Administrator, Cape, and Another v Ikapa Town Council

• Jurisdiction: South Africa
• Citation: 1990 (2) SA 882 (A)

Administrator, Cape, and Another v Ikapa Town Council
1990 (2) SA 882 (A)

1990 (2) SA p882

Citation	1990 (2) SA 882 (A)
Court	Appellate Division
Judge	Joubert JA, Hoexter JA, Smalberger JA, Kumleben JA, Nienaber AJA
Heard	February 16, 1990
Judgment	March 29, 1990

Flynote : Sleutelwoorde

Blacks — Black local authority — Black Local Authorities Act 102 of B 1982 — Alteration of demarcation of area of jurisdiction of local C authority in terms of s 2(2)(b) of Act — Proceedings before Demarcation Board for Local Government Areas established in terms of s 7A of Promotion of Local Government Affairs Act 91 of 1983 — Request by Administrator in terms of s 7F(1)(a) of Act 91 of 1983 to Demarcation Board for advice regarding desirability of alteration of demarcation of D area of jurisdiction of local authority — Demarcation Board under a duty to observe audi alteram partem principle by according fair hearing to parties before it in the exercise of its statutory functions — Demarcation Board in its report making use of certain information acquired after hearing before the Board and which had not been disclosed to a party — On the facts, held that such information not of a material E nature and had not influenced Board in its recommendations to Administrator — Use of such information accordingly not reviewable irregularity vitiating recommendations of Board and decision of Administrator.

Headnote : Kopnota

Section 2(2)(b) of the Black Local Authorities Act 102 of 1982 empowered F the Administrator of the Cape, in certain circumstances, inter alia to alter the demarcation of the area of jurisdiction of a local authority, subject to prior consultation with the local authority concerned. In exercising this power, the Administrator is obliged to comply with the provisions of ss 7F and 7G of the Promotion of Local Government Affairs Act 91 of 1983. The Administrator had in terms of s 7F(1)(a) of Act 91 of 1983 requested the Demarcation Board for Local Government Areas, G established in terms of s 7A of the 1983 Act to advise him in writing regarding the desirability or otherwise of excising from the area of jurisdiction of the respondent council a portion falling within its area and of demarcating portion of the excised area, together with other areas, as the area of jurisdiction of a proposed new local authority. The Demarcation Board subsequently held a hearing at which certain parties appeared before it, including the respondent council, for the purpose of dealing with the Administrator's request. The Demarcation H Board thereafter unanimously recommended the proposed excision of part of the area of jurisdiction of the respondent council and the proposed formation of a new local authority. The Administrator thereafter decided in terms of s 2(2)(b) of Act 102 of 1982 to make the proposed excision and, in terms of s 2(1)(a) of the 1982 Act, to establish the proposed new local authority. The respondent council thereupon brought an application in a Provincial Division for the review and setting aside of the recommendation of the Demarcation Board and the decisions of the I Administrator. From the record of the proceedings before the Demarcation Board as well as from its report it appeared that the Demarcation Board had made use of certain information acquired by it after the hearing before it, which information had not been disclosed to the respondent council. The Provincial Division granted the respondent council's application, holding that the principles of natural justice, in particular the audi alteram partem principle, applied to the proceedings before the Demarcation Board and that the use by the Demarcation Board J of the after-acquired information

1990 (2) SA p883

A in its report accordingly constituted a reviewable irregularity vitiating the Administrator's decisions which were based on the report. The Court further found it to be unnecessary to decide the other grounds of review raised by the respondent council. In an appeal,

Held, that the purpose of the enquiry before the Demarcation Board as well as the ensuing report was to advise the Administrator on the desirability or otherwise of the proposed excision and demarcation; and such advice could have prejudicially affected the proprietary rights of B the respondent council in regard to a diminished area of jurisdiction with a concomitant loss of income from a reduced number of residents.

Held, further, that the Court a quo had correctly decided that the Demarcation Board was in the circumstances under a duty to observe the audi alteram partem principle by according the respondent council a fair hearing in the exercise of its statutory functions. C

Held, further, however, on the facts, that the after-acquired information was clearly not of a material nature nor had it influenced the Demarcation Board in its recommendations to the Administrator.

Held, accordingly, that the Court a quo was wrong in holding that the use in the report of the after-acquired information constituted a reviewable irregularity which vitiated both the recommendations of the D Demarcation Board and the decisions of the Administrator.

Held, further, on the facts, that none of the other grounds of review raised by the respondent council had any substance. Appeal allowed.

The decision in the Cape Provincial Division in Ikapa Town Council v Administrator, Cape, and Another reversed.

Case Information

Appeal from a decision in the Cape Provincial Division (Howie J and E Hoberman AJ). The facts appear from the judgment of Joubert JA.

