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[2020] ZALMPPHC 30
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Altenroxel N.O and Others v Chairperson of the Appeals Committee of the Polokwane Local Municipality and Another (6266/18) [2020] ZALMPPHC 30 (1 June 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case No. 6266/18
In
the matter between:
PAUL
HEINRICH ALTENROXEL N.O
First Applicant
ROBERT
JOHN KNOTT N.O
Second Applicant
THOMAS
FREDERIK PRETORIUS N.O
Third Applicant
and
THE
CHAIRPERSON OF THE APPEALS
COMMITTEE
OF THE POLOKWANE LOCAL
MUNICIPALITY
First Respondent
POLOKWANE
LOCAL MUNICIPALITY
Second Respondent
JUDGMENT
NF
KGOMO J
INTRODUCTION
[1]
This is an application by the Applicants
for the review and setting aside of the conditions included in the
decision of the First
Respondent dated 20 April 2018 by virtue
whereof the appeal lodged (by the Applicants) against the decision of
the Second Respondent
pertaining to an application for re zoning
lodged by the Applicants in respect of the property known as Erf
7421, Bender Ext
115, Polokwane, Registration Division LS, was upheld
in terms of section 62 of the Local Government Municipal System Act,
2000
[1]
,
("System Act").
[2]
The Applicant also applied for an order
that in the event of they being found to be out of time with' any
part of this application
for any reason(s), that such time lapse be
condoned in keeping with section 9 of the Promotion of Administrative
Justice Act, 2000
[2]
(PAJA").
[3]
The Applicants further sought an order
of costs on a punitive scale on a scale as between attorney and
client from both the respondents,
jointly and severally, the one
paying, the other to be absolved.
[4]
They also sought further and/or
alternative relief.
[5]
The Respondents did not file Answering
Affidavits in opposition of the application. However, just before the
matter could be dealt
with in the unopposed roll of this Court on the
29 January 2019, the Respondents cause to be served and filed, a
Notice in terms
of Rule 6(5)(d)(iii) of the Uniform Rules of Court
couched in the following terms or having the following question of
law:
"1.
The strategy employed by the Applicants of seeking a declaration
disguised as
an indirect review, in the process circumventing the
provisions of PAJA and the provisions of Rule 53 of the Uniform Rules
of Court
is not legally competent.
2.
The relief sought in prayer 1 of the
Notice of Motion is not legally competent since it offends the
provisions of the constitutionally
enshrined principle of the
separation of powers.
3.
The relief sought in prayer 1 of the
Notice of Motion is not legally competent in the circumstances of
this case, since a decision
is reviewable in its totality and
remitted for consideration by the decision maker, and not be
dissected by retaining those points
favourable to the Applicants.
4.
The Applicants failed to make out a case
against the remittal of the impugned decisions for reconsideration by
the decision-maker.
5.
The application is brought outside the
peremptory period of 180 days as is stipulated or required in section
7(1) of PAJA, rendering
this Honourable Court without jurisdiction to
entertain the matter prior to a decision on condonation.
6.
The First Respondent usurped the powers
of the relevant appeal authority responsible for appeals in terms of
section 59 of the Town-Planning
and Township Ordinance 15 of 1986
without any statutory authority to do so.
7.
The decision sought to be set aside
concerns an application for land use right which, by virtue of the
provisions of
section 51(7)
of the
Spatial Planning and Land Use
Management Act 16 of 2013
, may not be lodged in terms of section 62
of the Local Government Municipal Act 32 of 2000."
[6]
As a result of these questions of law,
the presiding judge in the unopposed roll of 29 January 2019
postponed this matter to the
opposed roll.
[7]
Hence this matter was fully argued by
counsel from both the Applicants and the Respondents.
[8]
Before arguments commenced on the day,
counsel for the Respondents abandon points 1 and 6 of the Respondents
Rule 6(5) Notice.
HISTORICAL TIME-LINES AND FACTS
GIVING RISE TO THIS APPLICATION
[9]
The Applicants lodged an application for
rezoning in terms of Section 58 of the Town Planning and Townships
Ordinance, 1986,
[3]
(the
"Ordinance") in respect of the subject property, namely,
Erf 7421, Bendor Ext 115, Polokwane Registration LS ("the
Subject Property") already on 13 November 2015 by virtue of
which the same was to be rezoned from
"special"
for purposes of a nursery, restaurant , shops and place of amusement
as well as offices subservient to the main land uses, to
"Business
3"
with special permission in
terms of clause 21 of the Polokwane-Perskebult Town Planning Scheme,
2007 ("Scheme 2007")
and the Polokwane-Perskebult Town
Plaining Scheme, 2016
("the
Scheme 2016")
which were
adopted by virtue of Provincial Gazette 2837 dated 28 July 2017, to
allow for a "place of amusement" and written
permission in
terms of clause 22, to allow for
"service
industries",
subject to the
conditions as stipulated in ANNEXURE 145 of the above mentioned
Scheme,
"the Rezoning
Application"
).
