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[2017] ZAFSHC 45
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Life Healthcare Group (Pty) Ltd v Acting Municipal Manager: Mangaung Metropolitan Municipality and Others (5481/2016) [2017] ZAFSHC 45 (16 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Case
number: 5481/2016
In
the matter between:
LIFE
HEALTHCARE GROUP (PTY)
LTD
Applicant
and
ACTING
MUNICIPAL MANAGER: MANGAUNG
METROPOLITAN
MUNICIPALITY
1st
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
2nd Respondent
THE
CHAIRPERSON: LAND USE ADVISORY
BOARD,
FREE STATE PROVINCE
3rd Respondent
MEC:
CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS, FREE STATE
PROVINCE
4th
Respondent
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
23
FEBRUARY 2017
DELIVERED
ON:
16
MARCH 2017
I
INTRODUCTION
[1]
This case is a typical example of the inability of an organ of State,
acting through recalcitrant senior employees, to deal
with pressing
issues swiftly and effectively. In
casu
we have an entity that is prepared to invest millions of rands in
Bloemfontein. If the project comes to fruition it will
not only
benefit the community, but the Mangaung Metropolitan Municipality
will earn much needed income in the form of property
taxes.
Notwithstanding the expiry of four years no progress has been made to
obtain authority for the intended development.
II
THE
PARTIES
[2]
Applicant is Life Healthcare Group (Pty) Ltd. Adv J S
Rautenbach appeared before me on behalf of applicant. Applicant
conducts the business of an accredited acute physical and neuro
rehabilitation hospital, being the only such hospital in the Free
State and Northern Cape provinces.
[3]
The Acting Municipal Manager of Mangaung Metropolitan Municipality
has been cited as the first respondent and the said municipality
(herein later referred to as “the Municipality”) as the
second respondent. These two parties were represented
by Adv T
L Manye.
[4]
The Chairperson of the Land Use Advisory Board for the Free State
Province and the MEC: Co-operative Governance and Traditional
Affairs, Free State Province have been cited as third and fourth
respondents respectively. Third and fourth respondents were
not
represented at the hearing before me, probably as no relief is
claimed against them at this stage of the proceedings.
III
THE
RELIEF SOUGHT
[5]
The notice of motion reads as follows:
“
1.
That the
Second
Respondent
is declared to be in contempt of the Court order under case number
1668/2016 granted on 6
th
Augusts 2015 by not complying with the terms of prayer 2 thereof.
2.
That the
First
Respondent
is ordered to appear before the Honourable Court on a date to be
determined by the Court to provide reasons, if any, why the following
order should not be made:
2.1
That the
Second Respondent
is guilty of contempt of Court;
2.2
That the
First Respondent
, as the Acting Municipal Manager of
the Second Respondent be sentenced to direct imprisonment of such
fine as the Court may determine
and/or suspension of the sentence to
be determined by the Honourable Court subject thereto:
2.2.1 That
the
First and Second Respondents
are not found guilty of
contempt of a Court order again within the period of suspension; and
2.2.2 That
the
Second Respondent
provide a new special use zoning number,
the objections, representations or proposed amendments as well as
whether they support
and approve or disapprove of the Applicant’s
application for rezoning to the Third and Fourth Respondents within
seven (7)
days of date of this order and to inform the Applicant
immediately of the decision and the special use number.
3.2
That the Second Respondent pay the cost of the application on the
scale as between attorney and
own client.
3.
…
4.
…”
(emphasis
added)
(The
relief claimed in paragraphs 3 and 4 are not relevant at this stage
in so far as no order is sought against third and fourth
respondents
now, save in so far as I have been requested to postpone the matter
in respect of this part of the application to the
15
th
of
June 2017.)
IV
BACKGROUND
[6]
The applicant’s ten year lease agreement in respect of the
premises rented at all material times expired at the end of
May 2016,
although it had an option to renew the lease for a further period of
ten years. I have no knowledge of the present
status of this
lease agreement, but it is apparent from the aforesaid application
that the facilities at the leased premises have
become inadequate,
that no other building in Bloemfontein could accommodate the hospital
and that it was deemed necessary to build
a specialised facility on
the immovable property obtained for that purpose.
[7]
Applicant purchased the immovable property known as Plot 13, Spitskop
Smallholdings in the district of Bloemfontein (“the
property”)
which is situated to the west of the city centre for the purpose of
constructing its intended new hospital.
The zoning of the
property must be changed which
inter
alia
necessitated a composite application, including
inter
alia
a township establishment application. Due to the delay that has
been caused, notwithstanding the issue of application 1668/2015
on 8
April 2015, the grant of a detailed order by agreement on 6 August
2015 and a contempt of court application issued under application
5481/2016, i.e. the application presently pending before me, nothing
further has transpired and consequently applicant could not
start
with the construction of the new hospital which it anticipated to be
in operation during the first half of 2016.
[8]
The following orders were issued on 6 August 2015 in application
1668/2015 by agreement between the parties:
“
1.
