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[2015] ZAGPPHC 1089
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Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others (67446/2012) [2015] ZAGPPHC 1089 (24 June 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 67446/2012
In
the matter between:
PATMAR
EXPLORATIONS (PTY)
LTD
1
st
APPLICANT
PATMAR
ENERGY (PTY)
LTD 2
nd
APPLICANT
PATMAR
REMANUFACTURING (PTY)
LTD 3
rd
APPLICANT
HUILBOS
BELEGGINGS (PTY)
LTD 4
th
APPLICANT
AVANT
VERSPREIDERS (PTY)
LTD 5
th
APPLICANT
and
LIMPOPO
DEVELOPMENT TRIBUNAL
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
CO-OPERATIVE
1
st
RESPONDENT
GOVERNANCE
AND TRADITIONAL AFFAI RS,
LIMPOPO
PROVINCE
2
nd
RESPONDENT
THE
PREMIER OF
LIMPOPO
3
rd
RESPONDENT
THE
MINISTER OF RURAL DEVELOPMENT
AND
LAND REFORM (FORMERLY,
THE
MINISTER OF LAND
AFFAIRS
4
th
RESPONDENT
GABRIEL
STEPHANUS
LABUSCHAGNE
N.O
5
th
RESPONDENT
CATHARINA
LEFINA
LABUSCHAGNE
N.O
6
th
RESPONDENT
ABEL
HERMANUS
GERHARDUS
NELL
N.O
7
th
RESPONDENT
LOSKOP
MOTORS
(PTY) LTD
tla
T
M
AUTO
CALTEX
8
th
RESPONDENT
J
H
JARDIN
t/a LOSKOP
VALLEI
FILLING
STATION
(BP)
9
th
RESPONDENT
J
K
G
PETROL SALES
CC
10
th
RESPONDENT
ET
PAPADOPOULOS
11
th
RESPONDENT
A
PAPADOPOULOS
12
th
RESPONDENT
JUDGMENT
N.F
KGOMO
J
INTRODUCTION
[1]
This application concerns the approval on 14 November 2012 (
"the
approval")
or (
"the decision")
of
the 5
th
to 7
th
Respondents' land development
application
("the
land
development
application"
) or (
"the
application
by the Limpopo Development
Tribunal
("the First Respondent"
or "the
Limpopo Development Tribunal") in terms of chapter V of the
Development Facilitation Act, 1995 (Act 67
of 1995) as amended
("the
D
FA" or
"Development Facilitation
Act
").
[2]
The
said
approval
was
granted
some
months
after
Chapter
V
of the
Development
Facilitation
Act
became
constitutionally
invalid
by
virtue
of
or
pursuant
to an
order
of
the
Constitutional Court
in
or reported
as
Johannesburg
Metropolitan
Municipality
vs
Gauteng
Development
Trib
unal
and others
[1]
("JHB Metro v
Gauteng Development Tribunal (case)").
[3]
The land development application was submitted by the Fifth to
Seventh Respondents to the Limpopo Development Tribunal in terms
of
Chapter V (Section 1), of the Development Facilitation Act in respect
of Erven 756 and 757, Groblersdal Extension 11 Township
("the
Groblersdal/Loskop Dam Properties" or "the subject
properties") for the establishment of a development
proposed as
the Groblersdal Public Garage ("the proposed development"),
permitting among others, the:
3.1
rezoning of the subject properties in terms of the Greater
Groblersdal
Planning Scheme, 2006 ("the Greater Groblersdal
Scheme from
"Industrial 3
" to "Industrial
3 with the inclusion of a Public Garage, Convenience Store of 300m2 ,
Place of Refreshment, Take
-away facility and automatic teller
machine subject to certain conditions proposed,"
3.2
consolidation of the subject properties,
3.3
approval of conditions of establishment in respect thereof,
3.4
approval of a lay-out plan in respect of the subject properties, and
3.5
suspension of certain title conditions in respect of deed of transfer
No.T8544/2003, by which the subject properties are held.
[4]
In their Notice of Motion the Applicants seek the following relief:
"1.
Declaring the decision and granting of rights by the 1st
Respondent purporting to act in terms of the Development
Facilitation
Act 67 of 1995 in respect of erven 756 and 757 Groblersdal Extension
11 on or about the 8
th
of November 2012, null and void,
2.
In the alternative, that the said decision as set out herein above
the be reviewed and set aside by the Honourable Court,
3.
Costs of this Application on the scale of attorney and own client
(scale) (only against the 1
st
to 7
th
Respondents),
4.
Further and/or alternative relief."
[5]
This matter plays
i
tself
out against the background of an order issued or made by Supreme
Court of Appeal (
"the
SCA
")
on 22 September 2009 in
the matter
reported as
Johannesburg
Metropolitan
Municipality
v
Gauteng Development Tribunal and Others
[2]
(
"the
JHB
Metro
v
Gautenq Development
Tribunal.)
[6]
In the
JHB
Metro
v
Gauteng
Development
Tribunal
case
the
SCA
declared
Chapters V
and VI of
the
Development
Facilitation
Act
constitutionally
invalid
for
reason
of the
fact
that the
approval
of
rezoning
and
township
development
applications
by
a
provincial
tribunal
encroaches
upon
the
functional area of municipal planning which is
the
preserve of municipalities in
the
constitution.
[3]
[7]
The order of the SCA in the
JHB Metro v Gauteng Development
Trib
unal
Case
was submitted to the Constitutional Court
for confirmation in terms of Section 167(5) read with Section
172(2)(a) of the Constitution,
further read with Rule 16 of the Rules
of the Constitutional Court.
[8]
The order of constitutional invalidity made by the SCA in the JHB Met
v Gauteng Development Tribunal case was confirmed by the
Constitutional Court on 18 June 2010. The order was however suspended
for a period of 24 months. That period of suspension expired
at
midnight on 17 June 2012.
[9]
It is so that in spite of the ruling as set out above by the
Constitutional Court, the Gauteng Development Tribunal continued
functioning continuously as if the order above mentioned, of
the Constitutional Court, does not exist. It continued with
business
as usual well after the period of suspension of the order of the
Constitutional Court had lapsed or expired.
[10]
After the Applicants had served and filed their heads of argument,
the 5th. 5
th
and 7
th
Respondents withdrew
their opposition and tendered costs. Consequently, this application
is opposed by the First, Second,
Third, Fourth, Eighth to 12
th
Respondents. This withdrawal of opposition by the Fifth, Sixth and
Seventh Respondents occurred after the Fifth and Seventh Respondents
had raised and lost certain points
in limine
.
Their
take on the interpretation to be placed on the constitutional court
judgment, which the Applicants termed as being a bit wiered
and
interesting at the same time unfortunately, cannot now be tested in
the final determination of this matter. That take was that
development tribunals established in terms of the Development
Facilitation Act retained their powers to consider and approve
land development applications after 17 June 2012, so long as such
applications were submitted to such tribunals before the said
date.
The First and Second Respondents supported that view, adopting also
as part of their arsenal to attack this application.
I will return to
their aspect later.
[1
1
]
The Applicants said the above defence was somewhat inexplicable
because when it
was raised,
it had already been rejected by this Court on 6 May 2013 in
the
unreported matter of
Mogalakwena
Local Municipality v The Limpopo
Development Tribunal and others
[4]
("the
Mogalakwena case"). Where that Court found among others as
follows:-
"[34]
This
latest order of the Constitutional Court
is
unambiguous.
The
life of the period of
suspension of the order of the Constitutional Court terminated on 17
June 2012.
The Constitutional Court clearly
has
no
intention to extend it
.
..
As
it stands, no Tribunal in the country
is
authorised,
with effect from the
1
1
" June
2012 (the date of expiry of the 24 months period of suspension) to
consider an application brought in terms of any of
the sections
falling within Chapters
C
and VI of the DFA, whether lodged
during or before the period of suspension."
