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[2018] ZAECPEHC 28
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Kotze and Another v MEC of Co-operative Governance and Traditional Affairs (Land Use Management and Administration, Eastern Cape) and Others (1878/2017) [2018] ZAECPEHC 28 (26 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 1878/2017
Date
heard: 14 June 2018
Date
delivered: 26 June 2018
In
the matter between:
ARNOLD
ALBERT
KOTZE
First
Applicant
MARIA
REGINA
KOTZE
Second
Applicant
vs
THE
MEC OF CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS (LAND USE MANAGEMENT
AND
ADMINISTRATION, EASTERN
CAPE)
First
Respondent
THE
KOUGA
MUNICIPALITY
Second
Respondent
THE
ST FRANCIS FIELD HOME OWNERS ASSOCIATION
Third
Respondent
JUDGMENT
MSIZI
AJ:
Introduction
[1]
This is an application for the following relief:
"1. Reviewing and setting
aside the first respondent's decision dismissing the applicants'
appeal in terms of section 44 of
the Land Use Planning Ordinance No.
15 of 1985 against the decision by the second respondent to disallow
the subdivision of Erf
[…] Cape St Francis.
2. Substituting the decision made
by the first respondent for dismissal of the applicants' appeal
aforesaid, with an order permitting
subdivision of Erf […]
Cape St Francis, in the manner sought by the applicants when applying
for consent to do so to the
second respondent.
3. Directing the first respondent
to pay the costs of this application, as well as any other respondent
who opposes this application,
jointly and severally (as the case may
be), the one paying, the other/s to be absolved.
4. Granting the applicants such
further and/or alternative relief as this Honourable Court may deem
fit."
[2]
Only the first respondent is opposing this application.
[3]
The main ground of attack in support of the first prayer, was that
the impugned decision was influenced by an error of law;
was
irrational and the first respondent failed to consider all the
material facts.
[1]
Also that the first respondent did not follow due process. In support
of the second prayer the applicants complained of real or
at least
perceived bias of the first respondent.
[2]
[4]
Most of the facts giving rise to this application are common cause or
at least not countermanded. The summary of those facts
follow.
[5]
The applicants purchased erf [...] Cape St Francis in December 2006
("the property"). The property is situated at
St Francis
Field, in an estate known as the Airpark. It has several owners.
Airpark is governed in terms of a constitution which
binds all the
owners in that estate.
[6]
On 11 September 2012 the applicants submitted an application to the
second respondent in terms of section 25 of the Land Use
Planning
Ordinance No. 15 of 1985, ("LUPO") for the sub-division of
their property. At that point, the third respondent
had embarked on
efforts to amend its constitution. On 30 March 2013 the third
respondent amended its constitution. At that point
the decision of
the second respondent was still outstanding.
[7]
On 2 April 2013, the third respondent filed an objection to the
proposed sub division with the second respondent. It explained
its reasons thus:
''At the AGM of the St Francis Field Homeowners
Association held on the 301h of March 2013,
a
motion was
carried that the Association does not support Mr Kotze's application
to subdivide Erf […]. Besides the overwhelming
majority of
members of the Association voting against Mr Kotze's application, the
Association cannot support the application as
sub division of
any erf on the Airpark is forbidden by the constitution of the
St
Francis Field Homeowners Association of which Kotze is
a
member by virtue of him being owner of Erf […]. The minimum
size of
a
residential erf on the Airpark was set at 6 800m2
per the letter HUM746/59 of the Algoa Regional Services Council dated
14 December
1993. In light of the above, the
St
Francis Field
Homeowners Association opposes Mr Kotze's application to subdivide
Erf […]."
[8]
This objection prompted the applicants to file a further submission
to the second respondent. They prevailed upon the second
respondent
to keep in mind that their application was submitted before the
amendment of the constitution of Airpark. The previous
constitution
did not prohibit sub-divisions like the new constitution. The second
respondent was thus enjoined to determine their
application on the
basis of the now repealed constitution. Furthermore, no fewer than
five residential stands in the estate had
less than 6,800 square
metres. The third respondent had been party to the sub-division of at
least two of those. There submission
was that it was not accurate
that there is a compulsory minimum size of the individual erven in
Airpark.
[9]
On 20 August 2013, the second respondent resolved, by council
resolution 13/07/1PD4, not to approve the sub-division. It cited
the
new constitution of the third respondent and the size limits of erven
in Airpark as the reasons for its decision. It referred
to the
approval of the Algoa Regional Services Council dated 14 December
1993, which stipulated a minimum size for the plots in
Airpark.
[10]
The applicants were aggrieved by this. Consequently, they lodged an
appeal with the first respondent on 5 September 2013. On
30 September
2013 the first respondent solicited a comment on that appeal from the
second respondent.
