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[2011] ZAGPJHC 88
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Bordeaux South Residents Association (Association Incorporated under Section 21) v Seftel NO and Others (10/45230) [2011] ZAGPJHC 88 (3 August 2011)
REPORTABLE
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE
NO: 10/45230
DATE:03/08/2011
In the matter between:
BORDEAUX
SOUTH RESIDENTS
ASSOCIATION
(ASSOCIATION
INCORPORATED UNDER
SECTION
21)
........................................................................................
Applicant
and
L
SEFTEL
N.O.
.......................................................................
First
Respondent
MAVELA
A V
DLAMIN
......................................................
Second
Respondent
CITY
OF JOHANNESBURG
................................................
Third
Respondent
J
U D G M E N T
HALGRYN, AJ
:
The
Applicant is a section 21 company registered and incorporated as
such in terms of the company laws of South Africa. Its purpose
–
evidently – is to serve as a vehicle, by which the residents
of the Bordeaux suburb in Johannesburg, can collectively
seek to
safeguard their rights and protect their interests.
The
First Respondent is one Ms L Seftel, cited herein in her official
capacity, as the decision-maker in respect of an application,
made
by the Applicant, in terms of Chapter 7 of the Rationalisation of
Local Government Affairs Act, No. 10 of 1998 (“
the
RLGA’s Act
”),
to restrict access to the Bordeaux South suburb in Johannesburg. The
First Respondent dismissed the said application.
The First
Respondent is also the Executive Director: Transportation of the
Third Respondent.
The
Second Respondent is one Mr MAV Dlamini, cited herein in his
official capacity as the decision-maker, in respect of the appeal,
lodged against the First Respondent’s refusal to grant the
Chapter 7 application. The appeal was lodged in terms of section
62
of the Local Government: Municipal Systems Act, No. 32 of 2000 (“
the
LGMS’s Act
”).
The Second Respondent dismissed the appeal against the First
Respondent’s decision. The Second Respondent is
also the City
Manager of the Third Respondent.
The
Third Respondent is the City of Johannesburg Metropolitan
Municipality, cited herein as having been established as a
Metropolitan
Municipality, by virtue of Provincial Notice 6766, of 1
October 2000 published in Provincial Gazette Extraordinary No. 141
on
1 October 2000 in terms of section 12 of the Local Government of
the LGMS Act (as amended).
The
Applicant seeks the following relief herein:-
“
Reviewing
and setting aside the decision of the first respondent in respect of
an application made by the applicant in terms of
Chapter 7 [section
45] of the Rationalisation of Local Government Affairs Act, No. 10
of 1998 (“the Act”) to restrict
access to the Bordeaux
South suburb in order to enhance safety and security.
Reviewing
and setting aside the decision of the second respondent in respect
of an appeal to him, lodged in terms of section 62
of the Local
Government Municipal Systems Act, Act 32 of 2000, against the
decision of the first respondent referred to in paragraph
1 above.
Correcting
the decisions referred to in paragraphs 1 and 2 above and only that
the Chapter 7 application be approved in terms
of section 45 of the
Act to the applicant for the restriction of access to the Bordeaux
South area in order to enhance the safety
and security of the said
area.
Alternatively
to paragraph 3 above, remitting the applicant’s Chapter 7
application for approval referred to in paragraph
2 above to the
first respondent for reconsideration by her with such directions as
the court may deem just.
Alternatively to
paragraphs 3 and 4 above, be remitted to the second respondent for
reconsideration with such directions as this
Court may deem just.
Ordering
the first and second respondents to pay the costs of this
application jointly and severally the one paying the other
to be
absolved.
Granting
the applicant such further and/or alternative relief as this Court
may deem just.
”
This
matter has a sorry history. It originated from an application in
terms of Chapter 7 of the RLGA Act, brought as far back
as February
2001 and in respect of which the Applicant received no response.
That application was re-submitted in an amended
form on 14 October
2009. Again, no response was forthcoming, despite verbal and written
communications and meetings between the
parties.
This
lack of response caused the Applicant to erect certain structures -
without approval - to the dissatisfaction of the Third
Respondent.
