THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO: 20001/2014
Reportable
In the matter between:
THE TRUSTEES OF THE SIMCHA TRUST (IT 1342/93)

APPELLANT
and
MADELEINE DE JONG

FIRST RESPONDENT
GREGORY NIGEL JOSEPH WHITE

SECOND RESPONDENT
MARTHINUS JOHANNES ELS

THIRD RESPONDENT
MARGARET JEAN WOUTERS

FOURTH RESPONDENT
JOSHUA SAMUEL JOHNSON SOUTH

FIFTH RESPONDENT
NICOLE GENEVIEVE KYTE

SIXTH RESPONDENT
JACQUES SCHMIDT

SEVENTH RESPONDENT
SUZANNE WEHMEYER (SCHMIDT)

EIGHT RESPONDENT
EXCLUSIVE ACCESS TRADING 585 (PTY) LTD
NINTH RESPONDENT
EMANUEL FEGUERA DE ABREU

TENTH RESPONDENT
SHIRAAZ JOOSUB

ELEVENTH RESPONDENT
BARRISTER INVESTMENTS (PTY) LTD

TWELFTH RESPONDENT
AMBER VAN DER WALT

THIRTEENTH RESPONDENT
SARAH ELIZBETH HALLAS

FOURTEENTH RESPONDENT
JOAO OSE RIBEIRO DA CRUZ

FIFTEENTH RESPONDENT
SKYE MIDDLETON

SIXTEENTH RESPONDENT
RICHARD DANIEL KYTE

SEVENTEENTH RESPONDENT
THE CITY OF CAPE TOWN

EIGHTEENTH RESPONDENT

Neutral Citation:
Simcha Trust v Madeleine de Jong (20001/2014) [2015] ZASCA 45
(26 March 2015).
Coram:
Navsa ADP, Brand, Mhlantla & Zondi JJA and Schoeman AJA
Heard:

26 February 2015
Delivered:

26 March 2015
Summary:
Claim against City of Cape Town for compensation in terms of s
8(1)(c)(ii)(bb) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) based on
improper approval of building plans that caused neighbouring property owners to seek
redress – high court unjustifiably allowing litigation in terms of which aggrieved land
owners had sought a review into litigation in terms of which the offending land owner
was permitted to alter its position from co-respondent into an applicant seeking redress
in terms of s 8(1)(c)(ii) of PAJA – interpretation and application of that sub-section –
compensation not available when administrative decision set aside and where remittal
should follow – courts slow to impose liability on administrators who do their work
negligently but honestly – „exceptional cases‟ as the expression appears in s 8(1)(c)(ii)
is concerned with appropriateness of remedy rather than quality of decision sought to
be impugned – even if sub-section could be employed in favour of the offending land
owner the circumstances were such that any decision would be premature in that it was
not possible to say now what the ultimate outcome of either the old or new plans would
be.

______________________________________________________________________
ORDER
______________________________________________________________________

On appeal from: Western Cape Division, Cape Town (Rogers J sitting as court of first
instance): judgment reported sub nom De Jong & others v The Trustees of the Simcha
Trust & Another 2014 (4) SA 73 (WCC).

The following order is made:

The appeal is dismissed with costs including the costs attendant upon the employment
of two counsel.

______________________________________________________________________

JUDGMENT
______________________________________________________________________
Navsa ADP (Brand, Mhlantla & Zondi JJA and Schoeman AJA concurring):

[1] This appeal is directed against the dismissal by the Western Cape Division, Cape
Town (Rogers J), of a claim by the appellant, the Trustees of the Simcha Trust
(Simcha), for compensation in terms of s 8(1)(c)(ii)(bb) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). The case turns on the interpretation and
application of that section.

[2] Simcha‟s claim for compensation was based on the wrongful approval by the
eighteenth respondent, the City of Cape Town (the City), of building plans submitted by
the former to the latter. The plans had been set aside because of a challenge in the
Western Cape Division by owners of an adjoining building, the first to seventeenth
respondents (the Seventeen), under the provisions of PAJA. The setting aside of the
plans was by agreement between Simcha, the City and the Seventeen. Desai ADP
issued an order to that effect. It is necessary to note that when he did so, the matter
was not expressly remitted to the City for reconsideration. It is now necessary to deal in
some detail with the background leading up to the order of Desai ADP and to the
adjudication of the claim for compensation by Rogers J.

