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[2023] ZAFSHC 339
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Du Toit and Another v Mangaung Metropolitan Municipality and Others (6019/2022) [2023] ZAFSHC 339 (22 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no
6019/2022
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In
the matter between:
WILLEM
JACOBUS DU TOIT
1
st
Applicant
TANYA
MARIE DU TOIT
2
nd
Applicant
and
MANGAUNG
METROPOLITAN MUNICIPALITY
1
st
Respondent
(Municipal
Planning Tribunal)
RAYMOND
RAUBENHEIMER N.O.
2
nd
Respondent
(In
his capacity as trustee of the Raubenheimer Trust, TMP[…])
REGINIA
CATHERINA RAUBENHEIMER
3
rd
Respondent
(In
her capacity as trustee of the Raubenheimer Trust, TMP[…])
BETA
TRUST ADMIN (PTY) LTD N.O.
4
th
Respondent
(In
its capacity as trustee of the Raubenheimer Trust, TMP[…])
CORUM:
JP DAFFUE J
HEARD
ON:
20 July 2023
DELIVERED
ON:
22 AUGUST
2023
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and
time for hand-down is deemed to be 16h00 on 22 August 2023.
ORDER
1.
The rule
nisi
dated 1 December 2022 and extended several times is confirmed.
2.
The first respondent shall provide, as
agreed, copies of annexures “I” to “S” of the
second, third and fourth
respondents’ application referred to
in paragraph 3.3 of the rule
nisi
to the applicants’ attorneys on/or before 6 September 2023.
3.
The applicants shall, as agreed, file their
response to the second, third and fourth respondents’
application with the Municipal
Planning Tribunal on/or before 20
September 2023.
4.
The first respondent shall, as agreed,
endeavour to ensure that its Municipal Planning Tribunal enrol the
second, third and fourth
respondents’ application for hearing
before the end of November 2023.
5.
The first respondent shall pay the costs of
this opposed application.
JUDGMENT
INTRODUCTION
[1]
The trustees of the Raubenheimer Trust
TMP[…](herein later referred to as the Trust) submitted a land
use application in
terms of the Free State Townships Ordinance, 9 of
1969 (the 1969 Ordinance) to the Free State Department of Corporate
Governance,
Traditional Affairs and Human Settlement (COGTA) on 1
November 2010. That is 13 years ago. It sought the subdivision of one
of
its properties, consolidation of properties and township
development in respect of the consolidated property. These properties
are situated in the Rayton township situated to the north of the city
centre of Bloemfontein. The Trust is still awaiting finalisation
of
its application. Although irrelevant to this application, it is
deemed appropriate to say that it is nothing, but an injustice,
that
residents seeking to develop their properties should be presented
with the enormous difficulties experienced
in
casu
.
[2]
The applicants in this application obtained
a rule
nisi
on 1 December 2022 as set out fully hereunder. In 2018 and after the
Trust’s application referred to in the previous paragraph
was
submitted, the second applicant bought a property adjacent to the
properties to be developed by the Trust. The applicants want
to
participate in the proceedings before the Municipal Planning Tribunal
(MPT) that has to adjudicate the land use application
of the Trust in
accordance with the present legislation. The central issue to be
decided by the court is whether the applicants
are interested persons
entitling them to participate in the hearing before the MPT. The
outcome will determine whether the rule
nisi
should be confirmed or discharged.
THE PARTIES
[3]
The applicants are Mr Willem Jacobus du
Toit and Mrs Tanya Marie du Toit, a married couple permanently
resident at 1[…] Lilyvale
road, Rayton, Bloemfontein. The
second applicant is the registered owner of this property (the second
applicant’s property).
Adv HJ Cilliers appeared for the
applicants on instructions of Matsepes Inc.
[4]
The Mangaung Metropolitan Municipality (the
Municipality) is cited as the first respondent. The heading of the
application papers
as well as paragraph 3.2 of the founding affidavit
indicate that the application is aimed at the Municipality’s
MPT. Adv
AH Burger SC appeared for the Municipality on the
instructions of Maduba Attorneys Inc, Bloemfontein
THE RELIEF SOUGHT
[5]
On 1 December 2022 a rule
nisi
was issued on application of the applicants in the following terms:
‘
1.
Condonation is granted to the Applicants for the non-compliance with
the Rules of Court pertaining
to service, time limits, form and
procedure and that this application be heard as an urgent application
as contemplated in rule
6(12);
2.
