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[2016] ZAGPPHC 998
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Pieterse and Another v Lephalale Local Municipality and Others (79281/2014) [2016] ZAGPPHC 998 (25 May 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Not
reportable
Not
of interest to other Judges
CASE
NO: 79281/2014
In
the matter between:
HENDRIK
DIEDERICK PIETERSE
N.O.
First Applicant
ELIZABETH
BARINDINA PIETERSE
N.O.
Second Applicant
and
LEPHALALE
LOCAL
MUNICIPALITY
First Respondent
MEC
FOR LOCAL GOVERNMENT AND HOUSING,
LIMPOPO
PROVINCE
Second
Respondent
LIMPOPO
TOWNSHIPS
BOARD
Third
Respondent
AT
SOLD PROPERTIES
CC
Fourth
Respondent
Heard:
22 February 2016
Delivered:
25 May 2016
Coram:
Makgoka J
Summary:
Township Planning and Townships Ordinance 15 of 1986-
Constitutionality
of section 139 of the ordinance.
Local
government competences - provincial government competences - section
155 of the Constitution - all zoning and planning lie
within the
competence of the municipality.
Administrative
review - municipality refusing application for erection of
contractors' camp - initial reasons for refusal allegedly
inadequate
- municipality
ex post facto
furnishing 'additional reasons'
for its decision - whether it is open for an administrator
tc
rely
on additional reasons for its decision.
Promotion
of Administrative Justice Act 3 of 2000
- extension of time limit
pursuant to
s 9(2)
considered - 180 day time limit contemplated in
s
7(1)
of PAJA.
Section
8(1)(c)(ii)(aa)
of PAJA - whether exceptional circumstances exist -
whether decision of the administrator a foregone conclusion - whether
substitution
order warranted.
JUDGMENT
MAKGOKA,
J
[1]
The first and second applicants act in their capacities as
trustees of the Waterkloof Family Trust, registration number
IT3757/1998
(the applicant). The applicant seeks an order declaring
unconstitutional and invalid, s 139 of the Township-Planning and
Townships
Ordinance 15 of 1986. The applicant further seeks to review
and set aside the decision of the first respondent, the municipality,
on 12 March 2014, refusing its application to erect a temporary
contractors' camp on a portion of a farm.
[2]
Ancillary to that, the applicant requests this Court to
substitute its own decision to that of the municipality and approve
the
erection of such a camp on certain conditions. Alternatively, the
applicant seeks an order referring the matter back to the
municipality
for it to determine and impose the relevant conditions
to which the approved application should be subject to. The relief
sought
by the applicant is opposed by the municipality. The main
protagonists are the applicant and the municipality. The second to
fourth
respondents are not participants in these proceedings.
[3]
The municipality, established in terms of the provisions of s
151 of the Constitution of the Republic of South Africa, 1996 (the
Constitution) read with
s 12
of the
Local Government Municipal
Structures Act 117 of 1998
, is situated in Limpopo Province.
Declaration
of unconstitutionality of
section 139
of Ordinance 15 of 1986
[4]
Ordinarily, the applicant would have been required to appeal
against the decision of the municipality in terms of s 139 of the
Town
Planning and Township Ordinance 15 of 1986 (the ordinance). That
appeal lies
to
the Limpopo Townships
Board,
the third respondent, who, in terms of the ordinance has the power
to
hear such an appeal. However, the applicant seeks to declare that
section unconstitutional and invalid,
to
the extent it gives
appellate power to the provincial government over municipalities'
planning competence. The ordinance is a preConstitution
legislation. It was assented to on 18 December 1986, and commenced on
10 June 1987. It was proclaimed for the former province of
Transvaal.
In terms of proclamation R161 of 31 October 1994, the administration
of the ordinance was assigned to, among others,
the province of
Northern Transvaal, which was initially renamed Northern Province,
and later, in 2003, Limpopo.
[5]
Section 139(1) of the Ordinance reads:
'139. Appeals to Board
(1)
An applicant or objector who is aggrieved by –
(a)
a decision of a local authority-
(i)
in terms of section 20(3)(b}, 48(1)(b) or 63(1)(b);
(ii)
on any application in terms of-
(aa)any provision of this
Ordinance;
(bb)any town-planning
scheme, may, within a period of 28 days from the date he has been
notified in writing by such local authority
of the decision, or
within such further period, not exceeding 28 days, as the Board may
allow:
(b) the refusal or
unreasonable delay of a local authority to give a decision
contemplated in paragraph (a) may, at any time,
If this Ordinance does
not provide for an appeal to the Administrator, a compensation court
or a services appeal board, appeal through
the Director to the Board
by lodging with the Director a notice of appeal setting out the
grounds of appeal, and he shall at the
same time provide the local
authority with a copy of the notice.
[6]
The responsibility for the administration of the ordinance in
Limpopo Province resides with the provincial government there. In
terms of s 1 of the ordinance, 'Administrator' means the competent
authority to whom the administration of the ordinance has been
assigned by the Premier of Limpopo Province, namely the member of the
executive council (MEC) for Local Government and Housing,
the second
respondent. The ordinance does not make provision for an appeal to
the administrator, a compensation court or services
appeal board in
respect of the municipality's decision of 12 March 2014.
