Corrans v MEC for the Department of Sport, Recreation, Arts and Culture, Eastern Cape Government and Others (1890/08) [2009] ZAECGHC 17; 2009 (5) SA 512 (ECG) (23 March 2009)

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

PARTIES:

LOUISE CORRANS Applicant

And

THE MEC FOR THE DEPARTMENT OF SPORT,

RECREATION, ARTS & CULTURE, EASTERN CAPE AND OTHERS

Registrar: Case No: 1890/08

Magistrate:

High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

Date Heard: 5 March 2009

Date Delivered: 23 March 2009

JUDGE(S): CHETTY, J

LEGAL REPRESENTATIVES –

Appearances:

for the Appellant(s): Adv Paterson SC

for the Respondent(s): Adv Smuts SC

Instructing attorneys:

Appellant(s): Neville Borman & Botha: Mr Botha

Respondent(s): Whitesides: Mr Nunn

CASE INFORMATION -

Nature of proceedings : APPLICATION

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case No: 1890/08

In the matter between:

LOUISE CORRANS …......................................................................Applicant

RECREATION, ARTS & CULTURE, EASTERN CAPE

GOVERNMENT …................................................................First Respondent

THE CHAIRMAN, PROVINCIAL HERITAGE

RESOURCES AUTHORITY, EASTERN CAPE …................Second Respondent

AMAFA ETHU Third Respondent

CORAM CHETTY, J

Summary: National Heritage Resources – Buildings of cultural significance – Partial demolition permit authorised by provincial heritage resources agency – Decision sought to be reviewed and set aside – Sections 6 (2) (a) (i), 6 (2) (e) (iii) and 6 (2) (f) (ii) of Promotion of Administrative Justice Act 3 of 2000 – Conflict between National Heritage Resources Act 25 of 1999 and Eastern Cape Heritage Resources Act 9 of 2003 – Prevalence of National legislation – Uniform norms and standards – Provincial Heritage resources agency decision consonant with overall scheme of National Heritage Resources Act.

[4] The application was accompanied by a set of photographs of both the interior and exterior of the property and its immediate surrounds, a number of architectural drawings of the proposed new structure, and two letters, one from the Lower Albany Historical Society, the other from the Port Alfred Unit of an entity styled Ndlambe Tourism in support of the application to demolish the property. The PHRA’s permit committee duly considered the application and communicated its decision in the following terms: -

“Only partial demolition will be considered, with the following conditions; the original building (north/north-west façade) is to be retained. Full demolition is therefore not approved.”

[5] Aggrieved thereby, the applicant immediately2 appealed against the decision. In her letter to the PHRA the applicant’s grounds of appeal were couched in the following terms (only relevant portions are reproduced here): -

“No reason was given for the disapproval of the application.

To the best of my knowledge a thorough examination of the building with regard to the soundness of the structure and the state of repair it is in was never carried out.

The Lower Albany Historical Society made such an inspection and I enclose a copy of the letter I received from them and which was attached to my original application. I feel that little or no cognisance of the contents of this letter was taken when the decision was made. Mr Dace Hawkins, who carried out the inspection on behalf of the society, has been involved in the construction industry for many years and I believe that his opinion is impartial and unbiased. I have also consulted with other professionals in the field regarding the feasibility of retaining the structure and they have all agreed that it is both impractical and totally uneconomical to do so.

The building is vacant, is uninhabitable, is extremely vulnerable to criminal element and is a fire risk.”

[6] The applicant was thereafter invited to attend the appeal hearing and made various submissions to it. On 19 December 2007 the appeal committee dismissed the appeal motivating its decision as follows:

“• The building is in a historic part of town and forms part of a precinct of building of this type.

The front façade and the related building is a worthy heritage component of the Port Alfred townscape.

The building is in a fair condition.

The front façade and related buildings can be kept and new buildings built on the remainder of this site.”

and suggested that: -

“• The front façade and related building be kept and restored.

It is suggested that the plaster that covers the original thin walls not be removed.

It is suggested that the new building works be sympathetic in size and style to the remaining front façade.”

