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[2016] ZAGPPHC 1111
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Shoprite Checkers (Pty) Limited v Premier, Gauteng Province and Others (71551/2011) [2016] ZAGPPHC 1111 (11 October 2016)
REPUBLIC
OF SOUTH .AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.:71551/2011
Reportable:
No
Of
interest to other judges: No
Revised:
Yes
5/10/2016
In
the matter between:
SHOPRITE
CHECKERS (PTY)
LIMITED APPLICANT
and
PREMIER,
GAUTENG
PROVINCE FIRST
RESPONDENT
MEC,
DEPARTMENT OF ECONOMIC DEVELOPMENT;
GAUTENG
PROVINCE SECOND
RESPONDENT
GAUTENG
TOWNSHIP
BOARD THIRD
RESPONDENT
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY FOURTH
RESPONDENT
MIDSTREAM
HOMEOWNERS ASSOCIATION FIFTH
RESPONDENT
Heard:
28 July 2015
Delivered
11 October 2016
JUDGMENT
A.A.LOUW
J
The
parties
[1]
The Applicant in this matter is Shoprite Checkers (Pty) Ltd
[1]
It operates a distribution centre from its property, being Erf 906
Louwlardia Extension 25 Township
[2]
,
situated on the comer of Olievenhoutbosch and Brakfontein Roads in
Midrand within the Fourth Respondent's municipal area
[3]
("the subject property”).
[2]
The First Respondent is the Premier of the Gauteng Province
[4]
.
The executive authority of the Gauteng Province vests in the First
Respondent by virtue of the provisions of section 125 of the
Constitution.
[3]
The Second Respondent is the MEC for the Department of Economic
Development
[5]
. The
administration of the Town Planning and Townships Ordinance 15 of
1986 (Transvaal, now Gauteng) ("the Ordinance")
was
.assigned to the Second Respondent. The Second Respondent is
responsible for the appointment of members of the Gauteng Townships
Board ("the GTB” or the Third Respondent") by virtue
of the powers vested in the Second Respondent by section 4
of the
Ordinance.
[4]
The Third Respondent is the GTB, a statutory board, established for
the Gauteng Province by virtue ·of section 3(1) of
the
Ordinance. The GTB gets appointed by the Second Respondent and
functions under the auspices, control and directives of the
Second
Respondent
[6]
.
[5]
The Fourth Respondent is the City of Tshwane Metropolitan
Municipality ("the Municipality"). The subject property
is
situated within its municipal area
[7]
.
[6]
The Fifth Respondent is the Midstream Homeowners Association
("Midstream HOA"), an association incorporated in terms
of
section 21 of the Companies Act 61 of 1973 ("the old Companies
Act")
[8]
.
[7]
The application is opposed by the Fifth Respondent only.
[8]
Despite having filed the record in terms of Rule 53, the Third
Respondent does not oppose the application.
The
nature of the dispute
[9]
The dispute between the parties has its genesis in the approval, on
15 September 2009
[9]
, by the
Municipality, of an application brought by the Applicant on 15 July
2009
[10]
in terms of clause
26(1)(c) of the Tshwane Town-Planning Scheme, 2008 ("the TIPS"),
for permission to relax the height
restriction stipulated in the
relevant amendment scheme
[11]
(
A/S
945")
in respect of buildings erected on the subject property.
[10]
On 23 March 2010, the Applicant received notice to the effect that
the Midstream HOA lodged an appeal In terms of section 139
of the.
Ordinance to the GTB against the Municipality's approval
[12]
.
[11]
On 18 August 2010, the GTB ruled that the Fifth Respondent had
locus
standi
in
the appeal before it
[13]
.
[12]
On 22 April 2011, the GTB set aside the Municipality's approval in
terms of clause 26(1)(b) of the TTPS to increase the height
of the
buildings on the subject property
[14]
.
Purpose
of the application
[13]
The purpose of this application is to seek an order declaring those
provisions of the Ordinance
[15]
,
which empower the GTB to set aside the Municipality's municipal
planning decision, unconstitutional
[16]
.
[14]
In addition thereto, and in the alternative, the application has as
its goal the securing of an order reviewing and setting
aside the
decisions taken by the GTB
[17]
to:
14.1 rule that the
Midstream HOA had
locus standi
in the appeal before it; and
14.2 set aside and refer
back to the Municipality's decision to relax the height limitation
applicable to buildings on the subject
property.
[15]
The relief sought by the Applicant is recorded in the notice of
motion as follows:
"1. An order
declaring that the City of Tshwane Metropolitan Municipality
(the
Municipality') is vested with the exclusive executive authority to
consider and approve applications for the relaxation of
the
limitation
on the height of all buildings situated within its municipal area
imposed
by the
Tshwane Town-Planning Scheme, 2008 ('Tshwane Scheme’) adopted
and enforced by the Municipality in terms of the provisions
of
the
Town-Planning and Townships Ordinance 15 of 1986 (the
Ordinance’);
[18]
2. An order declaring
the provisions of Section 139 of the Ordinance, in particular the
provisions of Section 139(6), which empower
the Gauteng Townships
Board (the GTS') to confirm, amend or set aside any decision of the
Municipality on any application in terms
of any
town
planning scheme and to give any decision the Municipality would have
been competent to give with regards thereto, uncon8fltutional
to the
extent that the said provisions attempted to empower
a
provincial
authority or provincial body to make decisions on appeal to it which
fall within the exclusive executive authority of
the
Municipality;
[19]
3.
Consequent
upon the relief sought in 1and 2 above, an order setting aside the
decisions of the GTB pursuant to an appeal filed by
the Fifth
Respondent (Midstream HOA? in terms of Section 139 of the
ordinance
against the decision of the Municipality approving an application
made by the Applicant in terms of clause 26(1) (b) of
the Tshwane
Scheme ('the Municipality's decision7 for the relaxation of the
limitation on height on the buildings situated at Erf
906, Louwlardia
Extension
25 Township ('the subject property';
[20]
4. Both in addition to
nd in the alternative to the relief sought in prayers 1 to
3
above,
an order reviewing and setting aside the decision of the GTB that the
Midstream HOA had the necessary locus standi, in
terms of
Section 139 of the Ordinance, to bring an appeal to it against the
Municipality's decision;
[21]
5. Both in addition to
and in the alternative to the relief sought in prayers 1 to 4 above,
an order reviewing and setting aside
the decision of the GTB setting
aside the Municipality's decision;
[22]
6. An order granting
an extension of the period mentioned in Section 7(1J of the·Promotion
of Administrative Justice Act
3 of 2000 ('PAJA, as is provided for in
Section 9 thereof;
[23]
7.
Costs
against such parties opposing this application jointly and
severally;
[24]
8. Further and/or
alternative relief."
[25]
[16]
The Applicant has caused two notices to be displayed in terms of Rule
16A of the Uniform Rules of Court
[26]
.
[17]
No interested party has approached the Applicant for Its written
consent to be admitted as
animus curiae
in terms of Rules
16A(2) and (3) of the Uniform Rules of Court.
