About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 118
|
|
Drift Supersand (Pty) Limited v Mogale City Local Municipality and Another (1185/2016) [2017] ZASCA 118; [2017] 4 All SA 624 (SCA) (22 September 2017)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1185/2016
In
the matter between:
DRIFT
SUPERSAND (PTY) LIMITED
APPELLANT
and
MOGALE
CITY LOCAL MUNICIPALITY
FIRST
RESPONDENT
GREENVILLE
GARDENS CC SECOND
RESPONDENT
Neutral
citation:
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality
(1185/2016)
[2017] ZASCA 118
(22 September 2017)
Coram:
Navsa
ADP, Leach and Petse JJA and Molemela and Mokgohloa AJJA
Heard:
21
August 2017
Delivered:
22
September 2017
Summary:
Administrative
law - Town Planning and Townships Ordinance 15 of 1986 – owner
of land in close proximity to proposed township
having standing as an
interested person to challenge establishment of township.
Fairness
of procedure to approve township – breach of legitimate
expectation of a hearing by municipal tribunal – procedure
inherently unfair in various respects.
Party
excluded from process not obliged to pursue internal appeal against
such decision before seeking to review the administrative
action
taken.
Procedure
– striking out – court required to exercise practical,
common sense and flexible approach in considering whether
allegations
made in reply need be struck out – cross-appeal relating to the
failure to strike out an incontrovertible fact
which was in any event
not relied upon to decide the merits of the dispute –
cross-appeal dismissed.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Coetzee AJ sitting as
court of first instance):
1
The appeal succeeds with costs, including the costs of two counsel.
2
The order of the court a quo is set aside and is replaced with the
following:
‘
(a)
The first respondent’s approval on or about 28 August 2012
(acting through its executive mayor) of the
application for the
establishment of a township to be known as Greengate Extension 24
Township on Portion 33 (a portion of Portion 6)
of the farm
Roodekrans 183 IQ, is set aside.
(b)
The respondents are to pay the applicant’s costs, including the
costs of two counsel, jointly
and severally, the one paying the other
to be absolved.’
3
The second respondent’s cross-appeal is dismissed, and the
second respondent is
ordered to pay the appellant’s costs
relating thereto.
JUDGMENT
Leach
JA (Navsa ADP, Petse JA and Molemela and Mokgohloa AJJA concurring)
[1]
During August 2012, after a process that had been initiated some six
years previously, the first respondent, the Mogale City
Local
Municipality (the Municipality) approved an application of the second
respondent to establish a township on a piece of immovable
property
known as Portion 33 (a portion of Portion 6) of the farm Roodekrans
183 IQ (the subject property). The appellant, a nearby
landowner,
thereafter applied to the Gauteng Local Division, Johannesburg for an
order, inter alia, reviewing and setting aside
the Municipality’s
decision to approve the establishment of this township. Its
application was dismissed and it appeals to
this Court with leave of
the court a quo. Also before us is a cross-appeal by the second
respondent against the court a quo’s
refusal to strike out
certain factual allegations made by the appellant in its replying
affidavit.
[2]
It is common cause that the appellant is the registered owner of
three pieces of immovable property known, respectively, as
the
remainder of Portion 79, the remainder of Portion 80, and Portion 116
of the farm Roodekrans 183 IQ. For convenience I intend
to refer to
these properties either as Portion 79, 80 and 116 respectively or,
collectively, as ‘the appellant’s property’.
They
are contiguous with each other and in the immediate vicinity of both
the subject property, Portion 33, and the property known
as Portion
81 of the farm Roodekrans 183 IQ. The latter property, which is also
owned by the appellant (although the appellant’s
allegation to
this effect forms part of the striking out application and the
cross-appeal) borders on both Portion 80 and the subject
property.
According to the Municipality, the subject property is at its
closest point some 50 metres from Portion 80 and
about 350 metres
from the furthest point the appellant’s property. The position
of these various properties in relation to
each other is set out in
the plan below:
[1]
NB: PLEASE CONSULT
THE PDF AND RT FORMAT FOR IMAGE
[3]
The appellant’s property (ie Portions 79, 80 and 116) is a
so-called ‘mining area,’ in respect of which a
mining
right was granted under s 9 of the Minerals Act 50 of 1991 to a
wholly owned subsidiary of the appellant, Drift Supersand
Mining
(Pty) Ltd (Supersand Mining). This was an ‘old order mining
right’ as referred to in the
Mineral and Petroleum Resources
Development Act 28 of 2002
. In March 2012, it was converted into a
mining right for a period of one year under item 7 of Schedule II of
the latter Act. In
April 2013 that period was extended to 25 years.
The appellant, in reply, stated that although the mining right had
been granted
to Supersand Mining, it had at all material times
exercised that right under a verbal agreement it had concluded with
Supersand
Mining. In doing so it operates an open cast mine,
quarrying sand and gravel. This involves the blasting and crushing of
rock.
[4]
The appeal to this Court has a long and drawn out history commencing
some 11 years ago, when, in September 2006, the second
respondent applied to the Municipality to establish a township on the
subject property. In its papers the appellant had sought
to impugn
the decision to approve the township application on the strength of
various contentions. Inter alia, it argued that the
decision had been
irrational; that there had been a failure to evaluate all relevant
facts and considerations; and that the decision
was wholly
unreasonable, had been arbitrary or capricious and had been taken for
an ulterior purpose, namely, to generate greater
revenue. In this
Court, however, the appellant essentially confined itself to
contending that the ultimate approval of the second
respondent’s
application was the product of a procedurally unfair process in
breach of s 3 of the Promotion of Administrative
Justice Act 3 of
2000 (PAJA) which was reviewable under s 6(2)
(c)
of that Act.
In the light of this, it becomes necessary to examine the
circumstances under which the Municipality came to approve
the second
respondent’s application.
[5]
The relevant history of the application is as follows:
(a)
In its initial form, the second respondent’s application
proposed the development of a township
on the subject property having
25 dwelling units per hectare, a floor area ratio of 0,6 and a
building coverage of 40 per cent.
However, in March 2007, the second
respondent amended the application in order to increase the density
to 60 dwelling units per
hectare, with concomitant increases in both
the floor area ratio and the building coverage. It was in this
amended form that the
application came to be approved. For
convenience I shall refer to it simply as the ‘township
application’.
(b)
The township application was made to the Municipality under the
provisions of s 69 of the Town Planning
and Townships Ordinance No 15
of 1986 (the Ordinance),
[2]
ss
69(1) and (2) of which prescribe that any landowner who wishes to
establish a township may apply in writing to the relevant
local
authority to do so, and provide certain prescribed information and
documentation. The section then goes on to lay down a
consultative
procedure to be followed to obtain objections, views and comments
from various persons and entities before a final
decision is taken in
regard to a new township development.
(c)
As part of this process, s 69(6)
(a)
of the Ordinance provides
that on receipt of an application to establish a township in
prescribed form, ‘the local authority
may, in its discretion,
give notice of the application by publishing once a week for two
consecutive weeks a notice in such form
and such manner as may be
prescribed’. In compliance with this, on 18 and 25 April 2007 a
notice of the township application
was published in both the
Provincial Gazette and newspapers sold in the district, calling for
written objections to the proposed
township to be filed with the
Municipality by 16 May 2007.
