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[2015] ZAKZPHC 42
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Tronox KZN Sands (Pty) Ltd v KwaZulu-Natal Planning And Development Appeal Tribunal and Others (9645/14) [2015] ZAKZPHC 42 (3 June 2015)
In
the High Court of South Africa
KwaZulu-Natal
Division, Pietermaritzburg
Case
No: 9645/14
DATE:
3 JUNE 2015
In the matter
between:
Tronox KZN Sands
(Pty)
Ltd
...................................................................................................
Applicant
And
KwaZulu-Natal
Planning And Development Appeal
Tribunal
................................
First
Respondent
Mtunzini
Conservancy
.............................................................................................
Second
Respondent
The Mtunzini Fish
Farm (Pty)
Ltd
...........................................................................
Third
Respondent
Umlalazi Local
Municipality
....................................................................................
Fourth
Respondent
MEC for
Co-Operative Governance and
Traditional
Affairs
........................................................................................................
Fifth
Respondent
Judgment
Lopes J
[1] The applicant in
this matter, Tronox KZN Sands (Pty) Ltd, seeks an order in the
following terms from this court:
(a) declaring s 45
and Chapter 10 of the KwaZulu-Natal Planning and Development Act,
2008 fthe PDA') to be unconstitutional to the
extent that s 45 and ss
100 to 134 which comprise Chapter 10, constitute interference by the
provincial government in municipal
planning decisions, by providing
for an appeal from a municipal decision to a provincial appellate
body, namely the KwaZulu-Natal
Planning and Development Appeal
Tribunal ('the Appeal Tribunal');
(b) two appeals
which are pending before the Appeal Tribunal, and which, in terms of
s 45 of the Act, were brought by Mtunzini Conservancy
and the
Mtunzini Fish Farm (Pty) Ltd (the second and third respondents in the
application), against the decision of the Umlalazi
Local Municipality
(the fourth respondent) to approve the application of Tronox for
land-use rights for surface mining operations
on the remainder of Lot
91 and the remainder of portion 3 of Lot 91, Umlalazl 10011
registration division GU, Province of KwaZulu-Natal
are declared to
be unlawful and void ab initio',
(c) that the Appeal
Tribunal and any other respondents who oppose the relief be ordered
to pay the costs of Tronox.
[2] When the
application was initially launched, the matter came before this court
on the 21st July 2014 and an order was granted,
pending the
determination of the orders set out above, interdicting the Appeal
Tribunal from hearing the two appeals referred to
above which were
set down for hearing on the 23* and 24th of July 2014. The costs of
that application were reserved for the decision
of this court.
[3] The Mtunzini
Conservancy and the Mtunzini Fish Farm together with the Umlalazi
Municipality have elected to abide the decision
of this court
[4] In the founding
affidavit in the application, Tronox is described as the largest
fully integrated producer of titanium and/or
titanium dioxide in the
world and is a global leader in the titanium products industry.
Tronox had Invested considerable sums in
two mining areas, namely
Hillendale and Fairbreeze in the Empangeni area. Around 2001 Tronox
commenced production at Hillendale
and that mine has now been
exhausted. It was intended that there would then be a seamless
transition from the Hillendale operation
to the Fairbreeze mine.
[5] Pursuant to that
end, and in October of 2012, Tronox lodged an application with the
Umlalazi Municipality in terms of Chapter
4 of the PDA for
prospective land- use rights for areas situated outside a scheme as
defined in the PDA. It is common cause that
the Fairbreeze mine Is in
such an area, and on the 19th February 2014 the application of Tronox
was granted by the Umlalazi Municipality.
[6] The Mtunzini
Conservancy and the Mtunzini Fish Farm, which had been objectors to
the original application by Tronox, lodged
appeals with the Appeal
Tribunal against the decision of the Umlalazi Municipality. The
merits of those appeals are not relevant
for the purpose of deciding
this application.
[7] Chapter 10 of
the PDA sets out in detail the procedure for the establishment and
operation of the Appeal Tribunal. Various sections
of the PDA allow
for the referral of decisions of a municipality to the Appeal
Tribunal and s 45, which is the section in issue
in this application,
provides:
*45. Appeal against
municipality's decision on prapoBsd development of land situated
outside the area of a scheme. - (1) A person
who applied for the
development of land situated outside the area of a scheme or who has
lodged written comments in response to
an invitation for public
comment on a proposal to develop the land, who Is aggrieved by the
decision of the municipality, contemplated
fn section 43(1), may
appeal against the municipality's decision to the Appeal Tribunal.’
