SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 20590/2014

In the appeal between:

Plover’s Nest Investments (Pty) Ltd

Appellant

and

Jacques Willem De Haan
First Respondent
The Bitou Local Municipality                                   Second Respondent

Neutral citation:   Plover’s Nest Investments v De Haan (20590/2014)
[2015] ZASCA (193) (30 November 2015).

Coram:
Lewis, Mhlantla, Leach, Tshiqi and Majiedt JJA
Heard:
9 November 2015
Delivered: 30 November 2015
Summary: Administrative Law – administrative action – what
constitutes – effect of failure of official of municipal council to
communicate resolution of council correctly – official not empowered to
make decisions on behalf of council – act of official merely
administrative error not amounting to administrative action – resolution
of council valid and binding.

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ORDER

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On appeal from: Western Cape Division of the High Court, Eastern
Circuit Local Division, George (Griesel J sitting as court of first instance):
The appeal is dismissed with costs.

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JUDGMENT

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Mhlantla JA (Lewis, Leach, Tshiqi and Majiedt JJA concurring):

[1] This appeal concerns the approval by the second respondent, Bitou
Local Municipality, formerly known as the Plettenberg Bay Municipality
(the municipality), of building plans submitted by the appellant, Plover’s
Nest Investments (Pty) Ltd (Plover’s Nest). The plans were in respect of
extensions and additions onto in an area over which a neighbouring
property had a servitude. The first respondent, Mr J W De Haan (De
Haan), is currently the owner of the dominant tenement. He claims that
the building extension plan approved by the municipality interfere with
his rights of ownership in two main respects. He thus applied, amongst
other things, for an order setting aside the municipality’s approval of the
extensions on the basis that the decision to approve the building plans
was unlawful. His application succeeded and the approval was set aside
by the Western Cape Division of the High Court (Griesel J).

[2] The primary issue both before the court a quo and this court on
appeal is whether conditions imposed on owners of unimproved erven,
which were not communicated to them, and not registered against the title

deeds of the respective properties, were binding on the owners. The other
issue is whether De Haan’s rights under the servitude are impeded by the
building that was approved. These rights include access to a pedestrian
path to the public beach, which Plover’s Nest’s property faces, obtained
by means of a right of way over it registered in favour of De Haan’s
property in terms of a Notarial Deed of Servitude K 715/98 and a right to
a view of the sea.

[3] The litigation in this matter arose after De Haan discovered that the
municipality had approved Plover’s Nest’s building plans for extensions
and additions to its property and that Plover’s Nest had built within the
servitude area. The background to the application in the court a quo is
briefly the following. Certain unimproved erven 3983, 3984, 3985 and
3986, situated on Solar Beach in Plettenberg Bay, were sold to Plover’s
Nest and De Haan’s predecessors in title. Erf 3984 extended to the beach
by means of a ‘pan–handle pathway’. Plover’s Nest owned erven 3983,
3985 and 3986 whilst its neighbours, Mr and Mrs Douglas–Jones (the
Douglas-Joneses) owned erf 3984. During May 1994 an application was
submitted to the municipality on behalf of the owners of these erven for
the subdivision and consolidation of the vacant erven.

[4] On 6 June 1994, the senior town planner in the employ of the
municipality, Mr J Geyer (Geyer), compiled and submitted a report to the
municipal council in which he recommended that the application be
approved in principle, subject to compliance with the provisions of the
Land Use Planning Ordinance 15 of 1985 (the LUPO) and the provision
of new service connection points for the account of the applicants. On 27
June 1994, Geyer’s report was considered by the council and his
recommendations were accepted. An additional condition imposed by the

council was that it would not, as a result of the re-subdivision, be
prepared to support any future requests for relaxation of the building lines
of the re-demarcated properties. The application for the proposed
consolidation and re-subdivision was duly advertised for comments and
no objections were received. In January 1995, Geyer submitted a report to
the Building, Planning and Development Committee of the municipal
council. In it, he recommended that additional conditions be imposed for
the approval of the consolidation and re-subdivision.

[5] On 30 January 1995, the report was tabled at the meeting of the
council where it resolved to approve the consolidation and re-subdivision
subject to the six conditions proposed by Geyer. The resultant resolution
of the council which included these further conditions was as follows:
‘ (i) That approval be granted in terms of section 25(1) of Ordinance 15 of 1985 for
the consolidation and re-subdivision of erven 3983 to 3986 (Solar Beach) into 3 erven
as depicted on Plan No 1 dated October 1994;
(ii) That the provision of service connection points be for the account of the owners
of the land;
(iii) Council will not, as a result of the resubdivision, be prepared to support any
future requests for relaxation of the building lines of the new properties created;
(iv) That erf 5637 (19 m2 in extent) be consolidated with erf 3982 because of a
previous encroachment;
(v) At no time in future will the servitude area be used for building purposes; and
(vi) Reference 259.42.20 of erf 5638 will be the lateral building line for that particular
erf. (Plan No 2 dated October 1994).’