(d)
It is not disputed that these notices did not come to the appellant’s
attention. It came to learn
of the application only several months
later, in August 2007, during the course of a public participation
process being undertaken
by the second respondent under the National
Environmental Management Act 107 of 1998 (NEMA) in order to obtain
environmental approval
for the township.
(e)
On hearing of the application, the appellant immediately took steps
to oppose it. On 17 August
2007, in a four page letter, annexure
JH5 to the appellant’s founding affidavit, the appellant’s
attorneys wrote to
the Municipality detailing the appellant’s
objection to the proposed development and arguing that for various
reasons based
on the appellant’s nearby quarrying operations,
the proposed township was ‘simply inappropriate and should be
avoided’.
I shall return to this letter in due course.
(f)
It is common cause that JH5 was received by the Municipality’s
chief town planner, Mr Van
Wyk, to whom the Municipality had
delegated responsibility for handling the proposed township
application. However, the Municipality
failed to respond to it.
(g)
Indeed nothing relevant appears to have been done by the Municipality
until 3 March 2008 when, in purported
compliance with the provisions
of section 69(6)
(b)
of the Ordinance (again, a section that I
shall refer to later in more detail), it forwarded copies of the
application to various
government departments, local authorities and
functionaries, inviting their comment on the proposed development
within 60 days.
Why this was only done almost a year after the
publication of the notices under s 69(6)
(a)
is a mystery
unexplained on the papers.
(h)
A few days later, on 7 March 2008, the Municipality circulated the
township application to five persons
whom it perceived to be the
owners of the various properties bordering the subject property, and
called on them to lodge any comments
and representations they might
have in respect of the proposed development by 7 April 2008. This was
done under a municipal policy
that had been in place since 1998 (the
Policy) which regulated the procedure to be implemented in relation
to town planning and
township establishment applications. Inter alia,
this Policy provides that in the case of a party applying under the
Ordinance
to establish a township, the application ‘be
advertised in the press as prescribed and the consent of the
adjoining property
owners be obtained’.
(i)
The Municipality’s records reflected an S Fourie as being the
owner of Portion 81 and, on
7 March 2008, a copy of the application
was accordingly addressed to such a person. However, as appears from
the title deeds of
Portion 81 attached to the appellant’s
replying affidavit, no person named S Fourie was or had been an owner
of that property.
In 2003 Portion 81 had been registered in the
name of E M Fourie and S Strydom who, in 2005, had transferred it to
a company, Yellow
Star Prop 103 (Pty) Ltd. Thereafter, on 31 August
2007, Portion 81 was transferred to the appellant (this too is an
issue
to which I shall return when dealing with the cross-appeal).
(j)
In any event, what is apparent from this is that the appellant’s
objection to the township
development, seemingly prepared without
sight of the township application or the second respondent’s
representations in that
regard, had been received by the Municipality
well before it delivered copies of the township application to the
adjoining landowners
and called for their comments.
(k)
After the notices of March 2008, proceedings relating to the proposed
development moved at the pace
of a snail. It is undisputed that after
delivering the letter of objection JH5, the appellant’s
attorneys periodically liaised
with the Municipality on whether there
had been any movement in regard to the township application, although
quite what passed
between them, or between any of the other
interested parties for that matter, is not clear from the papers. But
in 2011, more than
three years later, certain significant events took
place.
(l)
First, on 1 June 2011 a representative of the appellant’s
attorneys, Mr Gonsalves,
telephonically discussed the proposed
development with Mr Van Wyk, who told him that the township
application had not yet been
approved as the second respondent’s
basic assessment report under NEMA was still being awaited. Mr
Gonsalves alleges Mr Van
Wyk went on to inform him that as a result
of its objection, the appellant had been duly placed on record as an
interested and
affected party; that the township application would
therefore be referred to a tribunal for hearing; and that the
appellant would
be notified and invited to attend the tribunal
hearing when it was held. Two days later, on 3 June 2011, a
consultant in the appellant’s
firm of attorneys, Mr Athienides,
confirmed these arrangements in a letter, annexure JH7 to the
founding affidavit, that was telefaxed
to Mr Van Wyk. The
Municipality admits that this letter was received and does not
dispute that it did not reply. I shall return
to this aspect in
greater detail below.
(m)
Secondly, the appellant’s attorneys had been in contact with
the Department of Mineral Resources regarding
the proposed
development. In a letter dated 14 February 2011, the Department’s
regional manager had informed an environmental
management consultant
employed by the second respondent that ‘the proposed township
is unlikely to impede the objects of
the
Mineral and Petroleum
Resources Development Act at
this time’ and that approval under
s 53
of that Act had been granted for a period of five years.
However, the Department changed its stance. In a letter to the
attorneys
dated 26 September 2011, it stated:
‘
2
The proposed area is adjacent to Drift Supersand and 400 metres north
east from
W G Wearne (Pty) Ltd sand mine. Mining is being conducted
by means of explosives. A provision of 1000 metres buffer zone from
the
abovementioned mines has to be implemented.
3
It is likely that the aforementioned township will impede the objects
of
the
Mineral and Petroleum Resources Development Act, in
terms of
the Provision of section 53 of the Act and the approval of the
Minister has not been granted for the proposed township.
’
(n)
I must record that subsequently, after the disputed decision of the
Municipality to approve the township
application, the Department
seems to have changed its position yet again to grant approval but,
for present purposes, nothing turns
on this. What is relevant is that
on 17 November 2011 the appellant’s attorney forwarded the
Department’s letter of
26 September 2011 to the Municipality
and advised that, in the light of its contents ‘we are of the
view that the environmental
authorisation of the proposed township
can no longer proceed’. Once more, the Municipality does not
appear to have responded.
(o)
Be that as it may, it is of some importance that during the course of
2011 the Municipality adopted
an integrated development plan as
envisaged by s 35 of the Local Government: Municipal Systems Act 32
of 2000 (the Systems Act).
This included a so-called Precinct Plan
for the Muldersdrift Development Zone into which the subject property
falls (Precinct Plan).
Section 7.3 of the Precinct Plan sets out
environmental guidelines in which it is recorded that a quarry
increases the risk of
dust pollution and poses the danger of
sinkholes developing, and states that any development adjacent to a
quarry should therefore
be required to observe a buffer zone of 750
metres.
(p)
Thereafter, on 18 May 2012, Mr Van Wyk prepared a report on the
development to be submitted to what
was referred to as ‘the
municipal section 80 committee’ – presumably a committee
appointed in terms of s 79,
read with
s 80
of the
Local Government:
Municipal Structures Act 117 of 1998
, to assist the executive mayor.
Mr Van Wyk recorded in this report, JH24 to the appellant’s
replying affidavit, that the
application had been duly advertised and
that no objections or representations had been received against the
application, which
was therefore unopposed. This flew in the face of
the appellant’s unchallenged statement concerning the
discussion between
Mr Van Wyk and Mr Gonsalves, as recorded in
the letter JH7. Interestingly, the report also states that the
township application
‘is in line with the latest planning
policies of the relevant authority’, a statement which is
somewhat dubious in
the light of the proposed township falling within
both the buffer zone for quarries recently imposed in the Precinct
Plan and the
1000 metres buffer zone insisted on by the Department of
Mineral Resources in its letter of 26 September 2011.