The
respondents
are directed, subject to paragraph 2 and 3, to proceed with the
proceedings prescribed in paragraph 10 of the founding affidavit
relating to Plot [...], S. S. H., district Bloemfontein, Province of
the Free State in extent 4,5749 hectares in terms of Deed
of Transfer
no. T9034/2013 (“the property”) including:
1.1
the
amendment of the detail development plan for portions of Spitskop and
Kwaggafontein (May 1999) to incorporate a proposed new
Special Use
Zoning (“Parking” and “Street”).
1.2
In terms of section 2 of the Removal of Restrictions Act, 87 of 1967
for the removal of certain restrictive
title deed conditions, in the
Deed of Transfer of the property.
1.3
In terms of section 20 of the Ordinance for the subdivision of the
property into five portions.
1.4
In terms of section 30 of the Ordinance for the amendment of the
Bainsvlei Town Planning Scheme no. 1 of 1984
by the insertion of the
proposed new Special Use Zoning (“the number of the new Special
Use Zoning to be determined by the
third respondent).
1.5
In terms of section 8 of the Ordinance for Land Development (township
establishment) on the property with
the zoning as indicated on Layout
Plan 40646 MD52 and Rezoning Schedule appended to the application on
the property.
1.6
In terms of section 2 of the Removal of Restrictions Act, 84 of 1967
for the rezoning of the township establishment
area of the property
from “Holdings” to the new proposed Special Use zoning
(private hospital (Proposed Remainder):
Parking (Proposed Subdivision
1 and Proposed Subdivision 3) and “Street” (Proposed
Subdivision 2 and Proposed Subdivision
4)).
2.
The
third
respondent
is directed to lodge objections to or representations concerning the
application in writing with the second respondent within 60
days from
date hereof as well as whether they approve of the amendment in terms
of section 30 of the Ordinance and the number of
the new special use
(zoning).
3.
The
first
and second respondents
is and are hereby directed to do everything necessary and prescribed
by law, as far as it is within their control, as soon as possible
but
not later than within 180 days from of receipt of the inputs by the
third respondent referred to in paragraph 2 of this order.
4.
The parties agree to an unrestricted open communication channel
between the parties represented
as follows:
4.1
The applicant by Mr WJJ Spangenberg, attorney of the applicant,
Spangenberg Zietsman & Bloem Attorneys,
landline [...], cell no.
[...].
4.2
The first and second respondents by Dr S Motingoe, Director Legal
Services, Department of Cooperative Governance.
4.3
The third respondent by Mr Sejane Sempe, Litigation Manager Mangaung
Metropolitan Council, landline [...]
and cell number [...] email
[...]
5.
The application is postponed sine die.
6.
The applicant is granted the right to at any stage amplify this
application by filing supplementary
affidavits (if necessary) and to
enrol the matter in accordance with the rules of this court.
7.
The costs of this matter to stand over.”
(emphasis
added)
V
CONFUSING
ORDER
[9]
The orders of 6 August 2015 are confusing in several instances.
For a reason unknown to me the Mangaung Metropolitan Municipality
(“the Municipality”) was not cited as a respondent in
application 1668/2015 in the heading of the papers, although
it is
apparent from paragraph 5 of the founding affidavit that the
applicant intended to refer to the Municipality as the third
respondent. Unfortunately this error was repeated in the court
order issued by agreement. In terms of the order as
it reads at
this stage, the council of the Municipality was required to act in
accordance with paragraph 2 thereof.
[10]
Municipal councils are dealt with in the
Local Government: Municipal
Structures Act, 117 of 1998
. Each municipality must have a
municipal council consisting of a number of councillors. A
municipal manager as head
of administration of a municipality is
responsible and accountable for various matters as set out in s 55 of
the Local Government:
Municipal Systems Act, 32 of 2000 (‘the
Systems Act”), but subject to the policy directions of the
municipal council.
Applicant never applied for the amendment of
the court order and although one should be wary of being too
technical, there can
be no doubt that neither the Municipality, nor
its Municipal Manager was ordered to do anything in terms of this
order.
[11]
Another aspect that struck my attention from the very first moment
when I received the file in this matter is the reference
to the
Removal of Restrictions Act, 87 of 1967 as it appears on more than
one occasion in paragraph 1 of the order. By the
time the order
was made, this Act had been repealed by the Spatial Planning and Land
Use Management Act, 16 of 2003, i.e on 1 July
2015. I shall
deal with Mr Rautenbach’s arguments
infra
,
but merely wish to state at this stage that I find it inappropriate
that litigants can be ordered to comply with provisions of
a repealed
Act in the absence of relevant transitional arrangements.
[12]
The pertinent problem facing applicant at this stage of the
proceedings is the vagueness of paragraph 2 of the court order.
In terms thereof third respondent, i.e. the council of the
Municipality which is not even a party in the contempt of court
application,
was directed to do certain things. Furthermore the
phrase at the end of the paragraph to wit:
“
and
a number of a special use (zoning)”
does
not contain a verb and appears to be meaningless. In terms of
this paragraph objections or representations must be lodged
and the
amendment in terms of section 30 of the Ordinance must be approved
(or not), but nothing further is said in respect of
the number of the
new special use (zoning).
