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[2023] ZAECMKHC 131
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Long v Appeal Authority iro Ndlambe Municipality and Others (621/2022) [2023] ZAECMKHC 131; [2024] 1 All SA 364 (ECG) (21 November 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
FLYNOTES:
MUNICIPALITY – Land use –
Departure
from zoning
–
Review
of decision to approve operation of guesthouse – Conditions
attached to title deed – Zoned Residential
1 which permits
only single residential dwelling – Municipal planning
tribunal’s failure to have appreciated
legal effect of
restrictive conditions in relation to Kenton-on-Sea Town Planning
Scheme By-laws instead of the new scheme
gave rise to an
irregularity – Resulting decision materially influenced by
error in law – Decision also not rationally
connected to
information before tribunal – Decisions of tribunal and
appeal authority set aside.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Reportable
CASE
NO. 621/2022
In
the matter between:
VANESSA
LEA LONG
Applicant
and
APPEAL
AUTHORITY IRO THE
NDLAMBE
MUNICIPALITY
First
Respondent
MUNICIPAL
PLANNINGTRIBUNAL:
NDLAMBE
MUNICIPALITY
Second
Respondent
NDLAMBE
MUNICIPALITY
Third
Respondent
PASTRY-WIZE
(PTY) LTD
Fourth
Respondent
JUDGMENT
LAING
J
[1]
This is an application for the review and setting aside
of a decision
to approve the operation of a guesthouse at Kenton-on-Sea, situated
along the south-eastern coastline. The applicant
also seeks the
review and setting aside of a decision to dismiss her appeal, and a
declarator to the effect that the development
of the guesthouse in
question is unlawful.
BACKGROUND
[2]
The parties’ respective cases are set out in the
paragraphs
that follow.
Applicant’s
case
[3]
The applicant is the registered owner of erf 1[…]8,
Kenton-on-Sea. The fourth respondent is a company registered as
Pastry-Wise (Pty) Ltd and the owner of erf 1[…]3, which
abuts
the applicant’s property.
[4]
The applicant alleges that the steep topography of the
area affords
the occupants of erf 1[…]3 a clear and unobstructed view over
her property. This has become problematic because
the fourth
respondent uses the property as a seven-roomed guesthouse, trading as
‘Sky Blue’, which creates a disturbance
and prevents the
applicant’s full use and enjoyment of erf 1[…]8.
[5]
The fourth respondent initially sought the applicant’s
consent
for the relaxation of building lines. She refused on the basis that
the property was zoned for single residential use,
as advised by the
third respondent, the Ndlambe Local Municipality. This prompted the
fourth respondent to apply to the municipality,
on 16 July 2018, for
a permanent departure from the zoning scheme conditions to allow the
operation of a guesthouse with eight
separate suites and on-site
parking for 16 guests. The fourth respondent also applied for the
removal of the restrictive conditions
attached to the title deed.
[6]
The applicant lodged an objection to the application
on 15 October
2018. She alleged that the fourth respondent had already commenced
operating the guesthouse without the necessary
permission. The fourth
respondent had, moreover, removed trees and other plant growth from
the boundary line and had failed to
erect a fence or similar
structure to limit the impact on the applicant’s privacy. This
would be aggravated by the intended
conversion of the existing
dwelling to a double-storeyed structure. The applicant expressed
unhappiness, too, about the negative
impact of the development on the
general character of the area, the likelihood of increased traffic
volumes, and inadequate stormwater
management. Her objection was
supported by an urban and rural development planning consultant as
well as her attorneys.
[7]
Subsequently, the fourth respondent’s planning
consultants,
Setplan (Pty) Ltd, represented by Mr Brendan Hindes, delivered a
response. He pointed out that most of the adjacent
properties,
including the applicant’s, had been improved by the erection of
double-storeyed structures close to the boundary
line to take
advantage of the views afforded by the slope and elevation. Mr Hindes
said that the existing trees and additional
plant growth would
address the applicant’s concerns about privacy. The guesthouse
would, moreover, be managed in such a way
as to limit the extent of
noise created by guests. He addressed her concerns, too, about the
general character of the area, traffic
volumes, and stormwater.
[8]
The second respondent, the Municipal Planning Tribunal,
considered
the application on 28 October 2019. The tribunal conducted a site
inspection and listened to oral representations before
resolving to:
(a) refuse the application to remove the restrictive conditions,
because they protected the general character of
the area, ensured
that the property would remain residential, and did not prevent the
fourth respondent from making application
for a departure; and (b)
approve the application for a departure, subject to numerous
conditions, because it was consistent with
the provisions of the
Municipal Spatial Development Framework (‘MSDF’) and the
Integrated Development Plan (‘IDP’)
for the municipality,
and was in alignment with the principles, norms, and standards
contained in the Spatial Planning and Land
Use Management Act 6 of
2013 (‘SPLUMA’).
[9]
The tribunal informed the applicant of its decision on
6 November
2019. Her attorneys lodged an appeal with the municipality on 26
November 2019, setting out the procedural and substantive
grounds
upon which the applicant relied. On 15 January 2020, Mr Hindes
furnished a response to the appeal.
[10]
The hearing of the appeal was delayed. The applicant’s spouse,
Mr Royce
Long, requested the municipality to take steps in the
interim to deal with the unlawful operation of the guesthouse,
pending the
finalization of the appeal. He received no satisfactory
answer. The municipality contacted the applicant on 27 November 2020,
explaining
that COVID-19 regulations had delayed the hearing;
furthermore, it was awaiting guidance from the Department of
Cooperative Governance
and Traditional Affairs (‘COGTA’).
[11]
The first respondent, the Appeal Authority for the Ndlambe Local
Municipality,
eventually heard the appeal on 29 June 2021. It
informed the applicant, on 6 July 2021, that it had decided to
dismiss the appeal
and to confirm the tribunal’s decision. The
reasons provided were that the guesthouse would have a positive
socio-economic
impact, have minimal impact on the traffic in the
area, and would not have a negative impact on the health, safety, or
wellbeing,
of the community.
[12]
The applicant contends that the tribunal’s decision to approve
the fourth
respondent’s application for a departure was
incorrect. It amounts to a reviewable decision in terms of the
Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’).
Respondents’
case
[13]
The appeal authority, the tribunal, and the municipality originally
opposed
the application. They later withdrew and gave notice of their
intention to abide.
[14]
The fourth respondent, represented by Mr Miguel Teixeira, strongly
opposes
the application. He states that the fourth respondent
previously applied to the municipality for the rezoning of the
property from
single residential to general residential for purposes
of developing four terraced units. It also applied for the relaxation
of
the building lines. The municipality granted the rezoning but
later revoked this because the applicant had not been properly
notified.
It indicated to the fourth respondent that the zoning would
revert to single residential, meaning that the property could only be
developed in accordance with the conditions applicable to the zoning
in question. These were contained in the Kenton-on-Sea Town
Planning
Scheme By-laws (‘the Kenton-on-Sea scheme’), adopted in
1986.
[15]
Consequently, the fourth respondent submitted building plans for a
dwelling
unit to be constructed on the property, which were approved.
The fourth respondent took occupation of the property after
construction
had been completed.
[16]
The applicant in due course lodged a complaint with the municipality,
pointing
out that the fourth respondent was operating a guesthouse.
Mr Teixeira explains that the fourth respondent initially listed two
rooms on the Airbnb online accommodation website, but strong market
demand prompted the fourth respondent to begin renting out
all its
rooms. The municipality had, in the meanwhile, served a contravention
notice under the provisions of its By-law on Spatial
Planning and
Land Use Management, 2015 (‘the SPLUM By-law’). This led
to the fourth respondent’s submission of
its departure and
removal application, on the advice of Mr Hindes.
[17]
Prior to the sitting of the tribunal, the municipality received
additional
complaints about the guesthouse. It served a further
contravention notice. Mr Teixeira states that Mr Hindes informed the
municipality
that the fourth respondent had appointed a full-time
manager who would live on the property. For this purpose, it had
reduced the
number of guest suites to seven and had erected screens
and planted vegetation to minimise the impact of activities on the
privacy
of adjacent properties.
[18]
Mr Teixeira does not dispute the applicant’s description of the
proceedings
in relation to the decisions of the tribunal and appeal
authority. He avers that the applicant and her spouse reside
permanently
in Johannesburg and that they use erf 1[...]8 as their
holiday home, visiting it infrequently. The view from erf 1[...]3 is
over,
not of, the applicant’s property, which she seldom
occupies. Mr Teixeira admits that the guesthouse receives a steady
stream
of visitors but says that they comprise individuals or
couples, not large groups; they do not create a noise. The
establishment
employs three permanent and three casual staff. As a
tourist attraction, Kenton-on-Sea needs accommodation facilities and
there
are at least 132 guesthouses or Airbnb homes already listed in
the area.
