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[2013] ZAWCHC 144
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Kothuis (Pty) Ltd v MEC for Cultural Affairs and Sport, Western Cape and Others (22784/12) [2013] ZAWCHC 144 (20 September 2013)
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPEHIGH COURT, CAPE TOWN]
Case
No:
22784/12
In
the matter between:
KOTHUIS
(PTY) LTD
.....................................................................................
Applicant
and
PROVINCIAL
MINISTER OF CULTURAL AFFAIRS
AND
SPORT, WESTERN CAPE
.........................................................
First
Respondent
HERITAGE
WESTERN CAPE
................................................
Second
Respondent
STELLENBOSCH
INTEREST GROUP
.....................................
Third
Respondent
STELLENBOSCH
HERITAGE FOUNDATION
.......................
Fourth
Respondent
THE CHAIRPERSON,
INDEPENDENT APPEAL
TRIBUNAL
............................................................................................
Fifth
Respondent
JUDGMENT
DELIVERED: 20 SEPTEMBER 2013
FOURIE, J:
INTRODUCTION
[1] In and during
1986,Mr. AndréPieterse, a director of applicant, acquired
certain immovable property,known as Erf 9547,
Stellenbosch(“the
property”). The property borders on two well-known streets in
Stellenbosch, namely Dorp Street and
Andringa Street. Pieterse
reconstructed and restored the existing historical buildings and
established the Stellenbosch Hotel on
the property.
[2] Due to the
restoration of the buildings, a portion of the property was declared
a national monument on 27 June 1986. During
the late 1980’s, a
four-storey annex to the hotel was constructed. On 16 March 1989, the
property was registered in applicant’s
name.
[3] Since the
commencement of the National Heritage Resources Act 25 of 1999 (“the
Act”), the portion of the property
that had been declared a
national monument, is now regarded as a provincial heritage site as
contemplated in the Act.
[4] Since
approximately 2007, applicant has attempted to obtain permission to
enable it toadd six rooms to the existing hotel building.
As the
hotel buildings enjoy formal protection as a heritage site in terms
of the Act, a permit has to be obtained from second
respondent in
terms of section 27 (18) of the Act, authorising the addition of the
six rooms.
[5] After initial
unsuccessful attempts by applicant to obtain the necessary permit,
second respondent’s Built Environment
and Landscape
Committee (“Belcom”) eventually granted the
applicationand on 10 January 2012, second respondent issued
the
necessary permit authorising the extension of the hotel by the
addition of six rooms.
[6] The Belcom
decision was then taken on appeal by third and fourth respondents,
but second respondent’s appeal committee
dismissed the appeal.
Thereupon, third and fourth respondents lodged a further appeal with
first respondent, who appointed an independent
appeal tribunal (“the
tribunal”) to consider the appeal in terms of section 49 (2) of
the Act.
[7] On 5 June 2012,
the tribunal upheld third and fourth respondents’ appeal,
thereby effectively revoking the permit granted
by second
respondentto applicant to extend the hotel by the addition of six
rooms.
[8] Pursuant
thereto, applicant brought the present application, in which it seeks
an order reviewing and setting aside the decision
of the tribunal
upholding the appeal of third and fourth respondents.
[9] First and second
respondents do not oppose the application for review and have given
formal notice of their intention to abide
the decision of the court.
No notice of intention to oppose the application for review has been
given by third and fourth respondents.
[10] However, the
tribunal, represented by its chairperson(fifth respondent), has given
notice of its intention to oppose the application
and fifth
respondent has deposed to an opposing affidavit, in which he deals at
length with the merits of the application and prays
that the
application be dismissed with costs.
GROUNDS OF REVIEW
[11] The grounds of
review relied upon by applicant, are summarised as follows in
paragraph 58 of its heads of argument:
“
Kothuis
contends that, in taking the decision, the tribunal took irrelevant
considerations into account while failing to consider
relevant
considerations, including updated information as regards the heritage
grading of the various components of the hotel,
resulting in the
decision being taken arbitrarily or capriciously, and not rationally
connected to the information before the tribunal
or to the reasons
given by the tribunal for the decision.”
