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[2018] ZAWCHC 95
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De Kock v Bitou Municipality and Others (A408/2017) [2018] ZAWCHC 95 (7 August 2018)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: A 408/2017
Before: The Hon. Mr
Justice Binns-Ward
The Hon. Mr Justice Sher
The Hon. Mr Justice
Engers (Acting)
Hearing:
1 August 2018
Judgment: 7 August
2018
In
the matter between:
GEORG
SEBASTIAN DE KOCK
Appellant
and
BITOU
MUNICIPALITY
First Respondent
THE
MINISTER OF LOCAL GOVT, ENVIRONMENTAL
AFFAIRS
& DEVELOPMENT PLANNING
Second Respondent
SHOPRITE
CHECKERS (PTY) LTD
Third Respondent
SHEILA
GRACE STOREY
Fourth
Respondent
RAY
ANNE COOK
Fifth Respondent
JUDGMENT
BINNS-WARD J (SHER J
and ENGERS AJ concurring):
[1]
This
is an appeal to the full court from a judgment of Steyn J, who
sat alone at first instance. The learned judge dismissed
an
application by the appellant to review and set aside a planning
appeal decision made by the Minister of Local Government,
Environmental
Affairs and Development Planning (Western Cape) in
terms of s 44(2) of the Land Use Planning Ordinance 15 of 1985
(C) (‘LUPO’)
[1]
as
well as the related antecedent decisions of the Bitou Municipality.
The appeal was brought with leave obtained from the
Supreme Court of
Appeal in terms of
s 17(2)(b)
of the
Superior Courts Act 10 of
2013
.
[2]
Section 44
of LUPO was a relic from the old
order governmental structure. It was enacted when there was a
hierarchical relationship
between local and provincial government; a
position materially different from the scheme of ‘distinctive,
independent and
interrelated’ spheres of government that
subsists under the modern constitutional dispensation. It
became constitutionally
incompatible in the post-Constitutional era
because it purported to invest powers in the provincial sphere of
government to override
decisions made by local government in the
exercise of municipal planning functions that now fall within the
exclusive executive
authority of a municipality.
[3]
The
impugned decision was made by the provincial minister on 20 May
2015, more than a year after the confirmation by the Constitutional
Court in the
Habitat
Council
case
[2]
that
s 44
of LUPO was invalid. The Court’s
confirmation of the invalidity of the provision was of no effect in
the current matter,
however, by reason of its order that the
declaration of invalidity was not retrospective, and would not apply
to appeals in terms
of
s 44
that were already pending at the
time that the declaration was made. The planning appeal that
was in issue between the parties
in the court a quo had been lodged
by the appellant with the provincial minister on 23 December
2013, more than three months
before the Constitutional Court’s
judgment.
[4]
Insofar as relevant to this matter,
s
44
of LUPO provided that -
(1)(a)
An applicant in respect of an application to a council in terms of
this Ordinance, and
a person who has objected to the granting of such
application in terms of this Ordinance, may appeal to the
Administrator, in such
manner and within such period as may be
prescribed by regulation, against the refusal or granting or
conditional granting of such
application.
(b)
… .
(c)
… .
(d)
… .
(2)
The Administrator may, after consultation with the council concerned,
in his discretion
dismiss an appeal contemplated in subsection
(1)(a), (b), (c) or (d) or uphold it wholly or in part or make a
decision in relation
thereto which the council concerned could have
made.
(3)
For the purpose of this Ordinance:
(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);
(b)
… ; 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.
(‘
Administrator
’
was defined in s 2 of the Ordinance to mean ‘the competent
authority’ to which its administration had been
assigned in
terms of s 235(8) of the Interim Constitution.
[3]
The provincial minister was designated as ‘the competent
authority’ for the purposes of administering LUPO, and the
references in s 44 to ‘
the
Administrator
’
therefore fell to be construed as references to the incumbent of his
office.)