[7]
As a result, in terms of s 139(1) of the ordinance, the
applicant's remedy is an appeal through the 'Director to the Board'.
Section
1 of the ordinance defines 'Director' to mean an officer in
the provincial administration of that province designated to perform
the functions entrusted by or under the ordinance to the Director.
'Board' with reference to a province is defined to mean the
Board
established for that province by s 3(1) of the ordinance. In the
Limpopo Province, the relevant Board established for the
province, is
the third respondent. Therefore, the third respondent is the
provincial authority with the power to decide appeals
against
municipalities' planning decisions and to replace them with its own.
It is that power that the applicant contends is unconstitutional.
[8]
Before I consider the constitutionality or otherwise of the
section, a procedural issue must be noted. The necessary notice in
terms
of rule 16A of the Uniform Rules of Court was issued
simultaneously with the application on 30 October 2014, and it is
part of
the papers before me, duly issued and stamped by the
registrar of this Court. I have been assured by the registrar that
the notice
has been displayed on a notice board designated for that
purpose in this court.
[9]
In
terms of s 156(1)(a) of the Constitution, municipalities have
executive authority in respect of, and has the right to administer,
'the local government matters listed in Part B of schedule 4 and Part
B of schedule 5'. In
City
of Cape Town and Another v Robertson and Another
[1]
the
Constitutional Court said the following about the division of
governmental power:
'[t]he Constitution has
moved away from a hierarchical division of governmental power and has
ushered in a new vision of government
in which the sphere of local
government is interdependent, 'inviolable and possesses the
constitutional latitude within which to
define and express its unique
character' subject to constraints permissible under our Constitution.
A municipality under the Constitution
is not a mere creature of
statute, otherwise moribund, save if imbued with power by provincial
or national legislation. A municipality
enjoys 'original' and
constitutionally entrenched powers, functions, rights and duties that
may be qualified or constrained by
law and only to the extent the
Constitution permits’
[2]
.
(’Footnotes omitted.)
[10]
In
Minister
of Local Government, Western Cape v Lagoonbay Lifestyle Estate
[3]
the
Constitutional Court expanded on its jurisprudence on municipal
powers, and summarised the position thus:
This Court's
jurisprudence quite clearly establishes that: (a) barring exceptional
circumstances, national and provincial spheres
are not entitled to
usurp the functions of local government; (b) the constitutional
vision of autonomous spheres of government
must be preserved; (c)
while the Constitution confers planning responsibilities on each of
the spheres of government, those are
different
planning
responsibilities, based on 'what is appropriate to each sphere'; (d)
'"planning" in the context of municipal
affairs is a term
which has assumed a particular, well-established meaning
which
includes the zoning of land and the establishment of townships'
(emphasis
added); and (e) the provincial competence for 'urban and rural
development' is not wide enough to include powers that
form part of
'municipal planning'.
[4]
(Footnotes omitted.)
[11]
In
Minister
of Local Government, Environmental Affairs and Development Planning,
Western Cape v Habitat Council
[5]
(Habitat)
the
Constitutional Court confirmed the declaration of invalidity of s 44
of the Land Use Planning Ordinance (LUPO), a provision
similar to s
139 of the ordinance. Section 44 of LUPO also gave the Western Cape
Provincial government the power to decide appeals
against
municipalities' planning decisions and to replace them with its own.
[12]
On the authority of the jurisprudence of the Constitutional
Court, it is clear that s 139 of the ordinance impermissibly usurps
the powers afforded by the Constitution to the municipalities. To
that extent, it is unconstitutional and invalid.
Remedy
[13]
Section 172(1}{b) of the Constitution provides that when
deciding a constitutional
matter
within its power, a court may
make any order that is just and equitable, including an order
limiting the retrospective effect of
the declaration of invalidity
and an order suspending the declaration of invalidity for any period
to allow the competent authority
to correct the defect.
[14]
I must now consider the question of retrospectivity of the
invalidation. Ordinarily, the consequence of a declaration of
unconstitutionality
of a legislative provision is that it is set
aside with retrospective effect. In the case of the ordinance in
issue, that would
be to 31 October 1994, being the date on which the
ordinance was assigned to the northern inland provinces, including
Limpopo.
The result would be that all decisions taken under the
ordinance in the period from that date would be set aside, with,
needless
to say, far-reaching and chaotic consequences. For that
reason, the declaration of invalidity would not be with retrospective
effect.
Obviously, an exception must be made to the
non-retrospectivity of the order by reviewing and setting the
decision of the municipality,
provided a case is made out for that
relief.
[15]
With regard to the suspension of the declaration of invalidity
to allow for the correction of the defect, I am bound by the approach
of the Constitutional Court in
Habitat,
referred to in para 11
above. There, the Court declined to confirm an order of the High
Court suspending the period of invalidity
for a period of 24 months,
pending legislation to correct the defect. Cameron J said:
'It follows that the
reading in the High Court ordered, with the consent of both the
Provincial Minister and the other parties before
it, cannot be
confirmed. That reading in gives the Province interim appellate
powers that are incompatible with the competence
the Constitution
affords municipalities over "municipal planning". The
Constitution grants the Province no direct decisional
oversight over
the exercise of these functions, and nothing in the evidence placed
before us indicates that powers of this sort
should be afforded as an
interim measure.
