THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

CASE NO:  41/2002
Reportable

In the matter between

THE PREMIER OF THE PROVINCE OF THE
APPELLANT
WESTERN CAPE

AND

FAIR CAPE PROPERTY DEVELOPERS (PTY) LTD
RESPONDENT

CORAM:   HARMS, SCHUTZ, CAMERON, LEWIS, JJA and SHONGWE AJA

HEARD:   18 MARCH 2003

DELIVERED:  7 MAY 2003

Summary:  Action for damages against Minister where his decision to grant an application for
removal of restrictive conditions of title has been set  aside on review.  Particular conduct not
actionable – neither wrongful nor negligent.

JUDGMENT

LEWIS JA

[1] This appeal concerns the liability in delict of a provincial
government for damages allegedly caused by an administrative
decision to remove certain title deed restrictions. The decision was
subsequently set aside on review.1 Broadly, what this Court is called
upon to decide is whether the conduct is actionable at the instance of
the person in whose favour the decision  was made. The question of
liability in turn depends on whether the conduct complained of was
wrongful, negligent and the cause of any damage suffered.

[2] The appeal is against a decision of the Cape High Court (per
Davis J, and with his leave) which found that the appellant was liable
in damages for the wrongful and negligent conduct of the then
provincial Minister of Agriculture, Planning and Tourism (Western
Cape) (‘the Minister’). The judgment is reported: Faircape Property
Developers (Pty) v Premier, Western Cape2 (to which I shall refer as
‘Faircape 2’). The dispute between the parties has a long and
complex history. An exception taken by the appellant (the defendant)
on the basis, inter alia, that the allegations of the respondent (the

1 The decision of the Cape High Court (per Rose Innes J) to set aside the administrative decision
is reported as Beck & others v Premier Western Cape & others 1998 (3) SA 487(C). I shall refer
to it as ‘the review decision’.
2  2002 (6) SA 180 (C).

plaintiff,  referred to as ‘Faircape’) did not support the conclusion that
the Minister had acted unlawfully was dismissed, also by Davis J, and
that decision (to which I shall refer as ‘Faircape 1’) is also reported.3

[3] The facts giving rise to the litigation (and which are common
cause) are traversed fully in the review decision and in Faircape 2.
Accordingly I shall set them out only briefly. The owner of an erf in
Vredehoek, Cape Town, Mr Diekmann, wished to develop his
property, or to sell it to a developer. In terms of the Land Use
Planning Ordinance 15 of 1985 (C) the erf had been zoned 'general
residential use R4' (which permitted its use for 'double dwelling
houses, dwelling houses, groups of dwelling houses, places of
worship, residential  buildings'). However, Diekmann was not able to
proceed with development because of restrictive conditions in the title
deed, imposed in 1936 in terms of the Township Ordinance 13 of
1927 (C), which appeared to preclude the building of more than one
dwelling on the erf.

3 2000 (2) SA 54 (C).

[4] On 19 May 1995, in terms of the Removal of Restrictions Act 84
of 1967, Diekmann, represented by his attorney, applied for the
removal of the restrictions. The Act conferred the power to determine
such applications upon the former Administrators of provinces. Acting
in terms of the transitional provisions of the interim Constitution of the
Republic of South Africa Act 200 of 1993, the President had assigned
the administration of the Act to a competent authority designated by
the Premier of a province, and had altered the definition of 'townships
board' in the Act to mean, in relation to the Western Cape, the
Planning Advisory Board established under Ordinance 15 of 1985.
The Premier of the Western Cape, in turn, had designated the
provincial Minister of Agriculture, Planning and Tourism as the
competent authority to administer the Act in that province.

[5] The application was required first to be lodged with the local
authority. A copy had also to be forwarded by the applicant to the
Director-General of the Provincial Administration. On receipt of the
application the Director-General was required, in terms of s 3(6) of
the Act, to cause a notice calling for objections to be published in the
Provincial Gazette and in a newspaper. In terms of s 4(1), the

application, together with any objections and relevant documents,
had then to be considered by the Planning Advisory Board, which had
to make a recommendation to the Minister. The local authority was in
turn required to forward a copy of the application together with its
comments and recommendation, to the Director-General. In terms of
s 4(2), the Minister, upon consideration of the application, the
recommendation of the Planning Advisory Board, the comments and
recommendation of the local authority and of other relevant material,
was empowered to grant or refuse the application, subject to such
conditions as the Minister saw fit to impose (s 3(1)).

[6] Diekmann’s application followed the requisite procedure, and
used the prescribed form, which required him to state the purpose for
which the property would be used if the application were successful.
The response written in was 'the erection of townhouses'.  In reply to
the request for the reasons for the application Diekmann stated: 'The
property has already been rezoned by the Council as general
residential and the removal of the title deed restrictions will bring the
title deed situation in line with the zoning by the local authority.'

[7] A notice was published in the Provincial Gazette and in two
newspapers, as required by s 3(6), which stated that the purpose of
the removal of the restrictions was for 'the erection of townhouses'.
The attorney also sent letters to certain owners of land in the area of
the erf, in which he enclosed copies of the notice as advertised.

[8] After the application had been lodged and advertised,
Diekmann sold the erf to a Mrs Getz, who wished to erect
townhouses on the land, and who had had sketch plans for that
purpose prepared. The sketch plans indicated that four double-storey
townhouses were to be constructed on the erf.

