MEC for Environmental Affairs and Development Planning v Clairison's CC

Clairison's CC, a property developer, sought to establish a retirement village of 173 units on a property located 4 km north-east of Plettenberg Bay central business district within the Bitou Municipality's jurisdiction. The development required: (1) amendment of the property's designation in the Knysna-Wilderness-Plettenberg Bay regional structure plan from 'Agriculture and Forestry' to 'Township Development' under s 4(7) of the Land Use Planning Ordinance 15 of 1985 (Lupo); and (2) environmental authorisation under ss 21, 22 and 26 of the Environmental Conservation Act 73 of 1989 (ECA) due to change of land use from agricultural to another use. The structure plan amendment was granted by the MEC's predecessor despite the head of department's recommendation for refusal. This recommendation aligned with departmental policy against large new residential developments north of Plettenberg Bay, based on the Western Cape Provincial Spatial Development Framework (WCPSDF) aimed at restricting urban sprawl, protecting biodiversity, and addressing apartheid spatial patterns. The director refused the environmental authorisation application based on this policy. Clairison's appealed to the MEC under s 35(1) of the ECA, but the appeal was dismissed. The Western Cape High Court (Cloete AJ) set aside the MEC's decision on review, finding the MEC had considered irrelevant considerations and failed to consider relevant ones, and that there was reasonable apprehension of bias. The MEC appealed with leave.

• Whether the MEC failed to take into account relevant considerations when refusing the environmental authorisation, constituting a ground for review under s 6(2)(e)(iii) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the weight to be attached to relevant considerations in administrative decision-making falls within the discretion of the decision-maker
• Whether the MEC exhibited bias or created a reasonable apprehension of bias constituting a ground for review under s 6(2)(a)(iii) of PAJA
• Whether adherence to departmental policy and reliance on departmental recommendations constitutes impermissible bias
• The distinction between review and appeal in administrative law

The appeal was upheld with costs, including costs of two counsel. The order of the High Court was set aside and replaced with an order dismissing the application with costs, including costs of two counsel in both courts.

When an administrative functionary is entrusted with a discretion, the weight to be attached to particular factors, or how far a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and provided he acts in good faith, reasonably and rationally, a court of law cannot interfere. A review is not concerned with the correctness of a decision made by a functionary, but with whether he performed the function with which he was entrusted. When the law entrusts a functionary with a discretion, it gives recognition to the evaluation made by that functionary, and it is not open to a court to second-guess his evaluation. The role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted. 'Departmental bias' - where administrative officials uphold general policies of their department - is unavoidable and desirable for good administration and does not prevent officials from being fair and objective in particular cases. A functionary is entitled to refuse an application because it conflicts with pre-determined policy, provided the functionary brings an open mind to the matter and does not treat policy as a binding rule to which he is bound.

The court noted that sound principles of administrative law developed under common law continue to inform the content of administrative law under the Constitution and PAJA, citing Pharmaceutical Manufacturers. The court observed that the WCPSDF's aims of restructuring urban settlements to address apartheid spatial patterns, restricting outward growth until specified densities are achieved, and protecting biodiversity and agricultural resources are legitimate planning and environmental considerations. The court commented that an appeal in the administrative context is a reconsideration by the political head of a department of a decision made by officials, and since the primary function of a minister is political, disputes involving policy and administrative considerations require personal settlement. The minister cannot be expected to adopt a detached posture as an independent arbitrator. The court also noted that when exercising discretion on a matter governed by policy, the functionary must bring an open mind to bear, but this is not the same as a mind untrammelled by existing principles or policy (citing Kemp NO v Van Wyk).

This case is significant in South African administrative law for clarifying several important principles: (1) It reinforces the fundamental distinction between administrative review and appeal - review concerns whether the decision-maker properly performed his function, not whether the decision was correct; (2) It establishes that the weight to be attached to relevant considerations is within the discretion of the administrative decision-maker, and courts cannot interfere with that weighting provided the decision-maker acts in good faith, reasonably and rationally; (3) It confirms that 'departmental bias' - adherence to pre-determined policies and reliance on departmental recommendations - is not objectionable bias and is indeed necessary for good administration; (4) It clarifies that administrative appeals to political heads are not quasi-judicial adjudications but policy-based reconsiderations, and such officials may be predisposed toward departmental policies without exhibiting impermissible bias; (5) It provides important guidance on the proper scope of judicial review under PAJA, particularly s 6(2)(e)(iii) (failure to take relevant considerations into account) and s 6(2)(a)(iii) (bias). The judgment protects the proper sphere of administrative discretion from unwarranted judicial interference.