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[2019] ZANCHC 39
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VanHeerden v Appeal Authority IRO The Pixley Ka Seme District Municipality and Others (2849/2017) [2019] ZANCHC 39 (30 August 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case no:
2849/2017
Date
heard:
20-05-2019
Date
delivered:
30-08-2019
In
the matter between:
JOHANN
JONATHAN VANHEERDEN
Applicant
and
APPEAL
AUTHORITY IRO THE PIXLEY KA SEME DISTRICT
MUNICIPALITY
1
st
Respondent
DISTRICT
MUNICIPAL PLANNING TRIBUNAL: PIXLEY
KA
SEME DISTRICT
MUNICIPALITY
2
nd
Respondent
RENOSTERBERG
LOCAL MUNICIPALITY
3
rd
Respondent
JACOBUS
JOHANNES VAN NIEKERK N.O.
4
th
Respondent
JM
VAN NIEKERK N.O.
5
th
Respondent
DAWID
SMIT PRINSLOO N.O.
6
th
Respondent
Coram:
Williams, J
et
O'Brien, AJ
JUDGMENT
O'BRIEN
AJ
[1]
This
is an application to review and set aside a decision of the second
respondent that granted the fourth to sixth respondents'
application
for the removal of restrictive conditions contained in a title deed
of the Vanderkloof Extension 3 Township. Secondly;
the applicant
seeks to review and set aside a decision of the first respondent
dismissing the applicant's appeal in respect of
the second
respondent's approval of the application for the removal of
restrictive conditions.
[2]
The
first, second and third respondents are all public bodies whose
decisions are the subject of review in this matter and do not
oppose
the application.
[3]
The
fourth to sixth respondents ("the respondents") are cited
in their capacities as trustees of the Scheiding Trust ("the
trust") which is the owner of the property to which the
litigation pertains and is opposing the application. For convenience
sake, I shall refer to the applicants' property as
"the
property''
and the Trust property as
"the trust property''.
The background facts
[4]
The facts are mainly common cause or not
seriously disputed.
[5]
Both the applicant and the Trust are
registered owners of neighbouring properties located in the
Vanderkloof Township Extension
3. According to the applicant, the
area consists of a dam with a holiday resort, and attracts tourists
because of its surrounding
beauty and its location adjacent to the
Orange River. It is a place where tourists and holidaymakers relax
and enjoy themselves.
That is the reason why he bought the property
as a holiday home for him and his family to experience the
surrounding beauty. The
view of the dam from his property was a major
contributing factor which swayed him to buy the property.
[6]
The
applicant contends that the approval of the trust's building plan on
the trust property without the legitimate removal of restrictions
before such approval occasioned the dwelling that was erected on the
trust's property, not only to not comply with the restrictions
but to
physically encroach on his property.
[7]
Both
the properties contain restrictive conditions in their title deeds.
Furthermore, the properties are zoned as residential and
are subject
to scheme regulations adopted by the Renosterberg Municipality. On 4
July 2008, the trust applied for building plan
approval and the
simultaneous removal of building lines to the third respondent to
construct a dwelling. On each application form
for approval of the
building plans, the distance of the proposed buildings or structures
concerning the erf boundaries are as follows:
"(a) Distance from:
(i)
street boundary- 5,2m and 1,2m
(ii)
side boundaries
-
1,0m and 0,85m
(iii)
rear boundaries
-
1,94m."
The
third respondent approved the building plans on 18 July 2008.
[8]
The
distances indicated in the preceding paragraph, is in conflict with
the restrictive conditions contained in the title deed of
erf 361,
the relevant part of which reads as follows:
"C....
….
7.
