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[2017] ZANCHC 42
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Emathanjeni Municipality v Member of the Executive Council: Department of Co-operative Governance, Human Settlements and Traditional Affairs - Northern Cape Province and Others (1045/2016) [2017] ZANCHC 42 (26 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: 1045/2016
Heard on: 15/05/2017
Delivered
on: 26/05/2017
In
the matter between:
EMTHANJENI LOCAL
MUNICIPALITY
Applicant
And
THE MEMBER OF THE
EXECUTIVE COUNCIL:
1
st
Respondent
DEPARTMENT OF
CO-OPERATIVE GOVERNANCE,
HUMAN SETTLEMENTS AND
TRADITIONAL AFFAIRS –
NORTHERN CAPE PROVINCE
THE NORTHERN CAPE
DEVELOPMENT APPEAL
2
nd
Respondent
RAYMOND
SWENSON
3
rd
Respondent
Coram: Mamosebo
J et Ndlokovane AJ
JUDGMENT ON REVIEW
MAMOSEBO
J
Introduction
[1]
The applicant (the Municipality) seeks from this court an order in
which we find that the process followed and the decision
taken by the
second respondent, the Northern Cape Development Appeal Tribunal
(NC/DAT), on 29 September 2015 was unconstitutional
and that it be
reviewed and set aside; a cost order against the respondents opposing
the application; and condonation for the non-adherence
to time limits
prescribed in s 7(1) of the Promotion of Administrative Justice Act,
3 of 2000 (PAJA).
The parties
[2]
The applicant, the Emthajeni Local Municipality, is a local
government authority located in the Northern Cape Province (the
Municipality). The first respondent is the Member of the Executive
Council (the MEC):
Department
of Co-operative Governance, Human Settlements and Traditional
Affairs, Northern Cape Province. The second respondent
is the
Northern Cape Development Appeal Tribunal and the third respondent is
Mr Raymond Swenson a resident and property owner in
De Aar.
[3]
The MEC and NC/DAT, represented by the State Attorney, had filed a
Notice of Intention to Oppose the application dated 20 June
2016.
However, on 17 January 2017 they withdrew the notice and filed a
Notice to Abide the decision of this Court.
[4]
The Municipality had issued a Notice in terms of Rule 16A of the
Uniform Rules of Court inviting any interested party to apply
to
Court to be admitted
amicus
curiae.
The Rule
16A Notice was served by the sheriff on all the respondents.
Ultimately, none accepted the invitation. The application
proceeded
unopposed.
Condonation
[5]
The municipality asked for condonation for a minimal period of 6
weeks. The explanation is adequate. The condonation is granted.
See
Melane v Santam
Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-F.
The issue
[6]
The question that falls for determination is whether the NC/DAT had
authority to intervene on appeal and make the decision reached
on 29
September 2015 in respect of municipal land-use.
Factual background
[7]
A historical background to the facts is necessary. Mr Isak Visser is
the applicant’s Municipal Manager and deposed to
the founding
affidavit. The Municipality is the registered owner of the Remaining
Extent of Erf 259, De Aar, held under Deed of
Title T7448/1961 (the
immovable property). During October 2011 the Municipal council
resolved to apply for the rezoning and subdivision
of the said
immovable property in terms of the Northern Cape Planning and
Development Act, 7 of 1998. The Municipality sought to
establish up
to 350 residential Zone 1 erven with complimentary Business Zone 1,
Open Space Zone 1, Institutional Zone 1, Institutional
Zone 2 and
Transport Zone 2 erven.
[8]
A company known as Townscape Planning Solutions (Townscape) was
mandated to see to the processes of rezoning and subdivision
of the
said property on behalf of the applicant. They,
inter
alia,
compiled
reports, published notices and made recommendations to the
municipality in respect of the proposed development and motivated
that the subdivision application be encouraged and approved.
[9]
Interested parties were notified of the rezoning and subdivision
application. The third respondent, Mr Raymond Swenson, together
with
other individuals, objected to the rezoning and subdivision. Mr
Swenson wrote a letter dated 17 April 2014 addressed
to the
deponent. The letter reads:
“
Your
recent advertisement in the De Aar Echo and the letter from
Townscape Planning Solutions dated 28
March 2014 refers.
I
hereby object, in my capacity as owner of a residential property
namely Erf 3953 situated on the corner of Grundlingh and Noord
Streets De Aar, against your above application on the following
grounds:
1.
When I bought my
property in 2002 the unobstructed view towards Renosterberg over the
open Karoo veld as well as the general good
upmarket quality of
neighbouring properties were primary considerations in coming to my
decision to buy this property. I knew that
Erf 259 was not zoned for
residential purposes and that no danger therefore existed that my
view could change or be obstructed
or that any additional noise, air
or sound pollution could be caused by any nearby residential (or
industrial) development.
