THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number : 44/03
Reportable

In the matter between :

A BULLOCK NO & 2 OTHERS

Appellants

and

PROVINCIAL GOVERNMENT OF
NORTH WEST PROVINCE

First Respondent
KINGSLEY JACK WHITEAWAY SEALE
Second Respondent

CORAM :
HOWIE P, CONRADIE, CLOETE JJA, JONES,

SOUTHWOOD AJJA

HEARD :
26 FEBRUARY 2004

DELIVERED :

Summary:  The disposal of a right in land vested in an organ of State may be
administrative action as contemplated in s 33, read as set out in item 23 of schedule 6,
of the Constitution. Standing for the purpose of setting such a decision aside and for
fair administrative action, decided.
______________________________________________________

JUDGMENT

CLOETE JA
CLOETE JA
[1] The present appeal raises the question whether the disposal by an
organ of State of a right in property vested in it, may be administrative
action; and if so, who has standing to approach a court for different forms
of relief.
[2] The appellants are the trustees of the Transvaal Yacht Club (‘the
TYC’). The TYC is the owner of immovable property on the northern side
of the Hartebeestpoort Dam. The second respondent, an individual, owns
immovable property which is almost adjacent to the TYC’s property on the
latter property’s western side. On the southern boundary of both
properties is the northern foreshore of the dam, ownership of which is
vested in the first respondent, the Provincial Government of the North
West Province.
[3] The TYC has operated a yacht club on its property continuously
since 1922. It has the right to use the foreshore immediately to the south of
its property. It has also since 1969 occupied the property immediately to
the south of the second respondent’s property (to which I shall refer, for
the sake of convenience, as ‘the relevant foreshore’) in terms of a series of
leases concluded on behalf of the first respondent’s predecessors in title.

The first lease was concluded on 6 June 1969. The final lease expired on
31 July 2001. The later leases were for periods of 9 years and 11 months.
[4] Whilst in occupation of the relevant foreshore, the TYC erected a
number of improvements thereon. According to the appellants, these
improvements ‘are vital to the continued operation of the yacht club’. The
TYC accordingly wished to conclude a further lease with the first
respondent entitling it to continue to occupy the relevant foreshore. To this
end, in December 1999 representatives of the TYC entered into protracted
negotiations with the Department of Water Affairs and Forestry and
thereafter, representatives of the first respondent.
[5] Unbeknown to the representatives of the TYC, the officials of the
Department of Water Affairs and (until a late stage) the representatives of
the first respondent, the Premier of the first respondent had already on 29
July 1999 approved the registration of a servitude over the relevant
foreshore in favour of the property owned by the second respondent. The
Premier’s decision was based on legal advice that the second respondent
was entitled to the servitude because of the provisions of a contract with
one Schoeman entered into by the Government on 5 January 1918, part of
which was embodied in a notarial contract registered on 3 October 1922 in
the Register of Miscellaneous Contracts. According to the advice received
by the Premier, Schoeman’s rights in the notarial contract had devolved

upon the second respondent. Ultimately, the first respondent informed the
TYC in a letter dated 12 October 2001 that it had decided not to enter into
a further lease. An official of the first respondent had, in the meantime, on
18 April 2001, executed a power of attorney for registration of the
servitude and a notarial deed of servitude had been executed on 12 July
2001.
[6] The appellants brought motion proceedings for an order setting
aside the decision of the Premier to register the servitude and remitting the
question whether such a servitude should be granted, to the first
respondent for reconsideration after the TYC had been afforded an
opportunity to make representations in this regard. The appellants relied
for this relief on the provisions of the Promotion of Administrative Justice
Act, 3 of 2000 (‘the Act’). They averred that the TYC had had a legitimate
expectation that the most recent lease agreement in respect of the
relevant foreshore would be renewed, or at least that the TYC would be
afforded a proper hearing before a decision was taken by the first
respondent whether or not to renew such lease. The court below
(Hartzenberg J) concluded that the advice given to the Premier was
correct and that because the decision of the Premier was to give effect to a
contractual obligation owed by the first respondent to the second
respondent, the Premier’s decision did not constitute administrative action

