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[2022] ZALMPPHC 51
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Letaba v Greater Tzaneen Municipality C/O The Municipal Manager (2853/2020) [2022] ZALMPPHC 51 (1 September 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
Case
no:2853/2020
REPORTABLE:
YES/
NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In
the matter between:
AGRI
LETABA
APPLICANT
And
GREATER
TZANEEN MUNICIPALITY
C/O
THE MUNICIPAL MANAGER
RESPONDENT
JUDGMENT
MULLER
J:
[1]
The applicant applied to the respondent for the rezoning of erf 2931
and 2932 in the township
of Tzaneen, Extension 53, for purposes of
erecting an agricultural college on the properties of which it is the
registered owner.
[2]
On 10 August 2017 the Mopani Municipal Planning Tribunal
[1]
as well as the respondent
[2]
approved the rezoning of erf 2931 to make provision of an
agricultural college and ancillary uses. Approval was also granted
for
the removal of certain restrictive conditions contained in the
title deeds of both erven, subject to the general provisions of the
scheme, together with various conditions specifically recorded in the
approval letter. Several of the conditions are relevant for
purposes
of the judgment. They are:
“
(i)
That an entrance to the property be provided by the owner at own cost
and addressed through a Site Development
Plan.
(ii)
The applicant must submit Map 3 documents for proclamation of the
rights prior to submission of Building
Plans.
(iii) A Site
Development Plan shall be submitted and approved by the Local
Authority prior to the approval of building
plans and the development
of the property.
…
.
(ix) That a
notice be published in the Provincial Gazette by Greater Tzaneen
Municipality to confirm the removal of
the following Title
conditions:
Title Deed 98686/2002 –
Condition D
Title Deed 98687/2002 –
Condition A.1 to A.4
As contemplated in
Section 58(7) of the SPLUMA By-Law of Greater Tzaneen
Municipality.
[3]
(x) That the applicant
shall at own cost submit the original Title Deeds of the relevant
properties, the original approval letter
of the Municipality and a
copy of the notice published in terms of paragraph (ix) above to the
Registrar of Deeds of endorsement
as contemplated in Section 59 of
the SPLUMA By-Law of Greater Tzaneen Municipality.
(xi)
That the removal of restrictive conditions in Title Deeds T98686/2002
and T98687/2002 be finalized prior
to promulgation of the rezoning.
…
.”
[3]
I turn to the defences raised by the respondent. It is important from
the outset to note that
the By-Law makes provision for an appeal
against a decision of a tribunal to an Appeal Authority.
[4]
It is common cause that after the tribunal approved the rezoning, no
appeal was lodged by either the applicant or the respondent
in terms
of section 121 (Part B) of the By-Law. The decision is thus valid and
enforceable.
[4]
The respondent, firstly raised the question whether the applicant has
approached the court for
review under the Promotion of Public
Administrative Justice Act.
[5]
The basis of the objection is that the applicant was aware that the
respondent has failed to make a decision to publish in the
Provincial
Gazette confirmation of the removal of the suspensive conditions in
the title deeds but has clothed the application
under the guise of a
mandatory interdict to circumvent falling foul of the 180 days period
provided for in section 7(1) of PAJA.
[5]
Secondly, the respondent contended that relief claimed in prayer 1
and 2 is incompetent by virtue
of the provisions of section 57(2) of
the By-Law. No proclamation of the approval has occurred. As the
approval has lapsed it is
therefore unenforceable. The applicant did
not apply for an extension in terms of the By-Law.
[6]
The respondent also averred that the applicant should have exhausted
the internal remedy provided
for in Chapter 8 of the By-Law. The
respondent in conclusion averred that the applicant has failed to
submit a Site Development
Plan to the respondent as required by
section 50(3) of the By-Law. It is not the respondent that caused the
approval to lapse due
to non-compliance with the said By-Law.
[7]
Finally, albeit without much force, was the suggestion by the
respondent that the transfer of
ownership of the land in 2002 is
questionable. Counsel for the respondent conceded, quite correctly,
that the applicant is presently
the lawful owner of the land in
question. The only relevance that the statement presented is an
underlying reason for the failure
of the respondent to comply with
its clear and simple obligation to publish the necessary information
in the Gazette because the
respondent failed to accept that the
applicant is the owner of the land.
[8]
The evidence creates the impression that the respondent developed
second thoughts about the rightness
of the rezoning after it
initially supported the application.
[9]
The application was submitted for consideration on 5 May 2016. On 10
April 2017, the respondent
acknowledged receipt of the application.
The respondent requested a copy of the legal notice to remove the
restrictive conditions
from the title deeds prior to publication for
approval. On 20 April 2017 a draft legal notice was submitted to the
respondent as
requested in the letter. The next day the respondent
approved the contents of the notice but requested the addition of the
words
“(for amendment of the current land use from AGRICULTURAL
SHOW TO AGRICULTURAL COLLEGE)”.
