker to
have regard to the section 7(1)(b) factors
[118]
The final argument that the applicant raises relating to the failure
to comply with a material condition of the empowering provision
was his
submission that Mr Griffiths had no regard to the section 7(1)(b) factors when
approving the plans.  It is clear on the
record before us that Mr Moir, the
Building Control Officer, had regard to these considerations when making his
recommendation.Â
As I have explained above, Mr Moir was required, as a matter
of law,
[36]
to have regard to these considerations and Mr Griffiths was entitled to assume
that he had done so.
[119]
Mr Griffiths’ affidavit is a simple confirmatory affidavit.  It
makes no express averments in this regard but does confirm the
contents of Mr
Moir’s affidavit insofar as it refers to him.  Mr Moir states in his evidence,
in response to an averment on
behalf of the applicant that the City had not
taken the considerations in section 7(1)(b) into account, that “due regard was
also had to the factors listed in section 7(1)(b)(ii).”  Mr Griffiths confirms
this.  That is sufficient to confirm that Mr
Griffiths did take the
considerations listed in section 7(1)(b)(ii) into account.  The question that
arises is whether Mr Griffiths’
failure to state in so many words that he had
regard to the factors set out in section 7(1)(b) before making his decision
renders
the decision reviewable.  In my view, it does not.  There is nothing to
suggest that Mr Griffiths did not consider the section
7(1)(b)(ii)
considerations in the light of the documentation before him, which comprised
the building plans, the Chief Fire Officer’s
report, the evidence that all the
municipal departments had approved the plans as well as Mr Moir’s
recommendation that the plans
be approved.  This was sufficient information for
Mr Griffiths to take the view that he was satisfied that the plans should be

approved.
[120]
As stated above, Mr Griffiths was entitled to rely upon Mr Moir’s
conclusion that the proposed building was lawful and would not
cause the
harmful consequences contemplated by section 7(1)(b).  To find differently
would be to impose an undue burden of duplication
upon the process of the
approval of building plans.  Mr Griffiths was entitled to disagree with Mr Moir’s
recommendation but
did not.
[121]
It follows that I disagree on this score with the conclusion of my
colleague, Jafta AJ.
Right to be heard
[122]
The next question that arises is whether Mr Walele, as the owner of
a neighbouring property, had the right to be notified of the
plans before they
were approved.  He argues that as he was not notified of the proposed building
nor given an opportunity to be
heard in relation to it, the administrative
action was procedurally unfair, and also arbitrary and capricious, and falls to
be
set aside for these reasons.  Section 3(1) of PAJA provides that
“[a]dministrative action which materially and adversely affects
the rights or
legitimate expectations of any person must be procedurally fair.”
[123]
We must be careful, in construing section 3(1), to bear in mind that
it is the key provision in PAJA that gives effect to the right
entrenched in
section 33(1) of the Constitution, which provides that “[e]veryone has the
right to administrative action that
is lawful, reasonable and procedurally
fair.”  There is no challenge to the constitutionality of section 3(1) of PAJA
in this
case.  Yet even in the absence of a challenge, our duty is to interpret
section 3(1) in a manner that is consistent with the constitutional
right.Â
Section 39(2) of the Constitution requires a court, when interpreting
legislation, to do so in a manner that promotes
the spirit, purport and objects
of the Bill of Rights.  That administrative action be procedurally fair is
therefore an important
constitutional right which we should seek to protect.Â
Yet, the Constitution does not require a knee-jerk response of affording
a
right to a hearing in every case regardless of the context or the circumstances
of those affected.  There are countervailing
considerations of equal importance
to the interpretation both of section 33 of the Constitution and section 3(1)
of PAJA as I mentioned
in
Premier, Mpumalanga and Another v Executive
Committee, Association of State-Aided Schools, Eastern Transvaal
:
“In determining what constitutes 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 (a principle well recognised in our common law and that
of other
countries).  As a young democracy facing immense challenges of transformation,
we cannot deny the importance of the need
to ensure the ability of the
Executive to act efficiently and promptly.”
[37]
[124]
The first difficulty with interpreting section 3(1) is that
“administrative action” is defined in section 1 of PAJA as follows:
“‘administrative action’ means any decision
taken, or any failure to take a decision, by—
            (a)        an organ of state,
when—
(i)         exercising a power in terms of the Constitution or a
provincial constitution; or
(ii)        exercising a public power or performing a public
function in terms of any legislation; or
(b)        a natural or juristic person, other than an organ of
state, when exercising a public power or performing a public
function in terms
of an empowering provision,
which adversely affects the rights of
any person
and which has a direct, external legal
effect . . . ”.  (My emphasis.)
[125]
The difficulty is that the definition of “administrative action”
appears to narrow the scope of the concept only to action which
adversely
affects rights, while section 3(1) of PAJA states that administrative action
which materially affects the rights
or legitimate expectations
of a
person must be procedurally fair.  A straight-forward reading of these two
provisions produces the enigma that administrative
action is, as defined, not
action which affects legitimate expectations, yet section 3(1) suggests that
there is administrative
action which will affect legitimate expectations and
which must accordingly be procedurally fair.  The enigma has generated
considerable
academic comment.
[38]
Â
A court must give effective meaning to the provisions of statutes, and all the
more so where the purpose of the statute is to
give protection to
constitutional rights.
[39]
[126]
In this case a more general provision (the definition) is in
conflict with a specific provision (section 3(1)).  The specific provision
is
aimed at giving direct effect to the constitutional right to administrative
action that is procedurally fair.  The apparent
contradiction between the two
provisions should be resolved by giving effect to the clear language of section
3(1) which expressly
states that administrative action which affects legitimate
expectations must be procedurally fair.  Thus, the narrow definition
of
“administrative action” in section 1 must be read to be impliedly supplemented
for the purposes of section 3(1) by the express
language of section 3(1).  If
this were not to be done, the clear legislative intent to afford a remedy to
those whose legitimate
expectations are materially and adversely affected would
be thwarted.