The remainder of
that section then deals with the time limit for lodging the appeal,
and the consequences of not complying with
it
[8] The complaint of
Tronox is that the establishment of the Appeal Tribunal is
unconstitutional, because its functions constitute
provincial
intervention in municipal land-use decisions, which is Incompatible
with the Constitution’s allocation of functions
between local
and provincial government This requires a consideration of both the
constitutional provisions relating to the allocation
of governmental
powers as well as the provisions of the PDA.
[9] S 40(1) of the
Constitution provides that government 'is constituted as national,
provincial and local spheres of government
which are distinctive,
inter¬dependant and interrelated.' Sub-s 41(1) provides that:
‘Ail spheres
of government and all organs of state within each sphere must -
(e) respect Hie
constitutional status, institutions, powers and functions of
government in the other spheres;
(f) not assume any
power or function except those conferred on them in terms of the
Constitution;'
[10] The powers of
municipalities are set out in Chapter 7 of the Constitution, where
sub-s 156(1) provides :
'A municipality has
executive authority in respect of, and has the right to administer-
(a) the local
government matters listed in Pari B of Schedule 4 and Part B of
Schedule 5; and
(b) any other matter
assigned to it by national or provincial legislation.'
Part B of Schedule 4
includes 'municipal planning'. There is no dispute that the decision
of the Umlalazi Local Municipality which
is appealed against fell
within the ambit of 'municipal planning'.
[11] Ms Gabriel, who
appeared for Tronox together with Ms Pudifin-Jones, submitted that it
was decided in Johannesburg Metropolitan
Municipality v Gauteng
Development Tribunal and Others
2010 (6) SA 182
(CC) that national
and provincial governments cannot, by legislation, arrogate to
themselves the power to exercise executive municipal
powers or the
right to administer municipal affairs. That case deaft with the
provisions of Chapters V and VI of the Development
Facilitation Act
of 1095, which authorised Provincial Development Tribunals to
determine applications
for the re-zoning of
land and the establishment of townships. The court held those
provisions to be inconsistent with the provisions
of s 156 of the
Constitution.
[12] At paragraphs
43 and 44 of Gauteng Development Tribunal, Jafta J set out the
constitutional distinction between the three spheres
of government,
emphasising that each sphere has to respect the status, powers and
functions of government in the other spheres,
and not to interfere
with them except as provided by the Constitution - i.e. ss 100 and
139 of the Constitution. He stated :
'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. This is the constitutional
scheme in the context
of which the powers conferred on each sphere must be construed.'
113] The court
examined the provisions of the Development Facilitation Act and found
that the Supreme Court of Appeal had correctly
declared Chapters V
and VI to be unconstitutional. This was because in granting
applications for re-zoning or the establishment
of townships, the
development tribunals established in terms of the Development
Facilitation Act encroached on the functional area
of ’municipal
planning’. The impermissible interference was that those
chapters of the Development Facilitation Act
were concerned with
establishing institutions with adjudicatory powers to determine land
development applications - i.e. provincial
government usurped the
executive decision making authority of municipalities in certain
areas.
[14] Ms Gabriel also
relied on the authority contained in Minister of Local Government,
Environment Affairs and Development Planning,
Western Cape v Habitat
Council and Others
2014 (4) SA 437
(CC) where the Constitutional
Court confirmed that s 44 of the Land Use Planning Ordinance, 1985 is
unconstitutional and invalid.
That section created a provincial
appeal for affected persons against the land-use decisions of a
municipality. Section 44 of that
Act provided that parties to a
municipal application could appeal to the Administrator of the
Province in the prescribed manner.
[15] In Habitat the
provincial government sought to ensure that its veto power was
preserved pending the enactment of a new and
comprehensive statutory
scheme for the re-zoning of properties. The province tried to
persuade the court that provincial, legislative
and executive
surveillance was required over municipal planning decisions, and
without such oversight a province would be powerless
to stop large
developments that may possibly have ruinous effects on the province
as a whole. At page 477, paragraph 19 of the
judgment Cameron J
stated:
This bogey must be
slain. All municipal planning decisions that encompass zoning and
subdivisions, no matter how big, lie within
the competence of
municipalities. This follows from this court's analysis of “municipal
planning” in Gauteng Development
Tribunal. Provincial and
national governments undoubtedly also have power over decisions so
big, but their powers do not lie in
vetoing zoning and subdivision
decisions, or subjecting them to appeal. Instead, the provinces have
co-ordinate powers to withhold
or grant approvals of their own. It is
therefore wrong to fear that the province would be powerless to stop
the development of
a 'Sasol 4”. That development would depend
on myriad approvals, some of them provincial, some of them national.1
[16] Ms Gabriel
submitted that the 'bogey* Cameron J required to be slain was that
provincial governments interfere with the executive
functioning of
municipalities in any way. Ms Gabriel submitted that the very
enactment of the appeal process contained in Chapter
10 of the PDA
constituted such a constitutional intrusion and was impermissible.
