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[2015] ZAGPPHC 149
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Blue Crane Country Estate (Pty) Ltd v National Minister of Agriculture, Forestry and Fisheries and Others (3925/2014) [2015] ZAGPPHC 149 (23 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 3925/2014
Date:
23 March 2015
Not
reportable
In
the matter between:
BLUE CRANE
COUNTRY ESTATE (PTY)
LTD
..........................................................
APPLICANT
And
THE NATIONAL
MINISTER OF AGRICULTURE,
FORESTRY
AND
FISHERIES
........................................................................
FIRST
RESPONDENT
DELEGATE
OF THE MINISTER OF AGRICULTURE,
FORESTRY
AND FISHERIES: LAND USE AND
SOIL
MANAGEMENT
................................................................................
SECOND
RESPONDENT
THE
MEC FOR GAUTENG DEPARTMENT OF AGRICULTURE
AND
RURAL
DEVELOPMENT
.....................................................................
THIRD
RESPONDENT
THE
CITY OF TSHWANE METROPOLITAN
MUNICIPALITY
..........................................................................................
FOURTH
RESPONDENT
JUDGMENT
PRETORIUS
J,
[1]
This
is an application for the review of a decision taken by the National
Minister of Agriculture, Forestry and Fisheries, the first
respondent. The decision that the court is requested to set
aside is dated 25 July 2013.
[2]
The
decision by the Minister was taken in response to an appeal that was
lodged against a decision taken by the Committee responsible
for the
assessment of applications lodged in terms of the Sub-Division of
Agricultural Land Act No. 70 of 1970 (“the Act”),
in
respect of the proposed subdivision of the remainder of Portion 24 of
Grootfontein 394 JR Gauteng. This appeal had been
lodged in
terms of article 8(1) of the Act.
BACKGROUND
:
[3]
The
applicant is the owner of the remainder of portion 24 of the farm
Grootfontein. The property is situated 15km to the south
east
of the metropolitan area of the City of Tshwane in an area that
previously fell within the Kungwini Local Municipality.
[4]
The
property is 405.6752 hectare in extent. The property was
incorporated into the municipal boundary of the City of Tshwane
Metropolitan Municipality during 2011. It is situated west of
the Garsfontein Road extension, 4km south of Mooikloof development
and 1.5km to the east of the Grootfontein development.
[5]
The
applicant wishes to establish a rural eco-estate on a portion of the
property.
[6]
On
29 November 2010 the MEC for Gauteng Department of Agriculture and
Rural Development, the third respondent, issued a positive
Record of
Decision (“ROD”). The findings in terms of the ROD
were:
“
a)
The revised layout plan has reduced the footprint of the development
from 151 hectares to 71 hectares and will minimise the impact
on the
environment.
b) The ecological
management plan indicates the removal of alien plants and the
management of game on the open space outside the
development
footprint. If followed, this plan should ensure the
conservation of the Rand Highveld Grassland on the remainder
of the
property.
c)
The Department implements the provincial urban edge in determining
the areas where residential development can take place.
The
proposed development is outside the 2009 provincially approved urban
edge.
The
urban edge policy states that rural residential development is
allowed outside the urban edge
.”
(Court’s
emphasis)
[7]
The
activities authorised in terms of the ROD are:
“
The
proposed activities entail the development of 197 residential units
with a development footprint of 71 hectares on Portion 24
of the Farm
Grootfontein 394 JR and subdivision of 5 portions of 5.1 hectares as
per the layout plan 12255/2010/11/03/28.
The proposed site fall
within the jurisdiction of Kungwini Local Municipality, hereafter
referred to as “the property”.
”
[8]
The
Gauteng Development Tribunal approved the development on a slightly
larger scale on 25 April 2007, which was subsequently amended
to
reflect the smaller use as approved by the third respondent.
The amendment was approved by the Gauteng Development Tribunal
after
considering the planning issues.
