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

• Jurisdiction: South Africa
• Citation: 2004 (6) SA 222 (SCA)

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222 (SCA)

2004 (6) SA p222

Citation	2004 (6) SA 222 (SCA)
Case No	41/2003
Court	Supreme Court of Appeal
Judge	Howie P, Cameron JA, Brand JA, Nugent JA and Southwood AJA
Heard	February 17, 2004
Judgment	May 28, 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.

Flynote : Sleutelwoorde G

Administrative law — Administrative act — Validity of — Permission to establish township — Presence on land of religious H and cultural sites of particular significance to sector of community factor that should properly have been taken into account and evaluated, also on I pre-constitutional principles, in coming to decision whether to permit establishment of township — Failure to consider said factor leading to invalidity of approval.

Administrative law — Administrative act — Invalidity of — Consequences of invalidity — Until invalid administrative action set aside by court in proceedings for judicial review, it exists in fact and it has legal consequences that cannot simply be overlooked. J

2004 (6) SA p223

Administrative law — Decision of functionary — Collateral challenge to validity A of — Decision to approve township — Whether collateral challenge to validity of decision misplaced — Approval, being no more than permission to landowner to develop land in particular way, taking effect once steps prescribed by ordinance complied with — On proper construction of relevant ordinance, validity of each step not B dependent on validity of Administrator's approval, but merely upon fact that it was given.

Headnote : Kopnota

This appeal raised the question whether, or in what circumstances, an unlawful administrative act might simply be ignored, and on what basis the law might give recognition to such acts. The appellant company was the owner of undeveloped land. Its immediate predecessor in title secured the laying out and approval of the land as a township in C terms of the Townships Ordinance 33 of 1934 (C). 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 the deeds office of a township register. The Administrator granted D permission, subject to certain conditions. In 1957, the other formalities were carried out, and the official notification in the Provincial Gazette of the township as approved occurred in 1962. The appellant bought the land in 1965. The only material step it had taken to develop a township on the land consisted in the submission in 1996 to the relevant local authority of an application for approval of an engineering services plan. The response from the local authority E was that the plan could not be approved because the development rights had lapsed. This stance was based on the alleged failure by the appellant to comply timeously with two requirements of the ordinance. One was the lodging of a general plan of the proposed township with the Surveyor-General for approval, and the other the lodging of the general F plan as approved by the Surveyor-General with the Registrar of Deeds. A time limit was prescribed for each lodgement and in each case the Administrator was empowered to determine a further period for compliance. If an applicant failed to comply within the prescribed or extended period, the ordinance provided that the Administrator's permission to establish the township had to 'be deemed to have lapsed'. In respect of each lodgement an extension of time for G compliance was granted by the Administrator. Extensions were granted only after expiry of the prescribed period. The Cape Metropolitan Council's contention that lapsing had occurred was based on the proposition that the Administrator's extensions after the respective prescribed periods were ultra vires. 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 H ordinance, duly acted upon by the Registrar of Deeds. The appellant unsuccessfully applied to the Cape High Court for declaratory relief 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 full force and effect. I On appeal,

Held, that it was not necessary to decide whether the extensions of time that were granted by the Administrator were lawful as the matter could properly be decided by focusing on the Administrator's grant of the application to establish the township. (Paragraph [13] at 238D/E - E/F.)

Held, further, that the evidence revealed that at various places on the land in J

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question there were in all more than 20 graves. A They had special religious and cultural significance to the members of Cape Town's Muslim community. The engineering services plan put before the Cape Metropolitan Council in 1996 reflected the details of the general plan as well as the location of the graves and two kramats. The general plan showed none of the graves. What has been found of the B documentation comprising or accompanying the township application made no reference to them either. Nor do the conditions, which were imposed by the Administrator when granting the application. If the presence of the graves had been known to the officials concerned they would have seen with no difficulty what impact implementation of the plan would have on the existence and physical integrity of the burial sites. (Paragraphs [14], [16] and [17] at 238G, 239B, 239D and 239E - F.) C

Held, further, that the only inferences to be drawn were first, that the applicant for the township made no reference to the graves with the result that all the officials concerned, and particularly the Administrator, were ignorant of their existence. The second, in the alternative, was that if their existence was known it was ignored. There simply was no other realistic inference D notwithstanding that not all the relevant documents were available. (Paragraph [20] at 240D - E.)

Held, further, that there could be no doubt, however, that the presence on the land of religious and cultural sites of particular significance to a sector of the Cape Town community was a factor that should properly have been taken into account and evaluated, also on E pre-Constitutional principles, in coming to the decision whether to permit the establishment of a township. (Paragraph [24] at 241D - E.)

Held, further, that whether the Administrator, as the ultimate decision-maker, was ignorant of the graves and kramats or not, the inescapable conclusion must be that he either failed to take account of material information because it was not all before him or, F in the unlikely event that it was before him, that he wrongly left it out of the reckoning when he should have taken it into account. In either situation his decision to lend approval on the terms he granted was invalid. It was, in addition, in either event ultra vires for the reason that it permitted subdivisions and land use in criminal disregard for the graves and kramats. It would be impossible to avoid desecration or violation if one were to make a road G over a grave site or to build over it. (Paragraph [25] at 241E - G.)

Held, further, that for those reasons it was clear that the Administrator's permission was unlawful and invalid at the outset. But the question that arose was what consequences followed from the conclusion that the Administrator acted unlawfully. Was the permission H that was granted by the Administrator simply to be disregarded as if it had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator's approval and all its consequences merely because it believed that they were invalid provided that its belief was correct? (Paragraph [26] at 241G - 242A.)

Held, further, that it was not. Until the I Administrator's approval (and thus also the consequences of the approval) was set aside by a court in proceedings for judicial review it existed in fact and it had legal consequences that could not simply be overlooked. The proper functioning of a modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject took of the validity of the act in question. No doubt it was for this reason that our law had always J

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recognised that even an unlawful administrative act A was capable of producing legally valid consequences for so long as the unlawful act was not set aside. (Paragraph [26] at 242A - C.)

Held, further, that the proper enquiry was not whether the initial act was valid but rather whether its substantive validity was a necessary precondition for the validity of consequent acts. If the validity of consequent acts was dependent on no more than the B factual existence of the initial act, then the consequent act would have legal effect for so long as the initial act was not set aside by a competent court. (Paragraph [31] at 243H - 244A/B.)

Held, further, that just as some consequences might be dependent for validity upon the mere factual existence of the contested administrative act, so there might be consequences that would depend for their legal force upon the substantive validity of the...