She posed the example of a body constituting,
for example, retired
judges to hear such appeals, and submitted that any appeal structure,
of whatever form, could not be imposed
upon a municipality by a
provincial government To do so constituted interference with the
municipalities' legislative powers, and
it matters not that the body
created by provincial legislation purports to be constituted of
independent experts.
[17] Ms Gabriel
submitted that there was no conceivable difference between the appeal
structure in s 44 of the Land Use Planning
Ordinance referred to in
Habitat and the provisions of Chapter 10 of the PDA. The fact that
the 'Administrator’ referred
to in the Ordinance turned out to
be the Minister of Local Government, Environmental Affairs and
Development Planning of the Western
Cape, was coincidental. What was
significant was that the power was placed into the hands of the
provincial government In the same
way, the provisions of Chapter 10
of the PDA interfere with the original constitutional municipal power
to deal with 'municipal
planning'.
[18] I was referred
to the preamble to the PDA which records: 'WHEREAS planning and
development decisions must be taken by local
government, with appeals
being resolved by an
independent tribunal of experts appointed by the responsible Minister
of the Executive Council in consultation
with the Executive Council
of the Province;'
This indicated that
the default position of the Constitution was the making of decisions
by local government
[19] Ms Gabriel
queried how a provincially appointed body of unelected persons could
have the power to override the decision of
a municipality, which It
was entitled to make in terms of the Constitution. She submitted that
s 46 of the PDA, which provides
for the coming into effect of a
decision relating to the development of land situated outside the
area of a scheme, restricts the
decision of the municipality from the
outset. In those circumstances the Province was interfering with the
decision of the municipality
in precisely the same way that
interference occurred in Habitat In addition, the provisions of sub-s
121(5) and 121(6) of the PDA
regulate the powers of the municipality
to make decisions in an unconstitutional manner. This is the very
bogey which was slain
by the Constitutional Court in Habitat- i.e.
interference by the Province in the executive functions of a
municipality.
[20] Mr Dickson SC,
who appeared for the MEC for Co-operative Governance and Traditional
Affairs submitted that the PDA was introduced
as a successor to the
former provincial ordinances and was provided as a vehicle to
facilitate development He submitted that this
was not a clear case as
was dealt with in Gauteng Development Tribunal.
[21 ] Mr Dickson
submitted that Habitat dealt with old order legislation which gave a
member of the executive of the provincial
government the power to
make an appeal decision in an area which was the exclusive ambit of
the municipality. Indeed, in the Habitat
case it was the view of the
Cape Town Municipality that its powers had been usurped by the
appellate function vesting in the provincial
government No such
suggestion is made by the Umialazi Local Municipality in the present
case. The complaint of Tronox in this case
appears to be based on the
assumption that the provincial government has constructed an
independent body with the ulterior motive
of interfering with the
executive functions of the municipality. This is not the case.
[22] Mr Dickson
submitted that the facility provided for by Chapter 10 of the PDA is
for the benefit of all municipalities and is
essentially an internal
appeal mechanism for them. The test to be applied by the Appeal
Tribunal in deciding appeals is an appropriate
one and provides an
excellent filter for cases which would otherwise have to be heard in
the High Court. This provides parties
with a cost-effective and
appropriate mechanism to enable them to deal efficiently with
objections. None of the municipalities
in KwaZulu-Natal have
complained about the appeal structure because it is a necessary tool
in the decision-making process, and
provides the public with an
assurance that small municipalities that are unable to afford to put
such an appeal structure into
place themselves, are equipped with a
facility for the hearing of appeals. Mr Dickson emphasised that the
municipal government
is not in any way able to use the provisions of
Chapter 10 of the PDA to frustrate the aims and objects of a
municipality, and
as none of the municipalities in KwaZulu-Natal had
complained of the appeal system, it would be inappropriate to visit
Chapter
10 with a ruling that it was unconstitutional.