[127]
The proper interpretation of the word “rights” in section 3(1) was
considered by the Supreme Court of Appeal in
Grey’s Marine Hout Bay (Pty)
Ltd and Others v Minister of Public Works and Others
, where Nugent JA
reasoned as follows:
“While ‘rights’ may have a wider
connotation in this context, and may include prospective rights that have yet
to accrue,
it is difficult to see how the term could encompass interests that
fall short of that.”
[40]
Â
(Citations omitted.)
[128]
The question that arises is whether Mr Walele has shown that he has
a “right” that has been affected such that he was entitled
to be accorded the
form of procedural fairness he argued was appropriate in this case.  In
considering this, we need to recall
that Mr Walele is the owner of property in
an inner city residential suburb where the zoning scheme permits the erection
of blocks
of flats up to seven storeys.  It is true that his enjoyment of his
property may well be affected by the erection of a block of
flats next door;
indeed, one of his arguments is that the fact that the block of flats will cast
a shadow on his property entitles
him to be heard.  Can it be said that the
fact that the use and enjoyment of his property may be affected by the proposed
building
means that Mr Walele has shown that his rights or legitimate
expectations have been materially or adversely affected within the
meaning of
section 3(1) of PAJA?  I address the question of rights first.
[129]
At common law, property owners have full rights (dominium) to
determine the manner in which their property is used.  But these rights
have
for practical purposes never been unfettered.  They have been limited by the
common law and legislation to ensure that land
ownership is regulated in a
manner that is in the interest of all.
[41]
Â
In congested urban spaces, this need for regulation is particularly acute.Â
Zoning or town-planning schemes are one of the key
ways in which the rights of
property owners are limited.
[42]
Â
They often provide for the maximum height of buildings in an area.  They also
often limit where a building may be built on an
erf and the use to which
properties may be put in urban areas.  These are all limitations on the right
of ownership.
[130]
The result of a zoning scheme is thus to restrict the rights of all
owners in an area.  Yet zoning schemes also confer rights on
owners, because
owners are entitled to require that neighbouring owners comply with the
applicable zoning scheme.  Where an owner
seeks to depart from the scheme, the
rights of neighbouring owners are affected and they are entitled to be heard on
the departure.Â
Owners in the area are also entitled to be heard when land is
re-zoned.  A zoning scheme is therefore a regulated system of give
and take: it
both limits the rights of ownership but also confers rights on owners to expect
compliance by neighbours with the
terms of the mutually applicable scheme.  The
result is that where an owner seeks to use his property within the terms of the
zoning scheme, it cannot be said that the rights of surrounding owners are affected
materially or adversely.
[131]
The purpose of zoning schemes and the Building Standards Act was
aptly described by Lewis AJ in
Odendaal v Eastern Metropolitan Local Council
:
“. . . both the Act and the [town-planning]
Scheme are legislative instruments for ensuring the harmonious, safe and
efficient
development of urban areas. . . .  Local authorities are given
considerable powers under both Act and Scheme.  Onerous duties
are imposed on
them by both instruments.  The essential purpose of the powers afforded and the
duties imposed is to ensure that
the objectives of the legislative instruments
are achieved; that there is a balance of interests within a geographical
community.Â
The local authorities are in effect the guardians of the community
interest.  They are entrusted with ensuring that areas are developed
in as
efficient, safe and aesthetically pleasing a way as possible.  They are
required to safeguard the interests of property
owners in the areas of their
jurisdiction.  That is why the powers and rights of owners of immovable
property are restricted.Â
Power over one’s property has never, under our legal
system, been unfettered.  The rights of an owner of land have always been

limited by the common law in the interests of neighbours.  But the rapid urbanization
of countries worldwide and the inevitable
need for regulation that has
accompanied it has had the effect of restricting full dominium even further
than the common law ever
did.”
[43]
[132]
The High Court was therefore correct to conclude that the applicant’s
rights in this case had not been materially or adversely
affected.  It is true
that the use and enjoyment of his property may be affected, but that is not the
same as saying that the
applicant’s rights have been materially or adversely
affected.  Our use and enjoyment of property is affected by many things.Â
To
hold that, whenever the use and enjoyment of our property is affected by an
administrative decision, that will constitute the
“material and adverse” affect
on our rights as contemplated by section 3(1) of PAJA may well cause great
disruption to the
administration of urban spaces.  It would also be
inconsistent both with the overall purpose of PAJA and with section 33 of the

Constitution.
[133]
The next question that arises is whether Mr Walele had a legitimate
expectation of a hearing.  The concept of legitimate expectation,
as Jafta AJ
notes, is open-textured.  In
Administrator, Transvaal and Others v Traub and
Others
,
[44]
Corbett CJ, after a careful analysis of English law, adopted the
formulation of Lord Fraser in
Council of Civil Service Unions and Others v
Minister for the Civil Service
[45]
in which Lord Fraser identified two circumstances in which a legitimate
expectation could be said to arise:
“Legitimate, or reasonable, expectation may
arise either from an express promise given on behalf of a public authority or
from
the existence of a regular practice which the claimant can reasonably
expect to continue.”
[46]
Â
(Emphasis by Corbett CJ in
Traub
removed.)
From time to time, our courts have
taken the view that a legitimate expectation may also arise simply because the
administrative
action in question constitutes a dramatic impairment of
interests less than rights.