[9] During June and July 1995 a number of objections to the
removal of the restrictions was received by the local authority (the
Cape Town City Council, the second respondent in the review matter)
expressing the fear that the removal of the restrictions in the title
deed would make it possible for a building as high as seven storeys
to be erected. The attorney countered these objections by pointing
out,  inter alia, that according to the Getz sketch plans, the proposed
development would comprise only two levels.

[10] The persons who later applied for the setting aside of the
Minister’s decision to remove the restrictions did not at that stage
lodge objections, either because the notice of the application to
remove the restrictive conditions had not come to their attention, or
because they had no objection to the erection of double-storey
townhouses. The City Planner recommended that the restrictions be
removed.

[11] The sale of the erf to Getz was, however, cancelled, and on 1
November 1995 Faircape signed a written offer to purchase it from
Diekmann, who accepted the offer on 21 November. Faircape
proposed to erect a five-storey block of flats. But before this sale was
concluded, on 15 November 1995 the Urban Planning Committee of
the local authority met to hear oral representations in connection with
the objections to the original application. The committee had before it
the City Planner's report, and the application was thus debated by all
concerned on the basis of the Getz proposal  (which had by then, of
course, fallen away) to erect double-storey townhouses although it

was made clear to all that Diekmann intended to sell the property and
did not regard himself or any successor bound to that proposal.

[12] At its meeting the Urban Planning Committee passed a
resolution adopting the recommendation of the City Planner, who, on
20 November, conveyed the decision to the Director-General,
advising him that the local authority had 'no objection in principle to
the property being used for general residential R4 purposes (the
erection of townhouses)'.

[13] The Getz sketch plans for double-storey townhouses either did
not reach, or were overlooked by, the provincial authorities when they
considered the application. Accordingly, on 30 January 1996, the
Director-General requested the attorney to furnish 'a development
plan indicating the proposal'. In response the attorney, now acting for
Faircape, furnished plans drawn by a firm of architects, Harries
Levetan, for construction of a five-storey block of flats that Faircape
proposed to build on the erf. These plans (the ‘Faircape plans’) were
sent with the application to the Planning Advisory Board.

[14] The Board ultimately recommended that the application for the
removal of the restrictive conditions be approved, subject, inter alia,
to the development being carried out according to the Faircape plans.
The Head of the Department of Housing, Local Government and
Planning conveyed this recommendation to the Minister in his report.
Thus the stated purpose of the application that ultimately came
before the Minister – to permit the erection of a five-storey block of
flats – was entirely different from the purpose of the application that
had initially been made, advertised, objected to and then approved by
the local authority.

[15] In March 1996 the Minister, Mr Lambert Fick, having before him
the report of the Head of his department recommending the approval
subject to the development being carried out according to the
Faircape plans, approved the application in the form presented to
him. On 29 March 1996 a notice was published in the Provincial
Gazette, stating that 'the Premier hereby removes conditions 2(b) and
(c) [the restrictions]' contained in the title deed. Apart from the fact
that the reference to 'the Premier' was incorrect – the decision having
been taken by the Minister – the notice did not specify, as was

required in terms of s 2(1) of the Act, that the removal of the
restrictions was conditional  on the erection of a block of flats  in
accordance with  the Faircape plans.

[16] Faircape took transfer of the erf on 24 May 1996, and during
July 1996 commenced building operations. Once it was apparent that
the building was going to be a block of flats, rather than double-storey
townhouses, a number of residents in the area objected. However,
the local and provincial authorities refused to intervene or to stop
construction of the block of flats.  Accordingly, several individuals
brought two applications in the Cape High Court simultaneously: one
for review of the Minister’s decision (the review case), and the other
for urgent interim relief by way of a temporary interdict restraining
further work on the construction of the block of flats. An order that,
pending the outcome of the review proceedings, Faircape be
restrained from proceeding with the construction of the block of flats,
was granted by Conradie J on 11 October 1996.

[17] The Provincial Government did not oppose the review
application and did not furnish any reasons for removing the
restrictions.

[18] What had to be decided in the application for review was
whether the applicants had established that the removal of the
restrictions was ultra vires or so affected by grave irregularity that the
removal of the restrictions had to be set aside. A number of
submissions were made by the then applicants that are germane to
this appeal. The first was that by virtue of the materially misleading
tenor of the notice of the application to remove the restrictions
published and sent, no proper notice as required by s 3(6) of the Act
had been given. Secondly, the application considered by the Minister
was materially different from that which had been considered by the
Urban Planning Committee of the local authority. The third, and
crucial, argument was that the Minister had failed properly to apply
his mind to the application before him.

[19] Rose Innes J found that s 3(6) required that proper notice had
to be given to property owners and residents in the relevant area that

an application had been received for the removal of any restriction in
the title deeds of property, and that the application itself had to be
open for inspection. Objections to the application had to be forwarded
to the Director General. As the rights or interests of other property
owners or residents in the area could adversely be affected by such
an application, proper notice to interested persons was essential for
the proper exercise of the discretionary power conferred upon the
Minister by the Act.

[20] Rose Innes J further held that since the application that had
actually been granted by the Minister, based on the Faircape plans,
differed from that in respect of which notice had been given to
interested parties (based on the Getz plans for townhouses), it was
clear that proper notice had not been given. It did not matter that, as
a matter of law, an application for the removal of restrictions did not
have to be accompanied by any development proposal at all. The fact
was that the application had been accompanied by one; the
application form itself had referred to the erection of townhouses; and
residents may well have failed to lodge objections because of the
nature of the development that had been advertised. There had thus

not been a proper consideration of the removal of restrictions relating
to buildings, since the various authorities had not considered the
development plan that actually formed part of the application before
the Minister.