[10]
The subject property is 3.7 ha in
extent, large portions whereof are currently still undeveloped. The
part developed already by
virtue of existing vested land use rights
were authorized by the Second Respondent.
[11]
After the formal submission of the
rezoning application and after it was duly and fully public -
participated, the Applicant agreed
to the scaling down or amendment
of the application at the special instance and request of the
Respondents' Planning Department,
by way of incorporating
restrictions on the areas of certain land use components originally
envisaged as well as by excluding certain
land-use components
originally envisaged as well as by excluding certain land-use rights
which primarily fall within the ambit
of the standard
"Business
3"
zoning and which had already
been public participated in terms of the prevailing 2007 Scheme. They
(Applicants) also consented
to or allowed themselves to be persuaded
to rather describe the remaining
"Business
3"
components as
"Special"
even though they provided for exactly the same land use rights and
components.
[12]
The Applicants agreed to the amendments
as requested by the Respondents because they were insignificant in
nature and did not alter
the identity of the rezoning to be approved.
These entailed:
12.1
The omission of "dwelling units"
and "medical consulting rooms" which in any event formed
part of the prescribed
"Business 3" zoning applied for and
already public participated; and
12.2
The retention of all the land-use
components applied for and public participated under the intended
"Business 3 zoning subject to
conditions"
but semantically
describing same as
"special
zoning subject to conditions."
[13]
A critical look at the bulk implications
which would result from the approval of the Rezoning Application,
irrespective of whether
such approval occurs under the name, "Special
zoning" or Business 3 zoning are clearly apparent when one looks
at the
summary performed by the Applicant's Town Planners, Khameko
Consulting which report is part of the papers herein as Annexure PA3
forming part of the Applicants' Founding Affidavit. The essence
thereof reveals that the approval of the Rezoning Application
as amended will at best entitle the Applicants to expand the
existing and established development on the subject property with
a
floor area of approximately 7 500m
2.
[14]
The subject property is strategically
located directly east of the Mall of the North Shopping Centre of
approximately 80 000m
2
floor area. It has a class 2 road as well as also abutting School
Roads, Knotts Avenue and a road called Link Road. This makes
the
subject property according to the Applicants, highly visible and
accessible from and/or with no less than five potential access
points. Annexure PA
9, PA 10a
and PA 10b being attachments to the
Applicant's Founding Affidavit bear this out.
[15]
The subject property further, is located
approximately 10km east of the Polokwane CBD and has, by virtue of
the current vested land
use rights pertaining to it, and in terms the
site development plan approved by the Second Respondent, already been
partially developed
and is conducted under the well-known name and
style of "The Farmyard
[4]
.”
[16]
The subject property is moreover
situated or located directly adjacent to retail and commercial
developments, a filling station
and a host of non residential
developments which include lodges, conference facilities; and is also
surrounded by a diversity
of residential developments or gated
estates like Northview Estate, Thornhill and several extension of
Bendor suburb
[5]
.
[17]
The Respondents have not in any way or
manner gainsaid the Applicants' submissions among others, that
although the subject property
is situated in a rapid developing area,
the land-use rights applied for are similar to or compatible with
surrounding land uses.
They have equally not challenged the
Applicants' contention that consequently, there cannot be any manner
of any possible adverse
impact on either surrounding land uses or
adjacent properties, which fact makes or renders the land use rights
sought, most desirable.
[18]
The Applicants also contended and were
not contradicted when they said that they did or participated in or
conducted the requisite
statutory public participation process as
required in terms of the Ordinance and the 2007 Scheme. That they
also followed and performed
the compulsory distribution of the
Rezoning Application to all the relevant Municipal Departments and
Government Departments. That
this public participation process-
"...
did not solicit a single external objection against the Rezoning
Application and to date hereof, the Applicant has not
been favoured
with any negative or other comments from any internal department of
the Second Respondent in respect of
such
Rezoning Application which could justify the dismissal thereof...
[6]
[19]
The Applicants also contended and it was
not gainsaid, that, all the expert reports incorporated as part of
the Rezoning Application
concluded that same will be sustainable from
an institutional point of view, that an objective need for the land
use rights applied
for exists, that an objective need for the land
use rights applied for exists, that the development will be
sustainable from an
economical point of view, that no engineering
infrastructure impediments exist in respect of such services and that
the development
can safely and conveniently be accommodated from a
traffic engineering point of view on the existing surrounding roads
network.
[20]
This Rezoning Application ultimately
served before the Land Management Committee of the Polokwane
Municipality. This Committee will
henceforth be referred to as
"LUMC".
[21]
In spite of what has been alluded to
above, which vouched favourably for the merits of the application,
especially the absence of
a single objection or adverse comment
pointing to anything untowards therein, the LUMC of the Second
Respondent arrived at a decision.