[47]
Â
It may well be that the concept of legitimate expectation in PAJA is not
limited to the narrow requirement of a promise or a
practice as set out in Lord
Fraser’s reasoning.  Indeed, a broader understanding of “legitimate
expectation” may be appropriate
given the language of section 33 of the
Constitution that “[e]veryone has the right to administrative action that is .
. . procedurally
fair.”  That is not a matter that needs to be finally decided
in this case.
[134]
There can be little doubt that the concept of “legitimate
expectation” in section 3(1) of PAJA needs to be interpreted in the
light of the
understanding of the concept as described in
Traub
and as followed by
our courts since.
[48]
Â
The applicant asserted that he had a legitimate expectation to be heard in this
case and relied heavily on the judgment of Wunsh
J in
Erf 167 Orchards CC v
Greater Johannesburg Metropolitan Council
[49]
in which the court held that
a neighbour did have a legitimate expectation to be heard prior to the approval
of building plans,
even where those plans were in compliance with the building
scheme.  However, that judgment was departed from by Lewis AJ in
Odendaal
where she disagreed with Wunsh J.  She concluded after an analysis of the
zoning scheme and the Building Standards Act that no
legitimate expectation to
be heard arose.
[135]
The first question is whether there was a past practice that gave
rise to a reasonable expectation on the part of Mr Walele that
he would be
heard or whether he had an expectation arising from a promise.  He does not
assert the latter; for the former, he
can point to only one circumstance where
the City afforded neighbouring owners an opportunity to be heard on a proposed
building
development.  The facts of that occasion are not clear on the record
before us, but whatever they may have been, it cannot be said
that the
existence of one occasion upon which neighbouring owners were given a right to
be heard constitutes a practice that would
give rise to a reasonable
expectation that it would be followed in future.
[136]
Nor can it be said that the approval of the building plans in this
case constituted so significant an invasion of Mr Walele’s interests
or
existing privileges that, on a more generous approach, it could be said to have
given rise to a legitimate expectation (to the
extent that a legitimate
expectation can arise in this fashion).
[50]
Â
As I have reasoned above, an owner of property in an urban setting knows that
his or her neighbours will be entitled to develop
their property in line with
the relevant zoning plans.  It cannot be said therefore that the approval of
building plans that are
consistent with the applicable town-planning scheme is
such as would give rise to a legitimate expectation of a hearing.  In this

regard I should add that I do not think the judgment in
Erf 167 Orchards CC
convincingly
demonstrates that a legitimate expectation had arisen in that case either.  I
agree with Lewis AJ that that judgment
cannot be correct.  It follows that I am
in agreement with Jafta AJ that the applicant has not shown that he had a
legitimate
expectation to be afforded a hearing prior to the approval of the
plans.
[51]
Whether the decision falls to be
set aside because it was not rationally connected to the information before the
City or was otherwise
unlawful or unconstitutional
[137]
These were catch-all challenges made by the applicant.  Once it is
shown that the approval of the building plans followed upon a
proper and
considered recommendation of the Building Control Officer, it cannot be said
that the approval was not rationally connected
to the information placed before
Mr Griffiths.  Nor was any other basis proffered to bolster the argument that
the decision was
otherwise unconstitutional or unlawful.  These arguments
therefore also fall to be rejected.
[138]
In the light of the foregoing, I conclude that the applicant’s
application for the setting aside of the decision to approve the
plans in this
case must fail.
Section 62
of the
Local
Government: Municipal Systems Act 32 of 2000
[139]
One last issue falls to be considered.  Jafta AJ points out that
section 62 of the Local Government: Municipal Systems Act 32 of
2000 (the Municipal
Systems Act) must be interpreted to afford a right of appeal only to a person
whose rights have been affected
by the decision against which the appeal is
lodged.
[52]
Â
He concludes that the applicant has not established that he had such a right in
this case.  Section 62(1) provides as follows:
“A person whose rights are affected by a
decision taken by a political structure, political office bearer, councillor or
staff
member of a municipality in terms of a power or duty delegated or
sub-delegated by a delegating authority to the political structure,
political
office bearer, councillor or staff member, may appeal against that decision by
giving written notice of the appeal and
reasons to the municipal manager within
21 days of the date of the notification of the decision.”
For clarification, it should be
noted that “political structure” is defined in section 1 of the Municipal Systems
Act to mean—
“in relation to a municipality . . . the
council of a municipality or any committee or other collective structure of a
municipality
elected, designated or appointed in terms of a specific provision
of the Municipal Structures Act”.
[140]
Section 62 thus provides that “a person whose rights are affected”
by a decision of a municipality or other structure may appeal
against that
decision.  It is important to note that, given the provision in section 7(2) of
PAJA, no court may review an administrative
action in terms of that Act unless
any internal remedy has first been exhausted.
[53]
  Given that the applicant did
not seek to pursue an appeal in terms of section 62, the question in this case
is: is the applicant
prevented from seeking the judicial review of the
decision?
[141]
To answer that question it is necessary to determine whether the
applicant is a person whose rights have been affected as contemplated
by
section 62.  Jafta AJ concludes that the applicant has not established that he
is a person whose rights have been affected
and therefore concludes that it was
not necessary for the applicant to pursue an appeal in terms of section 62 of
the Municipal
Systems Act before launching an application for judicial review.
[54]
  It is interesting that he
concludes, somewhat contrastingly, when considering the effect of the approval
of plans, that such
approval “might affect the rights of the owners of
neighbouring properties”.