[12]
The facts and circumstances may still point in another direction, or
the interpretation of the constitutional court order.
The defence by
the Fifth to Seventh Respondents that a development tribunal
established in terms of the Development Facilitation
Act retained its
powers by virtue of Section 16(b)(vi) of that Act despite the order
of the Constitutional Court was similarly
rejected by Motlhe J in the
Mogalakwena case where the Court remarked as follows:
"28.
The
Respondent's
contentions
are
based primarily
on Chapter Ill of the DFA which
established and empowers the Tribunals to exercise functions which
are
deferned
to in
section
16 of the
DFA.
In their
view,
a
development
tribunal established
in
terms of Chapter Ill of the DFA may continue performing
such
powers
as
are
contained
in
Section
16 of the DFA. The argument
continue
to
state
that
since
section
13 falls
under Chapter
Ill
of
the
invalidity,
the
functions
contained
therein
may
still
be
executed.
29.
This argument attempts to bring to bear a strained
interpretation on the order of the Constitutional
Court
and is, in my view, misplaced. As stated in the Background
part
of the
judgment, Section
16 of the DFA provides for functions
which the
Tribunals are empowered
to exercise in regard to
considering
land
development
applications.
In terms
of
the provisions
of Section 16(a) of
the
DFA,
the
Tribunal
is
empowered
to
deal
with
any matter brought before it
in terms of various sections
which
includes Section 30(1),
33,34,40,42,51,48(1),
57
or
61
or
any
matter
arising
therefrom.
It makes
this provision
by reference
to these specific
sections
of the DFA, where the context of these functions are to be found.
These sections, which contain the functions are with the exception
or
section 61al/ located in the expunged Chapters V and VI. Section 61
is located in Chapter VII and has thus survived the order
of
Constitutional invalidity. In other words, of the initial functions
in Section 16 which the Tribunals were initially empowered
to
exercise, only those located in section 61 may now be exercised.
Presently the Tribunal can therefore only "grant"
or
"decline" approval or impose conditions to its approval, of
any application made to it in terms of the Act concerning
Section 61
applications.
30.
The
application for land development brought by
the Respondents to the Tribunal
is
based
on
the
provisions
of
Section 31
of
the
DFA.
This Section
is
one
of
those
affected
by
the
declaration
of
invalidity
of
the order
(of) (by) the
Constitutional
Court,
as
it
is part
of
Chapter
V of the DFA
".
[13]
For completeness' sake, the order made by the Court in the
Mogalakwena case where relevant to our matter reads as follows:
3.
It
is declared
that
the Third Respondent
[5]
was,
as from midnight
on
17
June 2012,
divested
of
those powers
and
functions provided
for
in
Chapter
V
and VI of the Development
Facilitation
Act,
67
of 1995 by virtue of the order of the Constitutional
Court
in the matter
of
Johannesburg
Metropolitan
Municipality
v Gauteng Development
Tribunal
and others 2010(6)
SA
182
(CC).
4.
The Third Respondent
is interdicted
from
performing
any of the functions
or
exercising
any
of the powers
provided
for
in
Chapter
V of
the Development Facilitation Act,
67
of
1995 in respect
of an application for
the establishment of
a
land
development
area
submitted
to it
by
the First
and
Second Respondents,
concerning
Portions 14,
15,
16 and 18 of
the
Farm
Lisbon
No.288, Registration Division KR, Limpopo Province.
5.
The Third Respondent is prohibited
from conducting
a
hearing to consider the
application
for
the establishment of
a
land development area in respect of the
property
referred to in 4 above on the 9
th
May 2013 at
10h00 or at any other
date
and time after the said date.
COMMON
CAUSE FACTS
AND HISTORICAL BACKGROUND
[14]
On 22 September 2009, the SCA in the
Gauteng
Development
Tribunal Case
(where the Jhb Metro is applicant) declared
Chapters V and VI of the
Development
Facilitation
Act constitutionally invalid. On 18 June 2010 the Constitutional
Court confirmed the order of the constitutional invalidity of the
two
chapters after the SCA had referred the order to it for
certification. The Constitutional Court however suspended the order
of constitutional validity for 24 months. With conditions different
from those imposed by the SCA.
[15]
On 18 October 2011 the land development application in issue here was
lodged in terms of the Development Facilitation Act on
behalf of the
Fifth to Seventh Respondents. That application among others sought
the re-zoning of the subject properties in terms
of a Scheme that
would allow the applicants thereat to construct a public garage, a
convenient store of 300m2 , a place
of refreshment, a
take-away facility, a car-wash facility and an automatic teller
machine ("ATM").
[16]
On 1 December 2011 the First to Third Applicants, together with the
Eighth to Twelfth
Respondents,
objected to the approval of the land
development
application. The
identities
of the objectors
were
confirmed
in
paragraph
1.12 of a
document titled
"
Applicants
'objection
(point of order) in respect of a point
in
limine raised by the Objector: Tribunal's jurisdiction to hear the
a
pplication",
included
in
the
Founding
Affidavit
at
page
7,
para
32
[6]
.This
document
was
filed
on behalf
of the
land
development
applicants
at
proceedings
before the
Limpopo
Development
Tribunal
(First
Respondent)
on
8
November
2013. What
happened at that hearing precipitated the launch of these
proceedings.
[17]
On 26 January 2012 a pre-hearing conference was convened in terms of
the Development Facilitation Act ("DFA").
[18]
On 23 February 2012 the First Respondent dismissed a point raised by
the objectors which was to the effect that the land development
application failed to comply with the provisions of Regulations 31(1)
and 21(1) of the DFA.
[19]
On 19 June 2012 the First Respondent granted its consent to the
amendment of the development application as sought at the special
request of the Fifth to Seventh Respondents, the land development
applicants.
[20]
At midnight on
17
June 2012
the period of suspension
of
the order
of Constitutional Court had lapsed.
[7]
•
[21]
On the 24 August 2012, the Fifth to Seventh Respondents applied for
the postponement of the hearing on the merits of the land
development
application which was to be heard by or before the First Respondent
on 29 and 30 August 2012 as well as 7 September
2012, to 8 to 9
November 2012.
[22]
On 7 November 2012, a notice was filed on behalf of the objects, of a
point of law to be argued at the hearing on 8 November
2012. The
point of law was to the effect that by virtue of the judgment of the
Constitutional Court in the JHB Metro v Gauteng
Development Tribunal,
the First Respondent lacked the necessary powers and authority or
authorization to entertain this land development
application.
[23]
On the 8 November 2012 the Fifth to Seventh Respondents objected to
the raising of the point in law raised by the objectors.
[24]
On 8 November 2012, i.e. at the hearing set, the First Respondent
upheld the objection raised on behalf of the land development
applicants (Fifth to Seventh Respondents,) by refusing to entertain
the said point of law. I say the First Respondent upheld the
objection to the Applicant's application or notice to raise the point
of law because in para's 24.1 at page 280 the First and Second
Respondents' Answering Affidavit lends itself to an interpretation
that the First Respondent regarded the Applicant's decision
to ask
for the point in law to be argued to be
"wrong"
.
From a reading of the Applicants' and the land development applicants
'submissions in the papers, they are
ad
idem
that the point
in
limine
(point in law) was just not entertained by the First
Respondent. The objects i.e the Applicants herein walked out of the
hearing
of the merits.
[25]
The First Respondent proceeded to entertain the merits of the land
development application on 8 November 2012 in the absence
of the
objectors and their legal representatives who had excused themselves
from subjecting themselves further before the First
Respondent when
it became clear to them that the latter acted in such a manner that
it was representing or confirming to all and
sundry that it had
retained its powers to consider and approve land development
applications in spite of the order of the Constitutional
Court in the
JHB Metro v Gauteng Development Tribunal Case(supra) having taken
effect some time earlier.