[5]
The litigation in the court a quo had its
genesis in decisions by the Bitou Municipality, purportedly in terms
of ss 16(1)
and 25(1) of LUPO, permitting the rezoning and
subdivision of certain land for development purposes. One of
the land units
concerned was owned by the third respondent (Shoprite
Checkers (Pty) Ltd), and the other jointly owned by the fourth and
fifth
respondents. The object was to allow a commercial
building development by Shoprite Checkers to take place on a
consolidated
erf to be constituted upon the acquisition by it for
that purpose of part of the land owned by the fourth and fifth
respondents.
The applications for the necessary planning
permissions, which were made in terms of ss 17(1) and 24(1) of
the Ordinance,
respectively, were submitted to the local authority by
a firm of planning consultants jointly engaged by the landowners.
[6]
The
land owned by the fourth and fifth respondents was zoned for
agricultural purposes. It needed to be rezoned and subdivided
to be rendered amenable for development as proposed by Shoprite
Checkers. It was also ‘
agricultural
land
’
within the meaning of that term in the Subdivision of Agricultural
Land Act 70 of 1970 (‘the Subdivision Act’).
[4]
Such ‘
agricultural
land
’
can be subdivided lawfully only if the Minister of Agriculture gives
consent in terms of s 3 of the Subdivision Act.
The
required consent was granted only on 27 January 2014, several
weeks after the municipality had approved the planning applications.
[7]
The appellant had objected to the planning
applications. Notwithstanding the objection, a functionary of
the municipality,
purporting to act under delegated authority, gave
local authority approval to them on 5 December 2013. It
was common
ground that the functionary had acted outside the limits
of his delegated authority. The mayoral committee and executive
mayor sought to ‘rectify’ the resultant invalidity by
re-approving the planning applications on 16 October 2014.
The court a quo took the view, consistently with the common stance of
the parties, that the latter decision was also invalid because
the
local authority was by then
functus
.
The possibility that the later decision merely ratified the earlier
unauthorised one and whether, if so, it had been within
the powers of
the executive mayor in executive committee (as distinct from the
municipal council) to have done so was not canvassed
in the papers.
The evidence therefore does not permit a consideration of those
questions, which could bear on the legality
of the planning approvals
given at local government level. The appeal can, however, be
determined assuming (without deciding)
that the purported act of
‘rectification’ was indeed nugatory.
[8]
The appellant’s appeal to the
provincial minister was of the sort provided for in s 44(1)(a)
of LUPO. The effect
of the minister’s decision of the
appeal was accordingly deemed, in terms of s 44(3)(a) and (c),
to be the determination
by the Bitou municipal council of the
rezoning and subdivision applications by Shoprite Checkers and the
fourth and fifth respondents.
[9]
The gravamen of the court a quo’s
judgment was that the invalidity of the decisions of the municipal
functionary and the mayor
and mayoral committee was immaterial
because the effect of the provincial minister’s determination
in terms of s 44(2)
read with s 44(3) of LUPO was to
substitute the antecedent decisions. The court considered in the
circumstances that if the
minister’s decision were able to
withstand scrutiny on judicial review, any invalidity that might have
attached to the antecedent
decisions was immaterial. It
therefore did not make any orders reviewing and setting aside the
antecedent decisions.
[10]
The appellant contended that the court a
quo erred in its reading of the relevant provisions of s 44.
His counsel argued
that s 44(2) afforded the provincial minister
the power to make one, and only one, of three types of decision.
In effect,
so the argument went, the minister was required to choose
between (i) dismissing the administrative appeal, (ii) upholding
the appeal in whole or in part or (iii) making a decision in
relation thereto which the council concerned could have made.
The argument was advanced with particular emphasis on what was
submitted to be the disjunctive import of the word ‘
or
’
wherever it appears in s 44(2).
