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[2016] ZAWCHC 110
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Du Toit v Knysna Municipality and Another (A592/15) [2016] ZAWCHC 110 (31 August 2016)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: A592/15
DATE:
31 AUGUST 2016
In
the matter between:
ANDREAS
DU
TOIT
................................................................................................................
Appellant
And
KNYSNA
MUNICIPALITY
.........................................................................................
First
Respondent
BERKEL
AFRICA (PTY)
LTD
...............................................................................
Second
Respondent
Coram:
Davis, Samela & Boqwana JJJ
Delivered:
31 August 2016
JUDGMENT
BOQWANA,
J
Introduction
[1]
This appeal concerns an application brought
by the appellant on 20 February 2014 for the review and setting aside
of building plans
submitted by the second respondent in
September
2004
and approved by the first
respondent (‘the municipality’) on 20 February 2009 in
respect of a building structure constructed
on erf 1…..
situated at 9 E… W…., K….. (‘No.9’/‘erf
1…’) and completed
in December 2005. Extension of time
for the institution of the review in terms of s 9 (2) of the
Promotion of Administrative Justice
Act 3 of 2000 (‘PAJA’)
is sought as well as other relief which I consider not necessary to
set out in detail, save
to state that the ultimate goal of the
appellant is the consequential demolition of the impugned structure
at No.9.
[2]
The application was initially opposed by
both the municipality and the second respondent. The municipality
withdrew its opposition
and elected to abide by the court’s
decision. To assist the court, it filed an explanatory affidavit
deposed to by Mr Michael
Maughan-Brown, Director: Planning and
Development.
[3]
The matter came before Rogers J who
dismissed the application with costs. In short, Rogers J found that
whilst there appeared to
have been irregularities pertaining to the
approval of the building plans, the extent of the delay in bringing
the review application
was significant and the explanation given for
the delay unsatisfactory. In his view, interests of justice favoured
a conclusion
that the invalid administrative act must be allowed to
stand, for the sake of finality, taking into account the fact that
the building
sought to ultimately be demolished had been standing for
a long time. This appeal is with the leave of the court
a
quo
.
Factual
background
[4]
The facts of this case span over a number
of years. The appellant is a retiree and has been a resident at No.8
E… W….,
K….. (‘No.8’) for many
years. He lives across No. 7 E…. W… (‘No.7’)
and diagonally
across No.9, which forms the subject of these
proceedings. Both properties are owned by the second respondent. The
property at
No. 7, then known as erf 7….., was built in 1993.
Building plans for the construction of a second dwelling at No.9,
then
known as erf 7…...
were
approved on 16 October 2003. In 2004, the two erven were consolidated
into erf 1….. This was to allow for simpler administration
of
the two properties by the second respondent.
[5]
It was later found that the two dwellings
contravened the development
parameters
of the single residential property in that the total square metres of
land were over the limit as a result of the consolidation.
In 2007, a
process was initiated to re-subdivide the two dwellings to two erven
and form erven 1…. (‘No.9’)
and 16319 (‘No.7’).
For some reason, the process of subdivision did not proceed resulting
in the withdrawal of the
subdivision approval by the Surveyor-General
on 4 February 2011.
[6]
On 1 September 2004,
prior to commencing with construction at No.9, the second respondent
submitted an application for the building
plans with the
municipality. The application was described as an extension to the
existing dwelling with the new area indicated
as 16m
2
and the
existing area as 398m
2
.The
plans however related to a whole new dwelling in its entirety and not
an addition of 16 m
2
.
It appears that the plan moved between different departments of the
municipality between the period of 23 December 2005 and 31
May 2006.
The town planner signed for approval of the plans on 23 January 2009.
The plans were eventually approved on
20
February 2009.
It is common cause
that building works at No.9 started in early 2006 before the approval
of the plans. The structure consisted of
three storeys.
[7]
Mr Maughan-Brown states in his affidavit
that construction at No.9 appeared to have proceeded in accordance
with revised plans and
not the October 2003 building plans and this
was not picked up by the municipality at the time. These plans,
according to him,
may have been submitted to the municipality’s
building control department but the municipality has not been able to
establish
this. He further confirms that these plans were not
approved when construction took place. According to him, steps were
taken to
process the backlog in 2008 and as part of addressing the
backlog, the revised drawings in respect of the dwelling at No.9 were
considered and approved in February 2009.
[8]
Written recommendations were not done by
the responsible building control officer, Ms C Fick, for
consideration by the municipal
functionary who approved the February
2009 plans in line with the Constitutional Court judgment of
Walele
v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6)
SA 129
(CC). The approval followed the standard procedure followed by
the municipality at the time. The plans would have been first
considered
by the senior building inspector, Mr L Kakora, who would
thereafter have recommended them to Ms Fick and Ms Fick would have
then
recommended approval of the application to the municipal
functionary, Ms F Kruger, having considered the provisions of the
National
Building Regulations and Building Standards Act 103 of 1977
(‘the NBR Act’). According to Mr Maughan- Brown, the
application
for approval of the plans by the second respondent gave
rise to the requirements of s 3.2.2 of the scheme regulations. The
property
in question was zoned as single residential in terms of the
scheme regulations and attention had to be given to proper
application
of the height. Section 3.2.2 provides as follows in
relation to height:
‘
Height:
·
At most 8m, above natural ground level directly
below a given point of the building with a maximum of 2 storeys;
·
provided that a departure from the two storey
limit may be considered due to the slope of the site;
·
provided further that the 8m restriction is
maintained and that the additional storey is added to the building on
the lower side
of the slope.’
[9]
As can be seen, the
two storey limit was a limitation applicable to buildings within the
single residential zone. According to Mr
Maughan-Brown, Ms Fick and
Ms Kruger recognised that the February 2009 building plans provided
for a three storey building but
concluded that it fell within the 8
metre height restriction required in s 3.2.2. They concluded further
that the additional third
storey could be approved given the slope of
the site in question and considering that the additional storey was
added on the lower
side of the slope. Ms Kruger was accordingly
prepared to allow a departure from the two storey limit in terms of
the provisions
of s 3.2.2 and approved the application. The
view adopted by the municipality was that the departure referred to
in s15 of
the Land Use Planning Ordinance, 1985
(Ordinance
15 of 1985)
(‘LUPO’)
and the procedure followed in terms thereof for the application and
granting of departure finds no application
in the context of s 3.2.2.