[13]
Mr Rautenbach argued that the process in these kind of applications
had been fully explained in the papers and the Municipality
knew that
it had to present a number for a new special use (zoning) to enable
the officials of the Land Use Advisory Board to advertise
the
application and to prepare same for consideration by the particular
Board. The order is not clear for two reasons, i.e.
the council
of the Municipality is directed to do something and not the
Municipality or anyone of its employees, and secondly,
the paragraph
is quiet as to what has to be done with the
“
number
of the special use (zoning)”
.
VI
VAGUE
AND CONFUSING NOTICE OF MOTION
[14]
The applicant seeks an order in terms whereof the second respondent
in this application, the Municipality is declared to be
in contempt
of court for failing to comply with the court order in application
1668/2015. No declaratory order is sought
against the first
respondent, i.e. the Acting Municipal Manager. As indicated,
the Municipality was not ordered to comply
with paragraph 2 of the
order in application 1668/2015, but its council.
[15]
In paragraph 2 of the notice of motion I am requested to order the
Acting Municipal Manager to appear before me on a date to
be
determined to provide reasons why second respondent (the
Municipality) is not guilty of contempt of court and why he as Acting
Municipal Manager should not
“
be
sentenced to direct imprisonment or such fine as the Court may
determine and/or suspension of the sentence to be determined by
the
Honourable Court …”
.
It does not make sense that a further opportunity again be
given to provide reasons why second respondent should not be
convicted of contempt of court, bearing in mind paragraph 1 of the
notice of motion where such declaratory order is already sought.
Mr Rautenbach agreed that such order should not be made.
[16]
I am also requested to sentence the Acting Municipal Manager to
direct imprisonment or to payment of a fine without convicting
him of
contempt of court. Clearly this does not make sense. Mr
Rautenbach apparently had in mind that the Acting Municipal
Manager
should be sentenced in his official capacity as the head of the
Municipality.
[17]
It is apposite to consider the situation in criminal law.
Section 332
of the
Criminal Procedure Act, 51 of 1977
, deals with the
prosecution of corporations and members of associations. The
relevant part of
s 332(2)
reads as follows:
“
(2)
In any prosecution against a corporate body, a director
or servant of that corporate body shall be cited, as representative
of that corporate body, as the offender, and thereupon the person so
cited may, as such representative, be dealt with as if he
were the
person accused of having committed the offence in question:
Provided that-
(a) …
(b) …
(c) if the
said person, as representing the corporate body, is convicted, the
court convicting him shall not impose
upon him in his representative
capacity any punishment, whether direct or as an alternative, other
than a fine, even if the relevant
law makes no provision for the
imposition of a fine in respect of the offence in question, and such
fine shall be payable by the
corporate body and may be recovered by
attachment and sale of property of the corporate body in terms of
section 288
;
(d)
...”
[18]
Section 332(5)
reads as follows:
“
When
an offence has been committed, whether by the performance of any act
or by the failure to perform any act, for which any corporate
body is
or was liable to prosecution, any person who was, at the time of the
commission of the offence, a director or servant of
the corporate
body shall be deemed to be guilty of the said offence, unless it is
proved that he did not take part in the commission
of the offence and
that he could not have prevented it, and shall be liable to
prosecution therefor, either jointly with the corporate
body or apart
therefrom, and shall on conviction be personally liable to punishment
therefor.”
[19]
What is apparent from the notice of motion, read with
s 332
of the
Criminal Procedure Act, is
that applicant does not seek the
conviction of the Acting Municipal Manager in his representative
capacity as the accounting officer
of the Municipality.
Contrary to the provisions of the
Criminal Procedure Act, the
conviction of the Municipality as an entity, not being represented by
a person such as the Acting Municipal Manager, is sought.
Furthermore applicant seeks an order in terms whereof the Acting
Municipal Manager personally be sentenced (without having been
convicted) to direct imprisonment which is clearly uncalled for in
the absence of a finding in respect of his personal guilt based
on
the provisions of
s 332(5)
of the
Criminal Procedure Act.
VII
THE
CONTEMPT OF COURT APPLICATION
[20]
The leading authority is
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
which was quoted with approval in
Pheko
v
Ekurhuleni
City
2015 (5) SA 600
(CC)
at
paras [28] to [37]. I quote paragraphs [9] and [10] of
Fakie:
“
9.
The test for when disobedience of a civil order constitutes contempt
has come to be stated as whether
the breach was committed
‘deliberately and mala fide’. A deliberate disregard is
not enough, since the non-complier
may genuinely, albeit mistakenly,
believe him or herself entitled to act in the way claimed to
constitute the contempt. In such
a case, good faith avoids the
infraction. Even a refusal to comply that is objectively
unreasonable may be bona fide (though
unreasonableness could evidence
lack of good faith).
10.
These requirements – that the refusal to obey should be both
wilful and mala fide, and that unreasonable
non-compliance, provided
it is bona fide, does not constitute contempt – accord with the
broader definition of the crime,
of which non-compliance with civil
orders is a manifestation. They show that the offence is committed
not by mere disregard of
a court order, but by the deliberate and
intentional violation of the court’s dignity, repute or
authority that this evinces.
Honest belief that non-compliance
is justified or proper is incompatible with that intent.”