[3] The Seventeen are registered owners of sectional title units at Four Seasons
Sectional Title Scheme, situated at 43 to 47 Buitenkant Street Cape Town. The
sectional title units immediately abut the property owned by Simcha, in respect of which
the plans were submitted to the City for approval. It appears that Simcha‟s adjoining
property had been derelict for years and that the plans in question contemplated an
exponential increase in the height and size of the building. Subsequent to the approval

of the plans, construction work began in earnest on 14 May 2012. It was contemplated
that a hotel and a block of flats would be erected. The Seventeen, realising what was
taking place, conducted investigations and were advised that the approval of the plans
could be impugned on a number of grounds. That prompted a successful application for
an interdict, pending the outcome of an application to have the approval of the plans
reviewed and set aside. The Western Cape Division, Cape Town (Dolamo AJ) issued
the following order:
„The first respondent is hereby interdicted from carrying out or allowing any further construction
work on Erf 5284 Cape Town situated at 41 Buitenkant Street, Cape Town pending a final
determination of an application to be commenced by the applicant within 14 days from date
hereof for the review of the decision of the second respondent of 20 September 2008 to
approve building plans submitted to it by the first respondent in terms of the National Building
Regulation Standard Act 103 of 1977.‟
The court directed that the costs of the interdict stand over, pending determination of
the review application.

[4] The Seventeen applied in the Western Cape Division, Cape Town for an order
reviewing and setting aside the approval by the City, on 20 October 2008, of building
plans submitted by Simcha in terms of the National Building Regulations and Building
Standards Act 103 of 1977 (the NBRBSA) in respect of a building to be constructed on
erf 5284 situated at 41 Buitenkant Street Cape Town. It specifically sought an order that
Simcha pay the costs of the application and the related interdict. In their founding
papers in the review application, the Seventeen attacked the City‟s approval of
Simcha‟s plans. First, because of the extent – mainly the height – of the building to be
constructed on behalf of Simcha, it was submitted that there would be derogation in
value of their neighbouring properties. It was contended that the regulatory statutory
framework precluded approval of plans that derogated from the value of adjoining and
neighbouring properties. The principal statutory tools for regulating land use in the City
is the Land Use Planning Ordinance 15 of 1985 (LUPO) and the zoning scheme
regulations. The property in construction was described as being „too intrusive‟ and
„overwhelming‟.

[5] The Seventeen complained that the approval by the City of Simcha‟s high-rise
building would ensure that they were deprived of natural light, privacy and ventilation,
affecting their rights of full enjoyment of their properties. The evidence of a professional
property-valuer was relied upon by the Seventeen to the effect that, if Simcha‟s property
were to proceed to completion, it would occasion loss of value of the properties of the
Seventeen of up to 30 per cent.

[6] In addition, the Seventeen contended that a building control officer appointed in
terms of the NBRBSA had an obligation to investigate property value derogations and to
make a recommendation to persons to whom the City had delegated the power to
approve or refuse applications for building plan approvals. Such a recommendation, so
it was contended, required a motivated report in respect of a conclusion reached by him
in relation to the derogation of property values. It is common cause that in the present
case, no such report was completed by the building control officer.

[7] The review application was not opposed by the City. After the interim order had
been granted, Simcha filed an affidavit in the review application styled „first respondent‟s
further affidavit‟, which described events after the grant of the interim order. The
interdict did not have an immediate impact on continued building operations because it
had been granted towards the end of the year when the builders‟ holiday was imminent.
Simcha insisted that the only basis for the interdict was the decision of the
Constitutional Court Walele v City of Cape Town 2008 (6) SA 129 (CC). At this stage, it
is necessary to interrupt this narrative to consider ss 6 and 7 of the NBRBSA and the
decision in Walele. The relevant parts of s 6 provide:
„(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.

[8] The relevant parts of s 7 provide as follows:
„(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 a manner or will 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.‟

[9] The Constitutional Court, in Walele held that the purpose of the recommendation
by the building control officer, contemplated in s 6, must be to furnish the decision-
maker with a basis for his or her opinion, one way or the other, and that the decision-
maker must assess and himself or herself be satisfied about these issues. In the
present case, as in Walele, there was no motivation for a decision reached by the
building control officer that the plans were in accordance with statutory prescripts and
more particularly that there would be no derogation in the value of neighbouring
property. As in Walele, he only ticked an appropriate box in a standard form.