Both Ms Fick and Ms Kruger were satisfied that the application
complied with the NBR Act, the scheme
regulations and the applicable
law. They were also satisfied that the building would probably not
cause any one of the undesirable
outcomes contemplated in s 7 (1) (b)
(ii) of the NBR Act. Mr Maughan-Brown alluded to the fact that the
passage of time since the
administrative actions referred to in the
application necessarily had an impact on the institutional memory of
the municipality
and the ability of those involved to recall aspects
of the decisions challenged by the appellant.
[10]
The appellant is of the view that the
municipality may not have been aware of the fact that the subdivision
of the two erven was
abandoned by the second respondent when it
granted the approval of building plans in February 2009.
[11]
Moving along, in October 2010, the second
respondent replaced the balustrade on No.7 and also erected a covered
pergola on the top
storey of the building. It was instructed by the
municipality to stop the building work and submit ‘as-built’
plans
for those alterations and also apply for the necessary
relaxations in order to have those alterations approved. The second
respondent
applied for the amendment of property boundaries for erven
1… and 1…. (which according to the appellant did not
exist).
[12]
In December 2010, the second respondent
appointed Marike Vreken Town Planners (‘Ms Vreken’) to
apply for further relaxations
to accommodate height restriction, to
allow building line relaxations so as to be able to build a covered
walkway link between
the two buildings and to remove building lines
prescribed in the registered title deeds of the properties in order
to allow for
the relaxation of the lateral building lines. Ms Vreken
states in her confirmatory affidavit to the answering affidavit that
she
erred when she stated in the application for approval that ‘
the
existing dwelling Erven 1…. and 1….. [e]xceed two
storeys, and even though the dwelling on Erf 1….. complies
with the 8m height restriction; the building exceeds two storeys. A
height departure for the number of storeys is therefore required.’
She alleges that she had failed to have
proper regard to the definition of basement and natural ground level
as defined in the scheme
regulations applicable at the time and the
approved building plans. “Basement” is defined as:
‘
that
portion of a building, the finished floor level of which is at least
2m below a level halfway between the highest and lowest
natural
ground levels immediately contiguous to the building; provided that
only one basement per structure will be permitted and
in any case
such basement shall comply with a definition of a storey.’
[13]
“
Ground level” means:
‘
The
natural ground height as depicted on an approved contour map, ie
prior to any earthworks or landscaping.’
[14]
On 7 April 2011, the appellant objected to
the application submitted by Ms Vreken in writing, stating that ‘
Both
buildings on the above property are clearly three storey buildings
and not two storey as stated by Vreken in Section B, paragraph
7’.
He further stated that ‘
no
mention is made of an existing wall (2 to 3 meters high) that
connects the two buildings. Surely this wall also breaches the
lateral building line as would the proposed covered walkway. The
information provided to us does not include a site development
plan
that shows the relaxation of the existing two buildings in relation
to the erf boundary and building lines’.
[15]
He also raised doubts about the claim that
the building on erf 1….. (9 E… W…...) does not
exceed the 8 metre
height restriction. In his submission, he
indicated that the second respondent had built an illegal additional
storey apparently
without the submission of plans for approval by the
municipality. The appellant alleges that he was not aware of the
approval of
plans of 20 February 2009 at that stage and that the
municipality had approved a second dwelling on the consolidated erf,
which
had not been subdivided.
[16]
Following his objection, the appellant
received a letter dated 10 January 2012 addressed to Ms Verken where
the council of the municipality
refused the application for departure
submitted by Ms Verken on behalf of the second respondent. The key
paragraph of the letter
which indicated the decision of the
municipality read as follows:
‘
[e]
That the application for a departure in terms of Section 15 of the
Land Use Planning Ordinance, 1985 (Ordinance 15 of 1985)
to exceed
the 8m maximum building height restriction to 8.612m above natural
ground level
on
Erf 1…… for a balustrade roof (be refused)
in
order to protect the amenity and welfare of property owners to the
south east of Erf 1….., K…..’ (Own emphasis)
[17]
I return to the significance of this letter
later in the judgment. The letter instructed the second respondent to
rectify the illegal
structures in terms of s 40 (1) (a) (iii) to
comply with the scheme regulations as per approved plans within 21
days of receipt
of the letter.
[18]
Towards the end of January 2012, the
appellant learnt from the municipality officials that plans in
respect of the building structure
at No.9 were approved in February
2009. He instructed Mr Howard Ross of ED Ras Attorneys who wrote a
letter to the acting municipal
manager of the municipality on 31
January 2012 seeking clarity as to the wording of the council’s
resolution of 10 January
2012. He sought to clarify the meaning of
the illegal structures to be rectified. He requested that the
‘illegal structure’
stated by council in its resolution
should include the entire additional storey added to the building in
erf 1……,
which according to him, was improperly
approved. He also highlighted that ‘illegal structures’
on erf 1….. were
more serious and invasive and had a far
greater adverse impact on the appellant’s view and on the value
of his property than
those on erf 1…... He accordingly urged
the municipality to take all necessary steps to ensure that all
offending structures
on the properties were rectified.
[19]
On 14 February 2012,
Mr Maughan-Brown sent a response letter to Mr Ross denying any lack
of clarity in the council’s decision.
According to him, the
letter made it clear that the ‘structures’ referred to
[as illegal] in the resolution were any
and all structures that did
not appear on the building plans that had been approved. He denied
that the additional storey on erf
1…… constituted an
illegal structure and further refuted that the approval of the
additional storey was improper.
He specified that according to the
evidence available to the delegated official who approved the plan,
the structure complied in
all respects with the scheme regulations.
He denied the suggestion that the departure of the senior official
from the municipality
had anything to do with erf 1…….
as claimed by the appellant. In his letter he concluded by stating
the following:
‘
Given
the circumstances outlined above I am confident that you will agree
that Council’s decision deals with all illegal structures
on
the property.
In
this regard we should note that the applicant has appealed against
the Council’s decision and we will, therefore, not be
in a
position to enforce Council’s decision until such time as the
appeal has been finalised
.’
