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[2022] ZAECMKHC 6
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Wayne's Electrical & Refrigeration (Pty) Ltd and Others v The Enoch Mgijima Local Municipality and Others (675/2021) [2022] ZAECMKHC 6 (26 April 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
Not
reportable
Case
No: 675/2021
WAYNE’S
ELECTRICAL & REFRIGERATION (PTY)LTD
First Applicant
THOMAS
DESMOND
CLARK
Second Applicant
ANDREW
PETER VAN
WYK
Third Applicant
HEILA
MAGDALENA VAN
WYK
Fourth Applicant
and
THE
ENOCH MGIJIMA LOCAL MUNICIPALITY
First Respondent
LAURENE
SAHD
N.O
Second Respondent
HEINRICH
EBERHARDUS GRIEBENOUW N.O
Third Respondent
MARINDA
CATHERINA GRIEBENOUW N.O
Fourth Respondent
JUDGEMENT
Mfenyana
AJ
Introduction
[1]
On 26 August 2020 an official of the first respondent took decisions
approving the
rezoning from residential 1 to residential 2, and the
removal of the restrictive title condition in the Deed of Transfer in
respect
of Erf 8256, Komani (the Property). The property is
registered in the name of the H E Griebenouw Trust, the third
respondent.
[2]
On 20 January 2021 the first respondent approved building plans in
respect of the
property. The said plans were a departure from the
site development plan already approved by the first respondent.
[3]
The application is brought by the applicants who are registered
owners of immovable
property adjacent and / or near the property. The
central point in the review by the applicants is that the decisions
are not in
compliance with the law.
[4]
The application is opposed only by the second to fourth respondents
as the owners
of the property.
[5]
The first respondent (the Municipality) has not opposed the
application but has filed
the record of the decision in compliance
with Rule 53 of the Uniform Rules of Court.
[6]
The applicants also seek costs of the review application including
the costs of two
counsel, as well as the reserved costs of the
interdict proceedings.
Factual
background
[7]
On or around April 2018, the third respondent made application to the
first respondent
ostensibly in accordance with the Spatial Planning
Land Use Management Act (SPLUMA)
[1]
and the Land Use Planning Ordinance (LUPO)
[2]
,
in terms of which it sought the rezoning and removal of restrictive
conditions in the title deed of the property. In terms of
the
application, the rezoning was intended for the purpose of additional
dwelling units on the property from a single dwelling
unit to a
townhouse development of six (residential)units.
[8]
As the existing restrictions on the property only allowed for a
second dwelling, in
other words, one additional dwelling, the third
respondent, as registered owner of the property sought to have this
restriction
removed after which it would rezone the erf in accordance
with its new intended purpose.
[9]
In terms of the applicable provisions, particularly SPLUMA, LUPO and
the by- law,
any person who could be affected by the decision had to
be notified and could in turn, if they so desired, object to the
planned
changes in the prescribed format.
[10]
Without proper notification to the affected persons and without
considering any objections, an official
of the first respondent,
purportedly acting on behalf of the first respondent, approved the
application. Subsequent thereto the
third respondent also submitted
new building plans which were a deviation from the plan intitially
approved by the first respondent.
These new building plans were also
approved by the respondent.
[11]
It was not until the construction started on the property that the
applicants became aware of
the process that had unfolded and brought
an application interdicting the respondents from proceeding with the
construction. On
9 February 2021 this court per Roberson J granted an
interim order interdicting the respondents from preforming any
construction
work on the property pending the present application.
The costs of the interdict proceedings were reserved.
Grounds
for review
Promotion
of Administrative Justice Act (PAJA)
[3]
[12]
The applicants contend that the removal of the restrictive condition
in the title deed of the
property could only be made in terms of
SPLUMA and the by-law as this is not authorised in terms of LUPO.
This is in reference
to the third respondent’s reference in the
application that the application for rezoning and removal of
restrictive condition
was allegedly made in terms of both SPLUMA and
LUPO. They further contend that as at the time the decisions were
taken, the by-laws
[4]
in respect
of SPLUMA were in operation, and therefore the application relating
to the removal of restrictive conditions could only
have been decided
by applying SPLUMA and the by-law as SPLUMA repealed the Removal of
Restrictive Conditions Act 84 of 1967.