[26]
Indeed, on 14 November 2012 the Registrar and Chairperson of the
First Respondent signed and written consent for the establishment
of
the land development area in terms of Chapter V of the DFA on the
subject properties, therein consenting to:-
26.1
the establishment of a land development
area to be known as Groblersdal Public
Garage,
26.2
the amendment of the Scheme in respect of
the
re-zoning of the subject properties in terms of the
Scheme,
26.3
the consolidation of the subject properties,
26.4
the approval of the conditions of establishment,
26.5
the approval of a lay-out plan in respect of the subject properties,
and
26.6
the suspension of certain title conditions.
[27]
Some nine (9) days later, on 23 November 2012, the Applicants caused
this application to be issued by the Registrar of this
Court. The
First to Sixth Respondents served their answering affidavits on the
Applicant's attorney of record on 21 January 2013.
In February 2013
the Applicant's replying affidavit in response to the Fifth to
Seventh Respondents was served on the attorneys
of the First and
Second Respondents as well as on the attorneys of the Fifth to
Seventh Respondents.
[28]
On 6 March 2013 the First and Second Respondents 'answering affidavit
was served on the Applicants' attorney of record.
ISSUES
TO BE DETERMINED
[29]
According to the First and Second Respondents, the issues, to be
determined are crisp and are as follows:-
29.1
Whether or not the Constitutional Court decision barred the Tribunals
from considering the applications lodged during the period of the
suspension of the constitutional invalidity of Chapters V and
VI of
the DFA,
29.2
Whether or not the date of the submission or the application is
irrelevant for purposes of the determination of the Tribunals
authority to consider the applications,
29.3
Whether the finding by this Court in the Mogalakwena matter that
the
Tribunals had no authority to consider any application brought in
terms of Chapter V, whether lodged during or before the period
of
suspension, was correct, and
29.4
Whether or not the effect of the Constitutional Court decision is
that the Tribunals had authority to consider the application falling
within Chapters V and VI of the DFA submitted during the period
of
suspension, save for the applications falling within the jurisdiction
of the cities of Johannesburg and e-Thekwini (Durban).
[30]
The Applicants' take on what this Court was to determine was somewhat
more elaborate or involved, involving according to them,
Procedural
Complaints, Defence on the Merits, and other issues.
[31]
As regards procedural complaints the issues to be decided were:-
31.1
Whether it is permissible to have brought this application in terms
of Rule 6 instead of Rule 53 of the Rules of this Court.
31.2
Whether the failure to have requested the record of proceedings
was
fatal to the Applicants' case,
31.3
Whether the Applicants' failure to have mentioned the grounds of
review as required in the Promotion of Administrative Justice Act 3
of 2000 ("PAJA") was fatal to the application,
31.4
Whether the Applicants 'deponent's affidavit can be disqualified
on
the basis of the absence of the Applicants' affidavit deponent at the
hearing when the decision was taken, and These were the
most
procedural issues.
31.5
Whether or not despite all of the above, the Applicants established
a
cause of action.
[32]
As to the defence on the merits, according to the Applicants, the
following was in issue to be decided:-
32.1
Does the judgment of the Constitutional Court allow an interpretation
to the effect that a land development tribunal established in terms
of the DFA retained its powers to grant land development applications
after 17 June 2012 where Chapter V of the DFA is in issue, or
applicable.
32.2
Does Section 16(b)(vi) of the DFA empower a land development tribunal
to, after 17 June 2012, continue considering and approving land
development applications brought in terms of the DFA, in areas
not
falling within Johannesburg City and eThekwini.
32.3
Is the date of submission of a land development application relevant
for purposes of the order made by the Constitutional Court,
[33]
Other issues that stand to be dealt
with and decided according
to the
applicants involve:-
33.1
Whether the Applicants generally have the requisite
locus
standi.
33.2
Whether the voluntary participation of the First to Third Applicants
as well as the Eighth to Twelfth Respondents in the proceedings
before the First Respondent in the application for development
proceedings results in them having waived their right to raise the
constitutional point before the First Respondent, and
33.3
Whether or not the Applicants should have first exhausted the
internal
appeal mechanisms provided for in Section 23 of the DFA,
THE
NATURE
OF
THESE
PROCEEDINGS
[34]
This matter essentially concerns the continuous functioning by a
development tribunal established under the DFA, in circumstances
where the Constitutional Court has, in the
JHB
Metro v
Gauteng
Development
Tribunal
Case,
expunged certain powers and functions
from the DFA after declaring Chapters V and
VI thereof constitutionally
invalid. This is not the
typical application concerning an administrator exceeding its powers
or purporting to exercise
powers it possesses in terms of empowering
legislation. It concerns the removal of and the effect of such
removal, of pre-existing
powers by virtue of a declaration of
Constitutional invalidity and confirmation thereof by the
Constitutional Court in terms
of Section 172 of the Constitution. It
is a legality issue: it concerns the exercise of a public power
by an organ of State
in circumstances where the particular
administration empowering provisions have been declared
constitutionally invalid.
[35]
According
to the
Applicants,
this matter
falls squarely within the wide
band of
constitutional
administrative
law
matters
which
are
not
dependent
on
PAJA for
it
to
be rendered
justiable.
They (the
Applicants)
rely
for the
above
submission
on
the known
fact that
since
the
advent of
the
Constitution,
administrative law has become increasingly and/or
incrementally constitutionalized.
[8]
[36]
It is so that since the pronouncement of judgment by the
Constitutional Court only a narrow band of non-constitutional
administrative
law matters, which require reliance on the grounds of
review as contained in PAJA, remain.
[37]
It is also trite that the exercise of a public power can be
challenged, either by means of a rule of law review, also known
as a
legality review ("rule of law
review"
or
"legality review
"), and/or by means of an
administrative law review in terms of PAJA the so - called ("PAJA
review".)
[38]
The Applicants
in this
application
were,
in my view,
ambivalent
as
to
which
type of
review to
bring this
appl
i
cation
on. They
brought
this application
as a
legality
review and
in the
alternative,
as
an
administrative
review.
[9]
)
Both the
moves or
attacks are based on the exact same ground, namely, the approval well
after
the
order
of
the
Constitutional
Court
in the
JHB
Metro
v
Gautenq
Development Tribunal Case
had
taken effect and which taking
into
effect
had
rendered Chapters V and VI of
the DFA
Constitutionally
invalid
as
from
midnight on 17
June 2012.
[39]
The Applicants further argued that they were justified to bring both
the rule of law review and the administrative law review
in terms of
Rule 6 of the Uniform Rules of Court as they both concern a narrow
issue of whether the First Respondent exercised
any of the expunged
powers contained in Chapter V of the DFA after midnight 17 June 2012.
It is on this narrow ground that the
Applicants further argued that a
record of the proceedings is irrelevant for purposes of arriving at a
decision, more-so that the
parties are agreed this land development
agreement submitted in terms of Chapter V of the DFA was approved
after 17 May 2012, which
was all that need to be established for this
Court to have all facts, data and/or information it needs to
determine this application.
[40]
The Applicants
further
submitted
and
argued that
in
line with
the
reasoning
and decision in
Phenithi
v Minister of Education
[10]
,
where
a result occurred by operation
of the law
(in this instance the declaration of constitutional inval
i
dity
of
an
empowering
provision),
there
is
no
decision
requiring
reasons
or
an
opportunity
to
be heard
because,
in
the
final
analysis,
there
exists
no
administrative
act to be reviewed.
