Plover's Nest Investments (Pty) Ltd v De Haan

The case concerned the approval by Bitou Local Municipality of building plans submitted by Plover's Nest Investments for extensions onto an area over which a neighbouring property (owned by De Haan) had a servitude. In 1994, Plover's Nest and its neighbours applied to subdivide and consolidate certain erven (3983-3986) in Solar Beach, Plettenberg Bay. On 30 January 1995, the municipal council resolved to approve the consolidation and subdivision subject to six conditions, including condition (v) that "at no time in future will the servitude area be used for building purposes." However, when the municipal official Geyer communicated the council's resolution to Plover's Nest on 10 February 1995, he only mentioned two of the six conditions in his letter, omitting the building prohibition. Plover's Nest proceeded to develop the property over subsequent years, unaware of the restrictive conditions. In 2012-2013, Plover's Nest applied for and received approval for building extensions, which included building in the servitude area. De Haan discovered this in April 2013 and sought to review and set aside the municipality's approval, arguing it violated the servitude registered in his favour (which provided pedestrian access to the beach and views of the sea) and the municipal council's own conditions.

• Whether the failure by a municipal official to correctly communicate a municipal council resolution constituted administrative action that could override the council's actual decision
• Whether a clerical error in communicating a decision amounted to a reviewable administrative decision
• Whether conditions imposed by a municipal council but not communicated to affected property owners remained binding and operative
• Whether the municipality's 2013 approval of building plans was unlawful given the 1995 council resolution prohibiting building in the servitude area
• Whether Plover's Nest had misled the municipality by not disclosing servitude restrictions in the title deed

The appeal was dismissed with costs. The Western Cape High Court's order reviewing and setting aside the municipality's approval of the building plans dated August 2012 was upheld, though on different grounds than those relied upon by the court a quo.

The ratio decidendi is that a clerical error by a municipal official in communicating a municipal council resolution does not constitute administrative action capable of review under PAJA or otherwise. Where an official is not vested with decision-making power but merely has a duty to notify parties of a council decision, the act of writing a notification letter is a clerical act that follows upon a decision rather than being a decision itself. Such clerical errors cannot be imputed to the council or elevated to substitute for the council's actual resolution. The valid and binding decision is the resolution actually taken by the empowered body (the municipal council), not the defective communication of that resolution by an official without decision-making authority. Therefore, a municipal council resolution remains operative and binding on the municipality even when incorrectly communicated to affected parties.

The court made obiter observations acknowledging that there may be merit in Plover's Nest's argument that it seemed unfair to sterilize such a large servitude area (661 square metres, equivalent to a full front-row stand) and that Plover's Nest had been paying rates on full front-stand value while benefiting neighbours paid back-stand rates. The court noted that the Land Use Planning Ordinance provides alternative remedies for Plover's Nest, including a section 30 amendment to the subdivision and a section 40 rectification of contraventions. The court also suggested that Plover's Nest may have claims for damages against the municipality for the negligent conduct of its official, and that given it only learned of the full decision 19 years after it was made, it might still be able to apply to set the decision aside. These comments suggest potential avenues for Plover's Nest to pursue relief despite losing the appeal.

This case is significant for clarifying the distinction between administrative action and clerical or administrative errors in South African administrative law. It established that not every act of an official amounts to reviewable administrative action under PAJA. The case reinforces the principle that clerical errors in communicating decisions do not constitute administrative action that can override or substitute for the actual decision made by the empowered decision-maker. It confirms that municipal council resolutions remain valid and binding even when incorrectly communicated by officials, and that municipalities are bound by their own prior decisions unless those decisions are set aside through proper legal processes. The judgment also reaffirms the Oudekraal principle that defective administrative decisions remain valid until set aside by judicial review. The case is important for municipal law practitioners and highlights the duty of municipalities to comply with and enforce their own decisions under section 39(1) of the Land Use Planning Ordinance 15 of 1985.