THE
DECISION:
[9]
The
applicant had to seek the approval and permission of the second
respondent as required in terms of the Act, as the property
is zoned
as agricultural. Agricultural land is defined in section 1 of
the Act as:
“’
(A)gricultural
land’ means any land, except-
(a)
land
situated in the area of jurisdiction of a municipal council, city
council, town council, village council, village management
board,
village management council, local board, health board or health
committee … but excluding any such land declared
by the
Minister after consultation with the executive committee concerned
and by notice in the Gazette to be agricultural land
for the purposes
of this Act.”
[10]
In
Van
Der Bijl and Others v Louw and Another 1974(2) SA 493 (CPD)
it was held at 499 C – E:
“
The
purpose of the Act is manifest; its object is to prevent the
sub-division of economic units of farming land into non-viable
(uneconomic) sub-units or smaller units.
‘
Injudicious
sub-division by testators and property speculators leads to
uneconomic farming units and ultimately to a peasant rural
community.’
(Annual
Survey, 1970, p.203); and for this reason Parliament has very wisely
put a stop to unrestricted fragmentation of arable
land. The
Act, in the interests of national welfare, effects a drastic
curtailment of previous common-law rights of land-owners
in a certain
category to carve their properties into units as small as they
choose, and is undisputably one of the wisest pieces
of legislation
on the statute book.
”
[11]
In
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009(1) SA 337 (CC)
the purpose of the Agricultural Land Act was set out in paragraph 13
as:
“
The
essential purpose of the Agricultural Land Act has been identified as
a measure by which the legislature sought in the national
interest to
prevent the fragmentation of agricultural land into small uneconomic
units. In order to achieve this purpose
the legislature
curtailed the common-law right of landowners to subdivide their
agricultural property.
It
imposed the requirement of the Minister’s written consent as a
prerequisite for subdivision which would have the unwanted
result of
uneconomic fragmentation.
”
(Court’s emphasis)
[12]
It
is quite clear that the purpose of the Act is to prevent the
subdivision of agricultural land into uneconomic units. This
is
the criteria which the Minister would and should use to determine
whether permission can be granted to subdivide agricultural
land.
[13]
The
reasons were set out as:
“
The
agricultural land in question is an irreplaceable natural resource,
and plays a major role in the supply of food as well as
the general
wellbeing of society.
The
proposed development will encroach on agricultural land that has a
value for agricultural production,
an
approval of this application will lead to the creation of a new
development node, which will have a negative impact on the
surrounding agricultural farms
.
The
proposed development is situated outside the urban edge ear-marked
for development, and the property falls under the area
which is not
excluded from the provision of Sub-Division of Agricultural Act, Act
70 of 1970
.
The
proposed development will stand on its own and will create a change
of land use in the farming area where the future activities
will not
supplement the parent farm.
”
(Court’s
emphasis)
[14]
The
applicant argued that the Minister failed to correctly apply the
provisions of the Act and therefor her decision does not result
in a
lawful administrative act. The Minister, had according to the
applicant, made a decision which she was not competent
to make if
regard is had to her reasons for the decision.
[15]
The
second and third respondents had investigated the use of the land
both from a town planning point of view as well as an environmental
issue. These departments and entities have direct expertise and
knowledge of these matters.
[16]
The
property will consist of 197 rural residential homes on 36 hectares
which is 22% of the property. Over 90% of the property
will
remain available for the use of wildlife as no fences would be
erected between the residential properties.
[17]
Mr
JA Gouws, conducted a specialist study to ascertain the agricultural
potential of the proposed Blue Crane Development in February
2007.
His conclusion was:
“
*
Irrigated crops
No land is
presently under irrigation and the chances of drilling high yielding
boreholes, according to the DWAF database, are poor.
The site,
therefore, has a low potential for irrigated crops.