[6] On 10 February 1995, Geyer, acting in terms of s 24(2)(d)(ii) of the
LUPO,1 sent to Mr H van Waart, who was Plover’s Nest’s land-surveyor,

1 Section 24(2)(d)(ii) of the LUPO provides as follows in relation to applications for subdivision:
‘the said town clerk or secretary shall where his council may act under section 25(1) notify the owner
and the Surveyor-General concerned of his council’s decision and where applicable furnish them with a
copy of any conditions imposed by that council’.

and to the Surveyor-General, a letter in the following terms:-
‘My council, at its meeting held on 30 January 1995 resolved as follows:-
1. That approval be granted in terms of section 25(1) of Ordinance No 15 of 1985 for
the consolidation and re-subdivision of erven 3983 to 3986 (Solar Beach into 3
erven as depicted on Plan No 1 and 2 dated October 1994.
2. That the provision of new service connection points be for the account of the
owners of the land.
Enclosed please find three copies of the subdivision plan duly signed and dated by the
Town Clerk.’
It will be noted that the other conditions in the council resolution were
omitted from this letter.

[7] On 28 February 1995, the municipality approved Plover’s Nest’s
building plans. Between March 1995 and May 1996, Plover’s Nest and
the Douglas-Joneses built their respective dwellings. A certificate of
consolidated title was issued in respect of erf 5636 owned by the
Douglas-Joneses.

[8] On 3 January 1997, a Notarial Deed of Servitude between Plover’s
Nest and the Douglas–Joneses was executed and registered by the
Registrar of Deeds. The body of the deed of servitude specified:-
‘…. The owner, his successors in the title or assigns of the Servient Tenement
[Plover’s Nest’s] shall allow the Dominant Tenement [Douglas–Joneses’] the non–
exclusive right of pedestrian access over the Servient Tenement for the purposes of
going to or departing from the beach. The figure BCDEFN on Diagram SG No
4229/95 annexed to Certificate of Consolidated Title NO T64903/98 represents the
servitude area.
Such access right shall be exercised by the Dominant Tenement at all times in a
reasonable manner so as to provide as little as possible disturbance to the privacy of
the Servient Tenement. In the exercise of this servitude, the owner of the Dominant

Tenement shall only use the demarcated path to the beach.
The Dominant Tenement from the upstairs section of the house shall be entitled to
unobscured visibility of the sea over the pathway and a view which will be partially
obscured by vegetation elsewhere.’

[9] On 16 February 1999, the Douglas-Joneses sold their property to
De Haan. During February 2004, Plover’s Nest submitted an application
to the municipality for the approval of building plans to erect a swimming
pool, boardwalk and a deck on erf 5638. The application was
subsequently approved and all these structures were built within the
servitude area.

[10] On 13 August 2012, Plover’s Nest submitted an application to the
municipality for the approval of building plans for the extension of the
house. The application was accompanied by submission forms for
building plans which contained the relevant information and requirements
in terms of the National Building Regulations and Building Standards Act
103 of 1997. One of the questions asked in these forms was whether there
were any impediments that could affect the granting of the approval. It
was couched in the following terms:
‘Title Deeds
Are there any restrictions in the title deed, in respect of this Erf which may have an
effect on this application and which should be lifted in terms of the Removal of
Restrictions Act, Act 84 of 1967?
Answer: No.’

[11] On 4 February 2013, erven 5635 and 5638 owned by Plover’s Nest
were consolidated to create erf 12702. Nine days later, on 13 February,
the municipality approved the building plans for the extensions and
additions to the buildings on erf 12702. Plover’s Nest thereafter

proceeded with the building extensions over the property despite the
condition precluding building in the servitude area. During April 2013,
De Haan, who then lived in Australia, received a report that Plover’s Nest
had done some extensions on its property and in the servitude area. The
report came from the manager of the guest house that De Haan was
running on the property. Upon inspection, he discovered that extensive
building works had already been constructed in the servitude area without
his prior consent.