[10]
On 14 May 2018 the applicant referred to its letter dated 22 March
2018 in terms whereof copies of the title
deeds containing the
endorsements of the Registrar of Deeds as required by condition (x)
of the approval letter were forwarded
to the respondent stating that
the conditions of the approval have been met with the exception of
the publication. The reply was:
“
Hi hope you well,
will get back to you about this matter, we have to submit additional
report to Council before we final the matter.
Once that report has
been received by council will then get a proper action on the
outstanding matter.”
[11]
On 6 June 2018 the respondent was requested to respond. The answer
was again that a council resolution has
to be obtained before it can
be finalised. The writer added that the respondent has not yet placed
the notification in the newspaper.
[12]
The respondent was reminded in an email dated 27 June 2018 that in
terms of condition (ix) a notice should
be published by the
respondent to confirm the removal of the restrictive conditions from
the relevant title deeds. The applicant
requested clarification from
the respondent whether or not the notice had been published.
[13]
The parties have met to discuss the issues. In an email dated 12 July
2018 the meeting as well as the failure
by the respondent to publish
the notice were confirmed. It was recorded in the email that a
proposal was made to refer the application
to the council to conclude
the decision regarding the publication of the notice. The proposal
was not accepted by the applicant.
The following was noted:
“
Both the GTM
delegates further proposed that this issue be tabled before the
council to clarify the ongoing and ill-informed perception
by certain
councillors and/or municipal employees that the relevant property was
illegally donated to the current land owner, while
the facts indicate
that it was a mutual and fair agreement by both parties at the time
of the transaction.”
[14]
On 1 April 2019 the respondent, when requested to respond, answered
that they are still waiting for a legal
opinion. With a letter dated
4 April 2019 the attorneys of the applicant requested information
from the legal department of the
respondent.
[15]
A meeting was convened on 29 November 2019. At that meeting the
representative of the respondent explained that the issue:
“
In simple terms:
Issue at hand, it was an
application for rezoning and removal of restrictions there are
certain compelling issues prior to removal
that must come from
Agri-Letaba’s side as commitment. Remember the Title Deed put
it explicit, that if you are to move from
what you are practicing
now, because the land was offered to you on that basis. Now you need
to come back to the Municipality to
make that offering to say you are
moving away from Agriculture into a different business, then that
negotiation must happen at
that level and once there is a council
approval on that then the proclamation can go ahead. It is in that
context that all of us
are trying to re-direct. On the copy of the
title deed it will show it explicitly, I think it’s 4.1 that
indicates that the
land has been offered for this and it is a council
resolution of that specific time.
Now if you want to move
away from that activity (restriction) it means it is a whole process
of renegotiation the terms of that
land. That is our basic
understanding and that is what you must deal with before ourselves
before we can commit to proclamation.”
[16]
At the end of the meeting the applicant was given the undertaking
that the legal department of the respondent
will communicate with the
attorneys of the applicant by 13 December 2019. On 17 January 2020
the respondent was reminded of its
undertaking and the respondent was
requested to revert by 31 January 2020. Nothing came of the request
or the undertaking and on
20 March 2020 the respondent was informed
that suitable relief will be sought in court.
[17]
It is clear that the respondent laboured under a misguided
apprehension that the restrictive conditions must
be re-negotiated by
the parties after the tribunal had made its decision. This objection
was an afterthought. What is worse is
that the applicant was left in
the dark as to what the objection really was until the meeting of 27
November 2019. Ownership of
the land was transferred to the applicant
in 2002. In the letter dated 12 July 2018 the impression was created
that the donation
of the land to the applicant was tainted by
impropriety. The respondent had at least 14 years to do something
about it before the
application to rezone was lodged if the land was
donated to the applicant under dubious circumstances. At the meeting
of 27 November
2019 a fresh objection was raised. The respondent was
of the view that the applicant must re-negotiate the new land use
prior to
the rezoning. It was an issue that fell squarely within the
jurisdiction of the tribunal. It is in essence an objection to the
proposed rezoning of the land. The difficulty is that the respondent
endorsed its support for the establishment of the agricultural
college before the tribunal.
[18]
It is of concern that the respondent blows hot and cold with regard
to the reason why it failed to comply
with its obligation to publish
the notice. The failure to comply with condition (ix) of the approval
letter was deliberate and
calculated. The failure to publish the
notice brings section 57 of the By-Law, into focus. It provides that:
“
(1) An
applicant, who wishes to rezone land, must apply to the Municipality
for rezoning of the land in the manner provided
for in Chapter 6.