Geen
gebou of struktuur of enige gedeelte daarvan, behalwe grensmure en
heinings mag behalwe met toestemming van die administrateur
nader as
5
meter
van die straatlyn wat 'n grens van hierdie erf uitmaak, asook nie 3
meter van die agtergrens of 1,5 meter van die sygrens
gemeen aan
enige aangrensende erf opgerig word nie, met dienverstande dat met
die toestemming van die p/aaslike owerheid-
(i)
'n
buitegebou wat uitsluitend vir die stalling van motorvoertuie gebruik
word en hoogstens 3 meter hoog is, gemeet van die vloer
van die
buitegebou tot die muurplaat daarvan, binne sodanige sy- en
agterruimtes opgerig mag word, en enige ander buitegebou van
dieselfde hoogte binne die agterruimte en syruimte opgerig mag word
vir 'n afstand van 12 meter gemeet van die agtergrens van die
erf,
met dienverstande dat in geval van 'n hoekerf, die afstand van 12
meter gemeet moet word van die punt wat die verste is van
die straat
at wat die erf begrens.
…."
It thus appears, in the application for the
approval granted, the trust, notwithstanding the restrictive
conditions, had permission
to build.
[9]
The
applicant further complains that the proposed building does not
comply with the restrictive conditions, as the walls are in
at least
in one instance, closer to the boundary. Lastly, the roof of the
dwelling of the trust property encroaches on his property.
He further
states that the proposed construction of the trust property will
partially infringe upon his property's view of the
dam.
[10] Because of the
approval of the building plans, it would create the untenable
position - according to
the applicant - that new property owners in
the area will also apply for the removal of building restrictions and
the removal of
the restrictive conditions from the title deeds which
will have an adverse impact on all the surrounding properties.
[11]
On 3 September 2008, the trust commenced
with the construction of a dwelling following the building plans
approved by the third
respondent.
[12]
During November 2008, the foundation of
the dwelling had nearly been completed. At that time, the applicant
was in Namibia and spoke
to the fourth respondent raising his
concerns. It was only in December 2008 that it came to his knowledge
that the building plans
were approved.
[13]
The applicant contacted the building
control officer of the third respondent informing him that the
building plans could not have
been approved because it was
inconsistent with the restrictive title conditions contained in the
title deed of the trust property
as well as the building line
applicable.
[14]
On 12 January 2009, the building control
officer inspected the trust property and ordered ll building
activities to cease.
[15]
Notwithstanding the steps taken by the
building control officer, the trust continued with construction work
on the trust property.
[16]
On 20 January 2009, the trust commenced
with the construction of a boundary wall between the trust property
and the applicant's
property. To safeguard the building lines and the
restrictive title conditions, the applicant appointed a land surveyor
to determine
the position of the structures constructed on the trust
property. This could not be done as the applicant as well as the
surveyor,
were threatened at the property.
[17]
In January 2009, the applicant
approached the High Court for relief to set aside the approval of the
building plans in respect of
the trust property and prohibiting the
trust from proceeding with construction. Again, the trust continued
with its building operations.
[18]
On 15 June 2009, the trust applied for
the removal of the building lines as contained in the title deed of
the trust property.
[19]
On 23 November 2009, the applicant,
through his attorneys, objected to the removal of the building line
restrictions.
[20]
On 31 May 2010, the third respondent
approved the trust's application for the removal or suspension or
amendment of the title deed
restrictions without providing the
applicant with an opportunity to lead evidence in support of his
objection against the application.
The minutes of the meeting
indicate that the applicant did not make submissions to the committee
dealing with the matter.
[21]
The applicant again approached the court
for relief and on 27 September 2010, the Court postponed the
application sine die. The
applicant could appeal the decision that
had granted the trust permission to remove the restrictive
conditions.
[22]
The applicant's appeal was set down for
hearing on 21 May 2012 before the Northern Cape Development Appeal
Tribunal. The tribunal
refused to deal with the appeal due to the
application being late and no request for condonation.
[23]
On 21 September 2012, the applicant
again approached the court for relief to review and set aside the
decision not to hear the appeal.
[24]
On 16 September 2013, the matter was
heard, and on 21 January 2014 the decision of the tribunal not to
deal with the merits of the
applicant's appeal, was reviewed and set
aside.
