South Africa
Declaratory Relief, Administrative, Criminal, Remedies, Permits, Taxation, Inspections, Property, Land Use, Standing
The Supreme Court of Appeal held that the permission that was granted by the former Administrator of the Cape in 1957 for the establishment of the residential township known as Oudekraal on the Atlantic coast of the Cape peninsula was invalid. It held that the inference was inescapable that the Administrator gave his permission in ignorance of all the material facts or in disregard of them. Either he was not aware at the time he granted his permission that there were Muslim shrines and graves on the site that dated back to the days of slavery in the Cape Colony, or, if he was aware of their existence, he ignored them. In either event his permission was invalid. As a result the court held that the Cape High Court had correctly refused to grant the current owner of the land an order declaring that the development rights granted to its predecessor were of full legal effect. In dismissing the appeal brought by the landowner, the Supreme Court of Appeal said, however, that the fact that the permission was legally invalid did not, by itself, mean that the subsequent registration of township rights against the title deed of the land, and the gazetted declaration of the township as officially approved, could simply be ignored. The court explained that an invalid act, such as the Administrator’s permission, can nevertheless have certain valid legal consequences. Whether it does so depend on whether the relevant law (in this case the Cape Townships Ordinance of 1934) makes the subsequent acts dependent on the validity of the first act or merely dependent on the apparent validity of the first act. The Court pointed out it was not for the later officials who approved the plan and registered the rights to investigate whether the Administrator’s permission was valid or not. They were entitled and required to accept it at face value. It was therefore not enough to defeat the landowner’s claim for the opposing parties to rely on the invalidity of the Administrator’s permission. Nevertheless it was still open to them to try to have the permission set aside in separate proceedings for judicial review. If those proceedings were successful the permission and all that followed from it could be set aside. Since there was a realistic prospect of such review proceedings succeeding, the present owner was not entitled to the far-ranging order it had sought. As it had not asked for any lesser order the Cape High Court correctly dismissed the application.