[12] The review
application is predicated upon the provisions of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”).
In
particular, applicant purports to rely on sections 6 (2) (e) (iii); 6
(2) (e) (vi); 6 (2) (f) (ii) (cc) and 6 (2) (h) of PAJA.
[13] In addition,
applicant contends that the tribunal was biased and that it took its
decision in bad faith (Section 6 (2)(a)(iii)
of PAJA). Finally,
applicant submits that the court, upon reviewing and setting aside
the tribunal’s decision, should itself
take the decision, as
envisaged in section 8 (1) (c) (ii) (aa) of PAJA.
[14] I should add
that it is not in dispute that the impugned decision of the tribunal
constitutes “
administrative action”
, as defined in
section 1 of PAJA. Therefore, the decision would, in appropriate
circumstances, be reviewable in terms of the provisions
of PAJA.
APPLICABLE LEGAL
PRINCIPLES
[15] In
Seafront
For All and Another v MEC, Environmental and Development Planning,
Western Cape and Others
2011 (3) SA 55
, a two judge court of this
Division emphasised, at para 29, that judicial review is in essence
concerned, not with the decision,
but with the decision-making
process. Review is not directed at correcting a decision on the
merits, but, in general terms, concerned
with the legality of the
decision.
[16] In the recent
decision of the Supreme Court of Appeal, in
MEC for Environmental
Affairs and Development Planning vClairison’s
CC,(408/2012)
[2013] ZASCA 82
(31 May 2013) the following was said:
“
It
bears repeating that a review is not concerned with the correctness
of a decision made by a functionary but with whether he performed
the
function with which he was entrusted. When the law entrusts a
functionary with a discretion it means just that: the law gives
recognition to the evaluation made by the functionary to whom the
discretion is entrusted, and it is not open to a court to
second-guess
his evaluation. The role of a court is no more than to
ensure that the decision-maker has performed the function with which
he
was entrusted.”
[17] As to the
findings made by a tribunal of experts, the following was said in
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para 48:
“
A
court should thus give due weight to findings of fact and policy
decisions made by those with special expertise and experience
in the
field…a decision that requires an equilibrium to be struck
between a range of competing interests or considerations
and which is
to be taken by a person or institution with specific expertise in
that area, must be shown respect by the courts.
Often a power will
identify a goal to be achieved, but will not dictate which route
should be followed to achieve that goal. In
such circumstances a
court should pay respect to the route selected by the decision
maker.”
[18] In
Corrans v
MEC for the Department of Sport, Recreation, Arts and Culture,
Eastern Cape and Others
2009 (5) SA 512
(ECG) at para 21, it was
stressed that, in a review application under the Act, “…
a
court of law must give due weight to policy decisions and findings of
fact by a decision-making body, particularly where, as here,
the
decision appears to conform to the overall scheme of the
legislation.”
[19] However, this
does not mean that, where the decision of the decision-making body is
not reasonably supported on the facts or
not reasonable in the light
of the reasons for it, a court may not review that decision. As was
stated in
Bato Star
at para 48, “
a court should not
rubber-stamp an unreasonable decision simply because of the
complexity of the decision or the identity of the
decision-maker”.
[20] Notwithstanding
the blunderbuss approach adopted by applicant in its founding papers,
I believe that a proper analysis of the
grounds relied upon by
applicant, shows that the review is essentially one based on the
absence of rationality on the part of the
tribunal. Section 6(2) (f)
(ii) (cc) of PAJA confers the power to review administrative action
judicially if the action itself
is not rationally connected to the
information before the decision-making body.
[21] In
Carephone
(Pty) Ltd v Marcus NO and Others
1999 (3) SA 304
, the Labour
Appeal Court put the question to be asked by the court in a
rationality based review, as follows at para 31:
“
Is
there a rational objective basis justifying the conclusion made by
the administrative decision-maker between the material properly
available to him and the conclusion he or she eventually arrived at?”
