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[2016] ZAGPPHC 553
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Acornhoek Plaza Share Block (Pty)Ltd v MEC:Dept of Agriculture (27542/2013) [2016] ZAGPPHC 553 (5 May 2016)
SAFLII
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA}
Case Number: 2 7542 / 2013
DATE:5
MAY 2016
In the matter between:
ACORNHOEK PLAZA SHARE
BLOCK (PTY ) LTD APPLICANT
And
THE MEC: DEPARTMENT
AGRICULTURE, RURAL DEVELOPMENT
& LAND
ADMINISTRATION,
MPUMALANGA PROVINCIAL
GOVERNMENT 1
st
RESPONDENT
THE CHAIRPERSON:
THE MPUMALANGA
DEVELOPMENT TRIBUNAL 2
nd
RESPONDENT
THE MUNICIPAL MANAGER:
BUSHBUCKRIDGE LOCAL
MUNICIPALITY 3
rd
RESPONDENT
MAMOKHUTHU GROUP
DEVELOPMENT CC
4
th
RESPONDENT
THE MINISTER OF LAND
AFFAIRS
5
th
RESPONDENT
NAD PROPERTY INCOME FUND
(PTY) LTD 6
th
RESPONDENT
THE REGISTRAR OF DEEDS
7
th
RESPONDENT
THE SURVEYOR
GENERAL
8
th
RESPONDENT
JUDGMENT
Fabricius
J,
1.
Before me is a review
application the record of which, including all relevant affidavits
and annexures, consists of some 3000 pages.
The proceedings before me
were confined to argument relating to two points
in limine
which
I need to decide. The first one relates to the question whether or
not the Applicant has
locus standi
in these proceedings, and
the second one relates to the question whether or not the proceedings
were brought within a reasonable
time having regard to the provision
referred to as "PAJA". The relevant review application was
lodged on 9 May 2013 in
this Court and the prayers read as follows: "
1.
That the decision of the Third Respondent dated May 2012,
referred to in Annexure A hereto, and by virtue of which the
utilization
of the property known as [ Portion .. of the Farm
Greenvalley 2.., Registration Division KU], in terms of an existing
Land AvailabilityAgreement
or otherwise, has been changed from a
middle income housing project consisting of 53
7
erven to
inter alia that of a regional Shopping Centre, be reviewed and set
aside.
2.
That any subsequent
amendment of the Land Availability Agreement
concluded between
the Third Respondent and the Fourth Respondent which Agreement is
dated 8 June 2009, and which is attached hereto
as Annexure B, in
accordance with the decision mentioned in Prayer 1 hereof,be declared
null and void
with no further force or effect.
3.
That the decision of the
Second Respondent, by way of which the objection
received from
Umsebe Development Planners,dated 2 3 April 2012, against Section 3 5
read with Regulation 3 2 ( 3 ) (a) of the Development
Facilitation
Act 19 9 5, and which objection is annexed hereto as Annexure C, has
been disqualified as a valid and timeous objection
and such
Application has been processed and approved on an unopposed basis, be
reviewed and set aside.
4.
That the decision of the
Second Respondent dated 11 May 2012
and
attached hereto as
Annexure D, by virtue of which the Application for amendment referred
to in prayer 3, was accepted as an "amendment"
of an
existing decision, was processed and was, in terms of such decision,
approved in terms of the statutory provisions mentioned,
subject to
certain conditions, be reviewed and set aside.
5.
That any subsequent
actions, decisions and/ or authorizations of the
First
Respondent, Second
Respondent and Third Respondent, by virtue of which any of the
decisions referred to in Prayers 1, 3 and 4 hereof,
have been given
effect or have been executed in the form of publications,
proclamations, approval of
site development plans or building plans in terms prevailing Town
Planning Scheme or any alternative
statutory provision, be declared
null and void with no further force or effect."
2.
The Annexure A referred to
in prayer 1 in turn reads as follows:
"The above-mentioned
matter which was presented before the Mpumalanga
Development Tribunal on 2 6
March 2012 refers.
In response to your letter
dated 2 6 March 2012 with regard to the above-mentioned
application,the Bushbuckridge Local Municipality
wishes to inform you
that the proposed development has been presented to the Portfolio
Committee for Finance, Supply Chain, Economic
Development, Planning
and Environment and was supported by the Committee on 24 April 2012.
The Bushbuckridge Municipal
Council would not be able to sit prior to the Hearing scheduled for
21 May 2012. We therefore request
that the Development Tribunal
consider the application as submitted and that the Municipal Council
Resolution will be submitted
to the Department immediately after the
sitting of the Council. We trust that the above is in order and the
points raised will
be attended to. Should you require any further
information please do not hesitate to contact our office."
I may just add at this
stage that having regard to the content of this annexure, it is not
exactly clear what "decision of
the Third Respondent" the
Applicant has in mindin the context of Prayer 1.
Prayer 2 refers to Annexure
B. This agreement is dated 8 June 2009. It is clear from the terms of
the agreement that it was intended
to develop the relevant property
and to provide for residential erven. I may also add at this stage
that it is certainly not clear
at all from the terms of Prayer 2 what
"any subsequent amendment" to this agreement the Applicant
has or had in mind.
