UNIT 1.3 CONTINUESESTOPPEL

Question 20:May estoppel be raised against an ADR’ve authority? Discuss, withreference to case law.

•What is estoppel?

Estoppel by representation is when a person is precluded from denying the truth of a representation previously made by him / her to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice.

A misrepresentation inducing the other party to act, is then regarded as the true state of affairs.

However, if a public authority acts by way of a misrepresentation, estoppel cannot be used against him because the misrepresentation cannot be held as true since such a state of affairs will then place the authority in a position where he is ultra vires.

Turquand rule = presumption of regularity

•Doctrine of estoppel is not applicable to ADR’ve bodies, since it would have the effect of granting powers to these bodies which they do not legally possess. (1)

•Where the legal effect of an ADR’ve act amounts to a purely internal irregularity, the courts have, by relying on the ‘similar’ Turquand rule of company law and the presumption that ADR’ve action is valid estopped ADR’ve bodies. (2)

• The reason that courts in some cases have allowed the doctrine where a purely internal irregularity was present as there was NO prejudice to the public interest

•Roodepoort Settlement Committee v Retief –

•an establishment committee tried to repudiate the sale of certain property on the basis that two of the committee members did not qualify as members at the time when it was decided to buy the property. (1).

•The court upheld the plea of estoppel on the basis that the irregularity was a purely internal formality and that the committee should itself have ensured that the formality was properly complied with. (1)

Also conceded that an individual who has been misled by misrepresentations regarding the power of the ADR’ve body, may suffer serious damage if estoppel is denied. (1)

In Trust Bank van Suid-Afrika v Eksteen, Hoexter AJ

•came to the conclusion that it may sometimes be in the “public interest” to apply estoppel to authoritative bodies on the following basis: •the doctrine of estoppel is fair, •it was developed in the public interest, •and when a representative relies on a statutory irregularity, •it is the duty of the courts to determine whether it will be •in the public interest to allow the party being represented to rely on estoppel. (2)

BEKKER v ADMINISTRATEUR, ORANJE – VRYSTAAT 1993 (1) SA 829 (O)

FACTS

•Plaintiff (B) claimed payment of money from (A) Defendant ito provisions of para 34(1)(c) of the conditions of service of the Southern Free State Development Board.

•(A) pleaded that abovementioned provision did not apply as (B) service had been terminated on the ground of redundancy ito s 15(13)(c)(i) of the Black Communities Development Act 4 of 1984.

•(B) had himself requested termination of his services ito s 15(13)(c) of the Act.

•It was contended on (B)’s behalf that (A) / legal predecessors created the impression towards him that para 34(1)(c) of the conditions of service applied to declaration of redundancy. Thus estoppel should be applied.

COURT

•Court in Trust Bank held:• It is a well know principle of our law that something that would by

direct action be unlawful• Cannot be made lawful by indirect action.

•A action that is ultra vires cannot be clothed with legality by applying the doctrine of estoppel.

•The action was dismissed with costs as the (B) knew his employment was being ended ito S 15(13) and he cannot now rely on the provisions of s 34.

DURBAN CITY COUNCIL v GLENMORE SUPERMARKET & CAFE

Where the allowance of a plea of estoppel would result in a party being prevented from performing a duty imposed on him by statute,

It is necessary to enquire whether the provision imposing the duty is peremptory and whether the duty is imposed in the public interest.

If it is, estoppel cannot succeed.