[10] In its further affidavit, Simcha stated that after appreciating the effect of the
decision in Walele, it decided to concede the review application. From its perspective,
that decision was solely based on the failure of the building control officer and the City
to comply with the prescripts of ss 6 and 7 of the NBRBSA.

[11] Continuing its narrative of what happened after the grant of the interim interdict,
Simcha described how it attempted to reach an agreement with the City concerning the
continuation of building operations. Predictably, the City was not receptive. Ultimately
Simcha decided to submit new plans. There were subsequent legal skirmishes between
the Seventeen and Simcha about whether steps taken to protect the building under
construction, in the interim, amounted to further building activity in violation of the
interdict, but those disputes were resolved.

[12] The City‟s approval process for Simcha‟s new plans dragged on without an end
in sight, in the short term. Despite the relief sought by the Seventeen being conceded
by both the City and Simcha and despite the former not seeking costs in relation to the
review application, Simcha, nonetheless, filed its further affidavit, its declared object for
doing so was to require the court below to order the City, (a) to pay the costs of the
interim interdict and the review application, and (b) to order it to refund the scrutiny fees
of R82 327.60, paid in respect of the first set of plans. In addition, Simcha sought an
order that the City should compensate it for out-of-pocket losses resulting from the grant
of the interim interdict. I pause to state that the costs related to the interdict, in the main,
comprised the costs occasioned by Simcha‟s opposition. Simcha contended that it was
entitled in terms of s 8(1)(c)(ii)(bb) of PAJA to the compensation, set out above, which
appeared to include the scrutiny fees. It insisted that it was entitled to an order in terms
of that subsection on the basis that the plans were approved, notwithstanding that the
approval was preceded by the Constitutional Court decision in Walele.1 In support of
this claim, Simcha argued that the City‟s conduct in not implementing the Walele
decision and causing affected persons to suffer loss, was unconscionable and
incomprehensible. In paragraph 21 of its further affidavit, it contended:
„The City “abides” the review. Having been grossly negligent in failing to implement Walele; and
having thus far made no attempt to assist the Trust (whether it be by way of the urgent
consideration of fresh building plans or otherwise) the City has now taken the ultimate step of
betrayal, which was to wash its hands in innocence and leave the Trust to its own devices in the
review.‟

1 The Walele judgment was delivered on 13 June 2008 and Simcha‟s plans approved on 20 October 2008
– more than four months later.

The costs orders sought and the claim to compensation were adjudicated by Rogers J.

[13] The lis concerning the validity of the approval of the plans had been settled. The
only outstanding issue was costs, which ought to have been decided with reference to
the facts of the review application. Ordinarily, the successful party – the Seventeen –
would have been entitled to an order for costs of the application, to be paid by Simcha,
the only initially opposing party. The Seventeen, in any event, did not seek the costs of
the review application. All that was left was consideration of the costs related to the
interim interdict for which Simcha, ordinarily, would have been liable. I do not
understand how the dispute, concerning the correctness of the City‟s approval of the
plans, transformed from litigation in respect of which Simcha, was a co-respondent with
the City, to litigation in terms of which Simcha was now seeking redress against the City
on the basis of the latter‟s asserted reckless or negligent conduct in approving the
plans. And that transformation occurred purely on the strength of a „further affidavit‟.
What was required was some new process to be instituted by Simcha against the City,
which would then have been adjudicated on the merits. By permitting this unjustifiable
metamorphosis, Rogers J allowed an extension of the litigation. That being said, it is
now necessary to deal with the Western Cape Division‟s adjudication of Simcha‟s claim
to compensation, purportedly in terms of s 8(1)(c)(ii)(bb) of PAJA.