In the same way, it
is not clear from Prayer 5
which "subsequent actions, decisions and/ or
authorizations" are
referred to.
3.
The Sixth, Seventh and
Eighth Respondents were joined later in the proceedings granted by
way of an order dated 18 October 2013.
The Supreme Court of Appeal
refused leave to appeal against the order made, clearly on the basis
that it was of an interim nature.
That is also the reason why I do
not regard the previous interim order granted as being conclusive in
these proceedings on the
basis that the brief argument relating to
res iudicata
has no merit at all.
4.
On 31 March 2014, Applicant
filed a lengthy Supplementary affidavit which amongst others dealt
with the joinder of the Sixth, Seventh
and Eighth Respondents and
also referred to an amendment of the original relief sought in the
Notice of Motion. It is necessary
to refer to the relief sought in
terms thereof and it is as follows:
1.
''That the Land
Availability Agreement concluded between the Third
Respondent
and the Fourth Respondent by virtue of Resolution number 30/ 2007
dated 2 2 March
2007
page
490 and 613 of the record and any subsequent amendment thereof
including the document dated 8 June 2009, property known as
[Portion
.. of the Farm Greenvalley 2..], Registration
Division KU, be declared
null and void, and with no force or effect.
2.
That the Engineering
Services Agreement concluded between the Third
Respondent and
the Fourth Respondent on or about 2 3 August 2000 in respect of the
development of the property mentioned in paragraph
1above and which
Agreement is to be found on pages 145 up to 154 of the Record be
declared null and void and with no force or effect.
3.
Th t the "Agreement"
concluded between the Fourth Respondent and the
Sixth
Respondent in respect of a portion of approximately 15 hectares of
the property referred to in paragraph 1 above apparently
on or about
July 2011 and of which an unsigned copy is attached as pages 6 3 3 up
to 6 50 of the Record, be declared null and void
and with no force or
effect.
4.
That the transfer of the
portion of the property mentioned in paragraph
3
above from the Third
respondent to the Sixth Respondent by virtue of either of the
Agreements referred to in paragraphs1 and 3 above,
or any other
property, be declared null and void and with no further force or
effect.
5.
That the Seventh
Respondent be directed to reverse the transfer of
the
property referred to
in paragraph 3 above, from the name of the Sixth Respondent, in terms
of the provisions of the Deeds Registries
Act 47 of 19 3
7
to
the effect that ownership thereof shall re-vest in the Third
Respondent.
6.
That
the decisions of the Third Respondent dated 24 April 2012 and 5 July
2012 respectively to be found on pages 46
7
- 471 and
page 47 6 of the Record, and confirmed to the Second Respondent by
way of correspondence to be found on pages 6 6 2 and
6 6
7
of
the Record, by virtue of which the utilization of the property
referred to in paragraph 1 hereof, has been changed from a middle
income housing project consisting of 53
7
erven to
inter alia that of
predominantly a regional Shopping Centre, be reviewed and set aside.
7.
That the decision of the Second Respondent dated 11 May
2012, to be found Amendment lodged by the Fourth Respondent in terms
of
Section 3 5 read with Regulation 3 2 ( 3) (a) or any other
provision of the Development Facilitation Act 19 9 5, was accepted as
an "amendment" of an existing decision, was processed and
approved, subject to certain conditions, be reviewed and set
aside.
8.
That the approval of the
conditions of Approval of the land development
area
known as [
GreenvalleyExtention .. ] and the Development Plans for the approved
and amended land development application referred
to in paragraph
7
above and which land development areas are known as
[GreenvalleyExt ..and Greenvalley Ext ..] by the Second Respondent,
on 19 April
2013 , in terms of the invalid provisions of Chapters V
and VI of the Development Facilitation Act 19 9 5 and which approvals
are
to be found on pages 728 up to
730
and 73 3 up to 740 of the Record, be reviewed and
set aside.
9.
That the subsequent
approval of the General Plans of the land
development
June 2013,
which approvals are reflected on pages
771
up to
776
of
the Record be reviewed and set aside and that the Eighth Respondent
be directed to amend its Records accordingly in terms of
the Land
Survey Act 8
of 19 9 7.
10.
That the Resolution of
the Third Respondent dated 2 9 May 2013 which is to
be found
on page 744 up to 754 of the Record and which Resolution was
apparently relied upon by th Third respondent to effect transfer
of
the property mentioned in paragraph 3 above to the sixth Respondent,
be reviewed and set aside.
That
the Resolution of the Third respondent dated 10 July 2013 and which
is
to be found on page
7
6 3 of the Record by virtue
of which the Third Respondent has in terms of Section
7
( 6 )
of the National Building Regulations and Building Standards Act 19
77 approve the commencement of construction activities
on the
property mentioned in paragraph 3 above by the Sixth Respondent be
reviewed and set aside.Respondent, Second Respondent
and Third
Respondent, by virtue of which any of the agreements or decisions
referred to in paragraphs 1, 2, 3, 6,
7
,
8, 9,
10 and 11 hereof, have been given effect to or have been executed in
the form of publications, proclamations, approval of
site
development plans or building plans in terms of the National
Building Regulations and Building Standards Act 19
77
or in
terms of any alternative statutory provision, be declared null and
void with no further force or effect." This page
is the same as
Prayer 5 in the original Notice of Motion and during argument it was
abandoned by Applicant' s Counsel.
