Zetler NO and Others v Minister of Transport and Public Works, Provincial Government of Western Cape and Others; Minister of Transport and Public Works, Provincial Government of Western Cape v Zetler NO and Others (20168/12, 19622/12) [2013] ZAWCHC 51 (8 March 2013)

Zetler NO and Others v Minister of Transport and Public Works, Provincial Government of Western Cape and Others; Minister of Transport and Public Works, Provincial Government of Western Cape v Zetler NO and Others (20168/12, 19622/12) [2013] ZAWCHC 51 (8 March 2013)

The court held that the second respondent did not have lawful authority to issue the closure order under section 18(1)(a) of the Roads Ordinance because there was no written delegation of the relevant powers as required by section 65(1) of the Ordinance. Authorisation or approval by the first respondent was not sufficient to satisfy the statutory requirement for written delegation. The absence of written delegation rendered the administrative action ultra vires, unlawful, and invalid. Consequently, the review application succeeded and the closure order was set aside. The court found it unnecessary to consider the other grounds of review raised by the applicants.

Citation
[2013] ZAWCHC 51
Parties
Applicant: Herschel Zetler N.O.; Applicant: Dennis Louis Zetler N.O.; Applicant: Jeffrey Mark Zetler N.O.; Applicant: Julian Mark Gruft N.O.; Respondent: Minister of Transport & Public Works, Provincial Government of the Western Cape; Respondent: Executive Manager: Road & Transport Management, Provincial Government of the Western Cape; Respondent: Municipal Manager: Winelands; Respondent: Minister of Law and Order; Applicant: Minister of Transport and Public Works, Provincial Government of the Western Cape; Respondent: Herschel Zetler N.O.; Respondent: Dennis Louis Zetler N.O.; Respondent: Jeffrey Mark Zetler N.O.; Respondent: Julian Mark Gruft N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
8 March 2013
Case Number
20168/12, 19622/12
Procedural Posture
Review Application / Judgment
Outcome
The application to review and set aside the closure order is granted; the order is set aside with costs, including costs of two counsel. The counter-application for enforcement of the closure order is dismissed with costs, including costs of two counsel.
Judges
KM Savage
Legal Topics
Delegation of Powers, Ultra Vires, Roads Ordinance, Administrative Action, Written Delegation
Administrative Law Land and Property Delegation of Powers Ultra Vires Roads Ordinance Administrative Action Written Delegation

Case Brief

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Parties

Herschel Zetler N.O.

Applicant

Dennis Louis Zetler N.O.

Applicant

Jeffrey Mark Zetler N.O.

Applicant

Julian Mark Gruft N.O.

Applicant

Minister of Transport & Public Works, Provincial Government of the Western Cape

Respondent

Executive Manager: Road & Transport Management, Provincial Government of the Western Cape

Respondent

Municipal Manager: Winelands

Respondent

Minister of Law and Order

Respondent

Minister of Transport and Public Works, Provincial Government of the Western Cape

Applicant

Herschel Zetler N.O.

Respondent

Dennis Louis Zetler N.O.

Respondent

Jeffrey Mark Zetler N.O.

Respondent

Julian Mark Gruft N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the second respondent had lawful authority to issue the closure order under section 18(1)(a) of the Roads Ordinance 19 of 1976.
  2. 2 Whether the absence of written delegation rendered the closure order unlawful and invalid.
  3. 3 Whether authorisation without written delegation satisfies statutory requirements for delegation of administrative powers.

Ratio Decidendi

The court held that the second respondent did not have lawful authority to issue the closure order under section 18(1)(a) of the Roads Ordinance because there was no written delegation of the relevant powers as required by section 65(1) of the Ordinance. Authorisation or approval by the first respondent was not sufficient to satisfy the statutory requirement for written delegation. The absence of written delegation rendered the administrative action ultra vires, unlawful, and invalid. Consequently, the review application succeeded and the closure order was set aside. The court found it unnecessary to consider the other grounds of review raised by the applicants.

Court Disposition

The application to review and set aside the closure order is granted; the order is set aside with costs, including costs of two counsel. The counter-application for enforcement of the closure order is dismissed with costs, including costs of two counsel.

Orders

  • The application under case number 20168/12 to review and set aside the order of closure in terms of section 18(1)(a) of the Roads Ordinance 19 of 1976 of access to Farm 537/15, Mooiberge, off Main Road 27, Stellenbosch, issued by the second respondent on 11 June 2012, is granted and the order is set aside with...
  • The application under case number 19622/12 is dismissed with costs, including the costs of two counsel.