[14] In deciding Simcha‟s claim to compensation, the high court‟s starting point was
the provisions of s 8(1) of PAJA which read as follows:
„(1) The court or tribunal, in proceedings for judicial review in terms of section 6(1), may grant
any order that is just and equitable, including orders –
(a) directing the administrator –
(i) To give reasons; or
(ii) To act in the manner the court or tribunal requires;
(b) prohibiting the administrator from acting in a particular manner;
(c) setting aside the administrative action and –
(i) remitting the matter for reconsideration by the administrator, with or without directions;
or
(ii) in exceptional cases –

(aa)
substituting or varying the administrative action or correcting a defect
resulting from the administrative action; or
(bb)
directing the administrator or any other party to the proceedings to pay
compensation;
(d) declaring the rights of the parties in respect of any matter to which the administrative action
relates;
(e) granting a temporary interdict or other temporary relief; or
(f) as to costs.‟

[15] Rogers J considered the three submissions on behalf of the City. First, that
compensation in terms of s 8(1)(c)(ii) could not be granted where the court had set
aside the administrative action and remitted the matter for reconsideration by the
decision-maker. That being so, it was contended that the alternative remedy, of
compensation, set out in s 8(1)(c)(ii) was not available. Second, that the circumstances
which render a case „exceptional‟ within the meaning of s 8(1)(c)(ii) are not concerned
with the egregiousness of the impugned conduct but with the appropriateness of
departing from the usual remedy of remittal. Third, that the sub-section can only be
invoked by an aggrieved applicant seeking a review of a decision rather than by a
respondent.

[16] The court a quo agreed with the first two submissions referred to in the preceding
paragraph. Rogers J considered them to accord with the structure of s 8(1)(c). He took
the view: Firstly, that the use of the word „and‟ at the end of the introductory part of
paragraph (c) followed by the separation of sub-paragraphs (i) and (ii) with the word „or‟
is a strong „syntactical pointer‟ in favour of the view that the remedies in those two sub-
paragraphs are alternatives that are mutually exclusive. And secondly, that sub-
paragraph (ii) was qualified by the phrase „in exceptional circumstances‟, indicating that
the remedies in sub-paragraph (ii) apply in circumstances different from those in sub-
paragraph (i). In consequence, he concluded that at least in the case of item (aa) of
sub-paragraph (ii), the remedy can only ever be a true alternative to the remedy in sub-

paragraph (i). He reasoned that a court could not remit a matter for reconsideration by
the decision-maker and also substitute or vary the action complained of.

[17] With reference to the decision of this court in Gauteng Gambling Board v Silver
Star Development Ltd & others 2005 (4) SA 67 (SCA) para 28, Rogers J agreed with
the contention that the phrase „in exceptional cases‟ was not concerned with whether
the administrative decision „was a conspicuously bad one but with whether there are
unusual circumstances which make it appropriate to grant the exceptional remedy in
item (aa) or (bb) rather than the usual remedy of remittal.‟ He concluded that
exceptionality was concerned with the choice of remedy, not the quality of the
administrator‟s decision in the abstract.

[18] Rogers J also agreed with the submission on behalf of the City that the remedy
of compensation must have been intended by the legislature as a remedy for the benefit
of an aggrieved party in the review proceedings because such party will enjoy, neither a
reconsideration of his administrative application by the original administrator, nor obtain
the benefit of a substituted administrative decision by the court. At the end of paragraph
22 he said the following:
„I do not say that an aggrieved party in review proceedings is entitled to compensation merely
because there has been neither a remittal nor a substitute decision by the court but I do hold
that compensation is not available as a remedy if the usual remedy of remittal has been granted
or if exceptionally the court has substituted its own decision for that of the administrator.‟

[19] As part of his reasoning, Rogers J was rightly concerned that affected parties
could, on his interpretation of the relevant section of PAJA, be precluded from obtaining
compensation under PAJA in respect of loss suffered as a result of really egregious
administrative decisions, because in such cases the remedy of remittal will often remain

appropriate, or there may be scope for a substituted administrative decision by the
court. However, he did not see this as justification for departing from what appeared to
him to be the clear meaning of s 8(1)(c) of PAJA. He stated that it should be borne in
mind that the law of delict remained at the disposal of an affected party. The court below
was rightly aware that our courts have been conscious of the dangers of imposing
liability on public bodies for the negligent but honest exercise of powers. In this regard
he relied on the decision of the Constitutional Court in Steenkamp NO v Provincial
Tender Board, Eastern Cape 2007 (3) SA 121 (CC) paras 38-56.