[11]
On 6 January 2017, the applicants' attorneys received the
outcome of the appeal. The first respondent resolved that the appeal
against
the second respondent's decision to refuse the granting of
the application for the sub-division of the property be dismissed.
The
reasons advanced by the first respondent were the following:
(i) the third respondent did not
support the application;
(ii) the second respondent had refused
the application.
THE
CONSTITUTION OF THE THIRD RESPONDENT
[12]
Mr Bey/eveld SC
representing the applicants, argued
that the reliance of the first respondent on the new constitution was
an error of law. For support
of this argument, he referred to an
unreported decision of the Full Bench of the Western Cape Division in
Noel-Greve v Markus Mueller and Others:
case no
A348/2013, dated 5 February 2014. In considering an appeal before
him, the MEC: Environmental Affairs and Development Planning:
Western
Cape, relied on a by-law that had been repealed in the period between
the initial decision appealed against and the determination
of that
appeal. The applicant sought the review of the decision of the MEC on
the basis that it had been informed by an error of
law. The full
bench, relying on section 12(2)(c), (d) and (e) of the Interpretation
Act 33 of 1957 concluded that the MEC had been
entitled to and
obliged to have regard to the provisions of the repealed by-law
notwithstanding its repeal as it was the law applicable
at the time
he made his decision.
[13]
Mr Beyleveld SC
thus contended that the amendment in
the new constitution which now prohibited sub-divisions was a
nullity.
[14]
The case relied on by the applicants is clearly
distinguishable from the present. The present case relates to the
constitution of
the third respondent. The constitution is not a law
but rather a contract that governs the rights and obligations between
the members
of the third respondent. The binding nature of the
constitution at the time of the second respondent's decision is
entirely independent
of any statutory consideration. Its
interpretation is thus not subject to the Interpretation Act or any
statute for that matter.
[15]
The current constitution of the third respondent was in place
at the time of the first decision by the second respondent and also
at the time of the decision of the first respondent. The second
respondent had relied on it and so did the first respondent. Both
the
first and second respondent were enjoined to adjudicate the matter on
the basis of valid and applicable regulatory dispensation
at the time
they made their decisions.
[16]
The applicants themselves accept the binding authority of the
constitution of the third respondent on them, that the third
respondent
is a voluntary association whose members, are
contractually bound to adhere to the respective obligations imposed
on them when
subscribing to it. They also accept that the
constitution of a voluntary association constitutes a contract
between its members
provided that such rules accord with the dictates
of natural justice and are implemented in a
bona fide
manner.
[17]
Anyway it is incorrect that the applicants had a vested right
to sub-division as at 30 March 2013 when the new constitution came
about. The old constitution does not contain that right. It simply
did not preclude sub-division. So an owner could apply for
sub-division. That application which could be disapproved. That
application would be considered in terms of section 23 (1) of LUPO.
That section prohibits sub-division of any land except in accordance
with an application granted under section 25 of LUPO by either
an
administrator or by scheme regulations, a council unless the
administrator exempts such division from the provisions of Chapter
111 of LUPO governing sub division. So, all that the applicants
had at the time of the launch of their application, was an
entitlement to apply for a sub-division in terms of section 25 (1) of
LUPO. Nothing more, nothing less.
THE
MINIMUM SIZE OF RESIDENTIAL ERVEN IN AIRPARK
[18]
As already adverted to, the applicants also complained that it
was incorrect that properties in the estate were limited to
individual
sites of 6.800 square metres in size.
Mr Rocke SC,
for
the first respondent, argued that the fact that there had been
deviations from that standard previously did not translate to
an
obligation of the part of the respondents to consent to
sub-divisions.
[19]
In dealing with this submission, I have considered that LUPO
itself prohibits sub-divisions except in certain circumstances. Also
the Algoa Regional Services Council prescribed 6 800 square metres
for the residential erven in Airpark. Therefore, the applicants
cannot insist on the approval of the sub-division merely on the basis
of previous approvals. Accordingly this ground must fail.
INADEQUANCY OF REASONS FOR
THE DECISION OF THE FIRST RESPONDENT
[20]
The issue that has arisen is whether because the reasons
advanced by the first respondent are terse, they are inadequate.
[21]
The applicants relied on section 6 (2) of PAJA which provides
that a person is entitled to adequate reasons. They also referred to
section 6 (3) of PAJA which further states that if an administrator
fails to furnish adequate reasons it must be presumed that
the
administrative action taken was taken without good reason.
