Oudekraal Estates (Pty) Ltd v City of Cape Town and Others

• Jurisdiction: South Africa
• Judge: Howie P, Cameron JA, Brand JA, Nugent JA and Southwood AJA
• Judgment Date: 28 May 2004
• Docket Number: 41/2003
• Hearing Date: 17 February 2004
• Counsel: A G Binns-Ward SC (with him P B J Farlam) for the appellant. M Seligson SC (with him J Muller) for the first respondent. A M Breitenbach (with him N Bawa) for the second respondent. R O Peterson SC (with him E W Fagan) for the fourth respondent.
• Court: Supreme Court of Appeal

Howie P et Nugent JA:

[1] This appeal raises important questions for the rule of law. It raises the question whether, or in what circumstances, an unlawful administrative act might simply be ignored, and on what basis the law G might give recognition to such acts.

[2] The appellant company is the owner of undeveloped land (erf 2802 Camps Bay) on the slopes of the Twelve Apostles on the Atlantic seaboard of the Cape Peninsula, adjacent to the suburb of Camps Bay. Its immediate predecessor in title secured the laying out and approval H of the land as a township in terms of the Townships Ordinance 33 of 1934 (Cape) (the ordinance). [1] The township establishment process involved, among other things, the then provincial Administrator's grant of permission to establish the township, an endorsement on the title deed to the land by the Registrar of Deeds to the effect that it had been laid out as a township, and the opening in I the deeds office of a township register.

Howie P et Nugent JA

The Administrator granted permission, subject to certain conditions. In 1957, the other A formalities were carried out, and the official notification in the Provincial Gazette of the township as approved occurred in 1962. It has since been referred to as Oudekraal Township.

[3] The appellant bought the land in 1965. The only material step it has taken to develop a township on the land consisted in the B submission in 1996 to the relevant local authority (the Cape Metropolitan Council) [2] of an application for approval of an engineering services plan. The response from the local authority was that the plan could not be approved because the development rights had lapsed. C

[4] In correspondence between the respective attorneys for the appellant and the local authority it emerged that the latter's stance was based on the alleged failure by the township applicant to comply timeously with two requirements of the ordinance. One was to lodge a general plan of the proposed township with the Surveyor-General for D approval. The other was to lodge the general plan as approved by the Surveyor-General with the Registrar of Deeds. For each lodgement a time limit was prescribed and in each case the Administrator was empowered to determine a further period for compliance. [3] Also in each case, if an applicant failed to comply within the prescribed or extended period, the ordinance provided that the Administrator's permission to E establish the township would 'be deemed to have lapsed'. [4] In respect of each lodgement an extension of time for compliance was granted by the Administrator. (In the case of lodgement with the Surveyor-General there were three extensions.) Each such extension was granted only after expiry of the prescribed period. The Cape Metropolitan Council's contention that F lapsing had occurred was based on the proposition that the Administrator's extensions after the respective prescribed periods were ultra vires. (It was also asserted, in any event, that the lodgements were not effected within the respective extended periods, but we have assumed in the appellant's favour that the lodgements were within the extended periods.) G

[5] Timeously lodged or not, a general plan as required by the ordinance was approved by the Surveyor-General and, with other documentation specified in the ordinance, [5] duly acted upon by the Registrar of Deeds. It was designated General H Plan TP 1781 LD.

Howie P et Nugent JA

[6] The appellant did not immediately turn to law to challenge A the refusal to approve the engineering services plan. Instead it attempted certain political initiatives to summon support for the township's development but to no avail.

[7] Eventually, in September 2001, the appellant applied to the Cape High Court for declaratory relief. In the notice of motion, as B amended later, three declarations were sought. The first two, broadly summarised, were to the effect that the extensions of time granted by the Administrator were intra vires and that the lodgement and approval of the general plan, its incorporation in the Deeds Registry records and every subsequent act involved in the establishment and approval of the township were all intra vires and of C full force and effect. The third read as follows:

'Declaring, in addition and in any event, that the applicant's development rights over Oudekraal Township (General Plan TP 1781 LD), on erf 2802 Camps Bay in the Municipality of Cape Town, Western Cape Province (previously known as Portion 7 of Cape Farm 902), notification of the approval of which was published in the Provincial D Gazette on 19 January 1962, under Public Notice 59 of 1962, are of full force and effect, and that the applicants have the right to subdivide the aforementioned land in accordance with General Plan TP 1781 LD.'

