Chase Street Properties (Pty) Ltd v MEC: Department of Housing, Local Government & Traditional Affairs and Others (1345/08) [2009] ZAECPEHC 17 (28 April 2009)

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[2009] ZAECPEHC 17
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Chase Street Properties (Pty) Ltd v MEC: Department of Housing, Local Government & Traditional Affairs and Others (1345/08) [2009] ZAECPEHC 17 (28 April 2009)

IN THE HIGH COURT OF
SOUTH AFRICA
(
EASTERN
CAPE - PORT ELIZABETH
)
CASE
No. 1345/08
NOT
REPORTABLE
In
the matter between:-
CHASE
STREET PROPERTIES (PTY) LTD
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL, DEPARTMENT OF
HOUSING,
LOCAL GOVERNMENT AND TRADITIONAL AFFAIRS
First Respondent
NELSON
MANDELA BAY METROPOLITAN MUNICIPALITY
Second Respondent
KINI
BAY VILLAGE ASSOCIATION
Third Respondent
D
T BROADHURST
Fourth Respondent
MRS
ANN CALCUTT
Fifth Respondent
MR
HENRY E D VAN ROOYEN
Sixth Respondent
MR
BEN HOUGH RUST
Seventh Defendant
MR
RICHARD G LUYT
JUDGMENT
Van
der Byl, AJ:-
[1]
In this matter I on 23 April 2009 granted an order in the following
terms:
“
1.
That the decision of the First Respondent taken on 3 April 2008 to
uphold the appeals against the approval of the application
for
rezoning of Erf 78, Kini Bay, by the Second Respondent in terms of
the Land Use Planning Ordinance, 1985 (Ordinance 15 of 1985),
is
hereby reviewed and set aside.
2.
The First Respondent is ordered to pay the costs of this
application.
”.
At
the time I indicated that I will furnish my reasons for granting this
order at a later stage.
The
reasons that follow are my reasons.
[2]
The Applicant sought, in addition to the usual order of costs, an
order -
(a)
reviewing and setting aside the appeal proceedings in which the
First Respondent, being the Member of the Executive Council
of the
Eastern Cape Province for Housing, Local Government and Traditional
Affairs, upheld an appeal by the Third and Fourth Respondents
against
the decision of the Second Respondent, being the Nelson Mandela
Metropolitan Municipality, to approve the Applicant’s
application
for the rezoning of Erf 78, Kini Bay, from Residential Zone 1 to
Special Purposes (Guest House and Conference facility)
in terms of
the Land Use Planning Ordinance, 1985 (Ordinance 15 of 1985);
(b)
extending the 180 day period prescribed by the Promotion of
Administrative Justice, 2000 (Act 3 of 2000).
[3]
It was at the hearing of this matter not an issue that there was any
need for the extension of the 180 day period prescribed
by the
Promotion of Administrative Justice, 2000, and I will accordingly
refrain from dealing with the relief sought in that regard.
[4]
Although the Second and Third Respondents filed answering affidavits
in this matter the application is opposed only by the
First
Respondent.
The
Third, Fourth, Fifth, Seventh and Eighth Respondents filed a notice
to the effect that they will abide by the decision of this
Court.
The
Sixth Respondent did not respond to the application at all.
[5]
It is common cause that an application by the Applicant for the
rezoning of its property, Erf 78, Kini Bay, with physical address
at
15 Seaview Drive, Port Elizabeth, from “
Residential 1 Purposes
”
to “
Special Zone
” so as to enable it to operate a guest
house with conference facilities on that property was approved by the
Second Respondent
on 19 October 2006 by virtue of the powers vested
in it by the Land Use Planning Ordinance, 1985 (Ordinance 15 of 1985)
(“
the Ordinance
”).
By
virtue of this approval the Applicant commenced trading as a guest
house and has expended considerable amounts of capital in
the form of
start up and operating finance.
[6]
On 10 April 2008, ie., almost 18 months after the decision rezoning
the Applicant’s land was taken, however, the Applicant
received a
fax from its agents, Metroplan, to which was annexed a letter dated 9
April 2008 addressed to the Fourth Respondent
by the
Superintendent-General of the First Respondent’s Department to the
effect that the First Respondent has on 3 April 2008
upheld certain
appeals against the rezoning of Applicant’s Erf for reasons set out
therein.
[7]
It appears that, apart from a copy of a letter,
Annexure TX 1
(belatedly annexed to the First Respondent’s Heads of Argument),
faxed to the deponent of the Applicant’s founding affidavit
on 17
April 2007, the Applicant received no notice of the Third and Fourth
Respondents’ appeal lodged against the Second Respondent’s