2.
It is my
considered opinion that your proposed development of a housing
project as the stated purpose of the rezoning sub-division
of Erf
259, De Aar will substantially reduce the value of my above property.
3.
I would like to
draw your attention to the Constitutional Court decision (Van Wyk
2012:176 -177; 389) where the Court set aside
the decision by a
Council to approve building plans without consideration to the
influence of such a decision on the valuation
of surrounding
properties. I urge your Council to seriously consider the wisdom and
potential cost implications, should your Council
decide to approve
this application.
4.
It is almost
certain to be challenged in court.
5.
Kindly inform me
without delay if and when council decides to either uphold or reject
my objection.”
[10]
The Municipal Manager gave Mr Swenson feedback by letter dated 13
November 2014, almost seven months later, and to all other
people
from whom objections were received. Not only does the letter
explain the recommendations made and reasons therefor
but it also
addresses the objections he raised as follows:
“
At
a meeting of the Executive Committee on 06 November 2014, the Council
approved the abovementioned rezoning and subdivision
(Reference No UK 11 A(3) dated 06 November 2014).
This
area (Erf: a Portion of the Remainder of Erf 259, De Aar) was already
identified as an area for future residential development
in the
Spatial Development Framework of Emthanjeni Local Municipality of
2007.
The
location and the topography of this area is of such a nature that it
is centrally situated for linking to all municipal main
services and
is very suitable for the purposes for which is to be used.
The
following feedback is provided regarding your objections:
1.
[O
bjection
]:
The proposed development of a housing project as the stated [reason
for] the rezoning and sub-division of Erf 259, De Aar will
substantially reduce the market value of our property and thereby
cause substantial financial loss.
[
Response
]:
The proposed development is residential in nature. The 2007 SDF
earmarked the Remainder of Erf 259 for residential development.
The
layout provides for medium income stands for integration between the
two areas ensuring a gradual transfer from high to medium
to low
income stands. It is unknown what the effect of the sub-economic
development will be on the existing development. Intervention
from
institutions such as NGO’s can be initiated to promote skills
development, job creation and a higher living standard.
2.
[
Objection
]:
The noise levels at the proposed housing development site on Erf 259,
De Aar originating from the main railway line from Johannesburg
to
Cape Town and from the Northern Cape Mines to Coega harbour (Port
Elizabeth) that passes in very close proximity to the proposed
housing development pose a serious health risk to the poor
economically disadvantaged people who are targeted to inhabit the
development.
[
Response
]:
The standard prescribed distance is maintained in the proposed
layout from the railway line and the servitude of the power
supply
lines. Measures to ensure the safety of future residents should be
put in place.
3.
[
Objection
]:
We believe that the development, which will take place in close
proximity to one of the main entrances of our town, will be
detrimental to the tourism potential of our town and will therefore
detract from business development and job creation in our town.
[
Response
]:
It is unknown what the impact of the proposed development will be on
tourism. Community upliftment projects should be initiated
by the
local NGO’s and institutions.
4.
[Objection
]:
We are concerned about the safety implications for future residents
of the proposed development as they have to cross the R48,
a main
road, to get into town.
[Response]:
The Traffic Impact Assessment recommended that sidewalks be provided
along major internal roads of the proposed development, especially
along Cilliers Street extension access road. A hard surfaced
sidewalk should be provided along the northern side of the R48 to
link the development to the existing sidewalks along Voortrekker
Street. Sufficient street lighting should also be provided within
the
development and at both accesses. It is recommended that a formal
public transport facility should be provided within the
development
site.
Should
you wish to appeal against the Council resolution it must be done
within 21 days of the date of this letter and addressed
to:
Chairperson Development and Appeal Tribunal”.
The
letter ends with a request for a copy to be furnished to the
Municipal Manager at a given address.
[11]
The Municipality was required to obtain approval of the Environmental
Authorisation in terms of the Environmental
Impact Assessment
Regulations, issued in terms of the
National Environmental Management
Act, 107 of 1998
. The approval was granted on 09 September 2014.
Regulation 10(2) of the Environmental Impact Assessment Regulations,
2010 required
the Municipality, in writing, and within 12 calendar
days of the date of the decision, to notify all
registered interested
and affected parties of the department’s
decision as well as provision for lodging of appeals.
[12]
Before the Municipality obtained the approval of the Environmental
Authorisation and on 02 September 2014, seven (7) days
before such
approval was granted, the Executive Committee of the Council approved
the application for the rezoning and subdivision
and also resolved
that the imposed restrictions be removed from the title deed. The
Municipality notified Mr Swenson of the Council
resolution on 13
November 2014.
