Walele v City of Cape Town and Others (CCT 64/07) [2008] ZACC 11 (13 June 2008)

JUDGMENT

JAFTA AJ:

Introduction

[1] This is an application for leave to appeal against the judgment of the Cape High Court dismissing an application brought by the applicant for an order reviewing and setting aside a decision of the first respondent, the City of Cape Town (the City), in terms of which the City approved the building plans submitted to it by the second respondent, on behalf of the second to fifth respondents (the respondents).

[2] The central issue in this matter is whether the City properly approved the building plans submitted by the respondents, in terms of which they intend to erect a four-storey block of flats on their property. The applicant contends that the erection of the four-storey building will devalue his own property which adjoins the respondents’ site. The underlying dispute is therefore between neighbours, and the facts of this case demonstrate that there is a need to strike the right balance between, on the one hand, the landowner’s right to erect a building of his or her own choice on his or her property, and the rights of owners of the neighbouring properties, on the other. The National Building Regulations and Building Standards Act (the Building Standards Act)[1] provides for a framework within which such balance ought to be accomplished.[2]

[3] The Building Standards Act requires building plans to be approved for every building erected within a municipal area and thus prohibits construction of buildings without the prior approval of plans by the local authority within whose area a building is to be erected. The breach of this prohibition constitutes a criminal offence punishable by means of a fine.[3]

Factual background

[4] The respondents are joint owners of erf 168217 situated at Walmer Estate, Woodstock, Cape Town. The applicant is the owner of the adjoining erf 168218. On 2 March 2006 the respondents submitted to the City an application for the approval of building plans for the construction of a four-storey block of flats on erf 168217. Once submitted to the City, the plans were first perused by the Zoning Plans Examiner whose role was to determine whether they complied with the conditions of the zoning scheme before they could be passed to other departments within the establishment of the City. On 2 May the zoning plans examiner expressed the opinion that the plans in question complied with the zoning scheme and that the erf fell within the area where property owners were entitled to erect blocks of flats of up to seven storeys.

[5] The respondents’ plans were subsequently passed to various departments for consideration and comment. The comments were made on a pro forma form designed for that purpose. Having considered the plans, each department inserted the phrase “no objection” in the relevant block, either by means of a departmental stamp or in handwriting. A report of the Chief Fire Officer was annexed to the plans before they were forwarded to the Building Control Officer. The latter officer is under a statutory duty to make recommendations to the City “regarding any plans, specifications, documents and information submitted to such local authority in accordance with section 4(3)” of the Act.[4] On 26 July 2006 the Building Control Officer made an endorsement in the relevant block on the form. His endorsement reads: “BCO recommended in terms of section 6(1)(a) of Act 103/1977” and his signature appears below the endorsement.

[6] The respondents’ plans (together with the endorsed form and the report by the Chief Fire Officer) were then forwarded to Mr Clive Griffiths (the decision-maker) who was authorised by the City to consider and approve building plans on its behalf. Mr Griffiths is an employee of the City. On 28 July 2006, he approved the plans and signified this by appending his signature on the form.

[7] On 16 September 2006, the respondents cleared erf 168217 so as to commence construction of the flats. During that process, a wall on the applicant’s property was damaged and his attention was drawn to the activities on the respondents’ erf. On 18 September the applicant addressed a letter to the City, demanding that he be furnished with reasons for approving the respondents’ plans. Two reasons were given. The first was that erf 168217 was in a zoned general residential area (subzone R3) and thus the erection there of a block of flats up to seven storeys was allowed “as of right”. The second was that the plans in question complied with the relevant zoning scheme requirements. Dissatisfied with these reasons the applicant asked for a list of the documents which were placed before the decision-maker prior to the approval of the plans.[5] In part, the letter making the request reads as follows:

“2. In both your e-mails of 18 September 2006, it is stated that since erf 168217 is zoned for general residential purposes, the development proposal is allowed “as of right”. That, however, is not the end of the enquiry. It is inconceivable that a development proposal can be allowed purely on the basis of the zoning of the relevant property. This aspect will be fully addressed in the appropriate forum in due course.

3. We now ask you to provide us forthwith with copies of all documents that were before the official who approved the proposed development, including but not limited to:

3.1 the application for the approval of the building plans for the development of erf 168217;

3.2 the building plans that were approved;

3.3 the date on which the building plans were approved;

3.4 all documents submitted by the owner/developer in support of the application;

3.5 all notices (if any) of the proposed development sent by the City to interested or affected parties.

3.6 copies of objections and consent (if any) to the proposed development by interested and affected parties.”

[8] In response to the request for information, the City furnished the applicant with two documents on 26 September 2006. They were a copy of the application for the approval of building plans, which included the form endorsed by various departments, and a copy of the document titled “Land Information System – Ratepayers Data”. On 28 September the applicant requested the City to confirm that these documents were the only documents placed before the decision-maker. On 2 October the City confirmed this by email.

Proceedings in the High Court

[9] The applicant instituted a review application in the Cape High Court, challenging the validity of the approval of the respondents’ plans. He held the view that the erection of the four-storey block of flats on the adjacent erf would devalue his own property. The challenge mounted by the applicant against the approval was based on a number of grounds. To mention the main ones will suffice for present purposes. They are: the alleged lack of authority of the decision-maker to approve the building plans; the City’s failure to give the applicant a hearing before the approval, in compliance with section 3 of the Promotion of Administrative Justice Act (PAJA);[6] and non-compliance with the jurisdictional requirements necessary for the exercise of the power to approve the plans. In the context of the last ground, reference was made to the alleged absence of a recommendation, as contemplated in section 6 of the Building Standards Act, and reasonable bases on which the decision-maker could have been satisfied that none of the disqualifying factors in section 7(1)(b)(ii)[7] would be triggered by the erection of the block of flats.

[10] The High Court rejected the meaning placed on the word “recommendation” by the applicant and held that by appending his signature to the form, the Building Control Officer had made a positive recommendation as envisaged in section 6 of the Building Standards Act.[8] He held further that none of the disqualifying factors was present in this case.[9]

[11] Regarding the applicant’s contention that he was entitled to a pre-decision hearing, the High Court held that the applicant had failed to establish a factual foundation for claiming that he had legitimately expected to be heard before the approval of the plans.[10] Cleaver J declined to follow Wunsh J’s judgment in Erf 167 Orchards CC[11] (on which the applicant had relied) and preferred the judgment of Lewis AJ in Odendaal.[12] He held that in the circumstances of the present case the applicant was not entitled to receive notice nor the opportunity to make representations to the decision-maker before the plans were approved.[13]

[12] The High Court also rejected, as lacking merit, the submission that the decision to approve the plans was irrational and unreasonable.[14] As stated above, he dismissed the application with costs. Applying the rule in Plascon-Evans,[15] the High Court concluded that the applicant had failed to prove that the construction of the block of flats would reduce the market value of his property because the views of the applicant’s valuer in this regard were sharply disputed by the City’s witnesses.[16] The application for leave to appeal was refused and the petition to the Supreme Court of Appeal was also unsuccessful.[17]

Proceedings in this Court

[13] The City of Johannesburg (the amicus) was admitted as amicus curiae and argument both in written and oral form was addressed to this Court on its behalf.