[21] Further, Rose Innes J held, objectors to the application
ultimately granted by the Minister had not been afforded a proper
opportunity to be heard. Moreover, when the application was referred
to the Planning Advisory Board of the Province and the Minister for
their consideration, the purpose for which the property would be used
was substantially different from that which had been put before the
local authority’s Urban Planning Committee at its meeting on 15
November 1995, and on which it had to make recommendations to
the Minister: the considerations which the Minister had to take into
account in deciding the application in March 1996 were thus different
from those that the local authority had taken into account. Thus the
Minister had in effect made a decision on an application for the
removal of restrictions without receiving and considering the
recommendations made by the local authority, the Planning Advisory
Board, and objections made to the application by interested parties.

[22] Rose Innes J concluded on the evidence before him that, given
that the departmental file of the provincial administration placed
before the Minister contained numerous documents referring to the
erection of double-storey townhouses on the erf, there were
‘compelling evidential grounds’4 for finding that the Minister had not
properly considered the application even in the form in which it was
submitted to him. Any person considering those documents properly,
the court held, would have realised that the application submitted to
and dealt with by the local authority was an application relating to the
erection of townhouses. Had the Minister read all the documents, he
would have realised that the proposal considered by the local
authority was not the development that was subsequently proposed
and placed before him for his consideration. The unavoidable
conclusion, on the available evidence, was that the Minister had not
in terms of s 4(2) of the Act considered the relevant documents and
particulars relating to the application, as the Act expressly required
him to do.

[23] This conduct Rose Innes J labelled a ‘material omission’. He
held, for the reasons traversed, that since the Minister had not

properly considered the application, his decision to remove the
restrictions was ultra vires and of no effect. The decision was set
aside.

[24] Shortly thereafter Faircape re-applied for the removal of the
restrictive title deed conditions. The purpose of the application was
described as ‘to enable the property to be used for general residential
R4 purposes (the erection of a block of flats) in terms of the
provisions of the zoning scheme’. By then, in the words of Davis J in
Faircape 2,4 the proposed development had become ‘something of a
cause celebre’.  The second application for the removal of the
restrictions was delayed accordingly and the Minister granted it only
on 12 May 1998.  The building plans for the flats were approved in
the same month and Faircape recommenced construction (for the
second time) at the end of May 1998.

[25] In the interim, however, immediately after Faircape had
launched the second application, on 18 December 1996, Faircape’s
surveyor noticed that the reference in the restrictive condition

4  At 189A—B.

prohibiting the erection of ‘one dwelling’ was incorrect; that the
condition originally imposed by the then Administrator had referred to
‘one building’ and that when the land was first transferred the
condition had been incorrectly transcribed in the title deed. Faircape
accordingly applied to the Registrar of Deeds for rectification of the
title deed, and when the Registrar granted the application and the
word ‘dwelling’ was replaced by the word ‘building’ in January 1997,
Faircape took the gap. It recommenced construction of the block of
flats.

[26] Once again residents in the area applied for an interdict against
Faircape, alleging that even though the title deed now permitted the
erection of not just one dwelling, but of one building, the block of flats
being constructed comprised three buildings.  They succeeded. King
J granted an order prohibiting Faircape from proceeding with any
construction on the erf. Faircape then desisted from further building
until the second application was granted and the building plans
approved in May 1998.

[27] In April 2001 Faircape instituted action against the Minister
claiming damages in the sum of R 1 675 855,30. The detailed basis
on which the quantum of damages was calculated is not relevant
because the court ordered that the question of liability alone be
decided, the quantum of damages suffered to be determined
subsequently.

[28] The basis of the claim is set out in the particulars of claim as
follows. The Minister owed Faircape a duty of care, when considering
the first application, to apply his mind properly and to reach his
decision without negligence. He breached the duty in that he failed to
apply his mind properly by failing to appreciate: (1) that the
application he was considering was materially different from that
which had been considered by the Urban Planning Committee (of the
local authority); (2) that no notice of the application that he was
considering had been given to interested parties and (3) that the local
authority had considered a different application. The Minister should
therefore have declined to grant the application.  His breach of duty
had the following results: objectors were able to obtain an interim
interdict on 11 October 1996; Faircape was then compelled to cease

construction; the decision was set aside on 12 December 1996;
Faircape was obliged to submit a second application for removal of
the restrictive conditions; and the block of flats which would otherwise
have been completed in June 1997 was completed only by mid-
August 1998. The consequences of the breach, it was alleged, were
delays which led to additional building costs; legal costs; additional
interest paid on a building loan and on an overdraft facility; additional
architect’s fees and additional land surveying fees.

[29] The exception taken to the claim, referred to earlier, was based
on three grounds of which only one remains relevant to the appeal,
namely that, on Faircape’s allegations, the Minister did not act
wrongfully in so far as either Diekmann or Faircape were concerned
since he did not owe them a duty of care.

[30] Davis J dismissed the exception (Faircape 1), holding that the
test to be applied for determining whether the Minister’s conduct was
wrongful was to establish the legal convictions of the community as to
whether the Minister should be held liable; and that this entailed
taking into account the spirit, purport and objects of the Constitution.

The Constitution enjoins a principle of accountability to the public on
the part of a state official when acting negligently. There is no
mechanism for holding the Minister liable in terms of the Act itself,
and accordingly a remedy should be afforded to a person who has
suffered damages in consequence of the wrongful and negligent
conduct of the Minister.

