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[2019] ZAKZPHC 55
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Dlamini v Kwadukuza Local Municipality and Others (D12577/2016) [2019] ZAKZPHC 55 (26 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: D12577/2016
In
the matter between:
BHEKI
DENNIS DLAMINI
APPLICANT
and
KWADUKUZA LOCAL
MUNICIPALITY
FIRST RESPONDENT
MEC FOR CO-OPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS,
KWAZULU-NATAL
SECOND RESPONDENT
MEC FOR HUMAN SETTLEMENTS,
KWAZULU-NATAL
THIRD RESPONDENT
MINISTER OF HUMAN
SETTLEMENTS
FOURTH RESPONDENT
THE REGISTRAR OF DEEDS,
PIETERMARITZBURG
FIFTH RESPONDENT
MINISTER OF PUBLIC
WORKS
SIXTH RESPONDENT
ORDER
In the result the following order
shall issue:
(a)
The application is dismissed.
J
U D G M E N T
Delivered
on: 26 July 2019
Mnguni
J
[1]
This is an application to challenge the expropriation of the property
described as
ERF 749 Groutville, Registration Division FU, situated
within the area of jurisdiction of the first respondent in extent 3,
1351
(three comma one three five one) hectares (the property),
together with the compensation of R117 000 offered thereon. On 5
September 2002 the property was registered in the name of the
applicant. The property was acquired by his great grandfather who
could not obtain the title deed on the property because of the racial
laws of the time. Pursuant to an agreement reached between
the family
members the property was later transferred to him through the
Upgrading of Land Tenure Rights Act.
[1]
The applicant and his family currently reside on the property and
conduct all cultural functions thereon.
[2]
The issues arising in this application will be better understood
against the background
that follows. Towards the end of December 2013
the applicant heard rumours circulating around the Groutville area
that the property
had been expropriated by the first respondent. Upon
making enquiries from the first respondent’s officials he was
advised
that the property had been expropriated against payment of
R117 000 as compensation. The applicant requested the necessary
documents from the officials proving that the property had indeed
been expropriated and that he would be compensated. No documents
were
given to him.
[3]
In early 2014, he again visited the offices of the first respondent
to make enquiries.
On this occasion he was shown a map on which it
was indicated that his property was also affected by the
expropriation. In early
March 2014, he visited offices of the first
respondent’s attorneys and requested to be provided with
documents proving that
the property had been expropriated. The
applicant was referred back to the first respondent.
[4]
The applicant went back to the offices but he was not provided with
any documents
proving that his property had been expropriated. On 14
April 2014, he addressed a formal written complaint objecting to the
expropriation
process and the intended compensation of R117 000
offered. The first respondent ignored his objection. This prompted
the applicant
to make enquiries at the offices of the fifth
respondent where he discovered that the property had already then
been registered
in the name of the first respondent.
[5]
The foundation of the applicant’s objection was that the first
respondent did
not notify him of the expropriation of the property
nor did it furnish him with any documents before and after the
expropriation.
On 22 June 2014, he approached his attorneys for
assistance. He advised his attorneys that his property had been
expropriated and
of his dissatisfaction with the expropriation
process. He was advised to obtain relevant documents proving that his
property had
been expropriated.
[6]
On 3 July 2014, his attorneys addressed a letter to the first
respondent advising
that he was objecting to the expropriation both
in terms of procedure and in substance. The first respondent did not
respond to
the letter.
[7]
On 6 October 2014 he consulted with his attorneys who advised him to
obtain the relevant
documents relating to his expropriated property.
Pursuant to that advice he telephonically contacted the first
respondent’s
officials and requested the relevant documents but
was informed that the documents were not available. On 2 December
2015 his attorneys
informed him that they had managed to obtain the
expropriation notice.
[8]
Upon consultation with his attorneys he advised them that he was
never served with
nor had seen the expropriation notice before. On 14
March 2016 his attorneys addressed letters to the first and second
respondents
informing them that the applicant’s property was
unlawfully expropriated in that the procedure prescribed in the
Expropriation
Act
[2]
(the Act) was not followed. The letter demanded that the first
respondent should withdraw its decision to expropriate his property.