5.
Applicant's
locus
s
tandi:
In the Founding Affidavit
Applicant said that it "is the legal possessor, occupant and
owner of a property known as a portion
of the Farm Greenvalley".
This property was in extent some
7.
3
hectares, located adjacent to the R40 main access road to 2 9 806m2
has been developed in five phases over the last 20 years,
and which
shopping centre is known as the Acorn Plaza. This will be referred to
as "Applicant's development". Applicant
said further in the
context of locus standi that it "has vested rights and interests
in immovable property, is an occupant
of such property, pays
assessment rates in respect
of such property and therefore has locus standi to approach this
Court. The relevant relief claimed
in the Notice of Motion pertains
to the approval of land use rights on the property adjacent to the
same road within the same catchment
area of applicant' sdevelopment,
serving the same threshold population intended on land
approximately600m from Applicant's development".
The Fifth Respondent was
cited due to him being the current registered owner of the
subject property which
"apparently is to be made available to the Third Respondent
for development purposes".
Under the heading "ESSENCE
OF THE APPLICATION", Applicant says that it approaches this
Court in accordance with the provisions
of
PAJA
to procure an order by virtue of which the decisions
of the Second and Third Respondents by way approved, are reviewed and
set aside.
Applicant continues to say in the Found Affidavit that the
basis for such an approach to the Court stems from the fact that: "
8.2
.1 The land use change process
followed by the Fourth Respondent, and
allowed by the Second
Respondent, in order to procure such approved commercial land uses,
is inappropriate and irregular in the
circumstances and is not
allowed by the authorising legislation,
i.
e. the DFA.
8.2.2
The land use change
process followed by the Fourth Respondent is
not
authorised an.d the
Application for amendment lodged does not comply with the mandatory
and material procedures and requirements
of the authorising
legislation,
i.
e. the
DFA.
8.2.3
The administrative
procedures followed by the Second Respondent in
its
acceptance,
processing and approval of the Amendment Application were
procedurally unfair.
8.2.4
The Second Respondent
was unduly influenced or on an
unwarranted
basis
dictated to, which facts prevented the Second Respondent to
obligations imposed upon it in terms of the authorising legislation,
and which fact renders the decision to approve of the Amendment
Application reviewable.
8.2.5
The Second Respondent
was, due to an obvious lack of
sufficient
information
which stems from non-compliance by the Fourth Respondent, with and
neglect by the Second Respondent to enforce the provisions
of the
DFA, not in a position to duly apply its mind to the correct facts,
and
which situation, from a
Town Planning perspective, renders the decision of the Second
Respondent, in any language, arbitrary and
capricious, and per se
justifies the review and the setting aside thereof.
8.2.6
The decision of the
Second Respondent, in respect of the
Amendment
Application,
with due consideration of the circumstances which prevailed during
processing of the Amendment Application, and the
information
available to the Second Respondent, at the time, is from a town
Planning point of view so unreasonable that no responsible
and
competent Town decision.
8.2.7
The decision of the
Third Respondent to, on request of the
Fourth
Respondent, on
an unsubstantiated basis, amend the intended utilisation of the
subject property from middle socio economic
residential to
"business",is· in the circumstances not only
arbitrary and capricious, but also unauthorised,
not sanctioned in
terms of the duly signed Land Availability Agreement, and same,
similar to the decisions of the Second
Respondent, are
unreasonable, since there is no rationale between the facts
available to the Second and Third Respondents
at the time and
their unconditional and irresponsible support for a regional
shopping centre on the subject property."
6.
In the Supplementary
Founding Affidavit dated 31 March 2014, the deponent to the Founding
Affidavit, in the context of Prayer 1
of the Amended Notice of
Motion,Prayers 3, 4 and 10 of the Amended Notice of Motion Applicant
says that it relies on the provisions
of s. 6 of
PAJA.
The same section applies to Prayer 3, according to
Applicant. As far as Prayer 10 is concerned, Applicant in the
Founding Affidavit
relies on the provisions of s. 6 ( 2) (e) (i) ,
(v), and 6 ( 2 ) (f) (ii). In respect of Prayer
7 ,
s. 6 ( 2 )
(a) and (e) and (f) of
PAJA
are relied upon. Furthermore, the approval of the
Amendment Application stood to be reviewed and set aside in terms of
s. 6 ( 2
)(a) (i), 6 ( 2 )(e) (i) and 6 ( 2) (f) (i)of
PAJA.
The SecondRespondent's decision by virtue of which the
said Amendment Application had been approved, was reviewable in terms
of
s. 6 ( 2 ) (a)(iii) of
PAJA.
The relevant approvals relating to Prayers 8 and 9
stood in turn to be reviewed and set aside in terms of s. 6 ( 2 ) (a)
(i), 6
( 2 ) (f) (i) and 6 ( 2 ) (i) of
PAJA.
7.
It is thus abundantly clear
that Applicant relies on the provisions of
PAJA
-
and in particular on a number of subsections of s. 6 thereof.
Section 6 ( 1 ) is to the effect administrative action.
