Premier, Western Cape v Faircape Property Developers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Harms JA, Schutz JA, Cameron JA, Lewis JA and Shongwe AJA
• Judgment Date: 07 May 2003
• Docket Number: 41/2002
• Hearing Date: 18 March 2003
• Counsel: J A van der Westhuizen SC (with him A de V la Grange) for the appellant. S P Rosenberg for the respondent.
• Court: Supreme Court of Appeal

Lewis JA:

[1] This appeal concerns the liability in delict of a provincial government for damages allegedly caused by an administrative decision to remove certain title deed restrictions. The decision was subsequently set aside on J

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review. [1] Broadly, what this Court is called upon to decide is whether the conduct is A actionable at the instance of the person in whose favour the decision was made. The question of liability in turn depends on whether the conduct complained of was wrongful, negligent and the cause of any damage suffered.

[2] The appeal is against a decision of the Cape High Court (per Davis J, and with his leave) which found that the B appellant was liable in damages for the wrongful and negligent conduct of the then provincial Minister of Agriculture, Planning and Tourism (Western Cape) (the Minister). The judgment is reported: Faircape Property Developers (Pty) Ltd v Premier, Western Cape [2] (to which I shall refer as 'Faircape 2'). The dispute between the parties has a long C and complex history. An exception taken by the appellant (the defendant) on the basis, inter alia, that the allegations of the respondent (the plaintiff, referred to as 'Faircape') did not support the conclusion that the Minister had acted unlawfully was dismissed, also by Davis J, and that decision (to which I shall refer as 'Faircape 1') is also reported. [3] D

[3] The facts giving rise to the litigation (and which are common cause) are traversed fully in the review decision and in Faircape 2. Accordingly I shall set them out only briefly. The owner of an erf in Vredehoek, Cape Town, Mr Diekmann, wished to develop his property, or to sell it to a developer. In terms of the Land Use Planning Ordinance 15 of 1985 (C) the erf had been zoned E 'general residential use R4' (which permitted its use for 'double dwelling houses, dwelling houses, groups of dwelling houses, places of worship, residential buildings'). However, Diekmann was not able to proceed with development because of restrictive conditions in the title deed, imposed in 1936 in terms of the Township Ordinance 13 of 1927 F (C), which appeared to preclude the building of more than one dwelling on the erf.

[4] On 19 May 1995, in terms of the Removal of Restrictions Act 84 of 1967, Diekmann, represented by his attorney, applied for the removal of the restrictions. The Act conferred the power to determine such applications upon the former Administrators of provinces. Acting G in terms of the transitional provisions of the interim Constitution of the Republic of South Africa Act 200 of 1993, the President had assigned the administration of the Act to a competent authority designated by the Premier of a province, and had altered the definition of 'townships board' in the Act to mean, in relation to the Western H Cape, the Planning Advisory Board established under Ordinance 15 of 1985. The Premier of the Western Cape, in turn, had designated the provincial Minister of Agriculture, Planning and Tourism as the competent authority to administer the Act in that province. I

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[5] The application was required first to be lodged with the local authority. A copy had also to be forwarded by the applicant to A the Director-General of the Provincial Administration. On receipt of the application the Director-General was required, in terms of s 3(6) of the Act, to cause a notice calling for objections to be published in the Provincial Gazette and in a newspaper. In terms of s 4(1), the application, together with any objections and relevant documents, had then to be considered by the planning advisory board, B which had to make a recommendation to the Minister. The local authority was in turn required to forward a copy of the application together with its comments and recommendation, to the Director-General. In terms of s 4(2), the Minister, upon consideration of the application, the recommendation of the planning advisory board, the comments and C recommendation of the local authority and of other relevant material, was empowered to grant or refuse the application, subject to such conditions as the Minister saw fit to impose (s 3(1)).

[6] Diekmann's application followed the requisite procedure, and used the prescribed form, which required him to state the purpose D for which the property would be used if the application were successful. The response written in was 'the erection of townhouses'. In reply to the request for the reasons for the application Diekmann stated:

'The property has already been rezoned by the Council as general residential and the removal of the title deed restrictions will bring E the title deed situation in line with the zoning by the local authority.'