His attorneys alleged in the letter that the property was not
inspected for the purpose of determining its value. The expropriation
notice was not served in the manner prescribed by s 7(3) of the Act
in that the original or a true copy of the notice was not delivered
or tendered to be delivered or sent by registered post to the
applicant. The first respondent did not publish, once a week during
two consecutive weeks, in an Afrikaans and an English newspaper
circulating in Stanger the notice complying with the provisions
of
subsec 7(2) or containing the other documents. Further the
compensation of R117 000 was not just and equitable taking into
account the size of the property and that there are buildings
situated on the property. On 18 March 2016 his attorneys received
an
email from the second respondent advising that his property was
expropriated through the Housing Act
[3]
and that the matter would be referred to the fourth respondent for
the third respondent’s attention.
[9]
His attorneys alleged also that the first respondent did not take
into account the
requirements set out in s 25 (3) of the Constitution
when determining the amount of compensation. Importantly, his
attorneys requested
certain documents to be provided to them failing
which they threatened to approach the High Court for the appropriate
relief.
[10]
On the same day the applicant’s attorneys received a letter
from the then first respondent’s
attorneys, B.G. Singh and
Company, informing them that the first respondent had followed the
procedure as stipulated in the Act
in expropriating the applicant’s
property. In the said letter the first respondent’s attorneys
stated further that
the first respondent had convened no fewer than
four meetings with the community of Charlotte Dale in relation to the
expropriation
of their lands. The letter also indicated that the
notice of intention to expropriate was advertised in the Natal
Mercury on 2
February 2012 and that expropriation was formally
gazetted on 7 March 2013.
[11]
On 2 December 2016 the applicant launched this application contending
that the expropriation
of his property was unlawful, invalid and
should therefore be set aside, and that s 12 of the Act is
inconsistent with the Constitution
and invalid in so far as it does
not allow for matters listed in s 23(3) of the Constitution to be
taken into account in the determination
of compensation. The
applicant sought an order declaring s 12 of the Act unconstitutional.
The applicant also sought a mandamus
directing the fifth respondent
to cancel the transfer of the property to the first respondent and to
retransfer it to the applicant.
The applicant also sought an order,
to the extent necessary, that the 180 day period provided for in s
7(1) of the Promotion of
Administrative Justice Act
[4]
(PAJA) be extended. In the alternative the applicant sought an order
for the court to determine just and equitable compensation.
[12]
The application was initially opposed by the first and third
respondents. However, on 5 April
2017 the third respondent withdrew
its opposition. The second respondent filed its notice to abide the
decision of the court. Although
the fourth and fifth respondents were
cited as parties in the application these two respondents did not
participate in these proceedings
resulting in the first respondent
being the only party persisting in its opposition to the application.
[13]
In its opposing affidavit deposed to by its Municipal Manager
Nhlanhla Joshua Mdakane, the first
respondent states the following on
the issue of condonation. The applicant’s application for
condonation is framed in the
alternative, in the first instance he
asserts that the application for review was made timeously. In the
second instance, which
is the alternative, he asserts that if the
application was instituted outside the 180 period then the delay in
instituting the
application must be condoned. In both instances, the
application for condonation is buttressed on 18 March 2016 being the
date
on which the applicant became aware of the decision to
expropriate his property. This date is central to the application for
condonation.
[14]
The first respondent points out that even assuming 18 March 2016 to
be the date on which the
applicant became aware of the decision to
expropriate his property, the applicant had to launch the review
without unreasonable
delay and not later than 180 days thereafter. He
states that the founding affidavit was commissioned and the notice of
motion dated
on 1 December 2016 which is a delay of 258 days with no
explanation. He denies that the applicant first became aware of the
decision
to expropriate his property on 18 March 2016 because the
applicant concedes in para 27 of his founding affidavit that he was
advised
by an official of the first respondent that his property had
been expropriated and that he would be paid an amount of R117 000
as compensation in December 2013. He also states that even on his own
version the applicant was well aware at least as at 14 April
2014
being the day on which he addressed a letter to the first respondent
objecting to the expropriation of his property.
[15]
It is settled that a party seeking the extension of time must furnish
a full and reasonable explanation
for the delay which covers the
entire duration thereof. Absent any explanation at all for the delay
there is no basis for this
court to exercise its discretion in the
applicant’s favour.