(Underlined
for emphasis)
[20]
The appellant contends that this part of
the letter created confusion as to what was to be considered on
appeal. This issue is discussed
in more detail below.
[21]
The appellant and Mr
Ross apparently obtained the February 2009 plans and examined them.
Mr Ross addressed a letter dated 15
May 2012 to the municipality that the plans bore no stamp of approval
from the municipality.
He further mentioned that despite claims that
the 2009 plans were approved, the building department of the
municipality had informed
the appellant throughout 2009 and 2010 that
the third storey was ‘not yet approved’ and that he would
be afforded an
opportunity to object thereto. He once again stressed
that the earlier letter of 10 January 2012 (council’s
resolution) was
silent on the more serious departure from height
restriction on erf 1…... and accused the municipality of
withholding important
information. He further noted that visual
evidence existed to the effect that the front sections of the three
storey exceeded the
8 metres restriction and the third storey on erf
1…… was constructed on the highest extremity of the
slope. He reserved
his client’s rights that once the appeal [by
the second respondent] was known he would consider his position.
[22]
On 28 May 2015, Mr Maughan-Brown responded
by stating that it was possible that Mr Ross had received a wrong set
of plans and apologised.
He refuted the assertions contained in Mr
Ross’ letter, particularly denying any deliberate or negligent
withholding of information
by the municipality or exceeding of powers
by its officials.
[23]
On 5 July 2012, Mr Ross replied as follows:
‘
Upon inspection at your offices
on 3 July it was noted that the
2004
Plans do indeed have an approval stamp dated 2009
.
The stamp is very faint and this is probably why it was not visible
on the copies given to our client and hence led to our comment
in our
letter of 15 May 2012.’
(Own
emphasis)
[24]
He disputed other allegations and concluded
by stating that: ‘
Whilst we do not
wish to be involved in a paper war, our instructions are to reserve
all our client’s rights at least until
such time as the outcome
of the present appeal is known
.’
[25]
What followed was an email by Mr Ross to
the members of the municipality seeking acknowledgment of receipt of
correspondence of
5 July 2012 which he alleged had not been responded
to. He consequently requested that they be advised timeously of the
outcome
of the appeal so that they could advise their client of his
rights. Ms Melony Paulsen of the municipality responded on 30 October
2012 informing Mr Ross that Mr Maughan-Brown was attending a course
and would be back on 5 November 2012.
[26]
Mr Ross wrote another letter on 4 December
2012 for the attention of Mr Maughan-Brown and Ms Paulsen expressing
his dissatisfaction
about not having received any response given the
unfortunate history of the matter.
[27]
He again wrote another letter on 8 January
2013 still voicing unhappiness about lack of response by various
officials of the municipality.
This was followed up by another letter
dated 7 February 2013 referring to previous correspondence and asking
that his firm be advised
timeously of the outcome of the appeal.
[28]
On 11 February 2013, Annaleen Cilliers of
the municipality sent an email to Mr Ross attaching a copy of a
letter dated 14 November
2012 which she alleged was erroneously sent
to an incorrect address for which she apologised.
[29]
Attached to the letter of 14 November 2012
was a copy of a letter addressed to Ms Vreken dated 7 November 2012
as well as a copy
of a letter received from the Western Cape
Government: Environmental Affairs and Development Planning dated 25
October 2012. The
25 October 2012 letter contained the outcome of the
appeal which stated,
inter alia
,
the following:
‘
2.
The Competent Authority to the administration of the Land Use
Planning Ordinance, 1985 (Ordinance 15 of 1985), has in terms of
section 44(2) of the said Ordinance, resolved that the appeals
against the Municipality’s decision to refuse
an
application for the relaxation of the 8m height restriction for an
existing lean-to-roof and balustrade, erected on the deck
on the top
level of the dwelling on erf 1……, Kynsna, be dismissed.
3.
It is further recommended that the applicant be instructed by the
Municipality in terms of section 40 (1) (i) of LUPO
to
rectify the illegal structures as per approved building plans within
21 days from receipt of the letter that the appeal was dismissed,
failure of which would result in the structure
being demolished by the Municipality at the cost of the owner.’
(Own emphasis)
[30]
The letter dated 7 November 2012 from Mr
Maughan-Brown instructed the second respondent to rectify the illegal
structures as per
approved plan within 21 days of receipt of the
letter; that the appeal was dismissed and failure to do so would
result in legal
action.
[31]
On 14 February 2013,
Mr Ross wrote another letter noting the outcome of the appeal process
and his client’s happiness about
the decision. He further
raised his client’s concerns that the issues they raised in
their letter of 15 May 2012 (regarding
erf 1……) were
still not properly addressed. He concluded by stating the following:
‘
In
our earlier correspondence we reserved our client’s rights to
deal with these aspects once the outcome of the appeal was
known….
Our instructions are that our client now intends doing exactly this,
and you will hear from us further shortly in
this regard.’
[32]
Nothing happened
until Mr Ross wrote another letter again on 8 April 2013 setting out
the history of the matter in sequence and
inviting the municipality’s
‘
comments
and positive reaction’
on how they were
going to rectify the situation as
section
15(2) of LUPO
had
allegedly not been complied with. He further threatened to launch a
review application if the municipality failed to revert
by 30 April
2013. A copy of this letter was also sent to the second respondent.
This was the first time that any correspondence
was copied or sent to
the second respondent.
[33]
On 17 April 2013, Ms
Paulsen sent an email to Mr Ross indicating that the municipality
wished to obtain external legal opinion and
sought indulgence until
such time as the municipality had received such legal opinion.
[34]
On 18 April 2013 Mr
Ross responded indicating that his client agreed that they would hold
the matter over for one month until Monday,
20 May 2013.
[35]
Shortly before this
correspondence, the appellant, in the meantime, had instructed Mr
Ross to make enquiries about how erf 7….
and 7…. became
erven 1……. and 1…… respectively. Mr Ross
was assisted by his associate, Mr Ras
to make those enquiries.
[36]
On 18 April 2013, Mr
Ras came back with a report that, according to his research at the
Registrar of Deeds, erf 1…... K…...
was created with
the consolidation of erven 7……. (No. 9) and 7……
(No.7) – this then became consolidated
erf 1……;
that it was the registered property of the second respondent; it
appeared that the second respondent attempted
to subdivide erf 1…..
into two components, namely, erf 1……. (a portion of erf
1…… square metres
in extent) and erf 1…….