[11]
Focussing
on the effect of a single word in any text without taking appropriate
account of the context in which it has been employed
is an elementary
error of interpretation. The fallacy of the interpretative
approach contended for on behalf of the appellant
is highlighted in
the words of Rumpff CJ in
Swart
en ’n Ander v Cape Fabrix
(Pty)
Ltd
[5]
:
Wat
natuurlik aanvaar moet word, is dat, wanneer die betekenis van woorde
in ’n kontrak bepaal moet word, die woorde onmoontlik
uitgeknip
en op ’n skoon stuk papier geplak kan word en dan beoordeel
moet word om die betekenis daarvan te bepaal. Dit is
vir my
vanselfsprekend dat ’n mens na die betrokke woorde moet kyk met
inagneming van die aard en opset van die kontrak,
en ook na die
samehang van die woorde in die kontrak as geheel
.
[6]
The
chief justice’s observation concerned the construction of a
deed of contract, but the principle inherent in it is equally
applicable to the interpretation of any other type of instrument, cf.
e.g.
Natal
Joint Municipal Pension Fund v Endumeni Municipality
.
[7]
[12]
Words
capable of bearing a particular meaning in one setting can have a
very different import in another context. Indeed,
no deep
research is required to turn up decisions of the courts that
illustrate that contextual consideration sometimes results
in the
conjunction ‘
or
’
being properly construed as actually denoting ‘
and
’,
or ‘
and/or
’.
[8]
The observation by Innes CJ nearly a century ago in
Barlin
v Licensing Court for the Cape
[9]
that
‘…
the
words “and” and “or” are sometimes
inaccurately used; and there are many cases in which one of them
has
been held to be the equivalent of the other. Much depends on the
context and the subject matter
’
has
been borne out in a variety of contexts by several subsequent
judgments.
[10]
[13]
It
was common ground in the court a quo, correctly so in my view, that
the character of the administrative appeal afforded in terms
of
s 44(1)(a) was of the first type identified in
Tikly
and Others v Johannes NO and Others
,
[11]
namely ‘
an
appeal in the wide sense, that is, a complete re-hearing of, and
fresh determination on the merits of the matter with or without
additional evidence or information
’.
The provincial minister was called upon to consider and determine the
planning applications afresh. In doing
so he was afforded all
the powers that were available to the decision-maker of first
instance. He was not constrained only
to decide whether or not
the municipality had exercised a proper discretion, or competently
made a determination within its powers.
He was empowered to
substitute his own decision, even if the determination at first
instance by the municipality had been competently
made.
[12]
[14]
The evident object of s 44 was to
provide for finality to be achieved in respect of land use planning
decisions in a relatively
expeditious and effective manner.
These objects are underscored by the absence of any provision for the
Administrator to
refer the matter in question back to the
decision-maker of first instance; he was empowered instead to make
the definitive determination
himself.
[15]
It is impossible to read s 44(2) in
the manner contended for on behalf of the appellant congruently with
the powers that were
clearly invested in the provincial minister by
the section read as a whole. On the appellant’s
construction, a provincial
minister who dismissed an appeal could not
ameliorate the result by adding conditions to the decision made at
first instance, because
in doing so he would be combining two of the
mutually exclusive so-called options. If he upheld an appeal in
part, the part
of the decision at first instance not overturned on
appeal would remain standing, but the minister would not be able to
remedy
the conceivably limping result of a partially successful
appeal by making any additional decision in relation to the matter
that
the municipality could have made. The effect of such
construction would be to negate the obvious purpose of ‘a
complete
re-hearing of, and fresh determination on the merits of the
matter with or without additional evidence or information’.
[16]
The notion that the minister’s powers
were constrained by a choice between one of three options would also
make it impossible
to give a practical meaning to the third of the
three so-called options. What was to happen to the appeal if
the minister
chose the third option, and made ‘
a
decision which the council concerned could have made
’?
Was the appeal then to hang in the air, having been neither dismissed
(as allowed by the first option), nor upheld
(as provided by the
second option)? That would be glaringly nonsensical, and it is
trite that one of the canons of interpreting
legislation is the
presumption that the legislature is not readily to be understood to
have intended absurd results. It is
abundantly clear therefore,
when s 44(2) is read contextually and as a whole, that the first
‘
or
’
in the provision bears its ordinary disjunctive connotation, whilst
the second instance of it falls to be understood as
‘
and/or
’.