(2) If
the following requirements are not met, a rezoning approval may lapse
after a period of 12 months, from
the date of approval, or further
period as may be determined by the Municipality:
(a) the zoning is not
utilised in accordance with the approval thereof; or
(b) if the land use right
as approved is not implemented and exercised.
(3) The
Municipality may grant extension to the periods contemplated in
subsection (2), which period together with
any extensions the
Municipality grants, may not exceed ten (10) years.
(4) If a
rezoning approval lapses prior to proclamation, the zoning applicable
to the land prior to the approval of
the rezoning applies, or where
no zoning existed prior to the approval of the rezoning, a zoning of
“Undetermined”
be applicable.
(5) If
the provisions of subsection 2 is not adhered to and the rezoning has
been proclaimed the municipality
shall have the sole right to
de-proclaim the land use right which was approved, at the cost of the
applicant and the applicant
will have no claim against the
Municipality for any costs incurred as a result of the rezoning
application.
(6) If
land is to be used for a Quarry, an application for rezoning should
be submitted for consideration.”
[19]
The respondent avers, with reference to section 57 of the By-Law,
that the approval has lapsed since twelve
months have expired, after
the approval letter was issued without the notice being published.
[20]
Reliance on the provisions of section 57 is misplaced. Section 57, in
my view, is not applicable. Approval
of the land use right was
suspended pending fulfilment of all the conditions referred to in the
approval letter. It is a consequence
of the suspension of the land
use right, that the zoning cannot be utilised until fulfilment of all
the conditions. Nor can the
land use right be implemented or
exercised by the applicant until fulfilment of the conditions.
[21]
Section 43(1) and (2) of SPLUMA provides that an application may be
approved subject to conditions. Such
a conditional approval lapses,
if a condition is not met within a period of five years from the date
of approval, if no period
for compliance has been stipulated. There
is no period stipulated for compliance in the letter of approval. It
follows, in my judgment,
that a period of five years is applicable.
[22]
Section 43 of SPLUMA is less onerous than section 57 of the By-Law
and should therefore be followed should
there be a conflict between
the two provisions. The twelve months period starts to run only after
an applicant has complied with
the conditions of approval referred to
in section 43(1).
[23]
I am convinced that the defences raised by the respondent are without
any merit. The relief claimed is to
enforce an obligation placed on
the respondent by the decision of the tribunal. Counsel for the
applicant has intimated that the
relief in prayer 3 is unnecessary.
The whole case of the applicant is centred at the failure to publish
the notice which the respondent
was obliged to publish.
[24]
The applicant is successful and entitled to its costs. Both parties
employed two counsel. The conduct of
the respondent with regard to
the manner it dealt with the rezoning application leaves much to be
desired. The respondent approved
the rezoning until the tribunal
granted the application. It was then that the respondent conjured up
the excuse that council must
make a decision after the approval. The
council never made a decision. It is doubtful that whatever reason
which caused the respondent
to have an objection to the rezoning, was
ever placed before the council for consideration. It took the
respondent until November
2020 to inform the applicant of the real
reason for the objection. The obvious course to have taken was to
note an appeal, if the
respondent was aggrieved with the approval.
The respondent has failed to do so.
[25]
The respondent endeavoured to use its dilatoriness to comply with its
obligation in terms of the approval
to oppose the application by
relying on non- compliance of section 57 of the By-Law. This is not
what is expected by an organ of
state. The respondent must pay the
cost of this application, on the scale as between attorney and client
as a mark of disapproval
of the manner in which the rezoning
application was dealt with by the respondent.
ORDER
1.
It is declared that the land use approval dated 10 August 2017 is
valid.
2.
The respondent is directed to take all administrative steps as
required
by the approval letter dated 10 August 2017 to publish a
Notice of Proclamation as required by the said letter of approval in
respect
of the land known as Erf 2931 and Erf 2932 Tzaneen Extension
53 within 15 days from the date of this order.
3.
The respondent is ordered to pay the costs on the scale as between
attorney and client such costs shall include the costs consequent
upon the employment of two counsel.
GC
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
APPEARANCES
For
the Applicant
: Adv
C Erasmus SC
: Adv
J Van Heerden
For
the Respondent
: Adv
T Ncongwane SC
: Adv
F Zulu
Date
judgment reserved
: 11
August 2022
Date
judgment delivered
: 1
September 2022
[1]
Hereinafter called the “tribunal”. The tribunal is
established in terms of
section 37(4)
of the
Spatial Planning and
Land Use Management Act, 16 of 2013
. Hereinafter referred to as
“SPLUMA”.
[2]
Council resolution B78 dated 28 August 2014.
[3]
Hereinafter called “the By-Law.”
[4]
Section 117
(Part A) read with Part B of Chapter 8.
[5]
Act 3 of 2000. Hereinafter referred to as “PAJA.”