[18]
No notice for admission as
amicus curiae
as is contemplated by
Rule 16A(5) of the Uniform Rules of Court was served on the Applicant
either.
Origin
of the ordinance
[19]
The Ordinance has its origin in the pre-constitutional era. It
pr9"'dates the Interim Constitution by some 6 years
[27]
.
It dates from an era during which municipalities were regarded as
mere creatures of statute, otherwise moribund, save if imbued
with
powers by provincial or national legislation
[28]
.
[20]
Since the advent of the Constitution, a municipality has become an
organ of state that 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
[29]
.
[21]
When regard is had to the structure of the Ordinance, it is evident
that it originates from an era where the provincial authority,
through the Administrator, exerted full control over municipalities
and its decision-making powers. As far as municipal planning
was
concerned, the Administrator in fact took most municipal planning
decisions himself. It is for this reason that one finds numerous
references in the Ordinance to the Administrator effectively
controlling the municipal planning functions of a municipality.
Examples
thereof are found in:
21.1.
the power
to declare any local authority to be "an authorised local
authority" for purposes of Chapters 2, 3 or
4
of the
Orinance
[30]
by proclamation
in the Provincial Gazette;
21.2.
the
Administrator appoints the members of the Township Board
[31]
;
21.3.
the
Administrator removes members from the Board
[32]
21.4.
the
Townships Board reports through the Director to the Administrator on
any matter which the Administrator may refer to it
[33]
;
21.5.
the
Administrator may direct the Board to hold further investigations or
to reconsider Its recommendation
[34]
;
21.6.
the
Administrator may direct a local authority to prepare a town.
planning scheme in respect of all or any land situated within
its
area of jurisdiction
[35]
;
21.7.
the
Surveyor-General is prohibited from approving a subdivision of land
before the Administrator has approved the subdivision in
terms of the
Ordinance
[36]
;
21.8.
the
Administrator finally approves an interim scheme
[37]
21.9.
he
Administrator ultimately approves applications by an owner of land
for amendment of a town-planning scheme situated in the area
of
jurisdiction of a local authority which is not an authorised local
authority
[38]
;
21.10.
the
Administrator may, on appeal, allow a further amendment of an
amendment scheme
[39]
;
21.11.
the
Administrator may consent to an application brought by an owner to
repeal an amendment ·scheme or a provision demanding
the
payment of an engineering services contribution
[40]
;
21.12.
the
Administrator may approve any proposal made by a local authority in
order to promote the fulfilment of the purposes of its town-planning
scheme
[41]
;
21.13.
the
Administrator may direct a local authority to review its town
planning scheme
[42]
;
21.14.
the
Administrator functions as the appeal body for appeals against
decisions of an authorised local authority in terms of section
29(2)
of the Ordinance and
in
respect
of a rezoning application contemplated in section 56(1) of the
Ordinance, as well as in the instance of a refusal or unreasonable
delay of an authorised local authority to give a decision on a
rezoning application
[43]
;
21.15.
the
Administrator decides appeals against a decision by a local authority
not to allow a further amendment of a town-planning scheme
within a
period of 2 years from the date of adoption of the scheme
[44]
;
21.16.
the
Administrator may exempt any person who establishes a township for he
temporary housing of
bona
fide
full-time
employees in the service and the .families of such employees from any
provisions or all of the provisions of Chapter 3
of the Ordinance
[45]
21.17.
the
Administrator considers applications for township establishment in
certain instances
[46]
;
21.18.
the
Administrator considers divisions of townships
[47]
;
21.19.
the
Administrator may require the fulfilment of conditions for township
establishment before plans and diagrams are lodged with
the Registrar
of Deeds
[48]
;
21.20.
the
Administrator may consent to the continuation of a township
establishment application by a new owner
[49]
;
21.21.
the
Administrator declares a township to be an approved township by
notice in the Provincial Gazette
[50]
;
21.22.
the
Administrator may authorise the refund of an endowment or any portion
thereof to a township owner
[51]
;
21.23.
the
Administrator may approve of an application by an owner to have the
boundaries of an approved township extended
[52]
;
21.24.
the
Administrator approves the alteration, amendment or cancellation of
general plans
[53]
;
21.25.
the
Administrator publishes a notice in the Provincial Gazette declaring
the alteration, amendment, total or partial cancellation
of a general
plan
[54]
;
21.26.
the
Administrator observes and enforces any conditions imposed during
township estabfishment
[55]
;
21.27.
the
Administrator considers appeals against decisions of a local
authority for the establishment of a township or a refusal or
unreasonable delay to do so
[56]
;
21.28.
the
Administrator considers the application for the establishment of
townships by local authorities
[57]
;
21.29.
the
Administrator considers appeals of any person aggrieved by a
municipality's decision as' to the nature of engineering services
to
be installed when a township is established
[58]
;
21.30.
the
Administrator determines the guidelines for classification of.
engineering services to be provided to a township
[59]
;
21.31.
the
Administrator determines the guidelines for the contribution by a
local authority to the costs of internal engineering services
[60]
;
21.32.
the
Administrator determines the guidelines for contributions towards the
costs of external engineering services that a township
developer has
to pay
[61]
;
21.33.
the
Administrator appoints the members of the services appeal board
[62]
;
21.34.
the
Administrator publishes a notice signalling the approval or
adoption of a town planning scheme
[63]
;
21.35.
the
Administrator may prescribe any provision in respect of a town
planning scheme
[64]
;
21.36.
the
Administrator may declare a township an illegal township
[65]
;
and
21.37.
the
Administrator may levy fees in respect of any act, matter or
application in terms of the Ordinance and anything required to
be
done in terms thereof
[66]
and
may exempt any person from the payment thereof
[67]
.
[22]
The above is not an exhaustive list of a provincial authority’s
involvement in municipal planning decisions. Apart from
the
Administrator exercising the abovementioned municipal planning
functions, the Ordinance Is replete with examples of the office
of a
provincial authority exercising municipal planning functions through
the Director
[68]
, the
Township$ Board and the Services Appeal Board
[69]
.
The Ordinance contains many references to the municipal planning
functions being performed by the Director
[70]
.
[23]
The Ordinance, with its unlimited control and decision making powers
awarded to its provincial executive and to be exercised
through the
Administrator, the Director, the Townships Board and the Services
Appeal Board, is an instrument of its time.
[24]
After 21 years of constitutional democracy, the Ordinance still
reflects this outdated state government model. Since the declaration
of constitutional invalidity of Chapters V and VI of the Development
Facilitation Act 67 of 1995 ("the DFA") by the
Constitutional Court
[71]
, the
Ordinance has become the only source of authority for municipal
planning functions to be exercised by municipalities in the
area of
the old Transvaal Province .
Assignment
of the ordinance
[25]
With the commencement of the new constitutional era, the
administration of the whole of the Ordinance was assigned to the
Province of Gauteng, with effect from 31 October 1994
[72]
.
[26]
Any reference in the Ordinance to "Administrator" means the
competent authority to whom the administration of the
Ordinance has
been assigned under section 235(8) of the Interim Constitution
[73]
.