[22] This
formulation has been approved by the Supreme Court of Appeal in the
context of section 6 (2) (f) (ii) of PAJA, in
Trinity Broadcasting
(Ciskei) v Independent Communications Authority of South Africa
2004 (3) SA 346
, as follows at para 21:
“
In
the application of that test
(the
rationality test)
,
the reviewing court will ask: is there a rational objective basis
justifying the connection made by the administrative decision-maker
between the material made available and the conclusion arrived at”.
RELEVANT
PROVISIONS OF THE ACT
[23] In the preamble
to the Act, it is recorded that the purpose of the Act is,
inter
alia
, to introduce an integrated and interactive system for the
management of our national heritage resources. In so doing, heritage
resources authorities, such as second respondent, are empowered to
prescribe principles for the management of heritage resources.
In
terms of section 5 of the Act, general principles for heritage
resources management are laid down and sub-section (6) requires
that
policy, administrative practice and legislation must promote the
integration of heritage resources conservation in urban and
rural
planning and social and economic development. Further, sub-section 5
(7) (d) prescribes that the identification, assessment
and management
of the heritage resources of South Africa, must contribute to social
and economic development.
[24] Section 49 of
the Act, provides for a system of appeals, firstly to a provincial
heritage resources committee against a Belcom
decision, and,
thereafter, an appeal to the Minister or MEC, who shall then appoint
a tribunal, consisting of three experts, having
expertise regarding
the matter in question, to adjudicate the appeal.
[25] In terms of
section 49 (3) of the Act, the tribunal must, in adjudicating the
appeal, have due regard to:
(a) the cultural
significance of the heritage resources in question;
(b) heritage
conservation principles; and
(c) any other
relevant factor which is brought to its attention by the appellant or
the heritage resources authority.
THE TRIBUNAL’S
REASONS FOR UPHOLDING THE APPEAL
[26] In a written
communication of 5 June 2012, first respondent recorded that the
tribunal had arrived at its decision for the
following reasons:
(a) Applicant’s
proposed development - in its re-submitted form - continues to have a
negative impact on the site.
(b) Applicant
restored the historic buildings, thereby restoring heritage value to
those buildings which have to be protected.
(c) Despite the
reduction in height of the proposed addition of approximately 0,990
metres, the negative impact of the addition
is still evident. The
courtyard as“
open space”
, around which historic
buildings are grouped, is an important element of the whole ensemble
that makes upthe historic fabric of
this part of Dorp Street,
Stellenbosch. By filling up this last remaining open space with a new
building, the historic value of
the buildings will be negatively
impacted upon.
(d) The re-submitted
development proposal has in essence not addressed the concerns raised
by the previous appeals process -the
site remains over-developed; the
“
open-space quality”
of the courtyard is highly
compromised and the development has a negative impact on the
surrounding historic buildings. In this
regard, reference is made to
previous findings of other entities dealing with the proposed
development.
(e) Having regard to
the cultural significance and provincial heritage status of the
grouping of buildings in question and the important
prevalence of
open space/courtyard places which make up the nature of the built
fabric in this area and form part of the historic
landscape/streetscape of Dorp Street, Stellenbosch, the revised
proposal is out of character and continues to have a negative impact.
[27] In his opposing
affidavit, fifth respondent provides further detail regarding the
grounds upon which the tribunal reached its
decision. It is clear
from the material before the court, that the essence of the decision
of the tribunal pertains to the historic
and heritage value placed by
it on the courtyard of the hotel as open space, situated within its
surrounding context. In this regard
fifth respondent stresses, what
the tribunal perceived to be, the negative impact on the site by
virtue of its over-development.
[28] As to the
approach followed by the tribunal, fifth respondent says that there
are a number of principles in the Act, which
must be applied when
assessing heritage applications, some of which may be in conflict
with each other and require a balancing
exercise. He reiterated that
it is a very difficult argument to what extent you permit change on a
site to the point that it compromises
the fundamental values of the
site. He adds that experts may legitimately differ on that question.
