IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Transcription

1 IN THE LAND CLAIMS COURT OF SOUTH AFRICA Held at RANDBURG CASE NUMBER : LCC 21/96 In the matter between : FARJAS (PTY) LIMITED First Applicant RAINYDAYS FARMS (PTY) LIMITED Second Applicant and THE REGIONAL LAND CLAIMS COMMISSIONER, Respondent KWAZULU-NATAL JUDGMENT DODSON J: [1] This is an application for the review of a decision of the Regional Land Claims Commissioner for the province of KwaZulu-Natal. She decided to dismiss claims lodged by the applicants in terms of the Restitution of Land Rights Act 1 ( the Act ) for the restitution of rights in land which they had lost. The application is made in terms of section 36 of the Act which gives the Land Claims Court ( the Court ) the exclusive power to review the decisions and actions of officials under the Act. Factual background [2] At different times during the 1980s the applicants separately acquired two adjacent farms ( the farms ) just beyond the outer municipal boundary of Pietermaritzburg. The title deeds in respect of the farms show that the applicants were regarded as members of the Indian group for purposes of the Group Areas Act. 2 They decided to develop the farms jointly. They successfully applied for the farms to be incorporated into the municipal area of the city. During 1991 they approached a firm of town planners and surveyors and instructed them to prepare a development scheme and to approach the authorities for the necessary approvals. Finance was secured to develop the land. 1 2 Act 22 of Act 36 of 1966.

2 2 [3] Around the same time, the Department of Housing for the Indian population group 3 ( the DHI ) acquired adjacent property and began to develop housing on it for members of the Indian group. However homeless people had settled on part of this land and erected shacks. They were referred to in the papers as squatters. 4 Unbeknown to the applicants, a scheme was devised between the Natal Provincial Administration ( the NPA ), who were seen as having responsibility for the squatters, and the DHI to acquire a piece of land incorporating the applicants land and move the squatters to it. This would enable the DHI housing development to proceed. The DHI then proceeded to expropriate the farms. The expropriations took effect on 24 June The notices of expropriation ( the notices ) in respect of the farms were identical, except for the property descriptions and the amounts of compensation offered. The first paragraph read: Please take notice that on 22 April 1991 the Minister of Housing approved, in terms of section 21(1)(a) of the Housing Development Act, (House of Delegates) No. 4 of 1987 that the following immovable property be expropriated on behalf of the Housing Development Board... established under section 2 of the said Housing Development Act, and that the immovable property in question is hereby expropriated... [4] The applicants were not satisfied with the compensation offered in the notices. Interim payments were made to them equal to the amounts offered in the notices, less the R solatium which had been included in the total amount offered to each applicant. They instituted proceedings in the Natal Provincial Division of the Supreme Court for increased compensation in terms of the relevant provisions of the Expropriation Act. 5 Those proceedings were still pending when the Act was promulgated. The applicants then lodged claims under the Act for the restitution of their rights in the farms. The claims were lodged with the respondent in her capacity as Regional Land Claims Commissioner for the province. The Supreme Court proceedings were then postponed without a hearing date pending the finalisation of the land claims. [5] The applicants lodged their land claims during March They did so on the standard claim form which is incorporated in the Rules of the Commission on the Restitution of Land Rights ( the Commission ). 6 In the form they described the department which acquired the farms as Housing Development Board (House of Delegates). In response to the question requiring disclosure of the amount of compensation received, they gave the amount of the interim payments made. The applicants annexed a brief motivation of their claims and copies of the title deeds of the farms and the notices. Then followed certain further correspondence and events (including an apparently unsuccessful urgent application seeking to prevent the development of the farms pending the claims). These are not relevant to this matter. [6] On 26 September 1995, the respondent addressed a letter to the applicants. She informed them that she was unable to accept their claims as, on the evidence submitted to her at that stage, the Established in terms of section 24(1) of the Republic of South Africa Constitution Act 110 of For this reason only I will use the term in this judgment. Act 63 of Promulgated in Government Notice 703 of 1995 contained in Government Gazette of 12 May 1995.