[21]
At paragraph [23] of
Fakie
supra
Cameron JA made it
clear that the common law had been developed and that a change
pertaining to the burden of proof had taken place.
I quote:
“
What
is changed is that the accused no longer bears a legal burden to
disprove wilfulness and mala fides on a balance of probabilities,
but
to avoid conviction need only lead evidence that establishes a
reasonable doubt.”
[22]
I am respectfully in agreement with Nkabinde J in
Pheko
supra
at paragraph [25] where the learned judge referred to
“
the
difficulties inherent in compelling compliance from recalcitrant
state parties in a manner that displays the courts’ discontent
with disregard for the rule of law.”
Courts
are too often confronted with certain State parties displaying a
total disregard for court orders. In
Meadow
Glen Home Owners Association and Others v Tshwane City Metropolitan
Municipality
2015 (2) SA 413
(SCA) the Supreme Court of Appeal stated in paragraph
[22] that:
“…
We
do not hesitate to endorse what Nugent JA said in this court in Kate,
that ‘there ought to be no doubt that a public official
who is
ordered by a court to do or to refrain from doing a particular act,
and fails to do so, is liable to be committed for contempt,
in
accordance with ordinary principles’. However, it must be clear
beyond reasonable doubt that the official in question
is the person
who has wilfully and with knowledge of the court order failed to
comply with its terms.”
[23]
No doubt a Municipal Manager is the accounting officer of the
Municipality and his/her responsibilities are clearly set out
in s 55
of the Systems Act
supra
.
[24]
The Supreme Court of Appeal reiterated in
Meadow Glen Home Owners
Association
supra
at paragraph [24] the following:
“
From
the abovementioned provisions it is clear that the municipal manager
is, so far as the officials of a municipality are concerned,
the
responsible person tasked with overseeing the implementation of court
orders against the municipality. The municipal manager
would know, as
the accounting officer, what is feasible and what is not. The
municipal manager cannot pass responsibility for these
administrative
duties to a manager or director who is not directly accountable in
terms of their duties. It is unacceptable that
a person is ‘selected’
by the municipality to be liable for imprisonment, when that person
is clearly not the one who
has control over all the facets and terms
of the order and it is clear that they are being made the scapegoat.
The municipal manager
is the official who is responsible for the
overall administration of the municipality and the logical person to
be held responsible.
Even if, as must necessarily be the case, the
municipal manager delegates tasks flowing from a court order to
others it remains
his or her responsibility to secure compliance
therewith. It may be that certain of the political office bearers may
also be liable
for a contempt but it is unnecessary to traverse the
possible ambit of such responsibility here.”
[25]
It is thus clear that the Municipal Manager is, so far as the
officials of a municipality are concerned, the responsible person
tasked with overseeing the implementation of court orders against the
Municipality. Notwithstanding the comments of the Supreme
Court
of Appeal in
Meadow
Glen Home Owners
Association
supra
and the finding that the particular official, Mr Fenyani, was the
incorrect person to be held liable notwithstanding the fact that
the
order sought was directed at him personally, the court did not
specifically state that the court
a
quo
should have convicted the municipal manager of contempt of court.
Mr Rautenbach argued, based on this judgment, that there
was
sufficient reason to convict the Acting Municipal Manager of contempt
of court notwithstanding the fact that the order of 6
August 2015 was
not served on him personally and he was not even involved in the
negotiations leading to the order obtained by
consent as a different
municipal manager occupied the position at that stage.
[26]
In my view the court did not go as far in
Meadow Glen Home Owners
Association
supra
, as suggested by Mr Rautenbach, to give
courts
carte blanche
to convict municipal managers based on
non-compliance by municipal officials of court orders in a situation
where the municipal
manager was not specifically called upon to
advance reasons why he/she should not be convicted of contempt of
court.
[27]
In
casu
there is, as indicated
supra
,
no prayer in the notice of motion seeking the conviction of the
Acting Municipal Manager for contempt of court. This is
fatal
for the applicant’s case in this regard. Secondly, the
second respondent, the Mangaung Municipality was never
called upon in
paragraph 2 of the court order of 6 August 2015 to do anything, for
as stated
supra
,
the council of the Municipality was directed to do certain things.
Thirdly, paragraph 2 of the order in particular is drafted
in such
vague and confusing terms pertaining to the numbering of the special
use zoning that no court could convict any person
for failing to
comply with these confusing terms. Fourthly, the Acting
Municipal Manager confirmed under oath that he had
acted on legal
advice to the effect that applicant’s application had to be
dealt with in terms of the provisions of the Spatial
Planning and
Land Use Management Act, 16 of 2013 (“the Spatial Planning
Act”) which Act repealed the Removal of Restrictions
Act, 87 of
1967
in
toto
.
I am not convinced of the truth of his version, but he managed to
establish reasonable doubt.
[28]
Although the Acting Municipal Manager failed to attach a confirmatory
affidavit from the Municipality’s General Manager:
Town and
Regional Planning who is directly involved with applications for
township establishment in support of his version, I am
satisfied that
he created reasonable doubt and am prepared to accept that he
believed, based on legal advice, that non-compliance
with the court
order of 6 August 2015 was justified. In the light of doubt
created I am unable to find that there was a wilful
and
mala
fide
disregard of the court order.