[20] As part of his reasoning, Rogers J also had regard to Darson Construction (Pty)
Ltd v City of Cape Town & Another 2007 (4) SA 488 (C). What that case held was that,
having regard to the facts, (a) it was impractical to remit the decision for
reconsideration; (b) there had been no basis for the court to substitute its own decision
for that of the decision-maker; and (c) that an applicant was entitled to some
compensation for the manner in which the City had breached the applicant‟s right to
administrative justice. Rogers J noted that in Darson there had been no analysis of the
structure of s 8(1)(c) of PAJA and considered it significant that compensation was only
awarded because neither the remedy of remittal nor a substituted order was feasible.

[21] Returning to the facts before him, Rogers J held that Simcha‟s claim for
compensation could not succeed. He took into account that, even though the order of
Desai ADP did not expressly provide for remittal to the City for reconsideration, it could
readily be concluded that it had that effect. The following part of the judgment reflects
his reasoning:
„[I]t is perfectly clear from the history of the matter that nobody understood the order as finally
determining that the building plans submitted by Simcha in 2008 were not able to be approved.
All that was set aside was the approval of the application. The review court did not substitute for
that approval a refusal of the building plan application. The legal position, upon the granting of
the review order, was that the 2008 application for building plan approval remained before the

City and Simcha was entitled to a decision on that application. That being the obvious purport of
the order, it is not open to the review court to grant either of the exceptional alternative remedies
in para (ii) of sub-section 8(c).‟

[22] Although the court below also held that the City‟s approval of Simcha‟s plans,
along with thousands of others, in violation of Walele, was a serious dereliction of duty
and stated that, in its view, the decision to approve Simcha‟s plans was a conspicuously
bad one, it did not consider it to be „exceptional‟ within the meaning of that expression in
s 8(1)(c)(ii). It is necessary to record that although the City‟s explanation for its tardiness
in implementing Walele is not particularly persuasive, the picture that emerges from its
explanation for the delay is one of a lumbering bureaucracy trying to come to terms with
the implications of Walele, taking advice on it and not being very effective in finding a
solution in dealing with plans that had already been approved and with plans still to be
considered.

[23] The court below considered causation to be a further problem confronting
Simcha. In that regard Rogers J rightly asked whether a properly motivated report by
the building control officer might, in any event, have led to the plans being rejected or, if
approved, be overturned on review. It brings into sharp focus the manner in which
Simcha required the issue to be determined, namely, by way of its further affidavit and
unacceptably transforming the litigation in the manner described above.

[24] It was rightly accepted on behalf of Simcha that, if the compensation claim failed,
Simcha ought to pay the City‟s costs in the review application. Ironically, Rogers J
restricted those to costs arising out of the affidavits filed in connection with
compensation as well as to the appearance related to the claim for compensation. This
once again illustrates the distortion caused by extending the litigation. In respect of the
costs of the interdict, Rogers J considered that Simcha‟s persistent opposition was such
that Simcha probably knew, prior to the institution of legal proceedings, that no building
control inspector‟s report existed. In the view of the court below the costs of the interdict
should follow the result, namely, that Simcha should pay the applicant‟s interdict costs

and that the City should not be ordered to pay the costs of either the applicant or of
Simcha. In the result the following order was made:
„[a]
The first respondent‟s claim against the second respondent for compensation in terms of
s 8(1)(c)(ii)(bb) of the Promotion of Administrative Justice Act 3 of 2000 is dismissed.
[b]
The first respondent is directed to pay the second respondent‟s costs in relation to the
said claim for compensation, including the costs of two counsel.
[c]
In regard to the costs in case 22197/12 reserved by this court‟s judgment of 12
December 2012, the first respondent is directed to pay the applicant‟s costs, including the costs
of two counsel.‟

[25] I agree with the conclusion of the court below that, although Desai ADP did not
expressly remit the matter to the City for reconsideration, the legal effect of the setting
aside of the City‟s approval would have been a remittal. This is particularly so where a
party has not requested it, and a court has not seen fit to substitute a decision-maker‟s
decision with one of its own. In any event, having regard to the structure of s 8(1) of
PAJA, that could only occur in an exceptional case. Courts are not overly enthusiastic to
substitute their decisions for those of decision-makers where technical proficiency is
required, particularly where the decision-maker‟s experience and skills are beyond
those of a court.2 This does not however mean that a court will shirk its responsibility in
ensuring that the principle of legality is met, even where the issues are intricate and
complex and in respect of which a decision-maker has institutional experience and
expertise.