[7] Undaunted by the dismissal of the appeal, the applicant’s husband addressed a lengthy letter to the first respondent decrying

the decision of the PHRA’s appeal committee and elicited the MEC’s purported power to overturn the appeal committee’s

decision. A number of reasons were advanced in support of the contention that neither the PHRA nor its appeal committee “properly applied their minds to the matter” in refusing the application. The letter elicited no response from the MEC. Thereafter negotiations appear to have been conducted between the applicant’s architect, Mr Stapleton and members of the PHRA. It is unnecessary for purposes of this judgment to consider these further discussions save to state that the PHRA’s decision not to grant a permit for the complete demolition of the property remained unaltered. This prelude thus provides the backdrop to this application for the review and setting aside of the decision by the PHRA not to approve the application for the complete demolition of the property.

[8] The application for judicial review is predicated upon the provisions of the Promotion of Administrative Justice Act (PAJA)3. The applicant relies principally upon sections 6 (2) (a) (i), 6 (2) (e) (iii) and 6 (2) (f) (ii) of PAJA contending that- (i) the PHRA was not authorised by the empowering legislation to either consider or refuse the application (s 6 (2) (a) (i)); alternatively, and, in the event of a finding that the PHRA had the requisite jurisdiction to consider and determine the application; (ii) it took into account irrelevant considerations ignoring relevant ones; and (iii) the decision was not rationally connected to the purpose for which it was taken, the purpose of the empowering legislation, the information before it and the reasons given for it by the PHRA.

Did the PHRA have the jurisdiction to consider the application directed to it

[9] The argument advanced on behalf of the applicant is that from the date of commencement of the Eastern Cape Heritage Resources Act (the Provincial Act)4 i.e. 4 March 2004, the PHRA lacked the competence to consider the application. In order to decide this issue it becomes necessary to consider the legislation which preceded the Provincial Act.

[10] The National Act came into operation on 1 April 2000. According to its long title it was enacted: -

“To introduce an integrated and interactive system for the management of the national heritage resources; to promote good governance at all levels, and empower civil society to nurture and conserve their heritage resources so that they may be bequeathed to future

generations; to lay down general principles for governing heritage resources management throughout the Republic; to introduce an integrated system for the identifications, assessment and management of the heritage resources of South Africa; to establish the South African Heritage

Resources Agency together with its Council to co-ordinate and promote the management of heritage resources at national level; to set norms and maintain essential national standards for the management of heritage resources in the Republic and to protect heritage resources of national significance; to control the export of nationally significant heritage objects and the import into the Republic of cultural property illegally exported from foreign countries; to enable the provinces to establish heritage authorities which must adopt powers to protect and manage certain categories of heritage resources; to provides for the protection and management of conservation-worthy places and areas by local authorities; and to provide for matters connected therewith.” (emphasis added)

[11] Its preamble proclaims the aim of the legislation to be “to promote good management of the national estate and to enable and encourage communities to nurture and conserve their legacy so that it may be bequeathed to future generations.” Part 1 of the Act, under the rubric, General Principles, specifically includes buildings and structures which are of cultural significance or other special value and are deemed to form part of the national estate which the Act seeks to preserve. In order to achieve those objectives Chapter I of the National Act established the South African Heritage Resources Agency (SAHRA) and provided the framework for the establishment of provincial heritage resources authorities to manage provincial and local heritage resources (s 4 (d)).

[12] S 23 of the National Act specifically empowered the member of the executive council of a province (the MEC) responsible for cultural matters to establish a provincial heritage resources authority (the PHRA) which was tasked with the management of relevant heritage resources within a particular province. The National Act vested the MEC with the requisite jurisdiction to make regulations relating to the management of its resources. A schedule to the Eastern Cape Provincial notice 24 of 2002 published in provincial gazette 886 of 6 June 2002 by the MEC for the Department of Sport, Recreation, Arts and Culture, Eastern Cape Province embody the regulations envisaged by sections 23 and 48 of the National Act (the PHRA Regulations).

[13] In developing his argument that upon the promulgation of the Provincial Act, the PHRA was divested of all authority, and that such power henceforth vested in an entity, Amafa Ethu (the third respondent), created in terms of s 2 thereof, Mr Paterson relied upon s 146 of the Constitution. S 146 is concerned with conflicts between National and Provincial legislation. Subsection (2) inter alia provides: -

“(2) National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met:

(a) The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces

individually.