[14] The applicant seeks leave to appeal against the High Court judgment. It is now settled that for the applicant to succeed, he must comply with two threshold requirements. First, the case must raise a constitutional issue or an issue connected therewith so as to fall within the jurisdiction of this Court. Secondly, it must be in the interests of justice that leave to appeal be granted. A two-stage approach is adopted in the enquiry as to whether these requirements are met. The first stage relates to the jurisdiction issue and the second concerns the exercise of a discretion by this Court. The second stage is reached only if the first has yielded a positive finding.

Does the application raise a constitutional issue?

[15] There can be no doubt that the present case raises a constitutional issue. In challenging the City’s decision in the High Court, the applicant invoked the provisions of section 6 of PAJA. The interpretation and application of the provisions of PAJA raise a constitutional issue. In Bato Star[18] this Court held that cases such as the present fall within its jurisdiction. In that case O’Regan J said:

“The provisions of s 6 divulge a clear purpose to codify the grounds of judicial review of administrative action as defined in PAJA. The cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law as in the past. And the authority of PAJA to ground such causes of action rests squarely on the Constitution. It is not necessary to consider here causes of action for judicial review of administrative action that do not fall within the scope of PAJA. As PAJA gives effect to s 33 of the Constitution, matters relating to the interpretation and application of PAJA will of course be constitutional matters.” (Footnote omitted.)

The interests of justice

[16] Relying on three bases, counsel for the amicus argued that it is not in the interests of justice to grant leave in this matter. First, he submitted that there was no compliance with Rule 16A of the Uniform Rules of the High Court[19] which requires notice of a constitutional issue to be given. Any constitutional issue relied on by the applicants, it was argued, was not properly raised. The Uniform Rules of the High Court, as the title suggests, do not apply to proceedings in this Court. Instead what is required is that evidence supporting a constitutional issue raised must be placed before the court of first instance. But even this principle is not inflexible. This Court permits evidence to be placed before it where there are compelling reasons to do so.[20] However, in this case, the constitutional issue relied on was raised in the applicant’s founding papers. It follows that the constitutional issue was properly raised. The objection might possibly have had substance if it was raised in the High Court, but it was not.

[17] Secondly, the amicus submitted that, due to the existence of extensive factual disputes, there can be no proper consideration of the issues on appeal. The factual disputes to which the amicus refers relate solely to the narrow points of whether the applicant has established that the construction of the block of flats will trigger any of the disqualifying factors listed in section 7(1)(b)(ii) of the Building Standards Act. As already stated, the High Court found that the applicant failed to prove this issue in the light of the conflict in the evidence of various experts. The finding was based, I must emphasise, on the application of the Plascon-Evans rule. Before us, the applicant did not challenge this finding which is, in my view, for present purposes unassailable. It does not however stand in the way of enquiring into the correctness of the High Court’s findings on the right to be heard before the approval of the plans and other issues. It was common cause between the parties that the applicant was not afforded a hearing. Furthermore, the applicant also raised the issue of jurisdictional requirements, which does not depend on any of the disputed facts.

[18] Thirdly, the amicus, relying on section 7 of PAJA[21] read with section 62 of the Local Government: Municipal Systems Act 32 of 2000 (the Municipal Systems Act),[22] submitted that the applicant was obliged to exhaust internal appeals before approaching the High Court. Since he has not applied in terms of section 7 of PAJA to be exempted from this requirement, so the argument continued, the High Court lacked the authority to entertain his application. This Court must, concluded the argument, refuse to hear the appeal until the internal remedies are exhausted.

[19] This point was abandoned by the City in the High Court, and the judgment of that Court does not deal with it at all. In this Court, the City raised the point in the alternative to the argument that none of the applicant’s rights was affected by the impugned decision, and the issue was raised in relation to relief. The question is whether the internal appeal provided for in section 62 of the Municipal Systems Act was available to the applicant, who was not a party to the application for the approval of the plans. The answer to this question lies in the interpretation of section 62(1). The opening words of the section identify the class of persons who are entitled to invoke the appeal procedure. It speaks of persons whose rights are affected by a decision taken by a local authority or some other body or person within it, all of whom are listed in the subsection. This means that for the applicant to qualify as a member of the designated class, it must be shown that he had an identifiable right which was affected by the decision to approve the plans. This has not been established on the papers. The amicus and the other respondents contend that none of the applicant’s rights was affected by the approval. Therefore, in view of their stance in this regard, they cannot insist on the obligation to exhaust domestic remedies.

[20] The High Court dealt with the matter on its merits and construed sections 6 and 7 of the Building Standards Act in a particular way. For as long as that judgment stands, it will have to be followed by all municipalities and property owners falling within its area of jurisdiction. As a party to this litigation, the applicant is entitled to appeal against the High Court’s judgment, provided the requirements necessary for such an appeal are met. The applicant’s attempt to appeal has been unsuccessful in the High Court and in the Supreme Court of Appeal.

[21] What is required at this stage is to weigh all the factors relevant to the exercise of this Court’s discretion.[23] The case raises issues of great importance in the field of town planning and development in cities and towns throughout the country. The implicated sections of the Building Standards Act have been construed in conflicting decisions of the High Court. The particular issues that arise in this case have not been considered by this Court or the Supreme Court of Appeal. The latter Court has declined to entertain the appeal. The prospects of success on the merits appear to be good. All these factors weigh in favour of granting leave in the interests of justice.

The issues

[22] The grounds of review which the applicant pressed in this Court were the following: (a) there was no valid delegation of powers to the decision-maker; (b) the City failed to comply with mandatory procedural requirements prescribed by the Building Standards Act; (c) the decision to approve the plans was procedurally unfair, arbitrary and capricious; and (d) the City failed to act in an open and accountable manner as required by section 195(1) of the Constitution. With regard to relief, the City argued that the applicant was not entitled to an order setting aside the approval because he had failed to exhaust domestic remedies provided for in section 62 of the Municipal Systems Act.[24] I address these issues in turn.

Delegation of power

[23] Section 28(4) of the Building Standards Act authorises a written delegation of powers by a local authority to any of its committees or employees, excluding only the power conferred on the local authority by section 5 of that Act. The latter section deals with the appointment of a Building Control Officer. The power to appoint this officer is reserved to be exercised by the local authority itself. All other powers can be delegated to either committees or employees. It is common cause in this case that the power to approve the building plans was exercised by Mr Griffiths who is an employee of the City.

[24] In raising this point, the applicant alleged (in his founding affidavit):

“It is not clear from the documents filed in terms of rule 53 of the Rules, who the decision-maker was; whether he or she possesses the requisite qualifications; and whether he or she was properly delegated to approve the building plans in question. Consequently, it will be argued that the administrative action in question was not authorised [by] the empowering provision; or that the decision-maker acted under a delegation of power which was unauthorised”.