(the remainder of erf 13913); for some reason it was never proceeded
with. According to the
appellant, this meant that erf 1……...
neither existed in the past nor does it exist presently; therefore,
the second
respondent became the proprietor of erf 1….,
throughout all applications since the two erven were consolidated in
2004.
Mr Ras’ further research also indicated that on 14 June
2012, the consolidated erf 1…. was sub-divided into erf 1……
(remaining extent) - (No. 9) and erf 1….. (No.7). According to
the appellant, at the time of Ms Verken’s application
on 14
March 2011, the house which had been newly built at No.9 on stand 1……
was therefore unlawful on the face of
it as the structure was not
allowed by the scheme regulations.
[37]
The appellant alleges
that on 20 May 2013, Mr Ross reminded the municipality in writing
that their response was due by that date.
(No correspondence is
attached in this regard). According to the appellant, Ms Paulsen
responded that they had not received the
legal opinion and their
legal representative was tied up in court.
[38]
On 29 May 2013, Mr
Ross once again contacted Ms Paulsen to enquire about the matter. Ms
Paulsen informed him that they had instructed
Mr André Swart,
an attorney who would liaise with him.
[39]
Mr Ross and Mr Swart
met and held off the record discussions. It is not clear when these
meetings took place and over what period.
According to the appellant
some confusion arose as to exactly which plans were approved. Mr
Swart undertook to obtain a full set
of approved plans from his
client and make them available to Mr Ross. It is not clear when this
all happened and what kind of confusion
there was regarding these
approved plans.
[40]
On 3 September 2013, Mr Ross addressed a
letter to Mr Swart indicating that almost five months had passed
since Mr Ross first wrote
to the municipality advising it about the
problems with its conduct of the matter. He again indicated that he
intended to institute
review proceedings. He also queried that he had
not received the building plans as undertaken by Mr Swart. He
threatened that unless
Mr Swart responded ‘positively’
within 14 days, his instructions were to proceed (with legal action).
He also sent
a copy of this letter to Ms Paulsen and the municipal
manager.
[41]
On 9 September 2013, Mr Swart sent an email
with a copy of building plans to Mr Ross. The appellant states that
Mr Ross received
these plans on 13 September 2013 and upon
examination they appeared to be no different to those they already
had in their possession.
[42]
On 9 October 2013, Mr Swart sent an email
to Mr Ross indicating that he had referred Mr Ross’ letter to
his client for instructions.
On the same day of 9 October 2013, Mr
Swart wrote back to Mr Ross stating that he had consulted with the
officials of the municipality
and his instructions were that the
municipality viewed the building plans as being approved. This is the
date from which the appellant
submits the 180 days in which to launch
a review application commenced.
[43]
According to the appellant, when Mr Swart
terminated the line of
communication
between
him and Mr Ross, the issues
raised in the letter of 8 April 2013 were still not addressed. In the
meantime, the appellant had decided
that his suspicion that the
municipality was wrong on the height of 8 metre on No.9 required
proper investigation. To that end
he decided to employ the services
of a land surveyor, Mr Friedman of P…… B……..
Mr Friedman had difficulties
in gaining access at No.9. This delayed
Mr Friedman’s report. The appellant only obtained Mr Friedman’s
report in draft
form on 31 January 2014. In short, Mr Friedman found
that the building exceeded the 8 metres height restriction. He also
found
that the building plans were misleading as they could create an
impression that the height fell within 8 metres.
[44]
Ms Verken had apparently also launched
another departure application in regard to No.7 during May 2013. The
appellant objected to
that application too. That application was
withdrawn on 7 November 2013. On 22 November 2013, Mr Ross wrote to
the municipality
in consequence of the withdrawal referring to the
municipality’s conduct in respect of erf 1……. The
municipality
replied on 11 December 2013 reiterating the stance it
indicated in its letter of 14 February 2012. The appellant then
informed
Mr Ross to proceed with the review application. Mr Ross
however moved to Johannesburg. As a result of this move and the
festive
season, Mr Ross only
wrote
a letter to the municipality on 27 January 2014 complaining about the
fact that the issues raised in the letter of 8 April
[2013] had not
been fully responded to.
[45]
He once again
indicated that he awaited a response and still afforded the
municipality indulgence which he alleged was sought by
the
municipality.
There is no record of
the request for this ‘second’ indulgence. Mr Ross further
indicated that he was
holding back further action in anticipation of the municipality’s
response. He also stated that the
purpose of the letter was to
formally call upon the municipality to fully respond to his letter of
8 April 2013 by no later than
Wednesday, 12 February 2014, failing
which their application would be served on the municipality.
[46]
Ms Paulsen wrote to him on 10 February 2014
informing him that his letter was forwarded to the external attorney
whom the municipality
had instructed to act
on
its behalf and to the Manager: Town Planning & Building Control,
Mr Hennie Smit. It will be recalled that Mr Swart had already
indicated on 9 October 2013 that the municipality viewed the plans as
approved. The
review application was
instituted on 20 February 2014.
The
issues
[47]
The issues before us are whether the court
a quo
erred
in finding:
(a)
that the 180-day period within which to bring a
review application as envisaged in s 7(1) of PAJA had expired by the
time the review
application was launched on 20 February 2014;
(b)
that it was not in the interest of justice that
the 180-day period as envisaged in s 9 (2) of PAJA be extended and
thereby exercising
its discretion not to entertain the review
application; and by dismissing the interdictory relief sought in the
notice of motion.
The
delay
[48]
As stated by the Supreme Court of Appeal in
its decision in
Opposition to Urban
Tolling Alliance v South African National Roads Agency Limited
[2013] 4 All SA 639
SCA (‘OUTA’)
at
para 22, absent the extension under s 9 of PAJA, the 180-day bar
precludes the court from entertaining the review application.
(See
also paras 26, 40 and 43).