[22]
The test applicable in determining an answer to this was
articulated in
Commissioner, South African Police Services and
Others v Maimele and Another
2003 (5) SA 480
T
at
487C-D as follows:
"The adequacy of reasons will
depend on
a
variety of factors, such as the contextual context
of the administrative action, the nature of and complexity of the
action, the
nature of the proceedings leading up to the action and
the nature of the functionary taking the action. Depending on the
circumstances,
the reasons need not always be 'full written reasons';
the briefest pro-forma reasons may suffice'. (See Hoexter (op cit) at
246;
Rean International Supply
CO
(Pty) Ltd and Others v
Mpumalanga Gambling Board
1999 (8) BCLR 918
(T) at 927A-B). Whether
brief or lengthy, reasons must, if they are read in the factual
context, be intelligible and informative.
It must be informative in
the sense that they convey why the decision-,maker thinks (or
collective think) that the administrative
action is justified."
[23]
In
Koyabe and Others v Minister for Home Affairs and
Others
2010 (4) SA 327
the Constitutional Court had this to
say:
"63. Although the reasons must
be sufficient, they need not be specified in minute detail, nor is it
necessary to show how
every relevant fact weighed in the ultimate
finding. What constitutes adequate reasons will therefore vary,
depending on the circumstances
of the particular case. Ordinarily,
reasons will be adequate if
a
complainant can make out
a
reasonably substantial case for
a
ministerial review or an
appeal.
64. The purpose for which reasons
are intended, the stage at which these reasons are given, and what
further remedies are available
to contest the administrative decision
are also important factors. The list, which is not
a
closed
one, will hinge on the facts and circumstances of each case and the
test for the adequacy of reasons must be an objective
one."
[24]
In
Minister of Environmental Affairs and Tourism and
Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental
Affairs and Tourism
and Others v Bato Star Fishing (Pty) Ltd
2003
(6) SA 407
(SCA) at para [40] the Constitutional Court explained what
constitutes adequate reason as follows:
"[40] What constitutes
adequate reasons has been aptly described by Woodward J, sitting in
the Federal Court of Australia,
in the case of Ansett Transport
Industries (Operations) Pty Ltd and Another v Wraith and Others
[1983] FCA 179
;
(1983) 48 ALR 500
at 507 (23-41), as
follows: 'The passages from judgments which are conveniently brought
together in Re Palmer and Minister for
the Capital Territory
(1978)
23 ALR 196
at 206-7;
1 ALD 183
at 193-4, serve to confirm
my view thats 13(1) of the Judicial Review Act requires the
decision-maker to explain his decision in
a way which will enable a
person aggrieved to say, in effect:
"Even though I may not agree
with it, I now understand why the decision went against me. I am now
in a position to decide whether
that decision has involved an
unwarranted finding of fact, or an error of law, which is worth
challenging.
"This requires that the
decision-maker should set out his understanding of the relevant law,
any findings of fact on which
his conclusions depend (especially if
those facts have been in dispute), and the reasoning processes which
led him to those conclusions.
He should do so in clear and
unambiguous language, not in vague generalities or the formal
language of legislation. The appropriate
length of the statement
covering such matters will depend upon considerations such as the
nature and importance of the decision,
its complexity and the time
available to formulate the statement. Often those factors may suggest
a brief statement of one or two
pages only.' To the same effect, but
more brief, is Hoexter The New Constitutional and Administrative Law
Vol 2 244:'[l]t is apparent
that reasons are not really reasons
unless they are properly informative. They must explain why action
was taken or not taken;
otherwise they are better described as
findings or other information."
[25]
In
Coutsourides
NO and Another v Nelson Mandela Bay Metropolitan Municipality and
Others
an unreported
judgment of Goosen J in case no 3565/2016 [2015] ZAECPEHC 66 (8
December 2015), this Court followed the Constitutional
Court
decisions and held that considerations of adequacy of the reasons
furnished involve a determination of the sufficiency of
the reasons
and whether such reasons enable the person concerned to decide on
further steps to remedy the administrative action
[3]
.
[26]
Whilst readily conceding that the reasons advanced by the
first respondent are terse,
Mr Rorke SC
argued that they were
nevertheless adequate and met their purpose. They convey adequately
why the first respondent refused the appeal,
they enable the
applicants to decide on whether or not to seek the review of the
first respondent's decision and the basis upon
which that review is
made. He stressed that this Court should determine this issue wearing
the glasses of an objective reader considering
the context within
which the decision was made, both the facts and legislative
framework.
[27]
Whilst the application for sub-division was still with the
second respondent, before the decision was made, the applicants
became
aware of the objections of the third respondent and the
grounds thereof. They also knew that the second respondent considered
that
objection, amongst other things before it, in arriving at its
decision. Once it gave its decision, it also gave its reasons for
it.
So, when the first respondent explained that its decision was based
on the objections of the third respondent and the refusal
of the
application by the second respondent, the applicants, knew exactly
what that referred to. In those circumstances, it cannot
be said that
the reasons furnished by the first respondent were inadequate. The
other way to look at it would be to ask the question,
if the first
respondent had added the explanation contended for, would the
applicants have been placed in a different position?
