Brief Summary

Municipal Law — Township Development — Certificates — Municipality unilaterally declaring previously issued certificates invalid without self-review — Developer sought approvals for township planning, with certificates issued confirming development approval — Municipality's action amounted to self-help and disregarded due process — Court declared certificates valid and binding, ordering municipality to process applications and take necessary administrative steps.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an urgent application in the Gauteng Division, Pretoria, in which a private developer sought relief against a municipality arising from the municipality’s attempt to treat its own prior administrative approvals as invalid without approaching a court. The proceedings were framed around the validity and continued operative effect of municipal decisions taken in the course of a township development process, and the consequences flowing from the municipality’s subsequent refusal to process further steps premised on those decisions.

The applicant was Dexalinx (Pty) Ltd, a developer engaged in the township planning process for the proposed townships Peach Tree Extensions 21–25. The respondent was the Municipal Manager, City of Tshwane Metropolitan Municipality, cited in that capacity.

Procedurally, the application was brought on an urgent basis under Uniform Rule 6(12). The court was asked, first, to grant declaratory relief confirming the validity and binding effect of the municipality’s prior decision to issue certificates in terms of the applicable municipal by-law, and secondly to grant consequential mandatory relief compelling the municipality to process later-stage applications and take administrative steps necessary to advance the town planning process and enable building plan approvals.

The general subject-matter of the dispute was the rule-of-law requirement that an organ of state may not unilaterally disregard or “reverse” its own administrative decisions (even if allegedly defective), but must instead follow proper process—typically by instituting self-review proceedings—to have them set aside by a court.

Material Facts

Dexalinx (Pty) Ltd was involved in a lengthy township planning process in which it sought and obtained a series of municipal approvals from the City of Tshwane. As part of this process, the City issued four certificates in terms of section 16(10) of the Tshwane Land Use Management By-law, 2016. The certificates recorded that, from the City’s side, the development had been approved to the point where the applicant could proceed to submit final building plans. The certificates were conveyed to the applicant in December 2022, after the required gazetting approving the townships.

After the certificates were issued and conveyed, the applicant took subsequent steps premised on their validity. In particular, it registered title deeds and notarial ties and submitted final building plans. The judgment treated these steps as having been taken on the footing that the section 16(10) certificates were valid and operative, and as having been “perfected” in reliance on them.

The City itself also acted on the premise that the certificates were valid. It required the applicant to apply for a correction and an exemption under sections 13, 24 and 28 of the By-law, which were described as steps that arise subsequent to the granting of the section 16(10) certificates. Both sides therefore proceeded, for a period, on the basis that the certificates lawfully formed part of the continuing town planning process.

In mid-July 2023 the City changed course. On 17 July 2023 it informed the applicant that it would disregard the certificates, and on 18 July 2023 it maintained an intractable stance that it regarded them as invalid. The City’s stated explanation was that the wrong municipal department had issued the certificates: the City contended that the Legal Department issued them, but that the function properly resided in the Land Planning/City Planning Department.

The court distinguished the City’s asserted justification from a properly established factual foundation. It recorded that the answering affidavit contained a conclusory assertion that the wrong department issued the certificates, without adequate supporting facts. The certificates themselves reflected that they were signed by an official in the Legal Department and recorded that the issuance was “duly authorised” in terms of a Council Delegation dated 11 September 2020. The court stated that it was not provided with evidence sufficient to make a factual finding that the wrong department had issued the certificates.

Following the City’s refusal to recognise the certificates, it halted the consideration and processing of later-stage applications. The applicant delivered applications in terms of sections 13 and 23 of the By-law relating to certain buildings alleged to have been built across boundary lines. The judgment recorded that, on 26 May 2023, the City’s Planning Department confirmed that the City had approved the applications, yet the City was refusing to process them. The applicant also sought that the City process a section 28(9) application linked to the registration of a new sectional title scheme, and sought an order compelling the updating of the City’s computer system and initiation of a linking process between internal departments to enable building plan approvals contemplated in section 28(11).