[27]
The Second Respondent is the competent authority within the Gauteng
Province to whom the administration of the Ordinance was
assigned.
Town-planning
scheme and amendment scheme defined
[28]
Since the dispute between the parties has its genesis in the
permission granted by the Municipality for a relaxation of the
height
restriction in respect of the buildings erected on the subject
property, I deem it necessary to first define the concept
"town-planning scheme" and to explain its statutory origin
with specific reference to the Ordinance.
[29]
Under the Ordinance, the authority to regulate the use of land is
assigned in general to authorised municipalities. The principal
tool
for regulating land use is through the introduction and enforcement
by the municipality of a town-planning scheme. The breadth
of control
that might be asserted through a town-planning scheme is illustrated
by the provisions of Regulation 3, which includes
the control of
height.
[74]
[30]
In essence, town-planning consists of the control over land use by
the Municipality concerned so that each part of the land
within the
urban area can function efficiently as part of the whole in order to
enhance the welfare, prosperity and progress of
the community to the
highest possible level
[75]
.
[31]
A town-planning scheme is the instrument or document or guide
containing all townplanning controls necessary to give effect
to
the purpose of such a scheme.
[32]
The .general purpose of a town-planning scheme has been stated in
section 19 of the Ordinance as follows:
"The general
purpose of
a
town-planning scheme shall be the co-ordinated
and harmonious development of the area to which it relates in such
a
way as will most effective tend to promote the health,
safety,
good order, amenity,
convenience and general
welfare of such area
as
well
as
efficiency and economy
in the process of such development.”
[33]
The Municipality derives its power to prepare a town-planning scheme
and an amendment scheme from the provisions of section
18 of the
Ordinance.
[34]
A town-planning scheme typically contains a schedule that has four
columns or sections,
[76]
34.1.
The first
column shows the various use zones, namely residential, business
etc.
[77]
34.2.
The second
column lists the purposes for which buildings may be erected or used
within each use zone
[78]
.
These are the ·primary uses for each use zone, for example,
dwelling houses in the case of a residential use zone and factories
in the case of an industrial use zone
[79]
.
34.3.
The third
column contains a list of purposes for which the buildings may be
erected or used in each specific use zone but only with
the consent
of the Municipality
[80]
. These
are the uses allocated to a specific use zone which are not primary
uses but which are necessary in a specific area because
they provide
certain conveniences
[81]
. In
the case of residential use zone, such uses would be places of
worship, social halls and so on
[82]
.
Since these uses could cause inconvenience, loss of amenity and
economic damage if allowed to continue unrestricted, special consent
from the Municipality is required to undertake such specific
developments.
[83]
34.4.
The fourth
column indicates those purposes for which buildings may not be
erected and used
[84]
in a
specific use zone. In a residential use zone, the erection of
buildings for noxious industries would, for example; be
prohibited
[85]
.
[35]
A town-planning scheme also contains provisions regulating aspects
such as boundary lines, height restrictions
[86]
and floor area ratios [“FAR”. also sometimes referred to
as "floor space ratio” or "FSR"]. Such
control
measures are sometimes referred to as bulk and coverage
[87]
.
[36]
The permissible maximum height of buildings varies from use zone to
use zone
[88]
.
[37]
Town, planning schemes also comprise scheme clauses, scheme maps,
annexures and schedules
[89]
.
[38]
A town-planning scheme may empower e municipality, in its discretion
and on such conditions as it may determine.to consent
to the use of
any land or building for a particular purpose
[90]
.
[39]
A town-planning Scheme also empowers a municipality to grant
exemption from the provisions of the scheme or to relax the
requirements
of those provisions on such conditions as it may
determine
[91]
.
[40]
A town-planning scheme may contain such other provisions as may be
prescribed or which may relate to town-planning in general
[92]
.
[41]
The Administrator published the Town-Planning and Townships
Regulations under section 138 of the Ordinance
[93]
(4'the Regulations"). The Regulations also dictate the content
of a town-planning scheme.
[42]
The Regulations direct that the provisions of a town-planning scheme
shall consist of,
inter
alia,
the
provisions contained in scheme clauses
[94]
.
[43]
The Regulations further determine that scheme clauses may, in
addition to any provision contemplated in section 20 of the
Ordinance, contain provisions relating,
inter
alia,
to
the regulation of the erection of buildings with particular reference
to the height thereof
[95]
.
[44]
It is therefore clear that control over the height of buildings in
terms of a town planning scheme constitutes the control
and
regulation of land use.
Provisions
of the ordinance relevant to the powers, duties and functions of the
GTB
[45]
From what is to follow it is clear that the Townships Board is an
organ of state which functions at the provincial level of
government.
[46]
In terms of section 3(1) of the Ordinance, a Township Board is
established for each province.
[47]
In terms of section 4(1) of the Ordinance, the Townships Board
consists of a Chairman appointed by the Second Respondent, a
Director
[96]
and no more than
15 other members, also appointed by the Second Respondent.
[48]
The Second Respondent is authorised by the Ordinance to:
48.1.
determine
the period of office of an appointed member, which may not exceed 5
years
[97]
;
48.2.
at any
time, and for good and sufficient reason, remove the chairman, vice
chairman or appointed member from office
[98]
;
and
48.3.
may appoint
any person instead of a member when the office of an appointed member
becomes vacant
[99]
.
[49]
The control that the Second Respondent exercises over the powers and
duties of the Township Board is evident from the wording
of section
13 of the Ordinance. It determines:
"13. Powers and
duties of Board.
-
(1) The Board –
(a)
shall exercise the powers conferred and perform the duties imposed
upon it by-this Ordinance;
(b)
shall report through the Director to the Administrator on any
matter which the Administrator may refer to it,·
(c)
may, in its discretion and in the manner contemplated in
paragraph (b), report to the Administrator on any matter to which
this Ordinance relates.
(2) Where the Board
has, in terms of any provisions of this Ordinance, made
a
recommendation to the Administrator in respect of an application,
town-planning scheme or appeal, t/;le Administrator may, before
giving his decision on the application, scheme or appeal and if he
deems it expedient, direct the Board –
(a)
to
hold
a
further inspection or hearing or institute a further
investigation;
(b)
to
reconsider its recommendation. "
[50]
Section 139(1) of the Ordinance affords an applicant or an objector
who is aggrieved by a decision of a local authority on
any
application in terms of any provision of the Ordinance or any
town-planning scheme, the opportunity to appeal through the Director
to the Townships Board within a period of 28 days from the date he
has been notified in writing of the relevant decision.
[51]
Once an appeal has been lodged, the Townships Board affords a third
person or the person who has lodged an objection, an opportunity
to
oppose the appeal.
[52]
In terms of section 139(2) of the Ordinance, a "third person"
is defined as that person in whose favour a local authority
has made
a decision which is appealed against by any person who is aggrieved
thereby.
[53]
After the provisions of subsections 139(1), (2) and (3) of the
Ordinance have been complied with, the Director submits the
appeal to
the Townships Board, who shall then determine a date, time and place
for the hearing of the appeal
[100]
.