DISCUSSION
[29] I should
mention that, during argument, the parties appeared to be
ad idem
that the wording of section 49 (3) of the Act, indicates that an
appeal to the tribunal isa “wide” appeal, and not
an
appeal in the ordinary restricted legal sense. Section 49 (3)
expressly requires the tribunal to have regard to any relevant
factor
brought to its attention by the appellant or the heritage resources
authority. This is indicative of a wide appeal which,
effectively,
constitutes a hearing
de novo
.
[30] In my view, it
is important to note that Pieterse and applicant, as the owners of
the property, reconstructed the historic
buildings on the site,
thereby restoring heritage value to those buildings. There can be no
doubt that this heritage value has
to be protected in a manner which
is consonant with the overall scheme of the Act. In this regard, I
believe it is necessary to
bear in mind whatMr. Andrew Hall, the
Chief Executive Officer of second respondent, had to say about the
purpose of the Act, during
his presentation to the tribunal. He put
it as follows:
“
We
are no longer dealing with memorialisation of sites and we live now
in a dynamic world where heritage is part of dynamism of
society and
the Act makes provision for that and we’re required to take
that into consideration.”
[31] Hall added
that, in performing their functions, the heritage authorities are
required to strike a balance between the need
for conservation and
the need for development. As I have mentioned earlier, section 5 (6)
of the Act expressly requires the promotion
of the integration of
heritage resources conservation and social and economic development.
Section 5 (7) (d) of the Act requires
that the management of our
heritage resources must contribute to social and economic
development.
[32] Seeing that the
courtyard occupies centre stage in this application, it is necessary
to have regard to the origin thereof.
It now seems to be common cause
that the existing form of the courtyard was created as an integral
part of the establishment of
the Stellenbosch hotel, when the hotel
buildings were constructed in the 1980’s. As it currently
exists, the courtyard has
no specific historical reference,as a
courtyard, within the context of the heritage site. In fact, it did
not exist as a courtyard
before the construction of the hotel. It
appears that the correct approach would be to regard the courtyard as
open space which
may have heritage value in its setting adjacent to
the surrounding reconstructed buildings.
[33] The reasoning
of the tribunal, as appears from its written reasons, is that by
“
filling up this last remaining open space with a new
building, the historic value of the buildings will be negatively
impacted upon.”
It seems to me that this overstates the
factual position, as the courtyard itself will not be filled up with
a new building. In
his opposing affidavit,fifth respondent seems to
alter this stance, by rather stressing the impeding of the view from
within the
courtyard by the proposed development. He says that,
currently, one is able to view historic aspects of the surrounding
buildings
from within the courtyard. Therefore, the “
open-space
quality”
of the courtyard would be highly compromised by
the proposed development.
[34] It appears to
me that, on the strength of the evidence before the tribunal, the
“
open-space quality”
of the courtyard isseriously
overstated. In fact, the courtyard is the product of the
reconstruction of traditional buildings on
the site and the addition
of a four-storey annex that forms part of the hotel building. Also,
according to applicant’s representatives,
one does not have the
views from the courtyard as described by fifth respondent, as only
persons staying in the rooms on the third
and fourth floors of the
annex,would have such views. Upon completion of the proposed addition
only the fourth floor rooms will
have such views. I should add that
the impression gained from the photographs before the court, is that
the courtyard seems to
be a by-product of the construction of the
hotel and its annex, and that any view from the courtyard, at
present, is rather limited.
[35] In any event,
it should be borne in mind that the footprint of the courtyard will
not at all be restricted by the proposed
addition of six rooms. The
planned intrusion by balconies into the courtyard,as initially
envisaged, has also been removed. All
of this has substantially
mitigated any negative impact on the courtyard as open space.
[36] Further,it
appears that,initially,the major heritage concern was that the
addition of the six rooms would have a visual impact
on the
streetscape and negatively affect how one experiences the historical
Dorp Street from a pedestrian level. This concern has
been
substantially alleviatedby lowering the proposed extension by
approximately one metre. Also, the existing foot-print of the
building would not be extended, as the new rooms are to be
constructed on top of the existing kitchen. As depicted in the
photographs
at pages 95-6 of the record, this would result in the
extension being hardly noticeable from Dorp and Andringa Streets.