For the same reasons, if
we suspend the declaration of invalidity, we will temporarily
preserve an appellate power that is unconstitutional
in its
entirety'.
[6]
The
facts
The
first application
[16]
The applicant is the registered owner of portion 3 of the farm
Hanglip 508 LQ (the immovable property) situated in Lephalale, within
the jurisdiction of the municipality. The immovable property is in
excess of 500 hectares. On 4 May 2012 the applicant, through
its
appointed agent, applied to the municipality for permission to
temporarily use five hectares of the immovable property for
a
contractors' residential camp. The application was made in terms of
clause 11(2)(b)(iii) of the Lephalale Town-Planning Scheme,
2005 (the
town-planning scheme) which provides:
'...(iii) subject to the
provisions of clause 18 (advertisements and objections) the local
authority may, upon written application
of the owner of the land,
subject to grant permission to the use of land which does not entail
the erection of permanent buildings,
or to the use of existing
permanent buildings for any purpose subject to such conditions as it
may deem fit: Provided that any
such consent in terms of this clause
shall be granted for a maximum continuous period of twelve (12)
months after which the period
may be ex1ended by the local authority
for further periods of twelve (12) months subject that the total of
such periods does not
exceed five (5) years...'
[17]
On 9 November 2012 the municipality informed the applicant
that the application had been approved subject to the following
conditions:
'That accommodation area
with a capacity for a maximum amount of 500 people be erected and
that the accommodation will consist out
of (sic) approximately 49
mobile residential units with built-in ablution facilities;
That the proposed
development be in compliance with the density as prescribed and
approved in terms of the Council resolution taken
under item
A176/2012[9] and limited to the overall density of development of the
camp which should not exceed 100 people per hectare
nor exceed 500
accommodation rooms'.
[18]
Further and detailed conditions were set out in the municipality's
approval letter, with regard to: design requirements and
building
materials; landscaping and aesthetics; site control; water supply and
water treatment /filtration; storm water drainage;
sewer treatment
and management; electrical supply/power generation; effluent disposal
and toilet facilities; laundry facilities;
rubbish disposal; parking
provisions; internal and external roads standards; road frontage
standards; signage; public transport
provisions; recreation and
community facilities; telephones; emergency services, fire, first aid
and health quality assurance;
insurance; liquor licensing; catering
and meal areas; compliance with relevant stakeholders' conditions;
and removal of structure
and rehabilitation of site.
[19]
Pursuant to the approval of the municipality, the applicant
erected a temporary camp with temporary buildings. The municipality
issued the applicant with the required certificate of occupation, and
occupation of the camp was taken.
The
second application
[20]
On 30 November 2012 the applicant submitted a new application
in terms of clause 11(2)(b)(iii) of the town-planning scheme for a
further temporary use of an additional five hectares of the immovable
property to accommodate an additional number of 500 people.
The
application was titled to be for 'the extension of the temporary
contractors' camp'. In paragraph 'B' of the memorandum of
the
application, titled 'Purpose of the application' it was stated that:
'The purpose of this
application is to obtain the approval of the Lephalale Municipality
to extent the existing approved 500 man
contractor's camp to a 1000
man contractor's camp. The total area of the camp will be 5
hectares...'
[21]
In a letter dated 26 February 2013 the municipality informed
the applicant that its application was declined because it was
considered
to be inconsistent with the provisions of the development
norms and standards of the municipality and the policy adopted by the
municipality with regard to establishment of the contractors' camps.
In that letter, the municipality also questioned whether a
need
existed either for extension of the initial approved period of 12
months, or for approval of the second application in respect
of a
further five hectares.
[22]
On 24 April 2013 the applicant's agent responded to the
municipality, seeking to clarify what he perceived to be a
misunderstanding
regarding the area of five hectares and the density
of 100 people per hectare. He reiterated that the application was for
(a) the
extension of the camp to accommodate an additional number of
500 people, in addition to those in the existing camp, and (b) the
total area of the camp as applied for, excluding the existing camp,
was not to exceed five hectares. The agent emphasised that
it was not
the applicant's intention to provide all the facilities on the five
hectares of the existing camp, but to extend the
existing camp to
provide for an additional 500 people on five hectares of land
adjacent to, and west of, the existing camp. With
regard to whether
there was a need for extension of the period or new approval, the
agent motivated for both.
[23]
On 13 August 2013 the municipality requested the applicant to
submit both its second application and the application for the
extension
of the period approved in the first application. The
applicant complied with the request for extension of the period, on
30 August
2013, and pointed out, with regard to the second
application, that the municipality was already in possession of the
application.
The
impugned decision
[24]
On 12 March 2014 the municipality informed the applicant that
its application for extension of the initial period to the existing
establishment had been approved. However, the second application for
a further camp was refused, for the following reasons:
'It was resolved under
Item 883/2013/[12] that the application... be not approved and the
applicant be advised that:
1.1
the suitability and appropriateness of the particular location of the
existing camp as approved subject to the conditions imposed
under
849/2012[1OJ was at the discretion of the municipality;
1.2
the consenting to the establishment of the temporary contractor's
camp/accommodation area with a capacity of 500 people by the
municipality as per the outcomes of the council resolution taken
under item 849/2012/[1OJ cannot be construed as precedence set
to
promote continuous establishment of similar development (sic) within
the boundaries of the subject property.'