and was not reviewable under the Act. The TYC has appealed to this court
with the leave of the court below.
[7] The Act only came into operation on 29 November 2000 i.e. sixteen
months after the Premier’s decision had been taken. Accordingly, any
rights which the appellants had to have that decision set aside have to be
sought in item 23(2)(b) of schedule 6 to the 1996 Constitution, which
provides that at the relevant time s 33(1) and (2) of the Constitution had to
be read as follows:
‘Every person has the right to ─
(a)
lawful administrative action where any of their rights or interests is affected or
threatened;
(b)
procedurally fair administrative action where any of their rights or legitimate
expectations is affected or threatened;
(c)
be furnished with reasons in writing for administrative action which affects any
of their rights or interests unless the reasons for that action have been made public;
and
(d)
administrative action which is justifiable in relation to the reasons given for it
where any of their rights is affected or threatened.’
[8] The appellants’ counsel submitted that the grant of the power of
attorney for the registration of the servitude in itself amounted to an
administrative decision which could be impugned in terms of the
provisions of the Act, because it went beyond the authority which the
Premier’s decision conferred. The submission was that the Premier had

merely decided to grant a servitude in favour of the second respondent
over the relevant foreshore whereas the power of attorney was to register
an exclusive servitude in favour of the second respondent. There is no
merit in this submission. The relevant part of the decision of the Premier
read:
‘I in my capacity as constitutionally designated chief executive authority of the Province
of the North-West, hereby approve of the registration of the three outstanding
servitudes, as described in the legal opinion of Adv. J P Verster (dated 28 May 1998)
subject to the conditions as stipulated in Notarial Agreement 99/1922M, dated 27
September 1922.’
The opinion was not annexed to the papers but a summary was. That
summary said that a servitude for exclusive use of the relevant foreshore
should be registered in favour of the owner of the second respondent’s
property. There is no reason to believe that the Premier intended anything
else.
[9] The right to which the Premier sought to give effect by registering the
servitude was a right given to Schoeman. That right was a right of access
to the Hartebeestpoort Dam for the purpose of boating on the dam and
fishing therein. Even assuming that the right could have been transmitted
to the second respondent through successive cessions by Schoeman to
his sons, and by the latter to the second respondent, which is the first
respondent’s case, that right of access cannot translate into an exclusive

right to use the entire area of the relevant foreshore. The advice given to
the Premier by counsel briefed for that purpose was that the second
respondent ‘is entitled to the exclusive use’ of the relevant foreshore. The
decision by the Premier was accordingly based on wrong advice. It is also
plain from the advice given by counsel that the Premier did not decide to
grant the servitude to the second respondent in substitution for the right he
alleged he had acquired from Schoeman, as contended on appeal by
counsel representing the first respondent: The decision was taken
because the Premier was advised, and obviously believed, that the
second respondent was entitled to the servitude.
[10] The essential question is therefore whether the Premier’s decision to
grant  the servitude amounted to administrative action as contemplated in
s 33 of the Constitution quoted above. The factors relevant to the
determination of the question were summarised by this court in Cape
Metropolitan Council v Metro Inspection Services (Western Cape) CC &
Others 2001 (3) SA 1013 (SCA) paras [16] and [17]:
‘The section is not concerned with every act of administration performed by an organ of
State. It is designed to control the conduct of the public administration when it performs
an act of public administration i e when it exercises public power (see President of the
Republic of South Africa and Others v South African Rugby Football Union and Others
2000 (1) SA 1 (CC) (‘SARFU’) at para [136] and Pharmaceutical Manufacturers
Association of SA and Another: In re Ex parte President of the Republic of South Africa

and Others 2000 (2) SA 674 (CC) at paras [20], [33], [38]─[40]). In paras [41] and [45]
of the Pharmaceutical Manufacturers Association case Chaskalson P said:

“[41] Powers that were previously regulated by common law under the

prerogative and the principles developed by the courts to control the exercise

of public power are now regulated by the Constitution….”