[17]
The appellant’s counsel sought to
qualify his concession that the appeal afforded in terms of s 44
was a so-called ‘wide
appeal’ by arguing that the ability
of the provincial minister to ‘re-hear’ the applications
and make a substitutive
decision, if so minded, had been constrained
in the circumstances of this case by reason of the invalidity of the
decisions at
first instance. The implication was that the
exercise of the wide appellate powers given in terms of the provision
had to
be predicated on a legally valid decision having been made at
first instance.
[18]
There is no merit in that argument.
It finds no support in the wording of the section. On the
contrary, it runs directly
counter to the effect of the part of
s 44(2) that allowed the provincial minister to make any
decision that the council concerned
could have made. That
clearly meant that if the council had made a decision that was
invalid, the minister was empowered
to replace it with a decision
that the council could have made validly.
[19]
An
appreciation of the true import of s 44 informs the
determination of the next point taken in the appellant’s heads
of argument, which was that the court a quo erred in not reviewing
and setting aside the invalid decisions of the local authority’s
functionary and the mayoral committee. The argument overlooks
that the provision afforded an ‘internal remedy’
within
the meaning of s 7(2)(b) of the Promotion of Administrative
Justice Act.
[13]
The
court a quo could in any event therefore not ordinarily entertain an
application by the appellant for the judicial review
of the
municipality’s decisions unless he had exhausted the internal
remedy. If, as in the current case, the internal
remedy
resulted in a substitutive decision, then the antecedent decisions
(irrespective of their validity or invalidity) would
ipso
facto
cease to exist, both juristically and factually. They would
consequently no longer be susceptible to review, unless the effect
of
the judicial review of the substitutive decision were to effectively
resuscitate them. The avoidance of unnecessary judicial
review
is the very purpose of the requirement that internal remedies must
ordinarily be exhausted before a review application can
be
instituted.
[20]
The appellant argued, however, that in the
current matter the provincial minister simply dismissed the appeal
and did not make any
decision in place of the invalid decisions at
first instance. The result, so the argument implied, was to
leave undisturbed
two decisions that the minister had been bound to
recognise as unlawful. This gave rise, so the argument
proceeded, to three
decisions (i.e. the antecedent decisions and that
of the provincial minister) each of which was susceptible to being
set aside
on judicial review.
[21]
The court a quo did not squarely engage
with that argument, and contented itself with holding that the
minister’s determination
rendered the invalidity of the
antecedent decisions ‘immaterial’. I am not
persuaded that that approach was essentially
unsound in the given
circumstances.
[22]
Technically,
it would no doubt have been preferable for the minister to have
upheld the appeal, set aside the invalid antecedent
decisions of the
municipality, and substituted them with a decision of his own of the
same practical effect. The outcome
would, however, have been
indistinguishable from the effect of his decision merely to dismiss
the appeal.
[14]
On
either formulation, the approval of the planning applications by
Shoprite Checkers and the fourth and fifth respondents
would be
confirmed. It is important to remember, I think, that it is an
administrative, not a judicial, decision that is
in issue. One
should not look to find fault in it for less than perfect formulation
if its practical import is clear.
[23]
In
the circumstances it would have been to put form above substance for
the court a quo to have intervened on review to no practical
effect,
merely to rectify an arguably technical flaw in the formulation of
the minister’s determination. Judicial review
is a
discretionary remedy.
[15]
There would be no purpose in the court a quo invoking its
discretionary power for no practical reason or effect. There
was also little purpose in making a declaration of legal invalidity
in respect of the antecedent decisions, if the practical and
legal
effect of the minister’s decision on appeal had been to
substitute them with a valid decision; more especially if regard
is
had to the effect of s 44(3)(a).
[16]
[24]
The appellant further contended that the
provincial minister’s decision fell to be set aside in any
event because the planning
applications had been made in the name of
the landowners’ town planning consultant. Sections 17(1)
and 24(1) of LUPO
both provide that applications for rezoning and
subdivision, respectively, may be made by the ‘
owner
’
of the land concerned. ‘
Owner
’
was defined in s 2 of the Ordinance as denoting in relation to
land ‘
the person in whose name
that land is registered in a deeds registry, and may include the
holder of a registered servitude right
or lease, or any successor in
title to such a person
’.
