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[2015] ZAWCHC 183
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Langebaan Ratespayers & Residents Association v Berrydust 69 CC and Another (15849/2015) [2015] ZAWCHC 183 (19 November 2015)
IN THE
HIGH COURT OF SOUTH AFRICA
(
WESTERN
CAPE DIVISION, CAPE TOWN
)
CASE
NUMBER
: 15849/2015
DATE
:19
NOVEMBER 2015
In the matter between:
LANGEBAAN RATESPAYERS
&
RESIDENTS
ASSOCIATION
Applicant
and
BERRYDUST
69 CC
1
st
Respondent
SALDANHA
BAY
MUNICIPALITY
2
nd
Respondent
EX
TEMPORE JUDGMENT
ROGERS
J
:
[1]
This is an application in which the applicant, a ratepayers and
residents association (‘the LRRA’), seeks
a declaration
that a rezoning granted in respect of property owned by the first
respondent on 12 July 2012 lapsed two years later,
so that with
effect from 13 July 2014 the zoning of the property was restored to
its original zoning, being Residential Zone 2
rather than the zoning
granted on 12 July 2012, namely, Business Zone 1.
[2]
The application is opposed by the first respondent but not by the
second respondent which is the municipality. Mr van
der Meer appears
for the applicant and Mr Kulemkampf for the first respondent. There
are three points raised in this case, firstly
whether the application
has been duly authorised; secondly, the date from which the two year
lapsing period is to be reckoned;
and thirdly whether, assuming the
applicant’s view of the two year period is right, the first
respondent actually utilised
the property within the two year period
in a way which prevented the lapsing from coming about.
[3]
I deal firstly with the question of authority. Initially the first
respondent challenged the authority of the applicant’s
deponent, Mr Kotze, by way of notice in terms of rule 35(12) and then
in the answering affidavit. In the heads of argument which
were filed
on the applicant’s behalf on 22 October 2015, the point was
made that the first respondent’s remedy, if
it considered the
application not to be authorised, was to issue a notice in terms of
rule 7(1). That view appears to me to be
correct and to be in
accordance with the two leading authorities on the matter, being
Ganes v Telecon Namibia Limited
2004 (3) SA 615
(SCA) and
Unlawful
Occupiers School Site v City of Johannesburg
2005 (4) SA 199
(SCA) paras 14 to 16.
[4]
No doubt alerted to the point, the first respondent belatedly served
a notice in terms of rule 7 disputing the authority
of the
applicant’s attorney to act on behalf of the applicant. This
notice was served out of time but the applicant, instead
of objecting
to the notice, chose to reply to it, attaching a resolution of the
applicant dated 18 April 2015. Mr Kulemkampf for
the first respondent
submitted that the resolution did not authorise these proceedings and
that Mr Kotze in the circumstances was
not authorised to instruct the
applicant’s attorneys to institute the application.
[5]
The resolution confirms and ratifies an earlier resolution of the
applicant dated 12 April 2014 which was in the following
terms: that
the LRRA declares that it shall institute legal proceedings against
the Saldanha Bay Municipality and the owner of
Erf 442 Langebaan on
behalf of the surrounding owners to overturn the rezoning of Erf 442
Langebaan from Residential to Business
Zone 1. The resolution also
recorded that Mr Kotze would handle the matter and had authority to
sign all necessary documentation.
[6]
Mr Kulemkampf pointed out that the resolution to this effect, which
was repeated on 14 February 2015, was one directed
at review
proceedings to set aside the rezoning of the property. As at 12 April
2014, when the initial resolution was taken, the
two year period
which the first respondent had to utilise the rezoning had on
reckoning not expired. This confirms that at that
stage the applicant
must have had in mind a review application rather than any
proceedings relating to the supposed lapsing of
the rezoning.
[7]
When the resolution was confirmed on 14 February 2015, it still seems
to have been the case that the applicant was intent
on a review. The
evidence does not show that as at 14 February 2015 the applicant had
yet come to the view that the rezoning had
lapsed. I say this because
as late as 23 April 2015 the applicant’s attorney wrote to
auctioneers who had been mandated to
sell the property, advising that
the applicant intended to institute review proceedings to overturn
the rezoning. The applicant’s
attorney put the auctioneers on
notice that, if the review succeeded, both the seller and potential
purchaser of the property would
be at risk. Accordingly when the
resolution I have mentioned was confirmed on a further occasion,
namely 18 April 2015, the applicant
still appears to have had in mind
review proceedings.
[8]
The conclusion is thus inescapable that it was only subsequent to the
most recent resolution that the applicant, no doubt
after receiving
legal advice, came to the view that a review was not necessary
because the rezoning had lapsed. While I can understand
that Mr Kotze
may have felt that he still had authority to proceed with a
declaration to establish the lapsing, the resolution
he had did not
in fact cover this. One cannot be certain that the governing body of
the LRRA would have held the same view as Mr
Kotze regarding the
lapsing of the rezoning.