[37] It appears to
me that, having regard to the aforesaid mitigatory measures, and
considering the proposed development within
the context of the
existing reconstructed buildings and the four-storey annex to the
hotel, the conclusion that the proposed addition
would have a
material negative impact on its surroundings,cannot be rationally
justified. In this regard, it is important to note
that second
respondent’s Belcom, as well as its internal appeal committee,
were satisfied that the addition should be given
the green light. It
is also significant to note that, after the proposal was initially
rejected by second respondent, applicant
amended the building plans
and consulted with second respondent in taking measures to ameliorate
the impact of the addition. In
view thereof, second respondent, as
the authority responsible for the management of heritage resources in
the Western Cape, approved
of the changed plans and its Belcom
granted the application for a permit in terms of section 27 (18) of
the Act.
[38] In addition
thereto, applicant’s proposals were submitted to the Aesthetics
Committee of the Stellenbosch Municipality,
which approved the
building plans after mitigatory measures were taken to limit the
scale of the additions. Local architects, as
well as representatives
of various local heritage bodies and municipal officials,constitute
this committee.
[39] As indicated
above, I believe that it is important to bear in mind that second
respondent has no objection to the addition
being added in accordance
with the amended plans. Hall explained the reasoning of second
respondent to the tribunal.This would
certainly have been a relevant
factor to be taken into account by the tribunal in terms of section
49 (3) of the Act. Strangely
enough, the tribunal appears to have
been of the view that the evidence of Hall should be approached with
circumspection. This
approach of the tribunal was apparently prompted
by Hall’s statement that second respondent sided with applicant
and collaborated
with applicant’s representative in preparing
their presentations to the tribunal.
[40] In so doing,
the tribunal, in my view, failed to consider the second respondent’s
views objectively and independently.
The fact that second respondent
approved of the proposed development and supported applicant in the
hearing before the tribunal,
certainly does not mean that second
respondent’s views are tainted to the extent that it should be
approached with circumspection.
There is nothing to indicate that
second respondent did not approach this matter professionally and in
accordance with sound heritage
conservation principles. This is borne
out by the evidence presented by Hall to the tribunal. As I see it,
second respondent, through
Hall, complied with its duty to give its
objective views and state its stance with regard to the application.
[41] It does not
necessarily follow that the tribunal failed to take account of second
respondent’s views, but in approaching
it with circumspection,
the reasonable inference is that it failed to adequately consider the
merits of second respondent’s
views and to have due regard
thereto, as required by section 49 (3) (c) of the Act. The view of
the tribunal, that the submissions
made on behalf of second
respondent should be approached with circumspection, is reiterated in
fifth respondent’s opposing
affidavit.
[42] In my view, the
tribunal thereby failed to pay sufficient attention to an important
aspect raised by Hall in his submissions
to the tribunal. This
relates to the management and conservation of heritage resources in
the context of urban planning, where
social and economic development
issues are to be considered. A perusal of the reasons furnished by
the tribunal for its decision,
shows that no reference at all is made
to the impact upon social and economic development.
[43] I have already
alluded to the submissions of Hall, in which he stressed the
importance of striking a balance between the need
for conservation,
on the one hand, and the need for development, on the other. I have
also referred to section 5 (7) (d) of the
Act which expressly
requires that the management of heritage resources must contribute to
social and economic development.
[44] The record
shows that Hall,
inter alia
, made the following submissions in
this regard:
“
One
of the considerations in this project is that these extra rooms are
needed in order to allow this hotel to house an entire tour
bus and
till that happens there are issues of economic viability, they cannot
tap into
(this?)
aspect
of the tourism market and that is something that we have to take into
consideration in balancing the desires of the community
concerned and
the need for a viable business on the site…When we are dealing
with heritage resources that are in private
hands considerations have
to be different, there’s a reality that we have to deal with
but would not do us credit- it doesn’t
do us credit as a
heritage resources agency to take decisions of this sort that SIG
(third respondent)
would
like us to and that is the problem here. We might like to consider
that courtyard or whatever you call that space but the
way that the
Act requires us to look at things, the way that we are required to
consider economic necessity and needs, determine
that isn’t
always possible for us to operate on an idealistic way.”
