Knop v Johannesburg City Council

• Jurisdiction: South Africa

Knop v Johannesburg City Council
1995 (2) SA 1 (A)

1995 (2) SA p1

Citation	1995 (2) SA 1 (A)
Case No	669/92
Court	Appellate Division
Judge	Botha JA, Hefer JA, Vivier JA, Nienaber JA, Howie JA
Heard	September 23, 1994
Judgment	November 18, 1994

Flynote : Sleutelwoorde

B Administrative law — Statutory powers — Exercise of — Liability for negligent exercise of — Liability sought to be imposed for negligence in decision-making — Distinction between quasi-judicial and purely administrative decisions of little value in resolving issue whether negligence in making decision gives rise to delictual liability — No C justification for treating such distinction as touchstone for determining liability for loss caused by negligent exercise of statutory powers — Assuming negligence present, liability dependent upon question whether public authority's conduct wrongful — Nature of public authority's function requiring to be closely scrutinised — Such only one of D circumstances to be considered — No point in straining to categorise function as quasi-judicial or administrative — Not possible to lay down hard and fast rules as to when duty of care arises.

Administrative law — Statutory powers — Exercise of — Liability for negligent exercise of — Liability sought to be imposed for negligence in E decision-making — In view of clear distinction between fault and unlawfulness, enquiry into existence of legal duty discrete from enquiry into negligence — General nature of enquiry into existence of legal duty set out — Enquiry encompassing application of general criterion of reasonableness, having regard to legal convictions of community as F assessed by Court.

Township — Town planning scheme — Application in terms of s 92 of Town-planning and Townships Ordinance 15 of 1986 (T) for subdivision of erf — Refusal of — Whether negligent refusal of application giving rise to delictual action for damages — Procedure provided by s 139 of ordinance G whereby aggrieved applicant can

1995 (2) SA p2

A obtain relief against such refusal — Such showing by necessary implication that legislature not intending negligently incorrect refusal to give rise to action for damages — Although local authority to exercise due care in dealing with such applications, it would be contrary to objective B criterion of reasonableness to hold local authority liable for negligent refusal of application — Such refusal not giving rise to delictual claim for damages.

Township — Town planning scheme — Application in terms of s 92 of Town-planning and Township Ordinance 15 of 1986 (T) for subdivision of erf — Granting of — Subdivision in conflict with town planning scheme-Whether C negligent granting of application giving rise to delictual action for damages by applicant for subdivision — Section 92(5) of ordinance prohibiting exercise of powers under s 92(2) if result in conflict with town planning scheme — Object of section not to protect applicant against economic loss, but to promote public order by ensuring that township D development takes place in accordance with scheme and in furtherance of general purpose of scheme as set out in s 19 of ordinance — Applicant for subdivision to ensure proposed subdivision complies with scheme — Local authority's approval of defective application not a breach of any legal duty owed by it to applicant for subdivision — Applicant having no delictual action against local authority for negligent approval of his E application.

Headnote : Kopnota

If the distinction between quasi-judicial and purely administrative decisions is of little use in solving problems in the context of the justiciability of a decision on the ground of failure to act fairly (see F Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A) at 759A-C, 762F-H, 762H-763E, 763E-I and 763I-J), it is equally of little value in resolving the issue whether negligence in the making of the decision gives rise to liability for damages in delict. (At 20C/D-D/E.) In South African law there is no justification for treating the distinction between quasi-judicial and purely administrative functions as the touchstone for determining a public authority's liability for loss caused by the negligent exercise of statutory powers. (At 22B-C.)

