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[2013] ZAWCHC 51
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Zetler NO and Others v Minister of Transport and Public Works, Provincial Government of Western Cape and Others; Minister of Transport and Public Works, Provincial Government of Western Cape v Zetler NO and Others (20168/12, 19622/12) [2013] ZAWCHC 51 (8 March 2013)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
case no: 20168/12
In the
matter between:
HERSCHEL ZETLER N.O.
.................................................................
First
Applicant
DENNIS LOUIS ZETLER N.O.
......................................................
Second
Applicant
JEFFREY MARK ZETLER N.O.
........................................................
Third
Applicant
JULIAN MARK GRUFT N.O.
..........................................................
Fourth
Applicant
as
trustees of the
Samuel Zetler Trust
and
MINISTER OF TRANSPORT & PUBLIC WORKS,
PROVINCIAL GOVERNMENT OF THE
WESTERN CAPE
...........................................................................
First
Respondent
EXECUTIVE MANAGER: ROAD & TRANSPORT
MANAGEMENT, PROVINCIAL GOVERNMENT
OF THE WESTERN CAPE
........................................................
Second
Respondent
MUNICIPAL MANAGER: WINELANDS
.......................................
Third
Respondent
THE MINISTER OF LAW AND ORDER
.....................................
Fourth
Respondent
AND
case no: 19622/12
In the
matter between:
THE MINISTER OF TRANSPORT AND PUBLIC
WORKS, PROVINCIAL GOVERNMENT OF
THE WESTERN CAPE
................................................................................
Applicant
and
HERSCHEL ZETLER N.O.
.............................................................
First
Respondent
DENNIS LOUIS ZETLER N.O.
..................................................
Second
Respondent
JEFFREY MARK ZETLER N.O.
...................................................
Third
Respondent
JULIAN MARK GRUFT N.O.
.......................................................
Fourth
Respondent
Heard: 20
February 2013
JUDGMENT
DELIVERED: 8 MARCH2013
Savage AJ:
Introduction
The Samuel Zetler Trust is the owner of the farm Mooiberge, situated
adjacent to the R44 Main Road between Stellenbosch and Somerset
West
in the Western Cape. The Trust conducts farming operations and a
farm stall with wine sales and a coffee shop from the farm.There
exist two access points from Main Road 27 (known as the R44)to the
farm stall and a third access point from Annandale Road,
perpendicular to the R44. It is the left traffic only access point
125 metres from the intersection with Annandale Road from the
direction of Stellenbosch that is the subject of dispute between the
parties.
On 8 April 2011 and 11 April 2011officials of the respondents closed
the disputed access point off the R44 and after the applicants
launched an urgent spoliation application, access was restored.
Correspondence ensued between the parties and on 11 June 2012
Mr
Malcolm Watters, the Chief Engineer for Land Transport in the
Western Cape Department of Transport and Public Works signed
an
order of closure (“the order”) on behalf of the second
respondentin terms of the provisions of section 18(1)(a)of
the Roads
Ordinance, 19 of 1976(“the Ordinance”) permanently
closing the disputed access with immediate effect ‘
in the
interests of road safety’
.
The applicants appealed against the second respondent’s order
to the Premier of the Western Cape in terms of section 61(1)(a)
of
the Ordinance as a result of their commercial interest in retaining
this access to their farm stall. The Premier did not consider
the
appeal on the basis that it was not an appeal against an order made
by a divisional or municipal council as provided for
in section
61(1) of the Ordinance. The applicants do not take issue with this
decision of the Premier.
The applicants under case number 20168/12seek the review and setting
aside of the order of the second respondent. The respondents
under
case number 19622/12seek enforcement of the same order. By agreement
between the parties, theapplications were heard together
on the
basis that if the applicants succeeded in their application to
review and set aside the order in case number 20168/12,
the relief
sought by the first respondent (as applicant)in case number 19622/12
would consequently fail and
vice versa
.
The applicants in their papers have raised a number of grounds of
review, being the lack of authority, prescription, procedural
unfairness, the unreasonableness of the decision and the existence
of bias. I deal first with the lack of authority attack.