[55]
[142]
Our system of administrative justice seeks to encourage internal
remedies to resolve disputes that arise out of administrative action.Â
That is
the very purpose of section 7(2) of PAJA.  In my view, section 62 should be
read in the light of this commitment, as it
establishes an internal remedy.  It
may mean, therefore, that the section only applies where a person
alleges
that his or her rights have been affected by the decision in question.Â
However, in the light of the conclusion I have reached
– that the applicant has
not established a ground for judicial review of the approval of the building
plans – it is not necessary
for me to consider the proper interpretation of
section 62 in this judgment.  I would prefer to reserve this question for
another
day.
Costs
[143]
The last issue that needs consideration is costs.  This is an
application in which the applicant has sought to raise constitutional
issues.Â
In my view, the appeal should fail, but it would not be appropriate to order
costs against the applicant.  One issue,
the question of whether Mr Griffiths
was duly delegated to make the decision to approve the plans, was only
clarified in this Court
when the first respondent tendered proof of that
delegation after the hearing.  In my view, that should not affect the overall

costs order, as the City has successfully defended its decision on all the
grounds raised by the applicant.  All the parties should
therefore bear their
own costs.
[144]
The order I would propose is that the application for leave to
appeal is granted but the appeal is dismissed.
Langa CJ, Kroon AJ, Van der
Westhuizen J and Yacoob J concur in the judgment of O’Regan ADCJ.
For the Applicant:                             Advocate A Schippers
SC and Advocate MC Solomon instructed
by TR Cloete & Associates.
For the First Respondent:                 Advocate G Budlender and
Advocate T Masuku instructed by Nongogo Nuku Inc.
For the Second to Fifth                     Advocate
M O’Sullivan instructed by Parkers Inc.
Respondents:                                   Â
          Â
For the Amicus Curiae:                    Advocate J Gauntlett SC and Advocate D Wood instructed by Moodie &
Robertson.
[1]
Act 103 of 1977.
[2]
See section 7 of the Building Standards Act, the text of which is
quoted at para 50 below.
[3]
Section 4 provides:
“(1)         No person shall without the prior approval in writing
of the local authority in question, erect any building
in respect of which
plans and specifications are to be drawn and submitted in terms of this Act.
(2)           Any application for approval referred to in subsection
(1) shall be in writing on a form made available for
that purpose by the local
authority in question.
(3)           Any application
referred to in subsection (2) shall—
(a)           contain the name and address of the applicant and, if
the applicant is not the owner of the land on which
the building in question is
to be erected, of the owner of such land;
(b)           be accompanied by such plans, specifications,
documents and information as may be required by or under this
Act, and by such
particulars as may be required by the local authority in question for the
carrying out of the objects and purposes
of this Act.
(4)           Any person erecting any building in contravention of
the provisions of subsection (1) shall be guilty of
an offence and liable on
conviction to a fine not exceeding R100 for each day on which he was engaged in
so erecting such building.”
[4]
Section 6 of the Act, the relevant part of which is quoted at para
49 below.
[5]
The letter asking for information is dated 20 September 2006 and
was written by the applicant’s wife (a legal practitioner).
[6]
Act 3 of 2000.
[7]
See para 50 below.
[8]
The Chairperson of the Walmer Estate Residents’ Community Forum
and Another v City of Cape Town and Others
Case No 10695/2006 Cape High
Court, 20 March 2007, unreported (the High Court judgment) at para 15.
[9]
Id at para 32.
[10]
Id at para 21.
[11]
Erf 167 Orchards CC v Greater Johannesburg Metropolitan Council
1999
CLR 91
(W) (
Erf 167 Orchards CC
).
[12]
Odendaal v Eastern Metropolitan Local Council
1999 CLR 77
(W) (
Odendaal
).
[13]
Above n 8 at para 21.
[14]
Id at paras 29-30.
[15]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) (
Plascon-Evans
)
at 634E-H.Â
The relevant portion is quoted at fn 25 below.
[16]
Above n 8 at para 32.
[17]
Harms and Ponnan JJA dismissed the petition with costs and, as is
customary, no reasons were given.
[18]
Bato Star Fishing
(
Pty
)
Ltd v Minister of
Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004
(7) BCLR 687
(CC) (
Bato Star
)
at para 25.
[19]
Rule 16A provides:
“(1)         (a)           Any person raising a constitutional issue
in an application or action shall            Â
give notice thereof to the
registrar at the time of filing the relevant affidavit   or pleading.
(b)           Such notice shall contain a clear and succinct
description of the constitutional issue concerned.
(c)           The registrar shall, upon receipt of such notice,
forthwith place it on a notice board designated for that
purpose.
(d)           The notice shall be stamped by the registrar to
indicate the date upon which it was placed on the notice
board and shall remain
on the notice board for a period of 20 days.
(2)           Subject to the provisions of national legislation
enacted in accordance with section 171 of the Constitution
of the Republic of
South Africa, 1996 (Act 108 of 1996), and these rules, any interested party in
a constitutional issue raised
in proceedings before a court may, with the
written consent of all the parties to the proceedings, given not later than 20
days
after the filing of the affidavit or pleading in which the constitutional
issue was first raised, be admitted therein as amicus
curiae upon such terms
and conditions as may be agreed upon in writing by the parties.
(3)           The written consent contemplated in subrule (2) shall,
within five days of its having been obtained, be lodged
with the registrar and
the amicus curiae shall, in addition to any other provision, comply with the
times agreed upon for the lodging
of written argument.
(4)           The terms and conditions agreed upon in terms of
subrule (2) may be amended by the court.
(5)           If the interested party contemplated in subrule (2) is
unable to obtain the written consent as contemplated
therein, he or she may,
within five days of the expiry of the 20-day period prescribed in that subrule,
apply to the court to be
admitted as an amicus curiae in the proceedings.