The question whether a public authority is liable in damages for G negligence in exercising its statutory functions (on the assumption that it was indeed negligent) must depend on the answer to the question whether its conduct was wrongful. In considering this question the nature of the public authority's functions will certainly require close scrutiny. But two observations must immediately be added. Firstly, the nature of the functions is but one of the circumstances calling for consideration; as always, to determine the issue of wrongfulness, all the circumstances of the case fall to be considered. Secondly, to determine the issue of H wrongfulness, there is no point in straining to categorise the functions of the public authority as either quasi-judicial or purely administrative. The following remarks made in Mutual Life & Citizens' Assurance Co Ltd and Another v Evatt [1971] 1 All ER 150 (PC) at 162c are particularly apposite: 'In our judgment it is not possible to lay down hard and fast rules as to when a duty of care arises in this or in any other class of case where negligence is alleged. When in the past Judges have attempted to lay down rigid rules or classifications or categories they have later I had to be abandoned.' (At 24G/H-25B.)

As is evident from, inter alia, the clear distinction in South African law between fault and unlawfulness, the enquiry into the existence of a legal duty is discrete from the enquiry into negligence. The existence of the legal duty to prevent loss is a conclusion of law depending on a consideration of all the circumstances of the case. The general nature of the enquiry is stated in the well-known passage in Fleming The Law of Torts 4th ed at 136: 'In short, the recognition of a duty of care is the outcome of a value judgment, that the plaintiff's invaded interest is J deemed worthy

1995 (2) SA p3

A of legal protection against negligent interference by conduct of the kind alleged against the defendant. In the decision whether or not there is a duty, many factors interplay; the hand of history, our ideas of morals and justice, the convenience of administering the rule and our social ideas as to where the loss should fall. Hence, the incidence and extent of duties are liable to adjustment in the light of constant shifts and changes in community attitudes.' The enquiry encompasses the application of the general criterion of reasonableness, having regard to the legal B convictions of the community as assessed by the Court (At 27E/F-I.)

The fact that the legislature has in s 139 of the Town-Planning and Townships Ordinance 15 of 1986 (T) prescribed a particular form of procedure by which an aggrieved applicant, in an application under s 92 of the ordinance for the subdivision of an erf in a township, can obtain relief against the refusal of his application shows by necessary implication that it did not intend a negligently incorrect refusal to give C rise to an action for damages. As to the broader considerations of policy, on the one hand an aggrieved applicant does not need an action for damages to protect his interests; he has readily at hand the appeal procedure provided within the legislative framework. On the other hand, considerations of convenience militate strongly against allowing an action for damages; the threat of such an action would unduly hamper the expeditious consideration and disposal of applications by the local D authority in the first instance. That is not to say that the local authority need not exercise due care in dealing with applications; of course it must, but the point is that it would be contrary to the objective criterion of reasonableness to hold the local authority liable for damages if it should turn out that it acted negligently in refusing an application, when the applicant has a convenient remedy at hand to obtain the approval he is seeking. To allow an action for damages in those circumstances would offend the legal convictions of the community. Therefore, the refusal of an application for the subdivision of an erf in E a township, through an error due to negligence, is not a wrongful act giving rise to a delictual claim for damages. (At 33B-F.)

Section 92(5) of the ordinance prohibits a local authority from exercising its powers under s 92(2) if it will bring about a result which is in conflict with a provision of a town planning scheme applicable to the erf in respect of which an application for its subdivision has been made. The section no doubt imposes a duty on the local authority to ensure that the F proposed subdivision will not fall foul of the provisions of the scheme in question, but it is not a duty owed by the local authority to the applicant for subdivision. The object of the provision is certainly not to protect an applicant against economic loss. Its object is to promote public order by ensuring that township development takes place in accordance with the applicable scheme, in the interests of the inhabitants of the area as a whole and in the furtherance of the precepts governing the general purpose of the scheme as set out in s 19 of the ordinance. (At G 33I-34B.) An applicant for subdivision of an erf must ensure that his proposed subdivision complies with the provisions of the town planning scheme. The purpose of the supervisory powers conferred on a local authority by s 92(5) is to promote orderly township development in the public interest, and not to safeguard the plaintiff against pure economic loss flowing from the approval of a subdivision which is in conflict with the town...