[29]
Applicant has therefore failed to show beyond reasonable doubt that
either first or second respondent is in contempt of court
and should
be convicted as such.
VIII
RELEVANT
ASPECTS
in
re
SPATIAL PLANNING AND LAND USE MANAGEMENT
[30]
There is some merit in Mr Manye’s argument that the Free State
Townships Ordinance, 9 of 1969 (“the Townships Ordinance”)
is clearly out-dated and must be regarded as repealed in so far as it
is inconsistent with the Spatial Planning Act. However,
it is
apparent from the evidence that the procedures laid down in the
Townships Ordinance are applied to this day as will be shown
infra
.
[31]
Applicant attached to its replying affidavit three letters from the
Municipality’s General Manager: Town and Regional
Planning
addressed to the Department of Co-operative Governance, Traditional
Affairs and Human Settlement in respect of three unrelated
applications, confirming that it was resolved to recommend approval
of the particular applicants’ applications. It
was placed
on record on behalf of the applicant that these three applications
were lodged before the 1
st
of July 2015 and that this served as proof that the Municipality
accepted that all such applications had to be dealt with in terms
of
the old regime, i.e. in terms of the Townships Ordinance, and not in
terms of the Spatial Planning Act. This may indicate
that the
Municipality and its Acting Municipal Manager in particular acted
grossly unreasonable
in
casu
,
mala
fide
and in wilful disregard of the court order. However, the
application papers and the particular letters referred to indicate
that a Municipal Planning Tribunal was indeed established as provided
for in the Spatial Planning Act. This tends to support
the
Acting Municipal Manager’s version in so far as action was
taken to comply with the Spatial Planning Act.
[32]
A significant difference between the two regimes, the old regime in
terms of the Townships Ordinance and the new regime, is
that the
Spatial Planning Act gives effect to the autonomy of municipalities
in terms of s 156 of the Constitution in so far as
Municipal Planning
Tribunals now have authority in terms of ss 41 and 42 thereof to
consider applications for township establishment,
the subdivision of
land, the consolidation of different pieces of land, the amendment of
a land use or town planning scheme with
certain exceptions, and the
removal, amendment or suspension of restrictive conditions. In
terms of the Townships Ordinance
such applications had to be
considered by the Townships Board, now called the Land Use Advisory
Board. Bearing in mind the
applicant’s version and the
three letters referred to
supra,
this
is factually still the situation, particularly in respect of
applications lodged before 1 July 2015.
[33]
Mr Rautenbach referred to two judgments of the Constitutional Court
which he submitted to be authority that all similar applications
as
in
casu
,
made before 1 July 2015 must be proceeded with and adjudicated based
on the provisions of the old regime, i.e.
in
casu
in accordance with the Townships Ordinance. The two judgments
are
Pieterse
NO and Another v Lephalale Local Municipality and Others
[2016] ZACC
40
and
Tronox
KZN Sands (Pty) Ltd v KwaZulu Natal Planning and Development Appeal
Tribunal
2016 (3) SA 160
(CC).
Mr Manye argued that the decisions are distinguishable on the basis
that no actual application had been placed before the
Land Use
Advisory Board
in
casu
and therefore it could not be argued that the matter was a pending
application before the particular Board. According to
him the
application was merely presented to the Municipality, but because of
differences of opinion, the secretariat of the Land
Use Advisory
Board could not publish the application for objections and comments
and eventual adjudication. This submission
is not correct.
The applicant has shown convincingly that it complied with the
procedure prescribed in s 9 of the Townships
Ordinance and the
parties accepted this to be the case when they consented to the order
of 6 August 2015.
[34]
Before I deal with the two judgments it is apposite to say something
about the Spatial Planning Act. It is apparent from
the
preamble thereof that the legislature
inter
alia
intended
to provide a framework for spatial planning and land use management
in the Republic, to provide for the inclusive, developmental,
equitable and efficient spatial planning at the different spheres of
government, to promote greater consistency and uniformity
in the
application procedures and decision-making by authorities responsible
for land use decisions and development applications
and to provide
for the establishment, functions and operations of Municipal Planning
Tribunals. The objects of the Act are
clearly recorded in s 3,
inter
alia
to provide for a uniform, effective and comprehensive system of
spatial planning and land use management for the Republic.
Further objects are not relevant for purposes hereof. It is
pertinently stated in s 10 of the Spatial Planning Act that
“
(P)rovincial
legislation
not
inconsistent
with the provisions of this Act may provide for structures and
procedures different from those provided for in this Act in respect
of a province.”
Provincial
legislation consistent with the Act may be provided for as set out in
Schedule 1 of the Act. In terms of s 35 a
municipality must
establish a Municipal Planning Tribunal that must consider and decide
applications received by it as set out
in ss 40 to 43 of the Act.
Section 47 provides for the removal, amendment or suspension of
restrictive conditions with the
approval of a Municipal Planning
Tribunal and an internal appeal process is provided for in s 51.