[25]
On 10 September 2015, the applicant
lodged an application for condonation explaining his delay to the
tribunal. On 24 February 2016,
the tribunal condoned the late filing
of his appeal and found that the approval of the building plans of
the trust and the subsequent
removal of the title deed conditions
were incorrect.
[26]
On 5 September 2016, the trust again
gave notice of an application for the removal of the restrictive
building line conditions contained
in the title deed of the property.
The application was in terms of the provisions of the Spatial
Planning and Land Use Management
Act, 16 of 2013 ("SPLUMA").
[27]
On 15 September 2016, the applicant
objected to the trust's application. On 3 November 2016, the trust
appointed MACROPLAN town
and regional planners to assist in its
application.
[28]
On 8 December 2016, the second
respondent approved the trust's application. It came to the attention
of the applicant on 10 January
2017. The second respondent resolved
that the removal of restrictions from the title deed of the trust
property and the departure
from the building line restrictions was
approved in terms of the Renosterberg Spatial Planning and Land Use
Management By-Laws.
According to the second respondent, the
application was in line with SPLUMA principles.
[29]
On 30 January 2017, a notice appeared in
the Provincial Gazette, whereby indicating terms of SPLUMA that the
second respondent has,
with effect from 8 December 2016, approved the
removal of restrictive title conditions in the title deed of the
trust property
to accommodate the proposed departure and the existing
residential house.
[30]
On 27 January 2017, the applicant
appealed in terms of SPLUMA to the first respondent.
[31]
On 12 July 2017, the first respondent
upheld the decision of the second respondent.
[32]
Because of the above, the applicant
instituted proceedings in this court on the following grounds: The
approval of the trust's building
plans which were in conflict with
the title deeds; the failure to follow the correct procedure and
taking into account irrelevant
considerations and ignoring relevant
factors.
[33]
In s33 of the Constitution of the
Republic of South Africa, 1996, the right to administrative action
that is lawful, reasonable
and procedurally fair, is guaranteed. To
give effect to the right above and the right to written reasons for
administrative action
as contemplated in s33 of the Constitution, the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) was enacted
and came into
operation on 30 November 2000. It is undisputed between
the parties that the actions of the officials in the employ of the
first,
second and third respondents about the removal of restrictions
in title deeds and approval of building plans are administrative.
[34]
Before dealing with the statutory
framework, it is apposite to mention what the purpose of restrictions
to title deeds is. In
Rossmaur
Mansions (Pty) Ltd v Briley Court (Pty) Ltd
1945
AD 217
at 228-229, the following was said:
"Where an application to establish
a
township has been granted subject to
a
requirement,
imposed on the recommendation of the Townships Board, that
restrictive conditions
as
to
the use of lots are to be included in the titles, such conditions,
when once included in the titles of the lot holders, if not
framed in
terms which expressly render them subject to future cancellation or
variation, must be regarded
as
conferring rights of
a
permanent nature, which cannot be
cancelled or varied either by the Townships Board itself, or by any
other authority, by virtue
of powers of "administration"
exercisable over the township concerned."
[35]
In
Malan
& Another v Ardconnel Investments (Pty) Ltd
1988
(2) SA 12
(A) at 40E - G, the Court stated the following:
"(l)t must be borne in mind that
a
town planning scheme does not
overrule registered restrictive conditions in title deeds. Moreover,
a
consent
by
a
local
authority in terms of
a
town
planning scheme does not per se authorise the user of an erf contrary
to its registered restrictive conditions.
See:
Ex
parte Nader Tuis (Edms) Bpk
1962
(1) SA 751
(T) at 7528
-
D;
Kleyn v Theron
1966
(3) SA 264
(T) at 272;
Ens/in
v Vereeniging Town Council
1976
(3) SA 443
(T) at 447B- D"
[36]
The
Malan decision was approved in
Van
Rensburg & Another NNO v Naidoo & Others NNO; Naidoo &
Others NNO v Van Rensburg NO
&
Others
2011
(4) SA 149
(SCA) at para [35].