During
December of 2009 the Applicant brought an urgent application, in
which application the Applicant sought various relief,
including an
interim declaratory Order, that it could retain the existing
structures.
Significantly,
immediately prior to filing its answering affidavit in opposition to
this urgent application, the Third Respondent
furnished the
Applicant with a notice by the First Respondent, advising the
Applicant that its section 7 application had been
unsuccessful.
This
notice was dated the 1
st
February 2010, but only received on or about the 24
th
February 2010. The reason for dismissing the Applicant’s
application is scantily recorded as:-
“
1.
The urban functionality would be seriously affected because of the
size and scale of the proposed application. (Definition attached.)
”
1
Not
only is the stated reason devoid of any detail, but as if to add
insult to injury, a
“definition”
of
“
urban
functionality”
was insipidly attached to the aforesaid notice, (some two pages of
it). The Applicant was seemingly expected to do a comparison
–
between the stated reason and the definition - and work out for
itself, somehow, why its application was unsuccessful.
Even if one
attempts to take on this comparison, it is not possible to make any
sense of the stated “
reason”
for dismissing the Applicant’s Chapter 7 application.
There
is much to be said for the Applicant’s complaints about the
treatment it has received from the Third Respondent. The
timing of
this notice is significant as is the scarcity of reasons; or better
put – the total lack thereof. The intention
and purpose with
the filing of the notice on the date time that it was - advising the
Applicant that its Chapter 7 application
was unsuccessful - was
quite evidently to enable the Third Respondent to contend at the
hearing of the aforesaid urgent application,
that the purpose of
that application had fallen away.
Moreover
it cannot conceivably be said that this notice contained any reasons
at all. Mr Aucamp on behalf of the Applicant submitted
that when an
administrator makes a decision which amounts to administrative
action in terms of the Promotion of Administrative
Justice Act,
2
(“PAJA”), and furnishes no reasons therefor, that an
inference can justifiably be made that no reasons exist. The
submission is tempting. The obligation to provide reasons for
administrative action has always formed an essential part of our
Administrative Law and the obligation to do so is now a statutory
one; one so profound that non-compliance must unquestionably
have
consequences.
“
Someone
affected by an administrative action has the right to be furnished
with reasons for the action in writing. It is important
to have
access to the reasons that informed a particular administrative
action, since this will determine whether review thereof
is
possible.”
3
The
duty to furnish reasons burdens decision makers – with reason
- and thus lead to good administrative functioning.
4
The
ability to set aside – on review – an administrative
action, the unlawfulness of which has become apparent from
the
reasons furnished will be a welcome source of
“elation
and relief”
as
will be the refusal of reasons.
5
The
furnishing of no reasons for an administrative action likens the
refusal to provide reasons; which in turn evidences bad faith
and is
an important consideration in deciding if the decision had been
actuated by ulterior motive or improper motives.
6
If
I understand the Respondents’ case correctly – insofar
as the First Respondent’s decision is concerned –
it
contends that the First Respondent’s decision “
has
fallen away
” or
has been “
replaced
”
by the Second Respondent’s decision on appeal. Hence its
objection of “
misjoinder
”,
i.e. that the First Respondent ought not to have been joined herein
at all.
This
objection is without any merit. The First Respondent’s
decision continues to exist as a fact, irrespective of the fate
of
the Second Respondent’s decision.
7
Mr Memani, on behalf of the Respondents also contended that the
appeal cured any defects in the First Respondent’s decision.
As
a broad proposition, this submission is not sound. On the contrary -
and although there exists no hard and fast rules - the
ambit of an
appeal curing defects of an initial hearing, is limited entirely to
that where the appeal allows for a complete rehearing
de
novo,
totally
superseding the original decisional process and where the appeal
tribunal – by observing the precepts of natural
justice,
gathers completely fresh evidence in a fair manner and to weigh it
objectively and impartially.
8
I was not told that this was the case
in
casu
and
the papers do not make out such a case.
As
Baxter points out further, a complainant is entitled to fairness at
all stages of the decision-making process.
9
The learned author refers to the following dictum by Megarry J:-
“
If
the rules and the law combine to give the member the right to a fair
trial and the right of appeal, why should he be told that
he ought to
be satisfied with an unjust trial and a fair appeal?”