W G Burger SC (with him W J Louw) for the appellants referred to the following authorities: As to the applicability of the audi alteram partem principle generally, see Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A) at 655, 660F - 662I, 665; Pretoria City Council v Modimola 1966 (3) SA 250 (A) at 261B - 262C. As to whether the F audi alteram partem principle applies to a hearing by the Demarcation Board under Act 91 of 1983, see Franklin and Others v Minister of Town and Country Planning [1948] AC 87 (HL) at 105 - 6; Cassem en 'n Ander v Oos-Kaapse Komitee van die Groepsgebiederaad en Andere 1959 (3) SA 651 (A) at 660A - B, 663A - E; Modimola's case supra; Strydom v Staatspresident, RSA, en 'n Ander 1987 (3) SA 74 (A); SA Defence and Aid G Fund v Minister of Justice 1967 (1) SA 263 (A) at 271A - E; Bell v Van Rensburg NO 1971 (3) SA 693 (C) at 707H - 708G, 709F - H, 713D, 723G - H; Bushell and Another v Secretary of State for the Environment [1980] 2 All ER 608 (HL) at 617f - h, 631g - 633h; R v Agricultural Dwelling House Advisory Committee (Halsbury's Monthly Review January 1987 at 3); Re H Lingley and Hickman 33 DLR (3d) 593 (Canada); Board of Education v Rice 1911 AC 179 at 182; Errington v Minister of Health [1935] 1 KB 249; De Smith Judicial Review of Administrative Action 4th ed at 233 - 7.

L R Dison SC (with him P A L Gamble) for the respondent referred to the following authorities: As to the applicability of the audi alteram partem principle to the proceedings before the Demarcation Board under I Act 91 of 1983, see Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A) at 662H; Publications Control Board v Central News Agency Ltd 1970 (3) SA 479 (A) at 488H - 489A; Mahon v Air New Zealand 1984 AC 808 (PC) at 820F - H, 821B - C 828D ([1984] 3 All ER 20 at 210a - c, 210d - e, 215h); Administrator, Transvaal and Others v Traub and J Others (unreported

1990 (2) SA p884

A Appellate Division judgment 24 August 1989); [*] Oberholzer v Padraad van Outjo 1974 (4) SA 870 (A) at 875 in fine - 876A; Bushell and Another v Secretary of State for the Environment 1981 AC 75 ([1980] 2 All ER 608); Re Nicholson and Haldimend-Norfolk Regional Board 88 DLR (3d) 671 (Canada) at 680 - 1; Re Energy Probe and Atomic Energy Control Board 8 DLR (4th) 735 (Canada) at 739 - 40; Grundling v B Van Rensburg NO 1984 (4) SA 680 (W) at 689B - C; Wiseman v Borneman 1971 AC 297 (HL) at 308 ([1969] 3 All ER 275); Re Pergamon Press Ltd 1971 Ch 388 at 399 ([1970] 3 All ER 535 at 539); R v Gaming Board of Great Britain, Ex parte Benaim [1970] 2 QB 417 ([1970] 2 All ER 528 at 533F); Crow v Detained Mental Patients Special Board 1985 (4) SA 83 (ZH) at 96; Cassem v Oos-Kaapse C Komitee van die Groepsgebiederaad en Andere 1959 (3) SA 651 (A); SA Defence and Aid Fund v Minister of Justice 1967 (1) SA 263 (A); Transvaal Indian Congress v Land Tenure Advisory Board 1955 (1) SA 85 (T); Wade Administrative Law 6th ed at 533, 570 - 2; Lloyd v McMahon 1987 AC 625 (HL) at 702H - 703A ([1987] 1 All ER 1118 at 1161d - e); Baxter D Administrative Law at 553 - 4, 585 - 7; Peri-Urban Areas Health Board v Administrator, Transvaal 1961 (3) SA 669 (T); R v Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456 at 490C - F ([1965] 1 All ER 81 at 95F - H); Public Disclosure Commission v Isaacs [1989] 1 All ER 137 (PC) at 142d - f; R v Deputy Industrial Injuries Commissioner, Ex parte Jones [1962] 2 QB 677 (CA) at 685 - 6 ([1962] 2 All ER 430 at E 432E - I); Wright v Kroonstad Municipality 1916 OPD 257 at 259, 260, 262; Katz v Peri-Urban Areas Health Board 1950 (1) SA 306 (T) at 309; Greatrex Knitwear (Pty) Ltd v Viljoen 1960 (3) SA 338 (T) at 343A; Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 584G, 586; Welkom Village Management Board v Leteno 1958 (1) SA 490 (A) at 502; F Singh v Umzinto River Licensing Board 1963 (1) SA 872 (D) at 876G - H; Bushell's case supra at 121 (AC) 631 - 2 (All ER); R v Agricultural Dwelling House Committee (22 November 1986, cited in Halsbury's Monthly Review January 1987 No 308); Errington v Minister of Health [1935] 1 KB 249; Frost v Minister of Health [1935] 1 KB 292; Denby William & Sons v G Minister of Health [1936] KB 337 (CA) at 342, 347; Ngcobo v Chief Native...