Bullock NO and Others v Provincial Government, North West Province, and Another

• Jurisdiction: South Africa
• Judge: Howie P, Conradie JA, Cloete JA, Jones AJA and Southwood AJA
• Judgment Date: 30 March 2004
• Citation: 2004 (5) SA 262 (SCA)
• Docket Number: 44/03
• Hearing Date: 26 February 2004
• Counsel: P J van Blerk SC (with him B M Slon) for the appellants. G L Grobler SC (with him J P Verster) for the respondents.
• Court: Supreme Court of Appeal

Cloete JA:

[1] The present appeal raises the question whether the disposal by an organ of State of a right in property vested in it may be administrative action and, if so, who has standing to approach a court for different forms of relief. I

[2] The appellants are the trustees of the Transvaal Yacht Club ('the TYC'). The TYC is the owner of immovable property on the northern side of the Hartebeestpoort Dam. The second respondent, an individual, owns immovable property which is almost adjacent to the TYC's property on the latter property's western side. On the southern boundary J

Cloete JA

of both properties is the northern foreshore of the dam, ownership of A which is vested in the first respondent, the Provincial Government of the North West Province.

[3] The TYC has operated a yacht club on its property continuously since 1922. It has the right to use the foreshore immediately to the south of its property. It has also since 1969 B occupied the property immediately to the south of the second respondent's property (to which I shall refer, for the sake of convenience, as 'the relevant foreshore') in terms of a series of leases concluded on behalf of the first respondent's predecessors in title. The first lease was concluded on 6 June 1969. The final lease expired on 31 July 2001. The later leases were for periods C of nine years and 11 months.

[4] Whilst in occupation of the relevant foreshore, the TYC erected a number of improvements thereon. According to the appellants, these improvements 'are vital to the continued operation of the yacht club'. The TYC accordingly wished to conclude a further lease with the first respondent entitling it to continue to occupy D the relevant foreshore. To this end, in December 1999 representatives of the TYC entered into protracted negotiations with the Department of Water Affairs and Forestry and thereafter, representatives of the first respondent.

[5] Unbeknown to the representatives of the TYC, the officials of the Department of Water Affairs and (until a late stage) E the representatives of the first respondent, the Premier of the first respondent had already on 29 July 1999 approved the registration of a servitude over the relevant foreshore in favour of the property owned by the second respondent. The Premier's decision was based on legal advice that the second respondent was entitled to the servitude because of the provisions of a contract with F one Schoeman entered into by the Government on 5 January 1918, part of which was embodied in a notarial contract registered on 3 October 1922 in the Register of Miscellaneous Contracts. According to the advice received by the Premier, Schoeman's rights in the notarial contract had devolved upon the second respondent. Ultimately, the G first respondent informed the TYC in a letter dated 12 October 2001 that it had decided not to enter into a further lease. An official of the first respondent had, in the meantime, on 18 April 2001, executed a power of attorney for registration of the servitude and a notarial deed of servitude had been executed on 12 July 2001. H

[6] The appellants brought motion proceedings for an order setting aside the decision of the Premier to register the servitude and remitting the question whether such a servitude should be granted, to the first respondent for reconsideration after the TYC had been afforded an opportunity to make representations in this regard. The appellants relied for this relief on the provisions of the Promotion of I Administrative Justice Act 3 of 2000 ('the Act'). They averred that the TYC had had a legitimate expectation that the most recent lease agreement in respect of the relevant foreshore would be renewed, or at least that the TYC would be afforded a proper hearing before a decision was taken by the first respondent whether or not to renew such lease. The Court below J

Cloete JA

(Hartzenberg J) concluded that the advice given A to the Premier was correct and that because the decision of the Premier was to give effect to a contractual obligation owed by the first respondent to the second respondent, the Premier's decision did not constitute administrative action and was not reviewable under the Act. The TYC has appealed to this Court with the leave of the Court below. B

[7] The Act only came into operation on 29 November 2000, ie 16 months after the Premier's decision had been taken. Accordingly, any rights which the appellants had to have that decision set aside have to be sought in item 23(2)(b) of Schedule 6 to the 1996 Constitution, which provides that at the relevant time s 33(1) and (2) of the Constitution had to be read as follows: C

'Every person has the right to -

(a)

lawful administrative action where any of their rights or interests is affected or threatened;

(b)

procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened; D

(c)

be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action have been made public; and

(d)

administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened.' E

[8] The appellants' counsel submitted that the grant of the power of attorney for the registration of the servitude in itself amounted to an administrative decision which could be impugned in terms of the provisions of the Act, because it went beyond the authority which the Premier's decision conferred. The submission was that the Premier had merely decided to grant a servitude in favour of the second F respondent over the relevant foreshore whereas the power of attorney was to register an exclusive servitude in favour of the second respondent. There is no merit in this submission. The relevant part of the decision of the Premier read:

'I, in my capacity as constitutionally designated chief executive G authority of the Province of the North-West, hereby approve of the registration of the three outstanding servitudes, as described in the legal opinion of Adv J P Verster (dated 28 May 1998) subject to the conditions as stipulated in Notarial Agreement 99/1922M, dated 27 September 1922.'

The opinion was not annexed to the papers but a summary was. That summary said that a servitude for exclusive use of the relevant H foreshore should be registered in favour of the owner of the second respondent's...