Administrator, Cape v Associated Buildings Ltd

• Jurisdiction: South Africa
• Judge: Fagan CJ, Schreiner JA, Reynolds JA, Beyers JA and Malan JA
• Judgment Date: 26 March 1957
• Court: Appellate Division

Fagan, C.J.:

The respondent is a company which owns certain land, in extent approximately 54 acres, on the slopes of Devil's Peak, part of Table Mountain, Cape Town. In November 1950 it applied in terms of the C Townships Ordinance (Cape), 33 of 1934, as amended, for leave to establish a township on a portion, approximately 24 acres in extent, of that land. The application was in due course considered by the municipal authorities and other interested bodies including the Townships Board. In September 1954 the respondent's attorneys received from the Secretary D of the Townships Board a copy of the conditions on which the Board proposed to recommend the approval of the scheme to the Administrator, under a covering letter asking whether the applicant had any comments to offer. Subject to an item with which the Board had omitted to deal, relating to the erection of flats, the respondent was satisfied with the conditions. Further correspondence followed and, on the 15th July, 1955, E the respondent's attorneys received a letter, signed on behalf of the Provincial Secretary, informing them that the Administrator had granted approval of the application in terms of sec. 18 of the Ordinance subject to the conditions set out in an annexure to the letter. These conditions contained two new clauses which the respondent was not prepared to F accept. On the 29th August its attorneys wrote to the Provincial Secretary stating its objection, with a request

'that the matter be reconsidered by His Honour the Administrator and that the conditions imposed by the new clauses be deleted.'

On the 13th September the attorneys received a reply, signed 'E. A. Bouchier for Provincial Secretary', informing them that the deletion of G the conditions could not be agreed to. They thereupon, on 7th October, wrote to the Provincial Secretary to say that the township owners intended moving the Supreme Court for relief if the two clauses to which they objected were not deleted from the conditions within fifteen days. They followed up this intimation with a further letter, dated 11th H November, to which they received a reply, dated 17th November, again signed by Mr. Bouchier for the Provincial Secretary, saying:

'With reference to your letter of the 11th November, 1955, I am directed to inform you that, on receipt thereof, the matter was referred to the Townships Board. On receipt of its reply, the Executive Committee gave careful consideration to your demand for the deletion of conditions 6 (c) and 16 relating to the reservation of commonage in connection with the establishment of the Vredehoek Township Extension No. 4, but has resolved that it is not prepared

Fagan CJ

to accede to your demand and will contest any legal action which may be taken by you for the deletion of these conditions, which must remain part of the conditions under which the Township is approved.'

The next step was a notice of motion, dated 17th March, 1956, in which the applicant (the present respondent) asked the Court for an order declaring the two clauses to be ultra vires the Administrator and A deleting them from the conditions, for alternative relief, and for costs of suit. A supporting affidavit was filed by a director of the company, a replying affidavit by the Administrator, and a further affidavit in reply to that by the director. From the Administrator's affidavit it appeared that neither he nor the Provincial Secretary had given personal attention to the matter until the latter received the letter of the 7th B October, threatening legal proceedings unless the offending clauses were deleted. Up to that time the matter had been dealt with by the Under-Secretary Local Government (Mr. Bouchier),

'through whom',

said the Administrator,

'the Provincial Secretary (to whom my powers under sec. 18 of the C Townships Ordinance 33 of 1934 have been delegated by virtue of sec. 1 of Ord. 6 of 1931) acts'.

It was Mr. Bouchier who had introduced the fresh clauses and who had decided, in response to the respondent's objection to them by the letter of the 29th August, that their deletion could not be agreed to.

When the case was heard in the Provincial Division on June 5th and 6th, D 1956, the Court postponed the hearing in order to permit Mr. Bouchier to file an affidavit to explain how the decision conveyed to the respondent's attorneys by the letter of the 15th July, 1955, stating the conditions on which the Administrator was said to have granted approval of the application, had come to be taken by him. Mr. Bouchier and the E Administrator each filed a further affidavit. In support of his authority to act for the Administrator, Mr. Bouchier said:

'The powers of His Honour the Administrator, in regard to certain matters including the establishment of townships under sec. 18 of Ord. 33 of 1934, have since 1949 been delegated to the Provincial Secretary in terms of sec.. 1 of Ord. 6 of 1931, and by virtue of sub-sec. (3) of F the section last-mentioned, in regard to such matters the Provincial Secretary acts through myself.'

The relevant provisions of Ord. 6 of 1931, as amended by Ord. 9 of 1937, read as follows:

'1 (1) The Administrator may . . . delegate to the Provincial Secretary . . . any powers conferred on him by any Ordinance . . ..

(3) When any power is delegated to the Provincial Secretary as aforesaid, he may act thereunder through any officer under his control.'

G In a judgment delivered by BEYERS, J., and concurred in by HERBSTEIN, J., the Provincial Division held that Mr. Bouchier was not competent to take a decision which secs. 18 (2) and 61 quater of the Townships Ordinance required the Administrator to take; that the decision subsequently taken by the Administrator in Executive Committee (vide the meaning assigned to the word 'Administrator' by the Interpretation H Ordinance, 4 of 1911 sec. 2) was also not a decision in terms of the Ordinance, as

'having delegated his authority to the Provincial Secretary and the latter official or somebody to whom he had delegated his powers having completed the matter delegated to him, the Administrator could not thereafter handle the matter himself';

and

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'at most the Administrator was deciding whether or not to comply with the demand made on applicant's behalf'.

The Court accordingly considered it unnecessary to deal at all with the arguments addressed to it by counsel on the merits of the decision contained in the letter of the 15th July, 1955, and it granted an order -

A 'Declaring the approval intimated to applicant under cover of the letter, from the Administrator, dated 15th July, 1955, as also the conditions attached to the said letter as null and void and of no effect in law; and

That respondent (i.e. the Administrator) do pay the costs of these proceedings.'

It is on an appeal by the Administrator from this order that the matter is now before us, and the arguments advanced to us by counsel covered B both the question whether a decision on the company's application had been taken by someone competent to do so under the Townships Ordinance and whether the disputed conditions are such as the Administrator has power to impose.

BEYERS, J., referred in his judgment to Shidiack v Union Government, 1912 AD 642, in which INNES, A.C.J., said at p. 648:

'No doubt a public officer may for ordinary ministerial purposes act C through a deputy. But where the Legislature places upon any official the responsibility of exercising a discretion which the nature of the subject matter and the language of the section show can only be properly exercised in a judicial spirit, then that responsibility cannot be vicariously discharged. The persons concerned have a right to demand the judgment of the specially selected officer.'

D He regarded these words as being of peculiar application to the approval or refusal of a township plan. He mentioned sec. 18 (2) of the Ordinance in which it is provided that

'the Administrator, after considering the Board's recommendations and any representations made by the local authority concerned, may grant or refuse the application'

and

E 'may after consultation with the Board make such modifications in the conditions recommended by the Board as he may think fit,'

and sec. 61 quater, which reads:

'When the Administrator in terms of this Ordinance grants approval, authority or exemption or upholds an appeal, he may do so subject to such conditions as he may deem fit and as may be lawfully complied with.'

He held that it follows clearly from the provisions of sec. 1 (1) of F Ord. 6 of 1931...