(6)           An application contemplated
in subrule (5) shall—
(a)           briefly
describe the interest of the amicus curiae in the proceedings;
(b)           clearly and succinctly set out the submissions which
will be advanced by the amicus curiae, the relevance
thereof to the proceedings
and his or her reasons for believing that the submissions will assist the court
and are different from
those of the other parties; and
(c)           be
served upon all parties to the proceedings.
(7)           (a)           Any party to the proceedings who wishes
to oppose an application to be            Â
admitted as an amicus curiae, shall
file an answering affidavit within five         days of the service of such
application
upon such party.
(b)           The answering affidavit shall clearly and succinctly
set out the grounds of such opposition.
(8)           The court hearing an application to be admitted as an
amicus curiae may refuse or grant the application upon
such terms and
conditions as it may determine.
(9)           The
court may dispense with any of the requirements of this rule if it is in the
interests of justice to
do so.”
[20]
Zondi v MEC for Traditional and Local Government Affairs
[2004]
ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC) (
Zondi
) at para
23.
[21]
Section 7 of PAJA provides:
“
(1)         Any proceedings for judicial
review in terms of section 6(1) must be instituted without unreasonable delay
and
not later than 180 days after the date—
(a)         Â
subject to subsection (2)(c),
on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)(a)
have been concluded; or
(b)         Â
where no such remedies exist,
on which the person concerned was informed of the administrative action, became
aware of the action
and the reasons for it or might reasonably have been
expected to have become aware of the action and the reasons.
(2)           (a)           Subject to paragraph (c), no court or
tribunal shall review an administrative          Â
action in terms of this Act
unless any internal remedy provided for in any      other law has first been
exhausted.
(b)         Â
Subject to paragraph (c), a
court or tribunal must, if it is not satisfied that any internal remedy
referred to in paragraph (a)
has been exhausted, direct that the person
concerned must first exhaust such remedy before instituting proceedings in a
court or
tribunal for judicial review in terms of this Act.
(c)         Â
A court or tribunal may, in
exceptional circumstances and on application by the person concerned, exempt
such person from the obligation
to exhaust any internal remedy if the court or
tribunal deems it in the interest of justice.
(3)           The Rules Board for Courts of Law established by
section 2 of the Rules Board for Courts of Law Act, 1985
(Act No. 107 of 1985),
must within one year after the date of commencement of this Act, make and
implement rules of procedure for
judicial review.
(4)           Before the implementation of the rules of procedure
referred to in subsection (3), all proceedings for judicial
review must be
instituted in a High Court or the Constitutional Court.
(5)           Any
rule made under subsection (3) must, before publication in the Gazette, be
approved by Parliament.”
[22]
Section 62 of the Municipal Systems Act provides:
“(1)       Â
A person whose rights are
affected by a decision taken by a political structure, political office bearer,
councillor or staff member
of a municipality in terms of a power or duty
delegated or sub-delegated by a delegating authority to the political
structure,
political office bearer, councillor or staff member, may appeal
against that decision by giving written notice of the appeal and
reasons to the
municipal manager within 21 days of the date of the notification of the decision.
(2)           The municipal manager must promptly submit the appeal
to the appropriate appeal authority mentioned in subsection
(4).
(3)           The appeal authority must consider the appeal, and
confirm, vary or revoke the decision, but no such variation
or revocation of a
decision may detract from any rights that may have accrued as a result of the
decision.
(4)           When the appeal is
against a decision taken by—
(a)         Â
a staff member other than the
municipal manager, the municipal manager is the appeal authority;
(b)         Â
the municipal manager, the executive committee or executive mayor is the appeal authority, or, if the
municipality does not have
an executive committee or executive mayor, the
council of the municipality is the appeal authority; or
(c)           a
political structure or political office bearer, or a councillor—
(i)            the municipal council is the appeal authority where
the council comprises less than 15 councillors; or
(ii)           a committee of councillors who were not involved in
the decision and appointed by the municipal council
for this purpose is the
appeal authority where the council comprises more than 14 Councillors.
(5)           An
appeal authority must commence with an appeal within six weeks and decide the
appeal within a reasonable
period.”
[23]
See
Fraser v ABSA Bank Ltd (National
Director of Public Prosecutions as
Amicus Curiae
)
[2006] ZACC 24
;
2007
(3) SA 484
(CC);
2007 (3) BCLR 219
(CC) (
Fraser
) at para 48;
Radio
Pretoria v Chairperson, Independent Communications Authority of South Africa,
and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at
para 19;
Member of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4)
SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 32.
[24]
Above n 22.
[25]
Above n 15.  In
Plascon-Evans
, Corbett JA said at 634E-I:
“The
appellant nevertheless sought a final interdict, together with ancillary
relief, on the papers and without resort to oral
evidence.  In such a case the
general rule was stated by Van Wyk J (with whom De Villiers JP and Rosenow J concurred)
in
Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery
(
Pty
)
Ltd
1957 (4) SA 234
(C) at 235E-G, to be:
‘. . . where there is a dispute as
to the facts a final interdict should only be granted in notice of motion
proceedings if the
facts as stated by the respondents together with the
admitted facts in the applicant's affidavits justify such an order . . .  Where

it is clear that facts, though not formally admitted, cannot be denied, they
must be regarded as admitted.’