(q)
In due course JH24 was placed before the
section 80
committee, which
approved it and recommended that the township development be
approved. Presumably, although no affidavit from
him or her was
forthcoming, the executive mayor then relied on JH24 and the
section
80
committee’s recommendation, to approve the township
application on 28 August 2012. It is common cause that, despite the
terms
of the letter JH7 and what the appellant alleges Mr Van Wyk had
said on 1 June 2011, the matter was not referred to a tribunal for
hearing at any stage before this decision was taken.
[6]
No more need be said in regard to the history of the second
respondent’s application to establish a township on the subject
property. More than a month after the application had been approved
in this way, and in response to a letter written to Mr Van
Wyk on
behalf of the appellant on 1 October 2012 requesting ‘an
update regarding the status of the above mentioned township
application’, the Municipality informed the appellant of the
executive mayor’s decision. In due course, in March 2013,
the
appellant proceeded to institute proceedings in the court a quo
seeking to have that decision reviewed and set aside.
[7]
It is accepted by all parties that the decision to approve the
township application constituted an ‘administrative action’
by an organ of state as contemplated by PAJA, being one ‘which
adversely affects the rights of any person and which has a
direct,
external legal effect . . .’
[3]
Section 3(1)
of PAJA goes on to require that ‘[a]dministrative
action which materially and adversely affects the rights or
legitimate
expectations of any person must be procedurally fair’.
As already mentioned, the appellant seeks to review the
Municipality’s
decision on the basis that it was the result of
a process that was not procedurally fair and therefore breached this
requirement.
[8]
In
Joseph
& others v City of Johannesburg & others
,
[4]
the Constitutional Court observed that ‘a finding that the
rights of the applicants were not materially and adversely affected
would have the result that
s 3
of PAJA would not apply’.
[5]
Seizing on this, and relying upon the appellant’s explanation
in reply that its wholly owned subsidiary, Supersand Mining,
to whom
the mining right had been granted, had authorised it to exercise the
right to mine on its behalf, the respondents argued
that any rights
likely to be affected by a township being developed nearby the quarry
were not those of the appellant but its subsidiary.
They therefore
argued that whilst its subsidiary may have had standing to review the
executive mayor’s decision, the appellant
did not.
[9]
In the light of this, I turn at the outset to consider the question
of standing. In addition to that which I have already mentioned,
the
respondents also argued that the allegation that the appellant was
quarrying in terms of an agreement with Supersand Mining
lacked
detail and cogency and that, as this had emerged in reply, the
appellant had impermissibly tried to make out its case in
reply. They
therefore submitted that the appellant’s allegations in reply
should either be ignored or struck out.
[10]
There is in my view no merit in any of this. As this Court recently
stated in
Lagoon
Beach
,
[6]
not only must a court exercise practical, common sense in regard to
striking out applications but there is today a tendency to
permit
greater flexibility than may previously have been the case to admit
further evidence in reply. Consequently, as stated in
Nkengana
,‘if
the new matter in the replying affidavit is in answer to a defence
raised by the respondent and is not such that it should
have been
included in the founding affidavit in order to set out a cause of
action, the court will refuse an application to strike
out’.
[7]
The appellant’s case was always that it was the person who was
carrying out the mining activities on its property. As proof
of that,
it attached to its founding affidavit the mining right granted to
Supersand Mining. In their answering affidavits the
respondents
contended that the appellant’s mining activities were illegal
as it was not the person to whom the mining right
had been granted.
It was in order to rebut this that the appellant explained in reply
that it was conducting its activities on
behalf of Supersand Mining
in terms of an agreement between them. This was merely a gloss on
what it had set out in its founding
affidavit. It was not seeking to
make out a fresh cause of action in reply, and there is no reason
either to strike out the explanation
made in reply or to ignore it.
[11]
Moreover, the respondents’ argument on this issue seeks to
limit the rights of the appellant which were potentially adversely
affected by the decision solely to those associated with the mining
activities being conducted on its property. This is both a
strained
and unnecessary limitation. Whilst the appellant, as owner of the
property, has indeed permitted mining activities on
its property, it
would be wrong to regard those activities as being the only legal
rights to which regard can be had in considering
whether the
establishment of a township in the immediate vicinity impacts upon
the appellant’s rights as owner. Adopting
the phraseology of
this Court in
JDJ
Properties
[8]
the appellant, as owner, had the ‘right to safeguard the
amenity of [its] immediate neighbourhood’
[9]
which would be potentially affected by a decision to allow a township
to be developed in the immediate vicinity of its quarry.
In that
case, the owner of land had sought to review a municipality’s
approval of building plans. This Court held that the
owner, as a
person in whose interest a town planning scheme had been enacted, had
the necessary standing to do so. It referred
with approval
[10]
to the decision in
BEF
(Pty) Ltd v Cape Town Municipality & others
[11]
in which it had been held that a person living in an area, generally
speaking, has the right to take legal steps to enforce compliance
with a town planning scheme. (Although the court in
BEF
went
on to say that it ‘would not like to assert dogmatically that
such a remedy would be available to all persons living
in the area
covered by a scheme as large as that of Cape Town’ that was not
an issue on which it had to engage as the case
involved ‘an
immediate neighbour to the property on which the non-conforming
garage was built’.)
[12]
[12]
In the present case, as I have already pointed out, not only is the
subject property in the immediate vicinity of the appellant’s
property, but at first blush the approval granted by the Municipality
offends the buffer zone of its own Precinct Plan that forms
part of
the Municipality’s integrated development plan adopted under
the Municipal Systems Act. A municipality is bound in
the exercise of
its executive authority (which was so exercised in approving the
township application) by s 35(1)
(b)
of the Municipal Systems Act. In addition, s 36 of that Act goes
on to provide that a municipality ‘must give effect
to its
integrated development plan and conduct its affairs in a manner which
is consistent with its integrated development plan’.
[13]
The Municipality avers that this buffer zone was only introduced
several years after the second respondent had lodged its application
and notice thereof had been advertised in November 2006 and April
2007. If this was an attempt to evade the applicability of the
integrated development plan to the township application, it must be
rejected. If the buffer requirement was introduced before the
application was considered, it clearly had to be taken into account
in considering whether the application should be approved.
[14]
The Municipality also contended that the dimensions of the buffer
zone in the Precinct Plan were not binding and operated only
as a
guideline. Even if this is correct, however, the closer a proposed
township development is to a quarry, the greater the imperative
for
the guideline to be observed, especially where, as here, the effects
of blasting rock and related quarrying activities are
likely to have
potentially substantial adverse effects on nearby residents. As the
appellant’s property at its furthest point
is less than half
the prescribed width of the buffer zone from the subject property,
and only some 50 metres away at its closest,
there was every reason
to take the Precinct Plan recommendation relating to the buffer zone
into account. In these circumstances,
even should the binding nature
of the buffer zone and whether it ought to have been taken into
account be matters of debate, the
appellant was entitled to have its
voice heard in determining the outcome of that debate.
