THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 471/2015

In the matter between:

CAINE BROS (PTY) LIMITED T/A TRIPLE A BEEF                            APPELLANT
and
THE DEVELOPMENT TRIBUNAL FOR
KWAZULU-NATAL                                                                   FIRST RESPONDENT

THE DEVELOPMENT APPEAL TRIBUNAL
FOR KWAZULU-NATAL                                                     SECOND RESPONDENT

THE TRUSTEES OF THE SURREY ROAD
PROPERTY TRUST BEING KANTHILALL
PREMRAJH NO AND SITA PREMRAJH NO                         THIRD RESPONDENT

Neutral Citation: Caine Brothers v Development Tribunal for KwaZulu-Natal
(471/2015) [2016] ZASCA 81 (30 May 2016)
Coram:
Lewis, Leach, Tshiqi, Seriti and Pillay JJA
Heard:
20 May 2016
Delivered:   30 May 2016
Summary:  An objector to an application for land development is not entitled to
review a decision on the basis that it has not had a hearing prior to the decision
being made when in fact it has been heard on more than one occasion and in more
than one forum.

___________________________________________________________________

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg (D
Pillay J sitting as court of first instance).
1 The appeal is dismissed, save as set out below, with costs.
2 The words in paragraph 1 of the order ‘on an attorney and client scale’ are deleted.
3 The order of the high court in respect of the costs of the interlocutory application is
replaced with:
‘The costs of the interlocutory application are to be paid by the third respondent.’
___________________________________________________________________
JUDGMENT

Lewis JA (Leach, Tshiqi, Seriti and Pillay JJA concurring)
[1] The appellant, Caine Brothers (Pty) Ltd t/a Triple A Beef (Caine Brothers), is
the owner of the largest cattle farm and feedlot, as well as an abattoir, in KwaZulu-
Natal. It sought to review the decision of the first respondent, the Development
Tribunal for KwaZulu-Natal (the tribunal) that approved a land development
application in terms of s 25 of the Development Facilitation Act 67 of 1995 (DFA).
Caine Brothers had appealed unsuccessfully against the decision to approve the
development to the second respondent, the Development Appeal Tribunal for the
province (the appeal tribunal). It was unsuccessful in that body too, and so applied to
the KwaZulu-Natal Division of the High Court (the high court) for the appeal tribunal’s
decision to be reviewed and set aside as well. The high court (D Pillay J) declined
the application in respect of both decisions, awarding attorney and client costs
against Caine Brothers, but gave leave to appeal to this court. The first and second
respondents do not oppose the appeal.

[2] The application for development was brought in terms of the DFA. It should be
noted at the outset that in Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal & others [2010] ZACC 11; 2010 (6) SA 182 (CC) the
Constitutional Court, confirming a decision of this court  [2009] ZASCA 106; (2010
(2) SA 554 (SCA)), declared that chapters V and VI of the DFA were constitutionally
invalid. It suspended the order of invalidity for two years after the order, made on 18
June 2010. The chapters dealt with land development and the application for
development was made, and the tribunal and appeal tribunal made their decisions, in
terms of their provisions. The procedures and tribunals in the litigation under appeal
became inoperative by virtue of the court’s declaration on 17 June 2012. The DFA
has now been repealed, with effect from 1 July 2015, and replaced by the Spatial
Planning and Land Use Management Act 16 of 2013. Nothing in this appeal turns on
these changes to the legislation. The tribunal had concluded its work before the
order of invalidity had taken effect, and the appeal to the appeal tribunal was treated
as a matter pending.

[3] The third respondent is the Surrey Road Property Trust (the trust) represented
by its two trustees. It does oppose the appeal. The trust had applied, in February
2009, in terms of the DFA to change the zoning of a portion of a farm so that it could
erect various buildings for different uses on it. The proposed development was
named Platinum Ridge and is in the district of Hanover. The trust also applied to the
Minister of Agriculture for permission to subdivide the farm in terms of the
Subdivision of Agricultural Land Act 70 of 1970, which was granted during the course
of the proceedings that are the subject of the appeal.

[4] Caine Brothers objected to the proposed development on 20 April 2009. It
would have included a fuel filling station, a garage, a commercial area for shops and
offices, and a hospital. The essence of the objection was that the development would
jeopardize agricultural activities nearby because the area was not fit for habitation by
people using such facilities, given the proximity of more than 20 000 head of cattle,

the feedlot and the abattoir. The odours, cattle flies and other hazards attendant on
such agricultural activities, Caine Brothers maintained, would make the proposed
development unfit for the proposed activities.

[5] The tribunal to which the application was made convened for a prehearing
conference on 28 April 2009, at which Caine Brothers was represented not only by a
director but also by an advocate, Mr A J Dickson SC, who has represented it
throughout the proceedings and has appeared for it on appeal. The tribunal called for
further clarity on the application. It met again on 1 April 2011. Starting on 31 May
2011, the tribunal met and heard representations by a land use planner representing
the trust, and by Mr Dickson, representing Caine Brothers, amongst several others.
The hearing was adjourned twice and met, in all, over three days. At the end of the
hearing the chairman indicated that the tribunal had deliberated for a brief period,
and had already concluded that it would not approve a hospital on the site. It
required the trust to submit an amended plan and conditions of establishment, which
the trust did on 12 December 2011.