[49]
Section 7(1) of PAJA provides:
‘
Any
proceedings for judicial review in terms of section 6 (1)
must
be instituted without unreasonable delay and not later than 180 days
after the date
-
(a)
…
on which any proceedings instituted in
terms of internal remedies as contemplated in subsection (2) (a) have
been concluded; or
(b)
where no such remedies exist, on which the person
concerned was informed of the administrative action,
became
aware of the action and the reasons for it or might reasonably have
been expected to have become aware of the action and
the reasons.’
(Own
emphasis)
[50]
Thus, any person seeking the setting aside
of administration decisions on judicial review must launch such
proceedings within a
reasonable time.
[51]
The common delay rule
is a long standing rule which entails a two-stage enquiry; First,
whether there was an unreasonable delay
and second, if so, whether
the delay should in all circumstances be condoned.’ (
OUTA
supra at para 26).
Brand JA observed in OUTA
supra
that this two stage
approach is equally applicable to PAJA and the only difference is
that the legislature in PAJA has determined
that a delay exceeding
180 days is
per
se
unreasonable.
[52]
The rationale for the delay rule was stated
in
Gqwetha v Transkei Development
Corporation Ltd and Others
2006 (2) SA
603
(SCA) as two-fold:
‘…
First,
the failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in my view more
importantly, there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions. As pointed out by Miller JA in Wolgroeiers Afslaers (Edms)
Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41 E-F (my translation):
‘
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has elapsed -
interest reipublicae ut sit finis litium ... Considerations
of this
kind undoubtedly constitute part of the underlying reasons for the
existence of this rule.’ (at para 22)
[53]
Thus,
if a challenge is not initiated timeously an unlawful administrative
action may be validated by the delay.
Harnaker
v Minister of the Interior
1965
(1) SA 372
(C)
at 381C.
[54]
The issue of whether there was any delay in
bringing the review has been brought into question in this matter. It
is therefore appropriate
to first determine when the period of 180
days commenced.
The
commencement of the 180 day period – was there unreasonable
delay?
[55]
The appellant submits that the 180 period
commenced on 9 October 2013. The court
a
quo
found that, at best, for the
appellant the date of actual knowledge of the action and reasons for
it was 5 July 2012. It also found
however that, in truth, he
reasonably might have been expected to have become aware of the
decision and its reasons well before
that date.
[56]
By his own admission in the founding
affidavit, the appellant was aware of the building activities taking
place at No.9. He watched
the progress during 2005 and 2006 up to
completion. In his mind, he initially thought that the house that was
being built was a
double storey dwelling which he thought had been
legally approved. From a certain point however, when the two storeys
had been
completed, the building works continued and a third storey
was erected on the two storeys which had been built. To his
recollection
this happened in 2006. At that stage plans had not been
approved. So, by then no administrative decision had been made and
therefore
he could not have brought any judicial review in terms of
PAJA then. (That however does not mean that other legal steps such as
approaching the court for an interdict could not have been brought –
I deal with this elsewhere in the judgment).
[57]
The appellant alleges that the
municipality’s officials from the building department informed
him from about 2006 to 2010
that the ‘as built’ plans had
not yet been approved and he would still have an opportunity to
object. We now know that
the decision was made in February 2009.
[58]
In
Mandela v
Executors Estate Late Mandela and Others
[2016] 2 All SA 833
(ECM)
at para 17, the Court observed that the court
should determine
whether: ‘
the
existence of a decision would have been uncovered by the taking of
reasonable steps in the particular circumstances and the
period of
delay should be reckoned from that date, event or period.’
[59]
In my view, had
reasonable steps been taken by the appellant during 2009, he could
have discovered that a decision was made. He
could further not rely
on information from some officials who told him between 2006 and 2010
that the structure was not yet approved.
He did not show any active
involvement and had he done so, he might have reasonably become aware
that a decision was made. His
actions do not demonstrate the kind of
reasonableness one would expect from a person negatively affected by
an offending structure.
He made no follow up action. No single letter
was written to the municipality in all those four years in protest.
Instead, he happily
watched a structure being completed and years
passing. The court
a
quo
was
correct by stating that the
180 day
period could be calculated from a point before 5 July 2012. In my
view, it could be reckoned from the period when the plans
were
approved in 2009 (as that is when the decision was made) or between
2010 and 2011. During those periods he would also have
been expected
to ask for reasons for the decision for the purposes of bringing the
review application.
[60]
Even if it were to be found in his favour
that indeed he might reasonably not have been expected to be aware of
the plans between
2009 and 2011, in January 2012, he was informed by
the municipality officials that the plans for structure had been
approved. This
is expressed in Mr Ross’ letter of 31 January
2012 to the municipality. Thus, even if the application for departure
by Ms
Verken would have created an impression that it sought
relaxation for the third storey at No.9, the information that the
appellant
received in January 2012 made him aware that the structure
was approved.
[61]
The municipality’s response of 14
February 2012 clearly confirmed the existence of approved plans which
Mr Maughan-Brown denied
were unlawful and set out reasons for the
approval. It could thus be found that, even at that point, the
appellant had actual knowledge
of the existence of the administrative
action and reasons thereof and the 180 days could be computed from
then.
[62]
Mr Ross raised an issue of the stamp not
showing on the plans in his letter of 15 May 2012. If there was any
doubt as to the approval
of the plans, as raised by Mr Ross,
correspondence that followed clearly placed that issue beyond doubt.
The letter of 5 July 2012
by Mr Ross unquestionably put an end to any
uncertainty as to whether plans were approved. It clearly
demonstrated that the appellant
and Mr Ross were at that point
actually aware of the approval. I therefore agree with the court
a
quo
that any attempt to place the date
of actual knowledge of the plans to a date beyond 5 July 2012 is
contrived.
[63]
As to reasons for the decision, the letters
of 14 February 2012 and 28 May 2012 clearly articulated the reasons
for approving the
plans which were adequate for the appellant to
bring a case on review. The case on review would hinge on whether or
not the scheme
regulations, title deed and/or the provisions of the
LUPO and the NBR Act were infringed. Nothing beyond what was in those
letters
was required for purposes of instituting a review.
[64]
Therefore, calculating the 180 day period
in which to bring a review application based on the actual knowledge
of 5 July 2012 was
the best case scenario for the appellant. That
period would have expired in early January 2013. The review
application was launched
more than a year later i.e. in February
2014.