It had not warned the Applicants of
its impending decision or the date it would do so. The Applicant's
Town Planner inadvertently
or coincidentally stumbled on the decision
taken during January 2017. They discovered that the LUMC of the
Second Respondent arrived
at the followit19 decisions:
21.1
That the Applicant's Rezoning
Application is disapproved tendering as reasons for disapproval the
following:
21.1.1
That
the Applicant has applied for rights that would duplicate services as
provided in the Regional Node.
21.1.2
That
the development of secondary nodes should not be allowed if the
Municipality is not convinced that these will not have a detrimental
effect on the CBD as primary active node.
21.1.3
That
the amount of water to be used and the sewage effluent to be
generated by this kind of development puts a lot of pressure on
the
existing services and that this application cannot be supported by
Water and Sanitation.
[22]
LUMC's reasons to disapprove the
rezoning application sounded objectively without merit to the
Applicants. At best, it is the finding
of this Court that indeed they
sounded at best to be superficial and fabricated, especially reasons
(3) which talks about Water
and Sanitation departments of the Second
Respondent not supporting the application. That was extremely odd as
the self-same Water
and Sanitation department or any other department
of the Second Respondent or any Government Department did not raise
any objection
or adverse recommendation during the public
participation process.
[23]
The Applicant lodged an appeal against
the decision of LUMC on 25 January 2017 in terms of section 62 of the
Systems Act.
[24]
That appeal was lodged at a time when
the situation in the Second Respondent was in confusion.
[25]
The afore-going Rezoning Application was
lodged in terms of the ordinance. Immediately subsequent to that, the
Department of Co-operative
Governance, Human Settlements and
Traditional Affairs of the Limpopo Provincial Government has
unilaterally dissolved the operative
and existing Limpopo Province
Township Appeal Board provided for in the Ordinance and the Scheme.
As such no appeal could be lodged
in terms of section 59 of the
ordinance any more.
[26]
Consequently, since the Applicant's
rights were seriously affected by the LUMC decision, they approached
the Second Respondent for
appeal against same in terms of section 62
of the System Act.
[27]
It so happened that the Second
Respondent appointed the First Respondent as its Appeal Committee in
terms of sections 59 and 62
of the Systems Act as read with
section
79
of the
Local Government Municipal Structures Act, 1998
[7]
,
(the
"Structures Act").
The Second Respondent also formally adopted the Appeal Procedure
Policy. Hence this appeal could be entertained by the First
Respondent.
[28]
This cured the unhealthy situation when
the appeal was lodged, where and when -
28.1
The
Second Respondent was not compliant with the provisions of the
Spatial Planning and Land Use Management Act, 2013
[8]
("SPLUMA");
28.2
The Second Respondent had not as then
adopted a Land Use Management By-law in terms of SPLUMA;
28.3
The Second Respondent did not have any
operative Appeal Authority appointed at a time when the internal
appeal procedures and processes
in terms of either the Scheme or the
Ordinance were not available to it.
[29]
Paragraph 9(e) of the Appeals Procedure
Policy adopted by the Second Respondent confirmed the Second
Respondent's authority to deal
with the appeal where it empowers the
First Respondent to:
"...
assume all powers which the official, municipal mangers, political
structures, council or political office bearer a quo
would have had
at the time of taking the decision that lead to the appeal and to
take a final decision on an appeal matter... ".
[30]
In terms of the applicable legislative
framework under which LUMC operated when it made its decision, being
the Scheme and the Ordinance,
before it could take a decision it was
obliged to do so after the laid down and extensive public
participation process to solicit
objections, representations and
comments from the general public, internal and external departments,
institutions relevant and
other material stakeholders. The appeal
authority may not consider any rezoning application before the
prescribed public participation
processes had been embarked upon and
completed and all objections, comments and representations, if any,
have been received.
[31]
No new or further public participation
processes are competent or allowed after a decision had already been
made on the application.
[32]
The Applicants
further submitted and contended that no further public
participation of the re-zoning application is competent
even at the
appeal level
APPEAL
BEFORE FIRST RESPONDENT
[33]
On the 20 April 2018 the First
Respondent arrived at the following conclusion regarding the
Re-Zoning Application Appeal:
"The
application lodged in terms of section 56(1)(b) of the Ordinance 15
of the Town Planning and Townships Ordinance 1986
(Ordinance 15 1986)
for the amendment of the Polokwane-Perskebult Town Planning Scheme
2007, in so far as the purposes of a nursery,
restaurant, shops,
place of amusement and service industry as well as offices
subservient "special"
be approved
subject to these
conditions:
1.
That
the Applicant should comply with the provisions of section 56(1)(i)
and(ii) of the Town Planning and Townships Ordinance 15
of 1986 and
shall give 28(twenty-eight)days notice of the amended application by
publishing once a week for two consecutive weeks
on -
(a)
Provincial
Gazette;
(b)
Local
Newspaper,
(c)
Site
Notice for 14(fourteen) days.
2.
