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[2015] ZAKZDHC 54
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Aboobaker N.O and Others v Serengeti Rise Body Corporate and Another (12052/2014) [2015] ZAKZDHC 54; 2015 (6) SA 200 (KZD); [2015] 3 All SA 538 (KZD) (29 June 2015)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO. 12052/2014
DATE: 29 JUNE 2015
REPORTABLE
In the matter between:
TAYOB NAZEER ABOOBAKER
N.O
..........................................................................
First
Applicant
FAREEDA ABOOBAKER
N.O
..................................................................................
Second
Applicant
CADOGAN GARDEN SHARE BLOCK (PTY)
LTD
................................................
Third
Applicant
39
TH
STREET INVESTMENTS
86 SHAREBLOCK (PTY) LTD
..........................
Fourth
Applicant
311 BODY
CORPORATE
...............................................................................................
Fifth
Applicant
SURREY MANSIONS BODY
CORPORATE
..............................................................
Sixth
Applicant
And
SERENGETI RISE BODY
CORPORATE
................................................................
First
Respondent
ETHEKWINI
MUNICIPALITY
.............................................................................
Second
Respondent
J U D G M E N T
STEYN J
Introduction
[1]
This review concerns the approval of building plans in respect of a
development on
the property situate at 317 Currie Road, Berea and
second respondent’s approval
[1]
in terms of section 47
bis
of the Town Planning Ordinance No. 27 of 1949 (hereinafter referred
to as “the Ordinance”), to rezone the said property
from
general residential 1 (referred to as “GR1”) to general
residential 5 (referred to as “GR5”). The
decisions under
review were taken by the second respondent. The applicants seek
just and equitable relief in respect of the
consequences of the above
declarations of invalidity. In essence what is sought is that
the second respondent’s approval
of the construction of the
building on the Lot at 317 Currie Road be declared illegal and that
the structure be demolished.
For the sake of completeness, I
consider it necessary to refer to the relevant parts of the relief
sought as it was prayed for
in the notice of motion:
“
2.
That the following approvals/decisions of the Second Respondent be
reviewed and set
aside and/or declared to be unlawful and invalid:
2.1 The Second
Respondent’s approval of the building plans in respect of the
development
on the property situate at 317 Currie Road, Durban in
whole or in part including the initial approval (3 August 2010) and
the Deviation
Plan 031320114 (6 March 2014).
2.2 The Second
Respondent’s approval (12 December 2011) in terms of S47
bis
of the Town Planning Ordinance No. 27 for the rezoning of the
property from General Residential 1 to General Residential 5.
3.
Granting the Applicants’ just and equitable relief in respect
of the consequences
of the above declarations of invalidity as the
Court deems meet.
4.
The First and Second Respondents are ordered to pay the costs of the
application
jointly and severally on the scale as between attorney
and own client the one paying the other to [be] absolved.”
The applicants previously instituted an application
for interim relief pending final determination of this review,
however at the
hearing of the interdict proceedings it was agreed
that the review application would be dealt with on an expedited basis
and that
the interdict application be adjourned
sine die
.
What remained relevant to the proceedings before me are prayers 2 to
4.
The Parties
[2]
The applicants own immovable property in the immediate vicinity of
the structure that
is developed in Berea. Berea is a suburb in
Durban built on a ridge rising from the city centre and from many
properties
in the area, residents have a view of the sea and the
harbour. The majority of applicants enjoyed panoramic views of
the
city and sea until Serengeti erected that structure giving rise
to this review. The first respondent Serengeti Rise Body
Corporate is the developer who developed and built the structure that
is presently nine storeys high. The building bears no
resemblance to the name of the developer, since the structure is
definitely not flat.
[2]
Photographs attached to the papers show that the building is
gargantuan and towers over the adjacent buildings.
[3]
The second respondent is the eThekweni Municipallity which is a
municipality duly established and responsible for the eThekweni
district which includes Durban. The decisions under review were
taken by the second respondent.
[3]
Given the fact that the second respondent filed a notice to abide but
curiously elected
to file heads of argument, I issued a directive to
all parties, prior to the matter being heard, to address the Court on
whether
the second respondent should be given an opportunity to make
any oral submissions when the application is heard. The second
respondent placed reliance on section 165(4) of the Constitution,
[4]
as well as
Minister of Health and
Another N.O. v New Clicks SA (Pty) Ltd and Others
[5]
in support of its contention that it
should be heard. Surprisingly none of the parties opposed the
second respondent’s
request to make oral submissions. I
have read section 165(4) of the Constitution and in my view it places
an
onus
on
the second respondent to file papers so as to assist the Court, but
whether the provision is as elastic as Mr Pammenter SC contended,
is
doubtful.
[6]
As much as I was not persuaded by Mr Pammenter’s interpretation
of the provision, I was persuaded that the second respondent
has an
interest in the relief sought and I allowed the second respondent to
argue the matter.
[4]
The review insofar as the zoning process is concerned is challenged
on the principle
of legality by the first, second and fourth
applicants who contended that the rezoning of the scheme was not
administrative action
in terms of the Promotion of Administrative
Justice Act.
[7]
The other applicants contended that the rezoning of the site
constituted administrative action under PAJA and required a
fair
process.
The Legal and Statutory Regime
[5]
The Promotion of Administrative Justice Act (hereinafter referred to
as “PAJA”)
is premised on administrative action which is
lawful, reasonable and procedurally fair.