[13]
In respect of the rezoning aspect of the decision, the applicants
rely on section 17(2)(a) of
LUPO, which mandates that the application
be advertised, by serving ‘a notice on every owner of land who
in the opinion of
the of the director or a town clerk or secretary
has an interest in the matter, and whose address he knows or can
obtain and, if
the director or the said town clerk or secretary, as
the case may be, so decides, to publish in the Provincial Gazette and
in the
press stating that objections may be lodged …within 21
days after the date of service or publication of the notice.
[14]
It is the applicants’ contention that the first and second
applicants were not served and
did not receive any notification of
the intended application to rezone and remove restrictions. It later
transpired that the notification
was in fact sent by registered mail,
to the address of Mr Coetzee, the owner of Erf 1798, as opposed to
Erf 1794 which was owned
by Mr Geyer at the time. It is common cause
that the notification intended for Mr Geyer was sent to the wrong
address/erf number.
[15]
Likewise, the applicant continue, Ms James, who was the owner of Erf
8257 at the time, which
is presently owned by the second applicant,
was not served, and did not receive any notification of the
application to rezone and
remove restrictive conditions in the title
deed of the property. The notice was sent to a post box and addressed
to a Mr L James
who was not the registered owner of the property.
According to the track and trace report, the document was ‘returned
to
sender’ by the post office.
[16]
The third and fourth applicants were and are still owners of erf
1801. They were not served and
did not receive any notification to
rezone and remove restrictive conditions in the title deed of the
property. According to the
track and trace report, the document did
not reach them and is indicated as ‘In transit’.
[17]
Because the applicants were never served they contend that they were
not given an opportunity
to object to the application and have their
views considered as interested landowners and as required in terms of
LUPO. Therefore,
the applicants further argue, the application was
not advertised as required in terms of section 17(2). On that basis,
they further
argue that the decisions of the first respondent fall to
be reviewed and set aside in terms of the PAJA. The applicants rely
on
the following provisions of PAJA:
Section 6 (2)
“
A
court or tribunal has the power to judicially review an
administrative action if-
(a)
the administrator who took it-
(i)
was not authorised to do so by the empowering provision
(b)
a mandatory and material procedure or condition prescribed by an
empowering provision was not
complied with.
(c)
…
(d)
the action was materially influenced by an error of law;
(e)
the action was taken -
(i)
for a reason not authorised by the empowering provision;
(ii)
…
(iii)
because irrelevant considerations were taken into account or relevant
considerations were not
considered;
(f)
the action itself-
(i)
contravenes a law or is not authorised by the empowering provision;
or
(ii)
is not rationally connected to-
(aa)
the purpose for which it was taken;
(bb)
the purpose of the empowering provision;
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the administrator;
(g)
…
(h)
the exercise of the power or the performance of the function
authorised by the empowering provision,
in pursuance of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have
so exercised the power or performed
the function; or
(i)
the action is otherwise unconstitutional or
unlawful.
[18]
Relevant to the above provisions, the applicant contend that the
starting point is to establish
whether an irregularity has occurred
in the processes and procedures followed by the decision-maker which
constitute a ground for
review and evaluate the irregularity to
determine whether it amounts to a ground for review under PAJA,
taking into account the
materiality of the departure from legal
requirements by linking the question of compliance to the purpose of
the provision. The
latter is the central element of the enquiry. Once
a ground of review has been established under PAJA, the Constitution
requires
that decision to be declared unlawful.
[19]
It is common cause that the notices issued by the respondents did not
reach the applicants. This,
the applicants states, falls short of the
provisions of LUPO, to serve the interested/ affected landowners.
Relying on the judgement
in
Cool
Ideas v Hubbard
[5]
the
applicants aver that words must be given their ordinary grammatical
meaning and state that ‘serve’ means to deliver
to the
person concerned in a legally formal manner. I align myself with this
submission. They argue that the applicants were not
served.
Failure
to consider an objection received
[20]
It is submitted that Mr Coetzee, being an affected and/ or interested
landowner, and registered
owner of erf 1798, upon receipt of the
notification which was intended for Mr Geyer of erf 1794, lodged an
objection to the application
on 28 June 2018. He had received the
notification on 25 June 2018 even though it was dated 4 May 2018. His
objection was thus lodged
within the stipulated 21 days following the
service of the notification.
[21]
Relying on the decision of in
Jicama
17 (Pty)Ltd v West Coast District Municipality
[6]
the
applicants further contend that it is not open to the first
respondent to supplement or alter the basis for its decisions as
an
attempt to validate the decisions it has made and further avers that
the decisions of the first respondent failed to consider
an objection
by Mr Coetzee which was timeously lodged. According to the
applicants, Mr Coetzee’s objection triggered the
application of
the by-law which stipulates that if an objection is lodged, the
Municipal Planning Tribunal
must
adjudicate the application. They decry the fact that the decisions
sought to be reviewed were not taken by the Municipal Planning
Tribunal but by a person, on a purported ‘delegated authority’.