That
the aforesaid notices should therefore firmly include the contents of
ANNEXURES "F" and "I" of Exhibit
"I"
and Municipality should be forwarded with copies of the said notices,
thereafter the below rights will only be valid
in the absence of
objections against the amended application.
This was
contained in a resolution following on a meeting allegedly held on 6
April 2016."
[34]
It is against the above conditions
accompanying the approval of the rezoning application on appeal that
the Applicants are prosecuting
this review application.
[35]
The Applicants categorise the
afore-mentioned conditions as being unattainable, unreasonable and
ultra vires.
As the Applicants put it, -
"...
The imposition of a condition by virtue of which the Applicant is
forced to re publish the same Rezoning Application
after it has
already complied with the provisions of section 56(1)(b(i) and (ii)
of the Ordinance involved, and the public participation
requirements
of the Scheme and after both the LUMC and the First Respondent has
reached decisions in respect of the merits of such
Rezoning
Application, is not only nonsensical but also falls ... outside the
ambit of the empowering legislation of the Respondents
... ".
RESPONDENTS'
WITH PREDJUDICE OFFER TO SETTLE
[36]
On the 14
th
and 15
th
February 2019 the Respondents served and filed at court respectively,
their with prejudice offer to settle.
[37]
For purposes of capturing the time lines
and negotiations that took place between the parties herein the with
Prejudice Offer to
Settle is reproduced hereunder in full. It read as
follows where relevant and/or material:
"FIRST AND SECOND
RESPONDENTS' WITH PREJUDICE OFFER TO SETTLE
WHEREAS
the Applicants issued an application out of this Honourable Court on
17 October 2018.
AND
WHEREAS the Applicants' Notice of Motion informs that application
will be made on 29 January 2019 should no notice of intention
to
opposed be given.
AND
WHEREAS a notice of intention to oppose was served on the Applicants
attorney on 05 November 2018 and filed at court the same
day.
AND
WHEREAS the Applicants' attorney on 18 January 2019 in writing
provided the Respondents with an opportunity until Friday 25
January
2019 to file their papers;
AND
WHEREAS the Respondents made an offer to settle the application on 24
January 2019 on the basis proposed in a Draft Order (Annexure
D),
which offer was made on a without prejudice basis, but the content
thereof was disclosed by the Applicants who filed a copy
thereof at
court;
AND
WHEREAS the Applicants, despite having afforded the Respondents time
until Friday 25 February 2019 to file their papers, filed
an index to
the application and served notice of set down on 21 January 2019;
AND
WHEREAS the Applicants on 24 January 2019 being one day before the
extended period, for filing of the Respondents' papers lapsed,
filed
heads of arguments on an unopposed basis;
AND
WHEREAS the Respondents aforesaid offer to settle the matter was
rejected by the Applicants;
AND
WHEREAS the Respondents had to file either their opposing papers or a
notice in terms of Rule 6(5)(d)(ii) of the Uniform Rules
of Court by
no later than Friday 25 January 2019;
AND
WHEREAS on Friday 29 January 2019 the Respondents filed their notice
in terms of Rule 6(5)(d)(iii);
AND
WHEREAS the Applicants persisted in their quest to obtain relief on
an unopposed basis in the Unopposed Motion Court on 29 January
2019;
AND
WHEREAS the Respondents were given leave to hand up their Rule
6(5)(d)(iii) notice from the bar as well as their practice note
in
the Unopposed Motion Court on 29 January 2019, which Rule
6(5)(d)(iii) Notice was timeously served on the Applicants' attorneys
of record before close of business or Friday 25 January 2019 but
could not be filed in the Court file since the roll had closed;
AND
WHEREAS the Honourable Court on 29 January 2019 in the Unopposed
Motion Court ruled that the matter is opposed and consequently
ordered the matter to be postponed
sine
die
and
costs to be reserved.
AND
WHEREAS the Respondents represent the Polokwane Local Municipality
being a Municipality duly established in terms of the provisions
of
the laws of the Republic, who has an obligation not to engage in
fruitless and wasteful expenditure and must attempt to limit
unnecessary costs in litigious matters;
PLEASE BE
INFORMED that the Respondents hereby with prejudice, propose that the
matter be settled on the basis as is contained in
a draft order
attached hereto as Annexure "H".
PLEASE BE
INFORMED that as from date of this offer, the Applicants bear the
risk of all costs occasioned with this matter".
[38]
The terms and the Draft order in issue
were as follows:
"By
AGREEMENT between the parties the following order is made:
1.
The Applicant non-compliance with the
time period in section 7(1) of the Promotion of Administrative
Justice Act 3 of 2000 ("PAJA")
is extended by agreement
between the parties in terms of section 9(1) of PAJA.
2.
The decision of the First Respondent
dated 20 April 2018 against the decision of the Second Respondent
refusing to rezone the property
known as Erf 7421, Bendor Ext 115,
LS, is hereby set aside and remitted for reconsideration by the First
Respondent within 30(thirty)
days of this order.
3.