UNIT 2.1

CHAPTER 4 WORKBOOK

CHAPTER 4 OF THE TEXTBOOK p 93- p104

IMPORTANT QUESTIONS FOR EXAM:

QUESTION 23

QUESTION 24

QUESTION 25

•This rule means where an ADR’ve authority has been empowered to perform a particular act •and the performance is accompanied by the exercise of discretion, •then the function or task may not be delegated in the absence of express statutory authorisation or necessary implication. (l)

•An ADR’ve body may exercise the discretion personally and then instruct a subordinate body to implement the decision. (1)

•In the case of Attorney-General OFS v Cyril Anderson Investments •it was decided that a Prov Administrator may determine the conditions of town establishment and then leave it to the city council to implement the conditions. (1)

•An ADR’ve organ, may appoint someone such as an inspector to determine certain facts on its behalf, but it must still exercise the, discretionary power personally. (1)

Question 23: Discuss the rule delegatus delegare non potest

ATTORNEY –GENERAL, OFS v CYRIL ANDERSON INVESTMENTS (PTY) LTD 1965 (4) SA 628 (A)

The respondent was convicted of contravening certain conditions of title in respect of his property in terms of the Townships Ordinance.

He was the owner of a erf in a township in Welkom

He conducted business from the erf- unlawfully and wrongfully as this was not authorised by the conditions of the ordinance.

The conditions were approved by the Administrator and registered against the erven.

The main argument for the Respondent (relevant hereto) was that the condition providing the following:

that the erven shall be used solely or mainly for such special industrial purposes and for purposes incidental thereto as may be approved in writing by the council {D(a)}

Was ultra vires

LEGAL QUESTION

Is the condition D(a) ultra vires in so far as it puports to delegate powers to the Municipal Council of Welkom to authorise the special industrial purposes for which certain erven may be used

JUDGMENT

The Administrator may, under the powers conferred by the ordinance, impose conditions designed to restrict or control purposes for which erven may be used

The question is if the Administrator, when imposing such conditions is required to do so HIMSELF, or if he may delegate that power to local authority as he has done in this matter

The maxim delegatus delegare non potest is based upon the assumption that ,

Where the legislature has delegated powers and functions to a subordinate authority,

It intended that authority itself to exercise those powers and to perform those functions,

And not to delegate them to someone else,

And that the power delegated does not include the power to delegate.

Not every delegation of delegated powers is hit by the maxim, BUT

Only such delegations as are not

EXPRESSLY or by NECESSARY IMPLICATION,

Authorised by the delegated powers

NB

The power to impose conditions designed to restrict the purposes for which erven my be used is an implied power flowing from the wide powers of the Ordinance

Court cold find no authority in the Ordinance that the Administrator’s powers should be regarded as limited in the sense that

Administrator must himself determine and describe the restrictions.

The power to restrict the use of erven MUST include the power to delegate to some appropriate authority (such as the local authority)

The power to control or restrict the purposes for which erven may be used.

DECISION

The condition D(a) falls within the powers conferred upon the Administrator.

Thus it is NOT ultra vires

Appeal suceeds

In the case of BEF v CAPE TOWN MUNICIPALITY 1983 2 SA 387 (C)

The administrator delegated it’s powers in terms of the Townships Ordinance

To the city engineer

The engineer then delegated this power to assistant-quantity surveyor

THE COURT HELD

Delegation to the quantity surveyor was in conflict with the rule and thus unlawful.

Question 24: Discuss the delegation of powers within the relationship of deconcentration and decentralisation.

Give an example of both forms of delegation. (15)

•Purpose behind the delegation of power is to facilitate the division of labour within the administration. (1)

•Genrl rule: where a discretionary power has been granted to a particular body/official because of his/her specific knowledge or expertise, this power may not be delegated.(1)

DECONCENTRATION DECENTRALISATION

Delegation usually occurs in same hierarchical structure, e.g. delegation of power by Min – DG – Officials in dept

Delegans transfer certain powers/activities to independant body, e.g. Min appoint board to issue licenses

Characteristics :1.superior body may withdraw delegation at any time, but once the matter has been concluded, he cannot undo the execution of that particular function2.Delegans (superior body) may exercise various forms of control over the delegate, e.g. prescribing how it should be performed or requiring a report3.Subordinate body acts obo the delegans & function is regarded as being performed by delegans4.Authoritative bodies within the same hierarchy cannot become involved in a legal dispute with each other5.Solidarity exists within the same hierarchy, therefore accepted that superior body knows best & it may consider matters other than those considered by lower official

ADR’ve body has power of approval / disapproval over the action of the other, but former may not amend latter’s decision.