Notwithstanding the implementation
of the Spatial Planning Act, the
Townships Ordinance has not been repealed, either expressly or by
necessary implication.
The factual position is that the
Townships Board (as it was known previously) still consider
applications lodged before 1 July
2015.
[35]
Section 60 deals with transitional provisions. Mr Rautenbach
relied on s 60(1) which I do not find applicable.
He also
argued that s 60(2) is not applicable
in
casu.
In
terms of this sub-section all applications, appeals or other matters
pending before a tribunal established in terms of
s 15
of the
Development Facilitation Act, 67 of 1995
must be continued and
disposed of in terms of the Spatial Planning Act. According to
him the Free State Province did not
apply the
Development
Facilitation Act pertaining
to procedures and no tribunals in terms
of this Act had been established. He submitted that the
Municipality could not rely
on s 60(2) for the viewpoint that the
applicant’s application could not be dealt with in terms of the
Townships Ordinance.
The Municipality’s legal advisors
adopted a different approach and accepted the legal position to be
different from that
relied upon by applicant’s legal
representatives.
[36]
The judgment in
Tronox
supra
was delivered on 29 January 2016 and the
Lephalale
judgment as recently as 10 November 2016. These two cases
followed upon the judgments in
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
2010 (6) SA 182
(CC)
and
Minister
of Local Government, Environmental Affairs and Development Planning,
Western Cape v Habitat Council and Others
2014 (4) SA 437
(CC).
In
the
Gauteng
Development Tribunal
judgment the Constitutional Court struck down chapters V and VI of
the
Development Facilitation Act which
authorised provincial
development tribunals established in terms of that Act to determine
applications for the rezoning of land
and the establishment of
townships, suspended the declaration of invalidity for 24 months on
certain conditions and allowed these
tribunals to finalise all
pending applications. Jafta J emphasised in paragraph [53] that
“
the
Constitution confers different planning responsibilities on each of
the three spheres of government in accordance with what
is
appropriate to each sphere”
In
Habitat
Council
supra
the
Constitutional Court confirmed that s 44 of the Land Use Planning
Ordinance, 15 of 1985 was constitutionally invalid.
It found
that the provincial appellate capacity usurped local government’s
power in respect of municipal planning.
However, the court
ordered the declaration of invalidity not to be retrospective and all
pending appeals were exempted from the
declaration of invalidity.
[37]
In
Tronox
supra
s
45 of the KwaZulu-Natal Planning and Development Act, 6 of 2008 was
declared constitutionally invalid, but the Constitutional
Court held
in paragraph [58] that appeals already pending in terms of s 45
should be allowed to proceed. The court followed
its own
judgments in
Habitat
Council
and
Gauteng
Development Tribunal
.
[38]
In
Lephalale
the Constitutional Court found s 139 of the Town Planning and
Townships Ordinance, 15 of 1986 constitutionally invalid. The
court stated as follows in paragraph [5]:
“
The
Ordinance is old-order legislation that continues to apply under the
Constitution. The pre-democracy Transvaal Provincial
Legislature enacted it to determine the powers and capacities of
local municipalities in its jurisdiction. It reflects a
typical
planning law regime. This was at a time when municipalities
were subordinate arms of government. They “owed
their
existence to and derived their powers from provincial ordinances”.
The Ordinance does what the Constitution itself
now does. It
assigns the authority to introduce, exercise executive authority over
and administer municipal planning to authorised
municipalities.
Since the advent of democracy, the Constitution reserves to
municipalities executive power over, and administration
of, the
functional areas listed in Part B of Schedule 4. Their powers
are now constitutionally recognised and protected.”
[39]
At paragraph [8] the court in
Lephalale
proceeded
as follows:
“
Municipal
land use planning schemes are executive and administrative in
nature. They are exclusively for the municipality
to
determine. Beyond their constitutionally allocated powers of
oversight and assistance, neither national nor provincial
government
may, by legislation or otherwise, interfere with a municipality’s
executive powers to administer municipal affairs.
Yet section
139 of the Ordinance continues to allow an appeal from a municipal
planning decision to a provincially appointed and
administered
appellate body.”
[40]
The court proceeded in paragraphs [12] and [13] as follows:
“
[12]
This Court has found provisions of this kind, both old-order and
Constitution era, invalid. …
[13]
Local authorities have a constitutionally entrenched power to manage
municipal planning. “This
power is autonomous and under
no circumstances can it be intruded upon.” …
So any mechanism that subjects
municipalities’ planning
decisions to a provincial appeal process intrudes into
constitutionally prohibited terrain.”
[41]
Finally the court concluded in paragraphs [17] and [18] as follows:
“
[17]
… To avoid disruption and prejudice to third parties, whose
appeals were disposed of by the Limpopo Townships
Board, as well as
those whose appeals are still pending; it would not be just and
equitable for the order to operate retrospectively.
[18]
However to attenuate any possibility of prejudice in conserving an
unconstitutional mechanism, it would be apt,
as we did in Tronox, to
enjoin the Limpopo Townships Board, when it disposes of pending
appeals, to take into account the Municipality’s
norms and
standards, and policies.”