[9]
While one does not wish to be unduly technical on a question of
authority, the applicant seems to me to have had sufficient
time to
put its house in order. As I have said, a challenge to Mr Kotze’s
authority was already foreshadowed when a rule
35(12) notice was
delivered on 31 August 2015.
[10]
I thus consider that I am bound to conclude that the present
application is not duly authorised by the resolution which
the
applicant has put up in response to the rule 7(1) notice. If that is
so, if follows that Mr Kotze did not have authority to
instruct the
applicant’s present attorneys to institute the proceedings on
behalf of the LRRA.
[11]
However I would not wish to decide the matter solely on a technical
point and, since I have reached a conclusion on the
other two issues,
I intend to state my opinion on them.
[12]
I deal firstly with the question of the computation of the two year
period. The following very brief background is necessary
to
understand the point. The municipality granted the first respondent’s
application for rezoning on 12 July 2012. The applicant
and other
interested parties had objected to the rezoning and subsequently
pursued an appeal to the MEC in terms of s 44 of
the Land Use
Planning Ordinance 15 of 1985 (‘LUPO’). On 24 October
2013 the MEC dismissed the appeal. The appeal outcome
was notified to
the applicant in a letter dated 8 November 2013. On 13 November 2013
and pursuant to the appeal outcome the municipality
issued a zoning
certificate confirming the new zoning of the property.
[13]
Section 16(2) of LUPO provides that a rezoning granted in terms of
s 16(1) shall lapse
inter alia
if the land is not, within a period of two years after the date on
which the application for rezoning was granted, utilised as
permitted
in terms of the zoning granted, unless the administrator (ie the MEC)
or council extends the said period of two years.
The competing
arguments in this case are (i) that the two year period runs
from 12 July 2012, being the date on which the
municipality granted
the rezoning (that is the applicant’s argument) and that would
take one to 12 July 2014;.(ii) that the
two year period runs from the
date on which the MEC dismissed the appeal, namely 24 October 2013,
which would take one to 24 October
2015 (the first respondent’s
argument). The municipality in correspondence took the view that the
two year period ran from
the notification of the outcome, namely 8
November 2013, which would take one to 8 November 2015. Nothing turns
for present purposes
on whether the two year period would run from 24
October 2013 or 8 November 2013. The critical question is whether the
trigger
date is the date of the municipality’s original
decision or the date of the appeal decision.
[14]
Reading section 16 on its own, one might conclude that the relevant
period is the date on which the council granted the
rezoning, namely
12 July 2012. However LUPO must be read as a whole. Section 44 makes
provision for appeals
inter alia
in respect of rezoning decisions. Section 44 was declared
unconstitutional in the case of
Minister
of Local Government Environmental Affairs and Development Planning
Western Cape v Habitat Council and Others
2014 (4) SA 437
(CC). This was on the basis that the conferring of an
appellate power on the provincial sphere of government was an
unconstitutional
intrusion into a municipal competence. However
the said order of invalidity was not made retrospective and thus did
not affect
appeals which had been lodged prior to 14 April 2014,
being the date of the Constitutional Court’s order. Accordingly
the
present case is governed
inter alia
by s 44 of LUPO.
[15]
In terms of s 44(1)(a) an applicant for rezoning may appeal the
refusal of a rezoning and a person who has objected
to the granting
of a rezoning may appeal against the granting of the rezoning.
Section 44(2) provides that the administrator, which
can now be taken
as a reference to the relevant MEC, may, after consultation with the
council concerned, in his discretion dismiss
an appeal contemplated
inter alia
in s 44(1)(a) or uphold it wholly or in part or make a decision
in relation thereto which the council concerned could have
made.
[16]
Sections 44(3)(a) and (c) are relevant. They provide that, for
purposes of LUPO:
“
(a) an
application referred to in subsection 1(a) shall be deemed to have
been granted or conditionally granted or refused
by the council
concerned in accordance with action taken by the administrator under
the provisions of subsection 2; and
(c) a
decision made by the administrator under the provisions of subsection
2 shall be deemed to have been made by the council concerned.”
[17]
The argument by Mr Kulemkampf for the first respondent is that the
MEC’s decision, whatever it is, becomes a deemed
decision of
the council and that the deemed council decision, having the same
date as the date of the MEC’s appeal decision,
fixes the date
from which the two year period referred to in s 16(2) runs. Mr
van der Meer argued against this that, while
this argument might be
correct where the MEC replaces a negative decision with a positive
one, it cannot apply where all he does
is dismiss an appeal, which is
what he did in the present case.