[37]
In
Van Rensburg,
supra
at
para 37, the court stated that restrictive conditions are inserted
for the public benefit and in general terms to preserve the
essential
character of a township. The court cautioned that if landowners
across the length and breadth of South Africa, who presently
enjoy
the benefits of restrictive conditions, were to be told that their
rights, flowing from these conditions, could be removed
at the whim
of a repository of power, without hearing them or providing an
opportunity for them to object, they would rightly be
in a state of
shock. In summary, a restrictive condition attached to a title deed
gives the owner of that title certain rights
in respect thereof
unless it appears otherwise from the condition itself. Because of its
general enforcement to create unanimity,
proper procedures need to be
followed to remove, amend or vary those restrictive conditions.
Statutory framework
[38]
SPLUMA created a framework for spatial
planning and land use management in the Republic. It provides
inter
alia
for greater consistency and
uniformity in the application procedures and decision-making by
authorities responsible for land use
decisions and development
applications. One of its main features is the provision for the
establishment, functions and operations
of municipal planning
tribunals to provide for the facilitation and enforcement of land use
and development measures and matters
connected therewith.
[39]
In its preamble, it states that because
of various laws governing land use which gave rise to uncertainty
about the status of municipal
spatial planning and land use
management systems and procedures and which frustrates the
achievement of co-operative governance
and the promotion of public
interest, SPLUMA was enacted.
[40]
One of the objects of SPLUMA was to
provide for the development of principles, norms and standards about
spatial planning and land
management use.
[41]
Section 8(2) of SPLUMA reads as
follows:-
"(1)...
(2)
the norms and standards must
-
(a)
reflect the national policy,
national policy priorities and programmes relating to land use
management and land development;
(b)
promote social inclusion, spatial
equity, desirable settlement patterns, rural revitalisation, urban
regeneration and sustainable
development;
(c)
ensure that land development and
land use management processes, including applications, procedures and
timeframes are efficient
and effective;
(d)
…."
[42]
Chapter 6 of SPLUMA deals with local
land use planning. Section 33 of SPLUMA provides that all land
development applications must
be submitted to a municipality as the
authority of the first instance. Section 35 provides for the
establishment of municipal planning
tribunals and s36 deals with the
composition of such a tribunal.
[43]
Section 41(1) of SPLUMA provides as
follows:-
"(1)
the Municipal Planning Tribunal, upon application in the prescribed
manner,
may-
(a)
change the use, form or
function of land; or
(b)
remove, amend or suspend a
restrictive condition;
(2)
….”
[44]
Section 42(1)(c) of SPLUMA stipulates
that account must be taken of the public interest; the constitutional
transformation imperatives
and the related duties of the State; the
facts and circumstances relevant to the application; the respective
rights and obligations
of all those affected; the state and impact of
engineering services, social infrastructure and open space
requirements and any
factor that may be prescribed.
[45]
Regarding restrictive conditions, SPLUMA
provides as follows:
"47(1)
A restrictive condition may, with the approval of
a
municipal planning tribunal and in
the prescribed manner, be removed, amended or suspended.
(2)
A
removal, amendment or suspension of
a
restrictive condition contemplated in
ss1 (must, in the absence of the contemplated written consent, be
effected
-
(a)
in accordance with s25 of the
Constitution and this Act;
(b)
with due regard to the respective
rights of all those affected, and to the public interest; and
(c)
in the prescribed manner,
if such removal, amendment or suspension
will deprive any person of property as contemplated in s25 of the
Constitution."
[46]
Subsection
5 of s47 of SPLUMA stipulates that an applicant at whose instance a
restrictive condition is removed, amended or suspended
in terms of
the Act, must within the prescribed period and in the prescribed
manner, apply to the Registrar of Deeds concerned,
for the
appropriate recording of such removal, amendment or suspension, and
the Registrar of Deeds must in the prescribed manner
record such
removal, amendment or suspension.
[47]
SPLUMA
repealed the whole of the Removal of Restrictions Act 84 of 1967.
