Antoy Investments (Pty) Ltd v Rand Water

Since 1990, Antoy Investments (the appellant) sought permission to build a dwelling house below the 1975 flood control line of the Vaal River. Development below this line was prohibited without consent of the Rand Water Board pursuant to a Guide Plan issued under the Physical Planning Act 88 of 1967. The appellant had previously been interdicted and ordered to demolish portions of a dwelling constructed below the flood line in violation of consent orders. In April 2002, the appellant submitted a voluminous application to the Board for consent to permit the dwelling to be retained as constructed below the flood control line. By letter dated 26 April 2002, the Chief Executive Officer (CEO) advised that the Board declined consent. The appellant then brought review proceedings. It transpired that the decision was made by the CEO alone without reference to the other members of the Board.

• Whether the CEO was empowered to make the decision to refuse consent on behalf of the Board without reference to the Board itself
• Whether the court a quo should have determined the merits itself rather than remitting the matter back to the Board after setting aside the decision on review
• Whether the Board had jurisdiction to grant or refuse the application absent proof of pollution risk
• What the appropriate costs order should be in circumstances where the review application was successful

1. Save to the extent set out in para 2, the appeal is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel; 2. Paragraph 4 of the order of the court a quo is set aside and there is substituted the following: 'The first respondent is ordered to pay the applicant's costs.'

Where a decision purportedly made by a statutory body is in fact made by an individual officer without authority and without the body itself applying its mind to the matter, the proper remedy on a successful review is to remit the matter to the decision-making body for proper consideration, unless there are special circumstances warranting a different approach. The general principle is that a matter will be sent back to the decision-maker in a successful review unless there are special circumstances giving reason not to do so. A successful review applicant who was obliged to bring review proceedings should ordinarily be awarded costs unless there are reasons to depart from the general rule that costs follow the result.

The court made the observation that if the appellant's argument was correct that Annexure C only applied once it had been established that there was a danger of pollution, the appellant could simply have applied for a declaratory order that no consent was required rather than applying for consent under the Annexure. The court expressed doubt about whether the preamble to Annexure C restricted the Board's inquiry solely to the question of pollution risk, but did not decide the point definitively as it was for the Board to consider and decide. The court noted that it could not consider the issue of costs reserved in preliminary applications as it did not have the judgments or information about those matters, and indicated the appellant's remedy was to apply by substantive application in the court below for those costs.

This case is significant in South African administrative law for clarifying when a matter should be remitted to the decision-making body following a successful review, and for affirming that decisions must be made by the properly authorized decision-making body rather than by individual officials acting ultra vires. It reaffirms the principle established in Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council 1999 (1) SA 104 (SCA) that a matter in a successful review will ordinarily be sent back to the decision-maker unless there are special circumstances. The case also provides guidance on costs orders in review proceedings where the applicant is substantially successful.