[45] In considering
this issue, I believe it is important to stress that Pieterse, and
thereafter applicant, reconstructed the old
buildings to serve as a
hotel. The hotel was extended and by all accounts it is a popular
abode in Stellenbosch and provides much-needed
accommodation for the
busy tourist centre that the town of Stellenbosch has become.
According to the submissions made on behalf
of applicant, the modern
trend is for hotels to offer enough beds for a busload of tourists to
be accommodated in tour stop-overs.
To keep up with this current
trend, the Stellenbosch hotel will have to add more rooms. Not doing
so, the submission continues,
will limit the business and, over time,
the economic viability of the hotel. This could have a negative
impact on the heritage
resources and it is important to bear in mind
that, since the complex was restored in the 1980’s, it has
remained in an excellent
state of repair and has continually been
used as an hotel providing good service and accommodation.
[46] These
submissions made on behalf of applicant,do not appear to have been
gainsaid by third and fourth respondents at the hearing
before the
tribunal. It is significant to note that, although it did not form
part of the material considered by the tribunal,
third
respondent’srepresentative responded rather emotively at the
hearing before an earlier tribunal, by stating that Pieterse
had
“
made enough money”
and should not be allowed to
construct the proposed six additional hotel rooms. An unguarded and
apparently unsubstantiated statement
of this nature, raises a concern
about the sincerity of third respondent’s opposition to the
proposed development.
[47] As mentioned
earlier, the reasons furnished for the tribunal’s decision, do
not indicate that socio-economic considerations
were taken into
account in arriving at the decision to uphold the appeal. In his
opposing affidavit in the present application,
fifth respondent deals
with the issue of economic considerations, as follows in
sub-paragraph 37.8:
“
The
tribunal took into account the applicant’s economic development
considerations. The applicant has been able to maximise
development
opportunities in respect of the historic property and has extracted
substantial development value.”
Also, in
sub-paragraph 37.2, fifth respondent states that applicant has
extracted economic benefit from the restoration and its
associated
heritage status.
[48] Whilst it is so
that applicant has extracted some economic benefit from the
restoration of the buildings, by conducting the
hotel business, it is
not clear to me what is meant by the statement that applicant has
been able “
to maximise development opportunities
”.
In any event, the evidence seems to the contrary. Also, fifth
respondent does not say to what extent applicant’s
economic
development considerations were taken into account by the tribunal,
nor does he indicate what impact (if any) such considerations
may
have had upon the decision of the tribunal to uphold the appeal. Nor
does one find any evidence of an attempt by the tribunal
to strike a
balance between the need for conservation and the need for
development.
[49] Returning to
the reasons furnished for the decision of the tribunal, it appears
that the tribunal was of the view that the
re-submitted development
proposal has in essence not addressed the concerns raised in the
earlier appeals process. In particular,
reference is made to the
reasoning of a former appeal committee of second respondent and a
former independent appeal tribunal,
that the proposed development
will have a negative impact on the courtyard, which is described as
one of the few remaining examples
of a courtyard on a provincial
heritage site in the area. As explained earlier, the courtyard has no
specific historical reference
within the context of this heritage
site. The earlier concerns raised in this regard, are accordingly
unfounded and ought not to
have been relied upon by the tribunal as a
reason why the proposed development would have a negative impact on
the surrounding
historic buildings.