[25] When read in context, the above challenge means no more than that the record filed in terms of Rule 53 did not inform the applicant about who the decision-maker was and whether the power had been properly delegated to him or her. In its answering affidavit (deposed to by the Building Control Officer), the City identified Mr Griffiths as the decision-maker to whom the power had been duly delegated. The Building Control Officer alleged:

“On 28 July 2006, First Respondent approved the plans. Mr Clive Griffiths, duly delegated, appended his signature and approval. In this regard, I refer to the Confirmatory Affidavit of Mr Griffiths, filed of record herewith.”

In his affidavit Mr Griffiths confirmed these allegations.

[26] In reply the applicant simply disputed that there was a proper delegation of power to Mr Griffiths. Clearly a dispute of fact arose on the delegation issue and since these are motion proceedings, the City’s averments must be taken as correct upon the application of the Plascon-Evans rule.[25] Moreover, at the hearing of the matter, counsel for the City undertook to furnish the Court with a copy of the delegation. Indeed, shortly after the hearing such copy was furnished to the Court and the other parties. As a result, this complaint has fallen away.

Was the decision to approve the plans procedurally unfair?

[27] There can be no doubt that when approving building plans, a local authority or its delegate exercises a public power constituting administrative action. The normative value system of the Constitution imposes a duty on decision-makers to act fairly towards parties who are affected by their decisions.[26] The most important component of procedural fairness is the one expressed by the audi alteram partem principle (the audi principle) which requires that parties to be affected by an administrative decision be given a hearing before the decision is taken. What gives rise to the right to be heard is the negative impact of the decision on the rights or legitimate expectations of the person claiming to have been entitled to a hearing before the decision was taken. In Masetlha Ngcobo J said:

“The procedural aspect of the rule of law is generally expressed in the maxim audi alteram partem (the audi principle). This maxim provides that no one should be condemned unheard. It reflects a fundamental principle of fairness that underlies or ought to underlie any just and credible legal order. The maxim expresses a principle of natural justice. What underlies the maxim is the duty on the part of the decision-maker to act fairly. It provides an insurance against arbitrariness. Indeed, consultation prior to taking a decision ensures that the decision-maker has all the facts prior to making a decision. This is essential to rationality, the sworn enemy of arbitrariness. This principle is triggered whenever a statute empowers a public official to make a decision which prejudicially affects the property, liberty or existing right of an individual.”[27] (Footnote omitted.)

[28] Regarding the procedural aspect of the right to fairness, the applicant’s case was based on the provisions of section 3 of PAJA.[28] This section acknowledges in express terms that the required standard for procedural fairness differs from case to case. The facts and circumstances of a particular case determine the content of procedural fairness required. But the express precondition for the requirement to act fairly, in terms of the section, is that the administrative action must materially and adversely affect the rights or legitimate expectations of the aggrieved person. This requirement is consistent with the common law position referred to by Ngcobo J in Masetlha.[29] The audi principle evolved and its scope was expanded under the common law also to cover cases where the impugned decision did not affect rights. If the aggrieved person had a legitimate expectation to be heard, the principle applied. The incorporation of the doctrine of legitimate expectation into South African law was endorsed by Corbett CJ in Traub.[30] In terms of the doctrine, the audi principle applies to cases where the aggrieved person’s legitimate expectation was affected by the decision reached, even if such person had no antecedent rights affected thereby.

[29] When the legislature enacted PAJA, it sought to codify extensively grounds of review, including the denial of a pre-decision hearing. This Court has held that applications for review of administrative action must ordinarily be based on PAJA.[31] In New Clicks,[32] Ngcobo J said:

“Where, as here, the Constitution requires Parliament to enact legislation to give effect to the constitutional rights guaranteed in the Constitution, and Parliament enacts such legislation, it will ordinarily be impermissible for a litigant to found a cause of action directly on the Constitution without alleging that the statute in question is deficient in the remedies that it provides. Legislation enacted by Parliament to give effect to a constitutional right ought not to be ignored. And where a litigant founds a cause of action on such legislation, it is equally impermissible for a court to bypass the legislation and to decide the matter on the basis of the constitutional provision that is being given effect to by the legislation in question.”[33] (Footnote omitted.)

[30] It is within the above context that the interpretation of section 3 of PAJA must be approached. Moreover, when Parliament enacted PAJA, it must have been aware of judicial decisions which applied the audi principle in its original and expanded forms, incorporating the doctrine of legitimate expectation. Hence the rights and legitimate expectations referred to in section 3 of PAJA are not defined. The section requires that procedural fairness be adhered to where the administrative action affects materially and adversely “the rights or legitimate expectations of any person”. In so doing, the section apparently limits the scope of the right to procedural fairness envisaged in section 33 of the Constitution. The applicant did not challenge its constitutionality but invoked it in its present form, as a basis for his cause of action. We must therefore proceed on the assumption that section 3 is consistent with the Constitution.

[31] On a proper construction of section 3, the applicant’s claim to a hearing can only succeed if he establishes that the decision to approve the building plans materially and adversely affected his rights or legitimate expectations. The parties involved in the application for the approval were the respondents and the City. The applicant was not a party to that process nor was he entitled to be involved. The building plans in question were drawn at the instance of the respondents who wanted to erect the four-storey block of flats on their own property. The granting of the approval could not, by itself, affect the applicant’s rights.

[32] It will be recalled, however, that the applicant’s case is that the erection of the flats will devalue his own property and may trigger other disqualifying factors in section 7(1)(b)(ii) of the Building Standards Act. He does not contend that the approval itself will lead to those consequences. The question is whether “administrative action” as contemplated in section 3 of PAJA should be construed to encompass the subsequent erection of flats. I think not. Such interpretation would not constitute a reasonable reading of the section which requires a pre-existing right or legitimate expectation to be materially and adversely affected by the administrative decision itself. Furthermore, there is no need to read section 3 so widely because section 7 of the Building Standards Act makes the erection of a building in a manner that devalues neighbouring properties, on its own, a ground of review. If the applicant in this case had proved that the erection of the flats devalued his property, he could have succeeded in having the approval of the plans in question set aside on that basis alone. As observed by the Supreme Court of Appeal in Paola,[34] a local authority is not authorised to approve plans in circumstances where their execution will diminish the value of neighbouring properties. In that case Farlam JA, writing for the Court, said:

“Once it is clear, as it is on the facts presently before us, that the execution of the plans will significantly diminish the value of the adjoining property, then, on its plain meaning, [section 7(1)(b)(ii)] prevents the approval of the plans. . . . In the circumstances I am satisfied, on the facts presently before us, that the appellants first ground of attack on the third respondent’s approval of the plans must be sustained.”[35]

[33] In the present case the applicant’s allegation that the erection of the flats will reduce the value of his property was denied by the City. The parties presented conflicting expert evidence on the issue and since these were motion proceedings the High Court applied the Plascon-Evans rule and accepted the City’s version on the issue. On the papers, the applicant has failed to prove that his property would be devalued by the erection of the flats.