The answer must
surely be in the negative.
[28]
Also, no purpose would be served by the first respondent
repeating the objection of the third respondent and the refusal of
the
second respondent, in advancing its grounds/reasons of its
decision. Therefore, I disagree that these reasons were objectively
inadequate.
RATIONALITY
[29]
The applicants contended that the decision of the first
respondent to dismiss their appeal constituted an irrational
decision, made
without consideration of the information before it and
a decision that was made arbitrarily and impulsively based on a
material
error of law, in a procedurally unfair and unbiased manner.
For this contention they relied on section 6 (2)(d) read with section
6 (2)(e)(iii) and (iv) and section 6 (2)(f)(ii)(cc) of PAJA.
[30]
They then contended further that special circumstances exist
in terms of which this Court may consider the matter to be of
exceptional
nature and, therefore, make an order substituting or
varying the administrative action of the first respondent in favour
of the
applicants application as per section 8 (1)(c)(ii)(aa) of
PAJA.
[31]
It is a requirement of the rule of law that the exercise of
public power should not be arbitrary and should be rationally related
to the purpose for which the power was given. In
Pharmaceutical
Manufacturers Association of South Africa and Another: in re Ex Parte
President of the Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
the
Constitutional Court held:
"[85] It is a requirement of
the rule of law that the exercise of public power by the executive
and other functionaries should
not be arbitrary. Decisions must be
rationally related to the purpose for which the power was given,
otherwise they are in effect
arbitrary and inconsistent with this
requirement. It follows that in order to pass constitutional scrutiny
the exercise of public
power by the executive and other functionaries
must, at least, comply with this requirement."
[32]
In this Court in
Joubert Galpin Searle Inc and Others v
Road Accident Fund and Others
2014 (4) SA 148
Plasket J
referring to various authorities, explained the exercise of judicial
review of public power as follows:
"Judicial review is concerned
with whether the exercise of a public power is regular or irregular,
not whether the decision
of public functionaries are 'good' decisions
or 'bad' decisions, 'wise' decisions or 'foolish' decisions.
[4]
[33]
In
Trinity Broadcasting v /CASA
2004 (3) SA 346
(SCA) at para 21 approved and relied on what was held in
Carephone
(Pty) Ltd v Marcus NO and Others
1999 (3) SA 304
(LAC) at
para [37] regarding rationality as a ground for review in the context
of PAJA:
"Is there a rational objective basis justifying the
conclusion made by the administrative decision-maker between the
material
properly available to him and the conclusion he and she
eventually arrived at."
[34]
To determine this issue I must consider what was before the
first respondent.
[35]
The third respondent is a homeowners association, an elected
body representing all its members including the applicants. Its
members
chose to live together voluntarily as neighbours in a manner
where the collective will of the majority prevails. The will of the
majority determines what is appropriate and relevant concerning the
rules relevant to living together as neighbours. That will
may and
sometimes does impact on a minority view of an individual member as
to what is appropriate and relevant. The collective
will of the third
respondent is reflected in its constitution, which binds all the
homeowners.
[36]
At the time the second respondent took its decision, the
applicable constitution of the third respondent prohibited the
sub-division
of the properties at Airpark.
[37]
In addition to this the views of the majority of the owners in
Airpark were also before the second respondent and later the first
respondent when each considered the application. Those views were a
material consideration and provided an objectively rational
basis
justifying the first respondent's decision and that of the second
respondent.
[38]
Also serving before the first respondent was the Algoa
Regional Services Council. The council had approved the sub-division
of the
parent property subject to certain conditions. One of those
was that the erf size of the individual sub-divided properties was
limited to a minimum of 6,800 square meters.
[39]
The information before the first respondent also included the
decision of the second respondent in rejecting the application. Those
were contained in the latter's resolution 13/07/IPD4. The reasons for
that decision were also set out.
[40]
In the circumstances of this case I am thus not satisfied that
the decision of the first respondent was not well made. For that
reason I do not deal with the facts supporting the relief sought in
the case of the review of the first respondent's decision.
[41]
I therefore issue the following order:
Application
is dismissed with costs.
_____________________
N.
MSIZI
ACTING
JUDGE OF THE HIGH COURT
For
the applicant
Adv Beyleveld
SC
Instructed
by
Friedman Scheckter Attorneys
75 Second Avenue
Newton Park PORT ELIZABETH
Ref: Mr MJ Scheckter/bg/G05036
For
the first respondent Adv Rorke SC
Instructed
by
State Attorney
29 Western Road
Central
PORT ELIZABETH
Ref; 0914/2017/K
[1]
They relied on section 6(2)(a)(iii) and section 6(2)(c)
[2]
They relied on section 6(2)(e)(v)
[3]
At paragraph [11]
[4]
Paragraph 58