[15]
As I understood the respondents, they sought to buttress their
argument in regard to the appellant’s alleged lack of
standing
by contending that the appellant was not an ‘interested party’
as envisaged under its Policy to whom notice
or a copy of the
application had to be given – and that accordingly the
appellant lacked standing to seek to review the approval
of the
township application. Although this contention is also relevant to
the aspect to whether the approval of the township application
involved a fair administrative process, an aspect to which I shall
return, it is convenient to deal with it at this stage.
[16]
At its outset the Policy provides that ‘the various procedures
to notify adjoining property owners on town planning applications
as
depicted by different legislation, be noted’. It goes on to
state ‘that due to the subjective nature of the word
“interested party/parties” the terms “interested
parties” and “adjoining property owners” used
in
the Policy – and presumably the relevant legislation – be
defined as “the owner/occupant of any land”
abutting or
sharing a common boundary with such land (specifically including any
land which is only separated by road)
and
to any other person who may in the opinion of the authorised local
authority, be directly affected by the application
’(my
emphasis.) As already mentioned, the Policy then provides that in the
case of an application under the Ordinance to establish
a township,
the application ‘be advertised in the press as prescribed and
the consent of the adjoining property owners be
obtained.’
[17]
The Municipality’s argument is that as the appellant’s
property did not share a common boundary with the subject
property
and was neither ‘adjoining’ nor ‘adjacent’ to
nor ‘abutting’ the subject property
– terms used in
the Policy – the appellant was not an ‘interested party’,
as envisaged by the Policy. For
this reason it also alleged that it
had not been of the opinion that the appellant was directly affected
by the application. In
my judgment, to uphold this would be to allow
semantic formalism to trump administrative justice. The appellant’s
property
and the subject property are in the immediate vicinity of
each other, and by their very nature the mining and quarry activities
upon the appellant’s property, of which the Municipality has
stressed throughout it was aware, are wholly inimical to a nearby
residential township having its closest point about 50 metres from
the appellant’s property. There was, if anything, more
reason
to regard the appellant as an interested party, particularly after it
had lodged its objection JH5, than any of the five
adjoining
neighbours who had neither responded to the published notices nor,
for that matter, to the copies of the township application
forwarded
to them on 7 March 2008.
[18]
In these circumstances it is nothing short of spurious for the
Municipality to allege that because the situation of its land
did not
precisely fit that of an interested party as set out in the Policy,
the appellant was not an interested party and was not
directly
affected by the application. Under s 195(1)
(e)
of the Constitution ‘the public must be encouraged to
participate in policy-making’. This Court pointed out in
Koukoudis
& another v Abrina 1772 (Pty) Ltd & another
[13]
that, in matters of local government, the right to object to the
establishment of a township forms part of a legislative scheme
founded upon the Constitution which both entitles and encourages
individual members of society to actively participate in municipal
decision-taking. Further, in
Joseph
[14]
the Constitutional Court stated that the
values
and principles reflected in s 191 of the Constitution of the Republic
of South Africa, 108 of 1996 oblige government to act
in a respectful
and fair manner, when fulfilling its constitutional and statutory
obligations
and
that:
‘
This
is of particular importance in the delivery of public services at the
level of local government. Municipalities are, after
all, at the
forefront of government interaction with citizens. Compliance by
local government with its procedural fairness obligations
is crucial
therefore, not only for the protection of citizens' rights, but also
to facilitate trust in the public administration
and in our
participatory democracy.’
[19]
In the light of these authorities, the Municipality had the
constitutional obligation to attempt to ensure that regard was
had to
the views of all residents within its jurisdiction whose rights might
be affected before a decision was taken in regard
to the
establishment of the township. To seek to regard a party who clearly
was affected by such a decision as being not ‘interested’
merely because of a loose definition in its Policy, is inconsistent
with the values a municipality is expected to observe in the
performance of its constitutional obligations. More simply put, for
the Municipality to regard a party whose rights of ownership
would
clearly be affected as not being interested, is simply unfair and
unjust. The appellant clearly was a party interested in
the
application.
[20]
Consequently, the issue whether the appellant’s financial
interests or those of its wholly owned subsidiary would potentially
be adversely affected by the approval of the township scheme, is no
more than a red herring. As owner of property situated in the
immediate vicinity, the appellant clearly has standing to question
the validity of the decision to allow a township to be established
on
property in the immediate vicinity of the site of its quarrying
operations. This is all the more so bearing in mind the likely
adverse consequences of that activity and the fact that the
decision may well have been granted in breach of the municipal
integrated development plan.
[15]
The court a quo was
therefore correct in holding that the appellant had standing in the
review application and the respondent’s
argument to the
contrary cannot succeed.
[21]
Having determined that issue in favour of the appellant, I turn to
deal with the question of the fairness of the procedure
adopted by
the Municipality before the township application was approved. For
the reasons already mentioned, the appellant clearly
had an interest
in the application. However, whether it was an ‘interested
party’ as envisaged in s 69(6)
(b)
of the Ordinance is another disputed aspect which needs to be
mentioned in regard to the question of the fairness of the process
adopted by the Municipality.
[22]
Section 69(6)
(b)
of the Ordinance provides that on receipt of
an application to establish a township:
‘
(b)
the local authority
or the applicant with the consent of the local authority shall
forward a copy of the application to-
(i)
the [Gauteng] Roads Department;
(ii)
every local authority whose area of jurisdiction is situated within a
distance of
10 km from the land in respect of which application has
been made;
(iii)
every local authority or body providing any engineering service
contemplated in Chapter
V to the land contemplated in subparagraph
(ii) or to the local authority contemplated in subsection (1);
(iv)
any other department or division of the [Gauteng] Provincial
Administration, any State
department which or
any other person
who
, in the opinion of the local authority,
may be
interested in the application
,
and
every such department, local authority, body, division or person may,
within a period of 60 days from the date on which a copy
of the
application was forwarded to him or it, or such further period as the
local authority may allow, comment in writing thereon:
Provided that
an applicant who has forwarded a copy in terms of this paragraph
shall submit proof to the satisfaction of the local
authority that he
has done so.’ (My emphasis.)
[23]
Despite its obvious interest in the township application, the
Municipality neither forwarded a copy of the application to the
appellant nor called for its comments. It sought to justify its
failure to do so by relying on the unreported decision of A Gautschi
AJ in the matter of
Abseq
Properties (Pty) Ltd v Maroun Square Shopping Centre (Pty) Ltd.
[16]
In that case, the first two respondents had applied to establish a
township and to rezone their properties in order to develop
a
shopping centre and residential accommodation. The applicant, the
owner of a shopping centre situated a few 100 metres away,
sought an
interim interdict to stop the township establishment process, pending
determination of a declarator for the review of
certain decisions
taken by the third respondent, the City of Johannesburg, relevant to
the establishment of the proposed township.