No order as to costs is made."
[39]
Suffice to state that the Applicants
rejected the above offer to Settle, more-so, that of the matter being
referred back to the
First Respondent for reconsideration.
CONDONAITON
FOR NON-COMPLIANCE WITH TIME FRAMES FOR PURPOSES OF PAJA
[40]
Before going into the merits of the
review application, it is necessary that this Court deal with the
matter of the alleged or possible
non-compliance by the Applicants
with the time frames required under PAJA. Should the Applicants'
non-compliance, if found to exist,
be condoned?
[41]
Counsel for the Respondents did not
argue this point with any conviction. Nevertheless, this Court is
duty bound to determine whether
or not there was non-compliance with
section (7) and (9) of PAJA.
[42]
It was argued on behalf of the
Applicants that taking all the material circumstances herein or
relative hereto, including the date
on which the First Respondent
made its decision
(Hereinafter
referred to as the "Appeal Decision")
this
application was launched within the time constraints stipulated in
terms of section 7 of PAJA. It (Applicant) contends that
what
happened is not non-compliance with PAJA, but simply necessary delay
occasioned by the Respondents prevarifications and procrastinations
while at first and mostly giving the impression to the Applicants
that the offending conditions which are the subjects of this
appeal
could be expunged from the upholding of the appeal.
[43]
In the above regard the Applicants
tendered the following version:
43.1
After
receiving the Appeal Decision dated 20 April 2018 and on 26 April
2018, on instructions from the Applicants, the Applicants'
attorneys
of record addressed a letter to the Respondents Annexure PA 13
herein, reminding them of the powers of the First Respondent
that
does not include having to impose conditions that include re-public
participation of the same application. They were further
reminded of
the unambiguous provisions of section 59(9) of the Ordinance which
authorize the First Respondent in an appeal such
as this to either
approve the application subject to the proviso that if there is any
need for any amendment in the application,
that such amendment be
first discussed with the applicant. The other competence is to
postpone the application or decision on the
application either wholly
or in part.
The
First Respondent was urged to making a final order without
illegitimate conditions.
43.2
The above letter was not responded to
and the Applicants' attorney sent them a reminder on 25 May 2018.
They were also warned of
the danger of punitive costs against them if
they continued to or persisted in their non-response.
43.3
When no response was still fo1hcoming
the Applicants Attorney made a string of phone calls to the
respondents legal department and
from these telephone discussions
there was a strong hint that the Respondents were seriously
considering settling this matter by
abandoning the conditions.
43.4
Further correspondence was directed at
the Respondents on 13 August 2018 demanding a categoric answer as
requested and/or demanded
by the Applicants.
43.5
Further letters followed without any
meaningful or conclusive response from the Respondents.
43.6
Only when it became clear that the
Respondents were not serious with settling or solving this impasse
did the Applicants embark
on this application.
[44]
As already alluded to, the respondents
did not really challenge the above applicants' version.
[45]
After considering the entire aspect, it
is the finding of this Court that the Applicant's delays in
instituting these proceedings
within the requisite 180 days as
required in PAJA be and is hereby condoned.
THE
MERITS OF THIS REVIEW
[46]
Respondents' case in support of the
presence of the conditions attached to the Appeal Decision is that,
after the LUMC decision,
the parties sat down and agreed on the
amendment of the Rezoning Application. That consequently, the
"amended application"
needed to be public participated
again.
[47]
What the Respondents have conveniently
forgotten or ignored is that it was them who, after the Applicants
lodged the appeal against
the LUMC decision, approached the
Applicants and convinced them to agree to certain amendments to the
Rezoning Agreement.
[48]
The process that unfolded there
re-engineered the Rezoning Application back to the state or condition
it was in before the LUMC
decision was taken.
[49]
It should be remembered that before the
LUMC Decision was taken the parties effected some amendments to the
Rezoning Application.
That "amended" application is the one
LUMC dismissed and was appealed against by the Applicants to the
First Applicants.
[50]
The nett effect of the latest amendment
the Respondents caused the Applicants to agree to before the appeal
went before the Firs
Respondent for determination was that they were
merely semantics that effectively reverted the Rezoning. Application
to the original
state it was in before the amendments preceding the
LUMC decision.
[51]
What emerged here is that before the
Appeal Decision was taken, the Rezoning Application had practically
reverted to the state and
condition it was before the LUMC decision
and before that, it was public participated fully by the Applicants.
[52]
This fact is that the
"animal"
that was being brought before the First Respondent was in actual fact
the very
"animal"
that had already been public-participated was lost to the
Respondents.
[53]
The Applicants had allowed themselves to
be guided through the alleged "amendments" because they had
been made to believe,
by the Second Respondents, that in that state
they would positively accommodate them by upholding their appeal
against the LUMC
Decision.
[54]
However, on legal advice obtained, the
Applicants allowed everything to be decided by the First Respondent
in the Appeal against
the LUMC Decision.