[19]
The fourth respondent has continued to operate the guesthouse,
notwithstanding
receipt of the contravention notices. This was
because of the delay in the tribunal’s proceedings. Many other
guesthouses
do the same, alleges Mr Teixeira.
[20]
Regarding the tribunal’s approval of the departure, Mr Teixeira
emphasises
that the conditions imposed will ensure that the
activities of the guesthouse will not cause a disturbance or infringe
the rights
of adjacent property owners. These include conditions to
the effect that no public or private nuisance is to be caused, that
the
municipality reserves its right to inspect the property at
regular intervals and reserves its right to impose further conditions
if necessary. He also explains that the presence of a full-time
manager on the property will discourage guests from creating a
noise.
Mr Teixeira mentions, too, that he and another director of the fourth
respondent live on either side of the property; it
would be in their
own interests to ensure that no disturbances were caused. The
applicant and her spouse, contends Mr Teixeira,
were not blameless.
They would often ‘rev’ the engine of their motorboat at
night.
[21]
The tribunal’s decision to grant the application for a
departure was
correct, asserts Mr Teixeira; it did not amount to a
reviewable decision.
In
reply
[22]
The applicant, in reply, focuses on the grounds of her review
application.
She reiterates that erf 1[...]3 is subject to the
restrictive conditions attached to the title deed, including the
stipulation
that it may only be used as a single residence and must
comply with its single residential zoning. A guesthouse may not be
operated
on the property.
[23]
Furthermore, argues the applicant, the fourth respondent applied for
a departure.
It ought to have applied for consent use. The SPLUM
By-law and the municipality’s land use scheme only permit the
granting
of a departure in relation to development or construction of
a permanent nature. The tribunal had no authority to approve the
fourth
respondent’s application. The granting of a departure
was not allowed under the land use scheme; it was also in conflict
with the restrictive conditions of the title deed and the zoning
limitations.
ISSUES
FOR DETERMINATION
[24]
There are three main
issues to be decided: (a) the applicant’s application for
condonation in relation to the late filing
of her replying affidavit;
(b) the applicant’s application for the extension of the
180-day period within which to have brought
her review
application;
[1]
and (c) if the
extension is granted, then whether the tribunal’s decision to
grant conditional approval for the operation
of a guest house on erf
1[...]3 Kenton-on-Sea, and the appeal authority’s decision to
dismiss the applicant’s appeal,
are reviewable.
[25]
The legislative context
for the matter is PAJA. This was enacted to give effect to the
constitutional right to administrative action
that is lawful,
reasonable, and procedurally fair.
[2]
The applicant, in relation to the third issue identified above, will
need to demonstrate that there are sufficient grounds for
the
judicial review of the decisions in question. The court may grant any
order that is just and equitable.
[3]
APPLICATION
FOR CONDONATION OF LATE FILING OF REPLYING AFFIDAVIT
[26]
The applicant’s attorney, Mr Jacobus Coetzee, provided a
timeline in
relation to the exchange of pleadings. The notice of
motion was served on 28 February 2022 and the applicant’s
supplementary
founding affidavit was filed on 25 April 2022, after
the respondents’ delivery of the record. The first to third
respondents
filed a notice to abide on 12 July 2022. The fourth
respondent filed its answering affidavit on 1 August 2022, but
without signed
confirmatory affidavits, which were delivered three
weeks later. The applicant’s replying affidavit was required to
have
been filed by 5 September 2022, but was only filed on 3 April
2023.
[27]
Mr Coetzee explains that he had been involved in various matters that
had contributed
to the delay in the filing of the replying affidavit.
These included a trial in Pietermaritzburg; an opposed liquidation in
Pretoria,
which entailed consultations with senior counsel in Cape
Town and the management of significant volumes of evidence; urgent
proceedings
in several jurisdictions in relation to a business
rescue; a matter in the Supreme Court of Appeal; and so forth. Mr
Coetzee goes
on to say that he prepared a draft replying affidavit in
the time that was available to him. The delay had been unavoidable.
[28]
The fourth respondent
challenges Mr Coetzee’s explanation for the delay. Counsel
referred to the decision of the erstwhile
Appellate Division in
Kgobane
and another v Minister of Justice and another
,
[4]
where Rumpff JA held that an attorney’s explanation that he was
too busy to study the rules of court and to supervise the
prosecution
of an appeal was unacceptable. Such gross negligence had caused an
inordinate delay.
[5]
Furthermore, counsel referred to
Mbutuma
v Xhosa Development Corporation Ltd
,
[6]
where Trengove AJA held that an applicant could not be exonerated
from all blame for a delay when he had not given a satisfactory
account of the interest that he had taken in relation to the progress
of an appeal. His petition had lacked the necessary candour.
[7]
[29]
The provisions of rule
27(3) of the URC permit a court, on good cause shown, to condone
non-compliance. The court enjoys a wide
discretion.
[8]
In his commentary on civil procedure,
[9]
DE van Loggerenberg observes that two primary requirements have
emerged regarding what constitutes good cause: the applicant must
file an affidavit that satisfactorily explains the delay, and
demonstrate on oath that his or her action is clearly not
ill-founded.
[10]
A further
requirement, possibly secondary in nature, is that the granting of
condonation must not prejudice the other party in
any way that cannot
be compensated by a suitable order.
[11]
[30]
In the present matter, the applicant’s attorney attributes the
delay
to his busy litigation practice. The explanation is not beyond
criticism. The URC cannot simply be ignored or interpreted to suit
the time management shortcomings of a practitioner. Nevertheless, the
applicant’s attorney has furnished a full and reasonable
explanation that allows the court to understand how the delay came
about. There is no suggestion of any improper motive or conduct.
Furthermore, the applicant has already set out, in her founding
affidavit, the facts and arguments upon which her application rests.
The matter is not uncomplicated, and the applicant has demonstrated,
at the very least, that her case is not ill-founded. Finally,
the
fourth respondent can hardly complain about delay when its own
answering affidavit was filed considerably late, as apparent
from Mr
Coetzee’s timeline. It received the replying affidavit well in
advance of the hearing of the matter, no visible prejudice
was
caused.
[31]
Consequently, the court is prepared to condone the applicant’s
non-compliance.
Her application succeeds.
APPLICATION
FOR EXTENSION OF 180-DAY PERIOD FOR REVIEW APPLICATION
[32]
The applicant alleges that she became aware of the appeal authority’s
decision on 7 July 2021. She was required, in terms of section 7(1)
of PAJA, to have instituted proceedings for judicial review
without
unreasonable delay and by no later than 3 January 2022.
[33]
The applicant avers that she considered the entire matter before
seeking legal
advice. She contracted COVID-19 in June 2021, however,
which led to her hospitalization in July 2021. This prevented her
from working
during August and September 2021, which is the same
period in which her attorney, Mr Coetzee, contracted the virus. He
was absent
from work for various periods over that time and only
returned to full-time practice in October 2021. Mr Coetzee contracted
COVID-19
again in December 2021 before taking annual leave.
Consultations commenced in January 2022 and culminated in the
institution of
review proceedings on 28 February 2022.
Extension
by agreement between the parties
[34]
Importantly, Mr Coetzee
previously requested that the parties agree to the extension of the
180-day period.
[12]
This
resulted in an extension until the above date.
[35]
The fourth respondent, represented by Mr Teixeira, points out that
the applicant
never sought its agreement to the extension of the
180-day period. In its answering affidavit, filed on 1 August 2022,
the fourth
respondent clearly objected to the delay. The applicant,
however, only brought the present application on 16 August 2023,
after
the fourth respondent had delivered heads of argument and only
a week before the hearing. She has not explained the intervening
delay regarding the present application.
[36]
The departure and removal application was submitted on 16 July 2018.
The applicant
failed to take sufficient steps to institute review
proceedings until 28 February 2022, more than three-and-a-half years
later
and well after the expiry of the 180-day period. The fourth
respondent, avers Mr Teixeira, has spent a great deal of time and
money
in attempting to regularise the operation of the guesthouse and
the various delays caused by the applicant have prejudiced both
its
business and its staff.
