IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case no,: 10016/96
In the matter between:

THE TRUSTEES FOR THE TIME BEING OF 

and
TRANSITIONAL METROPOLITAN SUBSTRUCTURE 

JUDGMENT GIVEN THIS 17 DAY OF DECEMBER 1997
CLEAVER J:
This matter stems from the application by the respondents of the provisions of section 31A of the Environment Conservation Act No. 73 of 1989 (the act), subsection (i) of which reads as follows:

(a) to cease such activity; or

within a period specified in the direction, with a view to eliminating, reducing or preventing the damage, danger or detrimental effect”
The applicants are the owners of plots of land that extend up the lower slopes of the Karbonkelberg Mountains in Hout Bay. In March of 1995, the first applicant commenced the construction of a so-called jeep track across his property and that of the other applicants which would enable him and the other applicants to reach a plateau at the top of the properties from which the owners could enjoy a spectacular view of Hout Bay and Chapman’s Peak. A jeep track permits travel by 4-wheel drive vehicles only. He says that the plateau is in a relatively inaccessible area and as he and the other applicants, whom he represents in the application are in the main elderly people who cannot reach the plateau on foot, the construction of the jeep track is essential to enable them to reach the plateau and also to afford them access to one of the most desirable portions of the land. He contends that concomitant benefits of the jeep track are accessibility for the purposes of firefighting, the elimination of alien vegetation and the propagation of certain indigenous species of plant growth. The erven owned by the applicants were created upon the subdivision of the original erf 3476 Hout Bay, measuring approximately 105 hectares, into five separate erven. At the time of subdivision, all five erven were undeveloped, but certain of the applicants were at the time of the launching of the application busy constructing residences on their properties. According to the first applicant, the track which was constructed was carefully planned with the assistance of a surveyor. The construction work was done under his personal supervision with care being taken to preserve the topsoil for re-use in the rehabilitation process, wherever possible.

"NOTICE IN TERMS OF SECTION 31A OF ACT 73/1989 
Road Construction on Erven No.s 4968 and 4869 Hout Bay 

Council’s records reveal that you are the joint owners of the above properties in undivided shares, which are further identified on the attached extract of noting sheet
it has been brought to the attention of this Council that you or persons authorised by you, are in the process of constructing a road across the properties. Your activities in this regard are construed by the Council as seriously damaging and detrimentally affecting the environment.
You are accordingly, hereby given notice in terms of Section 31A of the Environmental Conservation Act No. 73 of 1989 to immediately, upon receipt of this notice, cease such activities and furthermore, to rehabilitate the damage already caused in accordance with the directions of Council’s Manager of Parks and Forests, Mr. C.M. Theunissen, at the Hout Bay Forest Station, Main Road, Hout Bay.

Furthermore, should you fail to take ail the necessary steps to rehabilitate any and all damage caused to the environment (the mountain) the Council will itself undertake the necessary rehabilitation work, the cost whereof will be for your account
Unless, by noon, on Wednesday, 21 February, we receive your written confirmation, either by delivery or by facsimile, to the above address, that you have ceased the said unlawful activities, that you will not recommence such activities and that you will undertake the necessary rehabilitative procedures, the Council will have no alternative, but to proceed with the necessary legal action.

We trust that such drastic action shall not be necessary and await your communication as a matter of urgency.
Yours faithfully

I shall refer to the decision of the Council as set out in this letter as the first decision.
The applicants responded immediately to this notice on the next day when their attorneys addressed a letter to the second respondent in which detailed reasons for the decision to issue the notice were requested. In a letter dated 1 March 1996, second respondent advised the applicants’ attorneys as follows:
"The Council of the Transitional Metropolitan Substructure Llandudno/Hout Bay duly met on 27 February 1996 and deliberated upon this matter. The resolution of the Council is attached hereto for your information.
While the Council confirmed the notice served on your clients and other co owners dated 19 February 1996, should your client for any reason whatsoever dispute the validity of that notice then please be informed on behalf of your clients that this letter in so far as it may be necessary constitutes further notice to your clients in terms of Section 31A of Act 73 of 1989”
I shall call the decision made on 27 February 1996 the second decision.
The extract from the minutes of the Council meeting referred to in the letter revealed that copies of letters of objection (eight in number) to the road being constructed by the first applicant had been tabled at the meeting and had been noted by the Council. I will in due course deal with the significance of these letters.
Although the applicants were not given notice of the meeting of 27 February, the 

first applicant became aware of the meeting and attended it, but was not allowed to speak.

