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[2018] ZASCA 174
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Mabelane v Dykema and Another (1054/2017) [2018] ZASCA 174; [2019] 1 All SA 316 (SCA) (3 December 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1054/2017
In
the matter between:
ARTHUR
PULE
MALEBANE APPELLANT
and
ALBERT
DYKEMA FIRST
RESPONDENT
BELA-BELA
LOCAL
MUNICIPALITY SECOND
RESPONDENT
Neutral
citation:
Malebane v Dykema
(1054/2017)
[2018] ZASCA 174
(3
December 2018)
Coram:
WALLIS, SWAIN, DAMBUZA and SCHIPPERS
JJA and MOTHLE AJA
Heard
:
20 NOVEMBER 2018
Delivered
:
3 DECEMBER 2018
Summary:
Development application in terms of
Chapters V and VI of the Development Facilitation Act – not
determined before date on
which suspension of order of constitutional
invalidity in respect of those provisions ended – s 60(2)(
a
)
of
Spatial Planning and Land Use Management Act 16 of 2013
–
whether application pending before development tribunal on 1 July
2015.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Cassim AJ, sitting as court of first instance):
1.
The appeal is upheld with costs.
2.
The order of the high court is set aside
and the following order substituted:
‘
The
application is dismissed with costs.’
3.
The cross appeal is dismissed with costs.
JUDGMENT
Wallis
JA (Swain, Dambuza and Schippers JJA concurring)
[1]
The appellant, Mr Malebane, and the first
respondent, Mr Dykema, own farms that straddle the N1 highway running
north from Tshwane
through Bela-Bela and Mokopane to Polokwane. Both
farms are situated within the area of jurisdiction of the Bela-Bela
Municipality
(the Municipality). Some years ago Mr Dykema (with the
support of one of the major oil companies) decided that his farm
provided
a suitable location for a One Stop service station. On 10
February 2012 he lodged an application with the Limpopo Development
Tribunal
(the Tribunal) for planning permission for such a service
station. This involved a change in land use from agricultural and
general
to special under Land Use Zone 85 in terms of the Bela-Bela
Land Use Scheme, 2008. The application was duly advertised and the
Tribunal held various hearings between 13 April and 5 June 2012. It
set 16 July 2012 as the date for submission of final argument
on Mr
Dykema’s application.
[2]
On
18 June 2010 the Constitutional Court
[1]
endorsed a finding of this Court
[2]
that Chapters V and VI of the Development Facilitation Act 67 of 1995
(the DFA), under which Mr Dykema’s application had
been made,
were unconstitutional. The Constitutional Court suspended its order
of invalidity for two years to enable the legislature
to remedy the
constitutional defect. The order of suspension expired on 17 June
2012, without fresh legislation having been
passed.
[3]
After
the expiry of the period of suspension of constitutional invalidity,
development tribunals throughout South Africa, including
the
Tribunal, continued dealing with applications for developmental
approval lodged prior to the date of expiry. They did so on
the basis
of a Policy Statement issued by the Department of Rural Development
Land Reform.
[3]
In
Shelton
this
court held that, once the period of suspension expired, the order of
constitutional invalidity came into effect. Consequently
the approval
of a development application by a Development Tribunal after 17 June
2012 was invalid. It held that the policy statement
was incorrect and
inconsistent with the declaration of invalidity made by the
Constitutional Court. The decision in
Shelton
was
reaffirmed in
Patmar
.
[4]
[4]
The present dispute arises because the
Tribunal handed down a decision approving Mr Dykema’s
application, on 1 November
2012. The Municipality was rightly
unwilling to give effect to that decision and required Mr Dykema to
bring a fresh application
for rezoning under the relevant planning
legislation other than the DFA. Endeavours by his advisers to
persuade the Municipality
to adopt a different approach proved
unsuccessful. In the meantime Mr Malebane (with the assistance of a
different oil company)
conceived of the idea of developing a similar
service station on his property and applied to the Municipality for
the necessary
planning approvals. This caused Mr Dykema to approach
the high court for an interim interdict preventing the Municipality
from
approving Mr Malebane’s application and for an order that
it process his application in accordance with the approval granted
by
the tribunal on 1 November 2012.
[5]
The application came before Cassim AJ. He
refused to grant the declaratory orders sought by Mr Dykema. He did
so on the simple basis
that their underlying postulate was that the
Tribunal had lawfully approved his application, whereas in the light
of the decision
in
Shelton
,
the purported approval on 1 November 2012 was invalid and a nullity.
It might have been thought that this would dispose of the
matter.
However, without any prayer for that relief, the acting judge granted
an order directing the municipality to process Mr
Dykema’s
application for a change of land use and dispose of it in accordance
with the provisions of s 60(2)(
a
)
of the replacement legislation, the Spatial Planning and Land Use
Management Act 16 of 2013 (SPLUMA). This legislation was passed
in
2013 and promulgated on 5 August 2013, but only came into a
force on 1 July 2015. Although there is little reasoning
on the
point in the judgment it appears that the acting judge proceeded on
the footing that the application had been pending before
a tribunal
in terms of s 15 of DFA ‘at the commencement of this Act’
and had not been decided or otherwise disposed
of. The appeal is with
his leave and there is a cross appeal by Mr Dykema in respect of an
adverse costs order made against him.
The
issues
[6]
Mr
Dykema did not seek to contend that the Tribunal’s approval of
his application on 1 November 2012 was either lawful
or valid.
Instead the heads of argument on his behalf advanced two arguments in
support of the judgment of the high court. The
first was that,
notwithstanding the fact that the Tribunal lacked any lawful
authority to approve Mr Dykema’s application,
until set aside
by a court of law, it remained valid and binding. Reliance was placed
upon the judgments of the Constitutional
Court in
Merafong
[5]
and
Tasima
.