[37]
Mr Teixeira goes on to assert that the applicant and her attorney may
well
have contracted COVID-19 but that does not explain the
eight-month delay in instituting the review proceedings or the delay
in
bringing the present extension application. The proper use of
available information communication technology (‘ICT’)
would have allowed the parties to have worked remotely and to have
complied with the applicable time limits. They were well acquainted
with the matter. If necessary, then another attorney or counsel could
have been instructed to step into the breach.
[38]
In elaborating upon the prejudice suffered, Mr Teixeira indicates
that the
fourth respondent has had to suspend maintenance work and
the installation of alternative energy sources. It has been unable to
market the guesthouse and has been constrained to adjust its booking
practices and lower its rates to accommodate the uncertainty
associated with ongoing delays in the litigation. The fourth
respondent’s employees are unsure of their job security and
their morale has been adversely affected.
[39]
Regarding the legal framework for the issue at hand, section 9(1) of
PAJA provides
as follows:
‘
(1)
The period of–
(a) …
(b) 90 days
or 180 days referred to in sections 5 and 7 may be extended for a
fixed period,
by agreement between the
parties or, failing such agreement, by a court or tribunal on
application by the person or administrator
concerned.’
[40]
The fourth respondent contends that it (the fourth respondent) is the
party
to whom the administrative action directly pertains. It relies
thereon for the operation of the guesthouse and suffers prejudice
because of the applicant’s delay in seeking to have the
decision reviewed and set aside. The court’s findings will
have
an undeniable impact on the fourth respondent’s rights.
Considering the above, argues the fourth respondent, section
9(1)
must be interpreted to mean that it must have been included as a
party to any agreement for the extension of the 180-day period.
[41]
To that effect, counsel
referred to
ABM
Motors v Minister of Minerals and Energy and others.
[13]
This involved a review of the decision by the Minister of Minerals
and Energy to dismiss the applicant’s appeal against the
decision of the Controller of Petroleum Products to refuse the
granting of site and retail licences to operate a filling station
in
the Newcastle district under the
Petroleum Products Act 120 of 1977
.
Other filling stations opposed the review application, saying that
the applicant only served papers on them after the expiry of
the
180-day period. The applicant contended, in turn, that service on the
decision-makers alone was adequate. Ploos van Amstel
J held as
follows:
‘…
The
respondents had been involved in the matter from the outset- they
opposed the application for the issue of the licences and
they
opposed the appeal to the Minister. They were interested parties in
the review proceedings, as is demonstrated by the fact
that they were
cited as respondents. It makes no sense to me to hold that service of
the review papers on the decision-maker, but
not on the other parties
affected, suffices for the review proceedings to be instituted. In
many cases, as in the present one,
it is not the decision-maker who
opposes the review, but a third party who was involved in the
administrative action and who has
a direct and substantial interest
in the outcome of the review. This is why
rule 6
, which prescribes
how an application must be brought, provides in sub-rule (2) that
when relief is claimed against any person,
or where it is necessary
or proper to give any person notice of such application, the notice
of motion must be addressed to both
the registrar and such person,
and why sub-rule 5(a) provides that every application other than one
brought
ex
parte
must
be brought on notice of motion and must be served upon every party to
whom notice thereof is to be given. In
Finishing
Touch
[14]
…
Mhlantla JA said notice
of the application had to be “given to the registrar and the
application served on the affected parties”.
This means all the
affected parties, not only the decision-makers.’
[15]
[42]
The learned judge’s
reasoning was affirmed by the Supreme Court of Appeal in
Commissioner
for the South African Revenue Service v Sasol Chevron Holdings
Limited
,
[16]
where Petse DP found that a review application brought in terms of
section 6(1)
of PAJA must be issued and served on the affected
parties to satisfy the prescripts of
section 7(1).
[43]
In this matter, the
question is how
section 9(1)
is to be interpreted. More particularly,
the question is whether the ‘parties’ referred to in
section 9(1)
are limited to the applicant and the decision-makers or
whether the agreement of the fourth respondent was also required
before
the 180-day period could be said to have been extended. There
is no reason why the principles enunciated in
ABM
Motors
and
Sasol
Chevron Holdings
should
not apply. The provisions of
section 9(1)
must, moreover, be
interpreted with reference to
sections 5
and
7
of PAJA, which deal
with the time limit within which to request written reasons for
administrative action and the institution of
review proceedings,
respectively. In relation to
section 7
, the reference to ‘parties’
in
section 9(1)
must be understood as a reference to the parties to
be joined in the envisaged proceedings. The test, in terms of either
section 7
or
9
(1), is whether a party has a direct and substantial
interest in the subject matter of such proceedings, i.e., a legal
interest
in the subject matter of the litigation which may be
affected prejudicially by the court’s findings.
[17]
The fourth respondent in the present matter satisfies the test; it
is, undoubtedly, an affected party. The applicant, however,
failed to
seek agreement from the fourth respondent for the extension of the
180-day period.
[44]
There is a further
difficulty that faces the applicant. It seems to be common cause that
the applicant had until 3 January 2022
by which to have instituted
review proceedings. The applicant only requested an extension on 1
February 2022, after the expiry
of the 180-day period. In
Joubert
Galpin Searle Inc and others v Road Accident Fund and others
,
[18]
Plasket J dealt with the legal consequences of the expiry of a bid
validity period within the context of the RAF’s procurement
of
legal services. He held as follows:
‘…
The issue
that I now turn to is whether, having heard the views of the bidders
whose hats, ostensibly, remained in the ring, the
RAF could extend
the tender validity period after it had already expired- and thus
whether the unsuccessfully concluded tender
process could, in this
way, be revived.
…
By the time the
tender validity period has expired, there is nothing to extend
because, as Southwood J said in
Telkom
,
[19]
the tender process has been concluded, albeit unsuccessfully. The
result, in this case, is that the RAF had no power to award the
tender once the bid validity period had expired and it had no power
to extend the period as it purported to do. In the language
of
s
6(2)(a)(i)
of the PAJA, the decision-maker- the board, in this
instance- “was not authorised” to take the decision. Put
in slightly
different terms, there were no valid bids to accept, so
the RAF had no power to accept the expired bids.’
[20]
[45]
The same reasoning can be applied to
section 9(1)
of PAJA. Once 180
days had lapsed, there was no period that could be made longer or
continued for a specified length of time. The
provisions of
section
9(1)
, furthermore, do not authorise a decision-maker to revive the
lapsed period.
[46]
In the absence of an agreement that meets the requirements of
section
9(1)
, the applicant’s institution of review proceedings fell
outside the 180-day period stipulated under
section 7(1).
Unreasonable
delay
[47]
A
delay in the institution of review proceedings attracts an enquiry
into whether it was unreasonable. The relevant common law principles
were discussed in
Associated
Institutions Pension Fund and others v Van Zyl and others
,
[21]
where Brand JA remarked:
‘
It
is a long-standing rule that courts have the power, as part of their
inherent jurisdiction, to regulate their own proceedings,
to refuse a
review application if the aggrieved party had been guilty of
unreasonable delay in initiating the proceedings. The
effect is that,
in a sense, delay would “validate” the invalid
administrative action… The raison d´etre
of the rule is
said to be twofold. First, the failure to bring a review within a
reasonable time may cause prejudice to the respondent.
Second, there
is a public interest element in the finality of administrative
decisions and the exercise of administrative functions…
…
The
scope and content of the rule has been the subject of investigation
in two decisions of this court. They are the
Wolgroeiers
case…
[22]
and
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie en ‘n
ander
…
[23]
As appears from these two cases and the numerous decisions in which
they have been followed, application of the rule requires
consideration of two questions:
(a)
Was there an unreasonable delay?
(b)
If so, should the delay in all the circumstances
be condoned?
…
The
reasonableness or unreasonableness of a delay is entirely dependent
on the facts and circumstances of any particular case.’
[24]
[48]
The two questions identified by Brand JA lie at
the heart of any enquiry into whether a delay was unreasonable. They
are rooted
in our common law jurisprudence and survive in the more
recent authorities that pertain to the institution of review
proceedings
under PAJA and delays in relation thereto.
[49]
Strong
public interest considerations inform any such enquiry. In
Gqwetha
v Transkei Development Corporation and others
,
[25]
the appellant had brought review proceedings in the Transkei High
Court some 14 months after her dismissal from employment. Nugent
JA
held as follows:
[26]
‘…
It
is important for the efficient functioning of public bodies…
that a challenge to the validity of their decisions by proceedings
for judicial review should be initiated without undue delay. The
rationale for that longstanding rule… is twofold: First,
the
failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in my view more
importantly,
there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions. As
pointed out by Miller JA in
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad…
[27]
:
“
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has elapsed-
interest
reipublicae ut sit finis litium
…
Considerations
of this kind undoubtedly constitute part of the underlying reasons
for the existence of this rule.”
