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[2016] ZAWCHC 12
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Theron obo Wonderland Educare v City of Cape Town and Others (15000/2013) [2016] ZAWCHC 12 (19 February 2016)
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THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 15000/2013
DATE: 19 FEBRUARY 2016
In the matter between:
MARIA ELIZABETH THERON obo
WONDERLAND EDUCARE
..................................
Applicant
And
THE CITY OF CAPE
TOWN
........................................................................................
1st
Respondent
DIRECTOR: PLANNING AND BUILDING
DEVELOPMENT
MANAGEMENT
............................................................................
2nd
Respondent
GOODWOOD DISTRICT
MANAGER
.......................................................................
3rd
Respondent
SECTION HEAD: LAND USE
MANAGEMENT
......................................................
4th
Respondent
Coram: KOEN AJ
Heard: 15 February 2016
Delivered: 19 February 2016
JUDGMENT
KOEN AJ
[1] This is an application for judicial
review in terms of the Promotion of Administrative Justice Act, Act 2
of 2000 (“PAJA”).
The review is in respect of a decision
purportedly taken by the second respondent on 14 June 2013 refusing
an appeal by the applicant
in terms of section 62 of the Local
Government: Municipal Systems Act 32 of 2000 ("the Systems
Act").
[2] The applicant launched the appeal
as a result of a refusal by the first respondent (“the City”)
to approve an application
in terms of section 15(1) of the Land Use
Planning Ordinance 15 of 1985 (“Lupo”), for a building
line departure, and
Regulation 25 of the Land Use Planning
Regulations (“the Regulations”), for a consent use (“the
consent use and
departure application”).
[3] The consent use and departure
application sought permission for the applicant to operate a large
scale crèche facility
(“the facility”) at a
residential property located at [6……] [M……]
Road, [G…….],
Cape Town (“the property”).
The relief which the applicant seeks entails the substitution of the
City’s decision
“with a determination that Applicant’s
application for consent use and regulation departure in respect of
erf [8……..],
[G…….], be approved”.
[4] The City has, in its turn, launched
a conditional counter application in terms of which, in the event
that the applicant’s
review application is unsuccessful, an
interdict is granted (subject to a rule nisi) compelling the
applicant to cease operation
of the facility.
[5] After deliberating on the
applicant’s consent use and departure application the relevant
sub-council refused it on 2 April
2012. The reasons for this refusal
were, in summary, as follows: the proposed large-scale crèche
was in conflict with the
City’s Early Childhood Development
Policy, particularly in terms of location criteria and parking
facilities; the crèche
was considered to have an adverse
impact particularly in terms of traffic generation and noise; the use
of the property as a crèche
would conflict with the existing
residential character of the neighbourhood; and the departure would
not comply with the zoning
scheme regulations insofar as setbacks
from boundaries were concerned.
[6] On 21 September 2012 the applicant
appealed against the sub-council’s decision in terms of s 62 of
Systems Act.
[7] The appeal came to be heard on 14
June 2013. Mrs Theron appeared on behalf of the applicant before the
City’s Planning
and General Appeals Committee (“the
Appeals committee”) which was comprised of four members of the
council. Councillor
Herron was the acting chairperson of the Appeals
committee. The other three committee members were Councillor Gqola,
and Aldermen
Bredenhand and Nieuwoudt.
[8] The transcript reflects that, after
hearing submissions from Mrs Theron and Alderman Justus, the
chairperson of the committee
stated that “we will now
deliberate and make a decision Mrs Theron and you will get a formal
response within two weeks”.
The transcript reflects, further,
that the recording then stopped and was resumed. On resumption it
appears that there was discussion
between the committee members. The
transcript concludes as follows: “CHAIRPERSON: … So it
is two dismiss and two
uphold. END OF RECORDING.”
[9] A minute which was subsequently
produced records something quite different. The relevant portion
states that:
“In the event of an equality of
votes (2 in favour and 2 against) it was RESOLVED that:
(a) The appeal submitted by the
appellant, Ms M E Theron, BE DISMISSED for the following reasons…”.
[10] It is apparent that there was an
equality of votes in the Appeals committee. How, then, can it be said
that this meant that
the committee dismissed the appeal? The
answering affidavit contained the following submission: “It is
correct that the Planning
Appeals Committee was divided on the
outcome of the appeal, and there was an equality of votes. In these
circumstances the decision
of the sub-council stood, (I am advised
that the position to be adopted by a chairperson in an instance such
as this is that he
or she must declare the motion (or in this
instance, the appeal) as not carried)”. This submission was
based on the common
law applicable to meetings, so it was submitted
on behalf of the respondents in argument.
[11] There are three difficulties with
this proposition. Firstly, it is not borne out by the facts. The
transcript does not say
that the members of the Appeal committee
decided to dismiss the appeal, or that the chairperson “declared
the appeal not
carried”. On the contrary, the transcript does
not evidence the taking of any decision, notwithstanding that the
chairperson
said a decision would be taken.
