South Peninsula Municipality v Evans and Others

• Jurisdiction: South Africa
• Judge: Hlope JP, Desai J and Van Heerden J
• Judgment Date: 09 May 2000
• Citation: 2001 (1) SA 271 (C)
• Docket Number: A703/98
• Hearing Date: 31 January 2000
• Counsel: W G Burger SC (with him A M Breitenbach) for the appellant. R P Hoffman SC (with him R G Goodman) for the respondents.
• Court: Cape Provincial Division

Van Heerden J:

Introduction H

This is an appeal against one of the orders handed down, in an application for judicial review, by Cleaver J during December 1997. The application succeeded in the Court a quo and the order I appealed against is the order setting aside, with costs, a resolution of the Transitional Metropolitan Substructure of Llandudno/Hout Bay dated 30 April 1996 entitled 'environmental damage resulting from road construction on erven 4868 and 4869 Hout Bay'. The sole ground of the appeal, which is brought with the leave of the Supreme Court of Appeal, is as follows: J

Van Heerden J

'. . . (H)is Lordship erred and/or misdirected himself in finding that the respondents [ie the applicants in the Court a quo] were not treated fairly and in accordance with the principles of natural justice in that they were not given notice of, or an opportunity to be heard in respect of the third resolution, as such failure to give respondents such notice or opportunity had not been alleged in the founding affidavits and had consequently not been canvassed in the answering affidavits or replying affidavits.'

(See the appellant's notice of appeal dated 10 June 1998.)

Mr Burger SC appeared together with Mr Breitenbach for the appellant. The respondents were represented in Court by Mr Hoffman SC who appeared together with Mr Goodman. C

Parties to the appeal

The appellant is the South Peninsula Municipality, a metropolitan local council established in terms of the Local Government Transition Act 209 of 1993 (as amended) and the successor in law to the Transitional D Metropolitan Substructure of Llandudno/Hout Bay (hereinafter referred to as 'the Llandudno/Hout Bay TMS'). The TMS was the first respondent in the proceedings in the Court a quo, the second respondent being the Cape Metropolitan Council, the metropolitan council established for the Cape Metropole in terms of the abovementioned Act 209 of 1993 (hereinafter referred to as 'the metropolitan council'). Pursuant to the reorganisation of local E government structures in the Cape Metropole, the area of jurisdiction of the Llandudno/Hout Bay TMS now falls within the area of jurisdiction of the appellant. Moreover, the local government functions relevant to this matter which (at the time of the review proceedings) were performed by the metropolitan council on behalf of the Llandudno/Hout F Bay TMS are now performed by the appellant. It was for these reasons that this appeal was brought by the appellant and not by the metropolitan council or the (now defunct) Llandudno/Hout Bay TMS.

For the sake of convenience, I should henceforth refer to the respondents in this appeal (the applicants in the review proceedings) as 'the applicants'. The Llandudno/Hout Bay TMS and the G Metropolitan Council will be referred to jointly as 'the local authorities'.

The material facts

The resolution of the Llandudno/Hout Bay TMS of 30 April 1996 was H the third in a series of decisions taken by the local authorities in terms of s 31A of the Environment Conservation Act 73 of 1989, as amended (hereinafter referred to as 'the Act'), the relevant subsections of which read as follows:

'(1) If, in the opinion of the Minister or the competent I authority, local authority or government institution concerned, any person performs any activity or fails to perform any activity as a result of which the environment is or may be seriously damaged, endangered or detrimentally affected, the Minister, competent authority, local authority or government institution, as the case may be, may in writing direct such person -

(a)

to cease such activity; or J

Van Heerden J

(b)

to take such steps as the Minister, competent A authority, local authority or government institution, as the case may be, may deem fit,

within a period specified in the direction, with a view to eliminating, reducing or preventing the damage, danger or detrimental effect.

(2) The Minister or the competent authority, local authority or government institution concerned, may direct the person referred to in ss (1) to perform any activity or function at the expense of such B person with a view to rehabilitating any damage caused to the environment as a result of the activity or failure referred to in ss (1), to the satisfaction of the Minister, competent authority, local authority or government institution, as the case may be.'