[6]
The second was that at the date upon which the order of
constitutional invalidity came into effect he had an application
pending
before the Tribunal and s 60(2)(
a
)
of SPLUMA provided that all applications pending before a tribunal at
the commencement of that Act had to be continued and disposed
of in
terms of SPLUMA.
[7]
Mr Erasmus SC, who appeared in this court
with Mr van Heerden, in place of counsel who prepared the heads of
argument, correctly
did not pursue the first argument. Although not
framed as a review of the decision of the Tribunal, the effect of the
judgment
was to set aside its decision. Nothing more need be said
about that. The only question we have to decide is whether the high
court
correctly granted relief on the basis of the provisions of
SPLUMA. Mr du Plessis SC, on behalf of Mr Malebane, pointed out that
Mr Dykema had not asked for such relief, but said that, in the
interests of having the point determined and resolving the matter,
he
was not raising a procedural objection to the grant of that relief. I
accordingly turn to deal with that issue.
The
arguments
[8]
Whether Mr Dykema’s application was
pending when SPLUMA came into force on 1 July 2015, depends on s
60(2)(
a
)
of SPLUMA, which reads as follows:
‘
All
applications, appeals or other matters pending before a tribunal in
terms of
section 15
of the
Development Facilitation Act, 1995
. . .
at the commencement of this Act that have not been decided or
otherwise disposed of, must be continued and disposed of in
terms of
this Act.’
[9]
The argument on behalf of Mr Dykema was
that, at the date upon which the declaration of constitutional
invalidity came into operation,
he had an application for a change of
land use pending before the Tribunal. All steps taken by the Tribunal
after that date were
invalid in accordance with the decision in
Shelton
.
That left his application pending when the Tribunal lost its powers
to determine it and it remained pending when SPLUMA came into
force
on 1 July 2015. Accordingly it fell to be continued and disposed of
in terms of SPLUMA.
[10]
Mr
du Plessis SC submitted that there were several flaws in this
analysis. His starting point was the principle of objective
constitutional
invalidity.
[7]
The effect of a declaration of constitutional invalidity is that the
legislation in question is invalid from the time of its enactment,
subject to the Court’s power under s 172(1)(
b
)
of the Constitution to suspend an order for invalidity for any period
to enable the legislature to remedy the defect and to limit
the
retrospective effect of the order of invalidity. In
Gauteng
Development Tribunal
the Constitutional Court exercised both of these powers. It suspended
the declaration of invalidity for two years until 17 June
2012.
Recognising that the legislature might not pass amending or new
legislation within that time frame it limited the retrospective
effect of its order.
[11]
It
is helpful to look closely at what the Constitutional Court ordered
with a view to avoiding undesirable consequences flowing
from the
order of invalidity. It said in regard to the period of suspension
that:
[8]
‘
A
proper balance … may be achieved by allowing the
tribunals to continue exercising those powers
during
the period of suspension
’. (My
emphasis.)
The
emphasised portion of this passage shows that the Court was only
affording powers to development tribunals during the period
of
suspension and not thereafter. Recognising that remedial legislation
might not be passed within the two year period afforded
by the
suspension of the declaration, the Court held:
[9]
‘
Finally,
a necessary feature of this suspended declaration of invalidity is
that it should not have retrospective effect if the
period of
suspension expires without the defects in the Act having been
corrected. In exercising their powers under the impugned
chapters,
development tribunals have approved countless land developments
across the country. It would not be just and equitable
for these
decisions to be invalidated if the declaration of invalidity
comes into force.’
There
is a problem with this somewhat cryptic statement in that the
Constitutional Court did not thereafter make any order limiting
the
retrospectivity of its order. However, the case has been argued
before us on the footing that this was the effect of the Court’s
order.
[12]
Mr du Plessis submitted that,
notwithstanding the absence of a specific order, the effect of the
judgment in
Gauteng Development Tribunal
was to maintain in force all the
approvals of land developments granted by development tribunals up
until the date upon which the
order of suspension expired. As far as
applications lodged before the expiry date, but not disposed of
before that date were concerned,
they lapsed and became invalid. His
reasoning was that as the jurisdiction the tribunals had previously
exercised was constitutionally
invalid from inception so were
undetermined applications. They were applications for approval
submitted to a body that in law had
no power to approve them and
accordingly they were invalid in the same way as the relevant
chapters of the DFA were invalid.
[13]
Mr du Plessis accordingly submitted that Mr
Dykema’s application was no longer in existence, much less
pending, when SPLUMA
came into force. He drew attention to the fact
that s 60(1) of SPLUMA dealt with the consequences of the repeal
of the DFA
and not the consequences of the constitutional invalidity
of chapters V and VI. Accordingly it could not save Mr Dykema’s
application from invalidity. In any event a pending application meant
one ‘remaining undecided; awaiting decision or settlement’.
In view of the fact that after 17 June 2012 the Tribunal no longer
had the power to decide the application it ceased to be pending
at
that stage.
Was
there a pending application?
[14]
The
question for decision is whether Mr Dykema’s application was
pending before the Tribunal on 1 July 2015, notwithstanding
that on
17 June 2012 the Tribunal had ceased to have any authority to
determine it. The short answer is ‘No’. The
Concise
Oxford Dictionary
defines
‘pending’ as meaning ‘awaiting decision or
settlement’. The rather longer definition in the
Shorter
Oxford English Dictionary
is
‘remaining undecided, awaiting settlement; orig of a lawsuit’.
The
Collins
English Dictionary
says
that ‘if something such as a legal procedure is pending, it is
waiting to be dealt with or settled’. The position
is no
different in American English. The
Merriam-Webster
dictionary
gives as the definition of pending in its adjectival sense ‘not
yet decided: being in continuance’.