[25]
The applicant took a view that the reasons furnished by the
municipality were not cogent, and should be reconsidered. During the
mid-April, the applicant's attorney arranged a meeting with the
officials of the municipality to discuss the matter. A meeting
was
scheduled for 4 June 2014. During that meeting, the municipality's
newly-appointed manager, requested an opportunity to familiarize
herself with the matter, and requested the re-scheduling of the
meeting to 18 June 2014. The re-scheduled meeting, however, did
not
take place as the municipal manager was not available.
[26]
A further meeting was arranged for 7 July 2014. It was
attended by the applicant's attorney and the applicant's agent, on
the one
hand, and the municipality's senior officials comprising the
municipal manager; divisional head: land use; and executive manager:
development planning, on the other. It was resolved during that
meeting that a comprehensive report would be drafted on behalf
of the
municipality regarding the decision on the second application, and
that the municipality would revert to the applicant's
agent by no
later than 11 July 2014. On 11 July 2014 the municipality informed
the applicant's agent that its investigations had
not been concluded,
and that further communication would be made by no later than 18 July
2014.
[27]
No report was furnished to the applicant by 18 July 2014 as
undertaken, and on 22 July 2014, the applicant's attorney received a
letter from the municipality informing him that 'the appeal date with
relation to the matter... had lapsed' and the attorney was
requested
to put 'something in writing' for the matter to be taken back to the
council of the municipality. The attorney complied
with the request
on 5 August 2014 in a form of a letter requesting the matter to be
referred back to the council. There was no
response to that letter
and to two other letters which followed. The one is dated 18
September 2014 and the other, although undated,
was received by the
municipality on 13 October 2014. Although there was an acknowledgment
of the latter correspondence, there was
no response to the
substantive issues raised there.
Application
for review instituted and 'additional reasons' furnished
[28]
The applicant instituted the present application on 30 October
2014 to review the impugned decision. The application was served on
the municipality on 6 November 2014. On 27 January 2015 the council
of the municipality convened a meeting to consider the application.
It resolved that 'the following conditions be added to the
stipulations contained in the council resolution (of 12 March 2014):
(a)
the second application was deemed to be defeating the objects
of the Town Planning and Townships Ordinance 15 of 1986 with
reference
to the initial approval;
(b)
the required accommodation rooms and the population density
applied for is against the provisions of the municipality which
stipulates
that the camp applied for should not exceed 500
accommodation rooms with the overall density not exceeding 100 people
per hectare;
(c)
the social accord signed in October 2012 between government,
business and labour was aimed at revitalizing distressed mining towns
such as Lephalale by providing quality housing for people residing
and working in such towns;
(d)
the applicant had failed to submit:
(i)
documentary proof from the contractor who was to service the
proposed development;
(ii)
proof of the need for development of additional contractors'
camp;
(e)
a trend had developed within Lephalale to commercialize
temporary accommodation /construction camps, thus defeating the
purpose
of the municipality's policy in this regard;
(f)
the applicant had failed to submit proof of compliance with
LED programmes as stipulated in the approval of the first
application.
The
filing of the record and the application to strike out
[29]
On 28 January 2015 the municipality, in terms of rule 53 of the
uniform rules, filed the record of the proceedings. On 16 February
2015 the applicant delivered its supplementary affidavit in terms of
rule 53(4) of the uniform rules. On the same day, 16 February
2015,
the municipality's attorneys furnished the applicant's attorneys with
the resolution of the municipality's council taken
on 27 January
2015, which was attached to an email. The resolution was later filed
on 9 April 2015. On the same day, 9 April 2015,
the applicant
launched an application in terms of rules 53(4) and 6(15) of the
uniform rules. The purpose of that application was
two-fold. First,
to supplement its founding affidavit, and second, to strike out the
email dated 16 February 2015 from the municipality's
attorneys to the
applicant's attorneys, to which was attached the municipality's
resolution.
[30]
During the hearing, the application to strike out was argued
first. The applicant argued that the resolution of the municipality
of 27 January 2015 was irrelevant. After hearing argument, I
dismissed the application, for the simple reason that the resolution
was relevant because it sought to furnish 'additional' reasons for
refusal of the second application. I took a view that the applicant
could still argue that the additional reasons be discounted when the
review of the decision of 12 March 2014 is considered, but
could not
tenably argue for its striking out as irrelevant. On the other hand,
the applicant's application to supplement its founding
affidavit was
also argued preliminarily. I granted it.
[31]
That sums up the factual background. The applicant contends
that the impugned decision falls to be reviewed and set aside because
it fails to provide cogent reasons why its second application was
refused. It is also argued that the municipality's 'additional
reasons' furnished during its meeting of 27 January 2015 be ignored.