[12] Consequently De Haan launched an application in the Western
Cape Division of the High Court, Eastern Circuit Local Division, George
for the review and setting aside of the municipality’s approval of
Plover’s Nest’s building plans for the extension. He also sought an
interdict restraining Plover’s Nest from proceeding with the building
operations pending the finalisation of the review application. The
application was founded on the basis that the municipality’s approval of
the building plans was inconsistent with s 39(1)(a) and (c) of the LUPO
and also with s 7(1)(a) of the National Building Regulations and Building
Standards Act 103 of 1997,2 because the approved building work was
incompatible with the provisions of the notarial deed of servitude
executed and registered between Plover’s Nest and the predecessors-in-
title of the property (the Douglas-Joneses) now owned by De Haan.

[13] De Haan argued also that a municipality is obliged to enforce
compliance with its own decisions. In this regard, s 39(1)(a) and (c) of
the LUPO reads:

2 Section 7(1)(a) of the National Building Regulations and Building Standard Act provides:
‘If a local authority, having considered a recommendation referred to in section 6(1)(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’.

‘Compliance with provisions of zoning scheme and of conditions of subdivision.-
(1)
Every local authority shall comply and enforce compliance with –
(a)
The provision of this Ordinance or, in so far as they may apply in terms of this
Ordinance, the provisions of the Township Ordinance, 1934 (Ordinance 33 of 1934);
(b). . .
(c)
Conditions imposed in terms of this Ordinance or in terms of the Township
Ordinance, 1934, and shall not do anything, the effect of which is in conflict with the
intention of this subsection.’

[14] The deponent to the answering affidavit on behalf of the
municipality admitted that the council’s resolution dated 30 January 1995
had contained six conditions. He averred that an error had occurred when
Geyer communicated its resolution to Plover’s Nest, in that the letter
written by Geyer referred only to two conditions instead of to all six. This
resulted in four conditions being omitted. Furthermore, he averred that
the municipality’s officials had not been aware of this mistake until De
Haan’s attorneys threatened legal action. The mistake was also not
noticed when the application for the approval of the building plans for the
extension was considered. The municipality averred that it would not
have approved the application had it been aware of the existence of the
restrictive conditions.

[15] On the other hand, Mr Thomas, the deponent to the answering
affidavit of Plover’s Nest, denied the allegations that Plover’s Nest had
breached the conditions of approval. According to him, the municipality’s
approval and decision was what had been officially communicated by
Geyer to Plover’s Nest and the Surveyor-General containing two
conditions only, without any restrictions on the proposed building project.
He contended that, for the past 19 years, Plover’s Nest had not been
aware of the restrictive conditions and that had it known about them, it

would have lodged an appeal to the Administrator in terms of s 44 of the
LUPO against the imposition of the condition prohibiting building. He
further averred that Plover’s Nest had expended an amount in excess of
R1 million in effecting the building extensions approved by the
municipality.

[16] In the court a quo, Plover’s Nest contended that conditions 5 and 6
were not operative as the letter sent by Geyer did not contain them.
According to Plover’s Nest, the operative decision was the one
communicated to them by the official of the municipality and that the
municipality could not ignore that letter and seek to rely on its decision of
30 January 1995.

[17] The learned judge did not decide the question relating to the effect
and consequence of Geyer’s mistake when he communicated the
council’s resolution, but disposed of the matter on a different point. He
concluded that Plover’s Nest had omitted relevant and crucial information
in the forms submitted with the building plans and that its answers were
misleading. He concluded also that had the municipality been aware of
the current facts – that there were restrictions in the title deed – it would
not have approved the plans. The court a quo thus granted an order
reviewing and setting aside the approval of the building plans dated
August 2012. Plover’s Nest appeals against that finding with the leave of
this court.

[18] The appeal raises the question of the consequences of the failure of
an official of the municipality to communicate a decision of the municipal
council correctly and whether the action of that official constitutes
administrative action. Simply put, whether, as Plover’s Nest contended,

the decision as communicated constituted the decision of the
municipality.
[19] There is no doubt that the conduct of the municipality in approving
the consolidation and subdivision of erven, subject to conditions, amounts
to administrative action and that its decision affects the legal rights of an
individual. It is necessary in view of the provisions of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) to identify the
administrative action which under review would stand to be set aside.  To
that end, Professor Hoexter identifies seven main elements under the
PAJA namely: 3
(a) A decision; (b) by an organ of State (or natural or juristic person); (c)
exercising public power or performing a public function; (d) in terms of
any legislation (or an empowering provision); (e) that adversely affects
rights; (f) and has a direct, external legal effect; and (g) which does not
fall within one of the listed exclusions (eg legislative, executive and
judicial functions).