This rule
has been referred to several times by this Court (see
Burnkloof Caterers
(
Pty
)
Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd
1976 (2) SA 930
(A) at
938A-B;
Tamarillo
(
Pty
)
Ltd v B N Aitkin
(
Pty
)
Ltd
1982 (1) SA 398
(A) at 430-1;
Associated South African Bakeries
(
Pty
)
Ltd v Oryx & Vereinigte Bäckereien
(
Pty
)
Ltd en Andere
1982
(3) SA 893
(A) at 923G-924D).  It seems to me, however, that this formulation
of the general rule, and particularly the second sentence thereof,
requires
some clarification and, perhaps, qualification.  It is correct that, where in
proceedings on notice of motion disputes
of fact have arisen on the affidavits,
a final order, whether it be an interdict or some other form of relief, may be
granted if
those facts averred in the applicant's affidavits which have been
admitted by the respondent, together with the facts alleged by
the respondent,
justify such an order.  The power of the Court to give such final relief on the
papers before it is, however,
not confined to such a situation.  In certain
instances the denial by respondent of a fact alleged by the applicant may not
be
such as to raise a real, genuine or
bona fide
dispute of fact (see in
this regard
Room Hire Co
(
Pty
)
Ltd v Jeppe Street Mansions
(
Pty
)
Ltd
1949 (3) SA 1155
(T) at 1163-5;
Da Mata v Otto NO
1972 (3) SA
858
(A) at 882D-H).”
[26]
Masetlha v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) (
Masetlha
)
at para 183.
[27]
Id at para 187.
[28]
Section 3(1) provides:
“Administrative action which
materially and adversely affects the rights or legitimate expectations of any
person must be procedurally
fair.”
[29]
Above n 26.
[30]
Administrator, Transvaal and Others v Traub and Others
[1989]
ZASCA 90
;
1989 (4) SA 731
(A) (
Traub
)
at 761E-G.
[31]
See
Bato Star
above n 18;
Zondi
above n 20 at para
99.
[32]
Minister of Health and Another NO v New Clicks South Africa
(
Pty
)
Ltd and Others (Treatment Action Campaign and Another as
Amici
Curiae
)
[2005] ZACC 25
;
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) (
New
Clicks
).
[33]
Id at para 437.
[34]
Paola v Jeeva NO and Others
[2003] ZASCA 100
;
2004 (1) SA
396
(SCA) (
Paola
).
[35]
Id at para 23.
[36]
Janse van Rensburg NO and Another v Minister of Trade and
Industry and Another NNO
[2000] ZACC 18
;
2001 (1) SA 29
(CC);
2000 (11)
BCLR 1235
(CC) at para 24;
Du Preez and Another v Truth and Reconciliation
Commission
[1997] ZASCA 2
;
1997 (3) SA 204
(A);
1997 (4) BCLR 531
(A) at
paras 31-3.
[37]
Traub
,
above n 30 at 758D.
[38]
Id at 761E-G.
[39]
The relevant part of section 1 of PAJA reads as follows:
“In this Act, unless the context
indicates otherwise—
‘administrative action’ means any decision taken, or any failure to
take a decision, by—
(a)           an
organ of state, when—
(i)            exercising a power in terms of the Constitution or a
provincial constitution; or
(ii)           exercising a public power or performing a public
function in terms of any legislation; or
(b)           a natural or juristic person, other than an organ of
state, when exercising a public power or performing a
public function in terms
of an empowering provision,
which
adversely affects the rights of any person and which has a direct, external
legal effect”.
[40]
Hoban v ABSA Bank Ltd t/a United Bank and Others
[1999]
ZASCA 12
;
1999 (2) SA 1036
(SCA) at 1044.
[41]
Grey’s Marine Hout Bay
(
Pty
)
Ltd and Others v Minister of Public Works and Others
(
Grey’s
Marine
)
[2004] ZASCA 43
;
2005 (6) SA 313
SCA; 2005 (10) BCLR 931
(SCA).
[42]
Id
at para 23.
[43]
President of the Republic of South Africa
and Others v South African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (7) BCLR 725
(CC) (
SARFU
).
[44]
Id at para 211.
[45]
Id at para 216.
[46]
[1983] UKHL 6
;
[1984] 3 All ER 935
(HL).
[47]
Id at 943-4.
[48]
South African Veterinary Council and Another v Szymanski
[2003] ZASCA 11
;
2003 (4) SA 42
(SCA) at para 19.
[49]
Section 3 of PAJA.
[50]
Above n 13.
[51]
Hornsby Shire Council v Porter
(1990) 70 LGRA 175.
[52]
Above n 13 at 115.
[53]
Id.
[54]
Above n 14.
[55]
Section 6(2)(b) reads:
“A court or tribunal has the power to
judicially review an administrative action if—
(b)           a mandatory and material procedure or condition
prescribed by an empowering provision was not complied with”.
[56]
Section 15 of the Building Standards Act provides:
“(1)         Any building control officer or any other person
authorized thereto by the local authority may enter any building
or land at any
reasonable time with a view to inspection in connection with the consideration
of any application submitted in terms
of section 4, or to determine whether the
owner of the building or land complies with any provision of this Act or any
condition
imposed by the local authority in terms of this Act.
(2)           Any person who hinders or obstructs any building
control officer or person authorized by the local authority
in question in the
exercise of his powers in terms of subsection (1), shall be guilty of an
offence.
(3)           Any
building control officer shall, at the request of any person affected by the
execution of any of his
powers, duties or activities in terms of this Act,
produce his certificate of appointment issued to him in the form prescribed by

national building regulation.”
[57]
Section 24 of the Building Standards Act provides:
“Any
person convicted of an offence under this Act in respect of which a fine or
imprisonment is not expressly provided for, shall
be liable to a fine not
exceeding R4 000 or to imprisonment for a period not exceeding 12 months.”
[58]
This is done in terms of section 6 of the Building Standards Act.
[59]
Section 13 provides:
“(1)         Any building control officer may in respect of the
erection of a building defined in the national building
regulations as a minor
building work, in writing—
(a)           exempt the owner of such building from the obligation
to submit a plan in terms of this Act to the local
authority in question for
approval;
(b)           grant authorization for the erection of such building
in accordance with the conditions and directions specified
in such
authorization.