10
This
approach – with respect - should be the preferred approach in
our Law; especially with the advent of our Constitutional
dispensation.
I
cannot, on the facts before me find that the appeal cured the
initial defective decision. I also do not agree that this decision
“fell
away”
as a result of the second decision. Its continued existence –
if I leave it unattended – will have consequences;
11
even if I review and set aside the second decision.
As
far as the First Respondent’s decision is concerned, it
incontestably stands to be reviewed and set aside on the basis
that
it was actuated by no reason at all.
I
continue, with what I referred to, as the sorry history of the
matter. It was convenient to interpose my recordal thereof by
dealing with the merits of the attack on the First Respondent’s
decision at this juncture.
The
aforesaid urgent application served before Lamont J during March
2010 and the learned Judge ordered that:-
“
1.
The respondent is interdicted and restrained from removing the access
control structures erected and implemented by the applicant.
2.
An order granted in terms of prayer 1 above is to operate as an
interim order pending the final outcome of the applicant’s
Chapter 7 application (‘the applicant’s Chapter 7
application’) in terms of the Rationalisation of Local
Government
Affairs Act 10 of 1998 (‘the Act’) to the
respondent dated 14
th
October 2009 and all the exhausting of all the domestic remedies of
the Act and/or the respondent’s procedures pursuant to
the
outcome of the respondent’s decision by the applicant’s
Chapter 7 application.
3.
Any party opposing this application is to pay the costs of this
application.
”
12
The
Applicant filed an appeal against the First Respondent’s
decision, which dismissed its Chapter 7 application. It was
common
cause that this appeal had to be brought and was brought in terms of
section 65 of the LGMS Act.
13
As
was the case with the Applicant’s First and Second Chapter 7
applications, the Third Respondent did not respond, notwithstanding
many requests to do so and the fact that the consideration of the
appeal ought to have commenced within six weeks after the filing
thereof.
14
Moreover,
a dispute arose between the parties as to the interpretation of the
Order by Lamont J and as a result in June 2010,
the Applicant
brought a further application, which served before Makhanya J on an
unopposed basis. The Order granted therein
reads as follows:-
“
Pending
the finalisation of Part B of the applicant’s application under
the above case number and the finalisation of the
applicant’s
application under Chapter 7 of the Rationalisation of Local
Government Affairs Act, whichever is the latter:
The applicant is
authorised to retain those structures already in place and implement
it and immediately erect and implement the
further access control
structures referred to in paragraph 18 of the founding affidavit;
The
respondent is interdicted and restrained from removing such access
control structures.
”
The
aforesaid Order was made in respect of Part A of the notice of
motion to that application. The Third Respondent filed an
application for rescission of this Order by Makhanya J, which has
been, opposed but not prosecuted further, by the Third Respondent.
Part
B of the aforesaid notice of motion was thereafter set down for
hearing on 27 October 2010. Again – significantly
so - on the
morning of 27 October 2010, the Applicant’s attorney was
advised telephonically that the Applicant’s
appeal had been
dismissed. The matter served before Willis J who granted the
following order:-
“
1.
The applicant is authorised to retain the structures already
implemented and erected by it, during the finalisation of a review
application to be instituted by the applicant by a court of first
instance.
2.
The applicant is ordered to file its review application on or before
close of business on Monday 8 November 2010, in which event
the order
in 1 above will automatically lapse and in which event the applicant
will be liable for the costs of this application.
3.
The costs of this application will be costs in the review
application, save for the costs already awarded by Motloung AJ.
”
The
decision by the Second Respondent, to dismiss the Applicant’s
appeal, reads as follows:-
“
Please
be advised that your appeal was considered in terms of
section 62
of
the
Local Government: Municipal Systems Act, 2000
, and has been
dismissed.