[31] The issues of wrongfulness and negligence were discussed at
length by Davis J in Faircape 2, in which he found that the Minister
was liable: that the Minister had wrongfully and negligently caused
loss to Faircape. On appeal, the appellant argues that, while the
principles enunciated by the court below are not in contention, their
application was misconceived. I turn first to the question whether the
Minister acted wrongfully.

WRONGFULNESS
[32] The principle of accountability of a public official to members of
the public has recently been endorsed and applied by this Court in
Olitzki Property Holdings v State Tender Board & another,5 Minister

5  2001 (3) SA 1247 (SCA).

of Safety and Security v Van Duivenboden6 and Van Eeden v
Minister of Safety and Security (Women’s Legal Centre Trust, as
Amicus Curiae);7 and by the Constitutional Court in Carmichele v
Minister of Safety and Security & another (Centre for Applied Legal
Studies intervening).8

[33] In Olitzki, Cameron JA, dealing with a right arising from the
breach of a statutory duty, said:9
‘The focal question remains one of statutory interpretation, since the statute may
on a proper construction by implication itself confer a right of action, or
alternatively provide the basis for inferring that a legal duty exists at common law.
The process in either case requires a consideration of the statute as a whole, its
objects and provisions, the circumstances in which it was enacted, and the kind
of mischief it was designed to prevent. But where a common-law duty is at issue,
the answer now depends less on the application of formulaic approaches to
statutory construction than on a broad assessment by the court whether it is “just
and reasonable” that a civil claim for damages should be accorded. “The conduct
is wrongful not because of the statutory duty per se, but because it is reasonable
in the circumstances to compensate the plaintiff for the infringement of his legal

6  2002 (6) SA 431 (SCA).
7  2003 (1) SA 389 (SCA).
8  2001 (4) SA 938 (CC).
9 Para [12], footnotes omitted.

right.”10 The determination of reasonableness here in turn depends on whether
affording the plaintiff a remedy is congruent with the court’s appreciation of the
sense of justice of the community. This appreciation must unavoidably include
the application of broad considerations of public policy determined also in the
light of the Constitution and the impact upon them that the grant or refusal of the
remedy the plaintiff seeks will entail.’

[34] In the court below, in both Faircape 1 and Faircape 2, the
Minister placed great reliance on the decision in Knop v
Johannesburg City Council11 in which it was held that the City Council
was not liable in damages for the negligent exercise of a statutory
duty. The court in the Faircape matters sought to distinguish Knop on
the basis that the plaintiff there (who had been refused a subdivision
of land) had been afforded a remedy by the statute in that he had a
right to appeal against the refusal, whereas in this matter Faircape
had no right of appeal against the decision of the Minister to grant the
application for the refusal of restrictive conditions of title.  It was not
argued before this Court, however, that Knop was distinguishable nor
that it was wrongly decided, and in my view it is, subject to some
qualification to which I shall return, indeed consonant with more

10 Joubert ed The Law of South Africa (LAWSA) first reissue vol 8, Part I, para 61.
11 1995 (2) SA 1 (A).

recent decisions dealing with public officials’ accountability for
wrongful conduct (as Davis J in Faircape 112 recognised). Much of
what  was said in  Knop is apposite to this.

[35] Writing for the Court in Knop,14 Botha JA stated that the
question whether an official’s conduct is wrongful is dependent on the
answer to various enquiries including one as to the nature of the
decision required to be made: whether the decision is quasi-judicial or
purely administrative. However, said the learned judge, not much
turned on the distinction for this purpose. What had to be examined
was whether the statute imposing a duty on an official, or
empowering an official to make a decision, precluded an action
against the official for making an invalid decision or breaching the
statutory duty. In concluding that the conduct of the official in that
case was not actionable, he considered that the statute itself provided
a remedy in the form of an appeal.

[36] Further, in deciding that the refusal to grant a subdivision was
not wrongful to the plaintiff in Knop, the Court enquired whether the

12 At 65G—H.
13 At 65G—H.
14 At 24G—J.

legislature intended, in enacting the Ordinance, to confer on an
applicant for subdivision a right to claim damages for the negligent
conduct of a local authority. Botha JA found nothing in the Ordinance
to suggest that this might be so.  He said:15
‘In my opinion the reasoning reflected in the above passages [a reference to
several English cases dealing with the question of state officials’ liability for
negligent conduct] can be applied to the legislation under consideration in the
present case, in conformity with the criteria in our law for determining whether or
not the local authority owes a legal duty to an applicant for subdivision in respect
of pure economic loss.  As to the intention of the legislature, the fact that it has
prescribed a particular form of procedure by which an aggrieved applicant can
obtain relief against the refusal of his application shows by necessary implication
that it did not intend a negligently incorrect refusal to give rise to an action for
damages.  As to the broader considerations of policy, on the one hand an
aggrieved applicant does not need an action for damages to protect his interests;
he has readily at hand the appeal procedure provided within the legislative
framework.  On the other hand, considerations of convenience militate strongly
against allowing an action for damages; the threat of such an action would
unduly hamper the expeditious consideration and disposal of applications by the
local authority in the first instance.  That is not to say that the local authority need
not exercise due care in dealing with applications; of course it must, but the point
is that it would be contrary to the objective criterion of reasonableness to hold the

15 At 33A—F.

local authority liable for damages if it should turn out that it acted negligently in
refusing an application, when the applicant has a convenient remedy at hand to
obtain the approval he is seeking [my emphasis].  To allow an action for
damages in these circumstances would, I am convinced, offend the legal
convictions of the  community. (Compare Minister of Law and Order v Kadir . . .
.)16
In my judgment, therefore, the refusal of an application, through an error due to
negligence, is not a wrongful act giving rise to a delictual claim  for damages.’