(2)           Any authorization granted in terms of subsection (1)(b)
shall lapse if after the expiry of a period of 6
months the erection of the
building has not commenced, but the building control officer may from time to
time extend such period
at the written request of the owner of such building or
any person having an interest therein if such building control officer is

satisfied that there are sound reasons therefor.
(3)           If any building control officer refuses to extend in
terms of subsection (2) any period of 6 months referred
to in that subsection,
any person who feels aggrieved may in writing request the local authority in
question to consider such refusal
and thereupon such local authority may
confirm such refusal or extend such period on such conditions as it may think
fit.”
[60]
Zondi
above n 20.  See also
Islamic Unity Convention v
Minister of Telecommunications and Others
[2007] ZACC 26
;
2008 (4) BCLR 384
(CC) at para 59 and
MEC: Department of Agriculture, Conservation and
Environment and Another v HTF Developers
(
Pty
)
Ltd
[2007]
ZACC 25
;
2008 (4) BCLR 417
(CC) at para 75.
[61]
Zondi
id at para 101.
[62]
Section 39(2) states:
“When
interpreting any legislation, and when developing the common law or customary
law, every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
[63]
Phumelela Gaming and Leisure Ltd v Grundlingh and Others
[2006]
ZACC 6
;
2007 (6) SA 350
(CC);
2006 (8) BCLR 883
(CC) (
Phumelela
)
at
paras 26-27;
First National Bank of South Africa t/a Wesbank v Commissioner,
South African Revenue Service and Another
[2002] ZACC 5
;
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC) at para 31;
Investigating Director: Serious Economic
Offences and Others v Hyundai Motor Distributors and Others: In re: Hyundai
Motor Distributors
(
Pty
)
Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 21.
[64]
Above n 23.
[65]
Id at para 43.
[66]
Id at para 47.
[67]
Id at para 43.
[68]
Paola,
above n 34 at para 23.
[69]
In
Phumelela
(above n 51) at para 37, Langa CJ observed that
the section 39(2) exercise must involve consideration of all rights relevant to
it and where there is competition between some of them, a balancing exercise
should be undertaken.  In this regard he said:
“It is
not permissible for a litigant to simply carve out those provisions that are
favourable to it in the application of s 39(2).Â
The interests of other holders
of rights must also be taken into account in the balancing exercise.”
[70]
Above n 8 at para 26.
[71]
Id at para 31.
[72]
Sachs v Minister of Justice; Diamond v Minister of Justice
1934
AD 11
at 37;
South African Defence and Aid Fund and Another v Minister of
Justice
1967 (1) SA 31
(C) at 35.
[73]
Camps Bay Ratepayers and Residents Association and Others v
Minister of Planning, Culture and Administration, Western Cape, and Others
2001
(4) SA 294
(C) at 320-1.
[74]
Ex parte Porritt
1991
(3) SA 866
(N) at 870H-871A.
[75]
Above n 32.
[76]
Id at para 542.
[1]
Section 6(2)(a)(i) of PAJA provides that administrative action is
susceptible to judicial review where the administrator who took
it “was not
authorised to do so by the empowering provision”.
[2]
Section 6(2)(b) of PAJA provides that administrative action is
susceptible to judicial review where “a mandatory and material
procedure or
condition prescribed by an empowering provision was not complied with”.
[3]
Section 6(2)(e)(iv) of PAJA provides that administrative action is
susceptible to judicial review where it was taken “because
of the unauthorised
or unwarranted dictates of another person or body”.
[4]
Section 6(2)(e)(vi) of PAJA provides that administrative action is
susceptible to judicial review if it was arbitrary or capricious.
[5]
Section 6(2)(c) of PAJA provides that administrative action
is susceptible to judicial review if “the action was procedurally
unfair”.
[6]
Section 6(2)(h) of PAJA provides that administrative action is
susceptible to judicial review if—
“the
exercise of the power or the performance of the function authorised by the
empowering provision, in pursuance of which the
administrative action was
purportedly taken, is so unreasonable that no reasonable person could have so
exercised the power or
performed the function”.
See
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA
490
(CC);
2004 (7) BCLR 687
(CC) at paras 44-5.
[7]
Section 6(2)(e)(iii) of PAJA provides that administrative action is
susceptible to judicial review if irrelevant considerations
are taken into
account in reaching a decision or relevant ones ignored.
[8]
Section 6(2)(f)(ii) of PAJA provides that administrative action is
susceptible to judicial review if the action is not rationally
connected to the
purpose for which it was taken, the purpose of the empowering provision, the
information before the administrator
or the reasons given for it by the
administrator.
[9]
Section 6(2)(i) of PAJA provides that administrative action is
susceptible to judicial review if the administrative action is “otherwise

unconstitutional or unlawful.”
[10]
Section 2 of the Act provides for exemptions from the provisions of
the Act; those provisions are not of application in this case.
[11]
Section 4(1) provides:
“No
person shall without the prior approval in writing of the local authority in
question, erect any building in respect of which
plans and specifications are
to be drawn and submitted in terms of this Act.”
The text of the provision is in
slightly imprecise terms but it has consistently been interpreted by the courts
to impose an obligation
to obtain approval in writing of buildings from the
relevant local authority before they are erected.  See, for example,
Sandton
Town
Council v Gourmet Property Investments CC
1994 (4) SA 569
(A) at 571D-E;
Muller NO and Others v City of Cape Town
2006 (5) SA 415
(C) at para 23.  It was not suggested in argument before us that this
interpretation of the provision is incorrect.