[6] The amended plan and conditions of establishment excluded a hospital, and
proposed that the land on which it would have been built be zoned as agricultural.
The trust also asked for a reduced site for commercial use. It did not ask expressly
for a quick shop to be attached to the filling station, although that would have been
permissible in the commercial zone.

[7] In June of the following year the tribunal met and announced its decision. In
the course of doing so, it said that members had conducted a comprehensive
inspection of the site, listened to representations and read voluminous reports. It had
taken account of objections and serious reservations about the proposed
development. It concluded that it could approve only the filling station, a quick shop
attached to it, a garage site, service industry sites, agricultural sites and private open
space. It rejected the development of the commercial site. In effect, the tribunal took

account of Caine Brothers’ and others’ objections, and granted the application in
much more limited terms than originally asked for by the trust.

[8] Despite this, Caine Brothers lodged an appeal to the appeal tribunal, which
was heard over two days in 2013. On the first day, Mr Dickson objected that Caine
Brothers had not been furnished with the amended plan and had not had an
opportunity to be heard on it – the audi alteram partem principle had been violated.
The appeal tribunal afforded him the opportunity to furnish further heads of argument
and adjourned for that purpose. The objections were once again considered and
expert reports furnished by Caine Brothers considered.

[9] It should be noted at this point that the appeal was a full rehearing, taking into
account further evidence and submissions. Cora Hoexter Administrative Law in
South Africa 2 ed (2012), the leading authority on South African administrative law,
points out that, in general, administrative appeals are established to deal with the
merits of a decision, and the appellate tribunal will step into the shoes of the
decision-maker (p 65). She refers to the classic decision in Tikly & others v
Johannes NO & others 1963 (2) SA 588 (T) at 590F-591A, in which Trollip J
distinguished between a wide appeal, which amounts to a complete re-hearing and
redetermination on the merits of a matter, and a narrow appeal where the appellate
body is confined to the record. This was a wide appeal.

[10] The principal objection raised was that the quick shop had not been part of
the original plan and was not even referred to in the amended plan submitted by the
trust. Had Caine Brothers known that the trust would have been given the right to
establish a quick shop it would have objected to it. As it did not know, it was not
afforded an opportunity to be heard.

[11] However, no new or material information actually came to light, even after the
adjournment, and the appeal tribunal concluded that Caine Brothers, through Mr

Dickson, had had a full hearing on all the matters before the tribunal. Of course if
new information is presented there is an obligation on an administrator to give an
affected person a hearing in respect of it: Huisman v Minister of Local Government,
Housing and Works (House of Assembly) & another  [1995] ZASCA 151; 1996 (1)
SA 836 (A) at 845F-G and Earthlife Africa (Cape Town) v Director-General:
Department of Environmental Affairs and Tourism & Another [2005] ZAWCHC 7;
2005 (3) SA 156 (C) paras 62 and 63. But, at least before the appeal tribunal, if not
the tribunal, objections to the quick shop had been heard.

[12] Caine Brothers also argued before the appeal tribunal that the tribunal’s
decision was irrational as it allowed the application, as limited after the first hearing,
despite serious reservations about it. The appeal tribunal rejected that argument too,
pointing out that the reservations had been taken into account in refusing the
hospital and commercial sites. The appeal tribunal concluded that there had been no
unfairness in the process and that the tribunal’s decision had been entirely rational.
The process indicated ‘a desperate attempt by [Caine Brothers] to delay the
development’.

[13] The grounds of review of this decision raised by Caine Brothers are that the
tribunal failed to allow representations on the amended application (it was in fact an
amended plan and conditions of establishment) and was thus in breach of the audi
alteram partem principle, set out in s 3(2), s 3(3), s 6(2)(c) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) and was also substantially unfair and
unlawful in terms of s 6(2)(h) and (i) of the PAJA. The decision of the appeal tribunal
was alleged to be unlawful on the same grounds. The high court rejected both
grounds of review.

[14] From the brief history of the matter that I have traced, it is immediately
apparent that Caine Brothers was given more than a fair hearing at every stage of
the process. Mr Dickson and Mr Caine made representations at every opportunity.
The fact that the amended plan was not furnished to it for comment is of no moment.

The request by the tribunal for the plan and amended conditions of establishment,
and the decision that followed on it, was precisely to take account of the objections
made by Caine Brothers and others. The amendment was a result of the hearings
that were afforded to Caine Brothers. And the appeal tribunal afforded Mr Dickson,
representing it, yet a further opportunity to put its case, adjourning the proceedings
so that he could furnish a second set of heads of argument.