[13]
It is on the basis of the failure by the Municipality to notify all
interested and affected parties in terms of the aforementioned
Regulation 10(2) that prompted Mr Swenson to lodge a Notice of Appeal
with the Member of the Executive Council, Ministry of Environment
and
Nature Conservation dated 15 December 2014 in terms of Chapter 7 of
the Environmental Impact Assessment Regulations, 2010.
This is
the essence of Swenson’s appeal:
“
Emthanjeni
Municipality failed to notify me as a registered, interested and
affected party as required by regulation 10(2) of the
Environmental
Impact Assessment Regulations, 2010 within the required time (12
calendar days) after receiving your letter of authorisation.
This, in
my opinion, nullifies the authorisation as I was denied proper
notification as required by me to respond within the prescribed
timeframe. If Emthanjeni Municipality disputes this I would like to
receive written representation from them, setting out grounds
upon
which my claim is disputed. I hereby further reserve the right to
future appeal once I have been properly notified of the
granting of
Environmental Authorisation as set out above.”
[14]
Mr Swenson also lodged an appeal with the NC/DAT as advised to do
within the 21 day period. The appeal was heard on 29 September
2015.
At the appeal hearing the Municipality relied on
the Constitutional Court judgment in
Minister
of Local Government, Environmental Affairs and
Development Planning, Western Cape v Habitat Council
and
Others
2014 (4)
SA 437
(CC) and raised several points
in
limine, inter alia,
lack
of authority by the NC/DAT to hear the appeal. I deal with the
Constitutional Court judgment at para 16
infra
.
[15]
The following are recorded as the findings of the NC/DAT:
“
The
Tribunal found that Emthanjeni Municipality did not effectively
perform their functions in that they pre-emptively resolved
on the
matter before the Environmental Authorisation appeal process was
completed. Therefore, based on conditions 23 –
25 of the
Environmental Authorisation, the failure of Emthanjeni Municipality
(as holder of the authorisation) to timeously notify
every
registered interested and affected party (inter alia the appellant
[Mr Swenson] and the fact that the appeal against the
Environmental
Authorisation has not been finalized as yet, the proposed
rezoning and sub-division, as well as the removal
of restrictive
conditions of a portion and the remainder of Erf 259, De Aar is
referred back to Emthanjeni Municipality
for
re-consideration
AFTER
completion of Environmental Authorisation appeal process.”
[16]
In the
Habitat
case (supra) at
445B – E (para 12)
t
he
remarks by Cameron JA are instructive:
“
[12]
That constitutional vision of robust municipal powers has been
expanded in the jurisprudence of this Court, and succinctly
summarised by Mhlantla AJ in Lagoonbay[Minister of Local
Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd and
Others
2014 (1) SA 521
(CC)]:
“
This
Court’s jurisprudence quite clearly establishes that: (a)
barring exceptional circumstances, national and provincial
spheres
are not entitled to usurp the functions of local government; (b) the
constitutional vision of autonomous spheres
of government must
be preserved; (c) while the Constitution confers planning
responsibilities on each of the spheres of government,
those are
different planning responsibilities, based on ‘what is
appropriate to each sphere’; (d) ‘“planning”
in the context of municipal affairs is a term which has assumed a
particular, well- established meaning which includes the zoning
of
land and the establishment of townships’; and (e) the
provincial competence for ‘urban and rural
development’ is not wide enough to include powers that form
part of ‘municipal planning’.”
Justice
Cameron continued at para 13 as follows:
“
[13]
This Court in Lagoonbay concluded, without deciding, that ‘[
a]t
the very least there is therefore a strong case’ for holding
that it is constitutionally impermissible for the Province
to refuse
rezoning and subdivision applications under LUPO.
That strong case must be given effect here. Section 44 of LUPO does
not withstand constitutional scrutiny. This is for all the
reasons
the Lagoonbay synopsis sets out. The provincial
appellate capability impermissibly usurps the power of local
authorities to manage “municipal planning”, intrudes on
the autonomous sphere of authority the Constitution
accords to
municipalities, and fails to recognise the distinctiveness of the
municipal sphere. This is because, as Jafta J said
in Gauteng
Development Tribunal[Johannesburg Metropolitan Municipality v
Gauteng Development Tribunal and Others
2010 (6) SA 182
(CC) in paras
49 -57], the planning competence that the Constitution ascribes to
municipalities “includes the zoning of land
and the
establishment of townships”.
So
the Provincial Minister was correct to concede that section 44’s
general appellate power is unconstitutional
.
Municipalities
are responsible for zoning and subdivision decisions, and provinces
are not.”