[12] Secondly, who the author of the
minute was and the process by which it came to reflect that a
“resolution” to dismiss
the appeal was taken by the
Appeal committee is not explained, at least not by any of the members
of the Appeal committee. The
minute simply cannot be reconciled with
the transcript of what transpired at the hearing.
[13] Thirdly, and in any event, I
cannot see that the law applicable to meetings is of application to
appeals under section 62 of
the Systems Act. Section 62 of the
Systems Act governs appeals, not meetings. They are not the same. An
appeal under section 62
of the Systems Act is an appeal in the wide
sense, involving “a rehearing related to the limited issue of
whether the party
appealing should have been successful” (see
Groenewald v M5 Developments
2010 (5) SA 82
(SCA) at paragraph [25]).
In terms of section 62 (3) of the Systems Act the “appeal
authority must consider the appeal, and
confirm, vary or revoke the
decision…” which is the subject of the appeal. The
Appeals committee exercises a power
conferred by statute. It follows
that the members of the appeal committee are required to consider the
facts of the appeal, apply
their minds and take a decision, not vote,
upon the merits of the appeal. There is no decision, as I see it, if
the members of
the Appeals committee are evenly split on the question
before them.
[14] A meeting is a different thing. A
person exercising a vote at a meeting does not usually do so in the
exercise of a power conferred
by statute. Such a person is in the
normal course entitled to exercise a vote which advances his or her
self-interest. Unlike the
decision of an Appeal committee, or any
other kind of administrative action, a vote at a meeting need not be
exercised in a rational,
or fair, manner.
[15] For these reasons, I do not see
how one can equate a motion under consideration at a meeting to an
appeal under section 62
of the Systems Act. The common law rule
devised to break a deadlock in the case of a meeting at which there
is a parity of votes
cannot be imported into our system of
administrative law. Entirely different considerations apply, in my
view.
[16] There is nothing in the Systems
Act which indicates what is to happen in the event that an equal
number of members of an Appeal
committee confirm, and revoke, the
decision which is the subject of the appeal. In the absence of a law
governing the manner of
the taking of a decision of an Appeals
committee it seems to me that one must be guided by principle. In
this respect the right
to administrative action which is lawful,
reasonable and procedurally fair, guaranteed by section 33 of the
Constitution, and section
3 (1) of PAJA, are of application. It can
hardly be reasonable or fair if a deadlock at an Appeal committee
hearing meant that
the appeal under consideration was dismissed. If
anything that is a purely arbitrary resolution to the problem, much
like tossing
a coin.
[17] It seems to me that it is
reasonable and fair if the decision of the Appeal committee is the
decision of the majority of its
members. That is how decisions are
arrived at in our Courts. There is obviously the potential for a
deadlock to occur in the case
of an Appeal committee comprised of an
even number of members. But that is easily avoided if Appeal
committees are constituted
of an odd number of members.
[18] That the Appeal committee did not
take a decision in regard to the appeal before it was not a point
relied upon by the applicant
as ground of review. In Paddock Motors
(Pty) Ltd v Igesund
1976 (3) SA 16
(AD) the Court observed that it
would be “an intolerable position if a Court were to be
precluded from giving the right decision
on accepted facts, merely
because a party failed to raise a legal point, as a result of an
error of law on his part” (at
23 F–G). In this case the
facts are before me, and were fully canvassed in the papers, and
there is no reason why I cannot
uphold the review on this basis.
[19] In terms of section 8 (1) of PAJA,
having found that a reviewable irregularity has occurred, this Court
has the power to grant
any order that is just and equitable. I think
that it would be just and equitable for the matter to be remitted to
an Appeal committee
under section 62 of the Systems Act for a hearing
de novo. It seems to be undesirable that the same members should
serve on the
Appeal committee and, in the interests of fairness and
transparency, I intend to make an order to this effect.
[20] I should add that I think that it
is unwise for me to devote any attention to the merits of the appeal
which was heard by the
Appeal committee. I intend to remit the matter
for an appeal de novo, and do not want anything I might have to say
about the merits
of the matter to influence the minds of those who
will be tasked with a consideration of the appeal.
[21] In view of the conclusion which I
have reached it is not necessary to refer to the conditional counter
application made by
the respondents.
[22] That leaves the question of costs.
In my view the applicant has been materially successful in this
application. I see no reason
why costs should not follow the result.
[23] I therefore make the following
order:
(a) The applicant’s appeal in
terms of
section 62
of the
Local Government: Municipal Systems Act,
32 of 2000
, against the refusal by the first respondent on 4
September 2012 of the applicants application for consent and
regulation departures
must be heard de novo;
(b) The appeal authority must not be
comprised of the same members who heard the appeal on 14 June 2013;
(c) The appeal de novo must commence
within a period of six weeks calculated from the date of this
judgment;
(d) The first respondent is ordered to
pay the costs of this application.
KOEN AJ
APPEARANCES
For the Applicants: Mr T Twalo
Instructed by: Mate Attorneys
For the 1st Respondent: Mr M Greig
Instructed by: Webber Wentzel