City of Cape Town v Faizel Hendricks and Mogamat Smith

The first and second respondents were informal traders who conducted their businesses from large, sturdy, temporary structures erected on pavements at corners in Mitchells Plain. Portions of each structure encroached onto a neighbouring property (Westgate Mall), whose owner objected to the encroachment. The City of Cape Town owned the property where the structures stood. The structures were erected without the City's consent or authorization and contravened a number of the City's by-laws. Despite conducting business for a number of years, the respondents had not sought the City's consent or authorization. On 23 April 2010, Constable Swartbooi issued written notices to each respondent informing them that their structures were placed without necessary consent, instructing immediate removal, and warning that failure to comply by 10 May 2010 could result in fines and removal at their expense. When serving the notices, the constable informed them they could erect temporary structures daily but would have to dismantle them at day's end (though no such decision had been taken by the City). The respondents did not seek authorization but instead obtained interim relief in the high court, which was later abandoned. On 16 August 2010 they launched a review application.

• Whether the City took a decision that respondents must remove and rebuild their business structures daily
• Whether the City's notices issued on 23 April 2010 constituted 'administrative action' for purposes of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the notices had direct and immediate legal consequences for the respondents
• Whether the City was obliged to afford the respondents an opportunity to make representations before issuing the notices

The appeal was upheld. The order of the court a quo was set aside and replaced with an order that 'the application is dismissed'.

A warning notice or compliance notice issued by a municipality informing a person that they are in contravention of a by-law and instructing them to remedy the contravention or face legal consequences does not constitute 'administrative action' for purposes of PAJA. Such notices are preliminary steps that do not have direct and immediate consequences; they do not adversely affect rights or have direct or external legal effect. They are merely notifications or warnings that the municipality will enforce its by-laws if compliance is not achieved. PAJA does not require municipalities to afford procedural fairness before issuing such warning or compliance notices.

The court noted curiously that the respondents had obtained an initial interdict and confirmation order in the absence of the City which had no knowledge of the proceedings, and that when the City applied for rescission, the respondents did not oppose and ultimately abandoned their application for an interdict. The court also observed that the respondents did not file a replying affidavit or insist on the production of the record of proceedings sought to be corrected, and that they did not appear at the appeal hearing despite proper service. These observations suggest procedural irregularities in how the respondents conducted their case.

This case provides important clarification on what constitutes 'administrative action' under PAJA. It establishes that warning notices or compliance notices issued by municipalities informing persons of contraventions and demanding compliance do not constitute administrative action subject to procedural fairness requirements under PAJA. The case distinguishes between preliminary steps (warnings and notifications) and final decisions with direct legal consequences. This is significant for municipal enforcement of by-laws and helps define the boundaries of when PAJA applies to municipal enforcement activities, preventing municipalities from being paralyzed in their regulatory and enforcement functions by having to afford procedural fairness before every warning or compliance notice.