On urgency, the court relied on the timing of the City’s “about-turn” in mid-July 2023 and the speed with which the applicant acted thereafter. It also relied on the applicant’s allegations of significant and compounding financial harm (including price reductions claimed by tenants due to delays, quantified to date at about R7 million), the alleged risk of the entire development collapsing, and evidence of concern from the Gauteng Growth and Development Agency that the investor might withdraw and pursue an alternative site outside the province due to delays.

Legal Issues

The central legal question was whether the City could lawfully treat its own prior administrative decision as invalid and ignore it in practice, thereby halting further processing, without first having that decision reviewed and set aside by a court. This was principally a dispute about law, rooted in the rule-of-law constraints on public power, and specifically the doctrine that administrative acts continue to have effect until properly set aside.

A subsidiary issue concerned whether it mattered, for purposes of the relief, that the City alleged the certificates were issued by the “wrong department”. This raised a question of application of law to fact: even accepting alleged defectiveness, the court had to determine what legal consequences followed from the City’s failure to institute a self-review.

Further issues concerned whether the applicant had made out a case for urgency under the Uniform Rules, and whether the applicant was entitled to mandatory relief compelling the City to process later-stage applications and take administrative steps, in circumstances where the City’s refusal was based on its stance that the certificates could be disregarded.

Court’s Reasoning

The court approached the matter from the premise that administrative decisions may not simply be ignored without recourse to a court of law, and that even when the state seeks to correct its own error, it generally may not take a shortcut by unilaterally treating its decision as void. Drawing on Constitutional Court authority, the judgment emphasised that the requirement that government must apply to court to set aside its own decisions “springs from deep within the Constitution’s scrutiny of power”, and is rooted in legality and the rule of law.

The reasoning proceeded on the basis that, absent a statutory power authorising unilateral reversal, an organ of state that wishes to undo its own administrative act must do so by self-review, following a fair process, and obtaining an order setting the decision aside. Until then, the decision remains extant “in fact” and cannot be overlooked. The court treated the City’s conduct—purporting to disregard the certificates without court process—as impermissible self-help.

On the City’s explanation that the wrong department issued the certificates, the court reasoned in two steps. First, it found that the City had not laid a sufficient factual basis in its answering papers for the asserted lack of authority, while the certificates themselves recorded a council delegation authorising issuance by the Legal Department. Secondly—and decisively—the court held that even if the certificates were defective, that would not change the legal requirement that the City could not simply disregard them: it still had to approach a court to have them set aside. In this respect, the judgment applied the principle articulated in Kirland, namely that government should generally be held to the “pain and duty of proper process”, because a defective decision may have consequences that make it undesirable or even impossible to set aside, and those consequences must be weighed through proper judicial process.

Having concluded that the City improperly disregarded its own decision, the court found that the applicant was entitled to a declaration that the decision to grant the certificates was valid and binding until reviewed and set aside. The court then addressed the consequential relief. It reasoned that the City’s refusal to process subsequent applications was founded on an unlawful premise (that the certificates could be ignored). The City offered no sustainable basis to oppose the mandamus relief beyond that premise. The court therefore held that the applicant was entitled to an order compelling the City to process the relevant applications and to take administrative steps to move the remaining town planning process forward within the timeframes sought, noting that no argument had been advanced that the proposed time periods were unreasonable.

On urgency, the court rejected the contention that it was self-created. It reasoned that the applicant and City acted consistently with the validity of the certificates until 17 July 2023, and that the applicant moved quickly once the City’s stance crystallised on 18 July 2023. The court considered the asserted financial harm, the risk of investor withdrawal and project collapse, and the stagnation of the development. It also weighed the constitutional significance of the dispute as one involving the vindication of the rule of law and resistance to self-help. While the court stated that none of the urgency considerations, viewed individually, was decisive, it held that they cumulatively justified urgent enrolment.

On costs, the court reasoned that the applicant had been substantially successful and had been compelled to litigate to vindicate fundamental rights, including fair administrative action. It accepted that the matter justified the employment of two counsel, but declined to award costs on a punitive scale because it found no adequate basis for such an order in the manner the matter was prosecuted.