1. The adverse visual effect that the track would have on the tourism industry and on local residents.
2. The fact that the track was in an unsuitable location from a geotechnical point of view.
3. The residua! impact and the impact of on the stability of the mountain slope were stated to be undesirable.

"I reiterate that no further work on the road must take place pending the receipt by this Council of the Environmental Impact Assessment report and further consideration of the matter by the Council."
The applicants’ response to this letter was contained in a letter from their attorneys
to first respondent on 25 March 1996. In this letter the three reasons for the first
decision were responded to and dealt with in some detail and the letter also
contained reports from two professional advisors. A report by a Mr H van der
Hoven, a landscape architect and environmental planner, dealt with a visual
analysis and rehabilitation recommendations for the jeep track, while a report by
a Mr B Alexander, a consulting engineer and director of Ninham Shand Inc. was

contained his comments in relation to the general practice and requirements
pertaining to the limiting of erosion on the jeep track. The letter to the second
respondent concluded in the following terms:
"In conclusion therefore our client requests the "CMC" and the relevant "TMSs" to reconsider the action taken regarding the construction of the road on the relevant erven. We are furthermore instructed that council is meeting on Tuesday, the 26th instant and we request, on behalf of our client that the following points be addressed:
The reconsideration by the Llandudno\Hout Bay TMS of the action taken to issue a section 31A Notice in respect of the road construction on erven 4868 & 4869, Hout Bay.
The approval of the completion of the road, subject to our client, at his own cost, abiding by the recommendations made by Messrs H van der Hoven and B Alexander.
We await your comments hereto and record that our clienfs rights are fully reserved. We emphasise that your urgent attention hereto is required as further delays in the completion and rehabilitation of the road may have an undesirable long and short-term effect on the properties in question ”
The next communication was a letter by way of facsimile transmission from the first respondent to the applicants’ attorney dated 29 April 1996 enclosing a set of recommendations made by the Executive Committee of the first respondent which were stated to be subject to confirmation. The main thrust of the recommendations was that the initial prohibition against the construction of the jeep track to a certain point was to be withdrawn, that the remaining disturbed area up to a point higher up was to be constructed as a footpath, but no further construction work other than a foot path was to be permitted beyond the second point. Although these concessions ameliorated the initial stance of the first respondent to a degree, the effect thereof was still to prevent the applicants from getting to the top of their properties. The recommendations preventing any further construction of the jeep track, had never been put to the applicants. These were
(1)	that the applicants were to employ two sets of consultants at their own expense in order to implement the recommendations in the reports prepared by them which had been submitted by the applicants and that in doing so, the rehabilitation works were to be under the supervision of the consultants and be acceptable to the second respondent’s Chief Engineer: Design and the Manager, Parks and Forests,
(2)	that a financial guarantee was to be furnished for an amount acceptable to the Council to ensure the completion of the rehabilitation requirements and
(3)	that acceptable proposals were to be submitted in respect of fire protection measures for the revegetation programme.

"For the purpose of engaging in discussions regarding your recommendations, our clients do not propose to deal with the validity or otherwise of the Notice which you have issued or the grounds for challenging such Notice..."
The next step in the saga was a letter from the second respondent to the applicants’ attorneys dated 14 May 1996 in which the applicants were notified that the recommendations of the Executive Committee had been adopted by the council of the first respondent at a meeting on 30 April, i.e. the day after the day on which a copy of the recommendations had been forwarded to the applicants’ attorneys. The letter went on to amplify some of the recommendations which had been accepted by the council. In a letter dated 10 June 1996 the applicants’ attorneys requested reasons for the decision taken by the council on 29 April and on 12 July the second respondent advised the attorneys
"This Council has only issued your clients with one notice in terms of Section 31A of Act 73 of 1989. The notice was issued as an emergency measure to prevent the damage and detrimental effects to the environment caused by your clients’ actions from continuing. The subsequent correspondence exchanged with yourselves sought to give content to this notice by providing reasons for our actions and, after negotiations and meetings between the parties, the details of the steps which are required to eliminate and reduce the damage, danger and detrimental effects of your clients’ actions. The details were provided in terms of Section 31A of the Act and were parts of, what has always been one administrative act by this Council. Accordingly, we are not prepared to provide you with any further reasons as at this time and we refer you again to the contents of our letter of 19 March 1996 where the reasons for our action in terms of Section 31A were set out in detail. These still remain valid."