"Administrative
action" has been defined in s. 1 of this
Act
and it means anydecision taken or any failure to take a
decision which adversely affects the rights of any person and which
has
a direct, external legal effect. It does however not include the
executive powers or functions of a municipal council. In
Grey's
Marine Houtbay (Ply)Ltd
&
Others v Minister
of Public Works
&
Others
2005 (6) SA
183
SCA,
Nugent JA, in the context of this definition said
that "administrative action is action that has a capacity to
effect legal
rights". It is also clear that administrative
action must impact directly and immediately on individuals.Whether a
particular
conduct constitutes administrative action depends
primarily on the nature of the power that is being exercised, rather
than upon
the identity of the person who does so. An administrative
action does not extend to the exercise of legislative powers by a
deliberative
elected legislative body, nor to the formulation of
policy or the formulation of legislation by the executive.
Administrative action
is rather, in general terms, the conduct of the
bureaucracy in carrying out the daily functions of the State which
necessarily
involves the application policy, usually after group of
individuals.There is of course also a difference between the
formulation
of a policy and its execution. It is therefore abundantly
clear that before Applicant can rely on the provisions of
PAJA,
it must place itself within the ambit of the definition of
"administrative action", and must show that any particular
relevant decision has adversely affected its rights.
8.
In the Answering Affidavit
of the Fourth and Sixth Respondents, the deponent thereto, D. M. Dry,
who was a legal advisor to the
Fourth and Sixth Respondents at
relevant times, and in the context of Applicant's allegations
relating to
locus standi,
states that it is significant that
no documents were attached to either the Founding or the
Supplementary Affidavits confirming
Applicant's alleged "ownership"
"possession" or "right" to occupy, or any form of
zoning or land
use rights that would entitle the Applicant to carry
on the business retail shopping centre on the property concerned. He
also
disputes the size of Applicant's development and whether or not
the outcome of the litigation is of a Competition Law nature. The
whole application was based on this aspect and it should be dismissed
for that reason inasmuch as the Applicant would be in wrong
forum.
Because of the Applicant's failure to attach documentation to the
Founding Affidavits relating to that legal basis of Applicant's
alleged ownership, or the right to occupy, it was difficult to deal
meaningfully there with in an answering affidavit. However,
he then
referred to Applicant's Replying Affidavit in the urgent application
dated 8 August 2013 where it was then said that the
Applicant had a
49 year occupation right in terms of a duly signed lease agreement.
It was also pointed out that in such Replying
Affidavit that
Applicant changed its
stance relating to the alleged ownership of the land without any
explanation or apology for having stated
a wrong premise.It is not
necessary to deal with all these detailed allegations and denials
inasmuch as it became clear during
argument that:
8.1
Applicant is not the owner
of the relevant development;
8.2
No long term lease or any
other right in favour of the Applicant was registered against the
title deed of this development or property;
8.3
The Applicant is not a
rate-payer in that area inasmuch as it is not the owner of the
property;
8.4
Applicant only occupies the
property in terms of a so-called "PTO" (Permission To
Occupy) the terms of which can be found
on the following basis: On 31
January 2014, the Department of Rural Development and Land Reform,
wrote to the Municipal Manager
of the Bushbuckridge Local
Municipality and stated amongst others that the Acorn Plaza Share
Block (Pty) Ltd was the holder of
a valid Permission To Occupy for
the property on which the Plaza was developed, measuring
7.
3
hectares. The application for the formalisation of a long term lease
between the Department and the Applicant was at an advanced
stage.
The Department then gave consent to the Municipality for the issuing
of the occupational certificate for the said extension
to the
property occupied by Applicant, as long as the building of the said
extension was in line with the site development plan
as well as the
building plans as approved by the Bushbuckridge Local Municipality.It
is therefore clear that the allegations made
by Applicant in the
Founding Affidavit were substantially not true in the context of its
locus standi.
At best for the Applicant therefore it is in
possession of a valid Permission To Occupy the said premises(though
subject to conditions
which had not yet been met).
Locus standi
must of
course not be looked at in
isolation, but must be seen in the light of the relief sought against
the background of the relevant
provisions of
PAJA.
9.
I must add that the
Answering Affidavit of the Fourth and Sixth Respondents dispute that
Applicant is the holder of a valid Permission
To Occupy. It therefore
stated that the Applicant had no lawful or legal interest in the
relief claimed. The review application
was merely an attempt to
stifle or eliminate competition.
10.
In Third Respondent's
Answering Affidavit, the Municipal Manager of Bushbuckridge Local
Municipality sets out the long history of
the relevant property. I
deem this to be of relevance in considering whether or not the
Applicant has any locus standi in these
proceedings in the context of
the relevant decisions taken either by the Limpopo Government, the
relevant tribal authority, the
National Government or the present
Third Respondent. It is clear from this affidavit that the history
goes back as far as 19 9
8 at the very least. Various decisions were
taken thereafter which ultimately led to a decision to consolidate
certain of the relevant
erven and to provide for a regional shopping
centre and a filling station. About 75% of the area of the property
would still be
set aside for the development of township
erven.Municipal Council Resotutions and Decisions were taken on the
basis that there
existed limited retail facilities in the
Bushbuckridge region. It was also stated that the local municipality
had a duty to create
an investor-friendly environment. It also stated
that a successful review of the Mpumalanga Development Tribunal would
underlying
legislation (parts of the
Development Facilitation
Act 67 of 199S)
had been struck down by the Constitutional
Court. A successful review would therefore essentially amount to the
denial of land use
rights, without further recourse.Regarding Prayer
1 of the Notice of Motion read with Annexure A thereto, Third
Respondent said
that Annexure A does not contain a "decision"
within the meaning of the term
PAJA.