As in the present case,
the applicant did not become aware of the notices which had been
published in newspapers under s 69(6)
(a)
of the Ordinance, and as a result did not timeously file a formal
objection. It argued, however, that the City of Johannesburg
had
breached s 69(6)
(b)
(iv)
of the Ordinance in that it had failed to forward it a copy of the
application. In this regard it relied on the phrase in that
subsection that a local authority must provide a copy of the
application to ‘any other person who, in the opinion of the
local authority, may be interested in the application’. The
court rejected this argument. It held that the phrase in the
subsection ‘any other person who . . . may be interested’
did not bear its ordinary, wide meaning but was to be interpreted
euisdem
generis
and restricted to persons similar to those organs of state referred
to in s 69(6)
(b)
(i)-(iii)
‘such as parastatals, Eskom, Rand Water, Transnet and the
like’.
[17]
It therefore
held that the applicant was not a ‘person . . . interested’
for the purposes of s 69(6)
(b)
(iv)
of the Ordinance, and dismissed the application.
[24]
In the present instance, the learned judge in the court a quo
expressed his reservations as to the correctness of this decision,
but concluded that as he was not persuaded that it was clearly wrong,
the rule of precedent obliged him to follow it. He therefore
held
that in the present case, too, the appellant was not a person
‘interested’ as envisaged by the subsection and
for this
reason alone dismissed the application.
[25]
I, too, doubt the correctness of the decision in
Abseq
Properties
.
Like any other statutory enactment, the Ordinance must be interpreted
in the light of the values enshrined in the Constitution
which, as
already mentioned, include the encouragement of public participation
in policy making. To apply such a restrictive approach
to the
interpretation of the section would frustrate that purpose. But in my
view it is unnecessary to deal further with this issue
for, unlike
the learned judge in the court a quo, I do not regard the issue as
being determinative of the outcome of this matter.
[26]
In deciding whether approval of the township application can stand,
the provisions of the Ordinance are not to be considered
alone. PAJA
governs
administrative
action in general and its provisions are to be read together with the
enabling legislation
so that
those
authorised to take administrative decisions must do so in a manner
consistent with PAJA.
[18]
Section 3(3) of PAJA provides that in order to give effect to the
right to procedurally fair administrative action, an administrator
in
his or her discretion may also give the person whose rights or
legitimate expectations are materially and adversely affected,
the
opportunity to, inter alia, present and dispute information. That
brings me to the appellant’s contention that it had
a
legitimate expectation to a hearing before the decision was taken,
and that the failure of the Municipality to afford it such
a hearing
renders the decision void.
[27]
As appears from the seminal judgment of Corbett CJ in
Administrator,
Transvaal, & others v Traub & others
,
[19]
the doctrine of legitimate expectation to a hearing bears as its
hallmark the obligation of an administrative authority to act
fairly.
Thus in what has become known as
SARFU
,
[20]
the
Constitutional Court stated:
‘
The
question whether an expectation is legitimate and will give rise to
the right to a hearing in any particular case depends on
whether, in
the context of that case, procedural fairness requires a
decision-making authority to afford a hearing to a particular
individual before taking the decision. To ask the question whether
there is a legitimate expectation to be heard in any particular
case
is, in effect, to ask whether the duty to act fairly requires a
hearing in that case. The question whether a “legitimate
expectation of a hearing” exists is therefore more than a
factual question. It is not whether an expectation exists in the
mind
of a litigant but whether, viewed objectively, such expectation is,
in a legal sense, legitimate; that is, whether the duty
to act fairly
would require a hearing in those circumstances. It is for this reason
that the English courts have preferred the
concept of “legitimate
expectation” to that of “reasonable expectation”.’
[28]
Professor Hoexter points out that since its recognition in
Traub
,
the expectations that the courts have recognised ‘have been
engendered in a variety of ways: by an express assurance, a
settled
practice or an established policy and, in a small but growing number
of cases, by none of these things’.
[21]
And, of course, the expectation must qualify as being one that is
legitimate. As this Court pointed out in
Duncan
v Minister of Environmental Affairs and Tourism & another
[22]
the requirements for legitimacy of such an expectation have been
formulated as being:
‘
(a)
The representation
inducing the expectation must be clear, unambiguous and devoid of any
relevant qualifications.
(b)
The expectation must
have been induced by the decision-maker.
(c)
The expectation must
be reasonable.
(
d)
The representation
must be one which is competent and lawful for the decision-maker to
make.’
[29]
In the present case the appellant relies on an express assurance
given by the Municipality to found its contention that it
had a
legitimate expectation to a hearing before the decision to approve
the township development was taken. Its argument in this
regard is
based upon the events set out in para 5(l) above, namely, the
conversation between its attorney and Mr Van Wyk, the letter
JH7 sent
to the Municipality following that conversation (confirming that the
appellant was on record as an interested and affected
party and would
be invited to attend a hearing), and the fact that despite that
letter having been received by the Municipality,
it failed to
respond.
[30]
Clearly Mr Van Wyk’s representation was one which was competent
and lawful for the Municipality to make, and induced
a reasonable
expectation that the appellant would be afforded a hearing – or
at the very least that its representations in
its objection JH5 would
be taken into account before a decision on the application was taken.
Thus the essential requirements envisaged
in sub-paragraphs
(b)
,
(c)
and
(d)
of the test for legitimacy as set out in
Duncan
were satisfied. However, based on an averment that Mr Van Wyk’s
assurance had simply been that the appellant would be informed
of a
tribunal hearing if one was convened, the Municipality sought to
argue, in essence, that requirement
(a)
was
not fulfilled as there had not been an unconditional statement that
there would be a hearing. It also argued that the contents
of JH5
were taken into account before approval of the township was granted.
[31]
I shall return to this latter aspect in due course. But dealing with
the question of whether the promise to hold a hearing
was
unconditional, the Municipality based its argument on the answering
affidavit of the municipal manager, Mr Dan Mashitisho.
In stating
that the Municipality was unable to comment on how it had received
Mr Athienides’ letter JH7, he also alleged
that Mr Van Wyk
had advised the appellant that should any hearing in respect of the
proposed township be held the appellant would
be notified in respect
thereof. Details as to when, where or in what terms this was
allegedly conveyed were not set out, nor is
there a meaningful
affidavit from Mr Van Wyk himself. Instead the Municipality adopted
the sloppy method of adducing evidence by
way of a hearsay allegation
made by Mr Mashitisho supported by a so-called ‘confirmatory
affidavit’ by Mr Van
Wyk, who stated no more than that he had
read the affidavit of Mr Mashitisho and ‘confirmed the
contents thereof in
so far as it relates to me and any of
activities’. This might be an acceptable way of placing
non-contentious or formal evidence
before court, but where, as here,
the evidence of a particular witness is crucial, a court is entitled
to expect the actual witness
who can depose to the events in question
to do so under oath. Without doing so, a hearsay statement supported
merely by a confirmatory
affidavit, in many instances, loses cogency.