On 7 August 1996 the applicants launched the application before me to review and set aside all three decisions and after respondents’ answering affidavit and the applicants’ reply thereto had been filed, the applicants brought a substantive interlocutory application for a declaratory order to determine various issues of fact and law separately and before the remaining issues were dealt with. This, in turn, led to an order being granted by consent in which the various issues in respect of which a declarator has been sought were set out. The issues, together with one additional issue agreed to by the parties, were argued before me. There are a number of issues and I will not record them at this stage, but will do so together with my rulings at the conclusion of this judgment. I turn now to the various attacks made by the applicants on the three decisions.
DID SECTION 32 OF THE ACT APPLY?
Section 32 of the act reads as follows:

(b)	make a declaration or identification in terms of section 16(1), 18(1), 21(1) or 23(1); or
(c)	determine the policy in terms of section 2,
a draft notice shall first be published in the Gazette or the Official Gazette in question as the case may be.
(2)	The draft notice referred to in sub-section (1) shall include-
(a)	the text of the proposed regulation, direction, declaration, identification or determination of policy;
(b)	a request that Interested parties shall submit comments in connection with the proposed regulation, direction, declaration, Identification or determination of policy within the period stated in the notice, which period shall not be fewer than 30 days after the date of publication of the notice;
(c)	the address to which such comments shall be submitted.
(3)	If the Minister, competent authority or local authority concerned thereafter determines on any alteration of the draft notice published as aforesaid, it shall not be necessary to publish such alteration before finally issueing the notice

DOES NATURAL JUSTICE APPLY?

As to how the principle of fairness is to exercised, see

1.	Where an act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all circumstances.
2.	The standards of fairness are not immutable. They may change with the passage of time, both in general and in their application to decisions of a particular type.
3.	The principles of fairness are not to be applied by rote Identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects.
4.	An essential feature of the context is a Statute which creates the discretion, as regards both its language and the shape of the legal

and administrative system within which the system within which the decision is taken.
5.	Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken with a view to procuring its modification or both.
6.	Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will often require that he be informed of the jist of the case which he has to answer."

are parties in the controversy for correcting or contradicting anything prejudicial to

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statement have been made affecting: and then he must be given a fair opportunity to correct or contradict them."

Bearing the above principles in mind I now deal with the three decisions taken by and on behalf of the first respondent.
THE FIRST DECISION

1. To make representations on their own behalf, or
2. To appear at a hearing or enquiry (if one is to be held) and
3. Effectively to prepare their own case and to answer the case (if any) they will have to meet.

THE SECOND DECISION
The second decision seems to have been nothing more than a precautionary move by the second respondent in order to avoid any dispute about the validity of the first decision. It is quite clear that no notice of the second respondent’s intention to take a second decision was given to the applicants and the applicants were certainly not given any opportunity to make representations to the second respondent prior to the decision being taken, for although the first applicant had come to hear of the fact that the council would be deliberating about the matter, he was refused a hearing when the meeting took place.
As previously mentioned, the letter from the first respondent included copies of eight objections. These, which had in effect been canvassed by Mr van der Spuy, the Director: Administrative Service (Legal and Estates) of the second respondent, were from the Wildlife Society (Western Cape Branch), the National Parks Board, Hout Bay Museum, the CPPNE, the Hout Bay and Llandudno Heritage Trust and private individuals. The applicants were not apprised of these objections, nor were they given an opportunity to respond to them before the second decision was made.
THE THIRD DECISION
It is clear that the applicants were at no stage aware that the second respondent intended to take a third decision which would result in a notice in terms of Section 31A of the act being issued: indeed, as late as 12 July 1996 the second respondent itself still held the view that only one notice in terms of Section 31A of the act had been issued.