decision.
The
letter,
Annexure TX 1
, is a letter addressed by the
Superintendent-General of the First Respondent’s Department to the
Municipal Manager of the Second
Respondent informing him that an
appeal dated 16 April 2007 was received from an attorney, Mr. Robert
Martindale, acting on behalf
of the Third Respondent and individual
residents who objected against the rezoning of the property
concerned. Furthermore, the
Second Respondent is requested therein to
advise the First Respondent on certain matters raised therein and to
ensure that all
the necessary documentation “
as laid down in the
application form
” is forwarded to the Department.
[8]
In compliance with a request by the Applicant for access to the
record of the appeal proceedings, voluminous documents, marked
Appendixes A and B
, were made available to the Applicant from
which it appears that extensive representations were made on behalf
of persons and entities
objecting against the rezoning of the land
concerned and reports prepared by certain functionaries of the First
Respondent, none
of which, let alone the notices of appeal, was ever
made available to the Applicant.
[9]
The Applicant’s application is based on a contention that it was
not afforded a fair or any hearing in the appeal proceedings
(see:
Unreported judgment in this Division under Case No. 2147/06 in the
case of
Hercules Salomo Du Plessis v MEC of Housing, Local
Government and Traditional Affairs, Eastern Cape Province and Others
delivered on 31 August 2006).
[10]
In an opposing affidavit filed by the First Respondent the
application is vehemently opposed by the First Respondent on the

grounds thereof -
(a)
that, relying on the letter,
Annexure TX 1
, the Applicant was
at least as from 17 April 2007 aware of the existence of the appeal;
(b)
that she considered a site inspection conducted by the spatial
section of the Department and the recommendations of the Planning

Advisory Board, the Manager, Land Use Management, the Head, Legal
Support Services, the General Manager, Spatial Planning and Land

Development Administration, the Deputy Director-General,
Developmental, Local Government and the Superintendent-General of the

Department.
[11]
A scrutiny of the papers show that this matter is riddled with
irregularities.
[12]
In this regard and before dealing with the irregularities I first
need to refer to the legal provisions relevant to appeals
against
decisions taken in this regard by the Second Respondent.
[13]
Applications for rezoning of land are dealt with and considered by a
municipal council under the provisions of sections 16
and 17 of the
Ordinance which provide for -
(a)
extensive notice to be given to interested parties and the
publication of any such applications for general information;
(b)
an applicant to be afforded an opportunity to respond to any
objections received.
[14]
There is no dispute on the papers that the Applicant’s application
was duly considered in accordance with these provisions
and
eventually duly approved by the Second Respondent.
I
may, however, mention that the Third Respondent launched proceedings
in this Court seeking an order reviewing and setting aside
the Second
Respondent’s decision, but the Third Respondent seems to have
elected not to proceed with that application after an
application for
it to provide security for costs was granted in this Court on 3 April
2006 being an order which was confirmed on
appeal by the Supreme
Court of Appeal.
[15]
In terms of section 44 of the Ordinance -
(a)
a person who has,
inter alia
, objected to the granting of
any application in terms of the Ordinance, may appeal to the
Administrator (now the First Respondent),
in such manner and within
such period as may be prescribed by regulation, against the granting
of such application;
(b)
the First Respondent may, after consultation with the council
concerned, in his or her discretion,
inter alia
, uphold any
such decision.
[16]
In terms of the regulations promulgated under the Ordinance by
Provincial Notice No. 1050 of 5 December 1988 -
(a)
a decision against which an appeal is received shall in terms of the
proviso to regulation 20 be suspended;
(b)
the municipal council is in terms of regulation 21 enjoined to
notify the applicant if no appeal is received from an objector
within
two weeks as from the date on which the decision was taken;
(c)
an appellant is in terms of regulation 22 enjoined to exercise his
or her right of appeal within two weeks as from the date
he or she is
notified of the decision and at the same time to serve a copy of his
appeal on the council concerned;
(d)
an appeal referred to in regulation 22 shall, as provided in
regulation 23, be in writing and be accompanied by all relevant

documents submitted together with confirmation that a copy of the
appeal has been served on the council;
(e)
a council shall in terms of regulation 24 submit the council’s
comments and recommendations, if any, to the First Respondent’s