Black’s
Legal Dictionary
[10]
has ‘Remaining undecided; awaiting decision <a pending
case>’. Implicit in each of these definitions is that
what
is pending is still capable of being determined, which had ceased to
be the case with Mr Dykema’s application.
[15]
The
case law, both here and overseas, is to the same effect. In
Mhlungu
,
Kentridge AJ in the Constitutional Court said, in regard to the
transitional provisions in the Interim Constitution,
that
the normal meaning of pending is that proceedings ‘are pending
if they have begun but not yet finished’.
[11]
In
Nkosi
[12]
Spoelstra J referred to dictionary definitions to the same effect as
those I have quoted and said:
‘
It
applies to a matter that has commenced and is not yet finalised.’
[13]
That
case, like most of the reported decisions I have consulted, was
dealing with the stage at which a matter became pending, rather
than
whether an application can be pending before an administrative body
after that body has ceased to have the power to determine
it. However
there are clear statements in some instances to the effect that a
matter is pending only for so long as the court or
tribunal before
which it was brought is capable of making an order in relation to it.
[16]
That
a legal suit, or an application to an administrative tribunal, such
as Mr Dykema’s to the Tribunal, is only pending if
the court or
administrative tribunal still has the power to hear and dispose of it
appears clearly from two cases, the one from
Canada and the other
from New Zealand.
[14]
In
Garnham
v Tessier
[15]
it was said:
‘”
Litigation
pending”, as here used means any legal proceeding, suit or
action remaining undecided or awaiting decision or settlement.’
The
following statement appears in
National
Bank of New Zealand Ltd v Chapman
:
[16]
‘
A
legal proceeding can be said to be “pending” as soon as
it has been commenced and it remains pending until it has
been
concluded, that is,
so long as the court
having original cognizance of it can make an order on the matters in
issue
, or to be dealt with, therein.’
(My emphasis.)
I
am satisfied that these statements correctly reflect the meaning of
pending in the present context.
[17]
It was common cause between counsel that
from 17 June 2012 the Tribunal lacked any power to make an order on
Mr Dykema’s application.
When it purported to do so on 1
November 2012 that was invalid because the Tribunal acted in terms of
legislative provisions that
were constitutionally invalid. In my view
nothing could be clearer than that the application ceased to be
pending when the Tribunal
lost the authority to deal with it. The
position would have been no different had the Tribunal been abolished
on that date without
any provision being made to deal with
applications then pending. An application cannot be pending in any
realistic sense before
an administrative body when its power to grant
it has ceased to exist.
[18]
Mr
Erasmus responded to these difficulties by contending that their
effect was to render the provisions of s 60(2)(
a
)
ineffective and meaningless. He said that a court does not lightly
conclude that a statutory provision has no meaningful effect.
[17]
Building on that foundation, he submitted that the only way in which
to give the section effect was to interpret the words ‘pending
before a Tribunal … at the commencement of this Act’ as
referring to applications that had been properly lodged with
tribunals prior to 17 June 2012 and not disposed of before they lost
the power to make a decision on them. The implication was
that such
applications remained pending notwithstanding the fact that they
could not be dealt with by the Tribunal and notwithstanding
that the
legislation envisaged by the Constitutional Court order might not
make any provision for them to be pursued under new
or amended
legislation.
[19]
The submission faced substantial
difficulties in requiring a distortion of the language of the section
and a transition in time
of three years from 17 June 2012 to 1 July
2015. It provided no explanation for the status of such applications
during the intervening
period, when other developers were free to
obtain consent for their potentially competing developments from
appropriate authorities,
including local authorities such as
Bela-Bela. Nor did it offer an explanation of what would occur in
regard to the application
if new or amending legislation made no
similar provision. It contemplated a legal situation in which the
application would become
dormant, but possibly revive at an
indeterminate future date, depending on future legislation, the
content of which could not be
predicted.
[20]
A
further problem was that the Bill giving rise to the enactment of
SPLUMA was prepared and published before the expiry of the period
of
suspension of constitutional validity. As noted in
Shelton,
the
relevant government department had issued a policy statement that
development tribunals could continue to dispose of applications
lodged with them prior to the expiry of the suspension of the
declaration of constitutional invalidity. In the light of that, those
responsible for drafting SPLUMA would have anticipated that when it
came into force there would be applications pending, but not
yet
disposed of, before development tribunals even if this were after the
expiry of the period of suspension. They might well not
have foreseen
that there would be a lengthy delay between the enactment of the
legislation and its being brought into operation.
They would
certainly not have foreseen that the relevant policy in terms of
which tribunals were continuing to act would be held
to be legally
invalid as held in
Shelton
.
That being the case it seems rather more likely that the transitional
provision was put in as a typical ‘boilerplate’
provision
[18]
to deal with
whatever transitional situation existed at the time it came into
force.
[21]
Apart from these obvious difficulties,
there was a fatal flaw in the argument, because its underlying
premise that otherwise s 60(2)(
a
)
would have no practical effect was false. The reason is that it
overlooked applications in terms of s 61 in chapter VII
of
the DFA and the mediation and appeal provisions in ss 22 to 24 of the
DFA. Chapter VII deals with registration arrangements
and was not
affected by the declaration of constitutional invalidity. It is not
wholly clear whether s 61 could be invoked
in relation to
developments other than those that had first been the subject of a
land development application in terms of Chapters
V and VI of the
DFA, but that does not matter. I assume for present purposes that
Chapter VII was only applicable to land registration
arrangements in
respect of developments approved by a tribunal under Chapters V and
VI.