[12]
Section 4(3) provides:
“Any application referred to in
subsection (2) shall—
(a)
contain the name and address of the applicant
and, if the applicant is not the owner of the land on which the building in
question
is to be erected, of the owner of such land;
(b)
be accompanied by such plans, specifications,
documents and information as may be required by or under this Act, and by such
particulars
as may be required by the local authority in question for the
carrying out of the objects and purposes of this Act.”
[13]
Section 4(3)(b) read with section 17(1) of the Building Standards
Act.
[14]
See Part A2 of Regulations under the Building Standards Act, GN
R2378 RG4565, 12 October 1990 (the National Building Regulations).
[15]
Id.
[16]
See section 28(4) of the Act.
[17]
Part A16 of the National Building Regulations above n 14.
[18]
Section 6(1)(b) of the Act.
[19]
Section 6(1)(c) of the Act.
[20]
Section 6(1)(d) of the Act.
[21]
See
Paola v Jeeva NO and Others
[2003] ZASCA 100
;
2004 (1) SA 396
(A) at paras
12-6.
[22]
See
Muller NO and Others v City of Cape Town
above n 11.
[23]
Other than those exempted.  Section 13 of the Act provides for the
Building Control Officer to exempt owners who intend to undertake
minor
building works from the requirement of submitting a plan.  What constitutes a
minor building work is defined in Part AZ2
of the National Building
Regulations, above n 14.
[24]
See section 28(4) of the Act.
[25]
The Chairperson of the Walmer Estate Residents’ Community Forum
and Another v City of Cape Town and Others
Case No 10695/2006 Cape High
Court, 20 March 2007, unreported (High Court judgment) at paras 12-5.
[26]
1991 (3) SA 866
(N) (
Porritt
) at 870H-871A.
[27]
Id at 870H-I.
[28]
See also
Ex parte Anderson
1995 (1) SA 40
(SECLD) (
Anderson
)
at 46G-I where the court was concerned with the same provision as had been
considered in
Porritt
.
[29]
Id at 45H.
[30]
See above at paras 101-3 and n 26.
[31]
Minister of Health and Another v New Clicks SA (Pty) Ltd and
Others (Treatment Action Campaign and Another as
Amici Curiae
)
[2005]
ZACC 25
;
2006 (2) SA 311
(CC);
2006 (8) BCLR 872
(CC) at para 542.
[32]
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA) at para 20.
[33]
See above n 21.
[34]
See section 7(1)(a) of the Act above at para 87.
[35]
Section 7(1)(b) above at para 87.
[36]
Section 7(1)(a) states that in such circumstances the
decision-maker “shall grant its approval”.  See above at para 87.
[37]
See above at para 90.
[38]
[1998] ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC) at para
41.
[39]
For a full discussion, see Hoexter
Administrative Law in South
Africa
(Juta, Cape Town 2007) at 199 and 358-9.  See also Currie and
Klaaren
The Promotion of Administrative Justice Benchbook
(SiberInk,
Cape Town 2001) at para 3.4 and De Ville
Judicial Review of Administrative
Action in South Africa
(LexisNexis Butterworths, Durban 2003) at 222-3.
[40]
See the preamble of PAJA, which makes it clear that the Act was
enacted to give effect to section 33 of the Constitution.
[41]
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) (
Grey’s Marine
) at
para 30.
[42]
Section 25 of the Constitution recognises that the right to
property is not absolute.  Section 25(1) provides that “[n]o one
may be
deprived of property except in terms of law of general application, and no law
may permit arbitrary deprivation of property.”
[43]
See the discussion by Van den Heever JA in
Broadway Mansions
(Pty) Ltd v Pretoria City Council
1955 (1) SA 517
(A) at 523B, noting: “[A]
town-planning scheme is to provide for the co-ordinated and harmonious
development of the municipality
to which it relates.”
[44]
1999 CLR 77
(W) (
Odendaal
) at 84-5.
[45]
[1989] ZASCA 90
;
1989 (4) SA 731
(A) (
Traub
).
[46]
[1983] UKHL 6
;
[1984] 3 All ER 935
(HL) at 943j-944a.
[47]
Above n 45 at 756H-I.
[48]
See
Nortje en’n Ander v Minister van Korrektiewe Dienste en
Andere
2001 (3) SA 472
(SCA) (
Nortje
) at para 14 (“’n ingrypende
inkorting teweeggebring het van die voorregte en vergunnings wat appellante tot
op daardie stadium
geniet het”).  See also
Bullock NO and Others v
Provincial Government, North West Province, and Another
2004 (5) SA 262
(SCA) at para 22.
[49]
See, for example,
Grey’s Marine
above n 41 at para 32.  See
also
National Director of Public Prosecutions v Phillips and Others
2002
(4) SA 60
(W) at para 28 and
South African Veterinary Council and Another v
Szymanski
2003 (4) SA 42
(SCA) at para 19.
[50]
1999 CLR 91
(W) (
Erf 167 Orchards CC
).
[51]
See
Nortje
above n 48 at para 14.
[52]
Above at paras 40-1 of Jafta AJ’s judgment.
[53]
Id at para 19.
[54]
Section 7(2) provides as follows:
“(a)         Subject to paragraph (c), no court or tribunal shall
review an administrative action in terms of this Act
unless any internal remedy
provided for in any other law has first been exhausted.
(b)
Subject to paragraph (c), a court or tribunal
must, if it is not satisfied that any internal remedy referred to in paragraph
(a)
has been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court or
tribunal for judicial
review in terms of this Act.
(c)
A court or tribunal may, in exceptional
circumstances and on application by the person concerned, exempt such person
from the obligation
to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[55]
Above at para 19 of Jafta AJ’s judgment.
[56]
Id at para 52.