[48]
To
give effect to SPLUMA, the third respondent enacted the Renosterberg
By law on Municipal Land Use Planning, which came into
operation
on 19 October 2015. In terms of Chapter II headed "Development
Management", reference is made to land development
requiring
approval. Section 3(h) of the by-law reads as follows:
"(3)(h) The municipality
must cause
a
notice
of an application in terms of ss1 to be served on
-
(a)
All organs of state that may have
an interest in the title deed restriction;
(b)
Every holder of
a
bond encumbering the land;
(c)
A
person whose rights or legitimate expectations will be materially and
adversely affected by the approval of the application; and
(d)
All
persons mentioned in the title deed for whose benefit the restrictive
condition applies."
"The removal, amendment or suspension
of
a
restrictive
title condition relating to the density of residential development on
a
specific
erf where the residential development on
a
specific erf is regulated by
a
land-use scheme in operation."
[49]
Section 15 of the by-law states the
following:
"(1) The
Municipal Planning Tribunal may upon application amend or remove
a
restrictive condition contained in
the conditions of establishment of
a
township, in
a
title deed relating to land or those
conditions contained in
a
land-use
management scheme administered by it."
[50]
Section
41, 42 and 47 must be read in conjunction with the applicable
provisions of the by-law.
Grounds
of review
The
building plans:
[51]
It
is common ground that the building plans concerning erf 361 which the
municipality approved in favour of the respondents conflicted
with
the restrictive conditions applicable to the title deed. Furthermore,
at the time of approval of the plans, the restrictive
conditions had
not been removed. It was only on 15 June 2009 when the trust applied
for the removal of the building lines contained
in the title deed of
the trust property. On 31 May 2010, the third respondent approved the
removal of the title deed restrictions.
[52]
After
following the due process, the applicant was eventually successful on
24 February 2016 when the second respondent reversed
the decision
taken on 31 May 2010 by the third respondent. The third respondent
found the decision made by the second respondent
to remove the
restrictive title conditions as incorrect.
[53]
Undeterred
by the above finding the trust filed another application in respect
of SPLUMA for the removal of the title. Notwithstanding
the
applicant's objection, the trust's application was approved. The
departure from the building line restrictions was passed under
the
by-law of the third respondent. The applicant appealed the second and
third respondent's decision with the first respondent.
The latter, on
12 July 2011 upheld the decision of the second defendant.
[54]
Mr
Snellenburg, appearing for the respondents, contended that it was
always the applicant's case to have an unobstructed view of
the dam.
Despite knowing, so the argument goes, since November 2008 of the
ongoing construction, the applicant took no steps to
interdict the
works.
[55]
The
argument in the last sentence of the preceding paragraph is not
correct. It is not in dispute that the applicant became aware
in
September 2008 of the construction of a dwelling on the premises.
After speaking to the first respondent in November 2008 and
visiting
the premises in December 2008, the applicant became aware of the
extent of the construction.
[56]
The
applicant approached the building control officer who on his part,
stopped building activities. The trust continued with the
construction work despite being ordered not to. What this shows is
that the trust was prepared to disobey an instruction from an
official. The argument that the applicant took no steps falls flat.
[57]
Relying
on the
Oudekraal
[1]
principle, the trust argued that
even if the approval of the building plans was not preceded by an
application for the removal of
the title deed restriction, it
nevertheless remains valid until set aside by a court.
[58]
As I understand the Oudekraal principle,
the court explained that it is not whether the initial act was valid
but rather whether
its substantive validity was a necessary
precondition for the validity of sequential acts. If the validity of
a consequent act
is dependent on no more than the factual existence
of the initial act, then the consequent act will have legal effect
for so long
as the initial act is not set aside by a competent court.
[59]
The
approval of the building plans by the third respondent was since its
approval a nullity. Its validity was a necessary precondition
for the
validity of sequential acts. For it could not be approved unless an
application to remove restrictive conditions was successful.
In
setting aside the first removal of the restrictive title deed
condition, the third respondent accepted that it had acted
unlawfully.
