THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 633/2011

Reportable

In the matter between

CITY OF CAPE TOWN

Appellant

and

FAIZEL HENDRICKS

First Respondent
MOGAMAT SMITH

Second Respondent

Neutral citation:
City of Cape Town v Hendricks (633/11) [2011] ZASCA 90
(31 May 2012)

Coram:
NUGENT, VAN HEERDEN, SNYDERS, MHLANTLA JJA and
SOUTHWOOD AJA

Heard:

10 May 2012

Delivered:

31 May 2012

Summary:
Warning/compliance notice of contravention of By-Law and demand
that recipient comply to avoid legal action not ‘administrative action’ for purposes of
Promotion of Administrative Justice Act 3 of 2000.

___________________________________________________________________
JUDGMENT
___________________________________________________________________

SOUTHWOOD AJA (NUGENT, VAN HEERDEN, SNYDERS and MHLATLA JJA
concurring)
[1] On 10 May 2012 when this appeal was called only the appellant was present.
The court made an order that the appeal was upheld and that the order of the court a
quo was set aside and replaced with an order that ‘the application is dismissed’.1
The court indicated that reasons would follow and these are the reasons.

[2] The appellant, the City of Cape Town (the City), appealed against the order of
the court a quo (Mantame AJ) –
(1) Reviewing and setting aside the City’s decision of April 2010 to compel the
respondents to remove and rebuild their business structures daily on their
trading sites;
(2) Reviewing and setting aside the City’s notices served on the respondents
on 23 April 2010 to remove their business structures from their trading
sites;
(3) Declaring that the respondents are entitled to remain in their existing
structures until the City has afforded the respondents sufficient
opportunity to make representations as to why their trading pattern cannot
be altered.
The issues before the court a quo were whether the City took the first decision,
whether the City’s decision to issue the notices on 23 April 2010 was administrative
action for the purposes of the Promotion of Administrative Justice Act 3 of 2000
(PAJA), and, if so, whether the City was entitled to depart from the provisions of
s 3(2) of PAJA. The court a quo granted leave to appeal.

1  On 19 and 20 April 2012 the appellant’s attorney served notices of set down on the respondents
personally and on their attorneys of record and the respondents did not file heads of argument or
appear at the hearing.

[3] The first and second respondents are informal traders who conduct their
businesses from large, sturdy, temporary structures erected on pavements at the
corners of, respectively, Vanguard Drive and Highlands Drive and Vanguard Drive
and Morganster Street, in Mitchells Plain. A portion of each structure (and each
business) encroaches onto a neighbouring property where the Westgate Mall is
situated. The owner of the property, Vusani Investments (Pty) Ltd, objects to this
encroachment and has called on the respondents to remove their structures.

[4] The City is the owner of the property where the respondents’ structures stand.
The structures were erected there without the City’s consent or authorisation and
contravene a number of the City’s by-laws. Despite having conducted their
businesses in the structures for a number of years the respondents have not sought
the City’s consent or authorisation. On 23 April 2010, Constable Swartbooi, a
member of the City’s Specialised Law Enforcement Unit, issued and handed to each
respondent a written notice in which each respondent was informed that the
structure placed on the City’s property at the relevant intersection had been placed
there without the necessary consent or authorisation of the City; that the respondent
was instructed to immediately remove the offending structure from the City’s property
and, that in the event of the respondent failing to comply with the instruction by 10
May 2010, a fine could be imposed and the offending structure removed by the City
at the respondent’s expense. When serving the notices Constable Swartbooi
informed the respondents that the notices did not prohibit the respondents from
trading on the property and (although no such decision had been taken by the City)
that the respondents could erect temporary structures at the beginning of the day but
that they would have to dismantle them at the end of the day. It is clear that the
respondents would become entitled to erect such structures only if the City granted
permission.

[5] After receiving the notices the respondents did not seek the City’s consent or
authorisation. Instead, on 10 May 2010 the respondents urgently sought and were
granted in the high court a rule nisi interdicting and restraining the City from
removing their structures or interfering with the respondents’ right to trade from those
structures. On 17 June 2010 this order was confirmed. Curiously both orders were

sought and granted in the absence of the City which had no knowledge of the
proceedings, so it is not surprising that, when the City applied for the rescission of
these orders, the respondents did not oppose its application and ultimately
abandoned their application for an interdict.

[6] The respondents still did not seek to regularise their position regarding the
structures. On 16 August 2010 they launched their review application which the City
opposed. The respondents did not file a replying affidavit or insist on the production
of the record of the proceedings sought to be corrected.

[7] In their founding affidavit the respondents state that their right to trade on the
relevant sites is not being challenged or assailed by the City. They say that the
apparent purpose of the notices was ‘to require us to demolish our business
structures at the end of the day and to re-erect the same at the start of the following
day.’ Their main ground of review was that the City was obliged to give them notice
and give them an adequate opportunity to make representations before taking the
decision to act against them (i.e. by delivering the notices to them). It is not
necessary to deal with the other grounds alleged.