In
accordance with the provisions of the
Promotion of Administrative
Justice Act, 2000
, the reason(s) for the above decision are as
follows:
Access
to the existing commercial land use in the area namely, the Engen
petrol filling station, a school, as well as a sports
club will be
affected by the proposed closures;
There
are two through roads, namely Garden Road and Main Road through the
area that carry more than 900 vehicles per peak hour,
therefore
mobility on this running roads such as Jan Smuts Avenue will be
affected if this access restriction is approved;
Not
all residents in this proposed action restricted area supported the
closure as 19 objections were received.
You
are advised that due to the fact that this an
[
sic
]
appeal for purposes of
section 62
of the
Local Government: Municipal
Systems Act, 2000
, no further internal appeal is possible.
”
15
The
Applicant brought this review application on or about 8 November
2010 and there is no indication that it was brought late.
The
structure of the review application and the response thereto warrant
comment. From my recordals herein thus far, it would
be clear that
the matter is not all that factually challenging. Yet, the record
comprises of some 1 162 pages, excluding lengthy
heads of argument.
The Applicant included many allegations herein, unrelated to this
review application; which properly should
be restricted to the
evidence which served before the decision-makers. This is not a wide
review which would allow me to take
new facts into consideration
upon review.
It
may well have been desperation or sheer
exasperation – I do not know – but what is clear is
that
the Applicant took its eye off the ball. The Respondents are not
blameless from this criticism. They rose to every occasion
and
responded in as much detail to new and irrelevant evidence, which
never served before the two decision-makers herein. It
is one thing
– in a review application - to include evidence, the purpose
of which is to show bias and which would comprise
of evidence which
did not serve before the decision maker; but it is quite another to
include allegations which pertain to the
merits of the review
application - which did not serve before the decision maker - in an
attempt to show the wrongness of the
decision. This is
impermissible.
Reading
these papers was a very time-consuming exercise, made increasingly
difficult by my attempts to try and ascertain what
constituted
evidence which served before the two decision-makers and what did
not. I confess to simply giving up at some stage
and opted –
rather – to enquire from Mr Aucamp on behalf of the Applicant,
at the commencement of the argument herein,
to indicate to me which
portions of the papers are indeed relevant. I record his responses
herein as it may hopefully assist
another Court enjoined to undergo
the same exercise I did. I was informed that:-
The
second Chapter 7 application appears at pages 286 to 620.
The decision by the
first respondent appears at page 116 to 118.
The
appeal appears at pages 119 to 125.
The decision by the
second respondent in respect of the appeal appears at page 177.
The record of the
proceedings which was filed in terms of
Rule 53
appears at page 284
to 855.
I
have not had regard to that evidence which did not serve before the
two decision-makers herein, in so far as it related to the
merits of
the decisions. I did have regard to the previous litigation herein
as it impacts on a defence raised by the Respondents
that the
Applicant’s application should not be entertained by reason of
the fact that the Applicant comes to Court with
“
bloody
hands
”.
It
is convenient to deal with this defence at this stage. Mr Memani
submitted a lengthy argument, and referred me to many authorities,
in support of his submission that the Applicant’s application
should not be entertained, by reason of the fact that it
resorted to
self-help - by unlawfully erecting structures – and it is thus
guilty of sedition. Without belabouring the
point, I am unable to
find that this is so, by reason of the existence of the aforesaid
Court Orders; which allow the Applicant
to retain its structures and
in fact disallow the Third Respondent from removing it. I am unable
to find that the Applicant comes
to Court with unclean hands and
moreover, to the extent that I may not entertain its application.
I
also did have regard to the history of the matter and the Third
Respondent’s conduct in relation thereto. Having regard
to the
manner in which:
the
Third Respondent failed to deal with the Applicant’s initial
Chapter 7 application - for nearly 8 years;
the
Third Respondent failed to timeously deal with the Applicant’s
second Chapter 7 application;
the
Third Respondent – a day or two before it had to file its
answering affidavit in the first urgent application –
filed
the First Respondent’s “
reason
”
for dismissing the Applicant’s second Chapter 7 application;
the
Third Respondent only filed its reasons for dismissing the
Applicant’s appeal against the First Respondent’s
decision on the day that Part B of the Applicant’s second
application was to be heard before Willis J;
the
total lack of reasons provided in the First Respondent’s
notification and the insufficiency of reasons provided in
the
Second Respondent’s notification;
leave
me with the distinct impression of a local government institution
which, either does not care, or is hell bent on frustrating
the
Applicant’s Chapter 7 application/s. There exists no other
guesses for this conduct.