3 3 claims did not meet the acceptance criteria set out in the Act and spelled out further in the Rules... of the Commission. She went on to set out her reasoning in the letter. (I will return to this.) She concluded by stating that they could pursue the matter with her further in writing. This they did. They addressed two letters to the respondent in which they explained in some detail why they believed her decision was wrong. Their criticisms largely foreshadowed the grounds on which this review application is based. The respondent replied on 30 November She was still of the opinion that the claims did not meet the acceptance criteria. She elaborated on her reasons for rejecting the claims. The legal framework for the respondent s decision [7] The Commission owes its existence to s 122 of the Constitution of the Republic of South Africa Act of 1993 ( the Interim Constitution ) 7 : Commission 122. (1) The Act contemplated in section 121(1) shall establish a Commission on Restitution of Land Rights, which shall be competent to (a) (b) investigate the merits of any claims; mediate and settle disputes arising from such claims; (c ) draw up reports on unsettled claims for submission to a court of law and to present any other relevant evidence to the court; and (d) exercise and perform any such other powers and functions as may be provided for in the said Act. (2) The procedures to be followed for dealing with claims in terms of this section shall be as prescribed by or under the said Act. The reference to the said Act is a reference to the Restitution of Land Rights Act 8 which s121(1) of the Interim Constitution obliged the legislature to pass. Chapter II of the Act establishes, empowers and regulates the Commission. It is made up of a Chief Land Claims Commissioner, 7 Act 200 of This Act has since been repealed by the Republic of South Africa Constitution Act 108 of 1996 ( the Final Constitution ). However the former applies in this case because it was already pending at the time of the repeal. See in this regard the unreported judgment of this Court in Nchabeleng v Pasha LCC 24/96, 24 June 1997, at para 20 and n 37. The Restitution of Land Rights Act was recently brought into line with the Final Constitution by the Land Restitution and Reform Laws Amendment Act 63 of This case was still pending when this amendment Act came into force. Because of the presumption against retrospectivity it too does not apply in this case. See Bell v Voorsitter van die Rasklassifikasieraad 1968 (2) SA 678 (A) 683; Thom v Moulder 1974 (4) SA 894 (A); Bellairs v Hodnett 1978 (1) SA 1109 (A) and s 12(2) of the Interpretation Act 33 of Supra n 1.

4 4 his or her deputy and a number of regional land claims commissioners. 9 To them, the Chief Land Claims Commissioner may delegate any of his or her powers. 10 Section 6 sets out the general functions of the Commission in more detail than the provisions in s122 of the Interim Constitution. Sections 11 and 14 of the Act deal primarily with the procedure which the Commission is expected to follow after claims are lodged and when they are referred to the Court. [8] At the time of the respondent s decision, s 11(1) read: 11. Procedure after lodgement of claim. (1) If the regional land claims commissioner having jurisdiction is satisfied that (a) the claim has been lodged in the prescribed manner; (b) the claim is not precluded by the provisions of section 2(1); (c) (d) the claim is not frivolous or vexatious; and no order has been made by the Court in terms of section 35 in respect of rights relating to that land, he or she shall cause notice of the claim to be published in the Gazette and shall take steps to make it known in the district in which the land in question is situated. Clearly she must be satisfied cumulatively as to all the requirements of paragraphs (a) to (d). The cross-reference in s 11(1)(b) to s 2(1) is important for the resolution of this matter. At that time, s 2(1) read: 2. Enforcement of claim for restitution. (1) A person shall be entitled to enforce restitution of a right in land if (a) (b) he or she is a person or community contemplated in section 121(2) of the Constitution or a direct descendant of such a person; and the claim for such restitution is lodged within three years after a date fixed by the Minister by notice in the Gazette. [9] Section 121(2) of the Interim Constitution, to which there is a cross reference in s2(1), reads: (2) A person or a community shall be entitled to claim restitution of a right in land from the state if (a) such person or community was dispossessed of such right at any time after a date to be fixed by the Act referred to in subsection (1); and (b) such dispossession was effected under or for the purpose of furthering the object of a law which would have been inconsistent with the prohibition of racial discrimination contained in section 8(2), had that section been in operation at the time of such dispossession. Section 8(2) of the Interim Constitution provides: 9 10 Section 4(3). Section 7(2).

5 5 No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race... [10] Rules 3 and 4 of the Commission s rules also have a bearing on the matter: Acceptance Criteria 3. The Regional Land Claims Commissioner shall - (a) (b) decide whether the claim which has been lodged substantially complies with the requirements contained in the prescribed claim form; consider whether the claimant was dispossessed of a right in land as defined in section 1(xi) of the Act; (c ) consider whether the dispossession was effected under or for the purpose of furthering the objects of a law as contemplated in section 121(2)(b) of the Constitution; (d) consider whether the dispossession occurred on or after 19 June 1913; (e) in the event that rights in land were expropriated under the Expropriation Act..., consider whether just and equitable compensation was paid as contemplated in section 121(4)(a) and 123(4) of the Constitution; (f) consider whether the claim was lodged within three years of 1 May 1995; (g) (h) consider whether the claim is frivolous or vexatious; and consider whether any order has been made by the Land Claims Court in respect of rights relating to the land in question. Notice that the claim has been accepted for investigation. 4 If the Regional Land Claims Commissioner is satisfied that the criteria set out in section 11(1) have been met, he or she shall advise the claimant that the claim has been accepted for investigation by the Commission. The rules thus essentially restate the statutory requirements to which s 11(1) refers either directly or by way of cross references to s 2(1) of the Act and s121(2) of the Interim Constitution. The only exception is rule 3(e). Both at the time when the rules were promulgated and when the respondent took her decision, neither s 11 nor s 2(1) contained any cross-reference to s 121(4) of the Interim Constitution. The relevant part of that subsection reads: (4) (a) The provisions of this section shall not apply to any rights in land expropriated under the Expropriation Act, 1975 (Act No. 63 of 1975), or any other law incorporating by reference that Act, or the provisions of that Act with regard to compensation, if just and equitable compensation as contemplated in section 123(4) was paid in respect of such expropriation. The cross-reference to s 123(4) is somewhat awkward as that is the subsection which regulates the payment of compensation to a successful land claimant to whom the restoration of land rights is either not feasible or is not desired. The relevant part reads: (4) (a) The compensation referred to in subsection (3) shall be determined by the court as being just and equitable, taking into account the circumstances which prevailed at the time of the dispossession and all