[25]
The
reasons why only a registered owner of land, and not a third party,
should in general
[17]
have had
the legal capacity to apply for its rezoning or subdivision are
self-evident. Zoning determines what the land may
be used for,
and subdivision determines the manner in which a piece of land
hitherto owned as single unit may after subdivision
be held and used
as a number of smaller separate land units. The effect of
rezoning and subdivision may impact materially
on the market value of
the affected land. These are matters that bear intimately on an
owner’s proprietary rights in
a way in which the laws of
property would not countenance impingement by a third party without
the owner’s authority.
The requirement that the ‘
owner
’
be registered as such was plainly to assist in the administration of
the Ordinance by avoiding dispute or uncertainty in
cases where the
incidence of actual ownership did not correspond with registered
ownership. There was nothing in the provisions,
however, that
prohibited an ‘
owner
’
from using an agent to make the applications;
qui
facit per alium facit per se
.
[18]
[26]
Whether
or not the applicant for rezoning or subdivision in a given case was
the ‘
owner
’,
as defined, is a question of fact. That Shoprite Checkers and
the fourth and fifth respondents were the registered
owners of the
affected land, and that they sought the rezoning and subdivision of
it in the manner applied for, was not genuinely
in dispute. It
was therefore not in issue that the parties who sought the
administrative decisions in question had standing
in terms of s 17(1)
and 24(1) to make the applications. It was evident from the
application papers submitted to the
municipality and from the
representations made on the landowners’ behalf to the
provincial minister in respect of the s 44
appeal that the
landowners were being represented in the planning applications by
their town planning consultants. The provincial
minister in
point of fact had powers of attorney executed by the respective
owners in favour of the town planning consultants before
him when he
decided the appeal. No-one concerned was confused or misled by
the manner in which the applications were framed.
In the
circumstances the court a quo cannot be faulted for finding no merit
in the points that the appellant sought to take
in this respect.
[19]
[27]
The remaining issues for consideration
arose out of the refusal of the court a quo to entertain the new
matter in the appellant’s
replying papers. The new matter
bore on the competence of a local authority to approve an application
for the subdivision
of agricultural land that was subject to the
Subdivision Act prior to the Minister of Agriculture having given his
consent thereto
as required in terms of s 3 of the Act and
nitpicking points about the phrasing of the powers of attorney
granted by the fourth
and fifth respondents in favour of the town
planning consultants engaged by them to attend on their behalf to the
planning applications.
[28]
The provincial minister delivered an
affidavit in response to the new matter in the appellant’s
reply. He sought the
striking out of the new matter; but,
contingently on the court deciding not to strike it out, he also
provided an answer to it.
[29]
Although no order to that effect was made,
the court a quo indicated in the body of its judgment that the new
matter was struck
out and that no regard would be had to it in
determining the review. The appellant failed to make a cogent
argument as to
how the court of first instance might be held to have
misdirected itself in the exercise of its discretion.
[30]
Notwithstanding its indication that it
would have no regard to the new matter, the court a quo did, however,
nonetheless hold that
the appellant’s reliance on the absence
of consent from the Minister of Agriculture was bereft of merit.
It did so
on the bases: (i) that the Minister’s consent
had been furnished before the provincial minister made his
determinative
decision in terms of s 44(2) of LUPO and (ii) that
the Minister’s consent in terms of the Subdivision Act was a
discrete legal requirement that had no bearing on the independent
exercise by the planning authorities of their powers under LUPO.
[31]
The
second of the aforementioned bases for the court a quo’s
determination of the point was indisputably sound. There
are a
number of highly authoritative decisions in closely analogous
situations that support its correctness; see
Minister
of Public Works and others v Kyalami Ridge Environmental Association
and another
,
[20]
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation
and
Environment, Mpumalanga Province and Other
s,
[21]
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and another
[22]
and
Maccsand
(Pty) Ltd v City of Cape Town and others
[23]
.