The
Third Respondent is of course entitled – and in fact duty
bound to disagree and to dismiss Chapter 7 applications -
if lawful
reasons exist to do so – but its conduct herein smacks of an
institution who never had any intention of affording
this matter its
due attention and consideration. Its apparent apathy in dealing with
matters of understandable concern to the
Applicant and its
constituency is telling; and leaves one with a sense of disquiet.
The
First Respondent’s failure, to deal with the Chapter 7
applications and the appeal within reasonable periods of time,
together with the Third Respondent’s designed timing in
furnishing the First and Second Respondents’ reasons,
justifies
a finding that some form of bias against the Applicant
exists.
It
was unquestionably incumbent upon the Third Respondent to explain
its apparent apathy or (deliberate) lack of action, as the
Applicant
expressly contends. I do not find any plausible or satisfactory
explanation for the delays, let alone any explanation
as to why the
two decisions in question had to be filed on the dates and times,
when they were in fact filed; which in turn leads
to a justifiable
conclusion that the timing thereof was deliberate, in designed
attempts to frustrate. A sufficient case has
been made out, to show
bias and both decisions ought to be reviewed and set aside –
for this reason.
I
now turn to deal with another ground of review which affects both
decisions. It is this. Section 45(2) of the RLGA Act provides
as
follows:-
“
After
receiving the application, the municipal council must arrange for a
meeting to be convened with the applicant and the South
African
Police Service for purposes of enabling it to determine –
the merits of the
application; and
the
terms and conditions for granting the authorisation including the
payment of fees and deposits.
”
It
is not in dispute that such a meeting was not held. I need only
decide whether such non-compliance constitutes a reviewable
irregularity. This in turn depends on a finding if the requirement
is merely a direction or whether it is peremptory; and if
it is
peremptory, if there had been substantial compliance with this
requirement.
Whether
a provision contained in a statute is peremptory or directory is
determined,
inter
alia
,
with reference to the language of the provision, the scope and
purpose of the statute and the context within which the relevant
provision appears in relation thereto and the consequences, as
regards possible inconvenience; which may even be more undesirable
than the non-compliance itself.
16
The
use of the word “
must
”
in section 45(2) is significant, although not finally determinative.
The use of the words “
must
”
or “
shall
”
generally indicates that the intention of the legislature was to
create a peremptory, obligatory, mandatory or imperative
obligation.
17
Steyn states the
following:-
“
Die
woord ‘moet’ (‘shall’) gee gewoonlik
uitdrukking aan ‘n nietigheidsbedoeling. Dit is in
ooreenstemming
met die algemene reel dat ‘n handeling in stryd
met die wet verrig, nietig is.
”
18
Mr
Memani on behalf of the Respondents, on the other hand submitted, in
his heads of argument, that:-
“
45. It
is submitted that the holding of a meeting is not the essence of
section 45(2). The essence is to get the views of SAPS
on matters
that fall within their constitutional mandate. Thus, it could not be
a ground of invalidity that a local authority discussed
the
application with the local station commissioner an applicant
telephonically or on the internet instead of holding a meeting.
46. Furthermore,
it is difficult to see how an objector could be successful in having
an approval set aside on the basis that section
45(2) has not been
complied with in its ipsissima verba where, as in casu, the SAPS have
expressed their support for the application,
such support having been
solicited by, and brought to the attention of the local authority by
the applicant itself. Even worse,
it is also difficult to see how an
applicant, such as the present one, having solicited, and having got
the support of the police
for the application could successfully
claim that the approval were
[
sic
]
invalid, where, as in casu, the disapproval is based on reasons that
had nothing to do with the expertise of the police based on
their
constitutional mandate such as health, economic, traffic, or social
reasons.