[22]
After a tribunal approved a development
under Chapters V and VI, the developer had to take all the steps
necessary to bring the
development to fruition. In the case of a
township development this could be a protracted process. Layout plans
would have had
to be prepared and approved; provision for services
needed to be made; negotiations with various authorities would have
had to
take place in regard to their requirements in relation to the
nature and extent of servitudes for service provision, such as water,
electricity and sewage reticulation; there would have needed to be
compliance with the conditions of establishment. Many other
steps can
be envisaged and all of these would need to take time and money.
Furthermore the rate of progress of the development
would have had to
take account of conditions in the property market and the ability to
sell the resulting stands in the township.
[23]
Once the developer was ready to proceed to
opening a township register it could apply to the relevant tribunal
for the approval
of a registration arrangement under s 61(1) of
the DFA. The tribunal would then consider the application. Section 61
required
it to be satisfied that there had been compliance with the
requirements of s 38 of the DFA and certain other statutory
requirements.
It would then either grant the application, with or
without conditions, or refuse it. Any decision made by the tribunal
would be
subject to appeal to a development appeal tribunal in terms
of s 23 of the DFA.
[24]
It is perfectly conceivable that an
applicant for development approval might have obtained such approval
in early June 2012 before
the declaration of invalidity came into
effect. For the reasons dealt with in para 11 of this judgment, the
approval would have
remained valid and unaffected by the declaration
of invalidity. If it then took the developer eighteen months or two
years before
being ready to submit an application for a registration
arrangement, and the application was delayed while the tribunal was
satisfying
itself that all the requirements for granting a
registration arrangement were satisfied, it is readily conceivable
that such an
application could have been outstanding on 1 July 2015.
Equally if the tribunal approved the registration arrangement subject
to
conditions that the developer did not wish to accept, there could
have been an appeal to a development appeal tribunal under s 23,
read
with s 16(
a
),
of the DFA.
[25]
The point of this example is to demonstrate
that, entirely apart from applications under chapters V and VI of the
DFA, there was
undoubtedly scope for there to have been applications,
appeals or other matters pending before a tribunal when SPLUMA came
into
operation on 1 July 2015. That being so the foundation for Mr
Erasmus’ argument fell away. It is unnecessary to give a
strained
interpretation to s 60(2)(
a
)
in order to provide the section with a practical purpose.
[26]
I
have now had the opportunity to read the judgment by Mothle AJA. He
holds that, as the Municipality had informed the Tribunal,
while the
latter was considering Mr Dykema’s application, that it
supported the change in land use, ‘that approval
is protected’
by the decision of the Constitutional Court that land development
approvals by tribunals would not be invalidated
if the declaration of
invalidity came into operation without the defects in the DFA having
been corrected.
[19]
The
Municipality had an obligation to give effect to Mr Dykema’s
right to just administrative action by considering his application,
but instead delayed and required him to submit a fresh application.
The DFA did not put any time limit on applications to it. Either
the
application was still pending when SPLUMA came into operation in 2015
or it ‘must be accepted as having resuscitated
such
applications and given them a life line’. In his view it was in
the interests of justice to grant the relief granted
by the high
court.
[27]
I am unable to agree with this reasoning.
Mr Dykema’s application proceeded from the premise that the
Tribunal had lawfully
approved his application. In his own words the
purpose of the relief sought was to ‘give effect to the
approved land use
rights of the Applicant’. That was a
reference to the Tribunal’s approval of his application in
November 2012. When
his planners approached the Municipality in 2013,
it was on the basis that he would withdraw his DFA application and
resubmit it
to the Municipality under the Ordinance. The rider was
that the latter would agree that it would be unnecessary to
re-advertise
the application or follow the procedures under the
applicable Ordinance. This would, so he said, enable the Municipality
to ‘promulgate
the approved land use rights in terms of the
Ordinance’. He sought to interdict the Municipality from
processing Mr Malebane’s
application because it was not
‘processable’ in the light of the DFA approval of his
application. In summing up his
case Mr Dykema said that he was ‘the
beneficiary of a formal land use change approval issued by the DFA
Tribunal’.
[28]
Nowhere in the application papers, or the
arguments addressed in this court and the high court, was there any
suggestion that the
Municipality’s willingness in 2012 to
approve a change of land use for Mr Dykema, conferred any rights upon
him as against
the Municipality. Nor did he complain that the
Municipality infringed his rights to just administrative action. He
accepted that
the Municipality had a discretion whether to adopt the
route proposed by his town planner. He did not suggest that its
refusal
to exercise that discretion in his favour was unlawful and,
in any event, would have had to bring separate review proceedings
under
PAJA if that was his case. In those circumstances where no
allegations were made against the Municipality that it was in breach
of obligations owed to Mr Dykema, or that its past conduct amounted
to a binding decision to approve a change in land use, the
Municipality understandably abided the decision of the court on Mr
Dykema’s application. Mothle AJA’s approach would
condemn
it on grounds forming no part of the case made by Mr Dykema in
circumstances where the Municipality has had no opportunity
to defend
itself. That is impermissible.
[29]
My
colleague accepts that the decision by the Tribunal in November 2012
was invalid. He also accepts that after 17 June 2012 the
Tribunal no
longer had any statutory authority to deal with Mr Dykema’s
application under the DFA. The Constitutional Court’s
decision
on retrospectivity meant that tribunal planning decisions already
made and affording rights to applicants were not invalidated.
The
same did not apply to people in the position of Mr Dykema, as
recognised by him in his approaches to the Municipality and his
proposal that he submit an application under the Ordinance for
approval. I have given my reasons for saying that the DFA application
was not pending when SPLUMA came into operation. The suggestion that
it was ‘resuscitated’ is a novel one and not one
advanced
by leading counsel for Mr Dykema. In my view it is unsound. Mr
Malebane correctly pointed out that, when he lodged his
application
in 2015, circumstances would have changed since Mr Dykema’s
original application – not least because there
were now
competing applications – and a fair administrative process
required the Municipality to weigh up the applications
in the light
of the change in circumstance.