[42]
In
casu
the applicant initially launched a typical rezoning application
during 2013, but amended it to a more comprehensive township
establishment
application during June 2014. This amended
township establishment application requires the incorporation of a
new proposed
amended spatial use zoning to replace the present zoning
of “
holdings
”
.
The application was simultaneously submitted to second, third and
fourth respondents which required the second respondent
to provide a
specific number for the new spatial use zoning applied for. The
provision of such a number would not mean that
the Municipality
necessarily approved the rezoning of the applicant’s property
or that it acquiesced thereto. In the
answering affidavit the
Acting Municipal Manager does not deny that such a process was
followed and he furthermore does not deny
that the Municipality’s
delegated officials refused to provide such a special use zoning
number to allow applicant’s
application to proceed before third
respondent. He merely made the following remark in paragraph
[14] in respect of the allegations
contained in paragraphs 5 to 15:
“
I
aver that the allegations in these paragraph (sic) and the more
especially the events mentioned and the court order were overtaken
by
adoption and coming into operation of SPLUMA
(the
Spatial Planning Act)
and
the second respondent’s establishment of Municipal Planning
Tribunal.
In
paragraph [18] the following allegation is made
:
“
I
aver once again that after the adoption and coming into operation of
SPLUMA the second respondent’s was legally bound to
act in
terms of relevant Act in operation notwithstanding the court order.”
In
paragraph [21] the following is stated:
“
I
reiterate that the second respondent can only act in terms of the
prescripts of the law in place at the time when considering
the
applicant’s application.”
[43]
The respondents never approached the court to set aside the court
order because it had been overtaken by the Spatial Planning
Act as
alleged by the Acting Municipal Manager and no application has been
brought to declare the Townships Ordinance or any provisions
thereof
unconstitutional.
IX
FURTHER
ISSUES, INCLUDING RELIEF TO BE GRANTED
[44]
Further issues arise. During argument the issue of a revised
structure plan came to the fore and this was one of the aspects
relied upon by the Municipality for not giving proper attention to
applicant’s application. In this regard the Municipality
stated in its letter dated 7 July 2014 that a revised structure plan
needed to be implemented for the particular area in which
the
applicant’s property is situated before the application could
be processed. Mr Kumalo, the General Manager: Town
and Regional
Planning at the time made the following promise in the aforesaid
letter:
“
The
Mangaung Metropolitan Municipality will contact you as soon as your
application has been considered within the context of the
revised
structure Plans.”
Numerous
enquiries have been made on behalf of applicant pertaining to the
compilation of a revised structure plan and the time
frames needed
for the Municipality to complete this plan. A period of nearly
three years has lapsed and nothing has been
done. In the letter
of Ms Ramaema, the HOD of Corporate Services dated 20 January 2016
the following is stated:
“
That
the applicant will be notified to consider re-submitting his
application after February 2016 once Council has revised all the
current structure plans.”
This
is the Municipality’s attitude notwithstanding the agreement
entered into which was made an order of court the previous
year.
Mr Manye advised me that he had instructions from the Municipality to
place on record that it would ensure that a revised
structure plan be
compiled within 90 days. Argument was presented on 23 February
2017. Although applicant’s notice
of motion does not
provide for a
mandamus
in this regard, I am satisfied that the parties have given proper
attention to this aspect which is clearly relevant to applicant’s
application and that the offer made by Mr Manye on behalf of the
Municipality may be incorporated in the order to be issued.
[45]
Another issue to be considered is the relief sought in paragraph
2.2.2 of the notice of motion which I quote again for the
sake of
convenience:
“
That
the Second Respondent provide a new special use zoning number, the
objections, representations or proposed amendments as well
as whether
they support and approve or disapprove of the Applicant’s
application for re-zoning to the Third and Fourth Respondents
within
seven (7) days of date of this order and to inform the Applicant
immediately of their decision and the special use number.”
[46]
As mentioned, the Municipality does not deny that the relief sought
is in line with the application procedure set out in the
Townships
Ordinance, the so-called old regime. There is no doubt that the
applicant’s application was filed with second,
third and fourth
respondents more than a year before the repeal of the Removal of
Restrictions Act and the commencement of the
Spatial Planning Act on
1 July 2015. Applications in the Free State Province lodged
prior to 1 July 2015 are still considered
in terms of the old regime
according to the accepted evidence. There is no substance in Mr
Manye’s argument that the
newly established Municipal Planning
Tribunal should receive and finally adjudicate the application.
Therefore and based
on the practice in the Free State and judgments
of the Constitutional Court referred to
supra,
it is fair, just and equitable that applicant’s application be
dealt with without further delay and therefore an order as
set out in
paragraph 2.2.2 of the notice of motion, more carefully worded,
should be granted.
X
COSTS
[47]
The relief that I intend to grant coincides with the relief granted
by the court in application 1668/2015 on 6 August 2015
which order
was made by agreement.
[48]
It is an absolute shame that this matter has been dragged out for so
long. I have already found that the Acting Municipal
Manager
should not be convicted of contempt of court, but I have serious
doubts about the
bona
fides
of the Municipality’s officials in the Town and Regional
Planning Division of the Directorate: Corporate Services.