[32]
As pointed out in
Kyalami
Ridge
,
loc.
cit.
, a distinction falls to be made
between the taking of a decision and its implementation. The
decision to grant the planning
approvals was not unlawful merely
because the planning permissions granted thereby could not be
implemented without statutory authorisation
by another functionary
required in terms of discrete legislation. LUPO expressly
provided for the lapsing of rezoning and
subdivision approvals if
they were not implemented within a specified period. The
decision in
Fuel Retailers
illustrated a situation in which the considerations determining a
planning approval for a given development use were discrete from
those applicable under different legislation for environmental
authorisation to be given for the same use. The object of
the
valid rezoning of the land could not be implemented in that case
because the required environmental approval could not be obtained.
So, in the current case, the subdivisional approval in terms of
LUPO would become effective only upon confirmation in terms
of s 27
of the Ordinance. In order to achieve confirmation the separate
registration of at least one of the subdivided
land units would have
to be obtained in a deeds registry. That could not be done if
the Minister of Agriculture’s consent
in terms of the
Subdivision Act had not been obtained; see s 6 of the
Subdivision Act.
[33]
The second of the aforementioned bases for
the court a quo’s rejection of the point that the appellant
sought to make with
regard to the Subdivision Act having been sound,
a consideration of the first basis for its finding is unnecessary.
[34]
The Supreme Court of Appeal ordered that
the costs of the respective applications to the court a quo and to
itself for leave to
appeal should be costs in the appeal.
[35]
For these reasons the following order is
made:
The appeal is dismissed
with costs.
A.G.
BINNS-WARD
Judge
of the High Court
M.L. SHER
Judge of the High
Court
K.A.B.
ENGERS
Acting
Judge of the High Court
APPEARANCES
Appellant’s
counsel:
B.L. Van der Merwe
Appellant’s
attorneys:
Truter Attorneys
Plettenberg
Bay
MacGregor
Stanford Kruger Inc.
Cape
Town
Second respondent’s
counsel:
M. Adhikari
Second respondent’s
attorneys: State
Attorney
Cape
Town
Third respondent’s
counsel:
A.M. Breitenbach SC
Third respondent’s
attorneys:
Werksmans Attorneys
Cape
Town
[1]
LUPO
has since been repealed and replaced by the Western Cape Land Use
Planning Act 3 of 2014 (with effect from 1 December
2015 in
respect of the Bitou Municipality – in terms of Proc. 30 of
2015, published in Provincial Gazette Extraordinary
No. 7539,
dated 1 December 2015).
[2]
Minister
of Local Government, Environmental Affairs and Development Planning,
Western Cape v The Habitat Council and Others; Minister
of Local
Government, Environmental Affairs and Development Planning, Western
Cape v City of Cape Town and Others
[2014] ZACC 9
;
2014 (4) SA 437
(CC),
2014 (5)
BCLR
591.
The judgment was delivered on 4 April 2014.
[3]
Constitution
of the Republic of South Africa, 1993 (Act 200 of 1993).
[4]
Parliament
decided to repeal Act 70 of 1970 as long ago as 1998, but the
repealing legislation has yet to be brought into effect.
[5]
1979
(1) SA 195
(A), at 202C.
[6]
‘
What
must, of course, be accepted, is that when the meaning of words in a
contract fall to be determined, it is not feasible to
cut them out
and stick them on a clean sheet of paper, then to assess what their
meaning is. In my view it is axiomatic
that one has to
consider the words concerned with reference to the nature and
purpose of the contract, and also to the context
of the words in the
contract as a whole.
’
(My translation.)
[7]
[2012]
ZASCA 13
,
[2012] 2 All SA 262
(SCA),
2012 (4) SA 593
, at para. 18.