(b) The national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing –

norms and standards;

(ii)frameworks; or

(iii) national policies.”

[14] Finding succour in Part A of Schedule 4 of the Constitution which lists cultural matters as a functional area of concurrent national and provincial competence, Mr Paterson submitted that there was a clear conflict between the National and Provincial Act. Neither subsection 2 (a) or (b) of s 146 of the Constitution were of application and could therefore not be relied upon by the respondents for their contention that the National legislation enjoyed precedence. The answer, he submitted, was to be found in s 146 (5) in terms of which the Provincial Act prevailed over the National Act.

[14] It will be gleaned from the aforegoing provisions of s 146 (2) (b) of the Constitution that where national legislation provides uniformity by establishing norms, standards, frameworks or national policies, national legislation prevails. The National Act, as the title to Chapter I proclaims, provides a system for management of national heritage resources which is of national application. To that end s 4 of the National Act affirms that Chapter 1 “establishes the national system for the management of heritage resources which it applies throughout the Republic and –

(a) also applies to the action of the State and a local authority;

(b) serves as guidelines by reference to which any heritage resources authority, whether established in terms of this Act or any other law, and any other competent authority must exercise any discretion or take any discretion in terms of this Act or any other law dealing with heritage resources management;

(c) serves as the general framework with which-

any heritage resources authority must perform its functions and make recommendations; and

(ii) those recommendations must be considered by any competent authority in terms of this Act or any other law dealing with heritage resources management; and

(d) establishes the South African Heritage Resources Agency to manage the national estate and makes provision for the establishment of provincial heritage resources authorities to manage provincial and local heritage resources.”

Furthermore, s 8 of the National Act provides for a three tier system for heritage resource management. It is clear from not only the introduction to the Act which inter alia vests a provincial heritage authority with limited powers in respect of certain categories of heritage resources, but from the entire

structure of the National Act that it takes precedence over the Provincial Act.

[15] Furthermore, although the third respondent was created in terms of the Provincial Act, it did not, ipso facto, have either the capacity or competence to perform any function in terms of that Act. Section 8 of the National Act provides as follows: -

“8(6) (a) A provincial heritage resources authority or a local authority shall not perform any function in terms of this Act or any other law for the management of heritage resources unless it is competent to do so. The capacity of a provincial heritage resources authority or local authority shall be assessed in terms of criteria prescribed by the Minister, including the availability of adequate staff, expertise, experience

and administrative systems, to be applied-

by SAHRA, in the assessment of the capacity of provincial authorities to perform specific functions in relation to prescribed categories of heritage resources; and

by provincial heritage resources authorities, to establish the capacity of local authorities to perform any function under this Act:

Provided that, in the event of a dispute, the matter shall be submitted to arbitration.

(b) If an authority at provincial or local level does not have the capacity or is not competent to perform a specific function for which it is responsible under this section, that function shall be performed on an agency basis by an authority at a higher level or a competent authority at the same level.” (emphasis added)

It is common cause that upon the promulgation of the PHRA regulations the PHRA was established. It was staffed by persons with the requisite expertise and experience and performed its functions as provided for in terms of the National Act and the PHRA regulations. The applicant’s application was moreover directed to it in accordance with the aforesaid regulations and the appeal process followed the procedure prescribed thereby.

16. It is furthermore not in issue that from the date of promulgation of the Provincial Act, the third respondent existed in name only. Its competency cannot arise from its mere act of creation by the Provincial Act. As adumbrated above, s 8 of the National Act clothes a PHRA with certain powers only when certain criteria have been fulfilled. It is clear that the third respondent had none of these attributes. It was correctly pointed out by Mr Smuts that the Provincial Act is an aberration and that the third respondent finds no place in the scheme of the National Act. Moreover the provincial regulations were never repealed and remain in force to this day. In my view, therefore the ground of review premised on s 6 (2) (a) (i) of PAJA cannot be sustained.

Is the decision of the PHRA reviewable under s 6 (2) (e) (iii) or 6 (2) (f) (ii) of PAJA

17. The alternative ground of review is predicated upon the provisions of s 6 (2) (e) (iii) and s 6 (2) (f) (ii) of PAJA. In determining the merits of the submissions advanced on behalf of the applicant, it is necessary to refer to particular provisions in the National Act viz., sections 3 (1); 2(a) and (c), 3 and 34(1): -

“3 National estate

For the purpose of this Act, those heritage resources of South Africa which are of cultural significance or other special value for the present community and for future generations must be considered part of the national estate and fall within the sphere of operations of heritage resources authorities.