Promotion
of Access to Justice Act
[32]
Before I consider these arguments, I need to dispose of a
preliminary point. It is common cause that the decision of the
municipality
is an administrative decision as envisaged in s 1 of the
Promotion of Access to Justice Act 3 of 2000 (the PAJA). Section 6(2)
of the PAJA provides the grounds of review of an administrative
action. Section 7(1) of the PAJA provides:
(1) Any proceedings
for judicial review in terms of section 6(1) must be instituted
without unreasonable delay and not later
than 180 days after the
date-
(a)
subject to subsection (2)(c), on which any proceedings instituted in
terms of internal remedies as contemplated in subsection
(2)(a) have
been concluded; or
(b)
where no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of
the action and
the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons.'
[33]
Section 9(1) provides, however, that the 180-day period 'may
be extended for a fixed period, by agreement between the parties or,
failing such agreement, by a court or tribunal on application by the
person or administrator concerned'. Section 9(2) provides
that such
an application may be granted 'where the interests of justice so
require'. In practice, the application in terms of s
9 is treated as
a condonation provision.
[34]
In the present case, there are no internal remedies as
envisaged in s 7(1) (a) of the PAJA, following the declaration of
invalidity
and unconstitutionality of s139 of the ordinance. The
applicant seeks 'condonation' for its non-compliance with the time
period
of 180 days laid down in s 7(1) of the PAJA within which it
was required to apply for judicial review of the administrative
decision.
As stated earlier, the impugned decision was made on 12
March 2014. It is common cause that present the application was
launched
outside the 180 days after the date on which the decision
was taken. The reason for the delay is said to be that the
municipality
failed to react timeously or ignored requests by the
applicants to reconsider its reasons, despite undertakings by the
functionaries
of the municipality. A further contributing factor is
said to be the uncertainty caused by the constitutionality of s 139
of the
ordinance.
[35]
It is now
settled that in the application of ss 7 and 9 of the PAJA, the court
must determine two questions. The first is whether
the application
was launched more than 180 days after internal remedies had been
exhausted. The second question is whether, if
the first question is
answered in the affirmative, it is in the interests of justice that
the 180-day period be extended
[7]
.
As Brand JA explained in
OUTA
v Sanral:
[8]
[36]
I now consider whether in all the circumstances it is in the
interests of justice to extend the stipulated period of 180 days.
That involves the exercise of a discretion, which, obviously, must be
exercised judiciously. As stated earlier, the period of 180
days may
be extended by the court 'where the interests of justice so require'.
The concept 'interests of justice' has been considered
by the
Constitutional Court on a number of occasions in the context of
applications for condonation.
[9]
The effect of those decisions is the following: whether it is in the
interests of justice to grant condonation depends on the facts
and
circumstances of each case. Factors that are relevant to this enquiry
include, but are not limited to, the nature of the relief
sought, the
extent and cause of the delay, the effect of the delay on the
administration of justice and other litigants, the reasonableness
of
the explanation for the delay, the importance of the issue to be
raised in the intended appeal and the prospects of success.
With
regard to the explanation for the delay, an applicant for condonation
must give a full explanation for the delay, which explanation
must
cover the entire period of delay. And, what is more, the explanation
given must be reasonable.
[37]
In the present case, as already stated, there are no internal
remedies. Therefore, the period of 180 days is to be calculated
after
the decision was made, which is 12 March 2014. It is clear that at
all times the municipality, at the very least, created
an impression
to the applicant that it was prepared to reconsider its decision to
refuse the second application. The parties were
both committed to
find an amicable resolution to the problem without resorting to
litigation. The applicant did not sit idle about
the municipality's
decision. The period of non-compliance of almost two months is, in my
view, not inordinate in the circumstances
of the case. I also take
into consideration the applicant's prospects of success in the review
application, as well as the constitutional
issue raised by s 139 of
the ordinance. In the result I have no difficulty in concluding that
it is in the interests of justice
to extend the 180- day period
stipulated in s 7(1) of the PAJA, which I do.
The
municipality's arguments in the review application
[38]
Having arrived to the above conclusion, I turn now to the
substantive application for review. I have already set out the
relevant
factual background. The answering affidavit on behalf of the
municipality was deposed to by its acting municipal manager, Mr Noke
Lekaka. The municipality's case is premised on the resolution of its
council on 27 January 2015, in particular, the 'density',
'the
extension' and 'the necessity' arguments. With regard to the density,
it is argued that the density of the development is
not compliant
with the municipality's policy. To recap on that argument, it is
asserted that the municipality's policy limits the
density of the
development of type 'B' camps to 500 accommodation rooms and overall
density of development of the camp to 100 persons
per hectare. It is
also averred that the applicant's second application is not a new
application but an extension of the existing
approved 500 people
contractor's camp to a 1000 people contractor's camp. The
municipality also questioned whether there was a
need for a
contractors' camp which warranted consideration of a further
application before the expiry of 12 months uninterrupted
period
granted in respect of the initial application.
The
issues
[39]
From the factual background and the positions adopted by the parties,
two issues can be gleaned for determination. First, whether
the
reasons furnished by the municipality on 12 March 2014 for refusing
the second application should be reviewed. Second, whether
the
municipality is entitled to rely on the new grounds for such refusal,
as set out in in the council's resolution on 27 January
2015. If the
answer to the first question is in the affirmative, and the second
question is answered in the negative, a further
consideration would
be whether to substitute this court's decision for that of the
municipality and approve the second application,
or refer the matter
back to the municipality for reconsideration. I consider the above
issues, in turn.