Condonation is granted to the Applicants for the non-compliance with
the provisions of Section
35 of the General Law Amendment Act 62 of
1955;
3.
A
Rule Nisi
is issued calling upon the First Respondent to
show cause, if any, to this Honourable Court on
26 JANUARY 2023
at
09:30
, why the following orders should not be granted and
made final:
3.1
That the First Respondent be interdicted and prevented from
proceeding with the Municipal Planning Tribunal
hearing set down for
2 December 2022
at 08:00 relating to an application for the
subdivision, consolidation and township establishment of
Plots No.
9 and 12 Lilyvale Small Holdings, Rayton, Bloemfontein, Free State
Province
, until finalization of this application and compliance
with the order issued in terms of this application;
3.2
That the First Respondent be ordered to only again enrol the
Municipal Planning Tribunal hearing relating
to an application for
the subdivision, consolidation and township establishment of
Plots
No 9 and 12, Lilyvale Small Holdings, Rayton, Bloemfontein, Free
State Province
, upon reasonable notice to the Applicants after
the First Respondent has received the legal advice it has undertaken
to obtain
to the issues raised by the Applicants as it had undertaken
to do in their e-mail to Matsepes Attorneys dated the
27
th
of January 2022
and furnished such legal advice to the
Applicants’ attorneys, and upon reasonable notice to all
interested and affected parties;
3.3
That the First Respondent be ordered to provide the Applicants with a
copy of the application papers
and all other relevant documentation
relating thereto submitted by the Second, Third and Fourth
Respondents for the subdivision,
consolidation and township
establishment of
Plots No 9 and 12, Lilyvale Small Holdings,
Rayton, Bloemfontein, Free State Province
within a period of
fourteen (14) days
after the date of service of this order
upon the First Respondent, and upon payment by the Applicants of the
reasonable photocopying
costs.
4.
The order contained in paragraph 3.1 to operate as an interim
interdict with immediate effect;
5.
The First Respondent is to pay the costs of the application on the
scale of attorney and
client;
6.
The Second, Third and Fourth Respondents are to pay the costs of the
application, only in
the event of opposing this application.’
[6]
On 23 December 2022 the Municipality
partially complied with paragraph 3.3 of the rule
nisi
by supplying copies of the application papers and relevant
documentation submitted by the Trust for the land use application in
respect of its plots 9 and 12 Lillyvale Small Holdings, Rayton.
However, it failed to submit annexures “I” to “S”
of the application. Notwithstanding this partial compliance with the
court order, the Municipality filed a notice to oppose on
12 January
2023 and proceeded to belatedly file its extensive answering
affidavit on 16 March 2023. Therein it raised three issues,
to wit
(a) absence of urgency; (b) non-joinder of the MPT; and (c) lack of
locus standi
insofar as the applicants had failed to apply to be regarded as
interested parties in terms of s 45 of the Spatial Planning and
Land
Use Management Act 16 of 2013 (SPLUMA).
THE STATUTORY REGIME
[7]
Before
dealing with the relevant factual background, it is appropriate to
consider the statutory regime that applied from time to
time. I have
referred to the 1969 Ordinance which had been applicable for many
decades in respect of land use matters. When the
Trust’s
application was served in 2010 the Development Facilitation Act 67 of
1995 (the DFA) applied. The DFA was partially
declared invalid
insofar as it conferred on Provisional Development Tribunals
authority to regulate land use in municipal areas.
[1]
Before that application could be disposed of, SPLUMA came into
operation on 1 July 2015, repealing the DFA.
[8]
It may be argued that while SPLUMA repealed
previous national planning legislation, it left in place old order
legislation such
as the 1969 Ordinance and more recent provincial
planning legislation. This is apparent, bearing in mind s 2(2) of
SPLUMA which
states that ‘
no
legislation not repealed by this Act may prescribe an alternative or
parallel mechanism, measure, institution or system on spatial
planning, land use, land use management and land development in a
manner inconsistent with the provisions of this Act.’.
However,
provincial legislation has effectively been superseded by SPLUMA.
[9]
In terms of s 36 of SPLUMA a MPT ‘must
consist of:
(a)
officials in the full-time service of the
municipality; and
(b)
persons appointed by the Municipal Council
who are not municipal officials and who have knowledge and experience
of spatial planning,
land use management and land development or the
law related thereto.’