[65]
If the period of 180 days is calculated on
the basis that the appellant might reasonably have been expected to
have become aware
of the municipality’s decision and the
reasons already given between the period of 2009 and 2011, the delay
in bringing the
review runs into a number of years. There is
therefore no question about the fact that the delay was
per
se
unreasonable.
[66]
In support of his contention that the 180
days commenced on 9 October 2013, the appellant submits that he
waited for the outcome
of the appeal which was brought by the second
respondent against the refusal of its relaxation application, before
he could take
action and further gave the municipality indulgence to
seek an external opinion and revert to him. These arguments are
without
any merit.
[67]
Apart from the fact that the case advanced
in argument is slightly different from what is expressed in the
founding papers, the
appellant’s attempts to link the appeal
with the commencement of the 180 day period does not withstand
scrutiny. It can never
be held that the appeal brought by the second
respondent was an internal remedy that must be exhausted before
bringing the matter
on review as contemplated in s 7 (2) (a) of PAJA
for the following reasons: firstly, council’s decision in the
municipality’s
letter of 10 January 2012 clearly articulated
what application was refused. There can be no ambiguity on that. The
refusal was
in connection with an application made in respect of erf
1…….. and not erf 1…… as the appellant
seeks
to suggest. The passage in the letter of 10 January 2012 that I
have quoted above nails the point.
[68]
The appeal therefore had nothing to do with
the issue that the appellant wanted ‘resolved’ which was
the rectification
of the additional storey at No.9, which he regarded
as illegal. No confusion was created by the municipality on this
issue. If
anything, the municipality made its stance very clear in
all its correspondence that it did not consider the approved
structure
in erf 1…… as illegal. Mr Maughan-Brown’s
letter of 14 February 2012 created no misunderstanding about what
the
subject of the appeal was. The fact that he indicated that council’s
decision dealt with all illegal structures at the
end of his letter
and that the municipality could not enforce the decision of council
until the appeal was finalised did not amount
to an acknowledgement
that erf 1…… was illegal. He also did not suggest that
the complaint about the additional storey
in erf 1….. formed
part of the appeal. In fact, he denied that the additional storey in
erf 1……. was illegal
throughout his letters.
[69]
The appeal is therefore not relevant to the
computation of the 180 days. It is a consideration that may become
relevant when the
reasonableness of the explanation for the delay is
considered on the second leg of the inquiry.
[70]
The issue of the indulgence sought by the
municipality equally plays no role in the calculation of the 180 days
in this case. It
did not suspend the running of the 180 days
whatsoever. In any event, the indulgence came way after the appellant
became aware
of the outcome of the appeal and it was only for one
month.
[71]
On 9 October 2013, Mr Swart stated what was
already known, which was that the plans were taken by the
municipality as approved.
A different view could not have changed
that in any event as the municipality was
functus
officio
. This argument is accordingly
flawed and legally untenable. It has been showed that there was a
delay which was
per se
unreasonable as it exceeded the period of 180
days.
[72]
That conveniently takes me to the second
leg of the enquiry which is whether the delay should have been
condoned.
Should
the delay have been condoned?
[73]
Section 9 of the PAJA allows the parties to
extend the period of 180 days to a fixed date, by agreement, or
failing that, the court
to do so, on application where the interests
of justice so require.
[74]
Whether it is in the interests of justice
to grant condonation depends on the facts and circumstances of each
case. In
Van Wyk v Unitas Hospital &
Another (Open Democratic Advice Centre as Amicus Curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC), the Court held at para 20 that factors relevant to
the enquiry of what entails interests of justice in a particular case
include:
‘
but are not limited to
the nature of the relief sought, the extent and cause of the delay,
the effect of the delay on the administration
of justice and other
litigants, the reasonableness of the explanation for the delay, the
importance of the issue to be raised in
the intended appeal and the
prospects of success.’
The court
further held at para 22 that:
‘
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable.’
[75]
The extract from Van
Wyk
supra
denotes that a wide range of
considerations are relevant. A debate of whether the merits of the
case form part of this assessment
was settled in the Constitutional
Court decision of
Khumalo and Another v
MEC for Education, KwaZulu-Natal
2014
(5) SA 579
(CC) at para 57. There the Court held:
‘
An
additional consideration in overlooking an unreasonable delay lies in
the nature of the impugned decision. In my view this requires
analysing the impugned decision within the legal challenge made
against it and considering the merits of that challenge.’
[76]
In assessing prospects of success, the
court should be mindful of the principles surrounding the delay rule
(which I have discussed
above) which highlight the importance of
finality and certainty in decision making. The extent to which a
favourable assessment
of the prospects of success will affect the
decision whether to condone an unreasonable delay will depend on the
other features
of the case (
Cape Town
City v South African National Roads Agency Ltd and Others
2015 (6) SA 535
at para 26 (‘
Sanral
’
).
In
Sanral
supra,
the court held that, the strength of the prospects of a case in an
unreasonably delayed review application has to be weighed
in the
balance in the peculiar context with the policy considerations that
inform the delay rule [as expressed in
Gqwetha
supra at paras 33 and 34]. Furthermore, ‘[
t
]
he
principle enunciated by Nugent JA amounts to a recognition that
a
good case on the merits cannot, by itself, negate the effect of s
7(1) of the Act and be sufficient cause, without more,
to grant
condonation in terms of s9
.’
(See
Sanral
supra
at para 27). Finally on this point it is appropriate to note that the
court in
Sanral
said
that: ‘
Actually adjudicating a
review on its merits entails a different undertaking from merely
considering the merits of a review for
the purposes of assessing its
prospects of success for another purpose, such as whether to condone
the delay, or grant interim
relief. The former exercise is
determinative and thus final, while the latter involves arriving at
an essentially provisional conclusion.
However, even if the court is
inclined to pronounce conclusively on the illegality of an impugned
decision, [such as it could be
the case here] its finding in that
regard will not, without more, displace the effect of the delay rule
on its ability or preparedness
to exercise its power of judicial
review
.’ (See
Sanral
supra at para 29). (Own emphasis)
[77]
Against that background, I deal with the
circumstances of this case. I have taken time to deal with the
explanation and the extent
of the delay that is apparent from the
facts. The appellant noticed the building of a structure already in
2005 which was completed
in December 2006. The explanation that he
was told by the officials of the municipality over the period of 2006
to 2010, that the
structure had not yet been approved and that he
would get an opportunity to object thereto is not only vague and
lacking in substance
and detail, it is also not convincing. It is
strange that the appellant would take so inactive a stance for all
those years. Surely,
even if the building inspector told him that at
some point, as he alleges in the replying affidavit, that the
structure was not
approved, he should have taken further steps after
not hearing anything from the officials of the municipality for over
a period
of four years.