[8] At the hearing before the court a quo the City pointed out that the City had not
taken a decision that the respondents must remove and rebuild their structures daily
and argued that the issue and delivery of the notices did not constitute administrative
action for the purposes of PAJA and merely constituted notification to the
respondents of the City’s intention to enforce compliance with the relevant By-law.
The City contended that the issue and service of the notice was not reviewable as
the notices do not constitute a final decision; do not adversely affect the rights of any
person and have no direct, external legal affect.

[9] The court a quo found that the notices were issued and served on the
respondents after the City had taken a decision; that the notices themselves qualified
as a decision; that the decisions threatened the respondents’ right to trade and
accordingly that the decisions constituted administrative action and were reviewable.

The court a quo also found that the City was obliged to afford the respondents
sufficient opportunity to make representations prior to the issue of the notice and had
not done so. The court a quo further found that the decisions violated the
respondents’ legitimate expectations (which was not part of the respondents’ case).

[10] It is clear that the City did not take a decision that the respondents are obliged
to remove and rebuild their business structures daily on their trading sites and that
the notices cannot reasonably be construed to mean that. The notices simply
informed the respondents that they must comply with the law (i.e. remove the
structures which contravene the by-laws and the Ordinance) and informed them of
the consequences should they fail to do so. This was not administrative action as
defined in PAJA.

[11] As contended by the City, by issuing and delivering the notices to the
respondents, the City’s conduct did not have direct and immediate consequences for
the respondents2; it was a preliminary step by the City (a notification or warning that
it would enforce the by-laws)3; and did not adversely affect the respondents’ rights or
have any direct or external legal effect4. The City was doing no more than it was
entitled to do in terms of the section of the relevant by-law.5  The provisions of PAJA
therefore did not apply and all the orders were wrongly granted by the court a quo.6

2 Greys Marine Hout Bay (Pty) Ltd v Minister of Public works 2005 (6)  SA 313 (SCA) para 24.
3 Eastern Metropolitan Substructure v Peter Klein Investments 2001 (4) SA 661 (W) para 15.
4 Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works 2005 (6) SA 313 (SCA) paras 29 to 30;
Joseph v City of Johannesburg 2010 (4) SA 55 (CC) para 27; City of Cape Town v Bouley Properties
(Pty) Limited [2010] ZAWHC 650 (21 December 2010) para 32; J de Ville Judicial Review of
Administrative Action in South Africa LexisNexis Butterworths (2003) para 2 1 6 p 54.
5 The section provides:
“THE CITY MAY ACT AND RECOVER COSTS
22. (1) Notwithstanding any other provision of this by-law, the City may –
(a) where the permission of the City is required before a person may perform a certain action or
build or erect anything, and such permission has not been obtained; and
(b) where any provision of this By-law is contravened under circumstances in which the
contravention   may be terminated by the removal of any structure, object, material or
substance, serve a written notice on the owner of the premises or the offender, as the case
may be, to terminate such contravention, or to remove the structure, object, material or
substance, or to take such other steps as the City may require to rectify such contravention
within the period stated in such notice.
(2) Any person who fails to comply with a notice in terms of subsection (1) shall be guilty of an
offence, and the City may, without prejudice to its powers to take action against the offender,
take the necessary steps to implement such notice at the expense of the owner of the premises
or the offender, as the case may be.”
6 Joseph v City of Johannesburg 2010 (4) SA 55 (CC) para 27.

_________________________

B R SOUTHWOOD

ACTING JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:
A. Katz SC
Instructed by:

Fairbridges Attorneys, Cape Town;

McIntyre & Van Der Post Attorneys, Bloemfontein.

FOR RESPONDENTS:
No appearance
Instructed by:

Petersen’s Attorneys, Cape Town.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 May 2012
Status:
Immediate

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

CITY OF CAPE TOWN v FAIZEL HENDRICKS
The Supreme Court of Appeal today held that a warning/compliance notice notifying the
recipient of his/her contravention of a By-law and calling upon the recipient to comply with
the By-law in order to avoid legal action is not ‘administrative action’ for the purposes of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).

The respondents, two informal traders in Mitchells Plain, Cape Town, conducted business in
temporary structures erected on property owned by the City of Cape Town. The structures
contravened the City’s By-laws and the City’s enforcement unit issued and served on the
respondents’ notices informing them that the structures contravened the By-laws and should
be removed to avoid further action by the City. Instead of seeking the City’s authorisation for
the structures the respondents applied in terms of PAJA to review and set aside the City’s
decision to issue the notices. The Western Cape High Court granted the application despite
the City’s argument that the notices did not constitute ‘administrative action’ and were
therefore not reviewable. The High Court set aside the decision and granted other interdictory
relief.

The Supreme Court of Appeal upheld the City’s appeal and set aside the orders made by the
High Court.