[60]
The
argument by the respondent that the pre-approval of the building
plans is irrelevant cannot be sustained. How can it be that
approval
of building plans without the removal of the restrictions in the
title deed conforms to legality? It is common cause that
the trust's
building encroaches on the applicant's property. To describe it as
de
minimus,
as done by the trust, is
absurd having regard to the objectives of SPLUMA.
The
decision of the second respondent on 13 December 2016
[61]
The respondents, on 5 September 2016,
gave notice of a further application for the removal of the
restrictive building conditions.
It will be recalled that at that
stage, the dwelling on the respondents' property had been completed.
This was in complete disregard
of the unlawful approval of the
building plans. This is an indication of the respondents' attitude to
continue with the execution
of the building knowing of its
illegality. This is the type of conduct that the trust has shown ever
since becoming aware of the
defective building plans.
[62]
But the respondents blame the
architects. It is unconscionable that the architects and the
respondent can rely on ignorance, and
when reminded continue with
building operations. Be that as it may!
[63]
The second respondent approved the
trust's application. According to them, the removal of restrictions
from the title deed and departure
from the building line restrictions
was done on the following basis:
(a)
it
was in line with SPLUMA principles;
(b)
a
site inspection showed that the objection was not a true reflection
of what is on the ground - whatever that may mean;
(c)
the
planning tribunal may condone an error in the procedure if such
condonation does not have a material adverse effect on, or
unreasonably prejudices any party.
[64]
The
applicant then appealed to the first respondent. That appeal was
unsuccessful on 12 July 2017.
[65]
It
is this decision by the second respondent and confirmed by the first
respondent, which forms the primary basis for a review application.
[66]
One
of the objects of SPLUMA is to provide for development principles,
norms, and standards. Chapter 2 of SPLUMA sets out the development
principles norms and standards when organs of state should abide in
the implementation of legislation regulating the use and development
of land. In terms of s8 of SPLUMA, the Minister must, after
consultation with organs of State in the provincial and local spheres
of government, prescribe norms and standards for land use management
and land development that are consistent with this Act, the
Promotion
of Administrative Justice Act and
the Intergovernmental Relations
Framework Act. One of the key objectives is the norms and standards
in the promotion of social
inclusion, spatial equity, desirable
settlement patterns, rural revitalisation, urban regeneration and
sustainable development.
The norms and standards must also ensure
that land development and land use management processes, including
applications, procedures
and timeframes are efficient and effective.
[67]
In
deciding an application - like the removal of restrictive title
conditions - a municipal planning tribunal like the second respondent
should be guided by the developmental principles set out in chapter
2; make a decision which is consistent with the norms and standards
and must take into account the public interest; the facts and
circumstances relevant to the application; the respective rights
and
obligations of all those affected.
[68]
In
dealing with such an application a municipality must cause a notice
of the application to be served on all organs of State that
may have
an interest in the title deed restriction; every holder of a bond
encumbering the land; a person whose rights or legitimate
expectations will be materially and adversely affected by the
approval of the application; and all persons mentioned in the title
deed who benefit from the restrictive conditions. The by-law further
provides that any application that will materially affect
the public
interest or the interest of the community, if approved, must cause
notice to be given in the media.
[69]
Section
28 of the by-law states that notice of an application must be served
on each person whose rights may be adversely affected
by the approval
of the application. The section also sets out how the notice must be
served. The by law also provides for
the content of the notice
in terms of s29. It sets out in a peremptory manner the information
that must be contained in the notice.
Of particular importance,
concerning this case, is that it must provide an invitation to
members of the public to submit written
comments, objections, and all
representations, together with the reasons therefor in respect of the
application.
[70]
The
applicant submits that on a procedural basis, the respondents did not
comply with the provisions of s28 and s29 of the by-law.
He also
contends that the notice required was not given to all the owners
within the Vanderkloof Extension 3 Township. It was only
him who
received a notification.