The
municipal council must designate a member of the MPT as chairperson.
Upon the first appointment of members of a MPT and when
the municipal
council is satisfied that it is in a position to commence with its
operations, the municipal manager must publish
a notice to that
effect in the Provincial Gazette. The MPT may only commence its
operations as contemplated in SPLUMA after the
publication of the
aforesaid notice.
[2]
[10]
SPLUMA
is clear and unambiguous. Except as provided in that Act, all land
development applications must be submitted to a municipality
as the
authority of first instance.
[3]
In terms of s 40 (9) of SPLUMA a MPT must decide a land use
application without undue delay and within a prescribed period. In
considering and deciding an application the MPT must be guided by the
development principles set out in SPLUMA and also take into
account
public interest as well as
inter
alia
‘
the
respective rights and obligations of all those affected
.’
[4]
I have underlined the quote from s 42 as this aspect will be
considered again in due course.
[11]
The Municipality relied on s 45 of SPLUMA
in submitting that the applicants do not have
locus
standi
to participate in the Trust’s
land use application before the MPT. Section 45(2) stipulates that
‘an interested person
may petition to intervene in an existing
application before a Municipal Planning Tribunal … and if
granted intervener status,
the interested person may be allowed to
participate in such proceeding …’. The person claiming
to be an interested
person has to prove his or her status as such.
[12]
Section
51 of SPLUMA deals with internal appeals. Section 51(1) provides that
a ‘person whose rights are affected by a decision
taken by a
municipal planning tribunal may appeal against that decision.’
The provisions hereof have been recognised by the
Constitutional
Court in
Tronox
KZN Sands (Pty) Ltd v KwaZulu-Natal Planning and Development Appeal
Tribunal and Others
[5]
.
[13]
Section
33(1) of the Constitution stipulates that ‘everyone has the
right to administrative action that is lawful, reasonable
and
procedurally fair.’ The Promotion Administrative Justice Act 3
of 2000 (PAJA) defines administrative action. There can
be no doubt
that PAJA may be applied to decisions taken in respect of land use
applications. In not allowing the owner of an adjacent
property to
object to a land use application of their neighbour, the
administrator will clearly act contrary to the principles
of just
administrative action. In
JDJ
Properties CC and Another v Umngeni Local Municipality
[6]
the Supreme Court of Appeal considered a review of a municipality’s
approval of a developer’s building plan. The court
held that a
near-by land owner and a lessee of property in the immediate vicinity
of the development had the necessary standing
and right to enforce
compliance with the particular municipality’s scheme. I agree
with Mageza AJ in
Zimmerman
v Ndlambe Municipality and Others
[7]
that nothing in SPLUMA revokes the rights to standing defined in the
JDJ
Properties
decision
supra
.
THE RELEVANT
BACKGROUND
[14]
It is appropriate to briefly deal with the
history of the matter. The Trust’s land use application was
submitted as long ago
as 1 November 2010. In terms of the 1969
Ordinance all land use applications had to be filed with the now
defunct Townships Board.
In terms of this legislation local
authorities such as the Municipality
in
casu
were merely called upon to make
inputs in respect of land use applications applicable to them. They
did not have any powers to
decide any land use issues.
[15]
Following upon the Trust’s land use
application, a dispute arose in respect of environmental assessment.
The Provincial Government
of the Free State Province instituted an
appeal process and the matter was eventually dealt with in this
court. Environmental authorisation
for township establishment on the
Trust’s properties was eventually granted on 8 May 2018 as
reflected in the court order
of 14 September 2020 under case number
1167/2020.
[16]
After the purchase of the second
applicant’s property in 2018, the applicants became aware of
the land use application of
the Trust. As a result, their attorney,
Mr Cloete of Matsepes and others met with a Mr Mofokeng of the Office
of the Premier of
the Free State Province during May 2018. Since then
everybody concerned must have been aware of the applicants’
interest
in the land use application. At that stage Mr Cloete
submitted to the meeting that the 2015 By-laws issued upon the
enactment of
SPLUMA was not complied with. In my view there could be
no doubt since then that the applicants were regarded as interested
parties
pertaining to the intended development.
[17]
From May 2018 to 2021, ie for a period of
three-years and four months, no further communication was received
from the Municipality.
During December 2021 the applicants obtained
information that the Trust’s application was to be considered
by the Municipality.