[18]
When interpreting s 44(3) it is legitimate to take into account
the implications of the one interpretation over
the other. Section
16(2) is clearly intended to give the successful applicant an
effective period of two years to start using the
property in
accordance with the rezoning. If there is an appeal against the
rezoning, one would not expect the successful applicant
to be
permitted to start utilising his rights until the appeal has been
determined, since otherwise by the time the appeal is decided
one
might be faced with a
fait accompli
which cannot be reversed.
[19]
To allow an applicant to start using his rights in the face of an
appeal would thus be to render the appeal process largely
nugatory.
This is confirmed by regulation 20 of the regulations made in
terms of s 47(1) of LUPO governing appeals. Regulation
20 reads
as follows:
“
Where
a council grants an application in respect of which objections have
been received, it shall point out to the applicant not
to act on the
said approval until such time as it is confirmed in writing that no
appeal has been received, provided that where
an appeal is received
the said approval shall be suspended.”
[20]
This means that where there is an appeal the applicant cannot act on
the approval he has received. There was some suggestion
from Mr van
der Meer in argument that regulation 20 could not override LUPO.
However the regulations stand. There has been no review
directed at
regulation 20. Accordingly I cannot proceed on the supposition that
regulation 20 is
ultra vires
.
The regulations stand until set aside on review.
[21]
In any event I do not doubt that the regulation I have quoted is
within the MEC’s powers under s 47(1) of
LUPO. One knows
that s 44 makes provision for appeals against rezoning
decisions. Section 47(1) empowers the MEC to make regulations
on
matters which shall or may be prescribed in terms of the ordinance
and “generally relating to all matters which he deems
necessary
or expedient to prescribe in order to achieve the purposes of this
Ordinance”. For the reasons I have already indicated,
it is
necessary or at least expedient, in order to give effect both to the
two year period in s 16 and the rights of appeal
conferred by
s 44, that the entitlement of a successful applicant to give
effect to a rezoning should be suspended until the
appeal outcome is
known.
[22]
Accordingly, and subject to one matter I shall mention presently, the
effect of Mr van der Meer’s suggested interpretation
of s 44
might, where a successful rezoning is unsuccessfully appealed against
by an objector, leave the applicant with considerably
less than two
years in which to act on the rezoning. Indeed, in the present case,
if the rezoning were to have lapsed on 13 July
2014, the applicant
would have had just under nine months from the date of the appeal
decision in October 2013 to act on the rezoning
before it lapsed. One
knows from experience that appeals against more controversial and
substantial rezoning decisions can take
even longer than two years.
[23]
Mr van der Meer argued that the absurdities or injustice which might
arise, if the two year period were in circumstances
such as the
present case to run from the date of the council’s decision,
were sufficiently ameliorated by the power given
to the council in
s 16(2) to extend the two year period. He submitted that if
there was a pending appeal the council could
exercise the power to
extend the two year period and there would be little reason for the
council not to do so.
[24]
I do not think, however, that the power of extension was intended to
deal with a situation where an applicant’s
rights have been
suspended by virtue of a pending appeal. A s 16(2) extension is
intended to give the recipient an effective
period during which he
may exercise his rights. Yet if the matter were subject to a pending
appeal, the extension would inevitably
involve at least some future
period in which the applicant would still not be able to exercise his
rights.
[25]
I find the reliance on the right of extension unpalatable for two
further reasons: (i) The first is that it would
require a
council to consider an extension application in circumstances where
it might prove to be academic, for example because
the MEC eventually
upholds an appeal and reverses the rezoning. (ii) Secondly, in
order to reach a rational view on a period
of extension the council
would need to know what further time the applicant needs in order to
utilise his rights. However
the council, on Mr van der Meer’s
hypothesis, would not know when the appeal would be decided and
therefore could not rationally
fix the period of extension.
[26]
In my view, therefore, the preferable interpretation of s 44 is
that it is intended to give the character of the
MEC’s appeal
decision, whatever it is, the deeming effect of being a decision by
the council, and that deemed decision by
the council then triggers
the two year period referred to in s 16(2).
[27]
In that regard it appears to me that s 44(3) does not justify a
distinction between cases where the MEC upholds
an appeal and where
he dismisses it. On the contrary, s 44(2) describes one of the
decisions which the MEC may take as being
to dismiss an appeal, as
would be the case for example where an appeal by an objector is
dismissed. Section 44(3)(a) then provides
in general terms, and not
only in specific cases, that an application referred to in s 44(1)(a)
shall be deemed to have been
granted or conditionally granted or
refused by the council in accordance with the action taken by the
MEC. An application
referred to in s 44(1)(a) includes an
application which was initially granted by the council itself but in
respect of which
there has been an appeal by an objector. Such an
application, too, is deemed to have been granted by the council in
accordance
with the action taken by the MEC. I have no difficulty in
saying that, where the MEC dismisses an appeal by an objector, the
action
is consistent with confirming the rezoning so that that is
then deemed to be an application granted by the council. Similarly in
ss 44(3)(c) there is a general provision, without distinction as
to the nature of the appeal, that a decision by the MEC under
s 44(2)
shall be deemed to have been made by the council concerned. In one of
the cases covered by s 44(2), namely the
dismissal of an appeal
by an objector, the decision which must be deemed to have been made
by the council can only mean a deemed
decision to grant the rezoning.
