Oudekraal Estates owned undeveloped land (Erf 2802 Camps Bay) on the slopes of the Twelve Apostles, Cape Peninsula. In 1957, the provincial Administrator granted permission to establish a township on the land under the Townships Ordinance 1933 (Cape), subject to certain conditions. The township was officially notified in the Provincial Gazette in 1962 as Oudekraal Township. The appellant purchased the land in 1965. In 1996, it submitted an application for approval of an engineering services plan to the Cape Metropolitan Council, which refused, stating that development rights had lapsed due to failure to comply with time limits for lodging a general plan. The land contained over twenty graves, including two kramats (burial sites of Muslim spiritual leaders) of great religious and cultural significance to Cape Town's Muslim community, particularly the kramat of Sayed Jaffer visited by thousands annually. These graves were not shown on the general plan and appear not to have been considered when the Administrator granted approval. The proposed township development would have involved building over these graves and constructing a road over one grave site.
The appeal was dismissed with costs, including costs for two counsel. The High Court's refusal to grant the declaratory relief was upheld, though on different reasoning.
An unlawful administrative act, while void in law, exists in fact and cannot simply be ignored by public authorities or individuals until it is set aside by a court in judicial review proceedings. Whether legal effect can be given to an invalid administrative act depends on whether consequent acts or decisions depend for their validity on the mere factual existence of the initial act or on its substantive legal validity. Where consequences flow from the factual existence of an administrative act (as with actions by the Surveyor-General, Registrar of Deeds, and public reliance), they remain legally valid even if the initial act was unlawful. A collateral challenge to an administrative act's validity is only permissible where a public authority seeks to use coercive power against a subject based on the act, because the rule of law dictates that coercive state power cannot be used against subjects unless the initiating act is legally valid. A public authority cannot justify refusal to perform a public duty by relying on the invalidity of an administrative act without taking steps to have it set aside. Courts should not grant broad, undifferentiated declaratory relief regarding "development rights" that would preclude future judicial review of invalid administrative acts.
The Court observed that development of the land in accordance with the existing general plan would be constrained by constitutional protection of cultural and religious practices under section 31 of the Bill of Rights and by section 36(3) of the National Heritage Resources Act 25 of 1999, apart from common law constraints. In considering whether a court would exercise its discretion to set aside the invalid approval in future judicial review proceedings, the Court noted relevant factors would include: the 40-year lapse of time since approval; the need for finality; consequences for the public and future generations; and critically, the extent of reliance by the appellant or third parties. The Court observed there was little evidence of actual reliance despite 40 years elapsing - the land remained undeveloped, and the appellant appeared to have purchased it for its location rather than the township approval. The Court did not express a final view on whether the Promotion of Administrative Justice Act 3 of 2000 and its 180-day limitation period would apply to this administrative act. The Court rejected the argument that transfer of commonage land to a private owner instead of to the Administrator in trust caused the approval to "come to an end", noting the appellant's associated company held the land and the obligation could still be fulfilled.
This is a landmark case in South African administrative law establishing fundamental principles about the effect of invalid administrative acts. It clarified that invalid administrative acts are void in law but exist in fact and can produce legal consequences until set aside by a court. The judgment established the distinction between consequences dependent on factual existence versus legal validity of administrative acts, and clarified when collateral challenges to administrative acts are permissible. The case is crucial for understanding the interplay between legality, certainty, and the rule of law in administrative action. It also demonstrates the protection afforded to cultural and religious sites, particularly Muslim burial sites, and their significance in the context of South Africa's history of slavery and colonialism.