“[45] Whilst there is no bright line between public and private law,

administrative law, which forms the core of public law, occupies a special

place  in our jurisprudence. It is an incident of the separation of powers under

which  courts regulate and control the exercise of public power by the other

branches of  government. It is built on constitutional principles which define the

authority of each branch of government, their interrelationship and the

boundaries between them…. Courts no longer have to claim space and

push boundaries to  find means of controlling public power. That control is

vested in them under the Constitution, which defines the role of the courts,

their powers in relation to other arms of government and the constraints

subject to which public power has to be exercised….”
[17] It follows that whether or not conduct is ‘administrative action’ would depend on
the nature of the power being exercised (SARFU at para [141]). Other considerations
which may be relevant are the source of the power, the subject-matter, whether it
involves the exercise of a public duty and how closely related it is to the implementation
of legislation (SARFU at para [143]).’
I would merely add the following remarks of Chaskalson P in SARFU para
[143]:
‘Difficult boundaries may have to be drawn in deciding what should and what should
not be characterised as administrative action for the purposes of s 33. These will

need to be drawn carefully in the light of the provisions of the Constitution and the
overall constitutional purpose of an efficient, equitable and ethical public administration.
This can best be done on a case by case basis.’
[11] The Cape Metropolitan Council case held that on the facts the
decision by the appellant, a public authority, to cancel a contract was not
administrative action as the appellant had not negotiated the right to
cancel from a position of superiority or authority by virtue of its being a
public authority; nor, in cancelling the contract, was it performing a public
duty or implementing legislation (para [18]). These aspects were
emphasized, and the decision very much limited to the facts, in the
subsequent decision of this court in Logbro Properties CC v Bedderson
NO & Others 2003 (2) SA 460 (SCA) paras [9] and [10]. Cape Metropolitan
Council was distinguished from the facts in Logbro for the reason that in
Logbro the province itself dictated the tender conditions and was
accordingly acting from a public position of superiority or authority (para
[11]).
[12] In Logbro the decision of the majority in Mustapha & Another v
Receiver of Revenue Lichtenburg & Others 1958 (3) SA 343 (A) was
overruled and the dissenting judgment of Schreiner JA was approved
(paras [12] and [13]). The majority in Mustapha held that since a statutory
permit to occupy land was embodied in a contract, the termination of the
permit constituted the exercise of an absolute and unqualified

contractual power. Schreiner JA on the other hand held at 347D-G, in the
passage approved in Logbro (para [12]):
‘Although a permit granted under s 18(4) of Act 18 of 1936 has a contractual aspect,
the powers under the subsection must be exercised within the framework of the Act
and the regulations which are themselves, of course, controlled by the Act. The powers
of fixing the terms of the permit and of acting under those terms are all statutory powers.
In exercising the power to grant or renew, or to refuse to grant or renew, the permit, the
Minister acts as a State official and not as a private owner, who need listen to no
representations and is entitled to act as arbitrarily as he pleases, so long as he breaks
no contract. For no reason or the worst of reasons the private owner can exclude
whom he wills from his property and eject anyone to whom he has given merely
precarious permission to be there. But the Minister has no such free hand. He receives
his powers directly or indirectly from the statute alone and can only act within its
limitations, express or implied. If the exercise of his powers under the subsection is
challenged the Courts must interpret the provision, including its implications and any
lawfully made regulations, in order to decide whether the powers have been duly
exercised….’
[13] It was not suggested that the Premier was unable to take the
decision to grant the servitude in the absence of legislation which
specifically empowered him to do so: Minister of Public Works and Others
v Kyalami Ridge Environmental Association and Another (Mukhwevo
intervening) 2001 (3) SA 1151 (CC) paras [40], [41] and [55]. The
submission on behalf of the first respondent was that the decision by the
Premier was taken by an organ of State in its capacity as owner of the

land in question, and the State was accordingly in no different position to
that of any landowner who may freely grant or refuse to grant rights in
property vested in such private owner. It was accordingly submitted that
the decision is not capable of constituting administrative action.
[14] I emphatically disagree. The North West Province is landlocked. So
is the adjacent province of Gauteng, the most populous province of South
Africa, which has the Hartebeestpoort Dam close to its western border.
The dam is a valuable recreational resource available to the public at large.
Ownership of the foreshore is vested in an organ of State, the first
respondent. A decision by the first respondent to grant, in perpetuity, a
right over a part of the foreshore to one property owner to the exclusion of
all other persons, significantly curtails access to that resource by the
public. In my view, for the reasons which follow, the decision to grant the
servitude can and must be classified as administrative action and
therefore liable to be set aside by a court at the suit of a person who has
the standing to claim such relief.
[15] A decision of an organ of State may relate to question of policy, and
the policy itself may not be open to judicial scrutiny: SARFU paras [142]
and [143]; Permanent Secretary, Department of Education and Welfare,
Eastern Cape and Another v Ed-U-College (PE) (Section 21) Inc 2001 (2)
SA 1 (CC) para [18]. The decision of the first respondent to grant the