[28]
For those reasons I consider that the two year period in the
circumstances of this case ran either from 24 October 2013
or from 8
November 2013. On either of those views it is common cause that on 17
August 2015 the first respondent applied for an
extension of the two
year period and that this extension was granted on 26 August 2015.
All of this, on my interpretation of s 44,
occurred prior to the
lapsing of the initial two year period (which would only have
occurred in October or November 2015).
[29]
That conclusion makes it strictly unnecessary to decide the third
point in the case, namely whether – if the
applicant’s
view had been correct – there was actual use of the property by
the first respondent within the two year
period but I shall deal
briefly with it. Section 16(2) ordains a certain result, namely
lapsing, in the absence of utilisation.
It thus appears to me that it
is necessary for the successful applicant, if it is placed in
dispute, to allege facts and discharge
the burden of proving that
there was utilisation in terms of the zoning.
[30] In
the present case the rezoning included as a condition that it was
restricted to use for “professional offices
only”. In
terms of the Municipality’s zoning scheme, the term
“professional usage” is defined as meaning
“
such
type of use as is normally and reasonably associated with
professional people such as doctors, dentists, architects, engineers
and town planners where the rendering of a service as against
carrying on of a business is one of the distinguishing factors.
[31]
The first respondent’s deponent, Dr Hoffman, is also the chief
executive officer of an entity called Sheppard Medical
CC which is
engaged, according to its website, in the manufacture and
distribution of surgical products. A letter written by Dr
Hoffman
indicates that the business premises of Sheppard Medical are located
in Bellville. He made a very terse statement in paragraph
30 of the
answering affidavit that Sheppard Medical utilised a portion of the
Langebaan premises as from June 2014, in proof of
which he attached a
photograph showing a small sign containing the words “Sheppard
Medical” attached to the wall of
the property. Although Dr
Hoffman is an ear, nose and throat specialist, he apparently does not
currently conduct a medical practice,
his business being conducted
through Sheppard Medical.
[32]
I do not see how the business of manufacturing and distributing
surgical products can be regarded as a professional service
of the
kind contemplated in the Langebaan zoning scheme, even if it be
supposed that from time to time Dr Hoffman finds himself
in Langebaan
and there speaks telephonically to customers, giving ancillary advice
relating to the products distributed by Sheppard
Medical. That would
not constitute the rendering of professional services or the conduct
of a professional practice of the kind
that is contemplated by the
rezoning.
[33]
I should simply add that I am extremely sceptical about the extent of
any such use, which seems rather contrived, as
is apparent from the
extremely brief evidence given in that regard in the answering
affidavit. If it had been necessary to decide
the point, I would have
found that the first respondent had altogether failed to show that it
had utilised the property in accordance
with the rezoning. However
for the other two reasons I have already given, my conclusion is that
the application must fail.
[34]
In regard to the costs reserved on 7 September 2015, the date on
which this matter was originally set down in Third Division,
it
appears to me that those must be costs in the cause and I think both
sides were agreed that that would be the correct order.
On 7
September 2015 the matter was postponed to 5 November 2015 for
hearing on the semi-urgent roll. On that date the matter came
before
Van Staden AJ but he was not able to hear it because he knew Dr
Hoffman. The matter was then postponed to today. Mr van
der Meer
submitted that in those circumstances the parties should bear their
own costs while Mr Kulemkampf argued that costs were
incurred and
should be costs in the cause. It seems to me that there could not
have been much by way of wasted costs on 5 November
2015. Both sides
have been represented, and very ably represented if I may say, by
attorneys. They would not have had to pay fees
for reserving counsel.
Given that the further postponement was not attributable to any fault
on either side, I think justice would
be better served by ordering
that the parties bear their own costs in respect of that date.
[35]
I therefore make the following order:
THE
APPLICATION IS DISMISSED WITH COSTS, INCLUDING THE COSTS OF THE
POSTPONEMENT OF 7 SEPTEMBER 2015 BUT EXCLUDING THE COSTS OF
5
NOVEMBER 2015 IN RESPECT WHEREOF THE PARTIES SHALL BEAR THEIR OWN
COSTS.
__________________
ROGERS J