* Rainfed crops
The property
consists of 23.3 hectares arable soils with moderate or high rainfed
cropping. The main constraints to viable
crop farming is the
size of the property. The income from only 23 hectares is not
sufficient to cover even part-time management.
Of this, only
8.2 hectares is within the area proposed for rezoning. This
portion is on moderate slopes that are not ideal
for cultivation.
The erosion already evident testifies of the fact.
* Livestock
The site is
suitable for livestock. The proposed land use aims at low
density housing that will retain almost all farming
land.
* The surrounding
properties are mostly developed for housing of industry.
It
is our opinion that the proposed development is placed in such a way
that almost all the high and medium potential land will
remain as
farming land. The rezoning would, therefore, not pose a
significant loss to agriculture.
”
[18]
The
developer will keep the land available for wildlife and game farming
with no fences dividing the units. It will thus meet
the
optimum use of the property from an agricultural viewpoint.
Only 70 hectares will be utilized for development, while
335 hectares
will be used for the purposes of game farming and wild life
management.
[19]
On
27 March 2012 the second respondent notified the applicant that the
application for consent for the sub-division had been refused:
“
This
Department herewith inform you that in terms of Section 4 of the Act
70 of 1970, does not grant consent for the above-mentioned
application as it will lead to the creation of new node. There
is still enough space to develop within east of Pretoria.”
[20]
The
second respondent did not have the power to make decisions dealing
with planning and land use, as the Act does not provide these
powers. Hence the appeal to the Minister.
[21]
The
notice of appeal set out,
inter
alia
:
“
The
delegate of the Minister for Land Use and Soil Management of DAFF is
bound by the provisions of the Act when deciding upon and
reaching a
decision on applications in respect of the sub-division and use of
agricultural land
. The
purpose of the Act is to prevent agricultural land from being
sub-divided into uneconomic units and should accordingly
form the
basis of the Department’s decision. The Court in
Vanderbijl & Others v Louw stated that:-
“
The
purpose of the Act is manifest; its object is to prevent the
sub-division of economic units of farming land into non-viable
sub-units or small units””
(Court’s
emphasis)
[22]
No
response was received to the notice of appeal from the first
respondent. Various letters requesting the first respondent
to
deal with the appeal was sent on 18 September 2012, 1 October 2012
and 23 October 2012. An order to compel the first respondent
to
deal with the appeal and to give a decision was granted on 3 July
2013 after the applicant had no other choice but to launch
an
application to court. Thereafter the first respondent refused
consent for the sub-division of the property.
[23]
The
first respondent refused the appeal, although she knew that the
application for the new development had been supported by the
Municipality of Tshwane, the Provincial Department of Agriculture and
the Gauteng Development Tribunal prior to the approval of
the change
of land use. Thereafter the third respondent issued the ROD in
favour of the development.
[24]
The
first respondent had all the expert evidence relating to the
suitability of the land for farming available when considering
the
appeal. The Minister had to decide whether or not the
sub-division of agricultural land would lead to the creation of
uneconomical units. The Minister did not appoint any experts to
investigate the land use in this instance and to counter
the
applicant’s experts’ opinions. The Minister had,
when considering the appeal, known that the application
for the new
development had been supported by the Tshwane Municipality, the
Provincial Department of Agriculture and the Gauteng
Development
Tribunal and that the third respondent had issued a favourable ROD.
[25]
There
is no evidence whatsoever that the land is “
an
irreplaceable natural resource, and plays a major role in the supply
of food as well as the general well-being of the society
”.
Mr Gouws, who is an expert, found that the property was not land that
could be farmed economically, as a farmer who
farmed the land would
show a total loss each year. It would thus be totally
uneconomical to farm the land.
[26]
The
Minister’s finding that a new development node will be created
which will impact negatively on the surrounding agricultural
farms is
not based on any evidence. It is clear from the locality map
that on the eastern border of the property there is
already some
urban development. The purpose of the Act has to be considered
when the Minister has to make a decision.