[55]
What happened in the Appeal against the
LUMC Decision culminated in the decision of the Appeal Tribunal
(hereinafter referred to
as "the Appeal Decision"). The
essence thereof was that:
55.1
The decision to approve of the Rezoning
Application on the merits thereof in accordance with the semantical
amendment(s) sought
by the Second Respondent subject to standard Town
Planning conditions reflected in the Scheme (Annexure 145) in essence
constituted
an upholding of the appeal.
55.2
The decision to impose the impugned
conditions by virtue whereof the operation of the approval of the
Rezoning Application was suspended
is the present
"elephant
in the room
".
[56]
This decision that contains the impugned
conditions which practically suspends the operation of the
"appeal
victory"
constitutes an
administrative act or action. It is a
"decision"
for purposes of PAJA.
[57]
The impugned conditions constitute a
decision of the First Respondent by virtue of which the Applicant is
successful in respect
of the Rezoning Application, already considered
by LUMC and subsequently approved by the First Respondent. These
decisions were
taken after the application was public-participated.
[58]
The said impugned conditions according
to the Appeal Decision were imposed in terms of section 56(1)(6) of
the Ordinance.
[59]
The public participation process that is
levied consequent to the upholding of the Appeal by the Appeal
Decision, however, constitutes
a statutory prerequisite and
jurisdictional fact which must exist before the Rezoning Application
could have been considered in
terms of section 56(8)
[9]
of enabling legislation.
[60]
The rationale for such statutory
prerequisite contained in the Ordinance is that the decision-taker is
obliged, in terms of section
56 of the Ordinance, to consider any
possible objection(s) or representation(s) solicited by way of such
prescribed public participation
process before it may consider and
arrive at a decision in respect of the Rezoning Application
[10]
.
[61]
No authority is available or has been
furnished to this Court conferring upon the decision-takers in terms
of the ordinance or specifically
in terms of section 56(1) thereof to
direct a public-participation process that is of academic value after
the merits of the Rezoning
Application have already been considered
and a final decision reached. Worse still if such decision has
already been transmitted
to the Applicants.
[62]
This Court agrees with the Applicants '
contention that the imposition of a fresh public-participation
process in the circumstances
prevailing in this matter by way of the
impugned conditions would negate the entire process envisaged by the
Legislature.
[63]
The Second Respondent duly appointed the
First Respondent as its Appeal Committee in terms of section 59 and
62 of the System Act
as read with section 79 of the Structures Act.
Furthermore, it has formally adopted an Appeal Procedure Policy in
respect of the
First Respondent in which all the powers and
procedures are set out.
[64]
For the sake of emphasis, the formally
adopted Appeals Procedure Policy in respect of appeals lodged in
terms of section 62 of the
System Act give the First Respondent all
authority to act decisively. As paragraph 9(c) thereof states, the
First Respondent assumes
all the powers which the relevant
functionaries would have had in the determination of appeals.
[65]
In terms of section 56(9) of the
Ordinance, the decision-taker in an appeal such as this may only
approve, refuse or postpone an
appeal.
[66]
The First Respondent has practically
approved the Rezoning Application. Consequently, the suspension of
its operation cannot be
deemed an approval or a refusal or a
postponement.
[67]
In terms of the Second Respondent's
Appeal Procedure Policy the appeal tribunal may only confirm, or vary
or revoke the decision
appealed against. The Systems Act is the
enabling statute.
[68]
The First Respondent was obliged, after
having taken jurisdiction of the Appeal, to reconsider the Rezoning
Application on the merits
thereof in the context of the negative LUMC
Decision and was in terms of section 62(3) of the Systems Act, only
entitled to confirm,
vary or revoke the Decision. In doing so, the
First Applicant would be correctly and lawfully usurping the powers
conferred on
the previous decision taker.
[69]
Ex abundanti cautela,
when LUMC took its decision in the
appeal process, it did so having before it the results of the public
participation process. Similarly,
the First Respondent could not have
deliberated upon the appeal and arrived at a decision on the merits
if the public-participations
protocols had not already taken place.
[70]
The First Respondent agreed that LUMC
was wrong to dismiss the Rezoning Application. It decided on the
merits that the appeal is
upheld. Now, to impose further conditions
that call upon the Applicants to go back to the public-participation
processes in
ultra vires
the authority and powers of the
First Respondent. Furthermore, in terms of section 56(9) of the
Ordinance before the First Respondent
could finalise the aspect that
may culminate in the impositions of conditions, it should have first
consulted the Application.
[71]
This was never done.
[72]
As such, the addition of the impugned
conditions to the decision to uphold the appeal is irrational and
stands to be reviewed and
set aside.
[73]
The imposition of the impugned
conditions in the circumstances of this review application is highly
irregular, impractical and invalid.
[74]
Neither the LUMC nor the First
Respondent has the authority to, after arriving at a decision in
respect of the merits of the Rezoning
Application appeal, direct that
the public-participation process be repeated. Such public
participation process was done before
the approval processes were
embarked upon.