This judgment should be brought to the knowledge of Ms M J Ramaema,
the HOD of Corporate Services who on 20 January 2016 decided
not to
recommend approval of applicant’s application due to alleged
non-compliance with the current structure plan, as well
as Mr Kumalo,
the General Manager: Town and Regional Planning and Mr Mahao, the
Acting General Manager: Town and Regional Planning.
It must
also be served on the Acting Municipal Manager forthwith.
Should this matter not be resolved in accordance
with my order, the
court hearing the matter eventually may well decide to call upon the
particular persons to give reasons why
punitive costs orders
de
bonis propriis
should not be made against them in their personal capacities. I
wish to reiterate the remarks in this regard of Nkabinde
J in
Pheko
supra
as well as the comments of the Supreme Court of Appeal in
Meadow
Glen Home Owners
Association
supra
.
[49]
The applicant is not successful in respect of the contempt of court
application. In these applications an applicant is
regarded as
a
nuntius
who merely supplies information to the court pertaining to the
non-compliance with court orders by particular persons.
Unfortunately
for the applicant the court order of 6 August 2015
which was made by agreement does not adhere to the standard required
of court
orders. In
Eke
v Parsons
2016 (3) SA 37
(CC)
Madlanga J pointed out in paragraph 25 that
“
a
court must not be mechanical in its adoption of the terms of a
settlement agreement.”
See
also paragraphs [29] and [30]. Although the parties have
settled the matter, it does not mean that anything agreed to
by them
should be accepted by a court and made an order of court. I
indicated my difficulty with the court order
supra.
The starting point in interpreting a court order is to determine the
manifest purpose of the order and in this regard the
intention of the
parties is to be ascertained from the language used, read in its
contextual setting and in the light of admissible
evidence.
[50]
I referred in my introduction to the Municipality’s apparent
reluctance to ensure that an entity that wants to invest
millions in
Bloemfontein and simultaneously offer a high class and much needed
medical service to the community is able to achieve
its goals.
Such action is unacceptable.
[51]
If the Municipality was advised that the court order was vague and
confusing and/or had been overtaken by national legislation,
it
should have come to court to apply for the rescission, amendment or
even setting aside of the court order. It should not
have
waited for the contempt of court application to be lodged. If
it was the Municipality’s case that the Townships
Ordinance had
been repealed or is unconstitutional, it should have approached the
court for a declaratory order which it failed
to do. Instead
it, acting through its senior officials, played a waiting game.
If one considers the manner in which
the Municipality has been
dealing with similar applications filed before 1 July 2015 as
recently as during September last year,
it is incomprehensible why
applicant’s application could not be afforded similar
attention. A punitive costs order
is warranted.
XI
FREE
STATE SPATIAL PLANNING AND LAND USE BILL
[52]
On 10 March 2010 and after having finalised this judgment, I was
presented by counsel with the Free State Province’s
draft Bill
on Spatial Planning and Land Use. Notices calling for comments
on the draft Bill were apparently published in
local newspapers on 3
February 2017. Counsel and the court were unaware hereof and
the matter was not addressed in the written
heads of argument or
during oral argument. I perused the Bill, but deliberately
refrain from making any comments, save in
respect of the following.
It is apparent that the Free State Province still regards the
Townships Board, also known as the
Land Use Advisory Board,
established in terms of the Townships Ordinance as a valid entity
which “
…
continues
to exist and may finalise recommendations that are pending or in
progress immediately before the commencement of this
Act.”
See:
s 47(3) and s 47 of the Bill in general relating to transitional
arrangements. It is intended that the MEC shall ultimately
disestablish the aforesaid Board by notice in the Provincial Gazette,
but only upon conclusion of all matters contemplated in subsection
47(3). The judgment and orders to be issued are in harmony with
the apparent intention of the Free State Provincial Legislature.
XII
ORDERS
[53]
Therefore I make the following orders:
1.
Second
respondent shall provide to third and fourth respondents within seven
(7) days of this order a new special use zoning number
as well as its
objections, representations or proposed amendments and indicate
whether it supports and approves or disapproves
applicant’s
application for rezoning and it shall simultaneously inform applicant
of its decision and/or recommendations
as well as the special use
zoning number provided.
2.
Second
respondent must compile a revised structure plan, particularly in
respect of the area in which the applicant’s property
is
situated, to wit Plot [...] S. S. , district Bloemfontein, by not
later than 23 May 2017.3.
The
Acting Municipal Manager is directed to oversee the above process and
ensure that second respondent’s Department of Corporate
Services and in particular its Town and Regional Planning Directorate
comply with this order.
4.
The
application is postponed to 15 June 2017 and leave is granted to
applicant to supplement its papers on or before 26 May 2017
and to
first, second, third and fourth respondents to do so on or before 2
June 2017.
5.
Second
respondent is ordered to pay the costs of this application on the
scale as between attorney and client.
_____________
J.P.
DAFFUE, J
On
behalf of the applicant: Adv J S Rautenbach
Instructed
by:
Spangenberg,
Zietsman & Bloem Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv T L Manye
Instructed
by:
Moroka
Attorneys
BLOEMFONTEIN
/eb