[23] The decision to
be made in this case is whether the appellate structure provided for
in Chapter 10 operates as an impermissible
interference with the
constitutionally enshrined independence of the municipalities. Are
those provisions to be viewed in the same
light as the provisions of
the Land Use Planning Ordinance declared unconstitutional is Habitat
7
[24] Section 45 of
the PDA essentially provides that an aggrieved party ‘may
appeal against the municipality’s decision
to the Appeal
Tribunal'. Thus an 'internal remedy' is created with which a party
wishing to appeal a decision of the municipality
would have to
comply.
[25] Chapter 10 of
PDA provides for the establishment of the Appeal Tribunal. Sub-s
102(1) provides that the Appeal Tribunal 'must
exercise its powers in
an independent manner, free from governmental or any other outside
interference or influence, and in accordance
with the highest
standards of integrity, impartiality, objectivity and professional
ethics'. Sub-s 2 provides that 'No person,
municipality or organ of
State may interfere with the functioning of the Appeal Tribunal.'
Sub-s 3 enjoins organs of State and
municipalities to assist and
co-operate with the Appeal Tribunal to ensure Its effectiveness.
[26] The membership
of the Appeal Tribunal is determined by s 103 which provides that it
must consist of at least three legally
qualified members, three
registered planner members and members with other technical expertise
in various areas relating to municipal
planning. It also provides
that members of the Appeal Tribunal may be appointed from the private
sector or the public sector. The
procedure for the appointment of
members of the Appeal Tribunal is set out in ss 105 and 106 and
provides for a public process
to be Initiated by publishing a request
for nominations. The appointment of members is done by a member of
the Executive Council
after consideration of the applications and
supporting documents as well as comments received in regard to the
proposed appointment
of the nominated persons. The names of those
appointed is then published in the Gazette and by a newspaper
circulating in the province.
The appointment process is thus a public
one which is open to scrutiny and challenge.
[27] Significantly,
the provisions of s 104 set out the list of those persons
disqualified from membership of the Appeal Tribunal.
They include in
sub-s 104(e) a person who 'is a member of Parliament, the provincial
legislature or a municipal council In the
Province, or, if that
person is nominated as a member of Parliament, the provincial
legislature or a municipal council*.
[28] The remaining
sections of Chapter 10 deal with the administration of the Appeal
Tribunal including the administrative support
to be given to it by
the province. It also deals with the lodging of appeals, and the
powers of the Appeal Tribunal.
[29] It is suggested
that the provisions of Chapter 10 envisage a completely independent
appeal procedure in which the government
of the province has no part
in any decision relating to any appeal, and which does not purport to
usurp the executive function
of the municipality. However, in Habitat
Cameron J stated at paragraph 9:
'There is therefore
no justification for a provincial power to overturn municipalities’
land-use decisions.'
Whilst the procedure
envisaged in Chapter 10 does not envisage a provincial power mero
motu, to overturn municipal decisions, it
subjects the municipalities
to the scrutiny of an appeal In circumstances where the municipality
may not have resolved that an
appeal process is appropriate or
desirable.
[30] In my view,
when Cameron J referred in paragraph 19 of Habitat to provincial
governments not having the power to subject a
municipality’s
veto of a zoning application to an appeal, this is what he had in
mind. He did not qualify that statement
by suggesting that he
referred to provincial governments taking decisions of first
instance, or just overruling decisions of municipalities.
At
paragraph 11 of Habitat, the Constitutional Court quoted with
approval the dicta of Moseneke J in City of Cape Town and Another
v
Robertson and Another
[2004] ZACC 21
;
2005 (2) SA 323
(CC) where the learned judge
referred to a municipality under the Constitution not being a mere
creature of statute imbued with
power by provincial or national
legislation. He continued:
'A municipality
enjoys “original" and constitutionally entrenched powers,
functions, rights and duties that may qualified
or constrained by law
and only to the extent the Constitution permits.'
[31] in this case
the original constitutionally entrenched powers of the municipality
have been interfered with by the provincial
government What Chapter
10 does is provide a mechanism which compels municipalities to allow
appeals, and which will operate as
an internal appeal procedure. The
fact that the appointment of the persons fulfilling the functions of
the Appeal Tribunal, by
their very definition, exclude members of the
provincial government, does not mean that the creation of the appeal
procedure did
not constitute provincial government interference with
'municipal planning'.
[32] In Minister of
Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd
and Others 2014 (1) 521 (CC) a provincial
minister had refused a
rezoning and subdivision application made by Lagoonbay for the
purpose of a large-scale property development.