[28]
[50]
The
learned judge went on to deal with the correct approach to be adopted
when assessing the unreasonableness of a delay.
[29]
…
Whether
there has been undue delay entails a factual enquiry upon which a
value judgment is called for in the light of all the relevant
circumstances including any explanation that is offered for the delay
(
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ‘n
Ander
…
).
[30]
[51]
A court is required to embark upon a wide enquiry,
taking all relevant facts into consideration. It must, thereafter,
assess whether
the delay is good or bad in terms of the standards or
priorities attached to a determination of what would be in the
interests
of justice.
[52]
A few
years after
Gqwetha
,
the Supreme Court of Appeal addressed the subject within the context
of
section 7(1)
of PAJA in
Camps
Bay Ratepayers’ and Residents’ Association v
Harrison
.
[31]
To that effect, Maya JA reiterated that
section 9(2)
allows the
extension the 180-day period where the interests of justice so
require, and provided a useful indication of what would
comprise the
relevant circumstances in making such a determination. She held that:
‘…
the
question whether the interests of justice require the grant of such
extension depends on the facts and circumstances of each
case: the
party seeking it must furnish a full and reasonable explanation for
the delay which covers the entire duration thereof
and relevant
factors include the nature of the relief sought, the extent and cause
of the delay, its effect on the administration
of justice and other
litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success.’
[32]
[53]
Following
the decision in
Camps
Bay Ratepayers
,
the question of what an unreasonable delay entails within the context
of
section 7(1)
arose once more in
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
.
[33]
In that matter, Brand JA observed:
‘
At
common law, application of the undue delay rule required a two-stage
enquiry. First, whether there was an unreasonable delay
and, second,
if so, whether the delay should in all the circumstances be condoned…
Up to a point, I think,
section 7(1)
of PAJA requires the same
two-stage approach. The difference lies, as I see it, in the
Legislature’s determination of a delay
exceeding 180 days as
per
se
unreasonable.
Before the effluxion of 180 days, the first enquiry in applying
section 7(1)
is still whether the delay (if any) was unreasonable.
But after the 180-day period the issue of unreasonableness is
pre-determined
by the Legislature; it is unreasonable
per
se
.
It follows that the court is only empowered to entertain the review
application if the interest of justice dictates an extension
in terms
of
section 9.
Absent such extension the court has no authority to
entertain the review application at all. Whether or not the decision
was unlawful
no longer matters. The decision has been “validated”
by the delay…’
[34]
[54]
The decision in
OUTA
makes it clear that any delay that exceeds the
180-day period is
per se
unreasonable. A court cannot deal with the review
proceedings unless the interests of justice require the granting of
an application
made for the extension of the period in question.
[55]
The
subject was also considered in
Khumalo
and another v Member of the Executive Council for Education:
KwaZulu-Natal
,
[35]
where the MEC had challenged her own department’s decision to
promote the appellant and to provide another employee with
a
‘protected promotion’. The Constitutional Court found:
‘
In
Gqwetha
the
majority of the Supreme Court of Appeal held that an assessment of a
plea of undue delay involves examining: (1) whether the
delay is
unreasonable or undue (a factual enquiry upon which a value judgment
is made in the light of “all the relevant circumstances”);
and if so (2) whether the court’s discretion should be
exercised to overlook the delay and nevertheless entertain the
application.’
[36]
[56]
The
Khumalo
test,
as it is known, approved the approach adopted in
Gqwetha
.
In turn, the Constitutional Court affirmed the
Khumalo
test
in
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
,
[37]
and set out, expressly, the principles that apply when assessing
delay.
[38]
The
first principle is that there are differences between a review
brought in terms of PAJA and a review brought on the basis of
legality.
[39]
The
second principle is that the reasonableness of the delay must be
examined with reference to the explanation offered for the
delay;
where there is no explanation, the delay will necessarily be
unreasonable. The third principle is that the reasonableness
of the
delay cannot be examined in a vacuum and the court must decide
whether the delay ought nevertheless to be overlooked. In
doing so,
the court must consider several factors: (a) the potential prejudice
to affected parties as well as the possible consequences
of setting
aside the impugned decision; (b) the nature of the impugned decision;
and (c) the conduct of the applicant. The fourth
principle is that,
despite there being no basis upon which to overlook an unreasonable
delay, the court may nevertheless be constitutionally
compelled to
declare state conduct unlawful.
[40]
[57]
Ultimately,
Asla
and
the decisions that preceded it rest on the two questions identified
in
Associated
Institutions Pension Fund
:
(a) was there an unreasonable delay; and (b) if so, should the delay
in all the circumstances be condoned? This appears to have
been
acknowledged by the Supreme Court of Appeal in recent decisions such
as
Sasol
Chevron Holdings Limited
,
[41]
to which counsel for the fourth respondent in the present matter
referred.
Whether to grant
application for extension
[58]
It is unnecessary at this stage to embark upon an
enquiry into whether the applicant’s delay was unreasonable.
The court has
already found that the applicant’s institution of
review proceedings fell outside the 180-day period stipulated under
section 7(1)
of PAJA. The decision in
OUTA
makes it clear that such delay is unreasonable
per
se
. The court is satisfied that the
applicant has made application for the extension of the period in
question, but whether it would
be in the interests of justice to
grant such application will depend on the facts and circumstances of
the matter.
[59]
The applicant has provided an explanation for the delay. Whether it
is sufficiently
full and reasonable is questionable. The COVID-19
pandemic had an extraordinary impact on society but did not prevent
altogether
the usual conduct of socio-economic activities. Within the
legal sector, ICT facilities allowed an adequate measure of
communication
between client and practitioner, and the functioning of
the courts continued, albeit subject to limitations. In the present
matter,
it is apparent that the applicant’s spouse, Mr Long,
was closely involved but it is unclear why he was unable to take the
necessary steps to institute review proceedings, notwithstanding the
applicant’s illness. It is also unclear why an alternative
professional at the offices of the applicant’s attorneys, with
or without the assistance of counsel, could not have become
involved,
notwithstanding Mr Coetzee’s having contracted the virus.
[60]
The extent and cause of the delay remain a cause for concern. The
fourth respondent
lodged its departure and removal application on 16
July 2018; the resulting dispute has only reached court some five
years later.
Inasmuch as the municipality can be criticised for not
having ensured that the proceedings before the tribunal and the
appeal authority
took place more expeditiously, the applicant’s
delay has served to exacerbate the uncertainty of the matter. The
fourth respondent
has mentioned, in some detail, the prejudice to its
business operations.
[61]
An integral part of the
bundle of facts and circumstances to be considered when deciding
whether to grant the application for extension
is an assessment of
the applicant’s prospects of success in the review proceedings.
This was emphasised by the Supreme Court
of Appeal in
South
African National Roads Agency Ltd v City of Cape Town
,
[42]
where Navsa JA held that the merits of an impugned decision are
critical when a court embarks upon a consideration of the facts
and
circumstances of a case to determine whether the interests of justice
dictate that a delay should be condoned.
[43]
This aspect will be discussed further below.
Basis
for the applicant’s challenge
[62]
The starting point for the enquiry, contends the applicant, is the
legal effect
of the conditions attached to the title deed for erf
1[...]3. The relevant conditions state as follows:
‘
3.
No building on this erf shall be used or converted to use for any
purpose other than
that permitted in terms of these conditions…
6.(a)
This erf shall be used solely for the purposes of erecting thereon
one dwelling or other buildings
for such purposes as the
Administrator may, from time to time after reference to the Townships
Board and the local authority, approve,
provided that if the erf is
included within the area of a Town Planning Scheme, the local
authority may permit such other buildings
as are permitted by the
scheme, subject to the conditions and restrictions stipulated by the
scheme.’
[63]
The applicant argues that the reviewable irregularities upon which
she advances
her application arise from the fact that the restrictive
conditions, described above, limit the use of erf 1[...]3 to that of
a
domestic residence. Furthermore, erf 1[...]3 is zoned as
‘Residential 1’, which permits only a single residential
dwelling.
The decisions made by the tribunal and appeal authority,
asserts the applicant, conflicted with the restrictive conditions and
the zoning limitations. The decisions also conflicted with the
relevant provisions of the municipality’s land use scheme.