[78]
If his version is to be believed, he would
have noticed that the municipality officials were either avoiding or
fobbing him off
or they were not doing their job by allowing a
structure to stand without approving it, especially after he had
informed them of
its existence. He would have noticed that no notice
was forthcoming allowing him to object as promised by the said
officials. That
should at least have necessitated the writing of a
letter, for instance, demanding answers.
[79]
As I have already stated, not a single
letter was written to the neighbour raising any concerns about this
newly built structure,
in fact, it is alleged on behalf of the second
respondent that at some point in December 2007 when K…..
experienced water
shortages, the appellant and his family requested
and made use of bathroom facilities at the house at No.9 which had
rainwater
stored for household purposes and raised no complaints. The
appellant and his family were given unrestricted access to the house
and property. The appellant was thus fully acquainted with the
physical structure of the building works, as well as the design
and
construction.
[80]
He took no steps to prevent the completion
of the structure. He watched the progress but not once did he address
any correspondence
to the second respondent except copying it with
the letter dated 8 April 2013. He neither wrote to the second
respondent seeking
compliance with the law nor to the municipality to
enforce such compliance during that period. An interdict was also not
sought
to prevent the second respondent from completing the
structure.
[81]
His actions are different from those taken
by the neighbour in the case of
Lester v
Ndlambe Municipality & Another
[2014]
1 All SA 402
(SCA. In
Lester
,
Haslam, a neighbour obtained copies of the plans from the Ndlambe
Municipality officials after he saw foundations being cast for
the
new dwelling. He made it plain to the officials at that early stage
that he had an interest in the matter and that he required
to be
notified of Lester’s building plans prior to their approval.
Haslam raised an objection to the construction of a second
separate
dwelling because it contravened the title deed restriction which
prohibited more than one dwelling on the same property.
Lester was
notified of this objection but chose to continue building, pending a
council decision. Haslam applied for an interdict
restraining Lester
from continuing with the building pending the outcome of review
proceedings. Other applications which I need
not deal with followed.
The Lester case presents an example of an applicant who took active
steps to protect his rights as soon
as he noticed construction taking
place, unlike the appellant who sat back for close to eight years.
[82]
In this case, even though the appellant’s
immediate goal would have been to have the structure removed, he did
not approach
the court to seek an interdict nor protest to the
municipality.
[83]
The first time that the appellant generated
any correspondence was in April 2011, when he wrote to the
municipality reacting and
objecting to Ms Verken’s relaxation
application where he expressed objection to an illegal storey on erf
1…….
The appellant did nothing constructive until end
of January 2012 when he phoned the municipality’s officials and
learnt of
plans approved in 2009. He was also aware on 10
January 2012 that his objection to the alleged illegal third storey
on erf
1…… was overlooked. The appellant threatened to
take legal action if no action was taken within one month to rectify
all offending structures in the property in the letter of 31 January
2012. Notwithstanding the municipality’s denial of the
allegations of approving an illegal structure in their letter of 14
February 2012, the appellant took no action to effectively
address
the issue.
[84]
Another letter was written by Mr Ross three
months later on 15 May 2012 restating the concerns with the
municipality’s actions
in approving the structure and reserving
all his client’s rights that he will consider his further
position once the outcome
of the appeal was known. The appeal had no
relevance to erf 1…… as I have already stated.
Therefore nothing prevented
the appellant from launching review
proceedings early in 2012 as he had threatened in the letter.
[85]
The municipality denied allegations against
in a letter dated 28 May 2012 and certainly did not undertake to
rectify the ‘illegal
structure’ he sought to be
rectified. Once again, at that point it would have been clear that
the municipality would not
relent and action could be taken then too.
To the contrary, no resolve to take action was shown, the appellant
only responded to
the letter of 28 May 2012 on 5 July 2012.
[86]
The outcome of the appeal became known to
the appellant on 11 February 2013. The appeal did not produce what he
was supposedly waiting
for. But still, he did not act as he said he
would. On 14 February 2013, he merely expressed his intention to
proceed with legal
action and that the municipality would hear from
him shortly. That did not happen, instead a period of approximately
two months
went by, with no action taken. Instead of proceeding with
legal action as he said he would, the appellant wrote a long letter
on
8 April 2013 restating what was already known and what had been
communicated to the municipality many times, giving the municipality
until 30 April 2013 to respond.
[87]
This letter was unnecessary. It is not
clear why the appellant kept requiring a response or for the issues
raised in that letter
to be addressed when none was forthcoming,
especially when he had already stated his intentions. The
municipality’s stance
was clear: writing letters would, in any
event, not have helped to correct the situation.
[88]
The indulgence to obtain external opinion
was only sought by the municipality after the letter of 8 April 2013
and they were only
given a month. More than four months passed with
no response from the municipality. Instead of proceeding with the
review, the
appellant simply wrote another letter expressing concern
about the months that have passed with no response and further stated
his intention to institute review proceedings. There was no reason to
give the municipality a further 14 days to respond. Allegations
regarding the ‘off the record discussions’ with Mr Swart
are vague and not accompanied by any dates. It is not clear
how long
these took. The information that came with Mr Swart on 9 October 2013
brought nothing new. It had always been the municipality’s
view
that the plans were duly approved as borne out by the correspondence
dating back to 2012. The appellant did not seem to be
serious about
taking this matter on review, he also did not treat it with any
urgency given the period that had passed since he
became aware of the
structure and the plans.
[89]
It is also not clear what he sought to
achieve with these letters as the municipality officials were
functus
officio
. They could not rescind the
approval without the second respondent’s consent. So,
ultimately the appellant would not be able
to achieve his ultimate
goal of demolition without coming to court. Even after getting the
view of the municipality in October
2013, the appellant did not
immediately take action. He waited for another three months and wrote
another letter on 27 January
2014 calling upon the municipality to
respond fully to the letter of 8 April 2013 by no later than 12
February 2014 and only issued
the review application on 20 February
2014. The appellant’s inactions, his continuous writing of
letters complaining about
the conduct of the municipality and
threatening legal action cannot serve as a reasonable explanation for
the undue delay in instituting
review proceedings.