[41]
That this challenge involves constitutional principles or imperatives
cannot be disputed. Section 172(1)(a) of the Constitution
commands
Courts, that if it is to decide a constitutional matter within its
power, to declare that any conduct that is inconsistent
with the
Constitution, is invalid to the extent of its inconsistently, the
Court "
must
" just do so.
[42]
In the circumstances, so continued the applicant, if by virtue of the
order of the Constitutional Court in the an administrator
act exists
which could be reviewed and if Section 172(1)(a) of the Constitution
commands that constitutionally inconsistent conduct
be declared
invalid, no need should arise to follow Rule 53 or PAJA: A rule of
law review, brought in terms of Rule 6, seeking
a declaratory, should
suffice.
[43]
The SCA held in
Oudekraal
Estates
(Ply) Ltd
v City
of
Cape
Town and others
11
that
even unlawful acts remain valid until they are set aside.
[44]
In a recent decision, the SCA held as follows:
"In
a
constitutional
state
such
a
South Africa
there
were
by
definition
legal limits
to the
exercise of public
power:
the government,
like
anyone
else,
was
bound
by
and
equal
before
the
law. The power
to
enforce
the
rule
of
law resided
in
the
judiciary
through
its
powers
of
review under
the
rule
of
law
'administrative action'
under
the Promotion of
Administrative Justice Act."
[45]
In certain circumstances, a failure by a
party to bring formal review
proceedings under PAJA may be excusable.
Nevertheless, not always.
Qaukeni Local Municipality v
FV General Trading
CC
12
the SCA approved of the approach to question the legality of
conduct by an organ of State by means of an indirect review seeking
a
declaratory order without making use of formal review proceedings
under PAJA. Leach AJA (then) remarked that the administrator
-
"
...raised
the question of legality
of
the contract fairly
and squarely, just
as
it
would have done in
a
formal review
..."
13
The
Court arrived at a conclusion there that the appellants' failure to
bring formal review proceedings under PAJA was no reason
or ground to
deny them the relief they sought.
[46]
The Applicants further submitted that in spite of the fact that they
adopted a cautious (read vacillating) approach of having
launched a
rule or law review seeking a declaratory order and in the
alternative, having brought an administrative law review seeking
the
setting aside of the impugned approval, this Court should not choose
between the two different pathways or routes followed
since the
application of both pathways, applied simultaneously, enjoy judicial
approval.
[47]
The "jury is still out" on this submission.
WITHDRAWAL
OF
OPPOSITION
TO
APPLICATION
BY SOME
OF
THE
RESPONDENTS
[48]
When the time to serve heads of argument in this application arrived,
it was still opposed by the First, Second, Fourth, Fifth,
Sixth and
Seventh Respondents who were the Trustees of the Gawie Labuschagne
Trust (
"the Trust"
). The land development
application was sponsored by the Fourth, Fifth and Sixth Respondents.
These have since withdrawn their opposition
to the application and
tendered the Applicants' wasted costs occassioned by their opposition
on a scale as between party and party.
[49]
Of the remaining Respondents it is only the First (Limpopo
Development Tribunal) and Second (MEC responsible for Co-operative
Governance.Human Settlements and Traditional Affairs, Limpopo
Province) Respondents who are persisting to oppose the grant of the
prayers sought herein. They have filed heads of argument.
INTERPRETATION
OF
CONSTITUTIONAL COURT
JUDGMENT BY THE
HIGH COURT
[50]
The Applicants placed much reliance in support of their application
on the still unreported judgment of
Motlhe
J
in
Mogalakwena
Local
Municipality
v
The Limpopo
Development
Tribunal and Others
14
and Nabuvax
(Ply) Ltd
and
Others v City
of Tshwane Metropolitan Municipality and Others
15
[51]
The First and Second Respondents' Case is the following:
51.1
The Tribunal is permitted or allowed to continue functioning as
usual,
taking applications and making decisions on land development
applications after 17 June 2012 as long as that application was
submitted
to the Tribunal before the said date. The date of
submission of a land development application therefore informs
whether a development
Tribunal is permitted to continue functioning
in terms of Chapter V of the DFA. Therefore, for as long as the land
development
application was submitted to a Tribunal, the Tribunal
must consider and finalise the application even if it does so post
after
midnight, 17 June 2012, excluding applications in respect of
the City of Johannesburg Metro and eThekwini Metro in respect of
which
the case that led to the constitutional invalidity specifically
laid out how they should go about it.
51.2
The Applicants have failed to set out their grounds of review in the
sense of setting out specific reference to the relevant grounds
provided for in the Promotion of Administrative Justice Act 3 of
2000
("PAJA"). This defence is not being pursued by the First
and Second Respondents as they ostensibly conceded that
the decision
is indeed reviewable. This can be deduced from their Counsel's say-so
in the Answering Affidavit by stating that-
"...there
is an indication
from the founding
affidavit
that the ground
of review
is
that on
17
June 2012,
the
Tribunal was
disempowered
to consider
the
application consequently the decision is reviewable.
"
16
[52]
Before I can proceed to analyse the First and Second Respondents'
specified grounds of objection, Iwish to deal with the parties
take
on the case law.
[53]
The Court in
Mogalakwena
17
made the following order at the end of the day:-
"40.
In the premises
I make the following order:
1.
....
2.
...
3.
It is declared that the Third Respondent (who was incidentally the
First Respondent in our
present case) was, as from midnight on 17
June 2012, divested of those powers and functions provided for in
chapter V and VI of
the Development Facilitation Act 67 of 1995 by
virtue of the order of the Constitutional Court in the matter of
Johannesburg Metropolitan
Municipality v Gauteng Development Tribunal
and Others 2010(6) SA 182 (CC).
4.-
4.6
...
[54]
On the aspect of whether the date, be it of the submission of the
application or the making or taking of a decision,
in
respect of a land development application would make any
difference to the question whether or when development
tribunals retained their powers, in this Court ruled that the date
upon which a land development application was submitted is
irrelevant. According to it, it is the date upon which the approval
is made that is relevant.
[55]
This is the view adopted by the Applicants herein: That if the date
occurred after midnight 17 June 2012, the approval is unlawful.
The
Court put it as follows at para.34:-
"34.
The
latest
order
of
the
Constitutional Cowt
is
unambiguous.
The
life
of
the period
of suspension
of the
order of
the Constitutional
Court
tenninated
on
17 June 2012.
The
Constitutional
Court clearly has no intention to extend
it.
..
.As
it stands, no
Tribunal
in the country is authorised,
with effect from the
17'"
June 2012 (the dale of
expiry
of
the 24 months period
of suspension)
to consider
an application
brought
in tenns
of
any
of
the
section
falling
within
Chapters
V and
VI
of
the
DFA,
whether lodged during or
before the period of suspension."
[56]
According to the Applicants further, the Court in Mogalakwena puts
issues beyond any debate when it stated the following:-
"40.3
It is declared that the
...
Respondenl
18
was, as from midnight on
17 June 2012,
divested
of those powers
and functions provided
for in chapters
V and
VI of the
Development Facilitation Act
67 of
1995
by virtue of the order of the Constitutional Court in the matter of
40.4
The First
Respondent
is
interdicted
from performing
any
of
the functions
or exercising
any
of
the powers
provided
for in
Chapter
V of the
Development Facilitation Act,
67 of
1995
in respect of an application for the establishment of a land
development
area submitted to ii.
40.5
The
...
Respondent
is prohibited
from
conducting
a
hearing
to
consider
the application for
the establishment of a land development area in respect of the
property referred to in ("404'J above on
the 9th May 2013 at
1OhOO or at any
other date and lime after the said
date."
[57]
The Applicant also relies on another judgment which highlighted the
plight developers who could not implement development rights
granted
by the DFA development tribunals as a result of the DFA functionaries
having been, divested of their powers as from midnight,
17 June 2012.
That matter is
Nabuvax and Others v
City of Tshwane
Metropolitan
Municipality
and Others
19
.