After some correspondence and communication, the
applicants became aware that a MPT hearing would take place on 28
January 2022.
They did not receive formal notice of this hearing.
Clearly, the purpose of the hearing was to consider all relevant
facts in order
to decide on the proposed development. By then the
Municipality did not consider that the applicants had any interest in
the matter.
It is apparent from the papers that the application
before the MPT was not instituted in accordance with SPLUMA and the
By-laws,
but commenced by way of an application filed earlier with
the Townships Board as mentioned above.
[18]
A day before the intended hearing of the
MPT, Ms Maasdorp of the Municipality informed the applicants’
attorneys per email
that the hearing would be postponed until further
notice. Already in February 2022 Mr Cloete on behalf of the
applicants informed
the Municipality that his clients had never been
placed in possession of the land use application of the Trust. He
also requested
feedback on a monthly basis from Ms Maasdorp who did
not respond appropriately, but merely confirmed that the matter had
been referred
to the Municipality’s legal department. Ms
Maasdorp’s supporting affidavit is annexed to the
Municipality’s answering
affidavit. She describes herself as
‘an adult female, employed in the Department of Planning of
First Respondent and at the
Secretariat of the MPT …’.
It is mentioned at this stage that Ms Nkateko Mabunda also deposed to
a supporting affidavit.
She describes herself as ‘an adult
female, Acting HOD, Planning of First Applicant (sic it should be
first respondent) and
the Acting MPT Chairperson of the Mangaung
Metropolitan Municipality …’.
[19]
Eventually, Mr Cloete received a notice
indicating that the MPT hearing had been set down for 2 December
2022. Mr Cloete sought
confirmation that the hearing would not
proceed, but to no avail. In his letter of 21 November 2022 addressed
to the Acting MPT
Chairperson of the Mangaung Metro Municipality, Ms
Mabunda, he made several legal submissions which are not relevant to
the adjudication
of this application. He also requested information
as to whether the MPT had been properly constituted in terms of the
By-laws.
He furthermore requested confirmation on/or before 24
November 2022 that the hearing would not continue. No response was
received
which caused him to write another letter on 24 November
2022, requesting urgent confirmation that the hearing would not
proceed,
but to no avail.
EVALUATION OF THE
EVIDENCE AND THE PARTIES’ SUBMISSIONS
[20]
There is no indication on record that the
Trust’s application was submitted to the Municipality as the
authority of first
instance. It is clear from the papers that the
Trust did not apply afresh to the MPT in terms of the By-laws.
Consequently, no
advertisements were placed in the Provincial Gazette
and a newspaper. Also, the second applicant as adjacent landowner was
never
officially informed of the application. The contrary is true.
The application was initially filed with the Townships Board and was
merely forwarded to the MPT for further consideration. However,
nothing turns around this and it does not have to be resolved in
adjudicating this application. It is apparent that the objectors did
so in 2011 already and based on the application procedure
that
applied then. There is no indication why this matter dragged-out over
so many years, except for what occurred from January
2022 till now as
indicated above.
[21]
It is the Municipality’s case that
the applicants have not applied to intervene in the application of
the Trust as interested
parties as provided for in s 45 of SPLUMA. In
my view, this section is not applicable
in
casu.
The applicants, and the second
applicant in particular who is the registered owner of adjacent
property to the properties to be
developed, are clearly affected
persons as provided for in s 42 of SPLUMA as well as in accordance
with our common law. I refer
to the judgments in
Zimmerman
and
JDJ Properties
which I mentioned
supra
.
The applicants have been accepted as such and the Municipality has
even partially complied with the court order by providing an
incomplete copy of the Trust’s application. In my view, s 45 of
SPLUMA provides that persons, other than those directly affected
such
as neighbouring owners, may present evidence that they have an
interest in a land use application and should be allowed to
participate in the proceedings. The section can never be regarded as
peremptory and must be seen in context. It is possible that
residents
in a neighbourhood where a shopping mall is to be erected, may
consider objecting to the land use application although
they stay a
few street blocks away from the particular site. In such an event
such residents may well have to apply in terms of
s 45 to be declared
persons with an interest if they show, for example, that increased
traffic volumes will negatively affect the
values of their
properties.