According to the applicants, section 6(2)(a)(i) of
PAJA finds
application as the persons who took the decisions were not authorised
to do so.
Failure
to consider prescribed issues
[22]
The applicants contend that the first respondent appears not to have
distinguished the two applications
it was faced with and consider the
aspects prescribed in each application. In so saying the applicants
aver that the first respondent
dealt with the application for
rezoning and the application to remove restrictive conditions as a
single application. However,
the applicants demonstrate that each
comes with its own unique requirements and processes. Critically, the
relevant provisions
of SPLUMA prescribe the test to be applied for
the removal of a restrictive condition which includes having due
regard to the respective
rights of all those affected, and to the
public interest. In so far as rezoning is concerned, SPLUMA
prescribes the procedure to
be followed including consideration of
the municipal spatial development framework. The applicants further
aver that there is no
indication that the first respondent considered
any of the prescribed requirements.
Reasons
for the decisions
[23]
The applicants’ contention in this regard is that the first
respondent has failed to disclose
the reasons for its decisions and
has provided no evidence that the prescribed issues were considered
in both the rezoning and
the application for the removal of
restrictive conditions, and therefore ‘it must be presumed and
concluded that the decisions
were taken for no good reason.’
[7]
Approval
of site development plan and unauthorised deviation
[24]
On or around 4 December 2018, the first rezoned the property and
approved a site development
plan (SDP- Number 0372B for 6 townhouses
each with two parking bays, and an additional five parking bays at
the back of the property.
However on 20 January 2021 the third
respondent submitted building plans which deviated from the approved
plan, with a double storey
with five units on each storey, and
twenty- six parking bays. The applicants aver that it is common cause
that the new building
plans do not accord with the approved site
development plan, and that the third respondent is precluded from
submitting a new building
plan which is not in accordance with the
approved plan. Thus they aver that the approval of the building plans
falls to be set
aside.
The
second to fourth respondents’ opposition
[25]
The second to fourth respondents contend that at the time the
applications were made by the Trust
to the first respondent, the
owners which fell to be notified for purposes of section 17(2) of
LUPO and in accordance with the
Municipality’s procedure
existing at the time, were owners of adjoining properties or
properties within a block of the property.
At this point it may be
pertinent to recall that section 17(2) requires a land owner who
applies for rezoning to advertise the
application by serving a notice
on every owner who is considered to have an interest in the matter
and may publish the application
in the provincial gazette and in the
press… ‘stating that objections may be lodged …before
a date specified,
being not less than 21 days after the date on which
the notice is so served or is so published…’.
[26]
The respondents further state that no valid objections were received
by the first respondent
and relies on a letter received from the
first respondent dated 24 June 2021 in which it states that an
objection was received
on 28 June 2018 outside of the 30 day period
stipulated in the notice.
[27]
In respect of the applicants’ contention that the official who
approved the applications
was not authorised to do so, the
respondents contend that the application was duly assessed by a
registered professional planner
in the employ of the Municipality who
completed and signed an ‘approval report /check list’ and
recommended for approval.
For this too, the respondents rely on the
same letter from the first respondent which refers to the said
approval report/ check
list as a ‘resolution’ in terms of
which the ‘authorised official or professional valuer was
appointed. The said
document is not a resolution as suggested. In
their answering affidavit, the respondents concede that subsequent to
the approval
of the rezoning and removal of restrictive conditions,
it submitted building plans which deviated from the approved site
development
plan. They however contend that these plans although
‘somewhat altered’, remained compliant with the approved
zoning.
These plans were also approved by the first respondent. On
this basis, the respondents instructed their builder to commence with
the construction.
[28]
The respondents argue that the applicants have not exhausted internal
remedies in that they have
failed to lodge an appeal against the
impugned decisions within 21 days of the date of the notification of
the decision, either
as persons whose rights are affected by the
decision, or as interested parties in terms of section 51 of SPLUMA.
They contend that
the applicants in bringing this application assert
that they are interested persons and therefore fall within the ambit
of persons
entitled to bring an internal appeal. They further contend
that the applicants’ reliance on the provisions of the by-law
cannot assist the applicants as the by-law is subordinate to SPLUMA.