[32]
Importantly, not only is the averment relied on by the Municipality
vague in the respects already mentioned, but it is extremely
improbable. The excuse offered by the Municipality for not having a
hearing before a tribunal was that when Mr Van Wyk spoke to
Mr Gonsalves he ‘was under the mistaken apprehension that
objections to the township had been received’ and that
it was
only later when the file was being prepared for consideration of the
application by the Municipality that it was established
that the
letter of objection JH5 was not an objection as contemplated by the
Ordinance and had in any event been lodged out of
time. As a result,
Mr Van Wyk felt that as no valid objections had been received, no
tribunal needed to be convened. The Municipality
therefore alleged
there was nothing ‘Van Wyk could have or should have informed
the applicant of.’ However, in response
to the appellant’s
specific allegation in regard to the phone call between Mr Gonsalves
and Mr Van Wyk, the contents of which
were confirmed in the letter
JH7, the Municipality admitted the phone call without qualifying it
in any way. In doing so it admitted
that the appellant’s
attorney had been told that the appellant had been recorded as an
interested party who had objected
to the development. As Mr Van Wyk
at that stage regarded the appellant as an objector who was entitled
to a hearing before a tribunal,
he would hardly have told the
appellant that it would be informed of when the hearing would take
place only if a tribunal was convened.
Any contrary suggestion can be
rejected outright on the papers.
[33]
In the light of these considerations, I understood counsel for the
Municipality not to persist in the argument that what Mr
Van Wyk had
told Mr Gonsalves had been conditional upon a hearing being
held, and to accept that JH7 correctly recorded the
essence of what
the appellant had been told.
[34]
In the light of what I have said, the appellant was clearly an
interested party who had sought to object to the township
application.
In addition, the Municipality told the appellant that it
had been recorded both as an interested party and as an objector,
that
it would be notified of the date on which a tribunal would
consider its objection, and that it would be invited to attend that
hearing. That the appellant persisted in its objection was obvious in
the light of its letter to the Municipality of 17 November
2011,
expressing the view that the attitude of the Department of Mineral
Resources meant that the proposed township could not proceed.
The
failure to reply to this letter made it all the more reasonable for
the appellant to expect that it would be afforded a hearing
if the
Municipality was intending to consider granting the township
application. That being so, all the requirements of a legitimate
expectation of a hearing flowing from the conversation between Mr Van
Wyk and Mr Gonsalves were fulfilled. In any event, the Municipality’s
failure to reply to the letter JH7 amounted to a representation that
the Municipality accepted the correctness of its contents.
That
representation is, in itself, sufficient to ground a legitimate
expectation that the arrangements set out in JH7 would be
honoured by
the Municipality.
[35]
The excuse offered by the Municipality for failing to convene a
tribunal and to invite the appellant to attend a hearing, namely,
that it later decided that it was not in fact an objector, is
disingenuous. As Cameron J stated in
Kirland
Investments
[23]
there is no reason to exempt government from due process and that
‘(o)n the contrary, there is a higher duty on the state
to
respect the law, to fulfil procedural requirements and to tread
respectfully when dealing with rights’.
[24]
This, the Municipality failed to do. In breach of the legitimate
expectation the appellant had to a hearing, it failed to honour
its
promise to convene a tribunal to hear the appellant’s
objection. Instead it sought to place form above substance and
to
regard the appellant as not having been an objector in disregard of
its earlier contrary promise and in circumstances in which,
as I have
already remarked, it was unfair not to have recognised the appellant
as an interested party under the Municipality’s
Policy. In the
circumstances, I have no hesitation in finding that on this basis
alone its decision to approve the establishment
of a township was
procedurally unfair and cannot stand.
[36]
There are, however, other features of the process that need to be
mentioned. In this regard it is once again necessary to comment
adversely on the manner in which the Municipality placed its evidence
before court. As already mentioned, its answering affidavit
was
deposed to by its municipal manager, Mr Mashitisho. He alleged that
‘the City’ (ie the Municipality) was aware
of the
activities being conducted in the vicinity of the subject property,
that the City formed the opinion that the appellant
‘was not a
person who may be directly affected by the granting of the township
application’, that the City took the
‘financial
interests’ of the appellant into account in considering the
application before the City approved the application
on 28 August
2012. In fact the functionary who took that decision was the
executive mayor but, noticeable by its absence, is an
affidavit from
the latter to explain why he or she granted approval. In fact no
affidavit was forthcoming from the executive mayor
to explain what
information was available or what steps were taken into account
before granting the necessary approval. As the
relevant functionary
whose decision was subject to review and who was therefore a crucial
witness, it is inexplicable that no evidence
from the executive mayor
was placed before court.
[37]
Furthermore, Mr Mashitisho alleged in his affidavit that the contents
of the appellant’s objection, JH5, were taken into
account by
the ‘City’ when considering whether to grant the township
application. In the light of the executive mayor’s
failure to
depose to an affidavit, this bold allegation can be ignored as
hearsay in regard to whether he or she took JH5 into
account.
Surprisingly, although the truth of the statement that regard had
been had to JH5 was denied by the appellant in its replying
affidavit, it was not directly challenged by the appellant in this
Court. Not only is the averment hearsay, but it flies in the
face of
the further factual averments made by Mr Mashitisho. He alleged that
any correspondence received in respect of the township
application
would be filed and that, when the application is later prepared for
consideration, such correspondence is then carefully
read and
attended to at that stage. He went on to allege that in the present
case it was only when the file was being prepared
for the
consideration of the application by ‘the City’ (in this
context, he presumably meant by the section 80 Committee
rather than
the executive mayor) that it was established that JH5 was not an
objection as contemplated by the Ordinance as it had
been lodged
after the date for objections set out in the notices published in the
press. As already mentioned it was for this reason,
that JH5 was
considered not to be an objection and no tribunal hearing was
convened.
[38]
Consequently, in his report to the section 80 Committee, JH24, Mr Van
Wyk stated that no objection or representations had been
received
against the application which was therefore ‘unopposed’.
Nothing could have been further from the truth. Moreover,
in the
light of the failure to either mention the appellant’s
objection or to attach it to JH24, the municipal manager’s
allegation that JH5 had been taken into account by the City before
granting its approval simply cannot be accepted. In JH5, the
appellant’s attorney had drawn attention to there being three
quarry mining operations, including that of the appellant,
operating
close to the subject property, and that the appellant’s
operations involved, inter alia, sand excavation, rock
crushing and
rock blasting which would result in excessive dust, vibration, noise
and blasting in close proximity to residents
on the subject property.
He had further alleged that the large transportation vehicles used by
the quarries travelling along the
gravel roads in the area would make
it hazardous and undesirable for urban residential traffic; and that
for these reasons the
location of a residential zone close to
quarrying activities was ‘simply inappropriate and should be
avoided’. He had
concluded by contending that the approval of
the proposed township would prevent the appellant from extending its
business operations
on its property which would ‘constitute a
gross and unjust infringement upon our client’s right in terms
of the licenses
issued to it to utilise the entire property owned by
it for its commercial purposes and to enable it to gain the maximum
financial
benefit there from’. None of these contentions were
mentioned by Mr Van Wyk in JH24. One can therefore accept that the
legitimate expectation the appellant had of its representations being
taken into account before a final decision was taken on the
township
application, was not met.