The Constitutional
Court held that provincial authorities are not competent to decide
sub-division applications. Mhlantla J pointed
out at paragraph 46
that the jurisprudence of the Constitution Court clearly established
that:
(a) barring
exceptional circumstances, national and provincial spheres are not
entitled to usurp the functions of local government;
(b)
the constitutional vision of autonomous spheres of government must be
preserved;
(c) while the
Constitution confers planning responsibilities on each of the spheres
of government, those are different planning
responsibilities based on
'what is appropriate to each sphere1.
[33] The operation
of s 45 and Chapter 10, in my view, usurps the functions of a
municipality. It does not preserve the autonomy
of municipalities,
and constitutes provincial government interference with the sphere of
the municipality’s constitutional
empowerment to make decisions
relating to municipal planning. I am accordingly of the view that
Habitat is indistinguishable from
the circumstances of this matter.
In my view the provisions of s 45 and Chapter 10 of the PDA cannot be
viewed as a step taken
by the provincial government pursuant to the
provisions of sub-s 154(1) and sub-s 155(6)(b) of the Constitution
which respectively
provide:
‘The national
government and provincial governments, by legislative and other
measures, must support and strengthen the capacity
of municipalities
to manage their own affairs, to exercise their powers and to perform
their functions.'
and
‘Each
provincial government... by legislative or other measures, must-
(b) promote the
development of local government capacity to enable municipalities to
perform their functions and manage their own
affairs.'
[34] As was pointed
out by Cameron J in Habitat at paragraph 27, these subsections cannot
entail appellate oversight of zoning and
subdivision decisions.' The
decisions made by the Umialazi Local Municipality which are dealt
with in this application fall, in
my view, into the same category
of'municipal planning'.
[35] Sub-s 172(1)(a)
of the Constitution provides that a court declaring any law to be
invalid must do so to the extent of Its inconsistency
with the
Constitution. In the draft order prayed Tronox seeks an order
declaring s 45 to be unconstitutional to the extent that
it
constitutes interference by the Province in municipal planning
decisions by providing for an appeal from a municipal decision
to a
provincial appellate body - i.e. the Appeal Tribunal.
[36] With regard to
the unconstitutionality of the sections of the PDA compromising
Chapter 10 (sections 100 to 134), Mr Dickson
submits that these
sections, of themselves, are constitutional because a municipality
may well resolve that it wishes to adopt
and use the procedure laid
out there. This may be particularly useful to those municipalities
wishing to incorporate an appea)
procedure, but unable to do so. That
a municipality, of its own volition, refers a 'municipal planning’
decision to an independent
body on appeal, may, however, in itself be
unconstitutional because the municipality is enjoined to deal with
these matters itself.
[37] I was referred
to the fact that ss 15, 28, 57 and 67 of the PDA, which all provide
for appeals to the Appeal Tribunal, will
also be affected if I were
to make a declaration of constitutional invalidity of s 45. That may
well be so, but these sections
do not form part of the relief sought
by Tronox, and it would be inappropriate for me to deal with their
constitutionality. For
thai reason as well I regard it as
inappropriate for me to decide upon the constitutionality of those
sections comprising Chapter
10 of the PDA.
[38] I was not
requested by either party to consider a readlng-in which could save
the provisions of s 45 from a declaration of
unconstitutionality (for
example where municipalities have resolved to adopt the provisions of
the PDA as an appeal procedure).
I accordingly decline to do so.
[39] S 172(2)(a) of
the Constitution provides that any declaration of constitutional
invalidity which i make has no force unless
it is confirmed by the
Constitutional Court. Accordingly, it is necessary for me to extend
the interdict already granted by this
court preventing the
finalisation of the two appeals by the Mtunzini Conservancy and the
Mtunzini Fish Farm I do so because if
my declaration of
constitutional invalidity is incorrect then the Mtunzini Conservancy
and the Mtunzini Fish Farm will be entitled
to continue with their
appeals. If I am correct then the appeals will be void ab initio.
[40] Mr Dickson
submitted that in the event that I make a declaration of invalidity,
in terms of sub-s 172(1 )<b)(ji) I should
suspend the declaration
of invalidity for a period of two years. The only reason advanced by
the Province for this request is:
'This period will
ensure a seamless transition of legality (as oppose (sic) to chaos)
and provide the KwaZulu-Natal Legislature
with an opportunity to
correct any defects in the 2014 PDB, so that it may be
constitutionally compliant and consistent with SPLUMA.’