[54]
At a hearing before the Townships Board, the local authority and any
other party to the appeal
[101]
may state its case
[102]
.
[55]
After the hearing, the Townships Board may:
55.1.
confirm,
amend or set aside the decision appealed against
[103]
;
55.2.
give any
decision which the local authority would have been competent to
give
[104]
; and
55.3.
thereafter
the Townships Board shall notify every party to the appeal in writing
of its decision and the reasons therefor
[105]
.
Defences
raised by the fifth respondent
[56]
The Fifth Respondent has summarised its defences to the application
as follows:
"313. A/S 945 is
the town planning scheme In operation inv (sic) respect of the
applicant's property and column 6 thereof which
regulates the height
of all structures on the applicants property amends the general
provisions of the ITPS and immediately triggers
clause 16(6) of the
TTPS (because the Schedule to AIS 945 operates
as
an Annexure
T in the TTPS).
314.
The
incorrect procedure was followed by
the
Municipality in having
permitted the applicant to apply for the Increase in height (or
height relaxation) without having complied
with clause 16 of the TTPS
(see paragraph 300.1 supra).
315. Whilst the
Municipality is authorised to waive this requirement it may only do
so, on the written request by the applicant
in circumstances where,
objectively, it is of the opinion that another way of giving the
notice as prescribed by the Municipality,
will inform the public in a
better way, or that such non-compliance is not of such a material
nature that it is likely to affect
anyone detrimentally (clause
16(9)).
316. The Municipality
did not comply with clause 16(9).
317. The fifth
respondent objected to the application prior to it being considered
by the Municipality.
318. Despite the fifth
respondents objection the Municipality failed to consider the
objection and approved the application.
319. The fifth
respondent appealed the decision, which appeal was upheld.
320. The GTB
considered in depth all evidence adduced at ·the appeal
hearing (over many days) and having considered same
as
well
as
sound town planning principles, upheld the appeal and
set
aside the
decision of the Municipality.
321. The GTB is
authorised to set aside the decision of the Municipality in terms of
the powers conferred upon it in terms of
section
139 of the
Ordinance.
322. The Board acted
with the powers conferred upon it in terms of its enabling
legislation.
323. Section 139 of
the Ordinance is not unconstitutional for all the reasons described
above, which reasons are too vast to distil
into one sentence.
324. If the Honourable
Court declares section 139 unconstitutional, the Courts will be
flooded with applications in which they are
compelled to undertake
town planning work. This will not only further congest the Court roll
but it will require each judge of
each division to become an expert
in town planning matters (in addition to their current expertise).
325. The applicant was
not entitled to exercise the permission granted (clause 16(9) of the
TTPS).
326. Despite this
prohibition and despite having been advised at all material times by
a body of experts. (sic) The (sic) applicant
chose simply to ignore
11uoh prohibition and continued with construction in order to attempt
to coerce a decision from the GTB
“in its favour.”
[106]
[57]
The Fifth Respondent advances the following arguments for its
contention that section 139 of the Ordinance is not inconsistent
with
the Constitution:
57.1.
The Second
Respondent ("MEC”) is the competent authority in terms of
section 235(8) of the Interim Constitution to whom
the administration
and performance of the functions and powers in terms of the Ordinance
have been assigned
[107]
;
57.2.
In a
section 139 appeal, the GTB makes the final decision, but it may
refer the matter to the MEC
[108]
;
57.3.
The GTB has
not trammelled any executive authority vested in the
Municipality
[109]
;
57.4.
The GTB has
not trammelled any integrated development plans adopted by the
Municipality
[110]
;
57.5.
The GTB has
not made any decision repugnant to any integrated development plan
adopted by the Municipality
[111]
;
57.6.
The GTB has
merely exercised the powers conferred upon it in terms of section 13,
read with section 139 of the Ordinance
[112]
;
57.7.
The GTB
does not consider itself to be an audience of first instance in
respect of town planning applications, as an alternative
to the
Municipality
[113]
;
57.8.
The GTB is
the only competent authority in terms of law to which the Fifth
Respondent could tum to address its dissatisfaction with
the decision
taken by the Municipality
[114]
;
57.9.
The GTB
functions as the only domestic or internal appeal mechanism intended
by Promotion of Administrative Justice Act, 3 of 2000
("PAJA”)
that has to be exhausted in terms of section 7(2) of PAJA prior to
approaching the Court, since section of
the Local Government:
Municipal Systems Act 32 of 2000 ("the Systems Act") is not
available to an objector
[115]
;
57.10.
If the GTB
does not remain as an appeal mechanism, Courts will be inundated with
review applications calling upon them to do planning
work and to make
planning decisions, consequently disregarding the considerable
experience the GTB has in town planning matters
[116]
;
57.11.
The GTB
represents the independent and impartial tribunal or forum intended
in section 34 of the Constitution
[117]
;
57.12.
The
Ordinance which creates the GTB is provincial legislation as intended
in section 104 of the Constitution;
[118]
57.13.
Section
114(2) of the Constitution enjoins the provincial legislature to
provide for mechanisms to ensure that all provincial executive
organs
of State in the province are accountable to it and to oversee the
exercise of provincial executive authority in the province
[119]
;
57.14.
Section 125
of the Constitution permits the Premier to implement provincial
legislation, thereby exercising executive authority
[120]
;
57.15.
The GTB
considers all evidence placed before it and bases its decision on
long-established, sound town planning principles, with
due
consideration of integrated plans adopted by the Municipality and can
therefore not be accused of a flagrant usurpation of
or disregard for
the functions of the Municipality;
[121]
57.16.
The
functional area of municipal planning in Part B of Schedule 4 is
limited by sections 155(6) and 155(7) of the Constitution
[122]
;
57.17.
The
exercising of an appeal function by the GTB constitutes the
contemplated regulation of the exercise of the Municipality's
executive
authority in respect of municipal planning by the
provincial executive, being permitted in terms of section 155(7) of
the Constitution
[123]
;
57.18.
Applications
to increase the existing permissible height of structures does not
constitute municipal planning" for purposes
of Part B of
Schedule 4 to the Constitution. but forms part of the provincial
competence of "urban and rural development”
of Part A of
Schedule 4 to the Constitution, which is a provincial legislative
competence
[124]
; and
57.19.
Section 139
of the Ordinance constitutes a limitation contemplated by section
155(7) of the Constitution
[125]
.
[58]
These arguments by the fifth respondent will be dealt with hereunder
in the light of the fact that the Constitutional Court
has on no less
than 3 occasions already dealt with the constitutional scheme
relevant to the functional area of "municipal
planning". It
has by now become settled law that a provincial authority may not set
aside "municipal planning' decisions
taken by a municipality.