6 6 such other factors as may be prescribed by the Act referred to in section 121(1), including any compensation that was paid upon such dispossession. [11] This matter turns on the exercise of the respondent s discretion under s 11(1). It was common cause that the respondent was correctly satisfied that the conditions prescribed in paragraphs (a) (claim lodged in the prescribed manner) and (d) (no existing order by this Court relating to the farms) had been met. The respondent based her rejection of the applicants claims on their non- compliance with paragraphs (b) and (c) of s 11(1) only. It was the exercise of her discretion in relation to these paragraphs that was under attack. The legal framework for the review [12] Section 36 of the Act provides as follows: 36. Review of decisions of Commission. (1) Any party aggrieved by any act or decision of the Minister, Commission or any functionary acting or purportedly acting in terms of this Act may apply to have such act or decision reviewed by the Court. (2)The Court shall exercise all of the Supreme Court s powers of review with regard to such matters, to the exclusion of the provincial and local divisions thereof. Clearly the Court has the same powers as the High Courts when acting in terms of this section. 11 However Mr Van Zyl, who appeared for the applicants, referred to the factors which the Court must have regard to in terms of s 33 of the Act in considering its decision in any particular matter, especially - (c) (f) the requirements of equity and justice; and any other factor which the Court may consider relevant and consistent with the spirit and objects of the Constitution and in particular the provisions of section 8 of the Constitution. These he argued conferred on the Court wider powers of review than the common law powers of review which the High Courts exercise. Mr Gorven for the respondent disagreed. It does not seem self-evident that an obligation to take into account these factors necessarily translates into a wider review jurisdiction. It is however not necessary for deciding this matter to express a final view on the argument put forward on behalf of the applicants in this regard. I will assume in the respondent s favour that I am confined to the same powers of review as those enjoyed by the High Courts. [13] Counsel for both the applicants and the respondent argued the matter on the basis that the High Courts powers of review were those derived from the common law. In my view, it is no longer possible to speak of the High Courts exercising only common law powers of review of administrative action. The right to administrative justice has now been elevated to the status of a constitutional right by reason of s 24 of the Interim Constitution. That section accords every person the right to - 11 This is possibly subject to an argument that the Court does not have jurisdiction to apply s24 of the Interim Constitution in respect of cases such as this one. See n 34 and n 35 below.

7 7 (a) (b) lawful administrative action where any of his or her rights or interests is affected or threatened; procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened; (c ) be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public; and (d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened. The applicants rights in this matter are doubtless affected by the respondent s decision. They have rights to some form of relief as a result of the expropriation of the farms. Quite what that relief is depends directly on the success or otherwise of their land claims. If they fail in their land claims, they will be confined to compensation in terms of the Expropriation Act. If they succeed in their land claims, this potentially opens up the various forms of relief provided for in s 123 of the Interim Constitution, 12 including the actual restoration of ownership of the farms. [14] Where the applicants rights are affected, s 24(d) of the Interim Constitution requires that the respondent s decision must be one which, if regard is had to the reasons given, is justifiable. The respondent has, very properly, provided the applicants with full details of the reasoning on which her decision was based. 13 To what extent may the Court scrutinise those reasons to see if the decision which the respondent reached was justifiable? If the enquiry is based on preconstitutional 14 statements of our courts, they have been at pains to emphasise that a reviewing court s leeway is limited. 15 Innes ACJ in Shidiack v Union Government (Minister of the Interior)explained the position as follows: Now it is settled law that where a matter is left to the discretion or the determination of a public officer, and where his discretion has been bona fide exercised or his judgment bona fide expressed, the Court will not interfere with the result. Not being a judicial functionary no appeal or review in the ordinary sense would lie; and if he has duly and honestly applied himself to the question which has been left to his discretion, it is impossible for a Court of Law either to make him change his mind or to substitute its conclusion for his own... There are circumstances in which interference would be possible and right. If for instance such an officer had acted mala fide or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute in such cases the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong Section 123 of the Interim Constitution provides that land claimants may be granted restoration of their original land, alternative state owned land, monetary compensation or alternative relief. This is also the applicants right in terms of s 11(4) of the Act and s 24(c) of the Interim Constitution. By this term I mean before the promulgation of the Interim Constitution. See, for example Union Government v Union Steel 1928 AD 220; Sachs v Minister of Justice 1934 AD 11; Administrator Transvaal and the Firs Investment (Pty) Ltd v Johannesburg City Council 1971 (1) SA 56 (A) AD 642 at