The reference to the
"2014 PDB’ refers to the KwaZulu-Natal Planning and
Development Bill which will apparently soon
be ready for submission
to the MEC.
The reference to
SPLUMA is a reference to the Spatial Planning and Land-Use Management
Act, 2013 which was assented to on the 2nd
August 2013, but which is
not yet in operation.
[41] In dealing with
the suspension of a declaration of invalidity, Cameron J stated in
Habitat paragraphs 20 and 27:
if we suspend the
declaration of Invalidity, we will temporarily preserve an appellate
power that is unconstitutional in its entirety.
The provincial
minister nevertheless urged us, for practical reasons, to suspend the
declaration, as this court often does in the
exercise of its just and
equitable remedial powers. He argued that, historically, provinces
have borne ultimate responsibility
for planning decisions.
Accordingly they have large and experienced planning departments. By
contrast municipalities, especially
the smaller ones, do not yet have
the capacity and expertise to assume ultimate responsibility over all
planning decisions. Provinces
should retain Ihelr appellate powers
while municipalities build capacity. This will, the provincial
minister argued, have the additional
benefit that faulty municipal
decisions can be corrected by Internal means rather than flooding the
courts with review applications.
The contention that
some local authorities lack planning capacity deserves serious
consideration. But it does not justify suspending
the declaration of
the invalidity.'
[42] I note the
warning in Mistry v Interim Medical and Dental Council of South
Africa and Others
1998 (4) SA 112
7 (CC) at paragraph 37 that
detailed information is required to be presented to a court in order
to justify a suspension of invalidity.
[43] In my view the
reasons proffered for the suspension of the order I propose do not
outweigh the considerations expressed by
Cameron J as referred to
above. I accordingly decline to suspend the operation of my
declaration of invalidity.
[44] The province
also records in its opposing affidavit that there are presently
twenty appeals pending before the Appeal Tribunal
as well as the
appeals of the Mtunzini Conservancy and the Mtunzini Fish Farm.
Eleven of those appeals have not yet been set down
for hearing, and
it is submitted that it would be in the interests of justice and
legal continuity if all the pending appeals were
finalised. On the
basis that a retrospective order would result in chaos because
finalised appeals would be undone and successful
appeals would be
overturned, 1 have made provision in my order that it not operate
retrospectively. The only appeals which will
directly be affected by
my order are those of the Mtunzini Conservancy and the Mtunzini Fish
Farm. Those appeals will be dealt
with as set out above. With regard
to pending appeals, the parties to those appeals are not before me,
and I make no order in respect
of them.
[45] In the
circumstances I make the following order:
(i) Section 45 of
the KwaZulu-Natal Planning and Development Act, 2008 is hereby
declared to be unconstitutional to the extent that
it constitutes
interference by the province in municipal planning decisions by
providing for an appeal from a municipal decision
to an appellate
body, namely the KwaZulu-Natal Planning and Development Appeal
Tribunal, created by the provisions of Chapter 10
of the Act
(ii) Pending the
confirmation by the Constitutional Court in terms of Section
172(2)(a) of the Constitution of the Republic of South
Africa 1996 of
(i) above, the hearing of the appeals pending in terms of section 45
by the Mtunzini Conservancy and the Mtunzini
Fish Farm (Pty) Ltd In
respect of the decision of the Umlalazi Municipality to approve the
land-use rights for surface mining operations
on the Remainder of Lot
91 and the Remainder or Portion 3 of Lot 91, Umlalazi 1011
Registration Division GU, Province of KwaZulu-Natal,
are suspended .
(iii) In the event
of the Constitutional Court confirming the declaration of invalidity
in terms of paragraph (i) above, the two
appeals referred to in (ii)
above are declared to be unlawful and void ab initio.
(iv) Paragraph (i)
above shall not be applicable to any final decisions of the
KwaZulu-Natal Planning and Development Appeal Tribunal
made prior to
the date of this order.
The Fifth
Respondent is directed to pay the costs of this application, such
costs to include the costs consequent upon the employment
of two
counsel, and on that basis the costs reserved for decision of this
court by Madondo J on the 21rt July 2014.
Date of hearing :
4th May 2015
Date of judgment:
3rd June 2015
Counsel for the
Applicant: Ms A Gabriel SC with Ms Pudifin-Jones
(instructed by
Shepstone and Wylie).
For the Second
Respondent: Noiman Brauteseth and Associates.
Counsel for the
Fifth Respondent: A J Dickson SC (instructed by PKX Attorneys).