Did the approval materially and adversely affect the applicant’s legitimate expectations?

[34] As indicated above, at common law, before the adoption of the doctrine of legitimate expectation, the audi principle was confined to cases where an administrative decision affected pre-existing rights of the party challenging the validity of the decision on the basis that it was denied a hearing. Upon the realisation that pre-existing rights may be absent but the facts of a particular case may still require compliance with procedural fairness, the courts in South Africa imported the doctrine of legitimate expectation in order to expand the scope of the audi principle. In doing so, the courts underscored the importance of the principle that the question whether there should have been a pre-decision hearing depends on the circumstances of each case.[36]

[35] The doctrine of legitimate expectation, however, has its own limitations. It cannot be precisely defined. In some cases it has been expressed as a—

“substantive benefit or advantage or privilege which the person concerned could reasonably expect to acquire or retain and which it would be unfair to deny such person without prior consultation or a prior hearing”.[37]

The doctrine applies where a person enjoys a privilege or benefit which it would be unfair to deny that person without giving him or her a hearing. A legitimate expectation may arise either from a promise made by the decision-maker or from a regular practice which is reasonably expected to continue.

[36] In Traub Corbett CJ cautioned against the danger of freely applying the doctrine in determining whether or not procedural fairness required a pre-decision hearing. The Chief Justice said:

“There are many cases where one can visualise in this sphere – and for reasons which I shall later elaborate I think that the present is one of them – where an adherence to the formula of ‘liberty, property and existing rights’ would fail to provide a legal remedy, when the facts cry out for one; and would result in a decision which appeared to have been arrived at by a procedure which was clearly unfair being immune from review. The law should in such cases be made to reach out and come to the aid of persons prejudicially affected. At the same time, whereas the concepts of liberty, property and existing rights are reasonably well defined, that of legitimate expectation is not. Like public policy, unless carefully handled it could become an unruly horse. And, in working out, incrementally, on the facts of each case, where the doctrine of legitimate expectation applies and where it does not, the Courts will, no doubt, bear in mind the need from time to time to apply the curb. A reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration.”[38]

[37] Since the concept of legitimate expectation referred to in section 3 of PAJA is not defined, it must be given its ordinary meaning as understood over a period of time by the courts in this country. But the difficulty is that administrative action is defined in section 1 of PAJA as a decision which adversely affects the rights of another person.[39] In the definition no reference is made to a decision affecting legitimate expectations. Yet section 3 refers to administrative action that affects legitimate expectations. Applying the definition to the interpretation of section 3 will lead to absurdity. Therefore, I am willing not to apply it and to assume that section 3 of PAJA confers the right to procedural fairness also on persons whose legitimate expectations are materially and adversely affected by an administrative decision. In the context of section 3, administrative action cannot mean what was intended in the definition section. Applying the definition to section 3 would lead to an incongruity or absurdity not intended by Parliament. The general rule is that a definition meaning may not be applied if its application will lead to such consequences.[40] The Supreme Court of Appeal in Grey’s Marine[41] held that the definition of administrative action in PAJA ought not to be given its literal meaning. In that case Nugent JA said:

“While PAJA’s definition purports to restrict administrative action to decisions that, as a fact, ‘adversely affect the rights of any person’, I do not think that literal meaning could have been intended. For administrative action to be characterised by its effect in particular cases (either beneficial or adverse) seems to me to be paradoxical and also finds no support from the construction that has until now been placed on s 33 of the Constitution. Moreover, that literal construction would be inconsonant with s 3(1), which envisages that administrative action might or might not affect rights adversely. The qualification, particularly when seen in conjunction with the requirement that it must have a ‘direct and external legal effect’, was probably intended rather to convey that administrative action is action that has the capacity to affect legal rights, the two qualifications in tandem serving to emphasise that administrative action impacts directly and immediately on individuals.”[42] (Footnotes omitted.)

Has the applicant established any legitimate expectation affected by the approval of the plans?

[38] In order to answer this question, it is necessary to look at the test formulated by the courts for determining the existence of legitimate expectation. The enquiry is primarily factual and the focus during this stage is on objective facts giving rise to the expectation. The aggrieved party’s state of mind is irrelevant to the enquiry. Once the facts supporting an expectation are established, the enquiry moves to the second stage which is whether, in the circumstances of the case at hand, procedural fairness required a pre-decision hearing. In SARFU,[43] this Court applied the test in two stages. In relation to the first stage the Court said:

“The question then is whether, on the facts outlined above, which were not in material dispute between the parties, the respondents have established any legitimate expectation that the President would not, in conflict with any undertaking which might have been given by the Minister, make the provisions of the Commissions Act applicable to the commission, without first affording the respondents an opportunity of being heard. They did not assert such an expectation in the correspondence addressed to the Department on 26 August 1997, after they had been informed that the Department considered the appointment of a commission to be its only option. Nor did they assert such an expectation in their letter to the President on 29 September 1997 when they sought his reasons.”[44]

And later the Court concluded by saying:

“Indeed, any such expectation could not in the circumstances of this case have been considered to be legitimate, giving rise to a right to be heard by the President. The question whether an expectation is legitimate and will give rise to the right to a hearing in any particular case depends on whether in the context of that case, procedural fairness requires a decision-making authority to afford a hearing to a particular individual before taking the decision. To ask the question whether there is a legitimate expectation to be heard in any particular case is, in effect, to ask whether the duty to act fairly requires a hearing in that case. The question whether a ‘legitimate expectation of a hearing’ exists is therefore more than a factual question. It is not whether an expectation exists in the mind of a litigant but whether, viewed objectively, such expectation is, in a legal sense, legitimate; that is, whether the duty to act fairly would require a hearing in those circumstances.”[45]

[39] In this case, the legitimate expectation sought to be invoked is not founded upon an express representation made by the decision-maker but on an alleged practice. The requirement is that the conduct underlying the expectation must reasonably lead to the belief that the aggrieved party would be given a hearing before the decision is taken. In Traub Corbett CJ cited with approval the following statement from the speech of Lord Fraser in Council of Civil Service Unions and Others v Minister for the Civil Service:[46]

“But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. . . . Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.”[47]

[40] The applicant bases his legitimate expectation claim on two facts. First, he alleges that in a similar application for approval of plans for the erection of a building in the same area, the City invited interested parties to inspect the plans and make representations, before the plans were considered for approval. Secondly, the fact that the applicant was the owner of the adjoining property on which “the block of flats would cast a large shadow in winter.”