servitude does not fall into this category. The first respondent did not
purport to dispose of the right pursuant to a policy decision taken in the
light of broad policy considerations (contrast Logbro paras [19] and [20]); it
disposed of the right because it thought it was obliged to do so.
[16] If legislation has empowered a functionary to make a decision, in the
public interest, the decision should be made on the material facts which
should have been available for the decision properly to be made: Pepkor
Retirement Fund and Another v Financial Services Board and Another
2003 (6) SA 38 (SCA) para [47]. There is no reason why the same does
not  apply to a decision by an organ of State which is performing a function
which affects the public interest and which cannot be categorized as a
policy decision.
[17] One of the ways in which the courts have in the past controlled, and
will continue to control, the exercise of public power is to examine whether
the organ of State which has exercised such power has complied with the
requirements of the legislation which governs such exercise. That was the
approach of Schreiner JA in Mustapha. But because of the new
constitutional dispensation, and for the reasons given by Chaskalson P in
the Pharmaceutical Manufacturers Association case quoted in the Cape
Metropolitan Council case in para [10] above, a court is not confined to this
approach.

[18] In the present matter, the Premier was advised that the first
respondent was obliged to grant the servitude over the disputed foreshore
to the second respondent. That advice was wrong. The decision to grant
the servitude was accordingly not justifiable in relation to the reasons
given for it, as contemplated in para (d) of the transitional provisions of the
Constitution quoted above.
[19] According to the wording of paragraph (d) of the transitional
provisions,
administrative
action
which
falls
into
the
category
contemplated in that paragraph can be challenged only by a person whose
‘rights’ are affected. By contrast paragraphs (a) and (c) contemplate ‘rights
or interests’ which are affected and paragraph (b) contemplates ‘rights or
legitimate
expectations’.
These
differences
cause
problems
in
interpretation, as academic authors have pointed out (see eg Chaskalson
et al, Constitutional Law of South Africa para 25.3; Davis et al,
Fundamental Rights in the Constitution p 155ff). In my view, the concept of
‘rights’ in paragraph (d) should not be restricted to rights enforceable in a
court of law (cf Premier, Mpumalanga and Another v Executive Committee,
Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91
(CC) para [31] n9 where the Constitutional Court said of s 24 of the Interim
Constitution, which was preserved in the transitional provisions of the
1996 Constitution quoted above: ‘It may be that a broader notion of “right”

than that used in private law may well be appropriate’). The present facts
provide a good example of why this must be so. No-one, save possibly the
second respondent who may have succeeded to the rights of Schoeman,
has a right, strictly so called, to use the disputed foreshore. If  a narrow
interpretation of ‘rights’ in paragraph (d) is adopted, the decision of the first
respondent, based as it is on an incorrect premise, could not be
challenged, with consequent lack of accountability on the part of the first
respondent, despite prejudice to those affected by the decision. In my view
the TYC, as the owner of a stand in the township of Schoemansville which
is situated on the northern shore of the dam, and therefore a party which
would be concerned with the use to which the disputed foreshore is put,
had a sufficient right in the broader sense envisaged in paragraph (d), and
therefore the necessary standing, to mount a constitutional challenge to
the decision in question and have it set aside in a court of law.
[20] Counsel representing the TYC ultimately did not seek an order
requiring the first respondent to allow the TYC to make representations to
it before it decided whether or not to renew the TYC’s lease, although this
was the basis upon which the TYC initially sought review of the Premier’s
decision to grant the servitude. This aspect was fully canvassed in the
papers. In the circumstances it would be desirable to decide the question
in order to give a guideline to the first respondent as to the procedural