[58]
In the
Nabuvax
matter, the developer of a regional
shopping centre, Billion Property Development (Pty) Ltd ("Billion"),
made an application
to a DFA development tribunal prior to the period
of the suspension of the order of constitutional invalidity made by
the Constitutional
Court and was granted certain development rights
prior to midnight, 17 June 2012. To re-cap, that period of suspension
stretched
from 18 June 2010 to 17 June 2012. On 10 September 2009
prior to the SCA having declared Chapters V and VI of the DFA
unconstitutional,
the developer obtained approval for the
establishment of a land development area in the form of a township.
An appeal was filed
against this approval by certain objectors. On 21
August 201O the appeal was dismissed. On the 18 November 2011 - some
7 months
after the SCA declared Chapters V and VI of the DFA
Constitutionally invalid, the Gauteng Development Tribunal approved
the phasing
(division) of the already approved township into two
separate townships.
[59]
The developer (i.e Billion), having concluded that the functionaries
of the Tribunal had lost their powers as a result of the
declaration
of constitutional invalidity with effect from 17 June 2012,
approached the Tshwane Metropolitan Municipality to convert
the DFA
application for the establishment of a land development area into an
application for the establishment of a township in
terms of the
provisions of the Town-Planning Township Ordinance 15 of 1986 ("the
ordinance). By doing so, Billion had
hoped that the functionaries of
the Tshwane Municipality would be able to take over those duties that
were exercised by or under
or by virtue of the DFA which had been
taken away from those DFA functionaries.
[60]
The application to Court was two-fold: The first part was for an
interim interdict sought to prevent Billion from continuing
with
construction activities pending the finalization of Part B. In Part B
the the decision taken by the Municipality to have approved
the
establishment of a township in terms of Section 98 of the Ordinance
on the strength of the DFA approval granted earlier, was
challenged.
[61]
The Court in this case (Nabuvax) refused to grant the relief under
Part A.
Kollapen J
who dealt with Part A nevertheless made the
following statement regarding the consequences of the confirmation by
the Constitutional
Court of the declaration of invalidity in the
matter:
"[49]
The consequence
of
the declaration
of invalidity
of
the
1fi"
June
2010
was that it left
the
decisions
of
the GOT(
Gauteng
Development Tribunal) of the 10TH
September
2009
and
of
the
GOAT
(
Gauteng
Development
Appeal Tribunal on the 21••
April
2010
as
well
as
all other actions
taken prior
to and in
consequence
thereof,
wholly
intact
and
that
for
the period
of
suspension the
tribunals
were
empowered
to
continue
dealing
with
and
finalizing
application before them."
[62]
The interested and affected parties then continued with Part B of
their application before
Tuchten
J
of
this Court. The Applicant quoted the following paragraph from
Tuchten
J's
judgment with approval:-
"[16]
All
parties
are furthermore
agreed
that despite
the
Constitutional
Court's declaration of
invalidity, the GOT
was
empowered
to
proceed
with
the
complex
procedure
required
for the establishment
of an urban township until the expiry of the period
of
suspension
of that declaration.
It did
so.
But certain essential
formal steps in
relation
to Manavoni
had
not
been
taken by
the
time
the period
of
suspension
of declaration of constitutional invalidity expired on 17
June 2012. Counsel
for the applicants
identified
14 steps not
taken.
Counsel for
Billion said
that
there
were but
four such uncompleted steps. It does
not matter who is right on this score because it is common cause that
the township creation
process under the DFA stalled on 17
June
2012.
If
the
parallel
procedure under
the
TPO
20
had not been available, no townships could have been created in
the Province of Gauteng until the President
exercised
his
powers
to bring
the provisions
of
SPLHUMA
21
into operation or other legislation was enacted and brought into
operation.
[63]
It is so that the President of the Republic of South Africa assented
to a new Act passed by Parliament with the aim or purpose
of
correcting the wrongs that led to the Constitutional Court declaring
Chapters V and VI of the DFA constitutionally invalid.
That Act,
The Spatial Planning and Land-use
Management
Act 13 of 2013 ("SPHUMA"l was assented to on 2 August 2013.
This Act has not yet come into operation. The President
must still
see to that in terms of Section 61 of that Act.
[64]
When SPLHUMA comes into operation, certain transitional provisions
thereof will allow developers to implement development rights
obtained from development tribunals granted before midnight, on 17
June 2012.
[65]
The transitional provisions of SLPHUMA reads as follows:
"
Transitional
provisions
60
(1)
The
repeal of laws referred
to in section 59
22
or by
a
provincial
legislature
in
relation to provincial or municipal planning does
not affect the validity of anything done in terms of that
legislation.
(2)
(a)
All
applications, appeals or other matters pending before
a
tribunal
established in terms of section
15 of the Development
Facilitation Act, 1995 (Act 67 of 1995) at the commencement
of
this Act that have not been decided or otherwise disposed of, must be
continued and disposed of in terms of this Act.
(b)
A reference to
a
tribunal in terms of Section
15
of the Development Facilitation Act,
1995 must for the
purposes
of deciding or otherwise disposing
of
any
application
appeal
or
other
matters
pending before
a
tribunal
at the commencement
of this
Act
must
be construed
as
a
reference to
a
local or metropolitan municipality.
(c)
References to
a
designated officer and the registrar in
terms of the Development Facilitation Act,
1995 must
for the purposes of deciding or otherwise disposal of any
application, appeal or other matter pending before
a
tribunal
at the commencement
of this Act be construed as
references to an
official
of
a
local
or
metropolitan
municipality
designated
by
such
municipality to perform such function.
(d)
The minister may prescribe
a
dale by which such
applications,
appeals or
other matters must be
disposed of, and may prescribe arrangements in respect of such
matters not disposed of by that date.
(3)
Despite the repeal of the Development Facilitation Act, 1995,
a
municipality must continue to
perform the
functions conferred on
a
designated officer in terms of the
Development Facilitation Act, 1995:
(a)
To inform
the
Registrar
of
Deeds
that
the
conditions
of
establishment which have to be complied with
prior to the commencement of registration, have been complied
with
as
contemplated
in
Section
38(1)(c)
of
the
Development Facilitation Act, 1995, and
(b)
To inform
the Registrar
of Deeds
that
the applicant
and the
municipality
have fulfilled
their
obligations relating to the provision
of services as
contemplated in Section 38(1)(d) of the Development Facilitation Act,
1995.
[66]
The Constitutional Court was approached in an urgent application
before the expiry of the period of suspension on 17 June 2012
for a
further extension of the period of suspension of invalidity
declaration. The Constitutional Court refused to hear that
application,
precipitating a situation that came down to the fact
that the DFA, especially Chapters V and VI thereof are no more there
or valid,
thereby creating a
lacuna
which the urgent
application wanted to close.
[67]
Motlhe J
commented about the Constitutional Court's refusal to
entertain the urgent application for a further extension of the
period of
suspension of the Constitutional invalidity of DFA as
follows in Mogalakwena:
"34.
This latest order of the Constitutional Court is unambiguous.
The life of the period
of suspension
of
the order
of
the
Constitutional
Court terminated on
17
June
2012. The
Constitutional
Court
clearly
has
no
intention to
extend it
...
as it stands, no
Tribunal in the country is
authorised,
with
effect from the
17'' June 2012 (the date of expiry of
the
24 months of the period of suspension) to consider an
application brought in terms of any of the sections falling within
Chapters
V and VI of the DFA, whether lodged during or before the
period of suspension."