[20]
[30]
For those reasons the appeal must succeed.
I make the following order:
1.
The appeal is upheld with costs.
2.
The order of the high court is set aside
and the following order substituted:
‘
The
application is dismissed with costs.’
3.
The cross appeal is dismissed with costs.
___________________________
M
J D WALLIS
JUDGE
OF APPEAL
MOTHLE
AJA
(Dissenting)
[31]
I have read the judgment of Wallis JA (the first judgment). I
respectfully disagree with the analysis and the conclusion reached
in
the first judgment. In my view the applications that were lodged and
not finalised (the pending applications) in terms of the
now repealed
Development Facilitation Act 67 of 1995 (DFA)
,
have neither
lapsed nor became nullified on expiry of the period of suspension of
the declaration of invalidity, being 17 June
2012 (the date of
expiry). On a proper construction of the Constitutional Court order
of the declaration of invalidity, read with
section 60(2)(a) of the
Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA), I
would, for reasons that follow hereunder,
dismiss the appeal with
costs, and uphold the cross- appeal
.
[32]
A summary of the background facts appears in the first judgment and
will not be repeated in this judgment. Only a short chronology
of
events and the salient points will be referred to for purposes of
context. At the centre of this appeal, is the question of
the status
and fate of the pending applications from the date of expiry.
[33]
The respondent, Mr Dykema’s version of events reveals a sense
of frustration that he had endured, at the hands of the
state, mainly
Bela-Bela Local Municipality (the Municipality), the moment he lodged
his application. A brief chronology of
events demonstrates this
unfortunate experience.
[34]
On 18 June 2010, the Constitutional Court held that chapters V and VI
of the DFA were invalid. It further ordered that the
declaration of
invalidity be suspended for a period of 24 months from date of order.
Most importantly, the Constitutional Court
allowed the provincial
tribunals established under DFA and charged with the authority to
decide on applications for land use, to
continue with the execution
of these functions during the period of suspension of the order.
[35]
In February 2012, four months before the date of expiry, Mr Dykema
lodged his application. His application included documents
which
indicated that he had commenced work on the project several months
before the application was lodged with the Limpopo Development
Tribunal (the Tribunal). On receipt of this application, the
Tribunal, in the same month (February 2012), forwarded the
application
under cover of a memorandum, requesting comment from the
Municipality.
[36]
A process of approximately three months of internal communications
within the Municipality in order to consider the application,
ensued.
Between 17 February 2012 and 7 May 2012, senior officials of various
divisions of the Municipality, starting with Technical
Services on 17
February 2012, through March and April, up to and including the final
signature of the Municipal Manager on 7 May
2012, all approved Mr
Dykema’s application, subject to the project complying with
specified conditions. Some three
months later the application
was returned to the Tribunal which approved it, subject to compliance
with some technical conditions
during construction. The Bakwena
Platinum Corridor, the Road Agency of Limpopo as well as the
Department of Agriculture and Fisheries
had all approved the
application as well. The Tribunal conducted hearings between 13 April
and 5 June 2012, where evidence was
led and expert reports
considered. The final leg was to receive submissions from various
legal representatives of the interested
parties and then take a
decision. The hearing stood down by agreement with the parties, for
heads of argument to be filed by 16
July 2012.
[37]
I pause to mention that on 22 March 2012, three months before the
date of expiry (17 June 2012), the Department of Rural Development
and Land Reform issued a public statement commenting on the progress
of finalising the Spatial Planning and Land Use Management
Bill. The
statement gave a directive to all tribunals to consider all
applications pending before them, even after the date of
expiry.
However, it directed that no new applications should be accepted as
of the date of expiry. An undertaking was also given
in the statement
as follows:
‘
(b)
Application to the Constitutional Court by the Government for an
extension to the 24 months will be made in time if it is established
that no other viable alternative exists to processing land
applications in any part of the country except via the DFA.
(f)
In the North-West, Limpopo, Mpumalanga, Eastern Cape, and Gauteng
Provinces it is important to note that the pre-1995 laws on
land
development management remains in the law books. These laws are still
in use, and they will continue to be used until the
enactment of the
Spatial Planning and Land Use Management Bill into an Act of
Parliament.’
[38]
To complete the narrative of Mr Dykema’s plight, I continue
with the chronology of events. After the date of expiry,
Mr Dykema’s
town planners continued to engage the Municipality to seek assistance
to have the application finalised. On 10
July 2013, the town planners
wrote a letter to the Municipality, requesting that Mr Dykema’s
application be finalised in
terms of section 69(3) of the Town
Planning and Townships Ordinance 15 of 1986 (the Ordinance). The
section gives the Municipality
a discretion to process and finalise
applications such as those of Mr Dykema and take a decision.
[39]
The Municipality replied to the town planners on 11 August 2014, more
than a year later, in a terse one paragraph response
indicating that
Mr Dykema must submit a
new
application in terms of the
Ordinance. What was alarming about the letter from the
Municipality is the following (a) By then
the Municipality had
already had a period of three months (February to May 2012) to
consider and approve Mr Dykema’s application
as submitted to it
for comment by the Tribunal. The Municipality in their comment
supported the approval of the application; (b)
Mr Dykema’s
application, but for the legal representatives’ submission of
heads, was almost completed as at the date
of expiry. (c) At the time
of their response in August 2014, the Municipality was aware of a
competing application from the appellant,
Mr Malebane, for a similar
project on a property situated about 19 kilometres from the proposed
site of Mr Dykema. The documents
in the appeal record indicate that
as at May 2014, Mr Malebane had, like Mr Dykema, obtained approvals
and support from the Road
Agency and Bakwena .Platinum Corridor; (d)
The Government had not yet promulgated legislation to give direction
to the fate of
the pending applications, after the date of expiry as
indicated in the Department’s statement. It had also not
approached
the Constitutional Court to request an extension of the
date of expiry. That legislation became a reality in 2015, three
years
after the date of expiry; (e) Having been part of the process
to consider Mr Dykema’s application, the Municipality was
empowered
and in a better posit
ion
to
finalise the application in July 2013 as per the directive
of the Department.
