De Jong and Others v The Trustees of the Simcha Trust and Another (22197/12, 24076/12) [2013] ZAWCHC 178; 2014 (4) SA 73 (WCC) (22 November 2013)

De Jong and Others v The Trustees of the Simcha Trust and Another (22197/12, 24076/12) [2013] ZAWCHC 178; 2014 (4) SA 73 (WCC) (22 November 2013)

The court held that compensation under s 8(1)(c)(ii)(bb) of PAJA is not available where the usual remedy of remittal has been granted, as the remedies are mutually exclusive. Exceptionality for compensation is determined by whether circumstances justify departing from remittal, not by the severity of the administrator's misconduct. In this case, the review order effectively remitted Simcha's building plan application to the City for reconsideration, making compensation unavailable. The City’s conduct in approving the plans in violation of Walele was a serious dereliction of duty, but did not meet the threshold for exceptionality under PAJA. The applicants’ costs in the interdict...

Citation
[2013] ZAWCHC 178
Parties
Applicant: Madelene De Jong; Applicant: Gregory Nigel Joseph White; Applicant: Marthinus Johannes Els; Applicant: Margaret Jean Wouters; Applicant: Joshue Samuel Johnson South; Applicant: Nicole Genevieve Kyte; Applicant: Jacques Schmidt; Applicant: Suzanne Wehmeyer (Schmidt); Applicant: Exclusive Access Trading 585; Applicant: Emanuel Feguera De Abreu; Applicant: Shiraaz Joosub; Applicant: Barrister Investments (Pty) Ltd; Applicant: Amber Van Der Walt; Applicant: Sarah Elizabeth Hallas; Applicant: Joao Jose Ribeiro De Cruz; Applicant: Skye Middelton; Applicant: Richard Daniel Kyte; Respondent: The Trustees of the Simcha Trust; Respondent: The City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 November 2013
Case Number
22197/12, 24076/12
Procedural Posture
Review Application / Post Review, Determination of Costs and Compensation
Outcome
Simcha's claim for compensation against the City is dismissed. Simcha is ordered to pay the City's costs in relation to the compensation claim and to pay the applicants' costs in the interdict proceedings.
Judges
Rogers
Legal Topics
Promotion of Administrative Justice Act, Judicial Review, Costs Award, Compensation Under Paja, Building Regulations
Administrative Law Civil Procedure Promotion of Administrative Justice Act Judicial Review Costs Award Compensation Under Paja Building Regulations

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Madelene De Jong

Applicant

Gregory Nigel Joseph White

Applicant

Marthinus Johannes Els

Applicant

Margaret Jean Wouters

Applicant

Joshue Samuel Johnson South

Applicant

Nicole Genevieve Kyte

Applicant

Jacques Schmidt

Applicant

Suzanne Wehmeyer (Schmidt)

Applicant

Exclusive Access Trading 585

Applicant

Emanuel Feguera De Abreu

Applicant

Shiraaz Joosub

Applicant

Barrister Investments (Pty) Ltd

Applicant

Amber Van Der Walt

Applicant

Sarah Elizabeth Hallas

Applicant

Joao Jose Ribeiro De Cruz

Applicant

Skye Middelton

Applicant

Richard Daniel Kyte

Applicant

The Trustees of the Simcha Trust

Respondent

The City of Cape Town

Respondent

Procedural Posture

Review Application / Post Review, Determination of Costs and Compensation

Legal Issues

  1. 1 Whether the City of Cape Town's approval of Simcha's building plans in violation of the Walele judgment entitles Simcha to compensation under s 8(1)(c)(ii)(bb) of PAJA.
  2. 2 Whether the remedies of remittal and compensation under s 8(1)(c) of PAJA are mutually exclusive.
  3. 3 Who should bear the costs of the interdict and review proceedings.

Ratio Decidendi

The court held that compensation under s 8(1)(c)(ii)(bb) of PAJA is not available where the usual remedy of remittal has been granted, as the remedies are mutually exclusive. Exceptionality for compensation is determined by whether circumstances justify departing from remittal, not by the severity of the administrator's misconduct. In this case, the review order effectively remitted Simcha's building plan application to the City for reconsideration, making compensation unavailable. The City’s conduct in approving the plans in violation of Walele was a serious dereliction of duty, but did not meet the threshold for exceptionality under PAJA. The applicants’ costs in the interdict...

Court Disposition

Simcha's claim for compensation against the City is dismissed. Simcha is ordered to pay the City's costs in relation to the compensation claim and to pay the applicants' costs in the interdict proceedings.

Orders

  • The first respondent’s claim against the second respondent for compensation in terms of s 8(1)(c)(ii)(bb) of PAJA is dismissed.
  • The first respondent is directed to pay the second respondent’s costs in relation to the compensation claim, including the costs of two counsel.