[71]
The
respondents aver that having regard to the litigation against the
trust, it has become public knowledge that the applicant is
the only
person who has ever filed an objection. According to the respondents,
statutory provisions should always be interpreted
purposefully in its
relevant contextual setting in accordance with what the Constitution
demands. Thus, the provisions of SPLUMA
and the by-law must be
interpreted by taking into account the substance of what the Act
seeks to achieve. It was contended that
there was substantive
compliance with the notice requirement which did not mislead anybody.
Furthermore, the premises were identified
correctly and as such, the
notice adhered to the requirements.
[72]
In my view, the respondents' argument is
against the objectives of SPLUMA. The argument is contrary to what
the Supreme Court of
Appeal stated in
Van
Rensburg N.O. v Naidoo N.O.; Naidoo N.O. v Van Rensburg N.O. supra
where it was held at para [37]:
"Restrictive conditions of the kind in
question enure for the benefit of all other erven in a township,
unless there are indications
to the contrary. They are inserted for
the public benefit, and in general terms, to preserve the essential
character of a township.
If land owners across the length and breadth
of South Africa, who presently enjoy the benefits of restrictive
conditions, were
to be told that their rights, flowing from these
conditions, could be removed at the whim of a repository of power,
without hearing
them or providing an opportunity for them to object,
they would rightly be in
a
state
of shock."
[73]
To
suggest the cause of the ongoing litigation and the fact that the
applicant was the only one, who has ever filed an objection,
is
fallacious. It defeats the object of SPLUMA and the by-law in
preventing other owners in the development from having their case
heard if no notice is given to them. The whole purpose of the notice
is to provide the owners of the erven an opportunity to object.
[74] By failing to
inform all other owners of erven in the development, it falls short
of the provisions
of s29 of SPLUMA That failure was unlawful and
irrational.
[75]
The
respondents contend that there is no evidence that the other erven in
the development had the same restrictive title conditions
that the
applicant has. They submit that it was not proven that those
conditions apply to other owners. In the answering affidavit,
the
respondents state that it is not clear what the source of the
applicant's knowledge is regarding the facts - that is whether
the
other erven is possessed of the same title deed restrictions. This
argument must be rejected for two reasons. Firstly, the
respondents
did not deny the applicant's contention and secondly, the
respondents, and by extension, the trust's erven contains
the same
title restrictive conditions.
[76]
The
applicant has shown that the first and second respondents in failing
to comply with the provisions of s28 of SPLUMA acted unlawfully
and
irrationally.
[77] The applicant
further submits that the contents of the notice fall short of the
provisions of s29 of
SPLUMA. In this regard, he refers to the
peremptory nature of s29. According to him, the notice does not give
the full names of
the applicant; it does not state the physical
address of the subject property; the notice does not indicate the
intent and purpose
of the application; the notice does not invite
comments and representations, and no reference is made to the third
respondent's
by-law in terms of which the notice was published.
[78] In opposition to
this, the respondents averred that the matter is public knowledge and
sufficient notice
was given therefor the provisions of the Act had
been satisfied.
[79] I do not agree
with the applicant. A perusal of the notice shows the physical
address of the property;
indeed; the notice states the intent and
purpose of the application and invites comments and objections. Thus,
the applicant has
not shown that the respondents had failed to comply
with the provisions of s29 of SPLUMA.
[80] The applicant
contends that the decisions of the first and second respondents are
not rationally connected
to the information before them or rationally
connected to the reasons given for their decisions.
[81] Section 5(3) of
PAJA reads as follows:
"If the administrator fails to furnish
adequate reasons for an administrative action it must, subject to ss4
and in the absence
of proof to the contrary, be presumed to in any
proceedings for judicial review that the administrative action was
taken without
good reason."
[82] In
Refugee
Appeal Board and Others v Mukungubila,
2019 (3) SA 141
(SCA) at
[para 26) the Court remarked as follows:
"The RSDO's rejection of Mr
Mukungubila's asylum application, which constitutes administrative
action, and must be lawful,
reasonable and procedurally fair, should
have been accompanied by reasons satisfying the requirement of
rationality. Those reasons
when read in context, should have been
intelligible and conveyed why the RSDO thought that his decision was
justified. They should
have consisted of more than mere conclusions,
and should have contained, in addition to the relevant facts and law,
the reasoning
processes leading to those conclusions."