The purpose is to
prevent the sub-division of agricultural land into uneconomic units.
The Minister did not deal with the
fact that the greatest portion of
the land would still be available for game farming and thus did not
base her decision on whether
or not the sub-division of the land
would lead to the creation of uneconomical units.
[27]
The
Minister had to exercise her discretion rationally, having regard to
all the facts, reports and decisions by the other departments.
[28]
In
this instance there is direct evidence from Mr Gouws who had
established that the property was not an economic unit in regards
to
the Agricultural Land Act. Her finding “
the
agricultural land in question is an irreplaceable natural resource,
and plays a major role in the supply of food as well as
the general
wellbeing of society
”
is thus not supported and not based on any known facts. She had
to make her decision by applying the legal principles
to meet the
purpose of the Act. In the present instance the Minister based
her discretion on land use and developmental issues,
which are
patently not in her discretion. There is absolutely no evidence
that the farm played “
a
major role in the supply of food
”.
[29]
The
Minister furthermore relies on the contents of Government Gazette No.
5979 of 1 August 1997. It is clear that the applicant
was not a
party to the agreement 17 years ago. The Minister had to apply
her mind to deal with the present situation, which
differs to a great
extent from the situation in 1997. The development of Tshwane
and Kungwini changed significantly as Kungwini
was incorporated into
Tshwane.
[30]
Mr
Makkink’s report, as a registered town planner, is of
particular importance. The property is situated in an area
that
formed part of the Kungwini Local Municipality and was situated at
the “urban edge” of the municipality, when
the initial
DFA application was instituted.
[31]
Currently
the property is situated within a Management Zone in terms of the
Regional Spatial Development Framework for Region 6
of the Tshwane
Metropolitan Municipality. It is clear from the report that the
property complies in all aspects with the
Development Guidelines and
Criteria as set out in the policy documents of the Tshwane
Metropolitan Municipality situated within
the Management Zone.
[32]
The
Tshwane Regional Spatial Development Framework for this area sets out
clearly that high intensity urban development cannot be
supported in
the Management Zone, but the development of low density eco estates
is supported. The property in issue is exactly
that – a
low density eco estate.
[33]
The
Strategic Executive Director: City Planning reached the conclusion on
13 May 2013 that:
“
The
proposed development/divisions are in line with the Councils approved
Regional Spatial Development Framework, 2012 and
the
application site is not regarded as within an area of high
agricultural potential as per the said framework
.
The specific density which will be supported if applied for will be
determined by the infrastructure services that can be
provided.
”
(Court’s emphasis)
[34]
The
purported agreement, as set out in the Government Gazette, cannot
bind the applicant and the Minister’s reliance on this
agreement indicates that she had not exercised her discretion in a
proper relevant manner with reference to the applicable legal
principles. Her finding that the applicant had not opposed the
agreement and was therefore bound by the agreement has no
basis and
cannot be sustained.
[35]
The
Minister does not have the authority to determine “urban edge”
as it is a constitutional prerogative of a municipality
to make such
a determination in regards to the urban edge. The property in
issue falls within the “Management Zone”
of the
Municipality as can be seen from the conclusion reached by the
municipality. It is not for the Minister to interfere
in land
use issues where the Municipality has the right to determine the land
use in this instance and which the Municipality had
already done and
approved.
[36]
Although
the deponent to the answering affidavit had throughout attempted to
create the impression that the property has “moderate
to high
potential” for agricultural activities, the Minister has failed
to supply the court with any information as to the
reasons for such a
finding, as it is in direct contrast to the conclusion reached by the
applicant’s expert. The Minister
had not appointed any
experts, nor had she sent out an official to inspect the property.
She had no facts available to sustain
her finding.
[37]
It
was conceded by counsel for the Minister that there were no reports
or information in the documents which were submitted to the
Minister
at the time, which indicated that the property had “
moderate
to high potential
”
for agriculture. It was further conceded that the Minister had
not appointed any experts to assist her in coming to
her conclusion.