[8] The respondents in the Court below and on appeal are E these. The first respondent is the City of Cape Town which came into being in 1998 as the single successor in law to both the erstwhile City of Cape Town Municipality and the Cape Metropolitan Council. [6] (For convenience we shall refer to the first respondent as the City Council.)

[9] The second respondent is the Minister of Local F Government and Development Planning, Western Cape, being in law the successor of the erstwhile Administrator and having the power to perform certain duties in relation to conditions imposed, inter alia, in terms of the ordinance. [7]

[10] The third respondent is the South African Heritage Resources Agency which was established under the National Heritage G Resources Act 25 of 1999. [8] In terms of that Act [9] its function is to co-ordinate the management of what is called 'the national estate' which includes places of cultural significance, historical graves and sites of significance to the history of slavery in South Africa. [10] It was joined because of its 'potential interest' in the matter but no relief was sought against it. H

[11] The fourth respondent is South African National Parks (formerly the National Parks Board) established under the National Parks Act 57 of 1976. It is a corporate body and owns land adjoining the appellant's I

Howie P et Nugent JA

land. [11] It was similarly joined for its potential interest in the matter. A

[12] The appellant's application, which was opposed by all the respondents save for the second, was dismissed. The Court's judgment, given by Davis J, Veldhuizen J concurring, is reported in 2002 (6) SA 573 (C). Essential to its decision was the finding that the Administrator's extensions of time were invalid (at 587E - F). The B Court went on to say that the grant of the relief sought by the appellant would have the effect of proclaiming that an illegal action had somehow evolved into a legal decision and that would undermine the principle of legality. Taking that into account and, amongst other things, the fact that the existence of various Muslim burial sites on C the land had not been properly considered when the establishment of the township was approved (an issue that we deal with more fully below) the Court exercised what it took to be its discretion to permit a collateral challenge by the City Council to the validity of the Administrator's actions, and it refused to grant the declaratory relief. Leave to appeal was refused by the learned Judges but granted D by this Court. The appeal is opposed by the first, third and fourth respondents.

[13] In the view that we take of the case it is not necessary to decide whether the extensions of time that were granted by the Administrator were lawful. In our view, the matter can properly be E decided by focusing on the Administrator's grant of the application to establish Oudekraal Township. That was not an issue that was relied upon by the Cape Metropolitan Council initially when it refused to consider the engineering services plan. It was first pertinently raised by the fourth respondent (South African National Parks) in these F proceedings and was adopted by the City Council. Because of its centrality to the establishment of the township it has a crucial bearing on the third declarator, which is the central relief that was sought by the appellant.

[14] The evidence reveals that at various places on the land in question there are in all more than 20 graves. They have special religious and cultural significance to the members of Cape Town's Muslim community. Two of the graves are kramats. A kramat is the grave G of somebody who, among adherents of the Islamic faith, is regarded as having attained, through conspicuous piety, 'an enlightened spiritual situation'. Such person having thus been a 'friend of God', the spirit of God is to be found at the site. H

[15] The kramats and other graves on the land are also important cultural symbols in the Muslim community of its history in the Western Cape going back to the era of slavery. Many of the graves are those of escaped slaves and some of the kramats are the burial sites of spiritual leaders of the community during those times. It is believed I by followers of the faith that by spending time at these sites they can enhance their own spirituality. One of the kramats on the land encompassed by the

Howie P et Nugent JA

approved township is that of Sayed Jaffer. Thousands A visit it each year. Moreover, the indications are that the kramats generally have been visited regularly since before the end of the nineteenth century. In the circumstances, access to the kramats is of great importance to the Muslim people of Cape Town.

[16] The engineering services plan put before the Cape...