[64]
Consequently, the applicant relies on
sections 6(2)(a)(i)
,
6
(2)(b),
6
(2)(d), and
6
(2)(f)(ii) of PAJA. She contends that the
administrators were not authorised by the empowering provisions in
question, failed to
ensure compliance with a mandatory and material
condition prescribed by the empowering provisions, were materially
influenced by
an error of law, and the decisions themselves were not
rationally connected to the purpose of the empowering provisions and
the
information before the administrators.
[65]
The applicant’s argument requires closer analysis. It is
important to
remark, at the outset, that the present dispute cannot
be fully understood without an appreciation of the somewhat complex
history
of South African planning law.
Planning
law framework
[66]
Prior to the advent of a
constitutional democracy, apartheid planning law comprised a ‘myriad
of different pieces of legislation
applicable in different
areas.’
[44]
Notwithstanding the legislative changes brought about by the
Constitution, South Africa’s planning system remained
fragmented
and uncoordinated, with many different statutes applying
in both the national and provincial spheres of government.
[45]
An important regulatory instrument in this regard was the Land Use
Planning Ordinance 15 of 1985 (‘LUPO’), which provided
for the creation of town planning or zoning schemes in the erstwhile
Cape Province and applied to land use planning within the
jurisdiction of a municipality such as the third respondent. It
preceded the introduction of SPLUMA and the shift towards a system
in
which local government played a central planning role.
[67]
SPLUMA was in operation
at the time that the fourth respondent lodged its departure and
removal application on 16 July 2018. It
provides,
inter
alia
, a
framework for spatial planning and land use management in South
Africa and was designed to promote greater consistency and uniformity
in the application procedures and decision-making by authorities
responsible for land use decisions and development applications.
[46]
Despite the high-level legislative changes brought about by SPLUMA,
provincial legislation such as LUPO continued to apply in relation
to
land use planning decisions within the context of local
government.
[47]
[68]
A key component of land
use planning under LUPO was the zoning scheme. Its general purpose
was to determine use rights and to provide
control over use rights
and over the utilisation of land in the area of jurisdiction of a
local authority.
[48]
The
mechanism of the zoning scheme has evolved to become a land use
scheme under SPLUMA, but its essential purpose remains the
same, viz.
to determine the use and development of land within the municipal
area to which it relates.
[49]
In terms of section 24(1) of SPLUMA, a municipality was required to
adopt and approve a single land use scheme for its entire area
within
five years of SPLUMA’s commencement.
[50]
The provision serves to highlight the central planning role now
played by local government, which was not the case under LUPO.
Furthermore, sub-section (2) of SPLUMA stipulates that the scheme
must include,
inter
alia
,
appropriate categories of land use zoning and regulations, while
sub-section (3) stipulates that the scheme may include provisions
relating to,
inter
alia
,
the use and development of land only with the written consent of the
municipality, and the variation of conditions of a scheme
other than
a variation which may materially alter or affect conditions relating
to the use, size, and scale of buildings and the
intensity or density
of land use.
[69]
Crucially, at the time of
the fourth respondent’s application, the municipality had not
yet adopted and approved the land
use scheme envisaged under section
24(1) of SPLUMA. The municipality had, however, approved and adopted
the SPLUM By-law,
[51]
which
addressed, in terms of Chapter 3, the development, approval, and
adoption of such a scheme. Pertinently, section 1 of the
SPLUM By-law
provides the following definition:
‘”
land
use scheme
”
means
the land use scheme adopted and approved in terms of Chapter 3 and
for the purpose of these By-laws
include
an existing scheme until such time as the existing scheme is replaced
by the adopted and approved land use scheme
.’
[52]
[70]
The fourth respondent alleges that, in the absence of a new scheme,
the existing
zoning scheme applied at the time that it lodged its
application, i.e., the Kenton-on-Sea scheme, mentioned earlier in the
judgment.
The applicant has not disputed this. The municipality only
adopted and approved a land use scheme (‘the new scheme’)
on 27 March 2019, after the date of the fourth respondent’s
departure and removal application but before the tribunal’s
decision.
Application
for departure
[71]
Mindful of the above, it is necessary to return to the nature of the
application
itself. In terms thereof, the fourth respondent sought a
‘permanent departure to permit a guesthouse on erf 1[...]3’
and for the ‘removal of restrictive conditions’ in
relation to the title deed. The former is the immediate subject
of
the court’s enquiry.
[72]
The SPLUM By-law defines a departure, in terms of section 1, as ‘an
application
for a temporary deviation from, or permanent amendment
of, land use scheme provisions applicable to land’.
Applications for
permanent or temporary departures are addressed
under section 76(1), which provides as follows:
‘
76
Application for permanent or temporary departures
(1) Permanent
departure applications are applications that will result in permanent
amendment of land use scheme provisions
applicable to land, such as:
(a)
relaxations of development parameters such as building line, height,
coverage or number of storeys; and
(b) departure
from any other provisions of a land use scheme that will result in
physical development or construction
of a permanent nature on land.’
[73]
It is common cause that the fourth respondent’s land, erf
1[...]3, had
been zoned for single residential use in terms of the
Kenton-on-Sea scheme. This permitted the erection and use of a
‘dwelling
house’, meaning a building with one dwelling
unit, which was defined in turn as:
‘
a self-contained
interleading group of rooms used only for the living accommodation
and housing of a single family together with
such outbuildings as are
ordinarily used therewith.’
[53]
[74]
The fourth respondent’s
development proposal, entailing the conversion of the existing
building into a double-storey guesthouse
with eight suites to
accommodate 16 guests, clearly failed to satisfy the requirements for
a dwelling house. The Kenton-on-Sea
scheme simply did not envisage
the use of erf 1[...]3 for a guesthouse. It could, admittedly, be
used for a place of instruction
or for use by medical practitioners,
but only with the special consent of the municipality.
[54]
Interestingly, the Kenton-on-Sea scheme makes no mention of a
guesthouse, irrespective of the use zone.
[75]
The operation of a
guesthouse is allowed, however, under the new scheme.
[55]
Whereas the primary use of ‘Residential Zone 1’ land is
for a dwelling unit,
[56]
the new scheme indicates
that the consent use in relation thereto includes a guesthouse,
provided that the prior approval of the
municipality is obtained.
[57]
[76]
The new scheme had not
yet been adopted and approved at the time of the fourth respondent’s
application but was in place when
the tribunal made its decision. The
question arises as to which scheme applied for purposes of deciding
the application. Counsel
for the fourth respondent asserted that the
presumption against statutory retrospectivity operated and referred
to the decision
in
Minister
of Public Works v Haffejee
.
[58]
In that regard, however, Marais JA merely held that an amending
statute that was characterised as regulating procedure will not
always have retrospective effect; it would depend on the impact that
it had upon existing substantive rights and obligations.
[59]
Possibly of more relevance is the decision in
Ntame
v MEC for Social Development, Eastern Cape, and two similar
cases
,
[60]
where Plasket J dealt with the respondent’s failure to have
decided on the applicant’s application for maintenance
grants.
The court found that the applications were pending the moment that
they were made, and decisions had to be taken on them
in terms of the
law applicable at the time, notwithstanding the fact that the
maintenance grant had subsequently been phased out
in favour of a
child support grant.
[61]
[77]
In the present matter, the new scheme does not make provision for its
retrospective
effect. It makes provision for transitional
arrangements but stipulates that these are subject to section 180 of
the SPLUM By-law,
which provides, in turn, that pending applications
at the time of its coming into operation, i.e., 4 March 2016, must be
dealt
with in terms of the national or provincial legislation in
question. Absent any clear provision to the contrary in the new
scheme,
the presumption against statutory retrospectivity applies.
[78]
Consequently, the fourth
respondent’s application for a permanent departure must be
construed in terms of the SPLUM By-law.
The relevant land use scheme
provisions are those of the Kenton-on-Sea scheme. The definition of a
‘departure’, under
section 1 of the SPLUM By-law, is wide
enough to include the application in question because the approval of
the development of
a guesthouse would result in a permanent amendment
of the land use scheme provisions that previously limited the use of
erf 1[...]3
to a dwelling house in alignment with its single
residential zoning. The applicant’s contention that section 76
did not permit
a departure application because they pertain to
building restrictions cannot be supported. The examples given under
sub-sections
(a) and (b) are merely illustrative of the type of
permanent departure application envisaged. In any event, the
development of
an eight-suite guesthouse would appear to fit,
comfortably, within the ambit of a ‘departure from any other
provisions of
a land use scheme that will result in physical
development or construction of a permanent nature on land.’