[7] A notice was published in the Provincial Gazette and in two newspapers, as required by s 3(6), which stated that the purpose of the removal of the restrictions was for 'the erection of townhouses'. The attorney also sent letters to certain owners of land F in the area of the erf, in which he enclosed copies of the notice as advertised.

[8] After the application had been lodged and advertised, Diekmann sold the erf to a Mrs Getz, who wished to erect townhouses on the land, and who had had sketch plans for that purpose prepared. The sketch plans indicated that four double-storey townhouses were to be G constructed on the erf.

[9] During June and July 1995 a number of objections to the removal of the restrictions was received by the local authority (the Cape Town City Council, the second respondent in the review matter) expressing the fear that the removal of the restrictions in the title H deed would make it possible for a building as high as seven storeys to be erected. The attorney countered these objections by pointing out, inter alia, that, according to the Getz sketch plans, the proposed development would comprise only two levels. I

[10] The persons who later applied for the setting aside of the Minister's decision to remove the restrictions did not at that stage lodge objections, either because the notice of the application to remove the restrictive conditions had not come to their attention, or because they had no objection to the erection of double-storey townhouses. The City Planner J

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recommended that the restrictions be removed. A

[11] The sale of the erf to Getz was, however, cancelled, and on 1 November 1995 Faircape signed a written offer to purchase it from Diekmann, who accepted the offer on 21 November. Faircape proposed to erect a five-storey block of flats. But before this sale was concluded, on 15 November 1995 the Urban Planning Committee of the local authority met to hear oral representations in connection with B the objections to the original application. The committee had before it the City Planner's report, and the application was thus debated by all concerned on the basis of the Getz proposal (which had by then, of course, fallen away) to erect double-storey townhouses although it was made clear to all that Diekmann intended to sell the property and did not regard himself or any successor bound to that proposal. C

[12] At its meeting the Urban Planning Committee passed a resolution adopting the recommendation of the City Planner, who, on 20 November, conveyed the decision to the Director-General, advising him that the local authority had 'no objection in principle D to the property being used for general residential R4 purposes (the erection of townhouses)'.

[13] The Getz sketch plans for double-storey townhouses either did not reach, or were overlooked by, the provincial authorities when they considered the application. Accordingly, on 30 January 1996, the Director-General requested the attorney to furnish 'a development plan indicating the proposal'. In response the attorney, now acting E for Faircape, furnished plans drawn by a firm of architects, Harries Levetan, for construction of a five-storey block of flats that Faircape proposed to build on the erf. These plans (the Faircape plans) were sent with the application to the planning advisory board. F

[14] The board ultimately recommended that the application for the removal of the restrictive conditions be approved, subject, inter alia, to the development being carried out according to the Faircape plans. The Head of the Department of Housing, Local Government and Planning conveyed this recommendation to the Minister in his report. Thus the stated purpose of the application that ultimately G came before the Minister - to permit the erection of a five-storey block of flats - was entirely different from the purpose of the application that had initially been made, advertised, objected to and then approved by the local authority. H

[15] In March 1996 the Minister, Mr Lambert Fick, having before him the report of the head of his department recommending the approval subject to the development being carried out according to the Faircape plans, approved the application in the form presented to him. On 29 March 1996 a notice was published in the Provincial Gazette, stating that 'the Premier hereby removes I conditions 2(b) and (c) [the restrictions]' contained in the title deed. Apart from the fact that the reference to 'the Premier' was incorrect - the decision having been taken by the Minister - the notice did not specify, as was required in terms of s 2(1) of the Act, that the removal of the restrictions was conditional on the J

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erection of a block of flats in accordance with the Faircape plans. A

[16] Faircape took transfer of the erf on 24 May 1996 and during July 1996 commenced building operations. Once it was apparent that the building was going to be a block of flats, rather than double-storey townhouses, a number of residents in the area objected. However, the local and provincial...