It is clear from the aforegoing that I am of the view that the applicants were not treated fairly in accordance with the principles of natural justice in that they were not given notice of, or any opportunity to be heard in respect of any of the three decisions made by the first and/or second respondents and that the correspondence and meetings between the parties which ensued after the first decision had been taken did not exonerate the respondents from their failure to give the required notice and opportunity to be heard.
I will now deal with the specific issues which were argued and in respect of which a declarator is sought.
1. Did the applicants comply with section 36 of the Environment Conservation Act, 73 of 1989 and, if not, should the application be dismissed for this reason alone?
I was advised by counsel that this issue had fallen away.
2. Were the review proceedings in relation to the relief sought in paragraph (a)(i) and (ii) of the notice of motion brought within a reasonable time and, if not should those prayers be dismissed for this reason alone?
Counsel advised me that this issue had also fallen away.
3.1. Did the applicants have a right to be given notice and/or to a hearing prior to the decision referred to in paragraph (a)(i) of the notice of motion?
The applicants had the right to be given notice and/or to a hearing prior to the decision.
3.2. If the answer to the above question is that applicants had a right to be given notice and/or a hearing prior to the decision, was such right afforded to them or does the decision fall to be set aside by reason of the failure to afford them such right?
Such right was not afforded to the applicants and the decision therefore falls to be set aside by reason of the failure to afford them such right.
3.3. Were the second respondent and Mr van der Spuy authorised to take the decision referred to in paragraph (a)(i) of the notice of motion?
In the light of my other findings, it is not necessary to consider this question.
4.1. Did the applicants have a right to be given notice and/or to a hearing prior to the decision referred to in paragraph (a)(ii) of the notice of motion?
The applicants did have a right to be given notice and/or to a hearing.
4.2. Was the decision referred to in paragraph (a) (ii) of the notice of motion validly taken?
The decision referred to in paragraph (a)(ii) of the notice of motion was not validly taken.
5. Is the validity of the resolution of the first respondent referred to in paragraph (a)(iii) of the notice of motion dependent on the validity of either or both of the decisions referred to in paragraphs (a)(i) and (a)(ii) thereof? The validity of the resolution of the first respondent referred to in paragraph (a)(iii) of the notice of motion is not dependent upon the validity of either or both of the decisions referred to in paragraphs (a)(i) and (a)(ii) thereof.

7. What standard of review applies to the exercise of the power to make directions in section 31 A(1) of the act?
8. What is the effect, if any, on the answers to the questions set out in 1 to 7 above, of section 24 of the Constitution of the Republic of South Africa Act, 200 of 1994, alternatively, Item 23(2) (b) of Schedule 6 to the Constitution of the Republic of South Africa Act, 108 of 1996?
In the light of the findings which ! have made as to the invalidity of the three decisions taken by the first and/or second respondent questions 6, 7 and 8 have become academic and do not require to be decided.

(1) the decision contained in the letter dated 19 February 1996 entitled "Notice in terms of section 31A of Act 73/1989", being Annexure "KWE 9" to the founding affidavit of first applicant;
(2) the decision contained in the letter dated 1 March 1996 entitled "Notice in terms of section 31A of Act 73 of 1989: road construction erven 4868 and 4869 Hout: Mr K.W. Evans and others" and the resolution of first respondent dated 27 February 1996 accompanying such notice, being Annexures "KWE 11" and "KWE12" to the founding affidavit of first applicant;
(3) the resolution of first respondent dated 30 April 1996 entitled "Environmental damage resulting from road construction on erven 4868 and 4869 Hout Bay", being Annexure "KWE 27B" to the founding affidavit of first applicant.

I am satisfied that the matter justified the employment of two counsel by the applicants and the first and second respondents are therefore ordered to pay the costs of the application including the costs of the interlocutory application referred to in the notice of motion dated 11 August 1997, jointly and severally. Such costs are to include the costs of two counsel.

R B CLEAVER