8 8 [15] Pennington v The Minister of Justice and Others 17 was one of the first decisions to deal with s 24(d) of the Interim Constitution. In that case, Steyn AJ cautioned against courts substituting their discretion for that of the public official whose decision was under review. He considered the statement of the common law grounds of judicial review in Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 18 still to be a correct statement of the law. He thus appeared to equate the law of judicial review of administrative action before the Interim Constitution with that which was brought about by section 24. However the weight of authority to date suggests that the impact of section 24 has been to widen the grounds for judicial review. In Kotze v Minister of Health, 19 Spoelstra J considered the Pennington decision as well as two decisions where the courts preferred the view that s 24(d) of the Interim Constitution has a wider impact, namely Tseleng v Chairman, Unemployment Insurance Board and Another 20 and Standard Bank of Bophutatswana Ltd v Reynolds NO and Others 21 and stated the position as follows: According to the Shorter Oxford English Dictionary justifiable means capable of being justified or shown to be just. The Afrikaans text uses the word regverdigbaar. These words denote something that can be defended. As I understand it, the section requires that the reasons advanced for the administrative action must show that the action is adequately just or right. In other words, it must appear from the reasons that the action is based on accurate findings of fact and a correct application of the law. In this regard the difference between a review and an appeal may have been largely eroded. If a review under this section is to succeed, a court of review must be satisfied that the reasons advanced for the action under review are not supported by the facts or the law or both. 22 [16] In Maharaj v Chairman of the Liquor Board 23 Nicholson J expressed the view (obiter) that the grounds for review in section 131 of the Liquor Act, 24 which are essentially a summary of the common law grounds of review, were unconstitutional in so far as they provided for a much narrower test than the test of justifiability in s 24(d) of the Interim Constitution. Van Deventer J came to a similar conclusion in Roman v Williams NO and said the following: Judicial review no longer has an independent existence apart from constitutional review, which casts the net much wider and renders the common law irrelevant in this case (3) BCLR 270 (C ) at 277F-I (3) SA 132 A at 152A-E. The relevant portion of the judgment is quoted in para 29 below (3) BCLR 417 (T) 1995 (2) BCLR 138 (T) 1995 (3) BCLR 305 (B). At 425E-G (2) BCLR 248 (N). Act 27 of 1989.

9 9 Justifiability as specified is to be objectively tested. The scope of this constitutional test is clearly much wider than that of the common law test and it overrides the common law review grounds as set out in Johannesburg Stock Exchange v Witwatersrand Nigel Ltd [17] It was also implicit in the Appellate Division decision of Rudolph v Commissioner for Inland Revenue 26 that the Court considered s 24 to have impacted on the common law grounds of review. The Court considered itself compelled to refer a review matter to the Constitutional Court because it was at the time prevented from considering constitutional matters. 27 [18] There can in my view be no doubt that s 24 of the Interim Constitution widens the common law grounds of review. To hold otherwise is to deny any reason for the inclusion of s 24 by the framers of the Interim Constitution. This is against the presumption that the legislature does not include superfluous provisions in a statute. 28 Statements of the law such as that in the Shidiack case quoted above, which discourage intervention by courts in administrative action or decisions except in the most extreme circumstances, cannot be reconciled with the right to a justifiable decision which s 24(d) of the Interim Constitution confers. That the grounds of review are so widened follows also from the fact that the right to administrative action which is intra vires is elevated to the status of a fundamental constitutional right by the s 24(a) right to lawful administrative action. That must cast a duty on reviewing courts to be all the more astute to ensure that public officials confine themselves strictly to the law which confers powers on them. Finally, the rights which formed the basis of administrative law prior to their constitutionalisation were vulnerable to restriction or removal at the whim of a sovereign Parliament in any particular statute. 29 Now those rights are buttressed by their new-found status as fundamental constitutional rights. Limitations on those rights which exceed the bounds of the limitations clause 30 are liable to be struck down (9) BCLR 1267 (C) at 1275F and 1278 G (2) SA 886 (A). At 890E-891B. This case should be contrasted with the case of Du Preez and Another v Truth and Reconciliation Commission 1997 (4) BCLR 531 (A) where Corbett CJ decided the matter on the basis of the rules of natural justice as developed at common law and found no need to refer to s 24. See Devenish Interpretation of Statutes 1 ed (Juta, Cape Town 1992) at 207; Du Plessis The Interpretation of Statutes 1 ed (Butterworths, Durban 1986) at 61 and Blaauwberg Municipality v Bekker and Others LCC 17/96, 10 October 1997, unreported, at para 38. For example, the right to be heard could be denied if the statute conferring the decision-making power expressly or impliedly authorised this. See Omar v Minister of Law and Order 1987 (3) SA 859 (A) at 900C-901H and the authorities cited there. The right to lawful administrative action could be denied by a provision which expressly or impliedly ousted the review jurisdiction of the courts. See E Mureinik Introducing the Interim Bill of Rights SA Journal on Human Rights (1994) 10 at Section 33 of the Interim Constitution. As was pointed out by Farlam J, s 24(b) also has the effect of widening the common law grounds of review. See Van Huysteen v Minister of Environmental Affairs and Tourism 1996 (1) SA 283 (C) at 304A and 305F-H.