[68]
In so far as the Court in was very categoric as to its interpretation
of the judgment of the Constitutional Court declaring
Chapters V and
VI constitutionally invalid: No application for land development may
be accepted for consideration throughout the
Republic of South Africa
and only the Johannesburg Metropolitan Municipality and the City of
eThekwini (Durban) may process applications
already pending by the
time the Chapters were declared invalid to finality.
[69]
It is the applicant's further submission and argument that since the
Constitutional Court struck down the two Chapters of the
DFA and
refused to extend the period of the suspension of the invalidity, to
the Applicants it is a signal that this lacuna was
intended. It is
put as follows in the Applicant's supplementary heads of argument:
"4.
15
It is submitted that if development
tribunals could continue functioning
after midnight,
17
June 2012, there would have been no need for
SPLHUMA or its transitional provisions."
[70]
The jury is still out on this submission. One is inclined to believe
that where an Act had suffered a deadly blow as the DFA
had, the
remedy is to come up with an improved Act which would usually contain
transitional provisions that smooth that Act in
and eliminates
unwanted
lacunae
in the systems catered for previously
by the crippled Act!
OVER-VIEW
[71]
The Constitutional Court judgment in is quite clear with regard to
the authority of the Tribunals set up under the DFA to consider
land
development applications during the 24 month period of the suspension
of the declaration of constitutional invalidity of Chapters
V and VI
of the DFA.
[72]
There are two distinct possibilities: There are tribunals dealing
with applications affecting the City of Johannesburg Metro
and the
City of eThekwini on the one hand, and the other tribunals in the
rest of the country.
[73]
At page 210, paragraph 82 of the the learned justice stated the
following:-
"...
(w)hile the relevant
Provincial
Tribunals
are to be barred from considering new development applications in the
City of Johannesburg
Metro and eThekwini Municipality,
it is necessary for these tribunals to finalise all applications
pending before them.
These will not only avoid
a
disruption but will also facilitate
a
speedy determination
of the matters concerned."
[74]
Another statement emanating from the above judgment and which in my
view evidences the spirit of this judgment states the following:-
"...
Finally,
a
necessary feature of the suspended declaration
of invalidity is
that it should not have retrospective effect
if the period of suspension expires
without the defects in the
Act having been corrected.
'
23
[75]
My interpretation of the above quotation is that the Constitutional
Court judgment means that the decision of the tribunal
should not be
invalidated or rendered pro non scripto on the basis that the period
of suspension had expired. The above interpretation
in my view
further is supported by the following remarks by the learned Court:-
"
...
it would not b
e
just
and equitable
for these decisions to be invalidated if
the
declaration of invalidity
comes into forc
e
...'
24
[76]
It will be an absurdity or inexplicable that matters that were being
dealt with legally during the period of suspension should
by one
stroke of the pen or by some sudden "silence" be
invalidated. If the Applicant's contentions and submissions are
accepted, it would then mean that all the proceedings before
tribunals, whatever the degrees of finality they may be finding
themselves,
must be stopped and scrapped solely on the ground that
the period of suspension of invalidity had expired. It will in my
view offend
against the principles of justness, justice and
equability as warned by the same Court.
[77]
What is very clear from the Constitutional Court judgment is that
tribunals in the rest of South Africa, with the exception
of areas
falling within the Johannesburg Metro and the City of Durban were not
barred from accepting new applications during the
period of
suspension. The two Metro's were barred from accepting new
applications. They were only to conclude all applications
already on
their systems when the suspension kicked in. The judgment permitted
the two metro's to finalise their pending mattes
even after the 17
June 2012.
[78]
Prior to 1994, land use in South Africa was primarily governed by
four Provincial ordinances
25
which to date remain in force.
[79]
As regards the City of Johannesburg Municipality the Transvaal
Ordinance authorised the Provincial authority to administer
the
ordinance in the sense, among others
26
of declaring municipalities to be
"
authorised
local
authoritie
s" with mandates to exercise powers contained in
Chapters II , Ill and IV thereof. The City of Johannesburg and
eThekwini Metropolitan
Municipalities
27
exercise powers to re-zone land and to approve the establishment of
townships in terms of the above -stated arrangement.
[80]
The ordinances provide for the creation of town-planning schemes by
municipalities. These schemes set out the manner in which
land within
the municipal areas will be used. Authorised local authorities are
empowered to approve the establishment of townships
subject to
appeals to the provincial authority.
[81]
The problem with these ordinances and the above set-out scheme of
things is that it only applied to the territories within
these
provinces that were governed by the previous "white"
administrations. They did not apply to the former
"independent"
homelands
27
and then so-called "self-governing territories"
29
, which were governed by a parallel system of planning legislation.
30
The above situation was compounded by the present Constitutional
order where nine Provinces had been created and they have individual
territorially based legislative regimes. Worse still, now that South
Africa has been divided into individual local municipalities
in
respect of every inch of its territory, most, if not all rural
municipalities do not have the capacity, capital - both human
and
infrastructural - and the wherewithal to deal with developmental
issues.
[82]
The Development Facilitation Act
31
which obviously was passed before the presently applicable
Constitution of the RSA came into force, was designed to apply
throughout
the country to speed up land development. Its primary
objects were to facilitate and expendite the implementation of the
reconstruction
and development programmes and projects by introducing
extra-ordinary measures, to lay down general principles
regulating
all land developments, irrespective of whether the
development is undertaken in terms of the Act or some other
law,
and to establish, in all provinces, development tribunals with
powers to determine land-development applications.
[83]
Chapter Ill of the Act establishes, for each province, a development
tribunal consisting of members appointed by the Premier
subject to
approval by the Provincial Legislature. The Act further requires that
tribunals should have, as some of their members,
representatives of
local government. The powers functions of the development tribunals
are set out in section 16 of the Act. The
reach of this section is so
wide that it covers almost all land in the country. It applies to all
land -development applications
irrespective of where the land is
located and regardless of whether some other law governs development
on it.
32
The term "land development application" is defined as an
application lodged in terms of Section 21(2) or Section 49(2)
and
must be construed with reference to
"
land
d
evelopment"
which is defined in the widest terms to mean -
"
any procedure
aimed at changing the use of land for
the purpose
of using land mainly for residential,
industrial, business,
small
-scale farming, community
or similar purposes,
including such
a
procedure
in terms of Chapter V, VI or VI, but
excluding such
a
procedure
in terms of any other
law relating exclusively to prospecting
or mining.
33
[84]
Chapter of the Act defines the process that must be followed in
submitting applications to a development tribunal and outlines
some
of the powers and functions of the tribunals referred to in Section
16. Section 30 empowers tribunals to grant exemptions
from the
provisions of this Chapter on terms and conditions deemed necessary
by them. Section 31 identifies the parties who may
apply for land
development and sets out the procedure to be followed in submitting
an application to a designated officer.
[85]
Chapter VI is couched in terms identical to those of Chapter V. It
governs applications for development relating to small-scale
farming.
[86]
In the Supreme Court of Appeal, Chapters and VI were declared
unconstitutional but the declaration of invalidity suspended
for 18
months from the date of the order subject to the following
conditions:-
86.1
No development tribunal may accept for consideration or consider
any
application for the grant or alteration of land-use rights in a
municipal area, and
86.2
No development tribunal may on its own initiative amend any measures
that regulates or controls land use within a municipal area.
[87]
The Constitutional Court confirmed the Constitutional invalidity made
by the Supreme Court of Appeal in respect of the two
Chapters ( V and
VI) but set aside the rest of Supreme Court of Appeal Court order and
replaced it with the following conditions
of the suspension:-
"8.