The
reasons advanced for the municipality's decision of 12 March 2014
[40]
There
is no question that the municipality, as an administrative body, was
obliged to give reasons for its decision. In
Bell
Porto School Governing Body v Premier, Western Cape
[10]
the
Constitutional Court summed up this duty as follows:
'The
duty to give reasons when rights or interests are affected has been
stated to constitute an indispensable part of a sound system
of
judicial review. Unless the person affected can discover the reason
behind the decision, he or she may be unable to tell whether
it is
reviewable or not and so may be deprived of the protection of the
law.'
[11]
[41]
Not only
was the municipality obliged to furnish reasons for its decision
rejecting the applicant's second application, but such
were supposed
to be adequate reasons.
[12]
As
to what constitute adequate reasons, depends on the circumstances of
each case. In
Moletsane
v Premier, Free State
[13]
it was
observed that the degree of seriousness of the administrative act
should determine the particularity of the reasons furnished.
[42]
To recap on the municipality's decision in the present case, it is
based on two 'reasons'. The first is that the approval of
the first
application was at the discretion of the municipality. The second one
is that the approval of the first application should
not be construed
as setting precedent for establishment of similar camps. That the
municipality exercised a discretion in approving
the first
application was never in issue. As to the precedent-setting, this is
irrelevant as each application should be considered
on its own
merits. It is clear therefore, that these amounted to no reasons at
all, and point to the fact that the municipality
failed to exercise
its discretion properly or at all. This is fatal, and should,
ordinarily, result in the review and setting aside
of the
municipality's decision.
Reliance
on new, 'additional reasons'
[43]
I shall consider whether the municipality is entitled to rely
on the additional reasons forming part of its resolution on 27
January
2015. Counsel for the applicant argued that it is not open to
the municipality to rely on the additional reasons, and that the
application should be decided on the initial reasons furnished on 12
March
2014.
For this proposition, counsel placed reliance on
Jicama
v West Coast District Municipality
[14]
and
National
Lotteries Board v South African Education and Environment
Project
[15]
.
In
Jicama,
Cleaver
J cited with approval the following
dictum
in
R
v Westminster City Council
[16]
:
·...
The cases emphasise that the purpose of reasons is to inform the
parties why they have won or lost and enable them to
assess whether
they have any ground for challenging an adverse decision. To permit
wholesale amendment or reversal of the stated
reasons is inimical to
this purpose. Moreover, not only does it encourage a sloppy approach
by the decision-maker, but it gives
rise to potential practical
difficulties. In the present case it was not, but in many cases it
might be, suggested that the alleged
true reasons were in fact second
thoughts designed to remedy an otherwise fatal error exposed by the
judicial review proceedings.
That would lead to applications to
cross-examine and possibly for further discovery, both of which are,
while permissible in judicial
review proceedings, generally regarded
as inappropriate. Hearings would be made longer and more expensive.'
[44]
In
National Lotteries,
counsel relied on the remarks by
Cachalia JA at para 27 that 'in truth the later reasons are not the
true reasons for the decision,
but rather an ex post facto
rationalization of a bad decision.' However, those remarks were made
with reference to English authorities.
In fact, the Court expressly
refrained from deciding the question whether the failure to give
reasons for an administrative decision
(which includes proper or
adequate reasons) can be validated by different reasons given
afterwards. The full paragraph reads:
'In
England the courts have said that such a decision would ordinarily be
void and cannot be validated by different reasons given
afterwards -
even if they show that the original decision may have been justified.
For in truth the later reasons are not the true
reasons for the
decision, but rather an ex post facto rationalization of a bad
decision.
Whether or not our law also demands the same approach as
the English courts do is not a matter I need strictly decide.'
(my
underlining for emphasis)
[45]
The upshot of the above is. The principle that a decision-maker is
not permitted to rely on additional reasons in a review,
is not
without qualification. As correctly pointed out in
Bizstorm
v Witzenberg Municipality,
[17]
a court is bound by the principle of legality: regardless of the
reason given initially, a court cannot make an order which has
the
effect of permitting a contravention of the law. Simply stated, if
there is a valid, legal impediment prohibiting the municipality
from
approving the applicant's second application, it would be untenable
to suggest that the municipality is tied to the initially
inadequate
reason, even if it later furnishes a valid and legally sound one,
which should have been furnished initially.
[46]
For the above reason, I proceed to consider the municipality's
additional reasons stated in the resolution of the meeting of
27
January 2015. There are six of them, as already set out in para 28
above. Properly construed, one can distill essentially three
out of
the six additional reasons. As alluded earlier, those reasons are in
respect of the population density; the fact that the
second
application is an extension of the first one; and the alleged failure
to demonstrate necessity for a further development
in addition to the
first one. In my view, there is no merit in any of the above
arguments. With regard to the density, it is clear
that the applicant
has applied for accommodation subject to a maximum of 500 people. In
any event, this aspect can be monitored
through various mechanisms,
such as when the applicant submit building plans, a process that
would afford the municipality's functionaries
the opportunity to
familiarise themselves with the number of units and prospective
occupants.