The
Constitutional scheme within which Local Government operates
[59]
The constitutional scheme within which municipalities operate was
summarised by Jafta J in
Johannesburg
Municipality v Gauteng Development Tribunal and Others
[126]
as
follows:
"[43] Section 40
of the Constitution defines the model of .government contemplated in
the Constitution. In terms of this section
the government consists of
three spheres: the national, provincial and local spheres of
government. These spheres are distinct
from one another and yet
interdependent and interrelated. Each sphere is granted the autonomy
to exercise its powers and perform
its functions within the
parameters of its defined space. Furthermore, each sphere
must
respect the status, powers and functions of government in the other
spheres and 'not assume any power or function except those
conferred
on [it] in terms of the Constitution'.
[44] The scope of
intervention by one sphere in the affairs of another is highly
circumscribed. The national and provincial spheres
are
permitted
by ss 100 and 139 of the Constitution to undertake interventions to
assume control over the affairs of another sphere
or to perform the
functions of another sphere under certain we/I-defined circumstances,
the details of which are set out below.
Suffice
it now
to
say that the national and provincial spheres are not entitled to
usurp the functions of the municipal sphere, except in exceptional
circumstances. but then only temporarily and in compliance with
strict
procedures.
[127]
This is
the constitutional scheme in the context of
which
the powers conferred on each sphere must be construed.
[45] The starting
point in assessing the powers of the local-government sphere is
s156(1) which affords municipalities original
constitutional powers.
It reads:
'(1)
A municipality has executive authority in respect of, and
has
the right to administer –
(a)
the local government matters listed in Part B of
Schedule
4 and Part B of Schedule 5;
and
(b)
any other matter assigned to it by national or
provincial
legislation.,
[46] Part B of
Schedule 4 includes the following functional areas:
'The following local
government· matters to the extent set out in section 155(6)(a)
and (7):
Air pollution
Building regulations
Child care facilities
Electricity and gas
reticulation
Firefighting services
Local tourism
Municipal airports
Municipal planning
Municipal health
services
Municipal public
transport…’
The functional areas
listed in Part B of Schedule 5 are not material to the present
enquiry. Part B of Schedule 4 and Part B of
Schedule
5
itemise
the. functional areas assigned to municipalities, and these functions
may be regulated by the national and provincial spheres
of government
to the extent defined in s 155(6)(a) and (7).
[47] Section 155(6)(a)
obliges each provincial government to establish municipalities
within its province and, once established,
to provide for their
monitoring and support. Furthermore, s 155(7) imposes an obligation
on national and provincial governments
to
'see
to the
effective performance by municipalities of their functions in respect
of matters listed in Schedules 4 and 5, by ·regulating
the exercise by municipalities of their executive authority referred
to in s 156(1) The
effect of these provisions is that, except
to the extent set out above, the executive authority
over,
or
the power to administer, matters listed in Part B of A Schedules 4
and
5
is vested in municipalities.
[48] The functional
area material to the determination
of
whether
Chs V and VI of the Act
[128]
ate inconsistent with the Constitution is ·municipal
planning'.
It is necessary to construe this term
so
as
to
determine whether it includes the power to authorise land-rezoning
and the establishment of townships. For if it does, the contested
powers fall within the executive authority of municipalities."
·
[60]
Although the term "municipal planning" as it appears in
Part B of Schedule 4, is not defined in the Constitution,
it is
commonly used to define the control and regulation of the use of
land
[129]
.
[61]
The Constitutional Court recently had an opportunity to give meaning
to the "municipal planning" functional area,
where it
found
[130]
:
"[13]
...
Municipalities are responsible for zonings and subdivision
decisions, and provinces
are
not.
[14] This makes sense,
given that municipalities
are
best
suited to make those decisions. Municipalities face citizens
insistent on delivery of governmental services, since they are
the
'frontiers of service delivery, it is appropriate that they should be
responsible for rezoning and subdivision. For these entail
localised
decisions, and should be based on information that is readily
available to municipalities. The decision-maker must
consider
whether services
-
they are
provided primarily by municipalities
-
will be
available for the proposed development. And it must consider matters
like building density and wall heights.
These
are best left for municipal determination."
[131]
[62]
It is common cause between the parties that a municipality utilises
mainly four town planning controls in order to regulate
and control
land use within its jurisdictional area, being height, coverage, FAR
and density
[132]
.
[63]
These controls form the essence of all town-planning schemes.
[64]
Without these four town-planning controls, a town-planning scheme
cannot function properly. Town-planning schemes are the product
of
the Ordinance as a mechanism by which municipalities can regulate
spatial planning in its area.
[65]
The question that has to be answered is whether the setting aside of
the Municipality's permission to relax the height limitation
applicable to buildings on the subject property by the GTB
constitutes an impermissible usurpation of the Municipality's power
to manage "municipal planning and·whether it intrudes on
the autonomous sphere of authority that the Constitution accords
to
municipalities and consequently fails to recognise the
distinctiveness of the municipal sphere
[133]
.
[66]
In the
Habitat
matter
[134]
,
the Constitutional Court had no difficulty in finding that
legislation which allows a provincial authority to interfere in a
municipality's land-use decisions by substituting its decisions for
those of the Municipality, is clearly unconstitutional and
invalid
[135]
.
[67]
The functional area of “urban and rural development" In
Part A of Schedule 4 of the Constitution cannot be interpreted
in a
way that includes those powers associated with the functional area of
“municipal planning" in Part B of Schedule
4 of the
Constitution. Such an Interpretation would infringe upon the
principles of co-operative governance which provide that
each sphere
of government must respect the functions of the other spheres and
must not assume any functions or powers not conferred
upon them by
the Constitution or encroach on the functional integrity of the other
spheres
[136]
.
[68]
The functional area of "urban and rural development" should
be interpreted narrowly so that each sphere of government
could
exercise its powers without interference by another sphere of
government
[137]
.
[69]
The functional area “urban and rural development" is not
wide enough to include the powers that form part of “municipal
planning”
[138]
.
[70]
Not only must the functional areas listed in Schedule 4 of the
Constitution be interpreted as being distinct from the functional
areas listed in Schedule 5, but the functional areas within the same
Schedule, i.e. Schedule 4, must also be interpreted as being
distinct
from one another to avoid the ostensible overlapping of functional
areas.
[71]
"Urban and rural development" must therefore be given a
different context from "municipal planning". In
this
regard, the Constitutional Court stated that:
“
[55] It is,
however, true that the functional areas allocated to the various
spheres of government are not contained in hermitically
sealed
compartments. But that notwithstanding, they remain distinct from one
another. This is the position, even in respect of
functional areas
that share the
same
wording, like roads, planning, sports and
others. Their distinctiveness lies in the level at which a particular
power is exercised.
For example, the provinces exercise powers
relating to "provincial roads' where municipalities have
authority over ·municipal
roads'. The prefix attached
to each functional
area
identifies the sphere. to which it
belongs and It distinguishes it from the functional
areas
allocated to the other spheres. In the example just given, the
functional
area
of 'provincial roads' does not include
·municipal roads'. In the same vein 'provincial planning and
'regional planning and
development do not include 'municipal
planning'.
[56] The
constitutional scheme propels
one
ineluctably
to the conclusion
that,
barring functional
areas
of
concurrent competence, ach sphere of government is allocated separate
and distinct powers which it alone
is
entitled to exercise.”