10 10 [19] However this matter was not argued on the basis of the post-constitutional law 32 on administrative justice. Before applying the post-constitutional law on administrative justice, I would have to determine certain jurisdictional issues because this case must be decided as if the Interim Constitution was still in force. 33 In terms of the Interim Constitution, limits are placed on the jurisdiction of certain courts to hear constitutional issues. 34 Although it would appear that this Court would not be prevented from taking into account the impact of s 24 of the Interim Constitution, 35 the jurisdictional matter was also not argued before us and this, in my view, prevents me from simply proceeding to decide the matter on the basis of s24 of the Interim Constitution. [20] For reasons which will become apparent, the conclusion which I have reached is that the respondent s decision to reject the claims stands to be reviewed and set aside, even on the basis of the common law or pre-constitutional grounds of review. Given that these are narrower than the review grounds under s 24 of the Interim Constitution, it follows that the same conclusion would still have been arrived at had I decided the matter on the basis of s 24. For this reason, and although it is an anachronistic exercise, the analysis which follows is based on the preconstitutional law regarding judicial review of administrative action By this I mean the law after promulgation of the Interim Constitution on 27 April See n 7 supra. Section 98(3) of the Interim Constitution provides: The Constitutional Court shall be the only court having jurisdiction over a matter referred to in subsection (2), save where otherwise provided in sections 101 (3) and (6) and 103 (1) and in an Act of Parliament. The matters referred to in subsection (2) include any alleged violation... of any fundamental right entrenched in Chapter 3". Section 103 deals with other courts (which would include the Land Claims Court) and does not expressly confer any constitutional jurisdiction on such Courts in the way that s 101(3) confers (limited) constitutional jurisdiction on the Supreme Court. On the basis of the aforegoing provisions, other courts have been found to lack the jurisdiction to enquire into any alleged violation of a fundamental right. See, for example Mendes and Another v Kitching NO and Another 1996 (1) SA 259 (E) and Port Elizabeth Municipality v Prut NO and Another 1996 (4) SA 318. Contra Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E). Note however that all these cases precede the insertion in s 98(3) of the words in italics by the Constitution of the Republic of South Africa Third Amendment Act 13 of Section 98(3) of the Interim Constitution appears to allow constitutional jurisdiction, otherwise reserved for the Constitutional Court, to be conferred on another court by an Act of Parliament. Section 36 of the Act confers on the Land Claims Court the same powers as the Supreme Court when dealing with reviews. The Supreme Court has the power in terms of s101(3)(a) to adjudicate on violations of fundamental rights. It would therefore seem to follow that the Court could enquire into a violation of s 24 of the Interim Constitution in review proceedings. There is authority for this view in Scholtz and Others v S [1996] 3 All SA 210(C). However, I leave this question open. This was essentially the approach followed by Nicholson J in the Maharaj case supra n 23 when faced with the jurisdictional constraint on declaring the relevant provision of the Liquor Act

11 11 [21] Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service 37 summarised the grounds of judicial review as follows: Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call illegality, the second irrationality and the third procedural impropriety All three of these grounds come into play in this matter in assessing the exercise by the respondent of her discretion in terms of s 11(1) of the Act. Before dealing with the details of the respondent s reasoning, a brief examination of the pre-constitutional law in relation to each of these grounds is required in so far is it affects the particular facts of this matter. [22] Traditionally, the approach of our courts to judicial review on the ground of illegality has been based on what is known as the jurisdictional fact doctrine. 39 A public official must first consider the law which empowers her and decide whether, on the facts of the particular matter, she has the power or jurisdiction to deal with it. 40 These prerequisite legal facts and circumstances are usually described as jurisdictional facts. According to this doctrine, if the public official errs in her decision about the presence or absence of the necessary jurisdictional facts, then a court will not hesitate to intervene and set aside her decision on review because she will have acted outside her powers. However it is also implicit in the doctrine that there will be a category of matters, those that do not relate to jurisdiction, the determination of which is left to the official. These are sometimes referred to as the merits of the decision. Her decision on those matters, even if wrong, cannot be interfered with by a court on review, unless the second or third grounds of review, namely irrationality or procedural impropriety, can be shown. [23] In his argument, Mr Gorven relied on the jurisdictional fact doctrine. He suggested that it was the merits category into which the decisions of the respondent under s 11 would fall, although he urged this view more strongly in relation to her discretion in terms of s 11(1)(c) than s 11(1)(b) of the Act. The jurisdictional fact doctrine has been criticised because it provides no clear basis for distinguishing between matters that are jurisdictional (ie, which relate to whether or not the official was clothed with jurisdiction or power in the first place) and those which are not. 41 Jansen JA said the following in this regard in the case of Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en Andere: 42 unconstitutional [1984] 3 All ER 935 (HL). Ibid at 950h. South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 31 (C ) at 34H-35D. Baxter Administrative Law 2ed (Juta, Cape Town 1994) at 456ff. Ibid at 452. Baxter supra n 39 at (2) SA 1 (A) at 15C-D.