It also does not
reflect that it is a decision which has a direct external effect on
the Applicant. It also emphasizes that the
municipality supports the
establishment of a regional shopping centre in addition to the
shopping centre of the
Applicant. It however
denied that its support for such development constitutes "decision"
which is reviewable in
terms of
PAJA.
11.
In my view it is clear from
both Notices of Motion that the application in essence revolves
around the relevant Land Availability
Agreement and its amendment, to
allow for parts of the particular property being developed as a
shopping centre decisions to develop
a certain property for the
benefit of the community and to attract financial investment cannot,
and should not, be reviewed on
the basis the
Applicant contends for,
relying on vague allegations of a Competition Law nature. Policy
decisions of this nature lie within the
heartland of the exercise of
executive authority. The provisions·of
PAJA
generally
do not allow a Court to intervene in such decisions, and particularly
not on the present facts.
See:
Tshwane City v
Nambiti Technologies
2016 (2) SA 494
SCA at par. 43,
although
those views were expressed in a different context. Also, an executive
decision of a municipality is not 'administrative
action' as defined
in
PAJA.
Applicant herein has in my view not
established the necessary
locus standi
inasmuch as it has not
shown that any decision of an administrative nature has adversely
affected its rights. I may also add, as
a final comment on this
topic, that I could not find any decision by the Third Respondent to
the effect that the utilisation of
the relevant property has changed
from a middle income housing project consisting of 53
7
erven to
inter alia
that of "predominantly
regional Shopping Centre", as Prayer 6 would Respondents that
about
7
5 % of the
erven have been retained for a housing development, and this was not
disputed in reply, nor could it be. A brief history
of the saga is
set out in the Agenda of a meeting of the Municipality held on 24
April 2012. This is the "decision" Applicant
relies on in
respect of Prayer 6. This Agenda is 'titled' "Amendment Of An
Approved DFA Application To Allow For Development
Of A Regional
Shopping Centre In Greenvalley". Apart from the point raised
that this does not reflect a "decision"
in terms of PAJA,
it provides significant information also relevant to the
consideration of whether or not a condonation application
should be
granted. (If such were properly before me). The introduction provides
a good factual background, which contradicts Applicant's
allegation
that only a (competing)Regional Shopping Centre is envisaged,
unlawfully as it states. It reads as follows:"The
Bushbuckridge
Local Municipality entered into a Land Availability Agreement with
Mamokohutu Development for the Establishment of
a township on
[Portion .. of the Farm Greenvalley 2.. KU.] An application for the
development Tribunal on 19 January 2001. The
General Plan for the
township was approved by the Surveyor Mamokhutu Developers, in an
endeavour to implement and finalize the
project,
negotiated agreements with
potential development specialist. The developers have agreed to
finalise the project subject to a condition
that a Regional Shopping
Centre be developed first at the site to ensure that the proposed
development of Middle income housing
is successful.
It is therefore the request
of Mamokhutu Development to amend the approved DFA application to
allow for the proposed Regional Shopping
Centre". Also, as far
as the "Regional Implications" were concerned it was said
that there was no proper retail
facility. The people of Bushbuckridge
have to drive or travel by public transport to reach retail
facilities in either Hazyview,
White River or Nelspruit. There was a
need for such facilities to promote the concept of employment and
residential opportunities
in close proximity to each other. It was
also said that the municipality would impose conditions for this
development for the protection
of the residential surrounding
developments. The Council therefore recommended the amendment of an
approved DFA application. I
also note from the Introduction that
Applicant wants me to set question of condonation,prejudice, and
appropriate relief.
12 .
As I have said, Applicant
has based its case on the provisions of
PAJA.
If the
shoe pinches, it cannot then casually revert to a transgression of
the principle of legality.
See:
Comair v
Minister of Public Enterprises
2016 (1) SA 1
GP at par. 21 and 22
and
the discussion on this topic in
Annual Survey of South African
Law, 2014, at 46.
As I have said, Third Respondent was of the
view that its decision to develop the relevant property for
middle-income housing projects
and another shopping centre and
filling station_, was a policy decision that it took for the benefit
of the community. Policy decisions
taken by executive organs and
legislative organs are
not subject to scrutiny and
second-guessing by a Court in the absence of clear illegality.
See:
Comair supra at
par. 45.
Furthermore, as Mr N. Maritz SC, on behalf of Fourth
and Sixth Respondents submitted, an Applicant in such an instance,
and in the
by reason of relevant breaches of whatever statutory
provisions it relies upon.
See for instance:
Patz
v Greene and Company
1907 TS 421
,
which lays down the
relevant principle which has been followed by various Courts since
then.