[75]
The First Respondent, when considering
the appeal in terms of section 56(9) of the Ordinance as read with
section 62(3) of the System
Act, only had the authority to approve,
refuse or postpone the Rezoning Application. In terms of the Appeals
Procedure Policy,
the authority was to confirm, vary or revoke the
LUMC decision.
[76]
By upholding the appeal the First
Respondent approved the Application and revoked the decision of LUMC
to refuse the application.
[77]
That is how far the First Respondent had
authority or mandate to go.
[78]
Counsel for the Respondent submitted in
argument in this court that the imposition of the impugned conditions
was an equivalent
of postponing the Rezoning Application.
[79]
That is ridiculous.
[80]
The rule of interpretation is that words
should be given their ordinary, everyday grammatical meaning.
[81]
It is common cause that imposing a
condition after an appeal decision was arrived at, worse so, without
consultation with the Appellant
is not synonymous with postponing the
application. The drafters of the legislation and procedures in this
regard would have specifically
and unambiguously said so if it was
the case or the intention.
[82]
Furthermore, the imposition of the
impugned conditions by the First Respondent does not constitute an
amendment of the LUMC Decision.
Such a move is allowed by section
65(9) of the ordinance. More-so that the LUMC Decision was a straight
disapproval.
[83]
It is thus the finding of this Court
that the decision of the First Respondent to impose the impugned
conditions after deciding
to uphold the appeal is irregular, and
unauthorized. To order a re-public participation process that had
already been done properly
with no objection from any person,
institution or department including the Second Respondent's
departments and relevant Government-Departments
is
ultra
vires
the
powers the First Respondents had when it heard the appeal. It is in
conflict with empowering legislation and extremely detrimental
to the
Applicants. It amounts to an unlawful and superfluous
de
novo
repeat
of the initial process that was performed to the "T". This
entire process has taken over three years to date which
is
inordinately long.
[84]
This is an appropriate case where
section 6(2) of PAJA should be employed.
REMITTAL
OR NOT TO FIRST RESPONDENT
[85]
The next question to deal with is
whether it will be in the interests of justice to remit this entire
Rezoning Application to the
First Respondent to reconsider it in its
entirely afresh.
[86]
The First Respondent is
functus
officio
herein.
It has upheld the appeal. Now, to remit it back to it in the face of
what has been set out above would in the view and finding
of this
Court be superfluous and unreasonable.
[87]
As already stated above, the decision of
the First Respondent to impose the impugned conditions in respect of
an appeal it had already
upheld is irregular and unauthorized. It is
also contrary to statutory prescripts applicable.
[88]
This matter is outstanding for more than
three years. If one goes by the speed at which this matter was dealt
with by the Respondents
one would not be far from the truth that
another further three years may go past before it reaches finality.
[89]
That would be prejudicial to the
interests of the Applicants as well as not being in the interests of
justice. Furthermore, it would
be the granting of the Respondents'
offer to settle through the back door.
[90]
That would not be the sum total of what
the parties herein had argued and submitted in this• matter.
[91]
I have considered the Respondents points
of law as belatedly submitted herein. It is so that at the inception
of argument herein
Counsel for the Respondents abandoned points of
law 1 and 6.
[92]
After considering the balance of the
points of law submitted and argued in the light of the totality of
evidence herein, this Court
comes to the conclusion that they do not
have merit.
[93]
As regards points 2 and 4, the relief
sought by the Applicants herein have no bearing on and does not
offend the principle of separation
of powers.
[94]
It is so that this Court has inherent
power and jurisdiction to decide whether a decision taken is
ultra
vires
or
unlawful. Once it finds that it is so, it has the inherent power to
decide whether or not to review and set it aside. Furthermore,
a
finding by this Court that the decision of and by the First
Respondent to impose the impugned conditions is unlawful and is
liable to be reviewed and set aside cannot infringe upon the
executive municipal planning authority of the Respondents
[11]
.
[95]
The municipal plaining authority talked
about in the Constitution of the RSA refers to lawful execution of
authority.
[96]
As regards point of law 5, this aspect
has already been dealt with when the Court dealt with whether this
application was late and
thus needed condonation.
[97]
Point of law 7 has the unintended results of nullifying the First
Respondent's efficacy or authority
and powers. This point has no
relevance in a discussion about whether to review and set aside or
not in the light of the circumstances
prevailing herein.
[98]
The Respondents in the view of the Court
are attempting to remedy their failure to file Answering Affidavits
by relying on this
point, among others. This point is in the view of
the Court self-defeating. It also contradicts the with prejudice
offer to settle.
[99]
It is so that the Second Respondent has
by way of a proper Council Resolution, duly appointed the First
Respondent as its Appeals
Tribunal and has also appointed its
members. It also adopted the Appeals Procedure Policy in keeping with
section 62. This Appeals
Tribunal is legally authorized and mandated
to entertain appeals lodged against decisions relating to Township
and Rezoning matters
among others.