[37] This dictum must be qualified in the light, now, of the duties
imposed on all organs of government by the Constitution, and in
particular in the light of the positive obligations imposed by s 7 (the
state must ‘respect, protect, promote and fulfil the rights in the Bill of
Rights’); and s 41(1) (all spheres of government and organs of state
must provide ‘effective, transparent, accountable and coherent
government’).17 In determining the accountability of an official or
member of government towards a plaintiff, it is necessary to have
regard to his or her specific statutory duties, and to the nature of the
function involved. It will seldom be that the merely incorrect exercise
of a discretion will be considered to be wrongful. The enquiry as to

16 1995 (1) SA 303 (A).
17 See also Carmichele above, para [45]; Olitzki above paras [11], [12] and [13]; and Van
Duivenboden above para [20].

wrongfulness should also include a consideration of whether the
legislation in question, expressly or by implication, precludes an
action for damages against an official or member of government,
since the conclusion that accountability  may take the form of an
award in damages may be negatived by a construction of the
legislation in question. This approach is in my view consonant with
the Promotion of Administrative Justice Act 3 of 2000 (of no
application to this matter because it was passed and promulgated
after the events giving rise to the dispute had occurred) which confers
on a court the power, in exceptional circumstances, to order an
administrator or any other party to the proceedings to pay
compensation where administrative action is set aside.18 It must be
emphasised that each case should be considered in its own context.
And of course, the other elements of the delict must still be proved in
order for any act or omission to be actionable.

18 Section 8 (1)(c)(ii)(bb).

[38] As to the general test for wrongfulness, Botha JA in Knop said
that the following passage from Fleming The Law of Torts19 correctly
sets out the general nature of the enquiry:

'In short, recognition of a duty of care is the outcome of a value judgment,
that the plaintiff's invaded interest is deemed worthy of legal protection against
negligent interference by conduct of the kind alleged against the defendant. In
the decision whether or not there is a duty, many factors interplay; the hand of
history, our ideas of morals and justice, the convenience of administering the rule
and our social ideas as to where the loss should fall. Hence, the incidence and
extent of duties are liable to adjustment in the light of the constant shifts and
changes in community attitudes.'20

[39] The nature of the value judgment to be made by a court in
determining whether negligent conduct should give rise to liability is
put thus by P Q R Boberg The Law of Delict:21
‘At the root of each of these crystallized categories of wrongfulness [a reference
to categories of acts or omissions giving rise to the damage alleged, but which
have, in effect, been subsumed within broad principle since the work was written]
lies a value judgment based on considerations of morality and policy – a
balancing of interests followed by the law’s decision to protect one kind of

19  4 ed at 136.
20 See also Minister van Polisie v Ewels 1975 (3) SA 590 (A) where the same passage was
approved.
21 (1984) p 33.

interest against one kind of invasion and not another. The decision reflects our
society’s prevailing ideas of what is reasonable and proper, what conduct should
be condemned and what should not – the boni mores, or, as Rumpff CJ put it in
Minister of Polisie v Ewels22supra, the legal convictions of the community.’23

[40] Community attitudes, and the principle of accountability on
which Faircape relies in contending that the Minister’s decision was
made wrongfully, are now, in addition, firmly underpinned by the
Constitution.24 Since the principles of South African law, and a survey
of
comparative
law,
particularly
that
of
England
and
the
Commonwealth countries, are traversed extensively in that judgment
as well as in Carmichele,25 I shall not repeat them here. The general
principles and the approach now to be adopted are enunciated as
follows in Van Duivenboden:26
‘When determining whether the law should recognise the existence of a
legal duty in any particular circumstances what is called for is not an intuitive
reaction to a collection of arbitrary factors but rather a balancing against one
another of identifiable norms. Where the conduct of the State, as represented by
the persons who perform functions on its behalf, is in conflict with its

22 1975 (3) SA 590 (A).
23 See also the discussion of wrongfulness in general in Knop above, at 26E—27I.
24 Van Duivenboden andVan Eeden, above.
25 Above, paras [45] to [49].
26 Van Duivenboden para [21], footnotes omitted.

constitutional duty to protect rights in the Bill of Rights, in my view, the norm of
accountability must necessarily assume an important role in determining whether
a legal duty ought to be recognised in any particular case. The norm of
accountability, however, need not always translate constitutional duties into
private law duties enforceable by an action for damages, for there will be cases
in which other appropriate remedies are available for holding the State to
account. Where the conduct in issue relates to questions of State policy, or
where it affects a broad and indeterminate segment of society, constitutional
accountability might at times be appropriately secured through the political
process or through one of the variety of other remedies that the courts are
capable of granting. No doubt it is for considerations of this nature that the
Canadian jurisprudence in this field differentiates between matters of policy and
matters that fall within what is called the 'operational' sphere of government,
though the distinction is not always clear. There are also cases in which non-
judicial remedies, or remedies by way of review and mandamus or interdict, allow
for accountability in an appropriate form and that might also provide proper
grounds upon which to deny an action for damages. However, where the State's
failure occurs in circumstances that offer no effective remedy other than an
action for damages the norm of accountability will, in my view, ordinarily demand
the recognition of a legal duty unless there are other considerations affecting the
public interest that outweigh that norm. For, as pointed out by Ackermann J in
Fose v Minister of Safety and Security27 in relation to the interim Constitution (but
it applies equally to the 1996 Constitution),

27 1997 (3) SA 786 (CC), para [69].