[62]
The applicant’s contention, too, that the fourth respondent
ought to have applied for a consent use, as defined, and read
with
section 74, cannot be supported for the simple reason that the land
use right for a guesthouse could not be obtained by way
of consent
from the municipality and was not specified as such in the
Kenton-on-Sea scheme.
[79]
The tribunal, moreover,
was undoubtedly authorised to approve the application in terms of
section 108(a) of the SPLUM By-law.
[63]
It was also authorised, under sub-section (b), to impose reasonable
conditions in relation thereto.
[64]
That the tribunal did in fact do so on that basis is evident from its
decision.
The
restrictive conditions
[80]
The applicant’s
chief contention is that the restrictive conditions attached to the
title deed prevented the approval of the
departure application. She
refers to the decision in
Malan
and another v Ardconnel Investments (Pty) Ltd
,
[65]
where Joubert JA held that a town planning scheme does not overrule
registered restrictive conditions in title deeds.
[66]
Similarly, in
Camps
Bay Ratepayers and Residents Association and others v Minister of
Planning, Culture and Administration, Western Cape, and
others
,
[67]
Griesel J referred to
Malan
and remarked that:
‘
The zoning scheme
does not override title deed restrictions… and indeed the
zoning scheme expressly confirms this point.
If it were in the public
interest for all properties for all properties to be subject only to
zoning restrictions, the Legislature
would simply have abolished all
restrictive title deed conditions by statute. Instead, it has laid
down a procedure whereby such
title deed restrictions can be removed
only if to do so would specifically be in the interest of the
township, area or public.’
[68]
[81]
The applicant went on to point out that the above principles were
reflected
in section 56 of the new scheme. This provides as follows:
‘
56.
Title Conditions
Nothing in the provisions
of this Scheme shall be construed as permitting or enabling the
Municipality to permit, in any area, the
erection or use of any
building or the use of any land, for the purpose which is prohibited
under any approved conditions of title
applying to such area or the
conditions of title under which any land may be held.’
[82]
Consequently, argued the applicant, the approval of the fourth
respondent’s
application conflicted with both the restrictive
conditions applicable to erf 1[...]3 and section 56 of the new
scheme.
[83]
The restrictive conditions in question permit the land to be used
‘for
the purposes of erecting thereon one dwelling or other
buildings for such purposes as the Administrator may, from time to
time
after reference to the Townships Board and the local authority,
approve’. It must be noted that the provisions of section
45(6)
of SPLUMA, in relation to the parties to a land development
application, stipulate that where a condition of title provides
for a
purpose with the consent or approval of the administrator, such
consent may be granted by the municipality. Quite clearly,
the
restrictive conditions do not limit the use or erf 1[...]3, without
exception, to the erection of one dwelling. The municipality
may
approve other uses.
[84]
There is, admittedly, a qualification attached to the authorization
granted
to a municipality. If the land ‘is included within the
area of a Town Planning Scheme, the local authority may permit such
other buildings as are permitted by the scheme, subject to the
conditions and restrictions stipulated by the scheme.’ The
Kenton-on-Sea scheme applied when the fourth respondent lodged its
departure and removal application. It simply made no provision
for
the use of erf 1[...]3 as a guesthouse. This is the hurdle that faces
the fourth respondent.
[85]
Counsel for the fourth respondent correctly asserted that the
tribunal’s
decision did not conflict with the restrictive
conditions in relation to the new scheme. Critically, however, the
new scheme was
not in place when the fourth respondent submitted its
application. The tribunal was obligated to have decided the
application based
on the law that applied at the time.
[86]
A further argument made
by the fourth respondent, presumably in the alternative, relies on
section 6(2)(d) of PAJA, to the extent
that a ground of review arises
only when an administrative action was ‘
materially
influenced by an error of
law’.
[69]
It referred to
the decision in
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and
others
,
[70]
where the Constitutional
Court held that:
‘…
a mere
error of law is not sufficient for an administrative act to be set
aside.
Section 6(2)(d)
of the
Promotion of Administrative Justice Act
permits
administrative action to be reviewed and set aside only where
it is “materially influenced by an error of law”. An
error of law is not material if it does not affect the outcome of the
decision. This occurs if, on the facts, the decision-maker
would have
reached the same decision, despite the error of law.’
[71]
[87]
That is not the case here. If the tribunal had properly considered
the restrictive
conditions in relation to the Kenton-on-Scheme,
instead of the new scheme, then it is highly improbable that it would
have decided
to approve the departure. As previously observed, the
new scheme makes provision for a guesthouse; the Kenton-on-Sea scheme
did
not. It cannot be said that the error in law was not material.
[88]
The applicant’s argument in relation to
section 56
of the new
scheme takes the matter no further. The provisions of the
Kenton-on-Sea scheme in relation to the restrictive conditions
ought
to have been decisive of the matter.
Facts
and circumstances
[89]
The court has already
found that the applicant’s delay in the institution of
proceedings was unreasonable. The applicant has,
moreover, not been
wholly persuasive regarding the cause of the delay. Nevertheless, the
role of the tribunal, appeal authority,
and the municipality cannot
be ignored. It is not clear from the papers why the hearings for the
departure and removal application
and the appeal could not have been
held earlier. The delay in the institution of review proceedings,
however, was 56 days.
[72]
Mindful of the strong reaction that the fourth respondent’s
application attracted, the comprehensive representations made
by the
parties (with the assistance of both legal and planning
practitioners), the involvement of COGTA and other third parties,
and
the conclusion of the appeal process, all taking place over
approximately three years, it would not be entirely fair to penalize
the applicant for a further delay of slightly less than two months
after the expiry of the statutory 180-day period.
[90]
The potential prejudice that would be caused to the fourth respondent
if the
extension application were to be granted is not easily
apparent. The parties have already presented their respective cases
regarding
the merits of the review proceedings. If anything, then
such prejudice as may result is too closely linked to the
determination
of the merits for it to be a decisive factor in
relation to the immediate issue.
[91]
Once the applicant’s favourable prospects of success are
considered,
it becomes difficult to refuse the application for an
extension. The cumulative impact of all the relevant facts and
circumstances
favours the applicant.
WHETHER
THE DECISIONS ARE REVIEWABLE
[92]
The tribunal’s failure to have appreciated the legal effect of
the restrictive
conditions in relation to the Kenton-on-Sea scheme
instead of the new scheme gave rise to an irregularity. The resulting
decision
was materially influenced by an error in law, as envisaged
under
section 6(2)(d)
of PAJA. It could also be said that it fell
within the ambit of
section 6(2)(f)(ii)
since it was not rationally
connected to the information before the tribunal, which included
details of the restrictive conditions
in question as well as,
undoubtedly, the Kenton-on-Sea scheme itself.
[93]
The appeal authority confirmed the tribunal’s decision, in
accordance
with the authority given under
section 163(1)
of the SPLUM
By-law. In doing so, however, it reasoned that:
‘
The Ndlambe
Municipal Planning Tribunal’s reasons to approve the
application was informed by relevant factors which are sound
and well
substantiated, therefore no fault can be found in the decision taken
by the Municipal Planning Tribunal.’
[73]
[94]
The appeal authority failed, like the tribunal, to appreciate the
legal effect
of the restrictive conditions. This gave rise to an
irregularity that informed its decision, establishing the same
grounds for
review as those described above.
[95]
In
Van
Rensburg and another NNO v Nelson Mandela Metropolitan Municipality
and others
,
[74]
Froneman J reiterated that any permission by a municipality to build
or use buildings contrary to the restrictive conditions for
the land
in question cannot be lawful.
[75]
This was the situation regarding the Kenton-on-Sea scheme. The use of
erf 1[...]3 for a guesthouse is not contrary, however, to
the
restrictive conditions in relation to the new scheme.
[96]
As already discussed, the
restrictive conditions permit the land to be used for the erection of
one dwelling or other buildings
for such purposes as the municipality
may approve, subject to what is permitted by the land use scheme and
the conditions and restrictions
that pertain thereto. The new scheme
permits the operation of a guesthouse on erf 1[...]3 as a consent
use. It stipulates that
the approval of the municipality is to be
obtained prior to development.
[76]
[97]
Under
section 1
of the SPLUM By-law, consent is defined as follows:
‘”
consent”
means a land use
right that may be obtained by way of consent from the municipality
and is specified as such in the land use scheme.’