(Own
emphasis)
[17]
First and foremost the reasons for Mr Swenson’s objection to
the rezoning and subdivision of the remainder of Erf 259
gave rise to
the appeal and the decision that resulted in the subject matter of
this review. The Constitution of the Republic of
South Africa is the
supreme law against which all laws and conduct is tested. Mr Swenson
says the Municipality should not rezone
and subdivide the available
land to establish, among others, the proposed residential property
because not only will his view of
the Renosterberg Mountain be
obstructed or obscured but the value of his property will be
diminished. He says his decision to acquire
the property where he is
currently settled was made way back in 2002 and was informed by the
fact that there would not be any development
or sound pollution that
will disturb his tranquillity. He certainly has not taken
account that the population of any municipality
grows rapidly (the
urbanisation) and the planning by each municipality must keep pace
with its socio-economic challenges as well
as the constitutional
imperatives.
[18]
The Municipality is further enjoined by the Constitution in s 26 to
provide housing. The section stipulates:
“
Housing
–
(1) Everyone
has the right to have access to adequate housing.
(2)
The state must take reasonable legislative and other measures, within
its available resources, to achieve
the progressive realisation of
this right.”
[19]
Yacoob J writing for the unanimous court in
Government of the
Republic of South Africa v Grootboom and Others
2001
(1) SA 46
(CC) at 83E – F (para 82) pronounced:
“
All
levels of government must ensure that the housing program is
reasonably and appropriately implemented in the light of all
provisions
in the Constitution. All implementation mechanisms and all
State action in relation to housing falls to be assessed against the
requirements of s 26 of the Constitution. Every step at every level
of government must be consistent with the constitutional obligation
to take reasonable measures to provide adequate housing.”
[20]
It is common cause that the Council of the Municipality approved the
application to rezone and subdivide the Erf in question
on 02
September 2014 whereas the Environmental Authorisation was only
granted on 09 September 2014, a period of 7 days preceding
the
authorisation date. Mr Swenson claims that because the Municipality
failed to notify him of the approved authorisation it must
be
nullified. The Appeal Tribunal, pursuant to the appeal by Mr Swenson,
decided on 25 September 2014 that the proposed rezoning
and
sub-division, as well as the removal of restrictive conditions of
the remainder of Erf 259, De
Aar,
be referred back to Emthanjeni Municipality for
re-consideration AFTER completion of the Environmental Authorisation
appeal process. It is this decision by the Appeal Tribunal that we
need to determine whether the Tribunal had the requisite authority
to
make that decision. In my view, because the Environmental
Authorisation has already been granted I do not think it would serve
any useful purpose to refer the matter back to the Municipality for
re-consideration.
[21]
It is not contended that the decision itself by the Municipal
Council, the substance thereof, was not properly taken. It is
the
precipitate decision (the 7 days early), the form thereof, that the
objection relate to. There is no suggestion that a different
outcome
is anticipated or the most probable outcome would be different.
Ideally, the Municipality ought to have waited for the
environmental
authorisation before approving the application. It also ought to have
notified interested and affected parties. It
is my view,
nevertheless, that those shortcomings by the municipality, viewed
holistically and in the spirit and purport of the
constitution are
not sufficiently material to nullify the authorisation already
granted. The guise of objecting to the fact
that his view (the
panorama) being obscured by the proposed development may have to do
with a deeper but inarticulate motive to
frustrate the integration of
a diversity of communities, which act is selfish.
[22]
The applicant’s counsel submitted that since the first and
second respondents had filed the notice to abide the decision
of this
court having initially filed the notice of intention to oppose the
matter, she will not ask for an order for costs against
them. The
third respondent, Mr Swenson, did not oppose the application.
[23]
It is in the light of the aforementioned instructive views by the
Constitutional Court and the provisions in the Constitution
referred
to hereinbefore that the decision taken by the Northern Cape
Development Appeal on 29 September 2015 is found to be
unconstitutional
and must be reviewed and set aside.
[24] In the result, the following order is made:
It is ordered:
1.
The application for
condonation is granted.
2.
The process followed by
the second respondent, The Northern Cape Development Appeal, and the
decision taken on 29 September 2015
in which it decided to refer the
decision for the proposed rezoning and sub-division and the removal
of restrictive conditions
of the remainder of Erf 259, De Aar, back
to the Emthanjeni Municipality for reconsideration is hereby declared
unconstitutional
and reviewed and set aside.
3.
There is no order as to
costs.
_____________________
MAMOSEBO J
NORTHERN CAPE DIVISION
I concur
____________________
NDLOKOVANE AJ
NORTHERN CAPE DIVISION
For
the applicant:
Adv A Stanton
Instructed
by:
Du Toit & De Beer Attorneys
For the 1
st
and 2
nd
respondents:
No appearence
Instructed
by:
Office of the State Attorney
For the 3
rd
respondent:
No appearence