“. . . without effective remedies for breach [of rights entrenched in the
Constitution], the values underlying and the right entrenched in the Constitution
cannot properly be upheld or enhanced. Particularly in a country where so few
have the means to enforce their rights through the courts, it is essential that on
those occasions when the legal process does establish that an infringement of an
entrenched right has occurred, it be effectively vindicated. The courts have a
particular responsibility in this regard and are obliged to ''forge new tools'' and
shape innovative remedies, if needs be, to achieve that goal.”’
Nugent JA went on to say28 that in some cases the
‘need for effective government, or some other constitutional norm or
consideration of public policy, will outweigh accountability in the process of
balancing the various interests that are to be taken into account in determining
whether an action should be allowed . . .’
but that there was none in that case. He did, however, refer to Knop v
Johannesburg City Council29 as one of the cases where the balancing
of interests precluded an action for damages against the public
official.

[41] As I have already said, the Minister does not contest the
principles that govern wrongfulness recently affirmed and elaborated
upon by this Court and the Constitutional Court. He argues, however,

28 Para [22].
29 Above.

that he committed no wrong, and especially no wrong in so far as an
applicant for the removal of restrictions is concerned. It is useful to
consider first principles in this regard. For an act or an omission to be
actionable, it must constitute an infringement of a legal interest. Just
as there cannot be negligence in the air,30 so too there cannot be
wrongfulness (the breach of a legal duty) in the air: ‘it is as well to
remember that conduct which is lawful to one person may be unlawful
towards another’ – per Harms JA in S M Goldstein & Co (Pty) Ltd v
Cathkin Park Hotel (Pty) Ltd.31 The test for determining whether
conduct is wrongful in so far as a particular plaintiff is concerned, said
Harms JA, ‘involves a value judgment by applying in the light of all
the circumstances the general criterion of  reasonableness.  The
criterion is based upon considerations of morality and policy and the
court’s perception of the legal convictions of the community’.32 See
also BOE Bank Ltd v Ries33 where Schutz JA stated that ‘the Court
has to be persuaded that the defendant owes a legal duty and not
only a moral duty to the plaintiff. This involves forming a value
judgment’ (my emphasis).

30 Per Lord Russell of Killowen in Bourhill v Young [1943] AC 92 (HL) (Sc) at 101--2.
31 2000 (4) SA 1019 (SCA) at 1024F--G.
32 At 1024F--G.
33 2002 (2) SA 39 (SCA) at 47A--B.

[42] The foreseeability of harm to the plaintiff is also ‘a relevant
consideration in the determination of lawfulness’ (per Hefer JA in
Government of the Republic of South Africa v Basdeo).34 He relied in
this regard on M Millner Negligence in Modern Law where the author
states that in order for conduct to be actionable ‘the nature of the
interest infringed [is] one which the law protects against negligent
conduct’.35 The test for reasonableness goes not only to negligence,
but also to determine the boundaries of lawfulness. Thus, states
Millner,
‘If a reasonable man, placed in the circumstances of the defendant, would have
foreseen that his conduct might endanger or prejudice others in regard to their
legally protected interests, then the defendant is deemed to have been under a
legal duty towards such others to exercise appropriate care.’ 36
Accordingly, even if it were to be found that the Minister’s conduct
had been negligent, this would not entail, necessarily, a finding that it
was also wrongful. One must ask whether it was wrongful in so far as
an applicant in the position of Faircape is concerned. In answering
that question one must consider also, therefore, whether the Minister

34 1996 (1) SA 355 (A) at 368H--I).
35 Page 25. See also the passage from Millner p 230 cited by Botha JA in Knop, above, at 26J—
7E.
36 Op cit p 25.

should have foreseen that his conduct might cause prejudice or loss
to persons, like Faircape, whose applications are granted.

[43] What is the conduct that is alleged to have caused loss? In the
particulars of claim Faircape labels the conduct complained of as a
failure on the part of the Minister to apply his mind properly, and with
due care, when reaching his decision to remove the title deed
restrictions. In my view, it was the decision itself that constitutes the
conduct alleged to be actionable. And that appears to have been the
approach of the court below as well: Faircape, said Davis J at the
commencement of his judgment, sought damages ‘in terms of a claim
based upon the negligent performance of a statutory function’.37

[44] One should begin by determining what statutory duty the
Minister had. The answer is to be found in the Act where s 2(1)
provides that
‘Whenever the Administrator of a province in which the land in question is situate,
is satisfied—

37 2002 (6) SA 180 at 183I--J.

(a)
that it is desirable to do so in the interest of the establishment or
development of any township or in the interest of any area, whether it is situate in
an urban area or not, or in the public interest; . . .

(b)
. . .
he may, subject to the provisions of this Act, . . . on application of any person . . .
alter, suspend or remove, . . . and either unconditionally or subject to any
condition so specified, any restriction or obligation which is binding on the owner
of the land by virtue of—

(aa)
a restrictive condition or servitude registered against the title deed
of the land . . . .’
It is clear from this that his prime obligation is to determine the
question of desirability and to exercise a discretion in that regard.
The next question must be: was the decision to remove the
restrictions wrongful in relation to Faircape, as the applicant for the
removal? The answer seems obvious – no. Although it was
Diekmann who had commenced the application for removal, in effect
Faircape took it over, and lodged with the province the plan on which
the decision was based.  Thus in effect Faircape asked the Minister
to remove the restrictions. The Minister acceded. He added a
condition, but that he was entitled to do in terms of s 2(1). Once he
was satisfied that it was ‘desirable to do so in the interest of the
establishment or development of any township or in the interest of

any area . . .’38 he was empowered to remove the restrictions ‘either
unconditionally or subject to any condition so specified’.