[41] The fact that the City had afforded interested parties a hearing in one application does not constitute a regular practice which the applicant could reasonably expect to be extended to him. That was an isolated case which could hardly amount to a general practice necessary to found a reasonable expectation. Moreover, we do not have full facts relating to the case relied upon. We do not know if the City had the authority to make such invitation in the first place. For, if it lacked the power to do so, reliance thereon could not be legitimate because the invitation would have been incompetent and unlawful.[48]

[42] I fail to appreciate how the second fact could have given rise to a legitimate expectation. Being the owner of the neighbouring property cannot give rise to an expectation to be heard in circumstances such as the present, let alone a reasonable expectation. A legitimate expectation may arise from an express promise or a regular practice. It cannot arise from ownership of a neighbouring property. It follows that the applicant has failed to establish that he had a right or a legitimate expectation materially and adversely affected by the approval of the plans. Absent an affected right or a legitimate expectation, the applicant cannot challenge the approval on the basis that he ought to have been heard and was denied a pre-decision hearing.[49]

Conflicting decisions of the High Court

[43] Before I leave the audi principle, I must briefly comment on the conflicting decisions of the Johannesburg High Court. In Erf 167 Orchards CC,[50] Wunsh J, relying on the decision of the Supreme Court of New South Wales in Porter,[51] held that owners of adjoining properties have a right to be heard before building plans are approved by a local authority. However, he did not clarify whether his conclusion was based on a finding that the approval affected the rights or legitimate expectations of such owners. Following a quotation from Porter, Wunsh J said:

“So that seems either that the right of inspection is conferred by the statute in accordance with the general rules relating to the audi alteram partem doctrine or that the applicant justifiably had a legitimate expectation that it would be given notice of any application and an opportunity to make representations. As it seems to me that the rule applies by reason of potential prejudice to the applicant’s property, I decline to consider whether any curbs should be imposed on its rights. The second respondent’s counsel argued that the audi rule did not apply in the instant case because the first respondent was not exercising powers but discharging duties. This distinction is not material. The principles of natural justice apply where an administrative organ makes a decision affecting the interests of parties in the circumscribed manner in fulfilling a statutory duty.”[52]

[44] The concluding sentence in the above dictum adds to the confusion created. Since Wunsh J dealt with the issue under the common law, regard to the common law requirements is necessary for determining the correctness of the dictum. As stated above, under the common law, the audi principle originally applied where the decision affected the “liberty, property or existing rights” of the claimant, and it was later extended to decisions affecting legitimate expectations of claimants. Thus, even before the present constitutional order, courts in this country did not apply the audi principle to administrative decisions which affected interests falling short of rights or legitimate expectations. Presently, section 3 of PAJA makes it clear that the right to a hearing is available to persons whose rights or legitimate expectations are affected by administrative action.

[45] The Building Standards Act does not confer on owners of adjoining property the right to inspect building plans lodged with a local authority for approval. Therefore, Wunsh J’s finding in this regard was incorrect and so was the allied finding that “the applicant justifiably had a legitimate expectation that it would be given notice of any application and an opportunity to make representations.”[53] The requirements for establishing the existence of a legitimate expectation were not met and the Judge omitted to consider this issue in his judgment. In Odendaal[54] Lewis AJ refused, correctly in my view, to follow the decision in Erf 167 Orchards CC on the basis that it was wrong, and held that the owner of a neighbouring property has no right to be heard in an application for the approval of building plans.

Failure to comply with mandatory procedural requirements

[46] Two major submissions were made by the applicant under this ground of review which was based on section 6(2)(b) of PAJA.[55] First, it was argued that the decision-maker did not have before him a recommendation as contemplated in sections 6(1) and 7(1) of the Building Standards Act, prior to approving the plans. It was submitted that the word “recommendation” in the context of these sections means motivated advice which covers the merits and demerits of the application for approval. Second, it was submitted that section 7(1)(b)(ii) of the Building Standards Act enjoins the decision-maker to be satisfied, prior to approving the plans, that the erection of the building to which the plans apply will not disfigure the area; be unsightly or objectionable; be dangerous to life or property; or derogate from the value of adjoining properties. The existence of any one of these factors, it was contended, disqualifies the plans concerned from approval. As the consideration of these issues requires a proper interpretation of the relevant sections of the Building Standards Act, it is convenient to commence with an overview of those provisions, which is set out hereafter.

[47] The Building Standards Act, as the long title proclaims, promotes uniformity in the law relating to the construction of buildings within municipal areas, by prescribing general requirements and building standards which must be adhered to. Section 4 of the Building Standards Act requires approval by a local authority of building plans before any construction can commence. Section 5 obliges every local authority to appoint a Building Control Officer whose powers and functions are specified in the Building Standards Act. This Officer is given extensive powers and plays a critical role towards achieving the objectives of this Act. Once an application for the approval of plans is lodged with a local authority, the Building Standards Act authorises the Building Control Officer to enter the land to which the plans in question apply, prior to the approval of the plans by the decision-maker.[56] He or she is entitled to inspect the site in preparation for consideration of the application for the approval of the plans by the relevant decision-maker. Any person who prevents the Building Control Officer from entering such land or in any other way hinders or obstructs him or her from performing his or her duties, commits a criminal offence punishable by a fine not exceeding R4 000 or imprisonment for a period not exceeding 12 months.[57]

[48] The Building Control Officer must make recommendations on all plans submitted to the local authority in terms of section 4. Such recommendations must, where necessary, incorporate reports relating to fire protection plans. Once the plans are approved and the building is under construction, the Building Control Officer is mandated to inspect it in order to determine whether the plans and conditions under which they were approved are followed. Where there is non-compliance he or she must report it to the local authority.[58] He or she is also empowered to exempt from the obligation to submit plans, persons who undertake minor building work.[59]

[49] Quite a number of the Building Control Officer’s functions are contained in section 6, which is one of the two sections that the applicant contended were not complied with during the approval of the plans in the instant case. In part, section 6 provides:

“(1) A building control officer shall—

(a) make recommendations to the local authority in question, regarding any plans, specifications, documents and information submitted to such local authority in accordance with section 4(3);

(b) ensure that any instruction given in terms of this Act by the local authority in question be carried out;

(c) inspect the erection of a building, and any activities or matters connected therewith, in respect of which approval referred to in section 4(1) was granted;

(d) report to the local authority in question, regarding non-compliance with any condition on which approval referred to in section 4(1) was granted.

(2) When a fire protection plan is required in terms of this Act by the local authority, the building control officer concerned shall incorporate in his recommendations referred to in subsection (1)(a) a report of the person designated as the chief fire officer by such local authority, or of any other person to whom such duty has been assigned by such chief fire officer, and if such building control officer has also been designated as the chief fire officer concerned, he himself shall so report in such recommendations.”