[47]
As to the assertion that the second application was an extension of
the first application, this is disingenuous on the part
of the
municipality. From very early on, the applicant sought to clarify
that the second application was a separate and substantive
application, distinct from the first one. It is clear from all the
available evidence that by the time the municipality considered
the
application, any ambiguity would have been cleared. The applicant's
agent, in very clear terms, explained this in his letter
to the
municipality dated 24 April 2013. There would have been no room for
confusion after reading that letter. The applicant's
decision not to
disclose the name of the contractor or client is a reasonable one
under the circumstances where systemic corruption
would likely lead
to the leaking of information to the detriment of the business
interests of the applicant.
Finding
on the municipality's decision
[48]
I conclude therefore, both on the initial reasoning of 12 March 2014,
and on the additional reasons of 27 January 2015, there
is no basis
to sustain the decision of the municipality to refuse the applicant's
second application. The municipality failed to
properly exercise its
discretion in considering the application. Its decision must
therefore be reviewed and set aside. Having
come to that conclusion,
I must now consider appropriate relief. I may refer the matter back
to the municipality to reconsider
the applicant's second application.
Alternatively, I can substitute the municipality's decision with an
order approving the application.
Counsel for the applicant urged me
to adopt the latter approach. I turn to consider that aspect.
Substitution
or referral back to the municipality?
[49]
The law in this regard is well-settled. Courts will not lightly
interfere with the exercise of a discretionary power of the
executive
or administration. In terms of s 8(1)(c)(ii)(aa) of the PAJA the
court has the discretion to substitute the administrative
action in
'exceptional cases'. What constitutes 'exceptional' was considered in
Gauteng
Gambling Board v Silverstar Development
[18]
where
it was stated:
'Since
the normal rule of common law is that an administrative organ on
which a power is conferred is the appropriate entity to
exercise that
power, a case is exceptional when, upon a proper consideration of all
the relevant facts, a court is persuaded that
a decision to exercise
a power should not be left to the designated functionary. How that
conclusion is to be reached is not statutorily
ordained and will
depend on established principles informed by the constitutional
imperative that administrative action must be
lawful, reasonable and
procedurally fair'.
[50]
In
Trencon
Construction v IDC
[19]
the Constitutional Court summarised the principles governing a
consideration whether there are exceptional circumstances, and how
a
court should conduct such an enquiry, given the doctrine of
separation of powers. The following factors should be considered:
The
first is whether a court is in as good a position as the
administrator to make the decision. The second is whether the
decision
of an administrator is a foregone conclusion, which factors
must be considered cumulatively. Thereafter, a court should still
consider
other relevant factors. These may include delay, bias or the
incompetence of an administrator. A court will not be in as good a
position as the administrator where the application of the
administrator's expertise is still required and a court does not have
all the pertinent information before it. Once a court has established
that it is in as good a position as the administrator, it
is
competent to enquire into whether the decision of the administrator
is a foregone conclusion. A foregone conclusion exists where
there is
only one proper outcome of the exercise of an administrator's
discretion and 'it would merely be a waste of time to order
the
[administrator] to reconsider the matter'. There can never be a
foregone conclusion unless a court is in as good a position
as the
administrator. A court must consider other relevant factors,
including delay. Ultimately, the appropriateness of a substitution
order must depend on the consideration of fairness to the implicated
parties. If the administrator is found to have been biased
or grossly
incompetent, it may be unfair to ask a party to resubmit itself to
the administrator's jurisdiction. In those instances,
bias or
incompetence would weigh heavily in favour of a substitution order.
However, having regard to the notion of fairness, a
court may still
substitute even where there is no instance of bias or incompetence.
[20]
[51]
In the present case, it is contended on behalf of the applicant that
exceptional circumstances exist for the court to substitute
its own
decision for that of the municipality. Exceptional circumstances are
said to be constituted by the fact that the Court
is in possession of
all the relevant facts, and is therefore in as good the position as
the municipality to consider the application.
I agree. The issue has
been exhaustively ventilated in the affidavits as well as the
annexures before Court, and the decision to
be taken is not of a
polycentric nature.
[52]
I next enquire whether the decision of the municipality is a foregone
conclusion. In this regard I also agree with counsel
for the
applicant that this is so, for the following reasons: the initial
'reasons' furnished were no reasons at all. What is more,
instead of
reconsidering the decision after being alerted of its defect, the
municipality,
ex post facto,
'manufactured' new reasons for
the decision. I have considered them, and found none to have any
merit. By its conduct, the municipality
has clearly shown that it
sought a particular outcome, and would go to great lengths to ensure
that. I therefore conclude that
the decision of the municipality is a
foregone conclusion.
[53]
I also take into account the delay. It took the municipality from
April 2014 to January 2015 to take a final position on the
matter,
and only because the present application had been served on it. I
agree with the submission on behalf of the applicant
that given the
non-cogent reasons initially provided, and the delay in rectifying
the defective decision, serious doubt should
be cast on the
competence of the municipality and its functionaries. A referral back
to the municipality is likely to result in
further delays and waste
of time. In my view, on a conspectus of factors, exceptional
circumstances exist which warrant a substitution
order.
Considerations of fairness weigh in favour of that order. A
substitution order constitutes a just, equitable and effective
remedy
under the circumstances.