Lack of authority
The orderwas made in terms of the provisions of section 18(1)(a) of
the Roads Ordinance 19 of 1976 which provides that -
‘
Any road authority may by written order
served on the owner of land abutting on any public road or public
path of which such road
authority is the road authority and in
respect of any existing access to or exit from such land by or for a
vehicle from or to
such public road or public path:
require such owner to deviate such access or exit, or
(ii) for any reason restrict, or in the interests of road safety,
close such access or exit in such manner, to such extent and either
permanently or for such period as may be specified in such notice
.’
The applicants’ take issue with the authority of the second
respondent Mr Watters to issue the order in that the power
to make
the order had not been delegated to him in writing as required by
section 65(1) of the Ordinance.This challenge to the
second
respondent’s authority was raised in the applicants’
supplementary affidavit in which it was stated that ‘
the
source of his alleged authority to have issued the closure order
’
had not been disclosed and such authoritywas placed in dispute.
In his answering affidavit Mr Watters replied that ‘
the
powers contained in section 18(1)(a) of the Roads Ordinance have
been duly delegated by First Respondent to Second Respondent
who has
accordingly been duly authorised to deal with the closure of the
illegal access as he did
’. A confirmatory affidavit signed
by the first respondent, Mr Robin Carlisle, confirmed that –
‘…
in respect of the illegal access
to the farm stall of the Applicants off R44, I have duly authorised
the Second Respondent to exercise
the powers in terms of section
18(1)(a)(ii) to close the access in the interests of road safety
…
I have in general been kept informed of
the developments in the matter and copied in on some of the
correspondence with the Applicants
and their attorneys. To the extent
necessary, I have approved of the steps taken by the Second
Respondent with regard to the matter
and am satisfied that it was
necessary to close the illegal access in the interests of road
safety’
.
The second respondent, Mr Johannes Mouton, stated in his
confirmatory affidavit that the order to close the access ‘
had
been duly issued on 11 June 2012 in terms of section 18(1)(a) of the
Roads Ordinance in the interests of road safety pursuant
to the
authorisation of the First Respondent
’.
In reply, the applicants persisted with their authority challenge
stating that –
‘
The Ordinance specifically provides for
the written delegation of the Road Authority’s powers. The
assignment of powers and
functions relating to transport in general
does not … include a delegation of the Premier’s
specific powers under
the Ordinance. No such delegation has been
proven. The applicants accordingly persist in their denial of the
respondents’
authority to issue the closure order’
.
The ‘road authority’ for purposes of the Ordinance,
previously the Administrator, isnow the Premier of the Western
Cape.
On 8 May 2009,the Premier acting in accordance with section 132(2)
of the Constitution and section 42(2) of the Constitution
of the
Western Cape Act 1 of 1998 appointed the first respondent as a
member of the provincial cabinet and assigned him the powers
and
functions relating to the provincial portfolio of Transport and
Public Works.
The Constitution distinguishes between an assignment of powers and
functions to an executive authority and the transfer of such
powers
and functions between Executive Council members. This is apparent
from a sections 132(2) and section 137. Section 132(2)
provides that
‘
(t)he Premier of a province appoints
the members of the Executive Council, assigns their powers and
functions, and may dismiss
them’,
while section 137
permits the Premier by proclamation to transfer powers between
members of the Executive Council. Consequently,
the assignment by
the Premier of the powers and functions of the Transport and Public
Works portfolio into which the first respondent
had been appointed
was lawfully effected and did not require proclamation. Given that
the Roads Ordinance constitutes legislation
relatingto the portfolio
of Transport and Public Works, it follows that the powers and
functions of the Premier contained in
such Ordinance have
accordingly been lawfully assigned to the first respondent.
An assignment or transfer of powers is distinct from a delegation of
powers in that an assignment constitutes a full transfer
of
authority, the duty to exercise such authority and the
responsibility for such exercise from one public authority to
another.
This is contrasted to a delegation of powers in terms of
which one public authority authorises another to act in its stead.
(De
Ville, 2003 at 146). Section 65(1) of the Roads Ordinance
provides that –
‘
A road authority may, either generally
or specially, in writing and, in the case of a road authority which
is a council, by special
resolution, delegate any power or duty
conferred or imposed on such road authority by or under this
ordinance to any employee,
agent or contractor of such road
authority
’.