[50] The process of approving building plans is governed by section 7 of the Building Standards Act. It provides:

“(1) If a local authority, having considered a recommendation referred to in section 6(1)(a)—

(a) is satisfied that the application in question complies with the requirements of this Act and any other applicable law, it shall grant its approval in respect thereof;

(b) (i) is not so satisfied; or

(ii) is satisfied that the building to which the application in question relates—

(aa) is to be erected in such manner or will be of such nature or appearance that—

(aaa) the area in which it is to be erected will probably or in fact be disfigured thereby;

(bbb) it will probably or in fact be unsightly or objectionable;

(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties;

(bb) will probably or in fact be dangerous to life or property,

such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal:

Provided that the local authority shall grant or refuse, as the case may be, its approval in respect of any application where the architectural area of the building to which the application relates is less than 500 m², within a period of 30 days after receipt of the application and, where the architectural area of such building is 500 m²or larger, within a period of 60 days after receipt of the application.

(2) . . . .

(3) When a local authority has granted its approval in accordance with subsection (1)(a) in respect of any application, such approval shall be endorsed on at least one of the copies of the plans, specifications and other documents in question returned to the applicant.

(4) Any approval granted by a local authority in accordance with subsection (1)(a) in respect of any application shall lapse after the expiry of a period of 12 months as from the date on which it was granted unless the erection of the building in question is commenced or proceeded with within the said period or unless such local authority extended the said period at the request in writing of the applicant concerned.

(5) Any application in respect of which a local authority refused in accordance with subsection (1)(b) to grant its approval, may, notwithstanding the provisions of section 22, at no additional cost and subject to the provisions of subsection (1) be submitted anew to the local authority within a period not exceeding one year from the date of such refusal—

(a) (i) if the plans, specifications and other documents have been amended in respect of any aspect thereof which gave cause for the refusal; and

(ii) if the plans, specifications and other documents in their amended form do not substantially differ from the plans, specifications or other documents which were originally submitted; or

(b) where an application is submitted under section 18.

(6) The provisions of this section shall not be construed so as to prohibit a local authority, before granting or refusing its approval in accordance with subsection (1) in respect of an application, from granting at the written request of the applicant and on such conditions as the local authority may think fit, provisional authorization to an applicant to commence or proceed with the erection of a building to which such application relates.

(7) (a) An application which is substantially the same as an application

referred to in this Act and which before the date of commencement of this Act has been lodged with a local authority for its consideration and in respect of which such local authority on that date has not yet granted or refused its approval, shall be considered by such local authority as if this Act had not been passed.

(b) Approval granted by a local authority before the date of commencement of this Act in respect of an application substantially the same as an application referred to in this Act, shall be deemed to have been granted in terms of this section if the erection of the building in question has not been commenced with before the said date.”

The context in which sections 6 and 7 must be construed

[51] Since section 7 authorises the exercise of public power, the starting point in determining the relevant context is that the Building Standards Act must be read consistently with PAJA. All statutes which authorise the making of administrative action must now be read with PAJA unless their provisions are inconsistent with it. PAJA was intended to interface with all statutes (whether enacted before or during the current constitutional order) which authorise administrative action. In Zondi,[60] Ngcobo J, writing for the Court said:

“PAJA was enacted pursuant to the provisions of section 33, which requires the enactment of national legislation to give effect to the right to administrative action. PAJA therefore governs the exercise of administrative action in general. All decision-makers who are entrusted with the authority to make administrative decisions by any statute are therefore required to do so in a manner that is consistent with PAJA. The effect of this is that statutes that authorise administrative action must now be read together with PAJA unless, upon a proper construction, the provisions of the statutes in question are inconsistent with PAJA.”[61] (Footnotes omitted.)

[52] As noted earlier, the Building Standards Act prohibits landowners from erecting buildings on their land without prior approval by the local authority, which may also impose conditions for the exercise of the landowner’s rights over his or her own property. While the approval of the plans itself cannot affect the rights of other parties, the subsequent execution thereof may result in the erection of a building which might affect the rights of the owners of neighbouring properties. This necessitates that the relevant provisions of the Building Standards Act be construed in a manner that promotes the implicated rights, consistently with the obligation imposed on courts by section 39(2) of the Constitution.[62] This Court has held in a long line of cases that section 39(2) applies to the interpretation of all statutes.[63] In Fraser,[64] Van der Westhuizen J described this requirement as a “mandatory constitutional canon of statutory interpretation”.[65] Elaborating on the point Van der Westhuizen J said:

“The question raised by this application is whether the Supreme Court of Appeal’s interpretation of s 26 has failed to promote the spirit, purport and objects of the Bill of Rights in terms of s 39(2). This differs from an attack on an allegedly wrong factual finding or incorrect interpretation or application of the law, as in the cases referred to earlier. Section 39(2) requires more from a court than to avoid an interpretation which conflicts with the Bill of Rights. It demands the promotion of the spirit, purport and objects of the Bill of Rights. These are to be found in the matrix and totality of rights and values embodied in the Bill of Rights. It could also in appropriate cases be found in the protection of specific rights, like the right to a fair trial in s 35(3), which is fundamental to any system of criminal justice, and of which the rights to legal representation and against unreasonable delays are components. The spirit, purport and objects of the protection of the right to a fair trial therefore have to be considered.”[66]

[53] Sections 6 and 7 of the Building Standards Act must also be construed in the context of the other provisions of the Building Standards Act. The two sections must be read together. This approach ties in neatly with the “mandatory constitutional canon of statutory interpretation” referred to above.[67] I begin with construing section 7.

[54] The language employed in section 7 reveals four key issues relating to the process of exercising the power to approve building plans. First, the decision-maker must consider the Building Control Officer’s recommendation made in terms of section 6. Secondly, if he or she is satisfied that the application for approval complies with the requirements of the Building Standards Act and other applicable law, he or she must grant the approval unless he or she is also satisfied that the erection of the building to which the plans apply will trigger one of the disqualifying factors in section 7(1)(b)(ii). Thirdly, if the decision-maker is satisfied that the disqualifying factors will be triggered, he or she “shall refuse to grant [his or her] approval in respect thereof and give written reasons for such refusal”. Lastly, if the decision-maker is not satisfied that the application complies with the necessary requirements, he or she shall refuse to grant approval and give reasons for the refusal.

[55] Accordingly the decision-maker must be satisfied of two things before granting approval. The first is that he or she must be satisfied that there is compliance with the necessary legal requirements. Secondly, he or she must also be satisfied that none of the disqualifying factors in sections 7(1)(b)(ii) will be triggered by the erection of the building concerned. This is so because any approval of plans facilitating the erection of a building which devalues neighbouring properties, for example, is liable to be set aside on review.[68] An approval can be set aside on this ground irrespective of whether or not the decision-maker was satisfied that none of the disqualifying factors would be triggered. All that is needed for an applicant to succeed is to prove to the satisfaction of the reviewing court that the erection of the building will reduce the value of his or her property. The legislature could not have intended to authorise an invalid exercise of power. In order to avoid this consequence, the decision-maker must at least be satisfied that none of the invalidating factors exist before he or she grants approval. This interpretation is consistent with the obligation to promote the spirit, purport and objects of the Bill of Rights. It demonstrates that it is not only the landowner’s right of ownership which must be taken into account, but also the rights of owners of neighbouring properties which may be adversely affected by the erection of a building authorised by the approval of the plans in circumstances where they were not afforded a hearing. The section, if construed in this way, strikes the right balance between the landowner’s entitlement to exercise his or her right of ownership over property and the right of owners of neighbouring properties. The interpretation promotes the property rights of the landowners and those of its neighbours.[69]