[20] The PAJA further broadly defines the term ‘decision’ under s 1 as
meaning, for current purposes:
‘any decision of an administrative nature made, proposed to be made, or required to
be made, as the case may be, under an empowering provision, including a decision
relating to—
. . .
(b) giving, . . . or refusing to give . . . approval, . . . or permission;
. . .
(d) imposing a condition or restriction;
. . . or
(g) doing or refusing to do any other act or thing of an administrative nature, and a
reference to a failure to take a decision must be construed accordingly.’

3 Cora Hoexter Administrative Law in South Africa 2 ed (2012) at 197.

[21] Before us, counsel for Plover’s Nest submitted that Geyer’s failure
to notify the owners and the Surveyor-General of the municipal council’s
decision to impose conditions 5 and 6 meant that these conditions were
inoperative
and
that
Geyer’s
defective
notification
constituted
administrative action. In support of his submission counsel relied on the
decisions of Kirland4 and President of the Republic of South Africa &
others v South African Rugby Football Union & others 2000 (1) SA 1
(CC) (SARFU III).

[22] In my view, the reliance on these decisions is misplaced. The facts
of these cases are distinguishable from the facts of this matter. In Kirland
the relevant administrator made two conflicting decisions: the first had
been correctly taken (but not communicated by the relevant official to the
applicant entity), while the second – relied and acted upon – which was
communicated to the applicant, had been defective and unlawful. The two
decisions were taken by functionaries vested with the necessary
legislative powers to approve or refuse the application. The question
before the court was whether the approval by the acting superintendent-
general and the withdrawal by the superintendent–general constituted
unlawful administrative action. The administrative action is mentioned in
para 69 of the majority judgment, where the following appears:
‘The problem arises from two decisions on applications Kirland submitted to the
Eastern Cape government in 2006 and 2007 to establish private hospitals in the
province. The first said No. The second said Yes. The first, the refusal, was never
signed off or communicated to Kirland. This was because Mr Boya, the
superintendent-general who took that decision, became incapacitated. The second, the
approval, was taken on 23 October 2007 by an acting superintendent-general, Dr
Diliza, while Mr Boya was away. That decision was communicated to Kirland, but Dr

4 MEC for Health, Eastern Cape & another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute
2014 (3) SA 481 (CC).

Diliza took it in circumstances that make it vulnerable to challenge on review.’

[23] The decision of this court in Oudekraal5 (ie that defective decisions
of administrators remain binding until they are set aside through judicial
review) was affirmed by the Constitutional Court in Kirland. That court
essentially required organs of state to apply for the review and setting
aside of their own erroneous decisions upon learning of them, where
applicants for the decisions wish to rely upon them.  These principles are
further in line with the principle underlying the term functus officio,
which entails that once an administrator has made a decision it has no
power to change it or set it aside.6

[24] SARFU III related to the exercise of presidential executive powers
to appoint a commission of enquiry in terms of s 84(2)(f) of the
Constitution. The question before the court was whether the exercise of
the power conferred on the President constituted administrative action.
The Constitutional Court held that the decision was executive rather than
administrative action. But Plover’s Nest argued that SARFU III was
authority for the proposition that a decision takes effect only when
communicated. The court said (para 44) that the appointment of a
commission of enquiry ‘only takes place when the President’s decision is
translated into an overt act, through public notification’. The argument
loses sight of the fact that the President was the repository of power in
terms of the Constitution: only he could take such a decision and he was
required to make it public. In this matter Geyer was not the repository of
power. The council was. Geyer simply miscommunicated its decision.

[25] In this case the municipality resolved to grant the application for

5 Oudekraal Estates (Pty) Ltd v City of Cape Town & others 2004 (6) SA 222 (SCA).
6 Lawrence Baxter Administrative Law (1984) at 372-380 and Hoexter op cit at 278-281.

consolidation and re-subdivision subject to six conditions. It is clear that
some of the conditions were extracted from the motivation submitted on
behalf of Plover’s Nest although the applicant owners were not aware of
their land-surveyor’s submission at the time. The municipal council did
not err when it made its decision. The only issue is the effect of Geyer’s
failure to communicate the decision correctly.

[26] Kuzwayo v Representative of the Executor in the Estate of the late
Masilela7 is pertinent authority on the distinction between clerical and
administrative actions. In that case, a delegate of the Director-General for
the Department of Housing issued a declaration that Kuzwayo had been
granted the right of ownership in respect of a site that had already been
allocated to Masilela. It was not in dispute that Masilela had paid for the
site and had built a house on it: he and his family had lived in the house
for 13 years prior to his death. In determining the question, whether the
act of the official amounted to a decision in terms of the PAJA, Lewis JA
for this court held (para 28):
‘The only administrative decision that could and should have been made was that of
the Director-General or his delegate, after the inquiry mandated by s 2 of the
Conversion Act [81 of 1988]. And that was the only decision that could be subject to
review. The act of signing the declaration and the deed of transfer were but clerical
acts that would have followed on a decision. Not every act of an official amounts to
administrative action that is reviewable under PAJA or otherwise.’