Consequently, the first respondent having been assigned the powers
of the Premier as road authority may delegate such powers
in
accordance with the provisions of section 65(1). Such delegation is
also constitutionally permissible. Section 238 of the
Constitution
permits an executive organ of state in any sphere of government to -
‘
(a) delegate any power or function that
is to be exercised and performed in terms of legislation to any other
executive organ of
state, provided the delegation is consistent with
the legislation in terms of which the power is exercised or the
function is performed;
or
(b) exercise any power or perform any function for any other
executive organ of state on an agency or delegation basis
.’
An
'organ of state'is defined in s
ection
239 of the Constitution
as-
(a) any department of state or administration in the national,
provincial or local sphere of government; or
(b) any other functionary or institution-
(i) exercising a power or performing a function 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,
but does not include a court or a judicial officer…
The starting point of any enquiry is therefore whether or not the
exercise of delegated powers and functions is
ultra vires
the
empowering statute. (Corbett CJ in
Catholic Bishops Publishing Co
v State President and another
1990 (1) SA 849
(A)
at 861D-E). As
much is confirmed by section 238 of the Constitution that a
delegationmust be consistent with the legislation in
terms of which
the power is exercised or the function is performed.
Innes CJ stated in
Schierhout v Minister of Justice
1926 AD 99
at 109 that ‘(i)
t is a fundamental principle of our law
that a thing done contrary to the direct prohibition of the law is
void and of no effect
’. For the actions of an
administrator to be valid, such administrator must be properly
appointed, properly qualified and
properly constituted when taking
the administrative action (De Ville at 137-9).Van Dijhorst J in
Lucky Horseshoe (Pty) Ltd v Minister of Mineral and Energy
Affairs
1992 (3) SA 838
(A) at 848I – 849B put it this way
–
‘
Like a dog on a leash its free and
wilful movement is constrained by the dominant legislator by means of
the enabling enactment.
It can sniff only at trees which the length
of the leash permits. The origin of his power lies in, and the
limitations thereon
are to be determined from, the words used in the
empowering legislation
.’
Where words are clear and unambiguous their grammatical construction
must be placed upon them and they must be given their ordinarily
effect (
Venter v R
1907 TS 910
at 913).The use of the word
‘
may
’ in section 65(1) in relation to ‘
delegate
’
grants to the road authority a clear and unambiguous discretion to
delegate any power or duty conferred or imposed by
the Ordinance
upon the road authorityto any employee, agent or contractor of such
road authority. Where the road authority elects
to delegate any such
power or duty, generally or specifically, the Ordinance clearly and
unambiguously requires that such delegation
be in writing. Where no
such written delegation is made, there is no delegation of the power
or duty and the consequence thereof
is that the purported delegee in
performing any such power or duty acts
ultra vires
the statute
and the action taken is unlawful and invalid. The factual enquiry as
to whether there has been a delegation of a
power or duty in terms
of the Ordinanceis accordinglycentral to a determination as to the
legality and validity of the administrative
act performed.
In
Maharaj and Others v Rampersad
1964 (4) SA 638
(A) at 646
D-EVan Winsen AJA stated that:
“
The
enquiry, I suggest, is not so much whether there has been ‘exact’,
‘adequate’ or ‘substantial’
compliance with
this injunction but rather whether there has been compliance
therewith. This enquiry postulates an application
of the injunction
to the facts and a resultant comparison between what the position is
and what, according to the requirements
of the injunction, it ought
to be. It is quite conceivable that a court might hold that, even
though the position as it is is not
identical with what it ought to
be, the injunction has nevertheless been complied with. In deciding
whether there has been a compliance
with the injunction the object
sought to be achieved by the injunction and the question of whether
this object has been achieved,
are of importance
.”
In
Kasiyahuru v Minister of Home Affairs and others
1999 (1)
SA 643
(W) at 651D-E Hoffman AJ held that the fact of a valid
delegation must clearly and satisfactorily be established and an
express
power of delegation must be interpreted restrictively.It
follows that where there is a challenge to the authority of an
administrator
to perform any powers or functions, there rests upon
the administrator the duty to make out a proper defence and to rebut
the
challenge through proving that the powers and functions had been
lawfully delegated. When written delegation is required and no
proof
of written delegation is put up in such circumstances, the only
inference to be drawn on the facts is that no written delegation
of
authority exists. For this reason, I do not agree with Mr Potgieter
that, in the absence of a proper defence, the matter stands
to be
determined on the basis of the test set out in
Plascon-Evans v
Van Riebeeck Paints
1984(3) SA 623 (A) at 643E-635D. The test in
Plascon-Evans
is designed to resolve factual disputes. In the
present case, the respondents have simply not alleged or proved the
existence
of a written delegation.