[16]
He states that the applicant does not endeavour to account for a
delay of more than one year
during the period 6 October 2014 which is
the date on which the applicant alleges to have consulted with his
attorneys and contacted
the first respondent requesting the relevant
documents, and 2 December 2015 which is the next date on which the
applicant alleges
to have consulted with his attorneys.
[17]
On any of the applicant’s versions the 180 days envisaged in s
7(1) of PAJA had expired
when he launched this application. He
accordingly had to seek an order that the period be extended in terms
of s 9. In terms of
s 7(1):
‘
Any
proceedings for judicial review in term so of s 6(1) must be
instituted without unreasonable delay and no later than 180 days
after the date-
(a)
subject
to subsection (2)
(c)
,
on which any proceedings instituted in terms of internal remedies as
contemplated in subsection (2)
(a)
have been concluded; or
(b)
where
no such remedies exist, on which the person concerned was informed of
the administrative action, became aware of the action
and the reasons
for it or might reasonably have been expected to have become aware of
the action and the reasons.’
In
terms of s 9(1), the 180 day period may be extended for a fixed
period by agreement between the parties or, failing such agreement,
by a court on application. In terms of s 9(2) a court may grant an
application in terms of s 9(1) where the interests of justice
so
require.
[18]
The manner in which the discretion to extend the statutory time
period should be exercised in
respect of s 9(2) was described in
Camps Bay Ratepayers’
and Residents’ Association & another v Harrison &
another
as
follows
:
[5]
‘…
And
the question whether the interests of justice require the grant of
such extension depends on the facts and circumstances of
each case:
the party seeking it must furnish a full and reasonable explanation
for the delay which covers the entire duration thereof
and relevant
factors include the nature of the relief sought, the extent and cause
of the delay, its effect on the administration
of justice and other
litigants, the importance of the issue to be raised in the intended
proceedings and the prospects of success.’
(Footnote omitted)
In
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
, the Supreme
Court of Appeal said:
[6]
‘…
Before
the effluxion of 180 days, the first enquiry in applying s 7(1) is
still whether the delay (if any) was unreasonable. But
after the 180
day period the issue of unreasonableness is pre-determined by the
legislature; it is unreasonable
per
se
.
It follows that the court is only empowered to entertain the review
application if the interest of justice dictates an extension
in terms
of s 9. Absent such extension the court has no authority to entertain
the review application at all. Whether or not the
decision was
unlawful no longer matters. The decision has been “validated”
by the delay… That of course does
not mean that, after the
180-day period, an enquiry into the reasonableness of the applicant’s
conduct becomes entirely irrelevant.
Whether or not the delay was
unreasonable and, if so, the extent of that unreasonableness is still
a factor to be taken into account
in determining whether an extension
should be granted or not ….’
[19]
As it is apparent from para 36 of the founding affidavit and on his
own version the applicant
had knowledge of the reasons for the
expropriation on 2 December 2015 on receipt of the notice of
expropriation from his attorneys.
The applicant asserts that he
received information about the process followed during the
expropriation of his property and that
it was only then that he
identified perceived irregularities, and could make an informed
decision whether to review the decision
of the first respondent. The
applicant’s attorneys threatened legal proceedings against the
first respondent on 3 July 2014
to review the application alleging
then that he had not received notice of the expropriation which is
the same complaint he now
advances in this application.
[20]
Mr
Boulle
who appeared on behalf of the first respondent submitted that there
is no proper explanation why the threatened proceedings were
not
instituted then because the reasons for the expropriation were
irrelevant then and now as the complaint was and remains procedural
in that no notice was given. In correspondence exchanged on 14 March
2016 the first respondent’s then attorneys made its
stance
clear to the applicant’s attorneys. Oddly enough, almost two
years later, (from 03 July 2014) the applicant’s
attorneys
addressed a letter dated 14 March 2016 to the first respondent
demanding from the first respondent to withdraw the expropriation.
Aggrieved, the applicant had no choice but to apply to court to
review and set aside the decision because the first respondent
was
then functus officio.
[7]
Instead of simply instituting review proceedings as originally
threatened in July 2014, the applicants’ attorneys sent
unnecessary
correspondences and delayed until December 2016.