[45] Faircape nonetheless contended that it was wrongful for the
Minister to do negligently what it asked. That submission, in my view,
conflates the enquiries as to wrongfulness and fault. Of course to be
actionable the conduct must be both wrongful and negligent. And in
determining each aspect one must ask whether the Minister should
have foreseen that the applicant for the removal of the restrictions
would suffer loss if the application were granted. But attaching the
label of negligence to the conduct does not in itself make the conduct
wrongful.

[46] One of the enquiries, then, for determining whether the Minister
was under a legal duty to prevent harm to Faircape is whether the
Minister should have foreseen that his conduct ‘might endanger or
prejudice others in regard to their legally protected interests’?39 A
similar question is inevitably repeated when one is determining the
issue of negligence. In the context of determining wrongfulness, the

38 Section 2(1)(a).
39 Millner, op cit, in passage cited in Government of the Republic of South Africa v Basdeo above.

question relates only to whether there should be a legal duty imposed
on the Minister not to infringe a legal interest of an applicant. And it is
but one of several enquiries that must be pursued in order to
determine whether, as a matter of legal policy, an official or member
of government should be visited with liability for damages.  Would a
reasonable Minister have foreseen that an applicant for the removal
of restrictions would be prejudiced or would suffer loss if the
application were granted? Again, the answer must be no. The
Minister was entitled to assume that Faircape, as a developer of
property, would have checked the application itself. While Faircape
had not launched the application initially, it had responded to the
request from the Province to provide a development plan, and had
done so. Faircape must have known that notice of the application
would previously have been served on property owners in the area;
that there would have been an advertisement published; and that the
plans that had been submitted initially would have been open for
inspection.  If Faircape felt aggrieved at being granted rights
unlawfully, its remedy was to correct the situation before it started
building.

[47] It is not open to Faircape to suggest that the Minister should be
liable to it because of its own failure, as an applicant, to take steps to
safeguard its rights. This would not be ‘congruent with the court’s
appreciation of the sense of justice of the community’.40 As the
Minister argued, by the time the present litigation commenced,
Faircape had defended three applications – two for interdicts
prohibiting further construction, and one for the setting aside of the
Minister’s decision. It was fully aware, some months before the time
when the first application was brought before Conradie J, of the
problems with the advertisements and notice given, and thus of the
confusion between the sketch plan for townhouses and the Faircape
plan for a block of flats. At the very least, Faircape should have taken
steps to deal with any confusion in the application when the first
interdict was granted, and the court was critical of its conduct.41

[48] The Minister’s conduct, even if negligent (an aspect shortly to
be examined), amounted to doing no more than was asked of him by
Faircape. He removed the restrictive conditions, as requested, and
imposed a condition in terms of s 2(1). In so doing, he was bringing

40 Per Cameron JA in Olitzky 2001 (3) SA 1247 (SCA) para [12], in the passage quoted above.
41 Unreported judgment of Conradie J in Beck & others v The Premier of the Western Cape (Cape
High Court, Case no 12596/96, handed down on 11 October 1996).

the erf in line with the town planning scheme already approved for the
area by the local authority. It is hardly consonant with any sense of
fairness or justice that an applicant for the removal of restrictions
should be allowed an action on the basis that its application was
granted by the Minister when it was in just as good a position as the
Minister, if not better, to know that the application was defective. The
whole foundation of Faircape’s claim is flawed: it was not entitled to
apply for the removal of the restrictions on the papers presented to
the Minister, and there is no reason of policy why it should be
compensated for having done so.

[49] The procedures that were not complied with were enacted for
the protection and in the interest of potential objectors and not in the
interests of applicants for the removal of restrictions.  On the contrary,
it is such applicants who are called upon to comply with those
provisions as a precondition to securing such removal.  Generally, as
a matter of legal policy, an applicant who fails to fulfil that obligation
should not be entitled to damages even if the Minister negligently fails
to detect the applicant’s error.  I can see no reason of policy that
compels the conclusion that he should. If Faircape was aggrieved at

the decision reached – and for which it had asked – it should have
taken steps to set aside the decision itself. What it now seeks is to be
compensated for its failure to pursue the appropriate remedy.
Accordingly, I find that the Minister committed no wrong in so far as
Faircape was concerned. His conduct was not in itself wrongful, and
for that reason alone was not actionable.

NEGLIGENCE

[50] I consider it important, nonetheless, to examine the finding of
the court below that the Minister was indeed guilty of negligence, for
the spectre of actions for damages based on defective administrative
action is one that must be faced and the test for negligence must be
clear. The basis for the finding of negligence by Davis J lies
essentially in the reasons for the setting aside of the decision in the
review application. The Minister had approved an application for the
removal of restrictions on the basis of the Faircape plans, whereas
the notices and advertisements had referred to townhouses. The
difference was manifest. Although it was established in evidence that
the term ‘townhouse’ has no specific meaning in town-planning

legislation or in property law in general, there is a clear distinction to
be drawn between a five-storey block of flats, and double-storey
townhouses, which were referred to in the initial application and on
the sketch plans provided by Getz.

[51] For these reasons Rose Innes J in the review decision42
considered, on the papers before him, that the Minister had not
properly applied his mind to the application, and set aside the grant of
the application for the removal of the restrictions. Because the
Minister’s decision was flawed in this respect (as well as in others,
discussed earlier), and the applicants for review were entitled to have
it set aside, the court below concluded that the Minister had acted
negligently in removing the restrictions from the title deed.