[50] As to the
perceived negative impact on the surrounding historic buildings, it
does not appear to me thatthe addition of six
rooms would,in a manner
of speaking, push it beyond the tolerance level. On the contrary, I
am of the view that this perception
is not justified on the evidence
placed before the tribunal. The evidence shows that the additional
six rooms are to be erected
on the existing footprint of the kitchen
and would be similar to the already existingfour storey annex, which
forms the northern
boundary of the courtyard. The annex forms part of
a building complex which also houses a number of apartments, a
restaurant, conference
venues, shops and an underground parking. It
has to be borne in mind that the site has been sectionalised and that
the open backyard
to the north, as it existed historically, has been
fully utilised for this sectional title development, which includes
the annex.
The courtyard is a creation of the developments on the
site and it was constructed in this manner to allow access to the
reception
of the hotel by means of the courtyard.
[51] As I have
mentioned earlier, the main concern of those objecting to the
development, initially centred on the negative impact
which it could
have on the streetscape from Dorp Street. This concern has been taken
care of by the lowering of the proposed extension
by approximately
one metre. This has prompted all the other experts in the field, who
formed part of the various committees described
above, to approve the
proposed development. It seems to me that the perceived negative
impact which the development in its reduced
form may have, has been
grossly over-emphasised by those opposing the development. It rather
seems to me that, if one objectively
balances the extent of any
negative impact which the proposed development may have, against the
economic necessity to have the
hotel extended by six rooms, thus
enhancing its viability, the scale should, for the reasons aforesaid,
tip convincingly in favour
of allowing the development to proceed.
[52] In my opinion,
the decision of the tribunal to uphold the appeal, was, in these
circumstances, irrational in relation to the
evidence placed before
it. Put differently, there is, in my view, on the evidence before the
tribunal, no rational objective basis
justifying the upholding of the
appeal.
[53] I have come to
this conclusion, whilst accepting that the balancing of possibly
competing heritage principles is, most appropriately,
undertaken by
heritage experts, such as the members the tribunal. I furthermore
accept, as stated by fifth respondent, that it
is difficult to decide
to what extent change on a site should be permitted to the point that
it compromises the fundamental heritage
values of the site. Experts
could certainly legitimately differ on this question and, therefore,
a court should not lightly interfere
when experts have reached a
decision in this regard.
[54] However, I
believe that, for the reasons furnished, the present is a case where
the court should interfere, by virtue of the
fact that the tribunal
did not come to a rational decision on the evidence before it.In my
view, this decision of the tribunal,
which is not only at odds with
the views of second respondent, but also with the Belcom
decision; the decision of second
respondent’s appeal committee
and the decision of the Aesthetics Committee of the Stellenbosch
Municipality, should accordingly
be reviewed and set aside.
COSTS OF THE
REVIEW APPLICATION
[55] I was initially
rather surprised by thetribunal’s vigorousopposition of the
application for review. It was the only party
that opposed the
application, although it has no personal interest in the outcome
thereof. Upon reflection, I believe that there
was sufficient reason
for the tribunal to defend its own decision on review. In particular,
as applicant’s papers included
criticism pertaining to the
manner in which the tribunal’s decision was taken, as well as
allegationsthat the tribunal was
biased and that its decision was
taken in bad faith.
[56] In view of
these serious allegations, the members of the tribunal were certainly
justified in filing affidavits under oath
to defend their integrity.
I should add that, in any event, there is no evidence at all on the
papers that the tribunal acted in
bad faith or displayed bias. In the
circumstances, I believe that, although the tribunal has been
unsuccessful in its opposition,
no costs order should be made against
its members.
[57] It was
submitted on behalf of applicant that first respondent should be held
responsible for the costs of the application,
notwithstanding his
decision to abide the outcome of the proceedings. Applicant argued
that, in appointing the tribunal, first
respondent exercised a
statutory duty for which his office should take responsibility.
[58] I do not agree
with this submission. First respondent was required in terms of the
Act to appoint the tribunal, but, once appointed,
the tribunal acts
independently. It cannot be just and equitable to saddle first
respondent with the liability for costs, where
the independent
tribunal decided to unsuccessfully oppose the review application.
Particularly so, in circumstances where first
respondent has not
opposed the application and abides the decision of the court.