See:
CD of Birnam
(Suburban) (Pty) ltd and Others v Falcon Investments
Ltd
1973 (3) SA 838
WLD, Herbst v Dittmar en 'n Andere
1970 (1) SA 238
T at 243F, Bedfordview Town Council and Another v
Mansyn Seven (Pty) ltd and Others
1989 (4) SA 599
WLD
and
Jacobs and Another v Waks
[1991] ZASCA 152
;
1992 (1) SA 521
(AA).
In
Verstappen v Port Edward Town Board and Others
1994
(3) SA 569
(D
and CLO) at 574 A,
the
Court said the following: "In order to determine whether a
member of the public has
locus standi
to prevent the
commission of an act prohibited by statute, the first enquiry is
whether the legislature prohibited the doing of
the act in the
interest of any particular person or class of persons or whether it
was merely prohibited in the general public
interest. If the former,
any person who belongs to the class of persons in whose interest the
doing of the act was prohibited may
interdict the act without proof
of any special damage. If not, the Applicant must doings of the act".
In my view, Mr N. Maritz
SC is correct in submitting that this
principle applies to the present facts and in the context of the
relief sought by way of
Prayers
7
to 11.
It is clear from the
Founding Affidavit and the Supplementary Founding Affidavit that
there is not a single factual allegation by
the Applicant herein to
show that it either has, or will suffer real damage if the relevant
development of the municipality continues.
The few allegations that
do exist in this context are in the nature of mere conclusions raised
on Competition Law considerations,
but even they do not contain any
specific relevant facts.
I must add that Applicant
did not approach this Court on the basis of any HumanRight
infringement as provided for in Chapter 1 of
the Constitution of the
Republic.
13.
There is in my view no
evidence on the Affidavits that any rights of the Applicant have been
adversely affected by any of the decisions
that it relies on in these
nature, namely those referred to in Prayers 1, 2, 3, 4 and 5 of the
Amended Notice of Motion and others
are of a policy-laden nature,
whilst as a whole the Applicant has not shown in any event that any
of the particular decisions have
caused it real damage. It is
furthermore clear that the "decisions" of the Third
Respondent that the Applicant refers
to in Prayer 6 of the Amended
Notice of Motion are in fact not a decision of the Third Respondent,
but merely recommendations.
14.
I
accordingly hold that Applicant has not shown that it has
locus standi
in these proceedings and
accordingly the point
in limine
in this context
is
upheld.
15.
Unreasonable d
elay:
The provisions of s.
7
of
PAJA
are
determinative. Any proceedings for judicial review must be instituted
without unreasonable delay and not later than 180 days
action, became
aware of the action and the reasons for it, or might reasonably have
been expected to have become aware of the action
and the reasons. In
terms the provisions of s. 9 of the
Act,
the 180 day
requirement may be extended on application. The Court may grant such
an application where the interests of justice so
require. In
Aurecon
SA (Pty) Ltd
v
City
of Cape Town
[2016] 1 All SA 313
(SCA),
it was held that s_.
7
(
1) does not mean that an application must be launched within
180 days after the party seeking a review became aware that any
relevant
administrative action was tainted by irregularity. An
application must be decided within a reasonable time, but in any
event within
a period of 180 days. If this is not done, an extension
as envisaged in s. 9
(1)
(b)
is required, failing which a Court is precluded from entertaining the
review application.
An Applicant must make out
a case for such an extension and whether or not it is in the interest
of justice to condone a delay depends
entirely on the facts and
circumstances of each case. The relevant factors in that enquiry
generally include the nature of the
relief sought, the extent and
cause of the delay, its effect on the administration of justice and
other litigants, the reasonableness
of the explanation of the delay
which must cover the whole period thereof, the importance of the
issue to be raised, and the prospects
of success.
16.
In Applicant' s Founding
Affidavit, the following is said in this context: He was advised he
said to "briefly" invite
this Court's attention to the time
frames referred to in s.
7
of
PAJA
and, "if necessary", request condonation for
any possible non-compliance with such time frames. Several factual
submissions
were then made and Applicant says that certain rumours
during July 2012 led him to write a letter to First Respondent. It
then
embarked upon an investigation and during December 2012
instructed its Attorney to assist in procuring information from the
Second
and the Third Respondents. Ultimately, after many attempts
through various channels to obtain a copy of any relevant files, such
were only made available to Applicant's Attorney on 17 February 2013.
17.
Many of the allegations
made by Applicant in this regard were contested by theRespondents. On
behalf of First and Second Respondents,
it was contended that the
allegation that Applicant spent a year searching for information on
the Amendment Application that is
relevant to the relief sought,
could not be further from the truth. In fact, on 4 July 2012, a copy
of the relevant application
file was handed to a Mr R. Shabangu on
behalf of the Applicant. On behalf of Third Respondent it was
contended that the Applicant
had not covered the full period of the
delay from 4 July 2012. On behalf of the Fourth and Sixth Respondents
it was submitted that
the Applicant did not make out a case for
justifying the grant of an order extending the prescribed time
periods. Applicant's case
was that it had to obtain the full record
of the proceedings before the tribunal referred to in the relevant
prayers before it
could launch an explanation. This however loses
sight of the purpose of
Rule 53 of the Uniform Rules of Court
in terms of which Applicant could have obtained the record of
the proceedings within 15 Court days. The process of a review under
this Rule Founding Affidavit, and expressly affords to an Applicant
the right to supplement its founding papers on receipt of the
record
and the reasons given by the relent decision-maker. Applicant's
contention that it first had to establish the grounds for
illegality
of the proceedings before it could launch the review application was
untenable, and was in conflict with clear authority.