[54]
To sum up. Section 139 of the Town Planning and Townships Ordinance
is unconstitutional and invalid. The declaration of invalidity
is
subject to the confirmation of the Constitutional Court in terms of s
172(2)(a) of the Constitution, and the registrar of this
Court will
be directed to transmit this judgment to the Constitutional Court for
confirmation proceedings. The declaration of invalidity
shall not be
with retrospective effect. Retrospectivity shall be limited to the
present case, as a natural and logical outcome
of the case and to
ensure that the applicant is granted effective relief following a
finding of constitutional invalidity, as directed
by the
Constitutional Court in
Fose
v Minister of Safety and Security
[21]
.
As regards the decision of the municipality refusing the applicant's
second application, it vitiated by an improper exercise of
a
discretion and should be set aside. Exceptional circumstances warrant
the substitution of this Court's order, for the decision
of the
municipality.
Costs
[55]
Finally, with regard to costs, there is no reason why the applicant,
being the successful party, should not be entitled to
costs. Costs
should therefore follow the result.
[56]
In the result the following order is made:
1. Section 139 of the
Town-Planning and Township Ordinance 15 of 1986 is declared
unconstitutional and invalid;
2. The declaration of
invalidity is not retrospective and does not apply to appeals pending
in terms of section 139 of the ordinance;
3. The decision of the
first respondent on 12 March 2014 refusing the applicant's
application to erect a temporary contractors'
camp, is reviewed and
set aside. In its stead, the following is substituted:
1.
The applicant's application in terms of clause 11(2)(b)(ii) of the
Lephalale Town Planning Scheme, 2005, dated 30 November 2013,
for the
erection of a temporary contractors' camp on 5 hectares on portion 3
of the farm Hanglip 508 LQ, is approved;
2.
The approval is subject to the same terms and conditions as contained
in the first respondent's letter dated 9 November 2012.
4. The first respondent
is ordered to pay the costs of the application.
___________________
T
M Makgoka
Judge
of the High Court
Date
of hearing:
22
February 2016
Judgment
delivered:
25 May 2016
Appearances:
For
the Applicants:
Adv P.J. Vermeulen
Instructed
by:
Ettiene Rossouw Attorneys, Lephalale
Eben
Griffiths Attorneys, Centurion, Pretoria
For
the Respondent:
Adv. M.S. Mphahlele
L.I.
Phooko Attorneys, Centurion, Pretoria
No
appearance for the Second, Third and Fourth Respondents.
[1]
City of
Cape Town and Another v Robertson and Another
[2004] ZACC 21
;
2005 (2) SA 323
(CC)
[2]
Para 60. See also
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) paras 26 and 38 and
CDA
Boerdery {Edms) Bpk and Others v Nelson Mandela Metropolitan
Municipality and Others
[2007] ZASCA 1
;
2007 (4) SA 276
(SCA) paras 37-40.
[3]
Minister
of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd and Others
2014 (1) SA 521 (CC)
[4]
Para 46.
[5]
Minister
of Local Government, Environmental Affairs and Development Planning,
Western Cape v Habitat Council and Others
2014 (4) SA 437 (CC).
[6]
Habitat
paras 24 and 25.
[7]
Beweging
van Christelik Volkeieskool Onderwys
(above) para 46.
[8]
OUTA
and others v SANRAL Limited and others
[2013] 4 All SA 639
(SCA) para 26
[9]
See
S v
Mercer
[2003] ZACC 22
;
2004 (2) SA 598
(CC);
2004 (2) BCLR 109
(CC) at para 4;
Head
of Department, Department of Education, Limpopo Province v Settlers
Agricultural High School and Others
2003 (11) BCLR 1212
(CC) at para 11 and
Brummer
v Gorfil Brothers Investments (Ply) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3;
Van
Wyk v Unitas Hospital & another
[2007] ZACC 24
;
2008 (2) SA 472
(CC) para 20.
[10]
Bell
Porto School Governing Body v Premier, Western Cape
2002 (3) SA 265 (CC).
[11]
Para 159.
[12]
Judicial
Service Commission and Another v Cape Bar Council and Another
2013
(1) SA 170
(SCA) paras 43-53
[13]
Moletsane
v Premier, Free State
1996 (2) SA 95
(0) at 98G-H.
[14]
Jicama
17 (Ply) Ltd v West Coast District Municipality
2006 (1) SA 116 (C).
[15]
National
Lotteries Board v South African Education and Environment Project
2012 (4) SA 504 (SCA).
[16]
R v
Westminster City Council, Ex Parte Ermakov
[1996] 2 All ER 302
(CA) at 316c-d.
[17]
Bizstorm
51 CC tla Global Force Security Services v Witzenberg Municipality
and another
(137941/13)
[2014] ZAWCHC 83
(30 May 2014) para 31.
[18]
Gauteng
Gambling Board v Silverstar Development Ltd and others
2005 (4) SA 67
SCA para 28
[19]
Trencon
Construction (Ply) Ltd v Industrial Development Corporation of South
Africa (Pty) Ltd and another
2015 (5) SA 245 (CC).
[20]
Paras 47-55.
[21]
Fose v
Minister of Safety and Security
1997
(3) 786 (CC) para 69 and
Gory
v Kolver N.O. and Others (Starke and Others Intervening)
2007 (4) SA 97
(CC) para 40.