[52] The residents of Vredehoek who applied for the setting aside of
the decision (and for the interdict preventing further construction)
were undoubtedly entitled to the relief they sought:  the decision of
the Minister was taken on a basis different from that of which they
had been made aware. In my view, however, the fact that they

42 1998 (3) SA 487 (C).

succeeded in having the decision of the Minister set aside because
he had not properly applied his mind to the application for the
removal of restrictions, does not in itself mean that the Minister was
guilty of negligence.

[53] Davis J in the court below cited the classic test for negligence
formulated in Kruger v Coetzee:43
‘For the purposes of liability, culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
(ii)
would take reasonable steps to guard against such occurrence;
(b) the defendant failed to take such steps.’

[54] There is no reason to qualify this test, which has been almost
invariably applied by this Court. It is not clear to me, however, that the
court below actually applied the test to which it referred to the facts of
the case. After an examination of the evidence, in particular that of
the Minister himself, the court concluded that there were two possible

43 1966 (2) SA 428 (A) at 430E—F, per Holmes JA.

explanations for the Minister’s failure to notice the discrepancies
between what the local authority had considered and approved, and
what was before him as the authority empowered to remove the
restrictions. The first was that the Minister did not read the file at all,
but only the summary presented by his officials. Alternatively, if he
had read the file, he had not appreciated that there was a difference
between the two plans referred to. He must have known, said Davis
J, that a developer of the property would probably suffer loss if his
decision were subsequently set aside.44 It thus followed that the
Minister was negligent.

[55] However, in my view, applying Kruger v Coetzee,45 the enquiry
should be: would the reasonable person in the position of the Minister
have foreseen that the applicant, Faircape, would suffer loss if what it
asked for were to be granted? If so, would the reasonable person in
his position have taken steps to guard against the loss occurring?

[56] Should the Minister – presented as he was with the summary of
the application and recommendation by his department – have

44 At 199E—F.
45 Above.

foreseen the possibility that the applicant for the removal of the
restrictions had pursued a procedure that was defective, and that the
applicant might suffer harm should the application be granted? The
answer must be no. It would be asking too much of someone in his
position to ensure that there was compliance on the part of the
applicant in every respect. Section 2(1) of the Act imposes on the
Minister a duty to ensure that the application is in the interest of the
area. While the Act imposes various obligations on an applicant in
making an application for removal, and while there are obligations
imposed also on the relevant local authority, it does not cast a duty
on the authority empowered to make the ultimate discretionary
decision to check whether the preceding administrative process was
perfect. If the process was imperfect– as in this case it was – then the
remedy of those whose interests are adversely affected is to have the
decision set aside – as it was.

[57] The crucial mistake made by the Minister related to the
interests of the objectors. By the nature of things they could not have
suffered any loss if he wrongly granted the application and it was
subsequently set aside. The Minister’s error in granting the

application did not infringe any right or interest of Faircape. State
officials, including employees of local authorities, and members of
government at every level, are accountable for their decisions. They
must, of course, perform their duties without negligence. And where
they do not exercise due care, in circumstances where they owe a
duty to members of the public to act responsibly and without causing
loss or harm, they should be held liable for the damage that they
have caused.46 However, in giving evidence, the Minister consistently
said that he would have granted the application even if he had
appreciated that there was a difference between the application in
which reference to townhouses was made, and that which he granted
based on the plan for the construction of a block of flats. In both
cases the development plan was in accordance with the town
planning scheme for the area. That being so, what loss to Faircape
should he have foreseen, and what steps should he have taken to
avert the loss being caused to Faircape, the applicant for the removal
of the restrictions, by granting it that for which it had asked? There is
no duty cast by the Act on the Minister to check that there has been
compliance with the procedures laid down. The Minister was required

46 See Knop above at 33C--E.

only to satisfy himself that it was desirable, in the interests of the area
(inter alia), to remove the restrictive conditions of title.47  It was
Diekmann and then Faircape’s responsibility to ensure that the
procedures that had been followed complied with the Act.  Moreover,
Faircape, and indeed the objectors to the application, were entitled
only to a fair process, not to one immune from innocent errors.48

[58] I consider that the reasonable person in the position of the
Minister would not have foreseen that the grant of the application to
remove the restrictive conditions of title, which would have the effect
of bringing the use of the erf in line with the town planning scheme,
would cause harm to the applicant; and accordingly would not have
taken steps to guard against the occurrence of the harm.  In the
circumstances, the Minister was not negligent.

[59] I conclude therefore that the Minister’s decision to grant the
application for the removal of the restrictions was neither wrongful nor
negligent. There is accordingly no need to consider the question of

47 Section 2(1)(a) of the Act.
48 See Logbro Properties CC v Bedderson NO & others 2003 (2) SA 460 (SCA), paras [16] and
[17].

causation, nor to comment upon the approach taken in the court
below. The appeal must succeed, and the cross-appeal in respect of
the dismissal of a particular head of damages by the court below
must be dismissed.

[60] The following order is made:
(a) The appeal is upheld with costs, including those occasioned by
the employment of two counsel.
(b) The cross appeal is dismissed, also with the cost of two counsel.
(c) The order of the court below is replaced by one dismissing the
claim with costs, including the costs of two counsel.

____________

C H Lewis
Judge of Appeal
Concur:
Harms JA
Schutz JA
Cameron JA
Shongwe AJA