[26] The legal effect of remittal referred to in the preceding paragraph remains
unaffected by Simcha‟s decision, in pursuance of its own interests, to submit new plans
in an attempt to expedite a planning approval process to enable the building it
contemplates on its property to be completed as soon as possible.

2 See Minister of Environmental Affairs and Tourism and others v Phambili Fisheries (Pty) Ltd; Minister of
Environmental Affairs and Tourism and others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) para
50 and Associated Institutions Pension Fund v Van Zyl 2005 (2) SA 302 (SCA) and the discussion in C
Hoexter Administrative Law in South Africa 2ed (2012) at 151-153.

[27] A careful reading of s 8 of PAJA leads one to the conclusion that in respect of
some of the sub-provisions of s 8(1) one could have a combination of remedies.
However, when an administrative action is set aside in terms of s 8(1)(c) a court can
follow only one of the two alternatives provided for in s 8(1)(c)(i) or (ii). I therefore agree
with the conclusion reached by the court below, set out in paragraph 16 above, that the
remedy of compensation is not available when an administrative act has been set aside
and the matter remitted for reconsideration. I find the reasoning of the court a quo set
out in paragraph 16 above to be compelling.

[28] In Gauteng Gambling Board this court said the following at para 28:
„The power of a court on review to substitute or vary administrative action or correct a defect
arising from such action depends upon a determination that a case is “exceptional”: s
8(1)(c)(ii)(aa) of the Promotion of Administrative Justice Act 3 of 2000. Since the normal rule of
common law is that an administrative organ on which a power is conferred is the appropriate
entity to exercise that power, a case is exceptional when, upon a proper consideration of all the
relevant facts, a court is persuaded that a decision to exercise a power should not be left to the
designated functionary. How that conclusion is to be reached is not statutorily ordained and will
depend on established principles informed by the constitutional imperative that administrative
action must be lawful, reasonable and procedurally fair.‟
The court below was correct in relying on that decision in reaching its conclusion that
the phrase „in exceptional cases‟, as it appears in s 8(1)(c)(ii), was not concerned with
whether the administrative decision „was a conspicuously bad one but with whether
there are unusual circumstances which make it appropriate to grant the exceptional
remedy in item (aa) or (bb) rather than the usual remedy of remittal.‟ Hence I agree with
its conclusion that exceptionality was concerned with the choice of remedy, not the
quality of the administrator‟s decision in the abstract.

[29] In Steenkamp the Constitutional Court was concerned with the question whether
financial loss caused by improper performance of a statutory or administrative function
should attract liability for damages in delict. Moseneke DCJ said the following at para
29:

„It is nonetheless appropriate to note that ordinarily a breach of administrative justice attracts
public-law remedies and not private-law remedies. The purpose of a public-law remedy is to
pre-empt or correct or reverse an improper administrative function. In some instances the
remedy takes the form of an order to make or not to make a particular decision or an order
declaring rights or an injunction to furnish reasons for an adverse decision. Ultimately the
purpose of a public remedy is to afford the prejudiced party administrative justice, to advance
efficient and effective public administration compelled by constitutional precepts and at a
broader level, to entrench the rule of law.‟
In Steenkamp s 38 of the Constitution was implicated.3 In the present case, reliance
was placed solely on the provisions of s 8(1)(c) of PAJA. In para 30 of Steenkamp the
following appears:
„Examples of public remedies suited to vindicate breaches of administrative justice are to be
found in s 8 of the PAJA. It is indeed so that s 8 confers on a court in proceedings for judicial
review a generous jurisdiction to make orders that are “just and equitable”. Yet it is clear that the
power of a court to order a decision-maker to pay compensation is allowed only in “exceptional
cases”. It is unnecessary to speculate on when cases are exceptional. That question will have to
be left to the specific context of each case. Suffice it for this purpose to observe that the
remedies envisaged by s 8 are in the main of a public law and not private law character.‟

[30] Steenkamp was rightly relied on by Rogers J for his statement that our courts
have been slow to impose liability on public bodies for negligent but honest decisions.
As noted in Steenkamp, if administrative or statutory decisions are made in bad faith or
under corrupt circumstances or completely outside the legitimate scope of the
empowering provision, different public policy considerations may well apply.4 There is
no suggestion that those circumstances obtain in the present case.