”
The
gist of Mr Memani’s submission – as I understand it –
is this. Section 45(2) specifically requires a meeting
between an
applicant, the local authority and the South African Police, which
means that the purpose of the meeting is to be
confined to issues
where the SAPS can contribute, i.e. on issues relating to security
and nothing else. I do not agree. In
the interpretation of a
provision of a statute, our Courts adopt a purposive,
(“
doeldienende
”),
approach. In my view, section 45(2) must be read against the
backdrop of the entire Chapter 7 of the RLGA Act, which
deals with
“
restriction of
access to public places for safety and security purposes
”.
It
is true, as Mr Memani submits that an application such as this
involves much more than simply security issues. This having
been
said, it can thus not be found that the purpose of such a meeting
between an applicant, the local authority and the SAPS,
is to deal
with security issues only. Moreover, the section itself –
expressly – provides that a meeting must be
held:- “
…
for purposes of enabling it to determine – (a) the merits of
the application; and (b) the terms and conditions
for granting the
authorisation including the payment of the fees and deposits
”.
It
is clear that the section itself requires that the
merits
of the application
must
be discussed at such a meeting; which of necessity involves issues
wider than – and not just restricted to - security issues.
It
cannot - conceivably - be otherwise.
Upon
a proper construction, in my view, the section primarily provides
for the right to be heard by an applicant, (
audi
alteram partem
), on
the merits of the application and the terms and conditions for the
granting of the authorisation at such a meeting; and
that at this
meeting, the SAPS must also be present. The requirement of the
presence of the SAPS is quite obviously to deal with
security and
safety issues, but the purpose of the meeting between such an
applicant and the local authority is not restricted
to only security
issues. That would defeat the object of the compulsion to meet, for
the purposes of enabling the local authority
to determine the merits
of the application and the terms and conditions of the
authorization.
The
requirement in section 45(2), to arrange and hold a meeting between
the local authority, an applicant and the SAPS is peremptory;
non-compliance of which would render any consequent decision/s a
nullity.
In
the premises therefore the First and Second Respondents’
decisions ought to be reviewed and set aside for this reason
- quite
apart
-
of what I found
herein above.
It
is thus not necessary for me to say anything further. By reason,
however, of the fact that I am not inclined to substitute
the First
and Second Respondents’ decisions with my own and that I am
disposed to referring the matter back to the Third
Respondent for
fresh consideration, a number of related issues warrant mention.
The
first is that the Applicant in its notice of motion, albeit in the
alternative, seeks orders that I refer the matter back
to the First
and Second Respondents for decision. I understandably cannot do
this. I intend to refer the matter back to the Third
Respondent,
with the express ordinance that officials, other than the First and
Second Respondents, be involved and entrusted
with the
decision-making process.
The
reasons provided by the Second Respondent for dismissing the
Applicant’s appeal also warrants some comment. Mr Aucamp
on
behalf of the Applicant strongly submitted that these reasons by the
Second Respondent are factually incorrect, save for the
allegation
that Garden Road is a through road. Mr Aucamp submitted that these
were issues which could and would have been resolved
had a meeting
in terms of section 45(2) been held. On the face of it, there seemed
to be much substance in the attack on the
veracity of the stated
reasons and the Third Respondent will be well advised to have regard
to the criticisms thereof. I was
unprepared, however, to make any
definitive findings in this respect, by reason of the fact that it
was near impossible to dissect
the evidence and to decide which
evidence served before the decision makers and which did not. There
was an unfortunate overlap
in the way the papers were presented –
as I have stated herein above - and I am unable to find that the
stated reasons
are factually incorrect.
In
the premises I hold the view that the First and Second Respondents’
decisions stand to be reviewed and set aside. I
intend remitting
the matter back to the Third respondent for reconsideration and in
order to ensure that there are no longer
any delays I intend to
include set periods within which decisions have to be made in this
regard. I also intend to ensure that
the First and Second
Respondents are no longer involved in the decision-making process.
Pending the outcome of the reconsideration
of the Applicant’s
Chapter 7 application I intend to extend prayer 1 of the order by
Willis J.
In the premises I make
the following order:
The
decision by the First Respondent, dated the 1
st
of February 2010, a copy of which appears at pages 116 to 118 of the
Applicant’s founding affidavit herein, is hereby reviewed
and
set aside.