[139]
[72]
Section 156(5) of the Constitution provides that a municipality has
the right to exercise any power concerning a matter that
is
reasonably necessary for, or incidental to, the effective performance
of its functions. Such an incidental power, although it
does not
confer new functional areas on a municipality, does confer on a
municipality the power to adopt measures that will enhance
the
effective administration of its existing functional areas
[140]
.
[73]
It makes no sense whatsoever for one of the four town planning
controls, being height, to resort under provincial authority's
competence, whilst the other three town planning controls, i.e.
coverage, density and floor space ratio, resort under the
Municipality's competence.
[74]
The imposition of a height limitation and the power to relax such a
limitation ought to be considered as being inextricably
linked to or
incidental to a municipality's competence to regulate the zoning of
all property in its area as part of its municipal
planning function.
Such an interpretation will enhance the effective administration of
the said municipal function.
[75]
The control and relaxation of height limitations on buildings must at
the very least be considered to be reasonably incidental
to the
effective performance of the municipal planning function of that
municipality, as it represents one of the four planning
controls
which are vital components of the control over zoning of properties.
[76]
The word "planning" in the functional area of "municipal
planning" refers to the control and regulation
of land us and
the prefix "municipal" confines it to municipal
affairs
[141]
.
[77]
In the context of this matter, the exercising of control over the
height of buildings in a municipal area by a municipality
forms part
of a municipality is exclusive “municipal planning"
function, being the strict reserve of the Municipality
in terms of
section 156(1) of the Constitution.
[78]
The setting aside by a provincial tribunal of the Municipality's
decision to relax a height limitation on a building, thereby
imposing
its own decision which is inconsistent with the decision and
objectives of the Municipality, must be regarded as a recipe
for
chaos
[142]
and is clearly
inconsistent with section 156(1) of the Constitution.
[79]
Applying the
Johannesburg Metropolitan Municipality
and
Habitat
authorities, there Is no merit in the Fifth
Respondent's defences founded on a strained interpretation of section
235(18) of the
Interim Constitution, sections 104, 114(2), 125,
155(6) and 155(7) of the Constitution and section 7(2) of PAJA.
[80]
On the authority of the
Johannesburg Metropolitan Municipality
and
Habitat
matters, the GTB's setting aside of the Municipality's
decision to relax the height limitation on the subject property
offends the
constitutional scheme an in particular section 156 of the
Constitution.
Main
ground for the setting aside of the GTB's decision - Constitutional
invalidity
[81]
It is evident from the structure of the Applicant's notice of motion
that it seeks the setting aside of the GTB's decisions
on the ground
that the decision-making powers of the GTB appears inconsistent with
the Constitution.
[82]
The Applicant's notice of motion further informs that the Applicant,
in addition to this first mentioned ground for review,
also seeks the
setting aside of the GTB's decision on other grounds.
[83]
As the powers exercised by the GTB in terms of section 139 of the
Ordinance are inconsistent with the Constitution, the decisions
taken
by the GTB ought to be set aside for this reason alone. There is no
need to consider the alternative grounds for review relied
upon by
the Applicant in setting the GTB's decisions aside.
[84]
In
Habitat,
the
Constitutional Court did exactly that. It had set aside the impugned
decision taken by a provincial tribunal on appear by reason
only of
having found the empowering provisions relied upon by that body to be
inconsistent with the provisions of the Constitution
[143]
.
[85]
In a proper case, a decision by an Administrator that is
unconstitutional, can be set aside on review in terms .of section
6(2)(i) of PAJA
[144]
.
Application
in terms of section 9 of PAJA
[86]
By virtue of the provisions of section 9(2) of PAJA I am empowered to
extend the 180 days referred to in section 7(1) of PAJA,
in the
absence of an agreement between the parties, where the interests of
justice so require.
[87]
The Applicant’s attorney received notice of the GTB's decision
on 13 April 2011
[145]
.
[88]
This application was issued by the Registrar of this Honourable Court
on 14 December 2011, being some 2 months outside of the
180-day
period mentioned in section 7(1) of PAJA.
[89]
In the Applicant's application in terms of section 7(1) of PAJA, it
advances the following reasons why It submits that it will
be in the
interest of justice to extend the said period, namely:
89.1.
The Fifth
Respondent can show no prejudice as a consequence of the delay in
having issued this application earlier
[146]
;
89.2.
The Fifth
Respondent has done nothing to enforce the decision of the GTB. It
has not .sought orders for demolition or the like and
there is no
pending litigation by the Fifth Respondent In this regard of which
the Applicant is aware
[147]
;
89.3.
This
application in effect represents a supplementation and substitution
of the Applicant's earlier review application, which was
brought
within the time periods prescribed by section 7(1) of PAJA
[148]
;
89.4.
The merits
of the application favour the Applicant
[149]
;
and
89.5.
The
Applicant calls for an interpretation of an extremely important
constitutional principle which has to be vindicated
[150]
.
Order
[90]
I make the following order:
1. It is declared that
the City of Tshwane Metropolitan Municipality ("the
Municipality'') is vested with the exclusive executive
authority to
consider and approve applications for the relaxation of height
limitations of all buildings situated within its municipal
area
imposed by the Tshwane Town-planning Scheme, 2008 (''Tshwane Scheme")
adopted and enforced by the Municipality in terms
of the provisions
of the Town-planning and Townships Ordinance, 15 of 1986 ("the
Ordinance”).
2. It is declared that
the provisions of section 139 of the Ordinance, which seek to empower
the Gauteng Townships Board (11he GTB")
to confirm, amend or set
aside any decision of the Municipality on any application in terms of
any Town-planning Scheme and to
give any decision the Municipality
would have been competent to give with regards thereto are
unconstitutional and invalid, to
the extent that the said provisions
attempt to empower a provincial authority or provincial body to make
decisions on appeal which
fall within the exclusive executive
authority of the Municipality.
3. The decision of the
GBT, setting aside the Municipality’s decision to approve an
application made by the applicant in terms
of clause 26(1)(b) of the
Tshwane Scheme (''the Municipality's decision”) for the
relaxation of the limitation on height
on the buildings situated at
Erf 906, Louwlardia Ext 25 Township ("the subject property), is
reviewed and set aside.
4. An extension of the
period mentioned in section 7(1) of the Promotion of Administrative
Justice Act, 3 of 2000 ("PAJA"),
as is provided for in
section 9 thereof, is granted to the date of service of the
application on the respondents.
5. The fifth respondent
is ordered to pay costs of this application occasioned by its
opposition thereto.
_________________
A.A.
LOUW
Judge
of the High Court
Reference
will first be made to the typed page number appearing on the
relevant document. The second reference, being the "[...]”'
will be a reference to the paginated page number as per the index.