[90]
As to the effect of the delay, it goes
without saying that the second respondent would be prejudiced if the
review were to succeed.
The structure had been standing for eight
years before the review proceedings were instituted and almost ten
years when the review
application was heard although the decision
itself had been taken five years earlier. There is no doubt that if
the review was
brought in 2009 for instance, or shortly thereafter,
the second respondent would have had to comply with any consequential
relief,
moreso, because the second respondent acted unlawfully. It
did not build the structure on the strength of the decision of the
municipality;
it constructed the structure before any plans were
approved. So, if the review was brought timeously, it would have had
to suffer
the consequences of its actions. I agree with the court
a
quo
that with the passing of time
things changed, people settled in their homes and life continued with
them not knowing that a neighbour
had concerns about the structure
that they built. This is obviously a relevant factor to be taken into
account. In
OUTA supra
at
para 41, Brand JA held that ‘
the
delay rule gives expression to the fact that there are circumstances
in which it is contrary to the public interest to attempt
to undo
history.’
The clock cannot be
turned back so to speak because a lot has happened. Prejudice is but
one of the factors to be considered and
not by itself decisive.
[91]
As regards the importance of this case, the
appellant’s counsel argued that both the officials of the
municipality and the
appellant exhibited fraudulent and dishonest
conduct and the court should frown upon this and use its discretion
to extend the
delay. The appellant alleges that the second respondent
misrepresented the true state of affairs in order to obtain an
advantage
and that constituted fraud. There is no doubt that the
second respondent acted unlawfully by building a structure before the
plans
were approved, which structure was also found to have
contravened the scheme regulations. This however happened in full
view of
the appellant who very well suspected wrongdoing but did
nothing to stop it. This is not to condone the actions of the second
respondent.
Clearly, as the court a
quo
put it, the actions of the second
respondent are worthy of censure. The question is whether the second
respondent should be ‘punished’
for such conduct by this
court some ten years after the construction of the building in a case
where such conduct was effectively
regularised by the approval and a
challenge connected to it only brought in 2014. While what was done
was wrong and unlawful, there
is no evidence of underhandedness and
fraud. The court should therefore be careful of making findings of
fraud and dishonesty unless
pleaded and proven.
[92]
I equally echo the remarks of the court
a
quo
that the conduct of the officials
of the municipality was equally unacceptable. But, once more, it
could not be said that the evidence
on the papers showed dishonesty
on their part. Their conduct could be attributed to many factors such
as incapacity. I agree that
it was expected of the municipality
officials to be more diligent in checking compliance with the scheme
regulations and all applicable
law thoroughly before approving plans
and should have insisted that its laws are complied with. Inspections
should also have been
done to ensure that, that which was approved
was indeed lawful.
[93]
Whilst there was laxity and lack of
vigilance which led to irregularities in the approval of the plans,
there is no evidence that
those could be elevated to dishonesty.
[94]
In my view, this case does not raise
matters of general importance. It is true that courts have a duty to
ensure that the doctrine
of legality is upheld and that recourse is
granted at the instance of public bodies with the duty to uphold the
law (See
Lester supra
at
para 24). However, the effect of an inordinate delay may ‘validate’
the invalid administrative action.
[95]
As regards prospects of success, it is
evident that the appellant enjoys good prospects of success on
review. It is admitted firstly
by the municipality that the
Walele
procedure in making recommendations before
approval was not followed. Secondly, the second respondent built the
structure before
plans could be approved. Thirdly, the process of
approval was questionable and the third storey seems to have been
added on the
higher side of the slope which would have exceeded the 8
metre requirement. The only way the third storey would have been
compliant
with the restriction was if it was built on the lower side
of the slope. The municipality seemed to think that the three-storey
house was within the 8 metre limit. It is possible that it was not
aware that the 8 metre restriction was contravened when it granted
approval, something that may not have been checked properly. If no
approval was granted a departure application would probably
have been
necessary to submit.
[96]
There are no allegations on the papers on
whether the additional storey derogated from the value of the
appellant’s property.
The issue of the impact of this structure
on the appellant is mentioned only in a letter and not alleged on the
papers. This leaves
one with the impression that, coupled with the
leisurely approach followed by the appellant in pursuing the review
application,
there possibly was no real prejudice to him, or if there
was it was not as pressing as ensuring that his neighbour complied
with
the law and scheme regulations.
[97]
Having considered all the features relevant
to the question of whether the court ought to have extended the 180
day period, I am
of the view that the court
a
quo
was correct in finding that the
extent of the delay and the unsatisfactory explanation given for it,
coupled with other practical
considerations such as the length of
time in which the structure has been standing, militated against the
extension of the 180
day period.
[98]
The relief sought in the form of a
directive to the municipality to give the appellant notice in terms
of s 15 of LUPO and the consequential
relief to bring an application
resulting in the demolition structure fall away since the review has
not been granted.
[99]
I do not consider the ground of alternative
relief in seeking compliance with approved plans appropriate since
there is no clear
evidence that the structure was not built in
accordance with those approved plans. In fact, Mr Friedman alleged,
as I understand
it, that the plans were misleading in that they gave
an impression that there was compliance with the 8 metre restriction.
[100]
As to the interdictory relief, there is no
evidence that the second respondent is embarking on or threatening to
undertake any further
building works warranting an interdict.
[101]
For these reasons, the appeal must fail and
there is no reason why costs should not follow the result.
[102]
In the result, the following order is made:
1.
The appeal is dismissed with costs
N
P BOQWANA
Judge
of the High Court
Concurred:
DM
DAVIS & M I SAMELA
Judges
of the High Court
APPEARANCES
For
the Appellant: Adv ECD Bruwer
Instructed
by: ED Ras Attorneys, c/o Abrahams & Gross Inc., Cape Town
For
the Second Respondent: Adv D L v.d. Merwe
Instructed
by: Logan Martin Inc., Knysna c/o BM Attorneys, Bellville