parameters within which it must make any decision in regard to the
disputed foreshore and to obviate further litigation.
[21] The same broad interpretation of ‘rights’ adopted above in respect of
paragraph (d) is not necessarily justified in terms of paragraph (b) of the
transitional constitutional provisions. It is one thing to be accorded
standing to have an administrative decision, which is not justifiable, set
side, and another to be heard before an administrative decision is taken (cf
Ed-U-College paras [20] and [22]). The same policy considerations do not
necessarily apply to both situations and the requirement of accountability
(contained in s 41(1)(c) of the Constitution) is not common to both to the
same extent. I find it unnecessary to seek to define the concept of ‘rights’
as contemplated in paragraph (b) because in my view the TYC had a
legitimate expectation to be heard if the first respondent was
contemplating not renewing the lease. That legitimate expectation flows
from the following facts.
[22] The TYC had been the lessee of the relevant foreshore for thirty
years in terms of successive leases. In that time it had constructed
substantial improvements which would be difficult (to put it at its lowest) to
remove and which included a crane attached to a concrete foundation
used to hoist yachts with fixed hulls in and out of the dam; and the
construction of a higher and a lower embankment with retaining walls and

(in the case of the lower embankment) a concrete apron. The leases
subject to which the TYC occupied the relevant foreshore provided that:
’10.
The LESSEE may improve the premises for the purposes indicated in clause 4
[yachting and related purposes]. All improvements, e.g. alterations, additions,
excavations, etc. to the premises shall be subject to the prior written approval of the
LESSOR and shall be at the expense of the LESSEE. The LESSOR shall have the
right to remove all unapproved improvements upon the premises and recover his
expenses from the LESSEE.
12.
Unless the LESSEE and the LESSOR agree otherwise in writing, all approved
improvements shall become the property of the LESSOR at the termination of this
agreement and the LESSOR shall not be liable to pay compensation to the LESSEE
and/or any other person or body.’
But it does not follow that these clauses were a bar to the TYC being heard
as to whether its occupancy should be renewed. On the contrary, the
nature and scale of the improvements in themselves go a long way to
establishing a legitimate expectation of the nature for which the TYC
contended in both the founding and the replying affidavits delivered on its
behalf. The improvements may have been approved in writing by the first
respondent’s predecessors in title (the affidavits are silent on this point)
but if they were not, they were obvious for all to see and there is no
suggestion that there was ever any objection to them. And then finally, and
perhaps most importantly, negotiations for a new lease were far advanced
─ a draft lease had been forwarded to the TYC (although the amount of

the rental had been left blank as the parties had not yet reached
agreement on this point). It is not relevant that one branch of government
did not appreciate that another branch of government had already taken a
decision inimical to the renewal of the lease: The legitimate expectation
that the TYC would be heard, had been created. The fact, emphasised by
the first respondent’s counsel, that the negotiations for the renewal of the
lease took place after the Premier had made his irregular decision to grant
the servitude, is irrelevant because the TYC does not have to rely upon its
legitimate expectation to have that decision set aside.
[23] For these reasons I conclude that under the circumstances of this
case, the dictates of fairness require that the TYC be afforded the
opportunity to make representations to the first respondent before a
decision whether or not to renew the lease is made: Administrator
Transvaal and Others v Traub and Others 1989 (4) SA 731 (A) at
761A─G; Premier, Mpumalanga paras [32] to [36].
[24] To sum up: The decision by the Premier to grant the second
respondent a lease over the relevant foreshore was administrative action
within the meaning of that phrase in s 33, read as set out in item 23 of
schedule 6, of the Constitution. That decision was based upon incorrect
advice and therefore liable to be set aside in terms of paragraph (d) of
those transitional constitutional provisions. The TYC had the necessary

standing in terms of paragraph (d) to have the decision set aside; and the
TYC has a legitimate expectation as contemplated in paragraph (b) to
make representations before the first respondent decides whether or not
to renew its lease over the relevant foreshore.
[25] The following order is made:
(1)
The appeal is allowed with costs, including the costs of two
counsel.
(2)
The order of the court a quo is set aside and the following order is
substituted therefor:
‘(a)
The decision of the first respondent to register a notarial deed of

servitude, in terms of the notarial deed of servitude annexure

HVW20 to the first respondent’s answering affidavit, over the

remaining extent of Portion 28 ( a portion of Portion 1) of the Farm

Hartebeestpoort 482─JQ, in favour of the second respondent in his

capacity as owner of Erf 463, Schoemansville and his successors in

title, is set aside.
(b)
The first respondent is directed to pay the applicant’s costs of the

application, including the costs of two counsel.’

____________
T D CLOETE
JUDGE OF APPEAL

Concur: Howie P

Conradie JA

Jones AJA

Southwood AJA