12 12 Dit word dus nodig om by die toepassing van die formele maatstaf te onderskei tussen die meriete van n liggaam se handeling en beslissings ten opsigte van regsvrae en feitekwessies wat daarby betrokke is maar buite die meriete val. Soms word gesê dat lg. op jurisdiksionele feite of preliminêre of kollaterale kwessies betrekking het. Waar die afbakeningslyn tussen suiwer meriete en dié aangeleenthede lê, is moeilik om presies te bepaal. 43 [24] In Hira v Booysen 44 Corbett CJ analysed a number of cases where the distinction which forms the basis of the doctrine had been relied on and said the following: As would appear from a number of the cases to which I have referred, the Courts have often relied upon a distinction between (a) an error of law on the merits and (b) one which causes the decision-maker to fail to appreciate the nature of the discretion or power conferred upon him and as a result not to exercise the discretion or power or to refuse to do so. A category (a) error... has been held not to be reviewable, whereas a category (b) error... has been held to be a good ground for review at common law. Yet it is difficult in principle to draw a clear line of distinction between the two. 45 He then goes on to illustrate on the basis of decided cases how errors which had been classified under one category could just as easily have been classed as belonging to the other. He also refers with approval to Jansen JA s criticism of the doctrine in the extract which I have quoted. In the circumstances, one can no longer consider earlier decisions based on the jurisdictional fact doctrine as authoritative. [25] In English law the jurisdictional fact doctrine has been completely rejected in so far as it concerns errors of law. In Re Racal Communications Ltd 46 Lord Diplock said: The break-through made by Anisminic [ AC 147] was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity. 43 The formele maatstaf is explained at 13F-G as follows Daar is dus n beroep op die algemene beginsel dat n hof hom nie met die vraag van hoe n liggaam, met diskresie beklee, sy bevoegdheid uitgeoefen het, kan inlaat nie, maar slegs met die vraag of die liggaam sy diskresie wel uitgeoefen het; dat dit gaan oor die wyse waarop die handeling tot stand gekom het en nie oor die inhoud van die handeling nie; of, anders gestel, dat dit n hof hom nie met die meriete van n uitoefening van n diskresie sal in laat nie. Gerieflikheidshalwe sal die betrokke maatstaf vervolgens, waar nodig, die formele maatstaf (in teenstalling tot n materiele) genoem word (4) SA 69 (A). Ibid at 90D-E. [1981] AC 374 at 383B-C.

13 13 This dictum was unanimously approved by the House of Lords in R v Hull University Visitor ex parte Page. 47 [26] Our law of judicial review had not progressed to this extent at the time of the arrival of the Interim Constitution. In our pre-constitutional law the possibility remained of legal questions still being reserved for the exclusive decision of a public official. However, as I have shown, the jurisdictional fact doctrine as a basis for deciding when a court might interfere in the erroneous exercise of a discretion has received criticism in two significant decisions of the Appellate Division. 48 These decisions also provide a more satisfactory basis for determining the extent of the reviewing court s power to intervene under the illegality ground of review. The basis appears from Corbett s judgment in the Hira case where he refers to what he describes as the penetrating judgment of Jansen JA in Theron s case and goes on to say: Further important points which emerge from the judgment... are: (1) The distinction drawn by him between statutory powers which involve taking into account considerations of efficacy or desirability in the light of the general interest or the public good, etc ('die inagneming van doelmatigheids- of wenslikheidsoorwegings (in die lig van algemene belang, openbare welsyn, ens))' or where opinion or estimation plays an important role, on the one hand, and statutory powers or functions of a purely judicial nature ('suiwer regsprekende aard'), on the other hand (Theron's case at 20A-D, 21C). (2) That, fundamentally, the question as to whether an error of law is reviewable depends upon the intention of the Legislature. Thus, in order to give effect to the clear legislative intent it may be necessary to interpret the statutory power as conferring on the decision-maker exclusive jurisdiction to decide the question of law in issue and thus to exclude reviewability merely on the ground that the decision-maker decided the question wrongly. Doyle's case supra, the Chesterfield House case supra, and the Jooste Lithium case supra, are cited by Jansen JA as instances of such a statutory power (see Theron's case supra at 20H-21C) whereas in other cases consideration of the legislative intent may lead one to the conclusion that the question of law was not left to the exclusive jurisdiction of the decision-maker and that a wrong decision thereon is reviewable. 49 [27] This approach thus takes as its starting point the proper interpretation of the legislation which confers the discretionary power. That process of interpretation must be in accordance with all the normal rules of statutory interpretation, including the application of the appropriate statutory presumptions. In particular the court would have to consider the presumption that an enactment is [1993] 2 AC 682 at 693D. To the extent that the unanimous court in Hira approved Jansen JA s judgment, that judgment must now be regarded as correctly reflecting the law in this regard, notwithstanding the fact that only one other member of the Court in the Theron case concurred in the reasoning of Jansen JA. Corbett CJ did not find it necessary to consider the correctness or otherwise of Jansen JA s thesis that unreasonableness per se is a ground for review. Moreover Corbett CJ s dictum in Hira has been approved and applied by the Appellate Division in Paper, Printing, Wood and Allied Workers Union v Pienaar NO and Others 1993 (4) SA 621 (A) at 648D-E and Diepsloot Residents and Landowners Association v Administrator Transvaal 1994 (3) SA 336 (A) at 354B. Hira v Booysen supra n 44 at 91E-I.