The
decision by the Second Respondent, dated the 20
th
of October 2010, a copy of which is attached to the applicant’s
founding affidavit at page 177, is hereby reviewed and
set aside.
The
Applicant’s application in terms of Chapter 7 of the
Rationalisation of Local Government Affairs Act, No. 10 of 1998,
to
restrict access to the Bordeaux South Suburb, Johannesburg is hereby
remitted back to the Third Respondent for reconsideration.
Such
reconsideration may not involve the First or Second Respondents.
Such
reconsideration must be finalised within two months of the date of
this order.
Any appeal against such
reconsideration must be finalised within two months of the date of
the lodging of an appeal.
Pending
the outcome of the reconsideration of the Applicant’s
application in terms of Chapter 7 of the Rationalisation of
Local
Government Affairs Act, No. 10 of 1998, as aforesaid, (and any
appeals in respect of it), the Applicant is authorised to
retain the
structures already implemented and erected by it.
The
Third Respondent is hereby ordered to pay the Applicant’s
costs, including the costs of those matters which were made
to be
dependent on the outcome herein.
_______________
LEON
HALGRYN
ACTING
JUDGE OF THE
SOUTH
GAUTENG
HIGH
COURT,
JOHANNESBURG
1
At page 116.
2
No
3 of 2000.
3
LAWSA, Volume 2, Second Edition, Paragraph 31. Section 33(2) of the
Constitution of the Republic of South Africa, 1996, read
with
section 5 of PAJA.
4
BEL
PORTO SCHOOL GOVERNING BODY V PREMIER OF THE WESTERN CAPE
[2002] ZACC 2
;
2002 9
BCLR 891
(CC);
2002 3 SA 265
(CC), at paragraph 159.
5
DENDY V UNIVERSITY OF THE WITWATERSRAND
2007 8 BCLR 910
(SCA);
2007
3 ALL SA 1
(SCA) paragraph 18.
6
JUDES
DISTRICT V DISTRICT REGISTRAR OF MININING RIGHTS, KRUGERSDORP
1907
TS 1046
, 1052; DENDY V UNIVERSITY OF THE WITWATERSRAND, JOHANNESBURG
2005 9 BCLR 901
(W);
2005 2 ALL SA 490
(W); MAFUYA V MUTARE CITY
COUNCIL
1984 2 SA 124
(ZH) 133F.
7
OUDEKRAAL ESTATES v CITY OF CAPE TOWN 2004 (6) 222 (SCA).
8
BAXTER, ADMINITSTRATIVE LAW, JUTA AND CO LTD, at p589-590. CALVIN V
CARR
[1979] UKPC 1
;
[1980] AC 574
, 592ff; TURNER V JOCKEY CLUB OF SA
1974 (3) SA
633
(A).
9
Supra,
at 588.
10
LEARY V NATIONAL UNION OF VEHICLE BUILDERS [1971] Ch 34, 49.
11
See
OUDEKRAAL, Supra.
12
A copy of the Order appears at page 131.
13
A copy of the notice of appeal appears at pages 119-125.
14
This
was also common cause and in terms of the LMGS – Act.
15
A copy of the notice appears at p177.
16
WENEN TRANSITIONAL LOCAL COUNCIL V VAN DYK
2000 (3) SA 435
(N) at
442; LYBRANDT V SOUTH AFRICAN RAILWAYS
1941 AD 9
at 12-13.
17
See E, K GOVENDER, D H HULME; ADMINISTRATIVE LAW AND JUSTICE IN
SOUTH AFRICA, pp 250-258. See also L C STEYN, DIE UITLEG VAN
WETTE,
5
th
ed, Juta at p 196.
18
STEYN;
supra
at p196. See also the authorities which STEYN refers to in footnote
22 at p 196. Mr Aucamp on behalf of the Applicant also referred
me
to FEINBERG V PIETERMARITZBURG LIQOUR LICENSING BOARD
1953 (4) SA
415
(A); NAIDOO V DIRECTOR OF INDIAN EDUCATION AND ANOTHER 1982 (4)
SA (NPD) 278; MAHARAJ AND OTHERS V RAMPERSAD
1964 (4) SA 638
(A) at
643E-644B.