See in this context
Associated Institutions Pension Fund and Others v Van
Zyl and Others
2005 (2) SA 302
(SCA) par. 51 to 53.
The
Fourth and Sixth Respondents also allege that the Registrar of the
Tribunal referred to in the Notice of Motion made copies
of the
entire Amendment Application
and delivered it to
Applicant via Mr Shabangu. They allege further that the MEC and other
officials met with Mr Shabangu and other
representatives of the
Applicant on 3 August 2012 to discuss the Amendment Application. This
meeting was attended by the MEC, Mr
Kleynhans, of the Department of
Rural Development and Land Administration, Ms Motaung from the
Tribunal, Mr Shabangu, Mr Jason
McCormick from the Applicant and his
father John McCormick. At this meeting, Applicants said Amendment
Application and its approval
by the Tribunal. Prior to that the
entire Amendment Application had been handed to Mr R. Shabangu on
behalf of Applicant. Ms Motaung
confirmed this. She also stated that
the Apllicants' representatives had confirmed to the MEC that they
had indeed received all
relevant information on 4 July 2012. She was
emphatic that Applicants' allegation that its letter of 3 July 2012
had not even been
granted the "courtesy of a reply" was
false. Mr Kleynhans similarly confirmed these facts. Applicant, in
its Replying
Affidavit denied that Mr
Shabangu had been its
"representative", but admitted that he had been asked to
facilitate a meeting with the MEC to discuss
concerns raised in its
letter of 3 July.The meeting itself was not denied, but merely that
Applicant had been in possessionof all
relevant information. In the
Replying Affidavit in the urgent application to the Fourth and Sixth
Respondents' Answering affidavit,
Mr Jason McCormick made a rather
vague reference to such meeting and regarded the "discussion"
with First Respondent
as "unsatisfactory". An enquiry at
the office of Mr Shabangu "only yielded an incomplete copy of
the Amendment Application",
so it was said. In my Founding
Affidavit. These Respondents further say that Applicant's adequate
knowledge of the relevant facts
appears from the correspondence sent
by its Attorney to the Respondents and various State Departments
after these dates in any
event.
18.
Quite apart from the fact
that I must apply the test formulated in
Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A),
which
is so well-known that it does not have to be repeated again, there
are certain objective facts that do not support Applicant's
alleged
ignorance of all relevant facts, and in fact detract from its
innocent explanations. As I have said, the relevant review
application was issued in this Court on 9 May 2013. On 3 July 2012,
Acorn's Director John McCormick wrote to the office of the
MEC
Mpumalanga Provincial Government and it appears that this letter was
delivered by hand to one of the Department's officials.
The content
of this letter is significant, and it is not properly explained in
Applicant's affidavits.For this reason I deem it
necessary to qoute
the contents:"DEVELOPMENT FACILITATION ACT APPLICATION REGARDING
A PORTION OF PORTIAN 3 OF THE FARM GREENVALLEY
NO 213KV
In terms of any DFA
application, one of the processes that should be undertaken and
completed by the applicant for any change in
zoning or proposed
development is that such change or proposal be brought to the notice
of affected parties.In the case of the
DFA hearing regarding a
portion of [Portion .. of the farm Greenvalley No 2.. KV], it has
come to our notice that a proposed development
has been proposed with
the concomitant change in zoning. We are Acornhoek Plaza Share Block
(Pty) Ltd owners of the Acornhoek Plaza
situated not more than 6 00
metres from this proposed development. We have never been approached
or made aware of the DFA hearing
such that we could object or make
our side heard. In short, we, as the major neighbouring development
were completely ignored.We,
in the most stringent terms stress that
the findings of the DFA be rescinded and the entire process be
allowed to start at the
beginning whereby we, as the affected party,
can make presentations. It is also our enquiry as to how the land
referred to resorting
to a public auction. Your urgent attention is
requested on this matter." It is obvious that certain factual
allegations are
made therein which clearly indicate that the
Applicant had more knowledge of the relevant facts than the mere
"rumours"
that it referred to in the Founding Affidavit.
Furthermore, another significant document was issued by Applicant's
Attorneys on
10 December 2012. This is a covering letter to an
application in terms of the
Promotion of Access to Information
Act 2 of 2000
.
Again, it is clear that Applicant had
substantially more information at its disposal than the "rumours"
that I have already
referred to. Amongst others the following appears
from this letter: "Our instructions are that recently, a similar
Shopping
Centre facility, has apparently been approved by the
Mpumalanga Development Tribunal to an Applicant who alleges that his
authority
and power of Attorney to lodge such an application stems
from a Land Availability Agreement
concluded between your
municipality and such Applicant, being the Mamokhuthu Group
Development CC (the Fourth Respondent herein)".
Furthermore
Applicant regard, such authority has not been granted to the
Applicant by either the South African Government, the
Mpumalanga
Provincial Government or your municipality by virtue of any Land
Availability Agreement or any resolutions and/or powers
of Attorney
which should have formed an integral part of the application for the
land development area when same was submitted".