E.g. in University Pretoria v Min of Educ it was held that Min did not have power to appoint rector of University.

The power had to be approved by the minister, but he could not substitute his decision for that of the council.

Delegans exercises control over the decentralized body of law by way of appointment of the members of the board & by way of Appeal / Review

ADMINISTRATOR CAPE v ASSOCIATED BUILDINGS 1957 2 SA 317 (A)

The powers delegated to the Provincial Secretary under section the Ordinance,

Include that of taking decisions which the Administrator can take in respect of townships

And the Secretary can authorise the Under-Secretary to take certain decisions on his behalf

Example of:

DECONCENTRATION

UNIVERSITY OF PRETORIA v MINISTER OF EDUCATION 1948 4 SA 79 (T)

Act 13 of 1930 states

Rector of University of Pretoria shall be appointed by the University council

In the manner prescribed by the University Statutes framed under the act

Regulation 11 of the Statutes provided that the Rector shall be appointed by the council subject to the approval of the Minister of Education

JUDGMENT

The Minister does not have the authority to appoint the Rector of a university

He had to approve the decision of the council, BUT

Could not substitute his decision for that of the council

Question 25: Does the delegation of power by way of mandate amount to a contravention of the prohibition on subdelegation? Discuss. (5)

The general rule is that where a discretionary power is granted to an official because of his particular knowledge or expertise, he may not subdelegate this power to another. (1)

In the case of delegation by mandate the superior body takes the decision and then instructs a lower body or official to implement it. (1)

This simple form of delegation by way of instruction does not contravene the prohibition on subdelegation and usually occurs within the same hierarchy such as a state department (2)

Question 28 :

Does ADR’ve law apply to the actions of the following bodies? Discuss the question with reference to case law:

(a) Voluntary associations such as jockey clubs and rugby clubs?

CARR V JOCKEY CLUB 1976 2 SA 717

(b) The Health Professions Council of SA?

SA MEDCAIL and DENTAL COUNCIL v MCLOUGHLIN 1948 2 SA 255 (A)

(c) The Johannesburg Stock Exchange?

DAWNLAAN BELEGGINGS v JOHANNESBURG STOCK EXCHANGE 1983 2 SA 344 (W)

Jockey club Health Prof Council JSE

Although a jockey club is a voluntary association - not an ADR’ve body as it is not created by way of statute(1)and does not exercise state authority. (1)

The basis of the relationship between a jockey and a jockey club is private law. (1)

Despite this private law basis, the courts will apply the rules of ADR’ve law by way of analogy where the internal hierarchy of authority is involved, for example where disciplinary action is instituted against a jockey. (1)Carr v Jockey Club. (1)

In the case of Middelburg Rugbyklub v Suid-Oos Transvaalse Rugby Unie (1) the court ruled that although a rugby club is not an ADR’ve body, the rules of ADR’ve law apply since the club has its own internal hierarchy and is in a relationship of authority towards its members. (1)

The HPCSA is a body, instituted by legislation and the minister exercises control over its powers and functions. (l)The board does not fall into a specific ADR’ve hierarchy but does deliver a public service. (1)In Directory Advertising Cost Cutters v Min for Posts, Telecommunications and Broadcasting the board is not an authoritative body. (1)However, the board may institute disciplinary steps against its members and in such a case the court requires that the rules of ADR’ve law be applied.More specifically the rules of natural justice must be applied to the actions of the board.

The question whether the JSE is a statu tory body was examined in Dawnlaan Beleggings v Johannesburg Stock Exchange. (I)It was argued that although the stock exchange is regu lated by statute, it is not a statutory body since its relationship with listed companies and shareholders is contractual. (1)However, the court found that although the stock exchange is, technically speak ing, not a statutory body, it is subject to the requirements of public law(1)because it is under a statutory obligation to act in the public interest. (1)