[40]
A period of uncertainty and confusion ensued as regards the status of
the pending applications. In Mr Dykema’s case,
the confusion
was compounded by the fact that the final approval of his application
by the Tribunal in November 2012 - was invalidated
by the effect of
two judgments of this Court
[21]
in 2016 and 2018, after unsuccessful attempts to obtain cooperation
from the Municipality concerning post-approval procedures.
[41]
At the time Mr Dykema approached the high court, he found himself
confronted with an argument from his competitor, Mr Malebane
that his
(Mr Dykema’s) application lapsed or was nullified on the date
of expiry when the Tribunal lost the power to consider
it. Mr
Malebane contended thus:
‘…
the
Applicant’s failure to comply with the post-approval
obligations stated in the DFA and its Regulations caused the
Applicant’s
DFA application to lapse (by operation of the law)
and therefore the approval granted by the LDT lapsed simultaneously.’
[42]
The reference to ‘
by operation of the law’
turned
out to mean the declaration of invalidity of the DFA. To put matters
in perspective, it is necessary to examine the nature
of the
application lodged by Mr Dykema.
[43]
Mr Dykema’s application is an exercise of his right to a just
administrative action, as provided for in section 33 of
the
Constitution.
[22]
He had
a legitimate and justified expectation that his application would be
considered and decided upon. The Tribunal in
accepting the
application, assumed the obligation to consider and decide on the
application as provided for in s 33(3) (b) and
(c) of the
Constitution read with the provisions of the
Promotion of
Administrative Justice Act 3 of 2000
. As at the date of expiry, the
pending applications, including those completed or finalised, were in
my view the objects of the
applicants’ right to a just
administrative decision.
[44]
In declaring chapters V and VI of the DFA to be constitutionally
invalid, both this Court and the Constitutional Court effectively
removed the administrative powers of the tribunals to receive,
consider and decide on land use applications. There is no
record that these courts or any organ of state had declared, or by
inferential reasoning had accepted that the pending applications
lapsed or became nullified. Such a demise of the pending applications
would have, by implication, brought an end to the applicants’
exercise of their right to just administrative action, without a
decision having been taken, one way or the other, a situation
that
would be untenable.
[45]
Mr Malebane’s contention conflates instead of separating the
pending applications from the loss of power on the part
of the
tribunals. The pending applications, even after submission, remained
as the rights of the applicants who, alone, had the
power to decide
whether to withdraw, abandon or persist with the exercise of their
right to a just administrative action before
any newly empowered
organ of state. As it becomes apparent later in this judgment, this
view is buttressed by
s 60(2)
of SPLUMA.
[46]
The Constitutional Court could not have intended for anything other
than the removal of the power of the tribunals to consider
and decide
on the applications. This Court in the matter of
Johannesburg
Municipality v Gauteng Development Tribunal,
[23]
after declaring chapters V and VI of the DFA invalid, suspended the
declaration of invalidity for a period of 18 months subject
to the
following:
‘
No
development tribunal established under the Act may accept for
consideration or consider any application for the grant or alteration
of land use rights in a municipal area.
No
development tribunal established under the Act may on its own
initiative amend any measure that regulates or controls land use
within a municipal area.’
[47]
The Constitutional Court upheld the decision of this Court to declare
chapters V and VI of the DFA constitutionally invalid,
but set aside
this Court’s order of suspension of the period of invalidity as
well as the conditions of suspension. Instead,
the Constitutional
Court ordered in paras 7 and 8 as follows:
‘
The
declaration of invalidity is suspended for 24 months from the date of
this order to enable Parliament to correct the defects
or enact new
legislation.
The
suspension is subject to the following conditions:
(a)
Development Tribunals must consider the applicable
integrated-development plans, including spatial-development
frameworks
and urban-development boundaries, when determining
applications for the grant or alteration of land use rights.
(b)
No development tribunal established under the Act may exclude any
bylaw or Act of Parliament from applying to land forming the
subject-matter of an application submitted to it.
(c)
No development tribunal established under the Act may accept and
determine any application for the grant or alteration
of land-use
rights within the jurisdiction of the City of Johannesburg
Metropolitan Municipality or eThekwini Municipality, after
the date
of this order.
(d)
The relevant development tribunals may determine applications in
respect of land falling within the jurisdiction of the City
of
Johannesburg Metropolitan Municipality or eThekwini Municipality only
if these applications were submitted to it before the
date of this
order.’
[48]
The conditions of suspension of the orders of this Court sought to
prohibit any receipt and consideration of applications during
the
period of suspension of the declaration of invalidity. That would
have had the effect of not only restraining the tribunals
from
exercising their powers beyond the date of the order of the
declaration of invalidity, but also prohibiting prospective
applicants
desiring to submit applications for consideration during
the period of suspension, from doing so. That would have amounted to
a
total prohibition on the exercise of their constitutional right to
just administrative action. The Constitutional Court set that
part of
this Court’s order aside and protected the right of citizens to
continue submitting applications after the date of
the declaration of
invalidity, but limited it to the period of suspension
[49]
The exercise of the power to suspend an order of invalidity in terms
of s172 of the Constitution, has to be just and equitable
and not
disruptive and result in the deprivation of rights.