The form that is
attached to this letter amongst others says the following: "Attorney
of record for our client the detail
of which is provided
infra.
Our client is a property owner, tax payer and business entity
with vested interests in Bushbuckridge and within the jurisdictional
area of your municipality and moreover the owner of a Shopping Centre
+ / -600 metres from the property, which forms the subject
matter of
this enquiry and therefore has a direct and material interest in the
development of - and dealing with such property".
Apart from the
fact that certain of these factual allegations are not true, the
following then also appears in the context of the
information sought:
"Agreements concluded between your municipality, the applicable
Provincial Government and/or the SA Government
by virtue of which the
original use of land for middle-income residential purposes has been
changed to accommodate a Shopping Centre
of magnitude” Also,
the following: "Municipal resolutions by virtue of which the
original purpose of the allocation
of land to Mamokhuthu Development
Group CC i.e. for residential, has been changed to that of a
commercial Shopping Mall".
Furthermore the following:
"Land Availability
Agreements and amendments thereof by virtue of which such new
intended commercial use of the subject property
has been authorised
to Mamokhuthu Development Group CC" It is quite clear from this
letter and its Annexure that Applicant
had been in possession of
certain material facts and those were of a nature substantially more
than the mere "rumours"
that it put forward its Founding
Affidavit. They were also of such a nature in my view that a review
application could have been
launched by 3 July 2012 and certainly by
3 August 2012 after the relevant meeting that I have mentioned, and
which meeting the
Applicant chose not to disclose in the Founding
Affidavit. The delay has in my view not been properly explained by
the Applicant,
quite apart from the fact that many allegations made
by it in this context do not appear to be factually correct on the
one hand
and have not been disclosed on the other hand. Furthermore,
it is clear sought for. I will deal with this aspect in the context
of the provisions of
s. 9
of
PAJA
as well.
19.
Having regard to the
relevant facts, the most important of which I have mentioned, it is
my view that the review application was
not brought within a
reasonable time.Applicant therefore required an extension as
envisaged in
s. 9
(
1
) (b) of
PAJA.
There is no such condonation application before me,
but if I do regard the rather hesitant and reluctant allegations in
the Founding
Affidavit as an application for condonation then I must
consider the factors referred to in the
Aurecon
decision
of the Supreme Court of Appeal. Having regard to the original relief
sought and the amended relief sought, it is my view
not in the
interests of justice that condonation be granted. I agree with the
argument of the First and Second Respondents that
the consequences of
the Applicant's delay are in fact drastic. The relevant conditions of
approvals have already been met in the
context of the particular
development andimplemented at a substantial cost and expense. They
are for the benefit of thecommunity
according to the Municipality of
Bushbuckridge and it is not for me to second-guess such policy
decision. According to the relief
sought in the amended Notice of
Motion, Applicant wants me to undo resolutions taken in 2007 as per
Prayer 1, an Engineering Services
Agreement concluded in 2000 as per
Prayer 2 amongst others. It is also sought that I review certain
decisions made in 2012. This
is not in the interests of justice and
in the interests of all the individual persons that would most likely
be affected by such
an order. The cause of the delay has in my view
not been satisfactorily explained herein and the explanation that is
tendered is
not reasonable having regard to the objective facts that
I have mentioned. The whole period of the delay has also not been
dealt
with by the Applicant.
Furthermore, the rights
that the Applicant relied on initially and certainly did so in the
interim urgent application more or less
fell by the wayside as the
case progressed, and the only right, if I can call it such, is that
the Applicant is the holder of a
Permission To Occupy the premises it
seeks to protect against competition. Icondonation for the
unreasonable delay in this instance.
I am also of the view that the
public interest herein would demand that this long outstanding matter
be brought to finality,for
the benefit of the community in this area.
I have already held in any
event that the Applicant
does not have
locus standi in iudicio
in these proceedings,and
it is my overwhelming impression that it merely seeks to protect its
own financial interests and avoid
competition which may or may not
arise.
20.
The result is that the
objection in limine relating to an unreasonable delay as envisaged by
the provisions of s.
7
of PAJA, is upheld.
21.
The application is
accordingly dismissed with costs including the costs of two Counsel,
where such was utilised and including the
costs of Senior
Counsel, where
such
Senior
Counsel was
utilised. The
interim
order
granted
by this
Court
JUDGE H.J
FABRICIUS
JUDGE OF THE GAUTENG HIGH
COURT PRETORIA
Case number: 2 7542 / 13
Counsel for the
Applicant:Adv M. C. Erasmus SC
Adv J. A. Venter
Instructed by: Adriaan
Venter Attorneys & Associates
Counsel for 1
st
&2
nd
Respondents:Adv K. M. Mokotedi
Instructed by: The State
Attorney
Counsel for 3
rd
Respondent:Adv E. C. Labuscagne SC
Instructed by: Mculu
Incorporated
Counsel for 4
th
& 6
th
Respondents:Adv N. G. D. Maritz SC
Adv C. F. Van der
Merwe
Instructed by: Ivan Pauw &
Partners Attorneys
Date of Hearing: 2 9 &
30 March 2016
Datebof the Judgement: 5
May 2016 at 10:00