[100]
The Respondents' counsel attempted to argue the issue of the
existence of a collateral challenge defence when
this matter was
argued in Court . Unfortunately, such challenge was never brought up
in the pleadings or the heads of arguments.
It is thus a non-starter.
[101]
The fallacy of the submissions by the Respondents hereon is
illustrated by the Respondents' contention that the
Decision taken by
LUMC to refuse the Rezoning Application constituted a SPLUMA Decision
which would be subject to the provisions
of section 51 of SPLUMA.
[102]
That is a thumb-suck and farfetched.
[103]
Section 51(7) of SPLUMA is there to
prevent an Appellant from having the proverbial second bite at the
same cherry. It is meant
to guard against and control situations
where an appellant lodges an appeal in terms of section 62 of the
System Act unfairly.
[104]
That is not the case in this matter.
[105]
After considering all the aspects of
this review application, this Court is satisfied that the Applicants
have made out a case for
the reviewing and setting aside of the
impugned conditions that were added to the Appeal Decision after a
decision to uphold the
Appeal was made.
COSTS
[106]
The general rule when costs are
considered is that costs follow the suit. Furthermore, the
determination of the issue of costs is
within the absolute discretion
of the trial Court after careful consideration of all facts, factors
and circumstances inherent
in the case.
[107]
Both sides have submitted that should
they be successful, the cost order accompanying the award should be
that of attorney and client.
[108]
After considering the material factors,
material in this case or application, it is the finding of this court
that a cost order
on a scale as between attorney and client should be
the cost order accompanying the grant of the order in this review
application.
[109]
The Court on 29 January 2019 reserved
the costs of the day when it removed the matter from the unopposed
roll to the opposed roll.
[110]
After a thorough consideration of the
factors involved on that date it is the finding of this Court that
the costs order of 29 January
2019 should be that costs are costs in
the Application.
ORDER
[111]
The following order is made:
111.1
The conditions effected to or inserted
in the Appeal Decision handed down by the First Respondent on 20
April 2019 by virtue of
which the Appeal lodged by the Applicants
against a decision of the Second Respondent through the First
Respondent pertaining to
an application for rezoning lodged by the
Applicants in respect of the property known as Erf 7421 Bender Ext
115, Polokwane Registration
Division LS, was upheld in terms of
section 62 of the Local Government Municipal Systems Act, 32 of 2000
are hereby reviewed and
set aside.
111.2
The impugned conditions reviewed and set
aside are the following,
ex
abundanti caufela:
111.2.1
"1.
That the Applicants should comply with the provisions of section
56(1)(b)(i) and (ii)
of the Town Planning and Township Ordinance 15
of 1986; and shall give 28(twenty-eight) days notice of the amended
application
by publishing once a week for two consecutive weeks on-
(a)
Provincial Gazette.
(b)
Local newspapers.
(c)
Site Notice for 14(fourteen) days.
3. That
the aforesaid notices should therefore firmly include the contents of
ANNEXURES"
F" and "I" of Exhibit "I"
and the Municipality should be forwarded with copies of the said
notices, thereafter
these below rights will only be valid in the
absence of objections against the amended application."
111.3
It
shall not be necessary for the successful appeal decision to be
referred back to the Respondents for anything more including
re
consideration.
111.4
The
Respondents are ordered to pay the costs of this application jointly
and severally, the one paying, the other being absolved,
on a scale
as between attorney and client.
11.5 The costs
attendant on the determination of this application in the unopposed
motion court of 29 January
2019 are costs in the application.
NF KGOMO
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
APPEARANCES
1.
For the
Applicant
:
Mr JA
Venter
Instructed by
: Adriaan
Venter Attoenreys
Menlo Park, Pretoria
Telephone
Numbers
:
012 -
345 1075
2.
For the Respondents
:
Adv A
Livesage SC
Instructed by
: Mohale
Incorporated
Polokwane
Telephone Numbers
:
015 297
3501
3.
Date of Judgment
:
01-06-2020
[1]
Local Government Municipal System Act 2000 (Act 32 of 2000)
[2]
Promotion of Administrative Justice Act, 2000 (Act 3 of 2000).
[3]
Town Planning and Townshjps Ordinance 1986 (Ordinance 15 of 1986)
[4]
See Annexure PA 11 to Founding Affidavit
[5]
See Annexures PA 9 and PA 11
[6]
See the second part of paragraph 24 of the Applicants' Founding
Affidavit.
[7]
Spatial Planning and Land Use Management Act 2013 (Act 16 of 20 13)
[8]
See Applicants' Founding Affidavit paragraph 47 at Folio 25 of the
paginated papers
[9]
See President of the RSA and others v SA Rugby Union & Others
2000(I) SA I (CC);
[10]
See section 56(9) of the Ordinance
[11]
See sections 152, 156 , and Part B of Schedule 4 of the
Constitutions of the RSA, Act 108 of 1996