Corium (Pty) Ltd and Others v Myburgh Park Langebaan (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Conradie J
• Judgment Date: 01 November 1991
• Citation: 1993 (1) SA 853 (C)
• Hearing Date: 30 October 1991
• Court: Cape Provincial Division

Corium (Pty) Ltd and Others v Myburgh Park Langebaan (Pty) Ltd and Others
1993 (1) SA 853 (C)

1993 (1) SA p853

Citation	1993 (1) SA 853 (C)
Court	Cape Provincial Division
Judge	Conradie J
Heard	October 30, 1991
Judgment	November 1, 1991

Flynote : Sleutelwoorde B

Nature conservation — Nature area proclaimed with view to eventual incorporation into national park — Provincial Administrator, purporting C to act in terms of s 8(1)(a) of Physical Planning Act 88 of 1967, granting permit for development of township on nature area land — Neighbouring landowner, having received no prior notice of grant of permit, seeking interim interdict preventing developer from proceeding with development pending review of validity of permit — Right to which applicant claiming entitlement not simply right to bring review proceedings, but expectation D of securing relief — Section 13B of Physical Planning Act providing for State President to assign administration of any provision of Act to Minister or Administrator by proclamation in Gazette — Administrator not designated by proclamation to issue permit, but claiming authority by virtue of minute of State President's office compiled pursuant to s 15(1) E of Provincial Government Act 69 of 1986 — Court holding that s 15(1) of Provincial Government Act not intended to apply to situation where statute itself creating mechanism for determining who was to administer Act — In any event, in accordance with rule embodied in generalis specialibus non F derogant maxim, Provincial Government Act not to be interpreted as detracting from specific provisions of Physical Planning Act — Applicant thus establishing prima facie right entitled to protection — Unchallenged evidence that development would cause irreparable harm to planned extension of national park satisfying requirement of apprehension of irreparable harm — Balance of convenience favouring applicant, inter G alia, because grant of permit effectively negating earlier proclamation of land as nature area, and nature areas held to be national assets of immense importance — Interdict granted.

Provincial government — Administrator — Acts of — Validity of — Purporting to act in terms of s 8(1)(a) of Physical Planning Act 88 of H 1967, granting permit for development of township on land proclaimed a nature area — Section 13B of Physical Planning Act providing for State President to assign administration of any provision of Act to Minister or Administrator by proclamation in Gazette — Administrator not designated I by proclamation to issue permit, but claiming authority by virtue of minute of State President's office compiled pursuant to s 15(1) of Provincial Government Act 69 of 1986 — Section 15(1) relating to 'any law which entrusts to a Minister . . . any power, duty or function' — Physical Planning Act not itself entrusting any power, duty, or function, but instead creating machinery whereby such power, duty or function to be J entrusted by State President to

1993 (1) SA p854

A Minister — Section 15(1) of Provincial Government Act not intended to apply to situation where statute itself creating mechanism for determining who was to administer Act - In any event, in accordance with rule embodied in generalis specialibus non derogant maxim, Provincial Government Act not to be interpreted as detracting from specific provisions of Physical Planning Act. B

Headnote : Kopnota

The first respondent, a property developer, had been granted a permit by the third respondent, being the Administrator of the Cape Province, purporting to act in terms of s 8(1)(a) of the Physical Planning Act 88 of 1967 to develop a township on land which had been proclaimed a nature area C with a view to its eventual incorporation into the West Coast National Park. The applicants sought an interim interdict restraining the first respondent from proceeding with the installation of services or with the building on or developing of the land pending the outcome of proceedings to review the validity of the decision to grant the permit. Section 13B of the Act provided that the 'State President may by proclamation in the D Gazette assign the administration of any provision of this Act to any Minister or the Administrator of a province'. Section 1, the definition section, provided that '"Minister", in relation to any provision of this Act, means the Minister or Administrator to whom the administration of that provision has been assigned by proclamation issued under s 13B'.

It was the applicants' case that the third respondent had not been authorised to issue the permit allowing the first respondent to develop a township in a declared nature area. While it was conceded that the third respondent had not been designated by proclamation to issue permits, it E was argued that he nonetheless had had the power to do so delegated to him by a minute of the State President's office, which minute had purported to transfer to the third respondent the authority to issue permits which by proclamation the State President had earlier vested in the Minister. The minute had been compiled pursuant to the provisions of s 15(1) of the Provincial Government Act 69 of 1986 which, prior to its amendment in 1988, provided that the 'State President may assign the administration of F any provision in any law which entrusts to a Minister referred to in s 20(b) or (c) of the Republic of South Africa Constitution Act 110 of 1983 any power, duty or function to the Administrator of any province'.

Held, that the prima facie right to which the applicants claimed to be entitled was not simply the right to bring review proceedings, but the expectation of securing relief which, if it prima facie appeared to be legitimate, was entitled to protection.

Held, further, that while s 15(1) of the Provincial Government Act related to 'any law which [entrusted] to a Minister . . . any power, duty or G function', the Physical Planning Act did not itself entrust any power, duty or function to a Minister: it only created the machinery whereby such power, duty or function was to be entrusted by the State President to a Minister.

Held, further, that s 15(1) of the Provincial Government Act was meant to apply to cases where a statute or perhaps some other statutory instrument conferred power on a particular Minister and...