14 14 not aimed at interfering with or ousting the jurisdiction of the courts. 50 In the process of interpretation, the exclusion of judicial review powers is more likely to be inferred where policytype considerations are paramount in the exercise of the discretion. Such exclusion is less likely to be inferred where the statutory power is of a purely judicial nature. The reason behind this is given by Jansen JA as follows: Dit is verstaanbaar dat as die wetgewer n besondere diskresie aan n liggaam verleen wat n Hof nie normaalweg besit nie, daar n huiwering kan bestaan by die Hof om vir homself die diskresie toe te eien. Maar in n geval soos die onderhawige waar dit bloot gaan om n regsprekende funksie wat die Hof normaalweg self uitoefen, bestaan dié remming nie. 51 By purely judicial it would thus seem that Jansen JA refers to the types of decisions with which courts are familiar, namely the interpretation of the law, the weighing up of evidence and the application of law to a set of facts (as opposed to decisions based more on opinion, estimation and reference to policy). As is pointed out by Baxter, there is no rigid category of purely judicial decisions. 52 Any public official may in the course of the exercise of her discretion have to perform a purely judicial function of this type even though other elements of her discretion may involve the application of policy-type criteria. [28] The next ground of review is referred to by Lord Diplock as irrationality. Corbett JA refers to this ground in Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 53 as follows: Such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or that the president misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the president was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter in the manner aforestated... Some of these grounds tend to overlap. 54 To this list should be added another basis on which a reviewing court will intervene on the basis of irrationality: that is where there was no evidence on which a public authority could reasonably have arrived at its decision See Devenish supra n 28 at 195 and Du Plessis supra n 28 at 73. Theron v Ring van Wellington supra n 42 at 31C. Baxter supra n 39 at 500. Supra n 18 at 152A-E. Corbett JA referred to the following authorities in arriving at this formulation of the law: National Transport Commission and Another v Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735F - G; Johannesburg Local Road Transportation Board and Others v David Morton Transport (Pty) Ltd 1976 (1) SA 887 (A) at 895B - C; Theron v Ring van Wellington supra n 42 at 14F - G; Goldberg and Others v Minister of Prisons and Others 1979 (1) SA 14 (A); Suliman and Others v Minister of Community Development 1981 (1) SA 1108 (A) at 1123A; Northwest Townships (Pty) Ltd v Administrator, Transvaal, and Another 1975 (4) SA 1 (T) at 8D- G Hira v Booysen supra n 44 at 90I-91B and the authorities cited there.

15 15 [29] The final ground of review which Lord Diplock refers to is procedural impropriety. This refers primarily to review on the basis of the failure to observe the rules of natural justice. At common law those rules require, amongst other things, that, before a decision is taken affecting the rights or legitimate expectations of any person, she should be informed adequately of the details of the action which it is intended will be taken against her, and afforded a hearing (the audi alteram partem rule). An important component of the rule is that where the decision-maker comes across important and relevant information of which the person affected is unaware, or intends to adopt a novel approach to the decision which could not reasonably have been anticipated, the person must be informed of the information or intended approach and given the opportunity to respond. This is so even if a hearing has already taken place. A further hearing will have to be given to provide this opportunity. Thus Hofmeyr JA in his judgment in Theron v Ring van Wellington said: Die Kommissie het mero motu gehandel toe hy hierdie grond in oorweging geneem het. Hy het die appellant geensins in kennis gestel dat hy so n uiters ernstige beslissing teen hom sou oorweeg op nuwe gronde waaromtrent daar geen formele beswaar aanhangig gemaak is; aan die appellant geen kennis gegee is en hy geen geleentheid gehad het om n verweer op te werp nie. 56 This was also one of the grounds on which Jansen JA s decision was based. He said the following: [Dit skyn] nogtans n geval te wees waar die Kommissie die fundamentele beginsels van geregtigheid oortree het.... Hierdie regte van die appellant is verydel daardeur dat die Algemene Sinodale Kommissie die appèl op n grond beslis het wat nooit geopper was nie en wat die appellant ook nie kon voorsien het nie. Nie alleen kon die appellant, as hy dit geweet het, verdere betoog gelewer het nie, maar dit is denkbaar dat hy selfs kon gevra het om getuienis hieroor voor te lê. 57 [30] In Maharaj v Chairman of the Liquor Board Nicholson J said: 58 It seems to me that, if the respondent felt there were deficiencies concerning whether the grant of the licence was in the public interest, it could never have been right and just and fair to simply refuse the application without informing the applicant of such deficiencies and affording the applicant an opportunity of supplementing the application. Even without the aid of the wider powers provided by s 24(b) of the Constitution, I am of the view that the audi alteram partem principle as contained in our common law applied. As the applicant was never told in what respects her application was not in the public interest I am of the view that the maxim was not satisfied. It is not for her to second guess the opinions of the respondent. It is trite law that a party whose rights are the subject of an enquiry is entitled to be informed of the facts and information gleaned by the authority in question which may be detrimental to her interests and that she be given an opportunity to reply thereto. (See Loxton v Kenhardt Liquor Licensing Board 1942 AD 275 at 315.) Review of the decision making process: rejection under s 11(1)(b) [31] Against that legal background, I must now proceed to examine the respondent s reasoning. She confirms in her opposing affidavit that the reasons for her decision are set out in both the letter dated 26 September 1995 ( the first letter ) and the letter dated 30 November 1995 ( the second Supra n 42 at 46A. Ibid at 29B-D. Supra n 23 at 251G-I.