3 Section 38 read as follows:
„Anyone listed in this section has the right to approach a competent court, alleging that right in the Bill of
Rights has been infringed or threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach a court are:
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.‟
4 Para 55.

[31] I also agree that in the ordinary course the remedies provided for in s 8(1) of
PAJA are envisaged to be at the disposal of a party aggrieved and negatively affected
by administrative action and seeking to have the decision reviewed. In the present case
the Seventeen were the parties seeking the review. The Seventeen might have been
entitled to compensation in the event that none of the other remedies envisaged in s 8
of PAJA were available to them. That, however, is not a factual permutation we need
concern ourselves with. Rogers J‟s reasoning in this regard, set out in paragraph 18
above, appears to me to be correct.

[32] When counsel on behalf of Simcha was asked why it did not pursue a delictual
remedy, he surprisingly, but without much conviction, submitted that it could be deduced
that s 8(1)(c)(ii) had the effect of displacing that remedy. I do not intend to engage with
that contention, save to say that it is entirely without merit.

[33] In any event, in the circumstances of the present case, a claim for compensation
on any basis, whether in terms of s 8 of PAJA or by way of a delictual action appears
premature. We do not know the ultimate fate of the new plans that have been submitted
for approval. And in any event, the impugned plans have been abandoned. There is no
basis on which to determine finally whether they would ultimately have passed muster.
The causation problems foreseen by the court below are real.

[34] Whilst it might, with hindsight, be argued that the exercise engaged in by the
court below in adjudicating the claim for compensation was useful and will provide
future guidance, a court must guard against embarking on exercises it considers
jurisprudentially useful, when the effect is an unjustifiable extension of litigation which
must be prejudicial to a contesting party.

[35] For all the reasons set out above the appeal must fail. The following order is
made.

The appeal is dismissed with costs including the costs attendant upon the employment
of two counsel.

________________________
MS NAVSA
ACTING DEPUTY PRESIDENT

APPEARANCES:

FOR APPELLANT:

Adv. H J de Waal

Instructed by:

Brink De Beer & Potgieter Inc., Tygervalley

Honey Attorneys, Bloemfontein

FOR RESPONDENTS:
Adv. S P Rosenberg SC (With him E F van
Huyssteen)

Instructed by

Webber Wentzel, Cape Town

Matsepes Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

26 March 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Simcha Trust v Madeleine de Jong (20001/2014) [2015] ZASCA 45 (26 March 2015)

The Supreme Court of Appeal (SCA) today dismissed an appeal against a
decision of the Western Cape Division, Cape Town in terms of which it
dismissed an application by the appellant, the Trustees of the Simcha Trust
(IT 1342/93) for compensation, purportedly in terms of s 8(1)(c)(ii)(bb) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) against the City of
Cape Town, for approving building plans that were later set aside when the
owners of an adjacent property applied to court for an order in those terms.
The SCA was critical of the high court for allowing the review application in
which the trustees were co-respondents with the City to be transformed into
litigation in terms of which they sought redress against the City on the basis of
the latter’s asserted reckless or negligent conduct in approving the plans. And
that purely on the strength of a ‘further affidavit’.

The SCA nevertheless considered that the high court had rightly dismissed
the claim for compensation. It held that the provisions of PAJA, on which the
trustees relied, did not permit for a setting aside of an administrative decision,
the effect of which was a remittal to the decision maker in addition to

compensation. It agreed with the high court’s reasoning in this regard.

The SCA also agreed that the phrase ‘in exceptional circumstances’ in the
legislation in question was not concerned with whether the administrative
decision was a conspicuously bad one but with whether there are unusual
circumstances which make it appropriate to grant the remedy of
compensation. The SCA reiterated that courts were rightly aware of the
dangers of imposing liability on public bodies for the negligent but honest
exercise of powers.

The appeal was dismissed with costs including the costs attendant upon the
employment of two counsel.