Antoy Investments (Pty) Ltd v Rand Water

Development in the Vaal River Barrage Area was regulated by a Guide Plan under the Physical Planning Act 88 of 1967, which prohibited building below a proclaimed flood control line without the consent of Rand Water (formerly the Rand Water Board). Antoy Investments (Pty) Ltd constructed a dwelling well below the flood control line without proper authorisation. Over many years Rand Water obtained interdicts and demolition orders against Antoy. In 2002 Antoy applied to Rand Water for consent under Annexure C of the Guide Plan to retain the dwelling below the flood line. The application was refused by the Chief Executive Officer of Rand Water acting alone, without the matter being considered by the Board itself. Antoy brought review proceedings in the High Court, which set aside the refusal on the basis that the CEO lacked authority, but referred the matter back to the Board and made no costs order in Antoy’s favour. Antoy appealed to the Supreme Court of Appeal against the remittal and the costs order.

The appeal was dismissed on the merits relating to remittal, but upheld in respect of costs. The High Court’s order that each party pay its own costs was set aside and replaced with an order that Rand Water pay Antoy’s costs. Rand Water was ordered to pay the costs of the appeal, including the costs of two counsel.

The case affirms key principles of South African administrative law, particularly that decisions must be taken by the properly authorised statutory body and not by officials acting ultra vires. It also reinforces the general rule that, after a successful review, matters should be remitted to the decision-maker unless exceptional circumstances justify substitution by a court. The judgment further clarifies the approach to costs where a litigant is compelled to review an unlawful administrative decision.