16 16 letter -together they are referred to as the letters ). She dealt with the farms together. This was an appropriate way of dealing with the matter as the circumstances surrounding the expropriation of the farms were identical. [32] I have indicated above that the first ground for the respondent s rejection of the applicants claims was based on s 11(1)(b) of the Act. She was not satisfied that the claim was not precluded by s 2(1) of the Act. 59 Her reasons for not being so satisfied were set out in the first letter as follows: The primary reason for not accepting the claim is that it does not appear that the expropriation of Sub 5 of 3 and Sub 4 of 3 of Whispers meets the requirement for restitution as stipulated in Section 121(2)(b) of the Constitution of the Republic of South Africa. Section 121(2) states that:... [the subsection is then quoted] On the facts before me, the land you are claiming was expropriated by a government body for a public purpose, in this case the provision of low-cost housing. I cannot see how this could be construed as furthering objects incompatible with the constitutional prohibition on racial discrimination. [33] The respondent also elaborated on her reasoning on this aspect in the second letter as follows: [The point regarding the racialised context in which the expropriations took place] is dealt with in my letter of September 26 where I state that:... the land that you are claiming was expropriated by a government body for a public purpose, in this case the provision of low-cost housing. I cannot see how this could be construed as furthering objects incompatible with the constitutional prohibition on racial discrimination. I accept that in the period in which the expropriation took place (1991), all urban planning and development operated within a racialised framework - one within which, I respectfully point out, you were yourself working in terms of your own property acquisitions and development plans. However, I do not accept that the Restitution of Land Rights Act was enacted with the intention that all property transfers, including expropriations, that have taken place since 1913 are subject to challenge and claims for restitution simply because of the racial character of the government of the day. By way of analogy, if this were the case, then anybody who had land expropriated for the purposes of building a school would be entitled to claim that land back, on the grounds that all schooling was racially segregated. The test is whether the dispossession of land rights would today be inconsistent with Section 8(2) of the Constitution, read in conjunction with Sections 121, 122 and 123.[My emphasis] In other words, 59 See para 6 supra.

17 17 you would have to show that the dispossession of these land rights was under or to further the object of a law which is today inconsistent with the prohibition of racial discrimination now in place in terms of Section 8(2) of the Constitution. This states that No person shall be unfairly discriminated against, directly or indirectly,... on one or more of the following grounds in particular : race, gender, sex,... Based on all the information before me, I am of the opinion that 1) you were not personally discriminated against on racial grounds, inasmuch as the expropriation was under the Expropriation Act, and you were offered full opportunity to negotiate and, ultimately, litigate over the compensation offered, and 2) the expropriation took place for the public purpose of providing residential land for needy people, not for further racial policies as such. The alleged racial classification of the people to be relocated on the land is immaterial, while the racial status of the expropriating government body in terms of the Tricameral Constitution of the day is also not material in this case. Had Government expropriated these properties after 27 April 1994, for the same purposes as in 1991, I can see no basis for arguing their actions would be unconstitutional. [34] The respondent s reasoning as recorded in these two letters is flawed in several respects. It is so that s 11(1)(b) requires her to consider whether or not the claim is based on a dispossession as contemplated in s 121(2)(b) of the Interim Constitution. 60 However there are two legs to this enquiry. The first leg is to see if the dispossession was effected under... a law which would have been inconsistent with the prohibition of racial discrimination contained in section 8(2) of the Interim Constitution.... The second leg is to see if the dispossession was effected for the purpose of furthering the object of a law which would have been inconsistent with [that] prohibition.... If a claimant is able to satisfy either of these legs, his or her claim satisfies the requirements of s121(2)(b). [35] It appears from the letters that the respondent s enquiry focused on whether or not the expropriation of the farms had been for the purposes of furthering a racially discriminatory object. Such an object she found to be lacking. This may or may not be a legitimate issue to consider in relation to the second leg of the s 121(2)(b) enquiry. (I will return to this aspect below.) But the letters suggest that she omitted the first leg of the enquiry, namely whether or not the dispossession was effected under an unfairly, racially, discriminatory law. Indeed the test which she postulates 60 The standard of proof is dealt with in para 41-2 below.