Choisy-Le-Roi (Proprietary) Limited v Municipality of Stellenbosch and Another (7157/2023) [2025] ZAWCHC 339 (11 August 2025)

Case Note

Choisy-Le-Roi (Proprietary) Limited v The Municipality of Stellenbosch and Another
Case No 7157/2023, High Court of South Africa (Western Cape Division, Cape Town)
11 August 2025

Reportability

This judgment is reportable because it deals with the still-evolving interface between municipal planning instruments and administrative-law review under the Promotion of Administrative Justice Act 3 of 2000. The court clarifies the legal status of a gazetted Municipal Spatial Development Framework and confirms that local authorities are bound by the officially promulgated text when engaging with the public. The decision is significant for municipalities country-wide because it reiterates that reliance on unofficial “corrected” versions of spatial frameworks constitutes an error of law capable of vitiating administrative action.

Cases Cited

Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others [2010] ZACC 11; 2010 (6) SA 182 (CC)

Choisy-Le-Roi Owners (Pty) Ltd v The Municipality of Stellenbosch and Another (10240/2020) [2022] ZAWCHC 71; 2022 (5) SA 461 (WCC) (11 May 2022)

Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 (16 March 2012); [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA)

University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13 (11 June 2021); 2021 (6) SA 1 (CC)

Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA 99 (9 July 2021); 2022 (1) SA 100 (SCA)

Legislation Cited

Constitution of the Republic of South Africa, Act 108 of 1996

Promotion of Administrative Justice Act 3 of 2000

Spatial Planning and Land Use Management Act 16 of 2013

Western Cape Land Use Planning Act 3 of 2014

Stellenbosch Municipal Spatial Development Framework (2019, as gazetted)

Stellenbosch Municipal Land Use Planning By-law (2023)

Rules of Court Cited

None expressly cited in the judgment.

HEADNOTE

Summary

The applicant sought judicial review, for a second time, of the Stellenbosch Appeal Authority’s decision upholding the refusal of its 2017 application to rezone an erf in Technopark from Special Zone 1 (Technology or Science Park) to Specific Business that would allow a mixed-use development incorporating eighteen residential duplexes. The court held that the Appeal Authority had relied on a “corrected” version of the 2019 Municipal Spatial Development Framework rather than the version officially published in the Provincial Gazette. Because the gazetted text constitutes the binding spatial planning instrument, the Authority’s reliance on an extraneous document amounted to a material error of law under PAJA.

Key Issues

Whether a municipality may interpret and apply a spatial development framework by reference to an unpublished, internally “corrected” version.
Whether such reliance renders the ensuing decision reviewable under section 6 of PAJA.
What remedy is appropriate when an appeal decision is set aside for the second time.

Held

The court set aside the Appeal Authority’s decision of 9 November 2022, found that the error of law vitiated the outcome, and remitted the applicant’s appeal for fresh consideration in accordance with the gazetted MSDF. Costs were awarded against the respondents.

THE FACTS

Choisy-Le-Roi (Pty) Ltd owns Erf 1[…] in Technopark, Stellenbosch. In 2017 it applied to rezone the property from a technology-park use to a mixed-use configuration comprising retail outlets on the ground floor and eighteen duplex apartments above, topped by a private roof garden. The Stellenbosch Municipal Planning Tribunal refused the application in July 2018, citing the Council’s policy that Technopark remain an innovation hub free of residential uses.

An internal appeal to the Executive Mayor, acting as Appeal Authority, was dismissed on 3 February 2020. That decision was reviewed and set aside in Choisy-Le-Roi Owners (Pty) Ltd v Municipality of Stellenbosch (2022) because the Mayor had interpreted the 2019 MSDF by referring to earlier drafts rather than the gazetted text.

On reconsideration the Appeal Authority reached the same conclusion on 9 November 2022, this time relying on a “corrected” version of the 2019 MSDF said to reflect typographical amendments. The applicant contended that the Authority had again misdirected itself by ignoring the binding gazetted document.

THE ISSUES

First, the court had to decide whether the Appeal Authority’s reliance on an unpublished corrected MSDF constituted an error of law reviewable under section 6(2)(d) and (h) of PAJA. Second, it had to determine whether the refusal decision should be set aside or whether a substitution order was justified. Third, the court had to consider the incidence of costs where the municipality persisted in the same error after an earlier judgment.

ANALYSIS

In three inter-related paragraphs, Bhoopchand AJ emphasised that municipal spatial frameworks are promulgated precisely so that members of the public can rely on what appears in the Gazette. A municipality is not at liberty to re-write the text retrospectively and then apply that unofficial version to private parties. To do so undermines legal certainty and offends section 20 of SPLUMA, which mandates publication.

The judgment draws on constitutional jurisprudence about statutory interpretation—particularly Endumeni—to affirm that the meaning of a planning instrument must be gathered from its language, read in context, but always anchored in the text actually promulgated. Reliance on a different, “corrected” version therefore amounts to having regard to an irrelevant consideration and ignoring a relevant one, squarely engaging section 6(2)(e)(iii) of PAJA.

Finally, the court addressed the question of remedy. Because the Authority is the specialised local decision-maker and because the rezoning merits had yet to be assessed against the proper MSDF, the matter was remitted. A substitution order was inappropriate: substantial discretion still vests in the municipal organs, and the court lacked a fully developed record on the substantive planning merits.

REMEDY

The Appeal Authority’s decision of 9 November 2022 was reviewed and set aside. The appeal against the Municipal Planning Tribunal’s refusal was remitted to the Appeal Authority for fresh determination in accordance with the gazetted 2019 MSDF. The municipality and its Appeal Authority were ordered, jointly and severally, to pay the applicant’s costs.

LEGAL PRINCIPLES

A gazetted Municipal Spatial Development Framework has binding force on the municipality and the public; an unpublished or internally amended version has no legal status.

Administrative decisions founded on an incorrect legal instrument are vitiated by an error of law, rendering them reviewable under section 6 of PAJA.

When a specialised administrative body errs, a reviewing court will ordinarily remit rather than substitute, unless the interests of justice and the record justify final relief.