[1]
Founding affidavit, p 2, para 2.1(Vol.1,p 9)
[2]
Founding affidavit, pp 7 -8, para 6.2 [Vol. 1,pp 14-15]
[3]
Founding affidavit, pp 8-9, paras 6.4.2 - 6.4.6 [Val. 1,pp 15-16]
[4]
Founding affidavit, p 2, para 2.2 [Vol.1,p 9]
[5]
Founding affidavit, pp 2 -3, para 2.3 [Vol.1,pp 9-10]
[6]
Founding affidavit, p 3, para 2.4 [Vol. 1,p 10]
[7]
Founding affidavit, pp 3-4, para 2.5 [Val. 1,pp 10-11]
[8]
Founding affidavit, p 4, para 2.6 [Vol. 1,p 11]
[9]
Founding affidavit, pp 24-25, para 10.5 [Vol.1,pp 31_ -32] and
Annexure "A16" [Vol. 3, p 272]
[10]
Founding affidavit, p 24, para 10.3 ["Vol. 1, p31-32”]
and Annexure "A14" [Vol. 3, pp 267 -269]
[11]
The phrases "amendment scheme" and "town planning
scheme" will be used Interchangeably sine both these phrases
are defined in section 18(4) of the Ordinance as "the
town-planning scheme in operation"
[12]
Founding affidavit, p 25, para 10.6 (Vol. 1,p 32]and Annexure
"A17"["Val. 3, pp 273- 281]
[13]
Founding affidavit, p 25, para 10.8 [Vol.1,p82] and Annexure "A19'
'[Val. 3, pp 284- 289]
[14]
Founding affidavit, p45, para 15.2 [''Vol. 1, p 52] and Annexure
“A34” [Vol. 4, pp S80..;402]
[15]
Section 139 of the Ordinance in general and section 139(6) in
particular
[16]
Founding affidavit, p 4, para 3.1[Vol. 1,p 11]
[17]
Founding affidavit, p 4, para 3.2 [VoJ.1,p11]
[18]
Notice of motion, prayer 1 [Vol. 1,pp 1-2]
[19]
Notice of motion, prayer 2 [Vol.1,p 2]
[20]
Notice of motion, prayer 4 [Vol. 1,p 2-3]
[21]
Notice of motion, prayer 4 [Vol. 1,p 3]
[22]
Notice of motion, prayer 5 [VoI. 1, p 3]
[23]
Notice of motion, prayer 6 [Vol. 1,p 3]
[24]
Notice of motion, prayer 7 [Vol.1,p 3]
[25]
Notice of motion, prayer 8 [Vol. 1,p 3]
[26]
Founding affidavit, p 39, para 13.16 [Vol. 1,p 46]; Annexure
"A31"[Vol. 4,pp 333-335] and [Vol. 7,pp 667- 669]
[27]
The Ordinance came into operation on 10 June 1987
[28]
Maccsand (Pty) Ltd and Another v City of Cape Town and Others
2011(6) SA 633 (SCA) at para [22]
[29]
City of Cape Town and Another v Robertson and Another
[2004] ZACC 21
;
2005 (2) SA
323
(CC) at para
[60]
; Maccsand (Pty) Ltd and Another v City of Cape
Town and Others 2011(6) SA 633 (SCA) at [22]
[30]
Section 2(1) of the Ordinance
[31]
Section 4(1) of the Ordinance
[32]
Section 6•of the Ordinance
[33]
Section 13(1)(b) of the Ordinance
[34]
Section 13(2) of the Ordinance
[35]
Section 18(1) of the Ordinance
[36]
Section 25(1)(a)(i) of the Ordinance
[37]
Sections 38(1) and 39 of the Ordinance
[38]
Section 45(18) of the Ordinance
[39]
Section 46 of the Ordinance
[40]
Section 48 of the Ordinance
[41]
Section 49 of the Ordinance
[42]
Section 53 of the Ordinance
[43]
Section 59 of the Ordinance
[44]
Section 61of the Ordinance
[45]
Section 66(2) of the Ordinance
[46]
Section 69(15)(b) of the Ordinance
[47]
Section 73 of the Ordinance
[48]
Section 76 of the Ordinance
[49]
Section 78 of the Ordinance
[50]
Section 79 of the Ordinance
[51]
Section 83 of the Ordinance
[52]
Section 88 of the Ordinance
[53]
Section 89 of the Ordinance
[54]
Section 90 of the Ordinance
[55]
Section 93 of the Ordinance
[56]
Section 104 of the Ordinance
[57]
Section 109 of the Ordinance
[58]
Section 116 of the Ordinance
[59]
Section 117 of the Ordinance
[60]
Section 120 of the Ordinance
[61]
Section 121of the Ordinance
[62]
Section 123(1) of the Ordinance
[63]
Section 125(2) of the Ordinance
[64]
Section 125(7) of the Ordinance
[65]
Section 129(1) of the Ordinance
[66]
Section 135 of the Ordinance. Section 137(2) of the Ordinance
[67]
Section 137(2) of the Ordinance
[68]
The definition in section 1(1)(ix) of the Ordinance reads:
"'Director',
Insofar as the provisions of this Ordinance is applied in or with
reference to a particular province, means
an officer in the
provincial administration of that province designated to perform the
functions entrusted by or under this Ordinance
to the Director;"
[69]
Established by the Administrator in terms of section 123(1) of the
Ordinance
[70]
Sections 32, 70, 71, 77 and 140 are but a few
[71]
Johannesburg Municipality v Gauteng Development Tribunal and Others
2010 (6) SA 182
CC
[72]
Proclamation R161 of 1994 published In Government Gazette 16049 of
31 October 1994
[73]
See the definition of “Administrator" in section 1 of the
Ordinance
[74]
Johannesburg Municipality v Gauteng Development Tribunal and Others
2010 (2) SA 554
(SCA) at paras [6] - [7]
[75]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280, para
7.3.7.2
[76]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280,para
7.3.7.3. In casu, the four columns described above appear from
Annexure "A13; [Vol.3,pp 232- 239]
[77]
Planning Law Jeannie Van Wyk Juta Second Edition,p 280, para 7.3.7.3
[78]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280, para
7.3.7.3
[79]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280, para
7.3.7.3
[80]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280, para
7.3.7.3
[81]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280, para
7.3.7.3
[82]
Planning Law Jea11nie Van Wyk Juta Second Edition, p 280, para
7.3.7.3
[83]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280,para 7.3.7.3
[84]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280, para
7.3.7.3
[85]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280, para
7.3.7.3
[86]
Steclub Investments {Pty) Ltd v Eastern Metropolitan Council and
Others
[2002] 3 All SA 163
(W) at paras [18], [23]; Wale/e v City of
Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) [129]; Ruck v Makana
Municipality and Others [2010] ZAECGHC 111(24 November 2010)
[87]
Planning Law Jeannie Van Wyk Juta Second Edition, p 280, para
7.3.7.3
[88]
Planning law Jeannie van Wyk Juta Second Edition, p 280, para
7.3.7.3. In casu, the height limitations appear on Annexure "A13"
[Vol. a, pp 249 -254], read with A/S 945 in Annexure "A9"
[Vol. 2, pp 161-168]
[89]
Planning Law Jeannie Van Wyk Juta Second Edition,p 280, para
7.3.7.3; Johannesburg v Gauteng Development Tribunal and Others
2010
(2) SA 554
(SCA) at para [7]
[90]
Section 20(1)(a) of the Ordinance
[91]
Section 20(1)(b) of the Ordinance.
