THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
MEDIA STATEMENT – CASE HEARING IN SUPREME COURT OF APPEAL
Oudekraal Estates (Pty) Ltd v City of Cape Town and
others
Supreme Court of Appeal -41/2003
Hearing date: 17 February 2004
Judgment date: 28 May 2004
Administrative decision - whether validly taken - consequences of invalidity
Media Summary of Judgment
From: The Registrar, Supreme Court of Appeal
OUDEKRAAL ESTATE (PTY) LTD v THE CITY OF CAPE TOWN AND
OTHERS
Please note that the media summary is for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.
The Supreme Court of Appeal held today (Friday 28 May 2004) that the permission
that was granted by the former Administrator of the Cape in 1957 for the establishment
of the residential township known as Oudekraal on the Atlantic coast of the Cape
peninsula was invalid.
It held that the inference was inescapable that the Administrator gave his permission in
ignorance of all the material facts or in disregard of them. Either he was not aware at
the time he granted his permission that there were Muslim shrines and graves on the
site that dated back to the days of slavery in the Cape Colony, or, if he was aware of
their existence, he ignored them. In either event his permission was invalid. As a result
the court held that the Cape High Court had correctly refused to grant the current
owner of the land an order declaring that the development rights granted to its
predecessor were of full legal effect.
In dismissing the appeal brought by the landowner, the Supreme Court of Appeal said,
however, that the fact that the permission was legally invalid did not, by itself, mean
that the subsequent registration of township rights against the title deed of the land,
and the gazetted declaration of the township as officially approved, could simply be
ignored. The court explained that an invalid act, such as the Administrator’s
permission, can nevertheless have certain valid legal consequences. Whether it does so
depend on whether the relevant law (in this case the Cape Townships Ordinance of
1934) makes the subsequent acts dependent on the validity of the first act or merely
dependent on the apparent validity of the first act. The Court pointed out it was not for
the later officials who approved the plan and registered the rights to investigate
whether the Administrator’s permission was valid or not. They were entitled and
required to accept it at face value. It was therefore not enough to defeat the
landowner’s claim for the opposing parties to rely on the invalidity of the
Administrator’s permission. Nevertheless it was still open to them to try to have the
permission set aside in separate proceedings for judicial review. If those proceedings
were successful the permission and all that followed from it could be set aside. Since
there was a realistic prospect of such review proceedings succeeding, the present
owner was not entitled to the far-ranging order it had sought. As it had not asked for
any lesser order the Cape High Court correctly dismissed the application.
The proposed development of the township on the coastal mountainside gave rise to
much public interest and outcry when it was first mooted. All this was renewed when
the current landowner applied two years ago for an order in the Cape High Court
declaring that development rights granted to its predecessor were of full legal effect.
This would have left the owner free to develop and subdivide the land according to a
plan approved and registered by the relevant provincial and State authorities.
The application was opposed by the City of Cape Town, the Heritage Resource
Agency and the National Parks and was dismissed by the Cape High Court. The
Supreme Court of Appeal has now dismissed the owner’s appeal against that decision.