The
suspension is subject to the following conditions:-
(a)
Development tribunals must consider the
applicable
intergrated development plans, including spartial -development frame
works and urban
development boundaries, when developing
applications for the grant or alteration of land-use rights,
(b)
No development tribunal
...
may exclude any
by-law or Act of parliament from applying to
land
forming the subject matter of an application submitted to it,
(c)
No development tribunal
...
may accept and determine
any application for the grant or alteration of land-use rights within
the jurisdiction
of the City of
Johannesburg
Metropolitan Municipality or eThekwini Municipality, after the date
of this order, and
(d)
The
relevant development tribunals may determine
applications in respect of land falling within th
e
jurisdiction
of the City of
Johannesburg Metropolitan
Municipality or
eThekwini
Municipality
if these applications were submitted to it before the date of
this order.
[88]
The conditions accompanying the declaration of invalidity by the
Supreme Court of Appeal and those by the Constitutional Court
are as
far apart or different as oil and water in my view. In terms of the
SCA ruling, a blanket prohibition was issued whereas
the
Constitutional Court was specific: The Constitutional Court order
directs development tribunals generally to consider integrated
development, plans, spatial, development frame-works and urban
development boundaries when considering applications. By -laws and
Acts of Parliament may also not be excluded. Orders (c) and (d)
specifically refers to the City of Johannesburg Metropolitan
Municipality
and the eThekwini Municipalities and their applicable or
affected development tribunals. There is no specific mention, like in
respect of the above two entitles of other development tribunals in
the rest of the country. Consequently, it is my considered view
that
although the period of the suspension of the constitutional
invalidity of Chapters V and VI applies to the entire country,
the
rest of the restrictions or conditions issued by the Constitutional
Court apply to the specified entities and/or tribunals.
When the
principle of "inclussio
unius est exclussio a
lterius"
is anything to go by, one may not be faulted for concluding that the
other "
u
n-mentioned" development tribunals were not
specifically barred from receiving and processing development
applications during
the period of 24 months calculated from the date
the Constitutional Court made its ruling. It may be so that this is
because the
small municipalities may not be having the expertise,
manpower and/or the capacity to do what the City of Johannesburg and
eThekwini
can, hence the two authorities was barred specifically from
receiving new applications but only complete those they w
ere
already busy with.
CONCLUSION
[89]
The Constitutional Court explicitly stated in its judgment
34
)
as follows:-
"
. ..while the relevant Provincial Tribunals (Gauteng and Kwa Zulu
Natal) are
to be barred from considering new applications in th
e
jurisdiction
of the City of
Johannesburg
Metro. Municipality and eThekwini Municipality, it
is
necessary
for these tribunals to finalise all applications pending before
them.
These will
not only avoid
a
disruption
but will also facilitated
a
speedy determination of
the
matters concerned."
[90]
The two metro's, Johannesburg and Durban, or eThekwini were forbidden
from accepting new applications from the date of the
judgment or
order in the Constitutional Court. Theirs was to finalise any matters
they were already seize"d with as on that
date.
[91]
The Constitutional Court was also explicit when it stated that the
declaration of invalidity should not operate retrospectively
if the
Legislature (Parliament) has not corrected the defects when and after
the period of suspension had expired. In his words,
the
L
earned
Justice Jafta stated that:
"
...
Finally,
a
necessary
feature of the
suspended declaration of invalidity
is
that it should
not have retrospective
effect If the period of
suspension expires without the defects in the Act having been
corrected
.
"'
35
[92]
It is in my view and finding an inescapable conclusion that the
workings and decision(s) of the Limpopo Development Tribunal
should
not or ought not to
be
invalidated on the basis of the expiry of the period of suspension.
Rather, it cannot and should not accept new applications
after the
expiry of the suspension period unless an amending Act had been
passed containing transitional provisions that address
issues
pertaining to this period. As the Court correctly in my view stated.
36
".
. .a
necessary feature of this suspended declaration of invalidity
is that it
should not have retrospective effect if the period
of suspension expires without the defects in the Act having been
corrected. In
exercising its powers
under the impugned
chapters, development tribunals have approved
countless land
development across the country. It would not b
e
just
and
equitable for these decisions to be invalidated if
the declaration of invalidity comes into force.
37
[93]
The above, in my view and finding, negates the applicant's contention
that the declaration of invalidity as confirmed by the
Constitutional
Court means everything must grind to a halt insofar as the
acceptance, adjudication and/or finalization of development
projects
under review without reservation. In all areas. Or the entire South
Africa, the Constitutional Court specially mentioned
Johannesburg and
EThekwini Metro's as authorities specifically restricted.
[94]
Consequently, this Court cannot simply invalidate the decision of the
Limpopo Development Tribunal relative to this matter
on the basis of
the expiry of the period of suspension.
[95]
It is so that the development tribunals, especially in smaller or
less equipped municipalities play a significant role in service
delivery. That is why I agree with the findings of the Constitutional
Court where it states the following:-
"
81. In the circumstances
of the case, the determination of
a
just
and
equitable order must also involve
a
consideration of
the interests of the City and eThekwini Municipality on the one hand,
and, on the other, the
interests of land developers in
whose benefit the contested powers
are excercised. A proper
balance between those interests may be achieved by allowing the
tribunals to continue excercising those
powers during the period
of
suspension, but their authority must not extend to
land
falling within the jurisdiction
of the City and
eThekwini Municipality.
38
[96]
The Court allowed the City of Johannesburg Metro Municipality and
eThekwini Municipality to continue only with pending matters
during
the period of suspension because they have capacity and are
authorized in terms of relevant legislation, to exercise the
contested powers.
[97]
The reasoning of the Learned Justice is aptly demonstrated by the
following excerpt from para.81 of the judgment:-
''The
interests of land developers
will not be unduly
prejudiced by an order
prohibiting
tribunals
from exercising the powers in question within the two
municipalities
jurisdictions.
It is
indeed
just
and equitable to protect
the
municipalities
'right to perform
their functions and exercise their powers
without interference
from the tribunals.
While I am mindful that there mav
be
other municipalities in
a
similar
position to the Citv (of Jhb) and e
T
hekwini
Municipality. the court cannot extend the reach of
the order to include these
municipalities. because the
facts and circumstances of land use in these
municipalities
have not been placed before this C
ourt."(my
emphasis.)
[98]
As a result, the specific restrictions placed on Johannesburg and
eThekwini Metro's were not extended to Limpopo Development
Tribunal.
Nowhere in the judgment of the Constitutional Court, which is the
beacon all Courts must follow, is it suggested that
the tribunals
should not consider applications submitted before the expiry of the
period of suspension. The Court emphasized the
words, "...
before
the date of this orde
r
..."
[99]
The date of submission of the application is important as opposed to
the date on which the decision is made. The latter aspect
would have
caused or created disruptions and uncertainly of cataclysmic
proportions.
[100]
In this present case we are dealing with, the date of the submission
of the application is common cause. Therefore, in the
light of the
above, the applicant's contention that the respondents had no
authority to consider the application stands to be rejected.
[101]
It is also common cause that the applicants participated in all the
processes at the hearing of the matter on the merits.
I find their
reasons for walking out to be somewhat flimsy. As a result, I see
nothing wrong with the tribunal proceeding with
the hearing despite
their belated protestations and/or walk out.
[102]
It is also my findings that Motlhe J's findings in the
Mogalakwena
L
ocal
Municipalitv Case.
that an application falling
within Chapter V of the DFA, whether lodged during or before the
period of suspension is improper or
cannot be proceeded with is not
correct as it is inconsistent with the Constitutional Court's
judgment.
[103]
A proper interpretation of the Constitutional Court judgment in my
view favours the contention that other tribunals than the
Gauteng and
Kwazulu Natal ones had powers to adjudicate on the applications
lodged before the period of suspension had expired.
[104]
I tend to agree with counsel for the respondents when he submitted
that the facts of the matter are distinguishable from the
facts in
this case. The Mogalakwena case was concerned with the application to
interdict the consideration of the application falling
within Chapter
V of the DFA. In the latter case, the tribunal had already considered
the application and made a decision.