[8]
The use or implication of the ‘bastard conjunction’
‘
and/or
’
(
pace
Lord Simon LC in
Bonitto
v Fuerst Brothers & Co Ltd
[1944] AC 75
at 82) has frequently been deprecated, but it is
nevertheless firmly entrenched; see
(1972) 89 SALJ 190.
[9]
1924
AD 472
, at 478.
[10]
See,
for example,
R
v Lucknow Transport Co (Pty) Ltd
1957 2 SA 83
(N), especially at 85G-H,
JN
De Kock en Seuns (Edms) Bpk v Elektrisiteitsvoorsieningskommissie
1983 3 SA 160
(A) at 163H and 168B,
S
v Jordaan and Others
[2017] ZAWCHC 132
;
2018 (1) SACR 522
(WCC) at paras. 126-129.
[11]
1963
(2) SA 588
(T) at 590.
[12]
See
Habitat
Council
(Constitutional Court) supra, at para. 15.
[13]
Act
3 of 2000. Section 7(2)(b) provides in material part as
follows: ‘
Subject
to
[the existence of exceptional circumstances being established on
special application],
a
court or tribunal must, if it is not satisfied that any internal
remedy
…
has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal
for judicial review in terms of this Act
’.
[14]
In
Hangklip
Environmental Action Group v MEC for Agriculture, Environmental
Affairs And Development Planning, Western Cape and others
2007 (6) SA 65
(C), at 71D-E, Thring J was willing to accept the
correctness of the approach of the parties in that matter that ‘
In
dismissing the applicant's appeal … it would seem that the
[provincial minister]
made
the
[local
authority’s]
decision
his own, that the
[minister’s]
decision
replaced that of the
[local authority
],
and that any interference by th[e] Court with the
[minister’s]
decision
on review would ipso facto have the same effect on the
[local authority’s]
decision
’.
In that matter too it would appear that the local authority’s
decision may have been invalid by reason of
its failure to conduct
the investigation into the utilisation at the relevant date of the
land in issue that was necessary for
the purpose of making the
decision in terms of s 14(1) of LUPO that had been sought in
the relevant land use application.
[15]
The
position was described as follows in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[2004] ZASCA 48
;
[2004] 3 All SA 1
(SCA),
2004 (6) SA 222
, at para
36: ‘…
a
court that is asked to set aside an invalid administrative act in
proceedings for judicial review has a discretion whether to
grant or
to withhold the remedy. It is that discretion that accords to
judicial review its essential and pivotal role in administrative
law, for it constitutes the indispensable moderating tool for
avoiding or minimizing injustice when legality and certainty
collide.
’
(Footnote omitted.) The court distinguished the discretionary
nature of the judicial review remedy, from the
non-discretionary
remedy to which a person collaterally challenging the enforcement
against him or herself of an unlawfully made
obligationary decision
was entitled.
[16]
See
paragraph [8]
above.
[17]
An
exception to the general rule was provided in terms of ss 18
and 14(4) of LUPO, whereby the administrator or a local authority
might in certain circumstances - subject to a liability, in terms of
s 19, to compensate the owner for any resultant loss
of value -
obtain the rezoning of private property, irrespective of the owner’s
wishes.
[18]
He who does something through someone else, (in effect) does it
himself.
[19]
I
am aware from experience in many planning matters when I was at the
bar that it was common practice for applications in terms
of LUPO to
be submitted to the authorities by the owners’ professional
advisors acting on their clients’ behalf.
The facts in
the matter of
Vandenhende
v Minister of Agriculture, Planning and Tourism Western Cape
Province and others
2000 (4) SA 681
(C), to which we referred in argument, testify to
the practice. I was not surprised to read that it did not
appear to trouble
the judges in that case.
[20]
[2001]
ZACC 19
;
2001 (3) SA 1151
(CC);
2001 (7) BCLR 652
, at para. 59.
[21]
[2007]
ZACC 13, 2007 (6) SA 4 (CC), 2007 (10) BCLR 1059.
[22]
[2008]
ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
, at para. 80
[23]
[2012]
ZACC 7
,
2012 (4) SA 181
(CC),
2012 (7) BCLR 690
, at para 48.