[21]
According to the applicant from December 2013, he requested the
documents and information from
the first respondent regarding the
expropriation, it was not given to him, and it was only given to him
in March 2016. For
a period of approximately two years and
three months and armed with the knowledge that his property had been
expropriated and that
transfer of ownership had taken place, the
applicant did nothing. Having carefully considered the explanation
proffered by the
applicant I am not persuaded that the delay in
bringing the review application has been explained in a manner which
is even remotely
satisfactory. In light of this finding I find it
unnecessary to entertain the review application.
[22]
A point in limine raised by the applicant was that the first
respondent’s answering affidavit
is defective and follows to be
regarded as pro non scripto because it did not comply with the
Regulations in terms of the Justices
of the Peace and Commissioners
of Oaths Act
[8]
which was published in GN R1258 in GG 3619 of 21 July 1972 (as
amended). Mr
Magardie
who appeared for the applicant contended that Ramnath Mahabeer
Bagwandas (Mr Bagwandas) who signed the affidavit as a commissioner
of oaths is employed as the Assistant Director of Human Settlements
with the first respondent and is listed as contact person/author
in a
memorandum requesting the first respondent’s resolution to
expropriate the property. He submitted that Mr Bagwandas
acted
irregularly in commissioning the answering affidavit because he
played a role in the administrative process resulting in
the
expropriation of the applicant’s property.
[23]
Not according to Mr
Boulle
. He submitted that reg 7(1) must be
read with reg 7(2) which provides that subreg (1) shall not apply to
an affidavit or a declaration
mentioned in the schedule. Item 2 of
the schedule reads that a ‘declaration taken by a commissioner
of oaths who is not an
attorney and whose only interest therein
arises out of his employment and in the course of his duty’.
[24]
In
Eskom Holdings Limited v
Nigrini N.O.
[9]
the court held that in fact it appears probable that the commissioner
of oaths is not an attorney and being the holder of an office
described above, has no interest in the present matter other than
that which arises from her employment and in the course of her
duty.
In the circumstances the point in limine has no substance and falls
to be rejected.
[25]
With regard to the complaint about the late filing of the answering
affidavit, it would make
no sense to uphold this argument and
disregard the affidavit especially because the applicant has already
furnished a reply thereto.
In any event, even if I am wrong in this
regard, this will not assist the applicant in light of the conclusion
that I have come
to in this application.
[26]
With regard to the issue of costs I am of the view that the
principles enunciated in
Biowatch
Trust v Registrar, Genetic Resources, & others
[10]
apply. In the circumstances, there should be no order as to costs.
Order
[27]
In the result the following order shall issue:
(a)
The application is dismissed.
Mnguni
J
Appearances
Heard:
19 February 2019
Delivered:
26 July 2019
For
the Applicant:
Mr S.G. Magardie
Assisted
by:
Mr L. K. Siyo and Mr M.Z.F Suleman
INSTRUCTED
BY:
Legal
Resources Centre
REF:
TM/20/2014
TEL:
031-301 75 72
For
the First Respondent:
Mr A. J. Boulle
INSTRUCTED
BY:
Buthelezi Mtshali Mzulwini Inc.
REF.:
KDM 1.2/ZM
TEL:
031-201 55 41
[1]
112 of 1991.
[2]
63 of 1975.
[3]
107 of 1997.
[4]
3 of 2000.
[5]
Camps Bay Ratepayers’ and
Residents’ Association & another v Harrison & another
[
2010]
2 All SA (SCA);
[2010] ZASCA 3
para 54.
[6]
Opposition to
Urban Tolling Alliance v South African National Roads Agency Limited
[2013] 4 All SA 639
(SCA);
[2013] ZASCA 148
para 26.
[7]
Matoto v Free State Gambling and
Liquor Authority & others
(987/2017)
[2018]
ZASCA 110
(12
September 2018) para 11.
[8]
16 of 1963.
[9]
Eskom Holdings Limited v Nigrini
N.O.
(4338/2015)
[2016]
ZAFSHC 27
(25 February 2016).
[10]
Biowatch Trust v Registrar,
Genetic Resources, & others
2009
(6) SA 232
;
2009 (10) BCLR 1014
(CC);
[2009] ZACC 14.