The applicants are the owners of various plots of land extending up the lower slopes of the Karbonkelberg Mountain in Hout Bay. In early C 1995 the first applicant commenced the construction of a road (a so-called 'jeep track') across two of these plots of land (namely erven 4868 and 4869) with the primary aim of affording him and the other applicants access to a plateau at the top of the applicants' properties. This plateau apparently affords magnificent views and is one of the most desirable portions of the applicants' properties. D

The first decision (the subject of prayer (a)(i) of the applicants' notice of motion in the Court a quo) was embodied in a letter dated 19 February 1996, addressed to the applicants by the Acting Chief Executive Officer of the Metropolitan Council, a Mr C J van der Spuy. In terms of this letter, headed 'Notice in terms of s 31A of Act 73/1989', the applicants were given E notice immediately to cease construction of the road (ie the abovementioned 'jeep track') and to rehabilitate the damage already caused to the mountain by the construction activities. I shall henceforth refer to the decision set out in this letter as 'the first decision'.

The second decision (the subject of prayer (a)(ii) of the F applicants' notice of motion) was a resolution taken by the council of the Llandudno/Hout Bay TMS on 27 February 1996, inter alia confirming the action taken by Mr Van der Spuy in serving the abovementioned notice requiring the cessation of work on the road. The letter to the applicants' attorneys dated 1 March 1996, advising them of this resolution, stated the following: G

'While the council confirmed the notice served on your clients and other co-owners dated 19 February 1996, should your client for any reason whatsoever dispute the validity of that notice then please be informed on behalf of your clients that this letter in so far as it may be necessary constitutes further notice to your clients in terms of s 31A of Act 73 of 1989.' H

This letter therefore purportedly gave to the applicants a second notice of cessation of the road construction activities. I shall henceforth refer to the resolution taken on 27 February 1996 as 'the second decision'.

The third decision (the subject of prayer (a)(iii) of the applicants' notice of motion) was the abovementioned resolution taken on 30 April 1996 by the Council of the Llandudno/Hout Bay TMS. By I means of this resolution, the said council ratified certain recommendations (relating to the Karbonkelberg road construction) made by the executive committee of the TMS at a meeting on 24 April 1996. In terms of these recommendations, the initial prohibition against the construction of the road to a certain specified point was withdrawn, the applicants were J

Van Heerden J

obliged to 'downgrade' the remainder A of the road above that point to a footpath and were prohibited from performing any further construction work other than a footpath above the upper terminus of the road. As pointed out by the Judge a quo

'[a]lthough these concessions ameliorated the initial stance of the first respondent to a degree, the effect thereof was still to prevent the applicants from getting to the top of their property'. B

The resolution of 30 April 1996 also required the applicants to construct the road and footpath, and to rehabilitate and revegetate the disturbed area, in accordance with the recommendations contained in the reports by two experts (a Mr B Alexander of Ninham Shand Inc and a Mr H van der Hoven), which reports had been submitted by the applicants' C attorneys to the local authorities under cover of a letter dated 25 March 1996. Furthermore, the resolution imposed upon the applicants, inter alia, the following additional requirements:

(1)

the rehabilitation work had to be performed under the supervision of the applicants' experts, Mr Alexander and Mr Van der D Hoven, and had to be acceptable to the abovementioned council's Chief Engineer: Design and its Manager: Parks and Forests;

(2)

prior to the commencement of any further work on the road, the applicants had to furnish a financial guarantee for an amount acceptable to the council to ensure the completion of the rehabilitation requirements in accordance with the experts' guidelines; and E

(3)

the applicants had to submit acceptable proposals in respect of fire protection measures for the revegetation programme.

As indicated above, it is this resolution of 30 April 1996 (hereinafter referred to as 'the third decision') which forms the focus of this appeal. F

The application for the judicial review and setting aside of all three decisions of the local authorities was launched by the applicants on 7 August 1996. From the local authorities' answering affidavits, read together with the applicants' replying affidavits, it was quite clear that there were wide-ranging and substantial disputes of fact concerning the extent to which the Karbonkelberg road 'damaged, endangered or detrimentally affected' G the environment and was subject to action by the local authorities in terms of s 31A of Act 73 of 1989. It appears to be common cause that such disputes of fact could not be resolved without the hearing of lengthy oral evidence. On the other hand, it also appeared from the papers that there were certain other issues, which were not affected by H material disputes of fact and which could possibly dispose of the matter one way or the other or, at...