[15] There comes a time when an end must be put to hearings and consultations
or no administrative decision would ever be given effect.  In my view, the high court
correctly found that the decisions were not reviewable on the ground of procedural
irregularity.

[16] As to the irrationality argument, it rests on the basis that an urban
development is incompatible with the agricultural uses to which Caine Brothers puts
its property. The tribunal, it was argued, had expressed serious reservations about
the development of Platinum Ridge, yet approved the development of a filling station,
a quick shop attached to it, and a garage. This, submits Caine Brothers, is irrational.
For it has paved the way for other commercial uses in the future. The owner of the
site, it argues, may apply to the municipality for a consent use to open the way for
commercial development. The obvious response to that is that if and when such
application is made, Caine Brothers may object, as it is entitled to do, and the
municipality will have to take those objections into account.

[17] Ironically, Caine Brothers contended that its own business was a source of
various diseases that could negatively impact on people within a radius of 20
kilometers. Despite that, it employs some 500 employees and has shown no
evidence of ill-health that they have suffered. Moreover, during the course of these
proceedings, a group of unlawful occupiers (represented by the Gonawakhe Informal
Settlement Residents Association) living on a neighbouring farm, applied to court for
an order compelling Caine Brothers to disclose to it the reports on the negative
impacts of cattle farming that it had submitted to the tribunal. In opposing the

application, Caine Brothers denied that its farming activities had a negative impact
on people and created health problems. (The application was dismissed:
Gonawakhe Informal Settlement Residents Association & others v Caine Brothers
(Pty) Ltd & others, KwaZulu-Natal Division of the High Court, Case 5480/2014, 7
October 2015.)

[18] Indeed, there are a number of other developments where there are shops and
even a lodge and conference centre, closer to Caine Brothers’ property than
Platinum Ridge would be. There is no evidence to suggest that they have suffered
the adverse effects of cattle farming. In my view, the tribunal and the appeal tribunal,
correctly followed the general principles of land development laid down in the DFA.
Section 3(1)(j) provided:
‘Each proposed land development area should be judged on its own merits and no particular
use of land, such as residential, commercial, conservational, industrial, community facility,
mining, agricultural or public use, should in advance or in general be regarded as being less
important or desirable than any other use of land.’
As the trust argues, the tribunal made a balanced decision, giving considerable
weight to agricultural use but also recognizing the need for other uses in the
development it approved. The argument that the decision is irrational must also fail,
as the high court correctly found.

[19] The last issue is costs. Pillay J made a punitive costs award against Caine
Brothers.  She also ordered that the costs of an interlocutory application by the trust
to introduce the papers in the Gonawakhe application into the review application
should be borne equally by Caine Brothers and the trust. I shall deal with the latter
costs first.

[20] The trust applied to introduce the Gonawakhe papers at a late stage of the
proceedings. It asked for an indulgence. Caine Brothers did not oppose the
application but argued that the papers were irrelevant. Pillay J considered that these

papers demonstrated that Caine Brothers, which had argued before the tribunal that
cattle farming and feedlots were health hazards, had contradicted itself in the
Gonawakhe papers because it denied that its farming operations were hazardous to
the people living on the adjacent farm. However, Bezuidenhout AJ in Gonawakhe
found that the applicants had not shown that there were health problems arising from
cattle farming on the adjacent farm, such that their rights to a safe environment had
been infringed.  There was thus no contradiction in the versions of Caine Brothers. I
see no reason why the trust should not fully bear the costs of the interlocutory
application.

[21] One of the reasons for ordering attorney and client costs against Caine
Brothers was its allegedly contradictory stance in different proceedings. As I have
held, this was not justified. Moreover, Pillay J held that Caine Brothers’ pursuit of the
litigation was unreasonable as was its opposition to the development of Platinum
Ridge. In fact, however, its opposition to the development was largely successful,
hence the changes to the plan and conditions of establishment, which followed its,
and others’, opposition. This reason for an award of punitive costs is also based on
faulty reasoning.

[22] A court of appeal will rarely interfere in the exercise of a discretion by a court
of first instance. But in this case, in my view, interference is warranted. The order of
punitive costs was not justified by the reasons advanced by the high court. The
ordinary rule that party and party costs be awarded against the unsuccessful party to
litigation should be made.

[23] I accordingly make the following order:
1 The appeal is dismissed, save as set out below, with costs.
2 The words in paragraph 1 of the order ‘on an attorney and client scale’ are deleted.

3 The order of the high court in respect of the costs of the interlocutory application is
replaced with:
‘The costs of the interlocutory application are to be paid by the third respondent.’

_______________________
C H Lewis
Judge of Appeal

APPEARANCES

For the Appellant:
A J Dickson SC
Instructed by:
Stowell & Co, Pietermaritzburg
Symington & De Kok, Bloemfontein

For the Third Respondent:
S Nankan (Heads of Argument also
prepared by M G Roberts SC)
Instructed by:
Dev
Maharaj
&
Associates,
Pietermaritzburg
Honey Attorneys, Bloemfontein