Where there has been no written delegation, the position is akin to
that of a functionary who has not been appointed in accordance
with
the provisions of a statute. In
Lupacchini v Minister of Safety
and Security
2010(6) SA 457 (SCA) at 468F-H Nugent JA held that
proceedings instituted in the name of a trustee who had not been
appointed
by the Master as such in terms of s 6(1) of the Trust
Property Control Act 57 of 1988 were a nullity
.
Goldblatt J in
Simplex (Pty) Ltd v Van der Merwe and
Others NNO
1996 (1) SA 111
(W) at 112 J-113C stated that –
‘
S6(1) is not purely for the benefit of
the beneficiaries of the trust but in the public interest to provide
proper written proof
to outsiders of incumbency of the office of
trustee (Honore’s South African Law of Trust 4
th
ed 179). That whole scheme of the act is
to provide a manner in which the master can supervise trustees in the
proper administration
of trust properly and s6(1) is essential to
such purpose
.’
The respondents rely on Mr Watters’ statement that the powers
had been ‘
duly delegated’
by the first respondent
to the second respondent‘
who has accordingly been duly
authorised to deal with the closure of the illegal access
’.
There is further reliance on the first respondent’s
confirmation of this authorisation, his approval ‘
of the
steps taken by the Second Respondent’
and confirmation by
the second respondent of this authorisation.
Authorisation cannot be conflated with the requirement of written
delegation. The legal distinction between the two lies in the
fact
that a delegated power is one required to be exercised by the
delegee in accordance with the terms of the empowering statute.
Where delegation is permissible under express terms, as are provided
in section 65(1) of the Ordinance, the authorisation of
an
administrative act taken by a subordinate does not equate to a
delegation of the function to such subordinate, nor does it
validate
the action taken in the absence of the written delegation. This is
because the Ordinance, and indeed the Constitution,
requirethe
delegation to be made in a manner consistent with the applicable
legislation. Consequently, the purported authorisation
by the first
respondent of the order made by the second respondent does not
amount to the required proof of written delegation
by the first
respondent of the powerto the second respondent to issue the order,
nor does any such authorisation cure the defect
that is the absence
of a written delegation.
Administrative action in terms of section 33 of the Constitution
must be lawful, reasonable and procedurally fair. The requirement
of
written delegation is not purely for the benefit of the
functionaries concerned but it is in the public interest to provide
proper written proof to outsiders and members of the public of the
fact that powers and duties have been lawfully delegated,
to whom
and the extent and limits of such delegation. Had the statute
intended that delegation could be undertaken in any manner
chosen,
it would have remained silent on the manner in which delegation was
to be effected. Consequently, I find that written
delegation was a
requirement for the lawful exercise of the delegated powers and
duties and that the Ordinance in this regard
must be interpreted
restrictively.
The fact that Mr Watters stated
that
the powers were ‘
duly delegated
’ to
the second respondent takes the matter no further given that neither
the first nor second respondent either attest
to or provide any
proof of the existence of the required written delegation.
For the reasons stated above,
I find
that in the absence of proof of a written delegation of the power to
issue the order of closure, the respondents have not
proved that the
action taken by the second respondent was lawful or
valid.Consequently, the review must succeed and it follows
that the
order made by the second respondent must be set aside. Given my
conclusions with regards the unlawfulness of the order
made, it is
not necessary for me to determine the further review grounds raised
by the applicants.
I am satisfied that costs should follow the
result and that, given the complexity of the issues raised, the
costs of two counsel
are justified.
Order
In the result, I make the following order:
The application under case number 20168/12 to review and set aside
the order of closure in terms of section 18(1)(a) of the Roads
Ordinance 19 of 1976 of access to Farm 537/15, Mooiberge, off Main
Road 27, Stellenbosch, issued by the second respondent on
11 June
2012, is granted and the order is set aside with costs, including
the costs of two counsel.
The application under case number 19622/12 is dismissed with costs,
including the costs of two counsel.
KM SAVAGE
ACTING JUDGE OF THE HIGH COURT
Appearances
:
For applicants: Advs A J Smit SC & S van Zyl instructed by Theron
& Partners, Stellenbosch
For respondents: Adv D Potgieter SC instructed by: The State
Attorney, Cape Town