Thus the respndents contend that as the applicants were not
party to
the rezoning application and were not notified of the impugned
decisions when they were taken, but were notified on 26
January 2021
and should have lodged an appeal within 21 days thereof. On this
basis alone, the respondents argue that the application
falls to be
dismissed with costs.
[29]
As far as the requirement to serve the notification goes the
respondents contend that it was
the Municipality’s standard
procedure at the time to send the notifications by registeted mail
and submit that sending by
registered mail falls within the meaning
of ‘serve’ if the word ‘serve’ is taken in
context. The respondents
further aver that the applicants chose not
to collect the registered letters from the post office, however the
requirements of
LUPO were satisfied. I do not understand the
respondents’ contention to be that because it was the norm for
the first respondent
at the time to only give notice to owners of
adjoining properties, that situation should prevail. Nor do I
understand them to be
saying that they were in compliance with the
provisions of the legislation. Indeed to suggest that would be
tantamount to simply
disregarding the purpose of the provision.
[30]
The respondents deny that they did not take into consideration any
prescribed issues, and in
this regard contend that the approval
report/ checklist and the decision letter dated 26 August 2020 both
distinguish the two parts
of the application and clearly state the
provisions of SPLUMA and LUPO. They proceed to say that this
reference, by implication,
shows that the factors that needed to be
considered were considered.
The
law relating to reviews
[31]
At the heart of every administrative decision is a duty on the
repository and decision-maker
to act with fairness and
reasonableness. This will inevitably depend on the circumstances of
each case. As O’Regan J once
stated in
Bato
Star
[8]
:
“
Factors
relevant to determining whether a decision is reasonable or not will
include the nature of the decision, the identity and
expertise of the
decision-maker, the range of factors relevant to the decision, the
reasons given for the decision, the nature
of the competing interests
involved and the impact of the decision on the lives and well-being
of those affected. Although the
review functions of the court now
have a substantive as well as a procedural ingredient, the
distinction between appeals and reviews
continues to be significant.
The court should take care not to usurp the functions of
administrative agencies. Its task is to ensure
that the decisions
taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.”
[9]
[32]
There is no doubt that the decisions made by the first respondent
have far-reaching consequences
for those who are affected by them.
The impact of the decisions, particularly the removal of the
restrictive conditions on the
neighbouring properties, particularly
the applicants is immense. There is no indication that this has been
considered.
[33]
It is trite that in reviewing an administrative decision, the review
court must confine the enquiry
to the reasons furnished by the first
respondent for approving the applications made by the third
respondent.
Ex facie
the firs respondent’s decision as
it appears from the letter, no reasons were furnished. The letter,
and indeed the entire
record makes no reference to any objections
having been received in which case the decision ought to show that
even after consideration
thereof, it was decided that the approval
should stand. To the contrary, and perhaps in an attempt to salvage
the situation, the
respondents rely on an ‘after the fact’
letter from the first respondent, which states that an objection was
received
outside of the stipulated timeframe.
[34]
I agree with the applicants’ submissions as supported by the
decision in
Jicama
[10]
that a party cannot supplement reasons for a decision, which were
clearly taken and made ex post facto the decision. As the learned
judge went further to state in that matter that;
“
The
question here is not whether there were other reasons in the record
that justified the board’s decision, but whether it
could give
reasons other than those it gave initially for refusing the
application.
The
duty to give reasons for an administrative decision is a central
element of the
constitutional duty to act fairly. And the failure to give reasons
which include proper or adequate reasons should
ordinarily render the
disputed decision reviewable.”
[35]
Within the meaning and contemplation of SPLUMA, LUPO and the by-law,
the first respondent was
charged with the responsibility to consider
the totality of factors relevant to the determination of the third
respondent’s
application, including all the requirements set
out in both SPLUMA and LUPO which set out the test to be applied in
each case,
weigh up and consider any objections received and if found
to be without merit, indicate as much, and why that was found to be
the case. Supposing that objections were received out of time, as the
respondents now seem to suggest, the first respondent was
required to
reflect this in its decision. It did not. The only logical conclusion
that can ve drawn is that the first respondent
did not consider the
objection received. Only upon such meticulous examination of all the
factors and material required to be considered,
would the first
respondent have discharged its responsibility to avoid the review and
setting aside of its decision.
[36]
It is clear from the first respondent’s letter that it failed
to take into account relevant
considerations and apply its mind to
all the considerations necessary for it to arrive at a decision. What
is more is that it failed
to consider the purport of the empowering
provisions.