[39]
We were informed from the bar that the prevailing practice in
implementing the procedures provided by s 69 of the Ordinance
is to
treat only objections made timeously pursuant to s 69(6)
(a)
notices
as ‘objections’ and those out of time merely as
‘comments’. Whatever the rights or wrongs of this
practice may be, it seems to me to matter not a whit. As a matter of
fact, even if JH5 was merely a ‘comment’, it was
in
substance an objection. To state, as Mr Van Wyk did in
JH24, that the application to establish a township was unopposed,
was
to his knowledge factually false. Moreover, even if JH5 fell to be
treated merely as a ‘comment’ rather than an
‘objection’,
s 69(8) required all comments and representations made in respect of
the township application to be forwarded
to the second respondent
who, under s 69(9), had 28 days from receipt to reply thereto.
Whether this was done in respect of JH5
does not appear from the
papers, but nothing of moment turns on that for present purposes.
What is of importance, however, is that
s 69(10) goes on to provide
that ‘the local authority shall consider the application with
due regard to every objection lodged
and all representations and
comments made and every reply contemplated in subsection (9) . . .’.
[40]
Despite these provisions, the contents of the appellant’s
objection and the representations therein contained were not
mentioned in Mr Van Wyk’s report. All that was stated was the
following:
‘
Sand
and aggregate quarries
Due
to the location of the proposed township in the vicinity of active
sand and aggregate quarries the Gauteng Department of Mineral
Resources has indicated that the following conditions must be
inserted into the title deeds of all erven in the township when the
opening of the townships register takes place:
(a)
As the erf (stand, land, plot, etc) forms part of land which is
located in close proximity
to active sand and aggregate quarries the
erven in the proposed township may be subject to subsidence,
settlement, shocks and cracking
due to quarrying operations past,
present or future, the owner thereof accepts exclusively all
liability for any damage thereto
and any structure and building
thereon which may result from such subsidence, settlement, shocks and
cracking.
(b)
As the erf (stand, land, plot) forms part of an area which may be
liable to fly rock,
dust pollution, noise and fumes created by the
detonation of explosives as a result of the nearby quarrying
activities in the area,
the owner thereof shall accept that
inconvenience and possible health hazards may be experienced as a
result thereof.
(c)
The municipality nor the Gauteng Provincial Government shall in any
way or form be
liable for any damage to property, inconvenience or
any health problems that may result from quarrying activities in the
area.’
[41]
Thus, while the section 80 committee was told of the existence of a
nearby quarry, and this was presumably brought to the attention
of
the executive mayor (although one has to infer this from the papers)
the fact that the appellant had objected to the development
and the
nature and importance of its opposition thereto, do not appear to
have been placed before either that committee or the
executive mayor
who had to take the final decision. The Municipality repeatedly
stated that the contents of JH5 were taken into
account by ‘the
City’ (and indeed suggested in its papers that this constituted
a hearing, a contention not persisted
in during argument in this
Court). However, in the light of what I have mentioned and the
contents of Mr Van Wyk’s report
JH24, that was not the case.
[42]
As a result the appellant, an interested party, was denied the
opportunity of placing its views before the executive mayor
who was
the functionary entrusted with the discretion to approve the
application. This was not procedurally fair. As Professor
Hoexter has
commented, in a passage approved by the Constitutional Court in
Joseph
:
[25]
‘
Procedural
fairness . . . is concerned with giving people an opportunity to
participate in the decisions that will affect them,
and - crucially -
a chance of influencing the outcome of those decisions. Such
participation is a safeguard that not only signals
respect for the
dignity and worth of the participants, but is also likely to improve
the quality and rationality of administrative
decision-making and to
enhance its legitimacy.’
[26]
[43]
To sum up, the appellant was an interested party who had as a matter
of fact objected to the application; it had a legitimate
expectation
to a hearing which was breached; and it was denied the opportunity of
having its views considered by the relevant functionary
by reason of
an unfair process that was adopted. The Constitutional Court in
Janse
van Rensburg NO & another v Minister of Trade and Industry &
another NNO
stated:
[27]
‘
Observance
of the rules of procedural fairness ensures that an administrative
functionary has an open mind and a complete picture
of the facts and
circumstances within which the administrative action is to be
taken. In that way the functionary is
more likely to apply his
or her mind to the matter in a fair and regular manner.
’
[28]
In
the present circumstances, the procedure adopted by the Municipality
had the very opposite effect. It resulted in the executive
mayor not
having a complete picture of the relevant facts and circumstances.
There can in my view be no doubt that the decision
taken to approve
the establishment of a township was consequently fatally flawed by
reason of procedural unfairness. The court
a quo erred in not
reaching this conclusion.
[44]
Despite this, the respondent sought to take refuge in an argument
that a court ought not to grant relief in favour of the appellant
as
it had failed to exhaust its domestic remedies under the Ordinance.
Section 104(1) of the Ordinance provides that an applicant
or
objector who is aggrieved by a decision of an authorised local
authority on an application such as that with which we are here
concerned, may appeal within a prescribed period from the date upon
which it was notified in writing of the decision. It is common
cause
that the appellant did not seek to exercise such right of appeal
before it instituted proceedings in the court a quo.
[45]
In the light of this failure, both respondents relied upon s 7(2) of
PAJA which, inter alia, provides as follows:
‘
7(2)
(a)
Subject
to paragraph
(c)
,
no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any
other law
has first been exhausted.
(b)
Subject
to paragraph
(c)
,
a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph
(a)
has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court or
tribunal for judicial review in terms of this Act.
(c)
A
court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation
to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.
’
[46]
As the appellant had failed to appeal under s 104 of the Ordinance
and had also neither alleged any exceptional circumstances
as
contemplated in s 7(2)
(c)
of PAJA nor sought to obtain
relief under that section, the respondents contended that the
appellant should be non-suited. This
argument was upheld in the court
a quo which concluded that the appellant had been bound to appeal
under the Ordinance before launching
the review proceedings. In doing
so, it said:
‘
Section
104 of the Ordinance provides that an objector who is aggrieved by a
decision of an authorised local authority in a township
application
may appeal to the Provincial Government. The applicant is an
objector. The letter of 17 August 2007 so illustrates.
The fact that
the letter was out of time and consequently invalid does not change
the applicant’s status as an objector as
aforesaid. It only
renders the objection invalid. It does not follow from the invalidity
of an objection that the objector loses
its status as an objector.’
[47]
I must say I find this reasoning startling, to say the least. It
would hold a person who as a result of having invalidly objected,
and
therefore excluded from the decision-taking process, being regarded
as an objector for the purposes of an appeal against whatever
decision was taken in the process from which it was so excluded. This
would simply be absurd and nonsensical. I cannot see how
the
Municipality can be heard to say that the appellant had not objected
to the application but, as an aggrieved objector, ought
to have
appealed against the decision to approve the application. And therein
lies the answer to the respondents’ argument
on this issue. As
Plasket AJA stated in
JDJ Properties
:
‘
How
can a person appeal against a decision taken in proceedings in which
he or she was not a party? The essence of an appeal is
a rehearing
(whether a wide or narrow) by a court or tribunal of second instance.
Implicit in this is that the rehearing is at
the instance of an
unsuccessful participant in a process.’
[29]
[48]
In the circumstances I have already detailed above, the Municipality
excluded the appellant from the decision-taking process.