In Steenkamp
NO v Provincial Tender Board of the Eastern Cape
2007 (3) SA 121
(CC), paras 28 to 29 the Court stated thus:
‘
[S]ince
the advent of our constitutional dispensation administrative justice
has become a constitutional imperative. It is an incident
of the
separation of powers through which courts review and regulate the
exercise of public power. The Bill of Rights achieves
this by
conferring on ‘everyone’ a right to lawful administrative
action that must also be reasonable and procedurally
fair…’
[50]
In
McBride v Minister of Police
[2016] ZACC 30
;
2016 (2) SACR
585
(CC) at para 52 the Court stated thus:
‘…
In
Kruger
, the Court preserved the conduct of the Road Accident
Fund that had relied on invalid proclamations. This was to avoid
disruption
and disorder. There must be an interest of justice
consideration that overrides the presumption of objective
constitutional invalidity.’
These
authorities convey a clear message that the purpose of suspension of
an order is not aimed at an infringement of any person’s
rights. See also
Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal
Planning and Development Appeal Tribunal and others
2016 (3) SA
160
(CC). The current case makes reference to the KZN case in para 19
of the judgment of the high court in this case. The high court
wrote:
‘
In
that matter, despite the invalidity of the empowering statute, the
Constitutional Court permitted a tribunal to exercise powers
pertaining to land use rights, provided it did so from the
perspective of a Municipality and not from the perspective of a
Province.’
[51]
Consequently it would be reasonable to accept that as at the date of
expiry, there may have been a considerable number of applications
lodged, which were at different stages of consideration, some at the
beginning and others towards finality. As at the date of expiry,
Mr
Dykema’s application, with the support of the Municipality, was
in the final stages of completion.
[52]
The dictates of good governance would have demanded that the
tribunals, immediately transfer the pending applications to the
municipalities on the date of expiry. Alternatively, at worst, with
their powers divested, to return the applications to the applicants.
[53]
In the case of Mr Dykema’s application, the Municipality had
already considered and approved it as part of the DFA process
of
considering the application. That approval is protected by the
Constitutional Court order as it occurred within the period of
suspension. The
Sheldon
and
Patmar
cases invalidated
the approval by the Tribunal in November 2012, correctly so as it was
made after the date of expiry. As at July
2013, the Municipality had
a statutory obligation as the State in terms of s 33(3) (b) of the
Constitution, to give effect to Mr
Dykema’s right to a just
administrative action by considering his application. It failed to do
so on request, instead replied
Mr Dykema one year after his request
and informed him to submit a new application. This response would
have provided an unfair
and unreasonable advantage to those
applicants, such as Mr Malebane, who after the date of expiry, had
lodged their applications
with the Municipality in terms of the
Ordinance. The Municipality ignored the directive from the national
Department.
[54]
As the Constitutional Court observed in its judgment, it was expected
of Parliament and the Executive to proclaim remedial
legislative
measures to correct the constitutional defect. The fate of the
pending applications was thus left to the Executive
and Parliament to
deal with. I now turn to the remedial legislative measures that were
introduced.
[55]
The remedial legislative framework envisaged by the Constitutional
Court came in the form of
SPLUMA, which came in to
operation on 1 July 2015, three years after the date of expiry.
Section 60 of SPLUMA provided for transitional
provisions. Section 60
(1) reiterated the protection of the completed applications as stated
in para 85 of the judgment of the
Constitutional Court in
Johannesburg Metropolitan Municipality case. It is s 60(2)
(a)
that is of relevance to the fate of the pending applications. It
provides:
‘
All
applications, appeals or other matters pending before a tribunal in
terms of section 15 of the Development Facilitation Act,
1995 (Act 67
of 1995) at the commencement of this Act that have not been decided
or otherwise disposed of, must be continued and
disposed of in terms
of this Act.’
[56]
Section 60(2) (d) of SPLUMA further provides that the Minister may
prescribe a date by which the pending applications, appeals
or other
matters must be disposed of, and may prescribe arrangements in
respect of such matters not disposed of by that date. The
Minister
has not yet made such determination. Mr Dykema’s pending
application may still be submitted as ordered by the high
court.
[57]
At the time Mr Dykema launched his application before the high court
in November 2015, the provisions of s 60 of SPLUMA had
been in force
as at 1 July 2015. If there was still uncertainty or confusion
prevailing on the status of the pending applications,
it was
clarified by s 60 of SPLUMA. Similarly, if there was any merit in the
contention that the pending applications had lapsed
or became
nullified, then s 60(2) of SPLUMA must be accepted as having
resuscitated such applications and had given them a life
line as to
how they should be disposed of. The language of s 60(2)
(b
) is
couched in peremptory terms for the municipalities to consider these
applications. To persist with the argument that the pending
applications had lapsed is to render s 60 of SPLUMA superfluous.
[58]
Declaring the pending applications to have lapsed could also have far
reaching implications. This appeal before us, came three
years after
the commencement of SPLUMA. It is conceivable that since the
commencement of litigation in this case, other pending
applications
have been considered and finalised in terms of s 60(2)
(a
). It
is unclear what the status of such applications would be if one
regards them as having lapsed or became nullified on the date
of
expiry. The reality is that the pending applications would only lapse
after they are either withdrawn or abandoned by the applicants;
or
disposed of with a decision, one way or the other by an organ of
state having the power to do so. Parliament accepted
that the
pending applications could still be considered by another organ of
state in terms of s 60(2) of SPLUMA.