[56] Indeed the construction that section 7(1)(b)(ii) requires that the decision-maker must be satisfied that none of the disqualifying factors will be triggered before approving plans, was adopted by the High Court in the instant matter and was supported by the parties before us. In its judgment, the High Court said:

“While the local authority is entrusted with the power to approve plans, it must, in a manner of speaking, act on behalf of the neighbours by ensuring that the disqualifying factors mentioned in s 7(1)(b) are not present before approving plans which otherwise comply with all applicable laws.”[70]

On this interpretation, section 7 creates an adequate self-contained protection which safeguards the rights of owners of neighbouring properties. As a result it becomes unnecessary for such owners to be heard before the approval is granted. The presence of a disqualifying factor precludes the granting of the approval and where the approval is granted despite a disqualifying factor, the process becomes invalid and can be set aside on that ground. Therefore the entitlement to a pre-decision hearing will not arise in such a case, as nobody is entitled to claim a hearing prior to an invalid exercise of public power. Construing the provision in a manner that allows the decision-maker to infer from the recommendation that the disqualifying factors will not be triggered undermines the protection afforded to owners of neighbouring properties by the section. The section requires that the decision-maker himself or herself must be satisfied that the protection requirements are met. The word “recommend” used by the Building Control Officer in this matter cannot be a sufficient basis for the required state of mind on the part of the decision-maker. The relevant section requires the decision-maker to bring his or her mind to bear on the non-existence of the disqualifying factors.

[57] Although the High Court held that the decision-maker was required to make certain that none of the disqualifying factors was present before approving the plans, it did not determine whether the decision-maker did that in the present instance. Instead, it approached the matter on the basis that there was no proof that the decision-maker did not take into account the relevant provisions. In this regard, the High Court said:

“Finally, it was submitted that the decision of the first respondent was otherwise unconstitutional or unlawful since it was alleged that the only documents before the decision maker were the documents comprising the application in terms of s 4(2) of the Act and a document titled “Land Information Systems Ratepayers Data”. Based on this, it was submitted that the decision maker could not have taken into account the provisions of s 7(1)(b) of the Act and more specifically, the factors in 7(1)(b)(ii). I have already referred to the process which was undertaken in examining the application before it received approval and recommendation from the building control officer and having regard to the affidavit filed by the latter, there is no reason to conclude that the decision maker did not take into account the provisions of s 7(1)(b) of the Act.”[71]

[58] It appears to me that the High Court misunderstood the issue when it dealt with the question as to whether the impugned decision was unlawful. In outlining the grounds of review, the High Court stated that one such ground was that the City had failed to comply with a mandatory and material procedure prescribed by sections 6 and 7 of the empowering Act. Having found that, on a proper construction, section 7(1)(b) required the decision-maker to ensure that none of the disqualifying factors was present before approval, the High Court should have determined on the papers before it, whether it could be found that the decision-maker had so ensured.

[59] In this case, the City asserts that the decision-maker was satisfied before approving the plans that none of the disqualifying factors would be triggered. The difficulty with this contention is that it is not borne out by the objective facts provided by the City itself. As mentioned earlier, when asked to furnish the list of documents placed before the decision-maker, the City mentioned the application for the approval of plans, the form endorsed by various departments and a document titled “Land Information System – Ratepayers Data”. It was asked to confirm if these were the only documents placed before the decision-maker and the City confirmed this to have been the position.

[60] There can be no doubt that these documents could not reasonably have satisfied the decision-maker that none of the disqualifying factors would be triggered. None of these documents refers to those factors. If indeed the decision-maker was so satisfied on the basis of these three documents, his satisfaction was not based on reasonable grounds. The documents fall far short as a basis for forming a rational opinion. Nor does the mere statement by the City to the effect that the decision-maker was satisfied suffice. In the past, when reasonableness was not taken as a self-standing ground for review, the City’s ipse dixit could have been adequate.[72] But that is no longer the position in our law. More is now required if the decision-maker’s opinion is challenged on the basis that the subjective precondition did not exist. The decision-maker must now show that the subjective opinion it relied on for exercising power was based on reasonable grounds.[73] In this case, it cannot be said that the information, which the City admitted had been placed before the decision-maker, constituted reasonable grounds for the latter to be satisfied.

[61] The determination of whether the decision-maker was satisfied that the disqualifying factors will not be triggered by the erection of the block of flats concerned entails a factual enquiry. The fact that the Building Control Officer had considered those factors is irrelevant to this enquiry unless it is established that this fact was communicated to the decision-maker. There is no evidence in the record showing that such communication took place. Consequently, it is not correct in my view, for the City to assert that, since the relevant factors had been considered by the Building Control Officer, it must be accepted that the decision-maker had also considered them.

[62] The word “recommendation” on its own, does not objectively indicate what was considered by the Building Control Officer before he reached the decision to recommend approval of the plans. Accordingly, the decision-maker was not entitled to assume, from the use of this word alone, that the Building Control Officer had considered the issue of the disqualifying factors, and that he reached the opinion that they did not exist.

[63] The fact that the Building Control Officer (who deposed to the City’s main affidavit which was confirmed by the decision-maker) had extra information in his possession which could, when taken together with the documents in question, have formed an adequate basis for the opinion, does not cure the defect. Such additional information as the Building Control Officer had was not placed before the decision-maker. Therefore, the reasonableness of the decision-maker’s satisfaction can be determined with reference only to the information he had before him at the time he considered the building plans in question. An evaluation of such information reveals that it was inadequate. It follows that the decision-maker had failed to properly determine that none of the disqualifying factors would be triggered by the erection of the block of flats. I proceed to consider whether the decision-maker had the necessary recommendation before granting the approval.

The meaning of “recommendation” in the context of sections 6 and 7 of the Building Standards Act

[64] Relying on Ex parte Porritt,[74] counsel for the applicant argued, both in the High Court and this Court, that “recommendation” as contemplated in section 7, entails the weighing of the merits and demerits of the subject matter with a view to giving advice on the course to be taken by the decision-maker. He submitted that the grounds supporting the advice given must appear in the body of the recommendation for the benefit of the decision-maker, so that he or she can be in the position to independently assess the cogency of the advice. In this case, the endorsement and signature of the Building Control Officer, it was argued, did not constitute a recommendation contemplated in the section. Without such recommendation, continued the argument, the necessary jurisdictional fact was lacking and consequently the approval of the plans was invalid.

[65] Counsel for the City argued that, since “recommendation” is not defined in the Building Standards Act, it must be given its ordinary meaning within the context and purpose of the relevant provisions. I agree with this proposition. Counsel then referred us to the dictionary meaning of “recommendation”. He submitted that “recommendation” means “a suggestion or proposal as to the best course of action, especially one put forward by an authoritative body”. Invoking this definition, counsel for the City submitted that all that is required by the relevant provisions is a proposal or suggestion that the building plans be approved.