As the
appellant was not a party to that process, it was not incumbent upon
it to attempt to appeal against the decision taken
as a result of
that process. Put somewhat differently, the appellant cannot be
expected to exhaust its internal remedies when it
was not afforded
any remedies at all. In these circumstances, the respondents are not
entitled to rely upon s 7(2) of PAJA to support
an argument that the
court a quo ought not to have reviewed the executive mayor’s
decision as the appellant had not sought
to appeal under s 104 of the
Ordinance.
[49]
Consequently, for the reasons already mentioned, the appeal must
succeed. In its notice of motion, the appellant sought various
orders
of directory relief. Wisely, in this Court, it sought no more than an
order setting aside the decision taken on 28 August
2012 to approve
the establishment of a township on the subject property. This will be
reflected in the order below.
[50]
There is no reason for the costs of the appeal not to follow the
event. As both respondents made common cause in opposing the
relief
sought by the appellant both in the court below and in this Court,
their liability for costs should be joint and several.
[51]
That brings me to the second respondent’s cross-appeal. It
sought to strike out various passages in the appellant’s
replying affidavit. The court a quo dismissed the application to
strike out, and it was against this order that the second respondent
cross-appealed. There are various reasons why the cross-appeal cannot
succeed.
[52]
The vast majority of the passages objected to refer to the
appellant’s statement in reply that it was the owner of Portion
81. The application to strike these averments was based on the
contention that the appellant had not relied upon its ownership
of
Portion 81 in its founding affidavit in order to substantiate its
entitlement to relief. However, as appears from the contents
of this
judgment, we have disposed of the matter without referring to the
appellant’s ownership of Portion 81 and these passages
have
caused no prejudice and are irrelevant to the outcome, Moreover, the
appellant raised its ownership of Portion 81 to rebut
the
Municipality’s statement that it had given notice to all
adjoining landowners, and therefore did not seek to make out
a case
in reply. Finally, it should be mentioned that the appellant’s
ownership of Portion 81 seems to be incontrovertible,
supported
as it was by a copy of the title deed. To strike out this allegation
would in all the circumstances have been an exercise
in futility and
of academic interest only.
[53]
Apart from those referring to Portion 81, there were only two other
passages about which the second respondent complained.
Both were
wholly uncontroversial. In the first, the appellant alleged,
justifiably, that its right to just administrative action,
and its
legitimate expectation to a hearing, had been infringed. In the
second it complained, again justifiably, that as a person
who had
been directly affected by the application to establish a township, it
ought to have been given notice of the application.
It is
self-evident that these passages ought not to have been struck out.
[54]
Accordingly, there is no merit in the cross-appeal which falls to be
dismissed with the second respondent paying the appellant’s
costs.
[55]
It is therefore ordered:
1
The appeal succeeds with costs, including the costs of two counsel.
2
The order of the court a quo is set aside and is replaced with the
following:
‘
(a)
The first respondent’s approval on or about 28 August 2012
(acting through its executive mayor) of the
application for the
establishment of a township to be known as Greengate Extension 24
Township on Portion 33 (a portion of Portion
6) of the farm
Roodekrans 183 IQ, is set aside.
(b)
The respondents are to pay the applicant’s costs, including the
costs of two counsel, jointly
and severally, the one paying the other
to be absolved.’
3
The second respondent’s cross-appeal is dismissed, and the
second respondent is
ordered to pay the appellant’s costs
relating thereto.
______________
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellant:
S J Grobler SC (with him J G Uys)
Instructed
by:
Brand Potgieter Incorporated, Craighall Park
Lovius-Block,
Bloemfontein
For
First Respondent:
J Both SC (with him A
W Pullinger)
Instructed
by:
ODBB Incorporated, Sandton
McIntyre & Van
der Post, Bloemfontein
For
Second Respondent:
M M Rip SC (with him P Lourens)
Instructed
by:
Ivan Pauw & Partners, Pretoria
Phatshoane Henney
Attorneys, Bloemfontein
[1]
This has been prepared from the
plan annexure EDJ28 to the Municipality’s answering affidavit.
[2]
A provincial Ordinance of the
former province of Transvaal, the administration of which was
assigned to the province of Gauteng
with effect from 31 October
1994.
[3]
See the convoluted definition of
‘administrative action’ in s 1 of PAJA.
[4]
Joseph & others v City of
Johannesburg & others
[2009]
ZACC 30; 2010 (4) SA 55 (CC).
[5]
Para 27D.
[6]
Lagoon Beach Hotel (Pty) Ltd
v Lehane NO & others
[2015]
ZASCA 210
;
2016 (3) SA 143
(SCA) para 16.
[7]
Nkengana & another v
Schnetler & another
[2010]
ZASCA 64
;
[2011] 1 All SA 272
(SCA) para 10.
[8]
JDJ Properties CC &
another v Umngeni Local Municipality & another
[2012]
ZASCA 186; 2013 (2) SA 395 (SCA).
[9]
Para 21.
[10]
Para 32.
[11]
BEF (Pty) Ltd v Cape Town
Municipality &
others
1983 (2) SA
387 (C).
[12]
BEF
at 401E-F.
[13]
Koukoudis & another v
Abrina 1772 (Pty) Ltd & another
[2016] ZASCA 95
;
2016 (5) SA 352
(SCA) para 33.
[14]
Joseph
fn
4 para 46.
[15]
Compare further
Esterhuyse
v Jan Jooste Family Trust & another
1998
(4) SA 241
(C) at 253H-254B.
[16]
Abseq Properties (Pty) Ltd v
Maroun Square Shopping Centre (Pty) Ltd & others
27808/2011; [2012] ZAGPJHC 53 (2 March 2012).
[17]
Abseq Properties
para 23.
[18]
See
Zondi
v MEC for Traditional and Local Government Affairs
&
others
2005 (3) SA
589
(CC) para 101.
[19]
Administrator,
Transvaal, &others v Traub & others
[1989] ZASCA 90
;
1989
(4) SA 731
(A), in particular at 754G-762G.
[20]
President
of the Republic of South Africa v South African Rugby Football Union
& others
2000
(1) SA 1
(CC) para 216.
[21]
C Hoexter
Administrative
Law in South Africa
2
ed (2012) at 421.
[22]
Duncan v Minister of
Environmental Affairs and Tourism & another
[2009] ZASCA 168
;
2010
(6) SA 374
(SCA) para 15.
[23]
MEC for Health, Eastern Cape
& another v Kirland Investments (Pty) Ltd t/a Eye & Lazer
Institute
[2014] ZACC
6; 2014 (3) SA 481 (CC).
[24]
Para 82.
[25]
Joseph
fn 4 para 42.
[26]
C
Hoexter
Administrative
Law in South Africa
2 ed (2012) at 363.
[27]
Janse
van Rensburg NO & another v Minister of Trade and Industry &
another NNO
2001
(1) SA 29 (CC).
[28]
Para
24.
[29]
JDJ
Properties
fn
8 para 43; (See further in this regard
City
of Cape Town v Reader & others
[2008]
ZASCA 130
[2008] ZASCA 130
; ;
2009
(1) SA 555
(SCA) para 30.)