[92]
Section 20(1)(c) of the Ordinance
[93]
Transvaal Administrator's notice 858/1987, published in Official
Gazette 4508 of 10 June 1987
[94]
Regulation 2(a) of the Regulations
[95]
Regulation 3(g)(v) of the Regulations
[96]
"Director" is defined in section (l)(lx) of the Ordinance
as "An officer In the provincial administration of that
province designated to perform the functions entrusted by or under
this Ordinance to the Director."
[97]
Section 5(1) of the Ordinance
[98]
Section 6 of the Ordinance
[99]
Section 7 of the Ordinance
[100]
Section 139(4) of the Ordinance
[101]
Section 139(3) of the Ordinance determines that any other person
than the focal authority who Is a party to the appeal shall,
within
a period of 30 days from the date on which he became a party to the
appeal, deposit with the Director such amount of money
as may be
prescribed as security for the payment of the expenses contemplated
in subsection (7), and if he fails so to deposit
the amount he shall
cease to be a party to the appeal
[102]
Section 139(5) of the Ordinance
[103]
Section 139(6)(a) of the Ordinance
[104]
Section 139(6)(b) of the Ordinance
[105]
Section 139(6) of the Ordinance
[106]
Fifth Respondent's answering affidavit, paras 315 -326, pp 140-143
[Vol. 6,pp 557 -560]
[107]
Fifth Respondent's answering affidavit, p 5, para 10.1 [Vol.5,p 423]
[108]
Fifth Respondent's answering affidavit, p 10, para 15.2 [Vol. 5,p
428]
[109]
Fifth Respondent's answering affidavit, p 11, para 18.1[Vol. 5,p
429]
[110]
Fifth Respondent's answering affidavit, p 11, para 18.2 [Vol. 5,
p429]
[111]
Fifth Respondent's answering affidavit, p 11, para 18.3 [Vol. 5,
p429]
[112]
Fifth Respondent's answering affidavit, p 12, para 18.4 [Vol. 5,
p430]
[113]
Fifth Respondent's answering affidavit, p 12, para 18.5 [Vol. 5, p
430]
[114]
Fifth Respondent's answering affidavit, p 12, para 18.7 [Vol. 5, p
430]
[115]
Fifth Respondent's answering affidavit, pp 12-17, paras 18.7- 25.6
[Vol. 5, pp 430 – 435]
[116]
Fifth Respondent's answering affidavit, p 17, para 26 [Vol. 5, p
435]
[117]
Fifth Respondent's answering affidavit, p 17, para 25.6 [Vol. 5, p
435]
[118]
Fifth Respondent's answering affidavit, p 22, para 39 [Vol. 5,p 440]
[119]
Fifth Respondent's answering affidavit, p 23, para 39.3 [Vol. 5,p
441]
[120]
Fifth Respondent's answering affidavit, p 23, para 39.4 [Vol. 5, p
441]
[121]
Fifth Respondent's answering affidavit, pp 25- 27, paras 49- 5
[Vol.5,pp 443-444]
[122]
Fifth Respondent's answering affidavit, p 27, para 53 [Vol. 5, p
445]
[123]
Fifth Respondent's answering affidavit, p 27, para 54 [Vol. 5, p
445]
[124]
Fifth Respondent's answering affidavit, p 28, para 58-59
[Vol.5,p446]
[125]
Fifth Respondent's answering affidavit, p 29, para 61 [Vol.5,p 447]
[126]
2010 (6) SA 182(CC)
at para [43] - [48]
[127]
Own emphasis
[128]
Being a reference to the Development Facilitation Act 67 of 1995
("the DFA")
[129]
Johannesburg Municipality v Gauteng Development Tribunal and others
2010 (6) SA 182
(CC) at para [57]
[130]
Minister Local Government Environmental Affairs and Development
Planning Western Cape v The Habitat Council and Others ; Minister
of
Local Government, Environmental Affairs and Development Planning
Western Cape v City of Cape Town and Others
2014 (4) SA 437
(CC)
(“Habitat" or "the Habitat matter")
[131]
Own emphasis
[132]
Fifth Respondents answering affidavit, p 58,para 127 [Vol.5,p 476]
[133]
This is similar to the question which was posed in the Habitat
matter at para [13]
[134]
Minister of Local Government, Environmental Affairs and Development
Planning Western cape v The Habitat Council and Others; Minister
of
Local Government, Environmental Affairs and Development Planning
Western Cape v City of Cape Town and Others
2014 (4) SA 437
(CCJ
("Habitat'' or "Habitat matter'')
[135]
Minister of Local Government, Environmental Affairs and Development
Planning Western Cape v The Habitat Council and Others; Minister
of
Local Government, Environmental Affairs and Development Planning
Western Cape v City of Cape Town and Others 2014 (4) SA 437
(CC).
[136]
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal
2010 (6) SA 182
(CC) at paras [58] and [61]
[137]
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal
2010 (6) SA 182
(CC) at para [62]
[138]
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal
2010 (6) SA 18
Para [63]
[139]
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal
2010 (6) SA 18
CC at paras [55] and [56]
[140]
Steytler and De Visser Local Government Law, LexisNexis 2012 at 5-6
to 5-8.
[141]
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal
2010 (6) SA 182
(CC) at para [38]
[142]
See in this regard the expression by the Supreme Court of Appeal in
City of Johannesburg Metropolitan Municipality v Gauteng
Development
Tribunal and Others 20
10 (2) SA 554
(S ) at para [33] where this
statement was made In connection with the powers exercised by a
development tribunal established
by the Development Facilitation Act
67 of 1995 ("the DFA”)
[143]
Minister of Local Government, Environmental Affairs and Development
Planning Western Cape v The Habitat Council and Others; Minister
of
Local Government, Environmental Affairs and Development Planning
Western Cape v City of Cape Town and Others
2014 (4) SA 437
(CC).
The Constitutional Court, at para [4] thereof, succinctly summarised
the appropriate relief by having stated:
"[4] ...
Invalidating section 44 of LUPO would mean that the Provincial
Minister’s decision in both matters would fail
to be set
aside.”
[144]
Rapulo Investments CC v Minister of Agriculture, Forestry and
Fisheries and Another (65007/2012) [2014] ZAGPPHC 443 (7 February
2014), para [18]
[145]
Founding affidavit, p 45,para 15.2 [Vol. 1,p 52); Annexure
"A35",[Vol. 4,pp 408-404]
[146]
Founding affidavit, p 51,para 16.2.1 [Vol. 1,p 58]
[147]
Founding affidavit, p 51, para 16.2.2 [Vol. 1,p 58]
[148]
Founding affidavit, p 52, para 16.2.3 [Vol. 1,p 59]
[149]
Founding affidavit, p 52, para 16.2.4 [Vol. 1, p 59]
[150]
Founding affidavit, p 52, para 16.2.5 [Vol.1,.p 59]