She had to rely on the reports supplied by the applicant.
[38]
Furthermore
the Minister took into account the document submitted to her during
the appeal process, which had not been furnished
to the applicant.
The document is dated 28 February 2013 and the applicant was not
afforded the opportunity to see the document
nor to be heard.
The
audi
alteram partem
rule
was totally ignored at the appeal.
[39]
A
further meeting was attended by representatives of the Department of
Agriculture, Forestry and Fisheries Legal Services where
the Tshwane
Municipality official legal team were present on 10 May 2013.
Once again the applicant was excluded from the
meeting and the
audi
alteram partem
rule
was once again disregarded. The Tshwane Municipality provided
written comments to which the applicant had no access at
the time.
This does not constitute fair, transparent administrative process and
flies in the face of the provisions of the
Constitution.
[40]
I
have considered all the submissions by counsel, the comprehensive
heads of argument and all the facts as set out in the papers.
[41]
Section
6 of the Promotion of Administrative Justice Act No. 3 of 2000 (PAJA)
provides:
“
6.
Judicial review of administrative action.—
(1) Any person
may institute proceedings in a court or a tribunal for the judicial
review of an administrative action.
(2) A court or
tribunal has the power to judicially review an administrative action
if—
(a) the
administrator who took it—
(i)
was not
authorised to do so by the empowering provision
;
(ii)acted under a
delegation of power which was not authorised by the empowering
provision; or
(iii)was biased
or reasonably suspected of bias;
(b) a mandatory
and material procedure or condition prescribed by an empowering
provision was not complied with;
(c)
the action
was procedurally unfair
;
(d)
the action
was materially influenced by an error of law
;
(e) the action
was taken—
(i)
for a
reason not authorised by the empowering provision
;
(ii) for an
ulterior purpose or motive;
(iii)
because
irrelevant considerations were taken into account or relevant
considerations were not considered
;
(iv)
because
of the unauthorised or unwarranted dictates of another person or
body
;
(v)
in bad
faith
; or
(vi)
arbitrarily
or capriciously
;
(f) the action
itself—
(i) contravenes a
law or is not authorised by the empowering provision; or
(ii)
is not
rationally connected to
—
(aa)
the
purpose for which it was taken
;
(bb)
the
purpose of the empowering provision
;
(cc) the
information before the administrator; or
(dd) the reasons
given for it by the administrator”
(Court’s
emphasis)
[42]
I
have applied the provisions of PAJA to the current facts before
court. I cannot but come to the conclusion that the Minister
took a decision which she was not authorised to do by the empowering
provision. Furthermore irrelevant considerations were
taken
into account and relevant considerations were ignored and the
decision was rationally not connected to the information that
was
available to her. The court finds that in these circumstances
where a further document dated 28 February 2013 was considered
without the knowledge of the applicant, that the decision was taken
in bad faith and not in a transparent manner. This is
confirmed
by the fact that a meeting took place on 10 May 2013 between
representatives of the second and fourth respondents, without
the
applicant being informed and granted an opportunity to attend the
meeting. This is grossly irregular and should not be
tolerated
in a society where the Constitution and PAJA provides for fair,
transparent administrative action.
[43]
The
decision of the first respondent is hereby reviewed and set aside.
The
following order is granted:
1.
The
decision of the first respondent dated 25 July 2013 as contained in
Annexure “GVDW3” to the Founding Affidavit,
is set aside
and referred back to the first respondent for reconsideration;
2.
The
first respondent is ordered to pay the costs of suit.
_____________________
Judge
C Pretorius
Case
number: 3925/2014
Application
heard on : 23 February 2015
For the Applicant :
Adv M.M. Rip SC
Instructed
by: Ivan Pauw & Partners Inc.
For the Respondent:
Adv. M.S. Phaswane
Instructed
by: State Attorney
Date of Judgment: 23
March 2015