Outcome and Relief

The court enrolled and heard the matter as one of urgency, dispensing with the ordinary forms and service under Uniform Rule 6(12).

It granted declaratory relief that the respondent’s decision dated 7 December 2022, contemplated in section 16(12)(i) read with section 16(10)(b) of the Tshwane Land Use Management By-law, 2016, pertaining to the proposed townships Peach Tree Extensions 21–25, was valid and binding.

The court ordered the respondent to process the applicant’s approved/issued applications in terms of sections 13 and 23 of the By-law within two weeks, to update its computer system and initiate a linking process between relevant municipal departments to enable the building plan process contemplated in section 28(11) within one month, and to take all administrative steps necessary to process the remaining town planning process.

The respondent was ordered to pay the costs of the application, including the costs of two counsel, but punitive costs were not awarded.

Cases Cited

MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd (CCT 77/13) [2014] ZACC 6; 2014 (5) BCLR 547 (CC); 2014 (3) SA 481 (CC) (25 March 2014).

Oudekraal Estates (Pty) Ltd v The City of Cape Town and others (25/08) [2009] ZASCA 85.

Department of Transport v Tasima I(Pty) Limited [2016] ZACC 39; 2017 (2) SA 622 (CC); 2017 (1) BCLR 1 (CC).

Khumalo v Member of the Executive Council for Education, KwaZulu Natal [2013] ZACC 49; 2014 (5) SA 579 (CC); 2014 (3) BCLR 333 (CC).

City of Cape Town v Aurecon South Africa (Pty) Limited [2017] ZACC 5; 2017 (4) SA 223 (CC); 2017 (6) BCLR 730 (CC).

State Information Technology Agency SOC Limited v Gijima Holdings (Pty) Limited [2017] ZACC 40; 2018 (2) SA 23 (CC); 2018 (2) BCLR 240 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996.

Promotion of Administrative Justice Act 3 of 2000.

Tshwane Land Use Management By-law, 2016.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12).

Held

The court held that the City of Tshwane could not lawfully disregard or treat as invalid its own previously issued section 16(10) certificates without first instituting proper proceedings to have the underlying administrative decision reviewed and set aside. In the absence of such a self-review, the decision to issue the certificates remained extant and operative, and the municipality’s unilateral “about-turn” amounted to impermissible self-help.

The court further held that, because the City’s refusal to process subsequent town planning applications was based on this unlawful stance, the applicant was entitled to consequential mandatory relief compelling the City to process the later-stage applications and to take administrative steps to move the town planning process forward. Urgency was held to be established on a cumulative assessment of the timing of events, the ongoing harm alleged, and the constitutional significance of vindicating the rule of law.

LEGAL PRINCIPLES

An administrative act by an organ of state may not be ignored or treated as non-existent merely because the state regards it as defective; it continues to have effect in fact until it is set aside through proper legal process.

Where an organ of state seeks to undo or withdraw its own administrative decision, it is generally required to do so through a self-review in a court of law, following fair procedure, rather than through unilateral reversal. Absent empowering statutory authority, unilateral disregard of prior decisions constitutes impermissible self-help.

The requirement that government follow proper process when correcting its own decisions is grounded in the principle of legality and the Constitution’s scrutiny of public power, and it applies even where the Promotion of Administrative Justice Act 3 of 2000 may not apply.

Where a public authority’s refusal to act is founded on an unlawful premise (such as unlawfully disregarding an extant administrative decision), a court may grant mandatory relief compelling the authority to process applications and take administrative steps within reasonable time periods, particularly where no basis is advanced that the time periods are unreasonable.

In determining urgency, the court may consider the timing of the impugned conduct, the practical consequences of delay, the risk of irreparable or unquantifiable harm, and the constitutional importance of preventing self-help; these factors may cumulatively justify urgent enrolment even if none is individually decisive.

Dexalinx (Pty) Ltd v Municipal Manager c/o City of Tshwane Metropolitan Municipality (23/075060) [2023] ZAGPPHC 711 (21 August 2023)