[105]
The situation becomes clearer and in favour of the respondents when
regard is had that the applicants herein do not challenge
the merits
of the application. It is only about the tribunals authority or lack
thereof to consider the matter.
REVIEW
[106]
Alternative to prayer 1 of the Notice of Motion, the applicants seek
an order that the tribunal's decision to approve the
application in
issue here be reviewed and set aside. What appears to be the ground
for this prayer seems to be the aspect which
they purportedly rely
upon throughout this application, namely, that from midnight on 17
June 2012, the tribunal was disempowered
to consider the application,
thus rendering the decision the Limpopo Development Tribunal took,
reviewable.
[107]
In the light of the finding this Court is about to announce, this
prayer also becomes academic; more so that the applicants
do not
challenge the application on any other ground save for that of lack
of authority. Not only did the applicants not challenge
the merits of
the processes undertaken or the merits of the application before the
Limpopo Development Tribunal but also did not
complain about or
challenge the procedure followed, save to merely to mention them in
this Court.
[108]
It is trite law that an administrative decision or action can be
reviewed and set aside only where it is materially influenced
by an
error of law. An error of law is not material if it does not affect
the outcome of the decision.
39
Furthermore, an applicant praying for an order for a decision to be
reviewed and set aside is required to set out the grounds of
review
it relies upon.
40
The applicants did not set out the grounds of review they rely upon
sufficiently or as required by law. Worse still, the applicants
only
cried 'wolf or objected about the tribunal's lack of authority to
consider the application in issue here on 8 November 2012
whereas the
suspension period expired way back on 17 June 2012. It would be an
injustice as well as disingenuous for the applicants
to have expected
the tribunal to abandon the hearing on 8 November 2012 when it for
the first time formally raised this ground
of lack of authority.
[109]
Even in the event of this Court agreeing with the applicants
regarding the interpretation of the Constitutional Court judgment
applicable here, which in any case is not the case, the fact that
they waited for four months before raising the objection would
have
created a problem for them: Certainty and definitiveness are some of
the requirements for orderly unfolding of things. Accommodating
their
points of view would have brought about serious disruptions in
developmental matters, thereby creating uncertainty. That
state of
affairs would in my view and finding have offended against the
principles of justice and equity as enunciated by Jafta
J in the
Constitutional Court version of (supra).
[110]
After considering all arguments and submissions made by both sides
herein
and
applying my mind, it is my finding that the applicants have not made
out a case justifying the grant of the orders sought in
the Notice of
Motion.
COSTS
[111]
The issue of costs are normally within the discretion of the trial
Court. It is for that reason that there are instances when
a Court
may even grant a costs order against a successful litigant.
[112]
The applicants argued for a costs order on a scale as between
attorney and client against the first to ]1h respondents. The
respondents, especially the first and second respondents asked that
an ordinary order of costs on a scale as between party and
party
accompany the Court order should the Court rule in their favour. is a
litany of decisions going in different directions about
this issue.
Consequently, a costs order on a scale as between party and party
should accompany the order about to be issued.
ORDER
[114]
The following order is made:
"The
application as set out in the Notice of Motion is hereby dismissed
with costs on a party and party scale."
__________________________
N.
F. KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION
APPEARANCES
For
the Applicants :
Adv A Liversage
Instructed
by
: Adriaan Venter Attorneys & Associates
Menlo Park, PRETORIA
Telephone
Numbers
: (012)
346 1075
For
the First & Second
Respondents
:
Adv M.S Phaswane
Instructed
by
: State Attorney PRETORIA
Telephone
Numbers
: (012) 309 1578
Date
of Argument :
24 NOVEMBER 2014
Date
of Judgment :
24 JUNE 2015
[1]
2010 (6) SA 182 (CC)
[2]
2010(2) SA 554
(SCA)
[3]
Para [50] of the JHB Met v Gauteng Development Tribunal case,
the Constitution is the Constitution of the Republic of South
Africa
Act 1996.
[4]
North Gauteng High Court Case No. 18585/2013, 6 May 2013 per Motlhe
J.
[5]
The Third Respondent in Mogalakwena was the First Respondent in our
present case.
[6]
As well as in Annexure F attached to the Founding Affidavit at pages
142-194.
Para
1.12
appears at page
144 of
that document.
[7]
For
the
method of
calculating
the
period
of
the
suspension
of
constitutional
invalidity sec
Ex
parte
Minister
of
Social
Development 2006(4) SA 309(CC) at paras [23]
to [24].
[8]
Hoexter :Administrative Law in South Africa, Second Edition, Juta,
at P.114
[9]
See Prayers
l
and 2 of
the Notice of Motion.
[10]
2008(1) SA 420(SCA) at para 7-10. See also Frans v Groot
Brakrivierse Munisipaliteit 1998(2) SA 770(C) at 7771 - 7779 E,
Minister van Onderwys en Kutuur v Louw 1995(4) SA 383(A) at 388 G-H
11
2004(6) SA 222 (SCA) at para [26].
12
2010(1) SA 356 (SCA)
13
Municipal Manager: Qaukeni Municipality (supra) at para.[26].
14
Case No. 18585/2013 In the North Gauteng High Court delivered on 6
May 2013
15
31875/13 [2014] ZAGPPHC 194 (6 March 2013), Nabuvax (Pty) Ltd and
Others V City of Tshwane Metropolitan Municipality and Others
[2013]
All SA (GNP) (2 July 2013).
16
First and Second Respondents Heads of Argument, P.18 para 17.2
17
Mogalakwena Local Municipality v Limpopo Development Tribunal and
Others (supra)
18
Who happens to be the Limpopo Development Tribunal - the First
Respondent herein.
19
(31875/13)(2014] ZAGPPHC 194 (6 March 2014), Nabuvax (Pty) Ltd and
Others v Ci1y of Tshwane Metropolitan Municipality and Others
(2013]
3 All SA 528 (GNP) ( 2 July 2013).
20
Town Planning and Townships Ordinance 14 of 1986.
21
Spatial Planning and Land Use Management Act 16 of 2013.
22
Section 59 of SPHUMA informs that the laws in Schedule 3 thereof are
being repealed by SPHUMA. The DFA in its entirety is one
them.
23
Page 210 para.85 of that judgment.
24
Page 211 paragraph A of the judgment.
25
Transvaal Provincial Ordinance, Cape Province Land Use and Planning
Ordinance 15 of 1985, OFS Township Ordinance 9 of 1969 and
Natal
Province's Town Planning Ordinance 27 of 1949.
26
Section 2 thereof.
27
In terms of Kwazulu - Natal Town Planning Ordinance which has been
replaced by the Kwazulu Natal Planning and Development Act
No.6 of
2008.
27
Transkei, Ciskei, Bophuthatswana and Venda or "
TBVC
states"
29
Lebowa, Ka-Ngwane, Qwaqwa, Gazankulu, Kwa-Ndebele and Kwa-zulu.
30
See Western Cape Provincial Government and Others, In re: OVB
Behuising (Pty) Ltd v North West Provincial Government and Another
2001(1) SA (500) CC, (2000) (4) BCLR 347, [2000] ZACC 2 at
para.41-47.
31
Act 67 of 1995
32
Johannesburg Metro Mucipality v Gauteng Development Tribunal (supra)
at para.[40].
33
Section I of the Act.
34
Page
210 para 82 of the judgment.
35
Page 10 para.85 of the judgment.
36
At page 211 paragraph 85.
37
Page 209 of the judgment.
38
Order 8 para.(d )of judgment
39
Minister
of Health v New Cl inic SA and Others 2006(2) SA 31 1 CC at 379
40
See Hire and Another v Booysen and Another 1992(4) SA 69 (A) at 93
G-H.