[27] In this case, it is common cause that Geyer’s action was an obvious
mistake: whoever had typed the letter had not turned over to the page that
contained the rest of the conditions including that prohibiting building in

7 Kuzwayo v Representative of the Executor in the Estate of the late Masilela [2011] 2 All SA 599
(SCA) para 28. See also Nedbank Ltd v Mendelow & another NNO 2013 (6) SA 130 (SCA) paras 24-
26 and Seale v Van Rooyen NO & others; Provincial Government, North West Province v Van Rooyen
& others No 2008 (4) SA 43 (SCA) para 12.

the servitude area. One need merely scrutinise the letter to see that Geyer
had not made any decision. The introductory part reads:
‘My council, at its meeting held on 30 January 1995 resolved as follows: . . .’
In my view, it cannot be said that Geyer made any decision when regard
is had to the introductory part of the letter. He did not evaluate the
council’s decision but merely conveyed it. The act of writing the letter
was a notification that followed on a decision. It has to be borne in mind
that he had a duty to notify Plover’s Nest of the municipal council
decision and the conditions imposed and that he was not vested with any
authority to take a decision. It is clear that Geyer did not intend to do
anything other than communicate the decision of the council. He
performed a clerical act and in the process committed an error. The
communication of the decision had nothing to do with the decision – only
the notification was defective. His error cannot be imputed to the council
and elevated as the decision of council. It follows that the clerical error
does not constitute administrative action that would substitute the
resolution of the municipality. In the result, the resolution of council
dated 30 January 1995 is valid and binding on the municipality. It follows
that the decision of the municipality on 13 February 2013 to grant
approval to Plover’s Nest’s building plans is fatally flawed and stands to
be reviewed and set aside.

[28] What remains is the question relating to the finding of the court a
quo that the answers provided by Plover’s Nest in the forms submitted
with the building plans stating that there were no restrictions in the title
deed were misleading. In terms of the Notarial Deed of Servitude,
Plover’s Nest allowed the Douglas-Joneses, and later De Haan, the non-
exclusive right of pedestrian access to and from the beach. It furthermore
provided that De Haan would be entitled to an unobscured view of the sea

over the pathway from the upstairs section of the house. The registered
servitude did not expressly or by necessary implication prohibit building
in the servitude area as contended by De Haan. In the result, it was not
necessary for Plover’s Nest to bring the existence of the servitude to the
attention of the municipality when it applied for the approval of its
building extension plans. The court a quo therefore erred when it made
the finding that the omission by Plover’s Nest of relevant information
resulted in the municipality granting the approval because relevant
considerations were not taken into account.

[29] This conclusion does not, however, assist Plover’s Nest as the 1995
resolution of the municipal council remains valid. The municipality was
bound by its previous decision when it approved the application for
extension in February 2013. The appeal must therefore fail.

[30] There may be some merit in Plover’s Nest’s argument that it would
not make sense to sterilise an area as large as the ‘servitude area’ which is
about 15 times the size of the pre-existing ‘tongue’ (formerly the pan-
handle of the stand) and is 66l square metres in extent, the equivalent to a
full front-row stand in the Solar Beach area. It may also be correct that it
was not fair that Plover’s Nest has been paying rates and taxes on a full
front-stand value whereas the Douglas-Joneses and De Haan in turn had
been paying on a back-stand value. However the LUPO does provide
several alternative remedies for Plover’s Nest (eg a s 30 amendment to
the subdivision and a s 40 rectification of contraventions). Moreover,
Plover’s Nest may claim damages against the municipality for the
negligent conduct of its official, and, given that it learned of the decision
only 19 years after it was made, it may well still be able to apply to court
to set it aside.

[31] In the result, the appeal is dismissed with costs.

__________________
N Z MHLANTLA

JUDGE OF APPEAL

APPEARANCES:

For Appellant:
AM Breitenbach SC

AE Erasmus
Instructed by:
Kuilman Mundell & Arlow Attorneys, Johannesburg

Claude Reid Inc, Bloemfontein

For Respondent:
D L Van Der Merwe
Instructed by:
Hutchison, Du Plessis, Robin & Stoloff, Plettenberg Bay

Symington & De Kok, Bloemfontein