[98]
In terms of
section 74(1)
, an applicant may apply to the municipality
for a consent use in the manner set out in Chapter 6. This entails
the submission of
an application with the information stipulated
under
section 85
and the fees determined under
section 86.
To all
intent and purposes, the fourth respondent has already done so by way
of its departure and removal application, submitted
in relation to
the Kenton-on-Sea scheme. The municipality has, moreover, effectively
provided consent for the land use requested.
[99]
The implications of the above have a bearing on the relief to be
granted. For
immediate purposes, however, the court cannot avoid a
finding to the effect that the fourth respondent’s development
of a
guesthouse on erf 1[...]3 was and remains unlawful.
RELIEF
TO BE GRANTED
[100]
PAJA, in terms of
section 8(1)
, deals with the
remedies available in review proceedings such as the present. A court
may grant any order that is just and equitable,
including those
listed in sub-sections (a) to (f).
Just and equitable
order
[101]
The
Constitutional Court has dealt with the subject in several decisions.
In
Steenkamp
NO v Provincial Tender Board, Eastern Cape
,
[77]
observed that:
‘
It
goes without saying that every improper performance of an
administrative function would implicate the Constitution and entitle
the aggrieved party to appropriate relief. In each case the remedy
must fit the injury. The remedy must be fair to those affected
by it
and yet vindicate effectively the right violated. It must be just and
equitable in the light of the facts, the implicated
constitutional
principles, if any, and the controlling law. It is nonetheless
appropriate to note that ordinarily a breach of administrative
justice attracts public-law remedies and not private-law remedies.
The purpose of a public-law remedy is to pre-empt or correct
or
reverse an improper administrative function. In some instances, the
remedy takes the form of an order to make or not to make
a particular
decision or an order declaring rights or an injunction to furnish
reasons for an adverse decision. Ultimately the
purpose of a public
remedy is to afford the prejudiced party administrative justice, to
advance efficient and effective public
administration compelled by
constitutional precepts and at a broader level, to entrench the rule
of law.’
[78]
[102]
The
court confirmed that PAJA confers on a court in review proceedings a
‘generous jurisdiction’ to make just and equitable
orders.
[79]
Some
years later, in
Bengwenyama
Minerals (Pty) Ltd and others v Genorah Resources (Pty) Ltd and
others
,
[80]
the Constitutional Court stated as follows:
‘
This
“generous jurisdiction” in terms of section 8 of PAJA
provides for a wide range of just and equitable remedies,
including
declaratory orders, orders setting aside the administrative action,
orders directing the administrator to act in an appropriate
manner,
and orders prohibiting him or her from acting in a particular
manner.’
[81]
[103]
The
court applied the same approach, later, in
AllPay
Consolidated Investment Holdings (Pty) Ltd and others v Chief
Executive Officer of the South Africa Social Security Agency
and
others (Corruption Watch and another as amici curiae)
,
[82]
where it held that:
‘
Once
a ground of review under PAJA has been established there is no room
for shying away from it. Section 172(1)(a) of the Constitution
requires the decision to be declared unlawful. The consequences of
the declaration of unlawfulness must then be dealt with in a
just and
equitable order under section 172(1)(b). Section 8 of PAJA gives
detailed legislative content to the Constitution’s
“just
and equitable” remedy.’
[83]
[104]
Mindful of the above, it is necessary to determine
what would be just and equitable in the immediate circumstances. To
that end,
it may be more helpful to approach the matter from a
different angle and to decide, at the outset, what would not be just
and equitable.
[105]
Having
found that the decisions of the tribunal and the appeal authority are
reviewable, the court is obligated to declare them
to be invalid and
unlawful. After that, the remittal of the matters to the
decision-makers would usually be the most sensible way
forward.
[84]
In terms of section 8(1)(c)(ii), however, a court may, in exceptional
cases, set aside an administrative action and substitute
or vary the
action or correct a defect resulting therefrom. The underlying common
law principles emerged from the decision in
Johannesburg
City Council v Administrator, Transvaal
,
[85]
where Hiemstra J summarised the position as follows:
‘…
it
seems clear that the Courts have consistently followed this pattern:
1.
The ordinary course is to refer back because the
Court is slow to assume a discretion which has by statute been
entrusted to another
tribunal or functionary.
2.
The Court will depart from the ordinary course in
these circumstances:
(i)
Where the end result is in any event a foregone
conclusion and it would merely be a waste of time to order the
tribunal or functionary
to reconsider the matter. This applies more
particularly where much time has already unjustifiably been lost by
an applicant to
whom time is in the circumstances valuable, and the
further delay which would be caused by reference back is significant
in the
context.’
(ii)
Where
the tribunal or functionary has exhibited bias or incompetence to
such a degree that it would be unfair to require the applicant
to
submit to the same jurisdiction again.’
[86]
[106]
In the
present matter, the remittal of the fourth respondent’s
departure and removal application to the tribunal would require
it to
decide it in accordance with the law as it applied at the time. The
tribunal would be bound to follow the court’s interpretation
of
the restrictive conditions in relation to the Kenton-on-Sea scheme,
meaning that its decision would be a foregone conclusion.
The
exercise would be a waste of time.
[87]
An order setting aside the decisions and remitting the matter to the
tribunal for reconsideration would not be just and equitable.
[107]
Similarly, however, it would be utterly pointless
to insist on the fourth respondent’s preparation of a fresh
application
for consent use in terms of section 74 of the SPLUM
By-law. All the relevant information is already before the tribunal.
All interested
parties have had an opportunity to make
representations. All the issues that would pertain to a consent use
application have already
been ventilated to a point of exhaustion.
[108]
The tribunal, moreover, appears to have been
almost entirely responsible for the delay of the hearing, during
which time the Kenton-on-Sea
scheme was replaced by the new scheme.
The fourth respondent has largely borne the brunt of the
consequences. To require it to
submit a fresh application and to bear
the costs thereof, including a further application fee, would be to
add insult to injury.
There is no reason why it should not be able to
make such application on the same papers, amended or supplemented
where necessary,
and for the municipality to waive the fee.
Furthermore, it would be imperative to put in place a timeframe
within which the tribunal
must make its decision to avoid further
prejudice. The same principles apply to any appeal process.
Costs
[109]
The only remaining issue is that of costs. This
aspect necessarily forms part of the just and equitable order that
the court is
required to grant.
[110]
The court is satisfied that the applicant has
demonstrated a basis upon which to grant the applications for
condonation and extension
of the 180-day period, respectively. This
does, however, amount to the granting of an indulgence in relation to
the applicant’s
failure to have complied with the applicable
time limits. It would be unfair to apply the general rule that the
successful party
is entitled to her costs.
[111]
In relation to the review proceedings, the
applicant has been substantially successful. Nevertheless, vast
swathes of allegations
made in, and annexures attached to the
founding papers had little or no significance once the issues had
been properly identified
and argued. It was commendable of counsel
for the applicant to have acknowledged this. In the circumstances, it
would be unfair
to direct an unsuccessful party to pay all the costs
for which it would usually be liable.
[112]
At the same time, the tribunal, appeal authority,
and the municipality must accept their share of liability for the
applicant’s
costs. In choosing not to oppose the matter, they
assumed the risk of an adverse finding in relation to the decisions
that were
made and must consequently shoulder the cost implications
thereof.
ORDER
[113]
Consequently, the court grants the following order
in terms of the provisions of section 8(1) of PAJA:
(a)
the decision of the second respondent, made on 28
October 2019, to grant conditional approval to the fourth respondent
for the operation
of a guesthouse on erf 1[...]3 Kenton-on-Sea is
reviewed and set aside;
(b)
the decision of the first respondent, made on 6
July 2021, to dismiss the applicant’s appeal regarding the
second respondent’s
decision is reviewed and set aside;
(c)
the fourth respondent’s development of a
guesthouse on erf 1[...]3 Kenton-on-Sea is declared unlawful;
(d)
the second respondent is directed to decide,
within 90 calendar days, any application made by the fourth
respondent for consent
use as envisaged under the current land use
scheme, provided that:
(i)
the fourth respondent may make application on the
same papers as those for its departure and removal application,
amended as may
strictly be necessary;
(ii)
the applicant shall be served with a copy of the
application described above at the time of the fourth respondent’s
submission
thereof; and
(iii)
the third respondent shall determine that the
application fee payable is nil;
(e)
the first respondent is directed to decide, within
90 calendar days, any appeal that arises therefrom;
(f)
regarding costs:
(i)
each party is directed to pay its own costs in
relation to:
(aa) the application for
condonation;
(bb) the application for
extension of the 180-day period; and
(ii)
the respondents, joint and severally, are directed
to pay 75% of the applicant’s remaining costs.