2. Without limiting the generality of subsection (1), the national estate may include –

places, buildings, structures and equipment of cultural significance;

historical settlements and townscapes;

Without limiting the generality of subsection (1) and (2), a place or object is to be considered part of the national estate if it has cultural significance or other special value because of:

its importance in the community, or pattern of South Africa’s history;

its possession of uncommon, rare or endangered aspects of South Africa’s natural or cultural history;

its potential to yield information that will contribute to an understanding of South Africa’s natural and cultural

heritage;

its importance in demonstrating the principle characteristics of a particular class of South Africa’s natural or cultural

heritage;

its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group;

its importance in demonstrating a high degree of creative or technical achievement at a particular period;

its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons;

its strong or special association with the life or work of a person, group or organisation of importance in the history of South Africa; and

sites of significance relating to the history of slavery in South Africa.

34 Structures

(1) No person may alter or demolish any structure or part of a structure which is older than 60 years without a permit issued by the relevant provincial heritage resources authority.” (emphasis added)

18. The recurrent theme in the affidavits and supporting documentation relied upon by the applicant is that the structure in question is akin to a shack of no redeeming cultural significance. In her founding affidavit the applicant alleges that – “there is nothing particularly cultural about the building making it worthy of historical interest nor does it reflect any particular era,” and “moreover the building is an original wood and iron structure which has later been finished with mesh and plaster. There is accordingly nothing in its structure which is of historical or cultural significance.”

19. The PHRA’s decision to permit only a partial demolition was motivated on the basis that: -

“● The building is in a historic part of town and forms part of a precinct of building of this type

● The front façade and the related building is a worthy heritage component of the port Alfred townscape.

● The building is in a fair condition.

● the front façade and related buildings can be kept and new buildings built on the remainder of this site.”

20. In considering the competing submissions advanced on behalf of the parties, it must be stressed with regard to the overall scheme of the National Act that individual members of a heritage resources agency are appointed by reason of their particular expertise in the field of heritage management. Thus Part 2 of Chapter I of the National Act prescribes that members of the SAHRA and a PHRA must have special experience or interests in fields relevant to heritage resources. The applicant does not in any way seek to impugn either the expertise or experience of the PHRA’s permit or appeal committees – she contends that as a matter of fact their decision is wrong. In my judgment a court of law must give due weight to policy decisions and findings of fact by a decision

making body, particularly where, as here, the decision appears to conform to the overall scheme of the legislation.

21. In recognising the need to treat decision makers with due deference, the Constitutional Court stated as follows in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at para [48]: -

“In treating the decisions of administrative agencies with the appropriate respect, a Court is recognising the proper role of the

Executive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of the government. A Court should thus give due weight to findings of fact and policy decisions made by those with special expertise in the field. The extent to which a Court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a Court should pay due respect to the route selected by the decision-maker. This does not mean, however, that where the decision is one which will not reasonably result in the achievement of the goal, or which is not reasonably supported on the facts or not reasonable in the light of the reasons given for it, a Court may not review that decision simply because of the complexity of the decision or the identity of the decision-maker.”

22. In my view this is not a case where judicial intervention in the decision reached by the PHRA’s permit and appeal committee is warranted. The conditional demolition permit accords with the duty imposed on the PHRA to preserve buildings which are of cultural significance and its decision is consonant with the overall scheme of the National Act.

[23] In the result therefore the following order will issue: -

1. The application is dismissed with costs.

_______________________

D. CHETTY

JUDGE OF THE HIGH COURT

Counsel obo the Applicant: Adv Paterson SC

Attorney obo the Applicant: Neville Borman & Botha: Mr Botha

Counsel obo the 1st and 2nd Respondents: Adv Smuts SC

Attorney obo the 1st and 2nd Respondent: Whitesides: Mr Nunn

1Act 25 of 1999

2i.e. two days later on 27 September 2007

3Act 3 of 2000

4Act 9 of 2003