Department within one month of the date on which the copy of the
appeal reached its office.
[17]
Against this background, I can now revert to the factual averments
contained in the papers.
[18]
In
the first place
it appears that the Fourth
Respondent was not one of the objectors in the application by the
Applicant for rezoning and, therefore,
as appears from section 44 of
the Ordinance, had no right of appeal.
[19]
In
the second place
the Third Respondent failed to
serve a copy of its notice of appeal on the Applicant or the Second
Respondent.
[20]
In
the third place
the First Respondent failed to
consider the application launched by the Applicant to the Second
Respondent and all the documents
relevant to that application, such
as, for example, a letter addressed on 19 August 2005 by Metroplan to
the Second Respondent’s
Business Unit Manager together with
ancillary annexures, such as, an Environmental Management Report from
a certain Dr. Cohen.
In fact it would appear that the appeal was
considered mainly on the papers submitted by the objectors and seems
to have been based
on their contentions that the Applicant failed to
comply with the conditions on which the rezoning was approved. It,
furthermore,
appears that an appeal by the Applicant itself against
some of the conditions imposed was never considered.
[21]
In
the fourth place
the notice of appeal was never
served or provided to the Applicant together with all documentation
submitted to the First Respondent
on which her decision was based so
as to afford the Applicant an opportunity to respond thereto or to
participate in the appeal
proceedings which in effect constituted a
re-hearing of the matter. The Applicant had a right to be heard (see:
Hayes v Minister of Housing, Planning & Administration,
Western Cape
1999 (4) SA 1229
(C) at 1248H
).
[22]
In
the fifth place
the First Respondent failed, as
required by section 44(2) of the Ordinance, to consult with the
Second Respondent. The only communication
between the First
Respondent and the Second Respondent was an invitation by the former
to the latter to submit preliminary comments
on the appeal. In my
view that constituted no consultation as envisaged in the Ordinance
(see:
Hayes case, supra, at 1242H
).
[23]
It is apparent from the aforegoing that the Applicant received,
apart from a copy of the letter
Annexure TX 1
telefaxed to it,
no notification of the appeal and afforded an opportunity to
participate in the appeal proceedings. The letter
Annexure
TX 1
refers in any event to an appeal filed out of time which on
the face of it appears therefore to have been an invalid document.
One would have expected the First Respondent to have at least
afforded the Applicant an opportunity to respond to the application

for condonation contained in the Third Respondent’s notice of
appeal.
[24]
The provisions of the Ordinance and the regulations made thereunder
are to be construed in the spirit, purport and objects
of the Bill of
Rights and on this basis the Applicant should have been afforded a
proper opportunity by the First Respondent and,
I add, by the
appellants, to respond to the appeal in accordance with the
provisions of section 33 of the Constitution. On its
rezoning having
been approved by the Second Respondent the Applicant must obviously
have had at least a legitimate expectation
to be heard which entailed
it being furnished with all relevant documentation before a decision
adverse to its rights being taken,
being a decision which seems to
have been taken on,
inter alia
, new matter.
[25]
I was accordingly of the view that the application was bound to
succeed.
[26]
I was urged by Mr. Gqamana who appeared on behalf of the Respondent
to remit the matter for reconsideration to the First Respondent.
I am
not inclined to do that. The matter is, as I have already indicated,
riddled with irregularities and it is in my view in the
best
interests of justice that, should there be a need for the matter to
be reconsidered, the matter should be dealt with afresh.
It
is for these reasons that I made the order set out in paragraph [1]
of this judgment.
...............................
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANT
ADV A BEYLEVELD
On
the instructions of:- MICHAEL RANDELL ATTORNEYS
33
Bird Street
Central
PORT
ELIZABETH
Ref
: Mr M W Randell/cvv/KOL20/0004
Tel:
(041) 585 9244
ON
BEHALF OF FIRST RESPONDENT ADV N GQAMANA
On
the instructions of: STATE ATTORNEY
29
Western Street
Central
PORT
ELIZABETH
Ref:
Mr. Mnyande 988/2008/b
Tel:
(041) 585 7921
DATE
OF HEARING 23 April 2009
REASONS
FURNISHED ON 28 April 2009