JGA LAING
JUDGE OF THE HIGH
COURT
APPEARANCE
For
the applicant:
Adv
De la Harpe SC, instructed by De Jager Lordan Inc., Makhanda.
For
the 4
th
respondent:
Adv
Ford SC with Adv Sephton, instructed by Neville Borman & Botha
Attorneys, Makhanda.
Date
of hearing:
17
August 2023
Date
of judgment:
21
November 2023
[1]
In
terms of section 7(1) of PAJA, any proceedings for judicial review
must be instituted without unreasonable delay and not later
than 180
days after the date on which,
inter
alia
,
the person concerned became aware of the administrative action and
the reasons for it. The period of 180 days may be extended
for a
fixed period, under section 9(1)(b), by agreement or on application
by the person concerned.
[2]
Section
33(1), read with sub-section (3), of the Constitution of the
Republic of South Africa, 1996.
[3]
Section
8(1) of PAJA.
[4]
1969
(3) SA 365 (A).
[5]
At
369A-C.
[6]
1978
(1) SA 681 (A).
[7]
At
685G.
[8]
See
Smith
NO v Brummer NO
1954
(3) SA 352
(O), at 358A;
Du
Plooy v Anwes Motors (Edms) Bpk
1983
(4) SA 212
(O), at 216H- 217A.
[9]
DE
van Loggerenberg,
Erasmus:
Superior Court Practice
(Jutastat
e-publications, RS 20, 2022).
[10]
At
D1-323-5.
[11]
Ibid.
[12]
The
parties allegedly comprised the appeal authority, the tribunal, and
the municipality. Mr Coetzee did not approach the fourth
respondent,
with implications that will be discussed later.
[13]
2018
(5) SA 540
(KZP).
[14]
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
others
2013
(2) SA 204 (SCA).
[15]
ABM
Motors
,
supra
,
at paragraph [18].
[16]
2022
JDR 0978 (SCA).
[17]
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
1953
(2) SA 151
(O), at 168-70. See, too, the discussion in DE van
Loggerenberg,
supra
,
at D1-124-5.
[18]
2014
(4) SA 148 (ECP).
[19]
Telkom
SA Ltd v Merid Training (Pty) Ltd and others; Bihati Solutions (Pty)
Ltd v Telkom SA Ltd
[2011]
ZAGPPHC 1.
[20]
Joubert
Galpin Searle Inc
,
at paragraphs [72] and [74].
[21]
[2004]
4 All SA 133 (SCA).
[22]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13 (A)
[23]
1986
(2) SA 57 (A).
[24]
Associated
Institutions Pension Fund
,
supra
,
at paragraphs [46] to [48].
[25]
[2006]
3 All SA 245 (SCA).
[26]
At
paragraph [22].
[27]
1978
(1) SA 13 (A).
[28]
At
41E-F.
[29]
Gqwetha
,
supra
,
at paragraph [24].
[30]
Setsokane
,
supra
,
at 86D-F and 86I-87A.
[31]
[2010]
2 All SA 519
(SCA).
[32]
At
paragraph [54].
[33]
[2013]
4 All SA 639
(SCA), also referred to as the
OUTA
case.
[34]
At
paragraph [26].
[35]
2014
(3) BCLR 333 (CC).
[36]
At
paragraph [49].
[37]
2019
(6) BCLR 661 (CC).
[38]
The court in
Asla
held, at [48], that
‘Firstly, it must be determined whether the delay is
unreasonable or undue. This is a factual enquiry
upon which a value
judgment is made, having regard to the circumstances of the matter.
Secondly, if the delay is unreasonable,
the question becomes whether
the Court’s discretion should nevertheless be exercised to
overlook the delay to entertain
the application.’
[39]
The first of the differences is that PAJA contains a 180-day bar;
there is no fixed period under a legality review. The second
difference is that delay in terms of PAJA requires an application
for condonation; there is no corresponding requirement under
a
legality review. For
immediate
purposes, the first of the
Asla
principles,
as described above is not relevant.
[40]
See the discussion in
Asla
,
[44] to [72].
[41]
Referred to,
supra
,
at
paragraph [20].
[42]
[2016]
4 All SA 332 (SCA).
[43]
At
paragraph [81].
[44]
Jeannie
van Wyk, ‘Land Use and Spatial Planning’,
LAWSA
(vol
25(2), 3ed), at para 14.
[45]
Op
cit
,
at para 15.
[46]
See
Preamble.
[47]
LUPO
was only repealed some five years after the introduction of SPLUMA,
in terms of the Repeal of Local Government Laws (Eastern
Cape) Act 1
of 2020, which commenced on 17 December 2020.
[48]
Section
11.
[49]
Section
25(1) of SPLUMA.
[50]
SPLUMA
came into operation on 1 July 2015.
[51]
The SPLUM By-law was published under Local Authority Notice 23 of
2016, in Provincial Gazette (Extraordinary) No. 3613, 4 March
2016.
[52]
Sic.
Emphasis added.
[53]
Section
1 of the Kenton-on-Sea scheme.
[54]
Tables B.1 and B.2.
[55]
See the definitions under
Chapter
5 of the new scheme.
[56]
Under
section 15(2) of the new scheme, land that was zoned in terms of any
previous zoning scheme is ‘translated or reclassified’
to one of the use referred to in Schedule 3 and is depicted as such
on the new zoning maps. To that effect, ‘Single Residential
Zone’ land is translated or reclassified as ‘Residential
Zone 1’.
[57]
Section
9 of the new scheme, read with Chapter 5 thereof.
[58]
1996
(3) SA 745.
[59]
At
753B.
[60]
2005
(6) SA 248
(ECD). See, too,
Raumix
Aggregates (Pty) Ltd v Richter Sand CC and another, and similar
matters
2020
(1) SA 623
(GJ), at paragraphs [17] and [23].
[61]
At
paragraph [37].
[62]
Section
76(b) of the SPLUM By-law.
[63]
Section 108 refers to any application submitted in terms of Chapter
6; section 83 makes it clear that this includes a departure
application.
[64]
Conditions
of approval are addressed under section 54.
[65]
1988
(2) SA 12 (A).
[66]
At
40E.
[67]
2001
(4) SA 294 (CPD).
[68]
At
324F-G. See, too,
Van
Rensburg and another NNO v Nelson Mandela Metropolitan Municipality
and others
2008
(2) SA 8
(SECLD), where Froneman J found, at paragraph [8], that a
restrictive condition registered in favour of a local authority and
any erf holder in a township, stipulating that the erf in question
be used for residential purposes only, was characterized as
a
praedial servitude in favour of such other erf holders. The Supreme
Court of Appeal supported Froneman J’s finding in
Van
Rensburg and another NNO v Naidoo and others NNO; Naidoo and others
NNO v Van Rensburg NO and others
2011
(4) SA 149 (SCA).
[69]
Emphasis
added.
[70]
2010
(6) SA 182 (CC).
[71]
At
paragraph [91]. See, too,
Minister
of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd and others
2014
(1) SA 521
(CC), at paragraph [67].
[72]
It
is common cause that the 180-day period expired on 3 January 2022;
the review proceedings were instituted on 28 February 2022.
[73]
Sic.
[74]
Referred
to,
supra
.
[75]
At
paragraph [8]. See, too,
Nelson
Mandela Bay Metro v Georgiou t/a Georgiou Guesthouse & Spa and
others
2016
(2) SA 394 (ECP).
[76]
Section
9 of the new scheme.
[77]
2007
(3) SA 121 (CC).
[78]
At
paragraph [29].
[79]
At paragraph [30].
[80]
2011 (4) SA 113 (CC).
[81]
At
paragraph [83].
[82]
2014
(1) SA 604 (CC).
[83]
At
paragraph [25].
[84]
See
Heher JA’s remarks in
Gauteng
Gambling Board v Silverstar Development Ltd
2005
(4) SA 67
(SCA), at paragraph [29].
[85]
1969
(2) SA 72 (T).
[86]
At
76D-G.
[87]
A similar situation arose in
Hartman
v Chairman, Board for Religious Objection
1987
(1) SA 922
(O), discussed in Cora Hoexter,
Administrative
Law in South Africa
(Juta
& Co, 2007), at 490.