[83] In my judgement,
the second respondent failed to give adequate reasons for approving
the respondents'
application. If the Court has regard to what is
stated under the justification of the approval, the information is
sketchy. Firstly
it is noted that the application is in line with the
SPLUMA principles. Nothing is said whether there was compliance with
what
is set out in SPLUMA and the by-law regarding the removal of
restrictions of title deeds. Moreover, it states that the site
inspection
obtained evidence that the objection was not an entirely
accurate reflection of what is on the ground. Nowhere is it indicated
what evidence was taken into consideration and what the phrase
"an
entirely true reflection of what is on the ground'
means. If the
second respondent is of the view that a designated employee may rely
on his initiative or application - in this case,
for the approval of
the building plans and the removal of the title deed restrictions ex
post facto - that employee can condone
such error and procedure, the
second respondent clearly acted irrationally because the approval of
the building lines and removal
of the title deed restrictions had a
material adverse effect on the applicant and unreasonably prejudiced
his position.
[84] The first
respondent in merely rubberstamping the decision of the second
respondent without further
ado acted unlawfully and irrationally.
[85] The applicant
requested this court to substitute the decisions of the first and
second ·respondents.
The applicant asserts that the court is
in as good a position as the administrator to make a decision.
Relying on
Trencan Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd and Another
2015 (5) SA 245
(CC)
at paragraph 47 counsel submitted the process had run its course and
has been fully considered by the first and second respondents.
He
further submitted that the application for removal of restrictions is
patently flawed and cannot stand.
[86]
The respondents object to the request
for a substitution. Relying on
Gavric
v Refugee Status Determination Officer, Cape Town and Others,
2019
(1) SA 21
(CC) at paragraph 147, they submit that a court has a
discretion in terms of s8(1)(c) of PAJA to make a substitution order.
But
to exercise that discretion, exceptional circumstances need to be
present which must have unusual or extraordinary features which
is
absent in this case.
[87]
This Court does not possess the
specialised knowledge needed for the approval of building plans. Nor
does this court know the precise
measurement of the encroachment.
These are technical issues which the parties need to settle with the
help of expert evidence.
Also, the rights of other erven holders need
to be considered which requires public participation. After that the
public interest
must be determined. Accordingly the applicant has not
established exceptional circumstances.
[88]
This court is not dealing with the
merits of the dispute. The applicant did not request a demolition
order. Having regard to s51
of the by-law and the disputes regarding
views and encroachment - which are technical issues - in the
circumstances, a demolition
would not do.
[89]
I make the following order:
1.
The
decision of the second respondent dated 8 December 2016 and approved
by the first respondent on 12 July 2017 for the removal
of the
restrictions from the title deed T37674/2008 in respect of Erf 361,
Vanderkloof Township Extension 3 as well as the departure
from
building line restrictions in respect of residential zone in terms of
s15(1) of the Renosterberg Spatial Planning and Land
Use Management
By-law 2015, is hereby reviewed and set aside.
2.
The
decision by the first respondent on 12 July 2017 in terms of which
the first respondent dismissed the applicant's internal appeal
against the decision of the second respondent of 8 December 2016 is
hereby reviewed and set aside.
3.
The
matter is referred back to the second respondent for reconsideration.
4.
The
fourth, fifth and sixth respondents to pay the costs of the
applicant, jointly and severally, the one paying the other to be
absolved.
O'BRIEN
AJ
Northern
Cape High Court, Kimberley
I
concur.
WILLIAMS,
J
Northern
Cape High Court, Kimberley
For the Applicant:
Adv. J. Moller
Instructed by:
Engelsman, Magabane Inc.
For
the Fourth to Sixth Respondents:
Adv. Snellenburg SC
Instructed
by:
Haarhoffs Inc.
[1]
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003)
[2004] ZASCA 48
;
[2004] 3 All SA 1
(SCA) (28 May 2004)