According
to the respondents, the fact that the letter refers to specific
provisions of SPLUMA and LUPO should be sufficient to
show that
regard was had to all factors to be taken into account. Respectfuly,
I disagree. This is not apparent from the first
respondent’s
decision.
Failure
to exhaust internal remedies
[37]
The respondents have argued quite fervently that the application fell
to be dismissed on account
of the applicants’ failure to lodge
an appeal against the decisions, in so saying exhaust internal
remedies. I align myself
with the averments made on behalf of the
applicants in this regard in that the internal remedies referred to
by the respondents
are not available to the applicants. For the
simple reason that they were not party to the application, they were
not and could
not have been notified of the decision. The respondents
make a further point of saying that the applicants should have
brought
an appeal when they became aware of the decision. The
difficulty with this proposition is that it completely disregards the
circumstances
in which the applicants learnt of the decision, which
was when the construction started ‘next door’ . To regard
that
as notification would amount be grossly unfair. Quite to the
contrary, it would in my view qualify as an expectional circumstance
to be taken into account.
Just
and equitable remedy
[38]
It was argued on behalf of the respondents that in the event that
this court concludes that the
impugned decisions fall to be reviewed
and set aside, it would be just and equitable not to set them aside
on the bases that the
intended purpose of the property continues to
be for residential purposes, that the application was made having
taken advice in
good faith, , and that the respondents have incurred
expenses on building consultants following the approval of the zoning
application
as it has commenced with construction. The reasons
advanced by the respondents only seek to confirm that the driving
factor behind
the haste and disregard was economical. Even so,
section 8 of PAJA gives the court a wide discretion to make any just
and equitable
remedy. Such discretion must however be exercised
judicially.
[39]
While I agree with the applicants that the impugned decisions fall to
be reviewed and set aside,
it seems to me that the respondents were
ill-advised in proceeding in the manner that they had in respect of
the application to
the first respondent. Had they been properly
advised, they would have perhaps acted differently. That being the
case it would be
just and equitable remedy to remit the matter to the
first respondent
Costs
[40]
The applicants, through no fault of their own, have incurred costs in
bringing the application.
There is thus no reason for them to be put
out of pocket in the circumstances. I can also find no justifiable
reason why the respondents
saw it fit to persist with their
opposition when it seemed plain that the relevant prescripts were not
complied with.
Order
[41]
In the result I make the following order:
1.
The decisions dated 26 August 2020 by Z Nxano, General Manager: Human
Settlements and Land Managemen,
purportedly taken on behalf of the
first respondent in terms of which it approved:
(a)
the rezoning of erf 8256, Komani (the property) from residential 1 to
residential 2;
(b)
the removal of restrictive title conditions in the Deed of Transfer
T[....] in respect of erf 8256,
are reviewed property;
(c)
building plans relationg to the property on 20 January 2021 are
reviewed and set aside.
2.
The matter is remitted to the first respondent to reconsider the
applications.
3.
The second to fourth respondents are ordered to pay the costs of the
review application inclusive of
the costs of two counsel.
4.
The first respondent is ordered to pay the costs of the interdict
proceedings.
S.
M. MFENYANA
ACTING
JUDGE OF THE HIGH COURT
EASTERN
CAPE DIVISION, MAKHANDA
Counsel
for the Applicants:
Adv. TJM Paterson SC
Assisted
by:
Adv. K L Watt
Instructed
by:
Bowes McDougall Inc.
c/o Wheeldon Rushmere &
Cole
Counsel
for the Second to Fourth Respondents Adv. J G
Richards
Instructed
by:
Messrs Greyvensteins
c/o Messrs Huxtable
Attorneys
Date
Heard:
20 January 2022
Date
Delivered:
26 April 2022
[1]
Act
16 of 2013
[2]
No.
15 of 1985
[3]
Act
2 of 2000
[4]
Enoch
Mgijima Local Municipality By-Law
[5]
2014
(4) SA 474 (CC)
[6]
2006
(1) SA 116 (C)
[7]
Wessels
v Minister for Justice and Constitutional Development and Others
2010 (1) SA 128
(GNP)
[8]
Bato
Star Fishing
(Pty)
Ltd v Minister of Environmental Affairs and Tourism and Others(CCT
27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7)
BCLR 687 (CC)
(12 March 2004)
[9]
at
para 45
[10]
supra
at [26] to [27]