[22]
During oral argument I indicated to counsel
that I would prefer to adopt a pragmatic approach. I indicated that
the matter had been
dragging on for too long and that it was time
that the Trust’s land use application now be adjudicated by the
MPT. Mr Cilliers
agreed with the suggested order put to counsel. Mr
Burger was advised to obtain proper instructions and leave was
granted to his
attorney to confirm in writing whether the
Municipality was satisfied with the suggested order in the event of
the rule
nisi
be confirmed. An email was received the same day from Mr Zuma of
Maduba Attorneys. The relevant paragraph reads as follows:
‘
After
consultation and taking instruction as per the Judges suggestion, it
my client’s instruction that they are in agreement
with the
Judges suggestion that they( MMM) be granted 14 days (2 weeks) or
whatever time the Court deems reasonable to deliver
the outstanding
documents as per the Applicants’ contentions and grant the
Applicants 2 weeks or whatever time the Court
finds reasonable, to
file their respective application/applications. Further that the
Court directs or suggests that the MPT to
deal or consider the matter
before end of November 2023.’
Insofar as the MPT is not
a party to these proceedings, the order to be granted is not directed
at the MPT, but the Municipality.
Consequently, the orders contained
herein are in line with the email received from the Municipality’s
attorneys on 20 July
2023.
CONCLUSION
[23]
I am satisfied that the rule
nisi
should be confirmed. The applicants had no option but to proceed on
an urgent basis in order to prevent the MPT hearing of 2 December
2022. The facts as indicated speak for themselves. Although the MPT
was not joined as a party, the Municipality that relied on
non-joinder failed to provide the applicants’ attorney with
details pertaining to the establishment of the MPT. No details
have
been provided in the answering affidavit of the Municipality to show
that the MPT is in existence in accordance with the provisions
of s
37 of SPLUMA and the By-laws. In any event, as indicated above, the
secretariat and acting chairperson of the MPT were fully
aware of the
application and even deposed to supporting affidavits. No relief was
sought against the MPT and I also do not intend
to grant an order
against it. The applicants are interested persons for the reasons
advanced herein and I am satisfied that there
was no reason for them
to officially apply in terms of s 45 of SPLUMA to be declared as
such.
[24]
The applicants are entitled to their costs
on the application on an opposed basis, including those costs that
stood over for later
adjudication, to wit the costs of 23 March 2023.
The postponement was occasioned by the late filing of the
Municipality’s
answering affidavit. The applicants sought costs
on an attorney and client scale. I have considered this, but I am
satisfied that
in exercising my discretion, there is no reason to
award punitive costs.
ORDER
[25]
The following order is issued:
1.
The rule
nisi
dated 1 December 2022 and extended several times is confirmed.
2.
The first respondent shall provide, as
agreed, copies of annexures “I” to “S” of the
second, third and fourth
respondents’ application referred to
in paragraph 3.3 of the rule
nisi
to the applicants’ attorneys on/or before 6 September 2023.
3.
The applicants shall, as agreed, file their
response to the second, third and fourth respondents’
application with the Municipal
Planning Tribunal on/or before 20
September 2023.
4.
The first respondent shall, as agreed,
endeavour to ensure that its Municipal Planning Tribunal enrol the
second, third and fourth
respondents’ application for hearing
before the end of November 2023.
5.
The first respondent shall pay the costs of
this opposed application.
JP DAFFUE J
Counsel
for the Applicants:
Adv
HJ Cilliers
Instructed
by:
Matsepes
Inc
BLOEMFONTEIN
Counsel
for the First Respondent:
Adv
AH Burger SC
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN
[1]
See
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
(335/08) [2009] ZASCA 106; 2010 (2) SA 554 (SCA); 2010 (1) BCLR 157
(SCA); [2010] 1 All SA 201 (SCA) (22 September 2009) para
50;
City
of Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal and Others
(CCT89/09)
[2010] ZACC 11; 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (CC) (18
June 2010).
[2]
Section
37 (4) & (5).
[3]
Section
33 (1).
[4]
See
s 42 (1).
[5]
(CCT114/15)
[2016] ZACC 2; 2016 (4) BCLR 469 (CC); 2016 (3) SA 160 (CC) (29
January 2016) at para 34.
[6]
(873/11)
[2012] ZASCA 186; [2013] 1 All SA 306 (SCA); 2013 (2) SA 395 (SCA)
(29 November 2012) paras 24 - 35.
[7]
(226/2017)
[2017] ZAECGHC 76;
[2017] 4 All SA 584
(ECG) (22 June 2017) para 71.