[59]
There is no merit in Mr Malebane’s contention. It cannot be
correct. The purpose and effect of the declaration of invalidity
was
limited to the removal of the power of the tribunals to receive,
consider and decide on the applications, not to nullify the
applications that were lodged. The DFA did not put any time frames on
the lifespan of the applications. The suspension was intended
to
allow the tribunals to continue providing a service to the public so
as to avoid a disruption of the government’s processes
and
services. Thus the argument raised by Mr Malebane that Mr Dykema’s
application had lapsed, was based on a false inferential
reasoning
that had no support in law or fact. It should be rejected and the
appeal should fail.
[60]
Before concluding, something needs to be said about the effect of the
judgments in
Shelton
and
Patmar
. This Court was correct
in striking down the decisions taken by the tribunals after the date
of expiry as being
ultra vires.
The tribunals had no legal
authority to continue with the applications beyond the date of
expiry. Similarly, the view expressed
by the Department in its public
statement that the tribunals must complete the remaining applications
beyond the date of expiry
was incorrect. However, the striking down
of the tribunal’s decisions can only affect what they did after
the date of expiry.
Anything they did before the date of expiry is
protected by the order of the Constitutional Court. Consequently, all
applications
affected by the
Shelton
and
Patmar
decisions logically revert to their status, whatever it may have
been, before the date of expiry. Mr Dykema need not have contended
for the impugned approval, but should rather have taken his
application as it was on 17 June 2012, and submitted it to the
Municipality
in terms of s 60(2).
[61]
The high court was correct to grant the order it did as it is in the
interests of justice to do so. The order ensures a lawful,
reasonable
and procedurally fair administrative action between the parties. I
would therefore dismiss the appeal, uphold the cross
appeal and award
the costs of this appeal to the respondent.
______________________
S
P MOTHLE
ACTING
JUDGE OF APPEAL
Appearances
For
appellant: S J Du Plessis SC
Instructed
by: Kuilman Mundell & Arlow, Johannesburg
Claude
Reid Inc, Bloemfontein
For
first respondent: M C Erasmus SC (with him D J van Heerden)
Heads
of argument prepared by A Liversage SC
Instructed
by: Adriaan Venter Attorneys & Associates, Pretoria
Rossouws
Attorneys, Bloemfontein.
[1]
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal and Others
(
Gauteng
Development Tribunal (CC)
)
[2010] ZACC 11; 2010 (6) SA 182 (CC).
[2]
Johannesburg
Municipality v Gauteng Development Tribunal and Others
[2009] ZASCA 106; 2010 (2) SA 554 (SCA).
[3]
See
Shelton
and
another v Eastern Cape Development Tribunal and others
[2016]
ZASCA 125
(
Shelton
),
para 18.
[4]
Patmar
Explorations (Pty) Limited v Limpopo Development Tribunal
[2018]
ZASCA 19; 2018 (4) SA 107 (SCA).
[5]
Merafong
City Local Municipality v AngloGold Ashanti Ltd
[2016]
ZACC 35; 2017 (2) SA 211 (CC).
[6]
Department
of Transport and Others v Tasima (Pty) Ltd
[2016]
ZACC 39; 2017 (2) SA 622 (CC).
[7]
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO
1996
(1) SA 984
(CC) paras 27 and 28.
[8]
Gauteng
Development Tribunal (CC)
,
para 81, p 209I-210A.
[9]
Gauteng
Development Tribunal (CC)
,
para 85.
[10]
Bryan
A Garner (ed)
Black’s
Legal Dictionary
(9
ed, 2009) p 1248 sv ‘pending’.
[11]
S
v Mhlungu and Others
[1995] ZACC 4
;
1995
(3) SA 867
(CC). Although this was a minority judgment there was
nothing in the other judgments that suggested it was incorrect.
[12]
Nkosi
v Barlow NO en Andere
1984
(3) SA 148
(T) at 154A-B.
[13]
I
translate from the original, which read: ‘ Dit dui dus op ʼn
aangeleentheid wat begin het en nog nie gefinaliseer
is nie.’
See also
Noah
v Union National South British Insurance Co Ltd
1979
(1) SA 330
(T) at 332B-C.
[14]
Cited
in
Words
and Phrases Legally Defined
(3
ed, 1989) p 344, sv ‘pending’.
[15]
Garnham
v Tessier
(1959)
27 WWR 682
at 688, Man CA.
[16]
National
Bank of New Zealand Ltd v Chapman
[1975]
1 NZLR 480
at 482. This judgment appears to be the source of the
corresponding statement in
Stroud’s
Judicial Dictionary of Words and Phrases
(7 ed, 2006) Vol 3, p 194, sv ‘pending’.
[17]
National
Credit Regulator v Opperman and Others
2013
(2) SA 1
(CC) para 42.
[18]
See
Mhlungu
,
op cit, paras 22-23 and 26 (per Mahomed J) and para 75 (per
Kentridge AJ).
[19]
Gauteng
Development Tribunal (CC)
,
para 83. As noted in para 11 of this judgment the Court made no
orderr in that regard.
[20]
Logbro
Properties CC v Bedderson NO and Others
2003
(2) SA 460
(SCA) paras 23 to 25.
[21]
Shelton
v Eastern Cape Development Tribunal
[2016] ZASCA 125
and
Patmar
Explorations (Pty) Ltd and Others v The Limpopo Development Tribunal
and Others
[2018] ZASCA 19; 2018 (4) SA 107 (SCA).
[22]
The
Constitution of the Republic of South Africa, 1996. Section 33
reads;
[23]
This case first came before the Gauteng Local Division of the High
Court and was reported in the law reports under the same name,
as
follows: High Court
[2008] ZAGPHC 30
;
2008 (4) SA 572
(W); SCA 2010 (
2) SA 554
(SCA) and Constitutional Court
2010 (6) SA 182
(CC).