Abbott v Overstrand Municipality and Others

The appellant owned immovable property on the banks of the Klein River near Hermanus. He alleged that his house suffered structural damage due to flooding of the Klein River after the Overstrand Municipality changed its approach to managing the estuary mouth, specifically by ceasing to artificially breach the sand berm at lower water levels (around 2.1m amsl). He contended that the municipality had previously followed an established practice of breaching the berm to prevent flooding of low-lying properties and that its failure to take protective steps constituted unlawful administrative inaction. He sought review and setting aside of the municipality’s refusal to act under PAJA, alternatively under the common law, and relied in the alternative on a legitimate expectation arising from past practice.

The appeal was dismissed with costs, including the costs of two counsel.

The case clarifies that municipal inaction is only reviewable under PAJA where a clear legal duty to act exists, and that municipalities cannot be compelled to exercise powers not lawfully assigned to them. It reinforces constitutional principles governing the allocation of governmental powers, particularly in environmental management, and confirms the limited scope of the doctrine of legitimate expectation in South African law.