[59] I believe that,
in the exercise of my discretion in this regard, no order as to costs
should be made.
SECTION
8(1)(c)(ii)(aa) OF PAJA
[60] This section of
PAJA provides that a court may itself vary or substitute an impugned
administrative decision in exceptional
circumstances. PAJA does not
offer guidelines as to what exceptional circumstances are, but the
point of departure should be that,
in the ordinary course, a court
will refer the matter back because the court will be slow to assume a
discretion which has by statute
been entrusted to another functionary
or repository of power. See the restatement of the law in this regard
in
University of the Western Cape & Others v Member of the
Executive Committee for Health and Social Services & Others
1998(3) SA 124 (C) at 130I-131I.
[61] Our courts have
through the years acknowledged certain circumstances in which a court
would be prepared to substitute its own
decision for that of an
administrative or statutory body. There is, however, no
numerusclausus
of the instances in which a court may so
decide. What the court has to do, is to have regard to the peculiar
circumstances of the
case, to determine whether it would be fair for
the court to take the decision itself rather than refer it back to
the appropriate
functionary.
[62] I believe that
the present is a case where exceptional circumstances exist,
requiring the court to take the decision itself
rather than referring
the matter back to the tribunal. The circumstances are the following:
a) The merits and
demerits of the addition of six rooms to the hotel building, have
received exhaustive ventilation over a number
of years. The
application to obtain the necessary permit has not only been the
subject of discussion and decision by the various
tribunals and
committees referred to above, but in the present review application
all the relevant material has again been aired
and debated
exhaustively.
b) All the relevant
information and documentation is before the court. There is no
suggestion that further evidence or information
exists which could
possibly lead to a different result.
c) The tribunal has
expressed itself in such clear terms in opposing the review
application, that its members would find it extremely
difficult to
re-assess the matter objectively.
d) To request first
respondent to appoint a new tribunal for a re-hearing of the appeal,
will necessarily lead to delay and resultant
prejudice to the
applicant.
e) In my view, the
outcome of the application should be inevitable. This is not only the
finding of the court, but also the view
of second respondent; second
respondent’s Belcom committee; second respondent’s appeal
committee and the Aesthetics
Committee of the Stellenbosch
Municipality. In the circumstances, I believe that this court is best
placed to determine the matter
finally.
ORDER
[63] In the result,
I make the following order:
1. The decision
dated 5 June 2012, taken by the independent appeal tribunal pursuant
to section 49(2) of the National Heritage Resources
Act 25 of 1999
(“the Act”), upholding third and fourth respondents’
appeal against a decision of second respondent’s
appeal
committee which, in turn, had refused third and fourth respondents’
appeal against a decision of second respondent’s
Built
Environment and Landscape Committee to grant applicant’s
application for a permit in terms of section 27(18) of the
Act to
allow certain additions to the Stellenbosch Hotel buildings situated
on Erf 9547, Stellenbosch, is reviewed and set aside.
2. Pursuant to the
provisions of
section 8(1)(c)(ii)(aa)
of the
Promotion of
Administrative Justice Act 3 of 2000
, the third and fourth
respondents’ appeal in terms of section 49 (2) of the Act, is
dismissed.
3. Pursuant to the
provisions of
section 8
(1) (d) of the
Promotion of Administrative
Justice Act 3 of 2000
, it is declared that the permit issued by
second respondent on 10 January 2012, in terms of
section 27
(18) of
the Act,to allow certain additions to the Stellenbosch Hotel
buildings situated on Erf 9547, Stellenbosch, is valid and
binding.
4. No order as to
costs is made.
_________________
P B Fourie, J
Counsel
for Applicant : Adv. Jan-HendrikRoux (SC)
:
Adv. Susan Van Zyl
Counsel
for Fifth Respondent : Adv. S Rosenberg (SC)
Attorney for
Applicant : Thomson Wilks (Mr. Derek Wille)
Attorney for Fifth
Respondent : State Attorney, Cape Town
Date(s) of hearing :
1 August2013
Date of Judgment :
20 September 2013