[66] The interpretation proposed by the City attaches prominence to the literal meaning of the term with no regard to the context and purpose of sections 6 and 7. For the proper making of recommendations and performance of other functions listed in the Building Standards Act, section 5 requires that the Building Control Officer be suitably qualified. Section 6(2) requires the recommendation to incorporate the report of the Chief Fire Officer where a fire protection plan is needed. The section does not require that such report be annexed to the recommendation, but that it be incorporated as an integral part of the recommendation. In addition, section 7 does not only make the recommendation a jurisdictional fact, but it also obliges the decision-maker – in express terms – to consider the recommendation before he or she takes the decision to approve or refuse to grant an approval of particular plans. The structure of section 7 is such that the ultimate decision by the decision-maker depends on the opinion he or she reaches following a consideration of the recommendation. If he or she is satisfied that the application for approval complies with the necessary requirements and that none of the disqualifying factors will be triggered, the decision-maker has no choice but to approve the plans. If, on the other hand, he or she is satisfied that one or more disqualifying factors will be triggered, he or she must refuse to grant approval. He or she must also refuse the application if not satisfied that there was compliance with the necessary requirements.

[67] The discretion conferred on the decision-maker is highly circumscribed because the decision taken is reliant upon the antecedent opinion reached. The opinion of being “satisfied” or “not satisfied” is reached upon a consideration of the recommendation. This emerges from the opening words employed in section 7(1) which in part reads:

“If a local authority, having considered a recommendation referred to in section 6(1)(a) . . . is satisfied that the building to which the application in question relates— is to be erected in such a manner or will be of such nature or appearance that . . . it will probably or in fact derogate from the value of adjoining neighbouring properties . . . such local authority shall refuse to grant its approval . . . and give reasons for such refusal.”

For section 7(1)(b)(ii) to make sense, it must be read in this way. The part of the section dealing with the disqualifying factors is inextricably linked to the opening part, which requires the decision-maker to be satisfied, following a consideration of the recommendation.

[68] What emerges from this interpretation is that the purpose of the recommendation is to furnish the decision-maker with a basis for his or her opinion, one way or the other. This much was conceded by counsel for the City. In its written argument they submitted:

“The decision-maker would be aware of the provisions of section 7(1), and would know that the Building Control Officer (a specialist official) would be aware of them. The recommendation of the Building Control Officer can only mean that the application complied with the requirements of the Act and any other applicable law, that it had not been found that any of the disqualifying factors was present, and that the decision-maker was accordingly advised to approve the application.”

[69] The decision-maker must, however, assess and be satisfied of these issues himself or herself. He or she is not expected to accept without more the proposal of the Building Control Officer. Nor is he or she expected to infer from the word “recommend” that none of the disqualifying factors will be triggered. Section 7(1) requires the decision-maker to be “satisfied” before making a decision on whether to grant or refuse the application. In a different but not unrelated context, in New Clicks,[75] Ngcobo J stated:

“The Minister is required to make regulations based on the recommendation of the Pricing Committee. The Minister does not merely rubber stamp the recommendation of the Pricing Committee. She is required to apply her mind to the recommendation and make a decision whether to accept such recommendation. She cannot therefore accept the fees proposed by the Pricing Committee simply because they have been proposed by the Pricing Committee. She must satisfy herself that the fees proposed by the Pricing Committee are appropriate within the meaning of s 22G(2). She can only do this if she is furnished with an explanation as to how the fees were arrived at. Without such information, the Minister cannot properly evaluate the appropriateness or otherwise of the fees proposed by the Pricing Committee.”[76]

[70] If the purpose of the recommendation is merely to inform the decision-maker of the Building Control Officer’s attitude or view on the approval, as argued by the City’s counsel, it is difficult to imagine why the recommendation is made a jurisdictional fact, when the decision-maker can investigate on his or her own, matters relating to compliance with requirements and the disqualifying factors. It is equally difficult to find the reason why the legislature would oblige the decision-maker to consider the recommendation before forming an opinion as to whether he or she was satisfied about a particular state of affairs, if the recommendation was not intended to be the primary source of information leading to being satisfied. The facts of the present case demonstrate that the Building Control Officer had information concerning the very issues which the decision-maker was required to consider, but this information was not placed before the decision-maker. As a specialist the Building Control Officer is best suited to advise the decision-maker about disqualifying factors. This is so because the determination of these factors involves a prediction of what may happen in the future as a result of the erection of the building to which the plans apply.

[71] The recommendation therefore is the proper means by which information on disqualifying factors can be placed before the decision-maker. I am satisfied that the endorsement and signature of the Building Control Officer in this case did not constitute a recommendation as envisaged in sections 6 and 7 of the Building Standards Act. Although the Building Standards Act does not strictly require this, it will be helpful and enhancing to the process if the Building Control Officer, at the stage of compiling the recommendation invites, from owners of neighbouring properties, representations about the impact the proposed building might have on their properties. Such approach would help in dealing with issues relating to disqualifying factors. This would significantly reduce chances of approval of plans in cases where some of the disqualifying factors exist but were not discovered by a local authority. As we now know, the existence of such factors, if proved, constitutes a valid ground for setting aside the approval after it had been acted upon and at high cost to all parties concerned.

[72] The above finding does not subtract anything from the rigorous and impressive process followed by the amicus and the City up to the stage when the application for the approval is placed before the Building Control Officer. Most of the steps taken during that process are not even required by the Building Standards Act but they constitute a salutary procedure which must be encouraged. No matter how impressive the process might be, it is no substitute for the mandatory requirements of the Building Standards Act. The Building Control Officers must ensure that adequate information is placed before decision-makers so that they can consider applications for approval of building plans properly and in a balanced way. The recommendations they make must serve this purpose. The approval of plans in the absence of such recommendation in this matter means that the necessary jurisdictional fact was lacking. It follows that the approval is invalid and must be set aside. This being the view I take on the matter, it becomes unnecessary to consider the other issues raised by the applicant.

Relief

[73] Counsel for the City argued that the applicant is not entitled to any relief, because he had failed to exhaust internal remedies provided for in section 62 of the Municipal Systems Act. I have already found that this section does not apply to the applicant’s case. In the event of this Court setting aside the approval, counsel for the City submitted that a just and equitable remedy is to remit the matter to the City. I agree.

Costs

[74] The applicant has been successful and therefore he is entitled to his costs. The City is responsible for the defect in the impugned decision. Although the respondents defended the decision, both in the High Court and this Court, it would be unfair to order them to pay costs arising from their defence of the decision. Fairness will best be served if the City is ordered to pay the applicant’s costs. The amicus and the re

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South Africa: Constitutional Court

Walele v City of Cape Town and Others (CCT 64/07) [2008] ZACC 11 (13 June 2008)