[8]
What would constitute unfair administrative action in general was
defined in
Mobile Telephone Networks
(Pty) Ltd v Chairperson of the Independent Communications Authority
of South Africa, In Re: Vodacom (Pty)
Ltd v Chairperson of the
Independent Communications Authority of South Africa and Others
[9]
at para 40
inter
alia
as when an administrator:
“
(i)
was not authorised to do so by the empowering legislation;
(ii)
acted under a delegation of power, which was not authorised by the
empowering legislation;
(iii) the
action was procedurally unfair;
(iv) the
action was materially influenced by an error of law;
(v) the
action was taken –
- for a
reason not authorised by the empowering legislation;
- on the basis of irrelevant considerations or because relevant
considerations were not considered; or
-
arbitrarily or capriciously;
(vi)
the action itself –
-
contravenes any legislation or is not
authorised by the empowering provision of such legislation; or
-
is not rationally connected to the purpose
for which it was taken; or the purpose of the empowering provision;
or the information
before the administration; or the reasons given
for it by the administrator.”
Section 6(2) of PAJA
lists the grounds
[10]
on which administrative actions may be reviewed and section 7
regulates the time limits. Important to the issues before me
is
the time limit of 180 days “from which the person concerned was
informed of the administrative action and the reasons
for it or might
reasonably have been expected to have become aware of the action and
the reasons”.
[11]
In issue is whether the applicants, if successful in their
application, launched the review within the time limits of PAJA.
First applicant stated that the application was brought within four
months of it becoming aware of the irregularities regarding
the
development.
[12]
Having considered the facts I am satisfied that the time limits of
PAJA had been adhered to and that the applicants
launched this review
as soon as they became aware of the alleged irregularities.
[13]
What is evident from the facts is that the respondents were playing
their cards close to their chests and were not keen on
sharing
information with the applicants. Had they done so, costs could
have been limited and this review could have been
brought at a much
earlier stage. I am not persuaded that there is any merit in
the challenge that the applicants delayed
this review and that they
had failed to comply with the time limits of PAJA.
[6]
Mr Putter SC, acting on behalf of first, second and fifth applicants,
submitted that
this review insofar as the rezoning is concerned, is
based purely on legality and the question of whether the provisions
of the
law have been complied with. He relied on
Colonial
Development (Pty) Ltd and Others v Outer West Local Council and
Others
[14]
more specifically the Court’s definition of administrative
action:
“
The constitutional status of local
authorities is governed by ss 151-164 inclusive of the Constitution
and comprises a far more
elaborate and definitive declaration of the
independence and autonomy of local government than that found in the
interim Constitution.
The authority granted to local
authorities under the Constitution to govern their own affairs and to
make their own laws free from
central or provincial governmental
interference accords in all respects with the power conferred upon
local authorities under the
interim Constitution identified and
described by Chaskalson P above. The rationale of the relevant
part of the decision in
the
Fedsure
case accordingly applies here. The complex and laborious steps
which the ordinance requires a local authority to take before
a town
planning scheme becomes effective and its provisions become law are
far more transparent and conducive to public scrutiny
and
participation than the procedures involved in the making of by-laws.
However, the resolutions taken by the council of
a local authority to
prepare and to propose and eventually to adopt a scheme are no less
deliberative than resolutions taken to
create particular by-laws.
Accordingly, in my view, a local
authority’s adoption of the provisions of a scheme is not
susceptible to challenge as administrative
action within the purview
of s 33 of the Constitution
. The
fact that the commission, by exercising its powers under s 48(1), may
modify the legal authority’s proposal does
not appear to me to
detract from the deliberative nature of the functions of the council
thereanent. The council will still be
required to deliberate on the
question and to pass a resolution whether or not to accept the
commission’s ‘opinion’
and, in the latter event,
whether to appeal to the Administrator.
Either
way the result constitutes law and the commission’s role under
s 48(1) in that process is that of an intermediate functionary
only
which does not form part of the deliberative process itself.
Accordingly and in my view, the ‘appeal’ envisaged in s
48(1) does not constitute ‘administrative action’
as
contemplated by s 33 of the Constitution. In the result, this
attack fails also.”
[15]
(My emphasis.)
Mr Putter also placed emphasis on section 40 of
the Town Planning Ordinance 27 of 1949 (hereinafter referred to as
“the Town
Planning Ordinance”) which reads:
“
General
purpose of plans, schemes and package of plans.—(1) Every
structure plan, development plan, town planning
scheme (hereinafter
in this ordinance referred to as a scheme) or package of plans shall
have for its general purpose a co-ordinated
and harmonious
development of the municipal area, or any area or areas situate
therein, to which it relates (including where necessary
the
reconstruction and redevelopment of any part which has already been
subdivided, whether there are or are not buildings thereon)
in such a
way as will most effectively tend to promote health, safety, order,
amenity, convenience and general welfare, as well
as efficiency and
economy in the process of development and the improvement of
communications.
(2) A
scheme shall contain such provisions, not incompatible with the
relevant structure plan and development plan, as
may be deemed
necessary or expedient for regulating, restricting or prohibiting the
development of the area to which such scheme
relates and generally
for carrying out any of the objects for which such scheme is made and
in particular, but without derogating
from the generality of the
foregoing, for dealing with any of the matters referred to in the
Schedule to this ordinance.”
[7]
Ms Annandale SC, for the first respondent, contended that a decision
to rezone has
specifically been recognised by the Constitutional
Court as action subject to PAJA and she placed reliance on
Minister
of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty)
Ltd and Others
[16]
at para 60:
“
Despite an absence of any reference thereto
in Lagoonbay’s written submissions in this court, we were
informed during oral
argument that it persists with its alternative
challenges under PAJA (although those challenges have narrowed
considerably).
In the light of the conclusion reached above, it
remains for us to consider these arguments in relation to the
provincial minister’s
rezoning decision. In this court
Lagoonbay contends that –
(a)
the provincial minister committed material
errors of law by (i) ignoring or revisiting decisions made during the
amendment of the
structure plan and during the environmental approval
process; and (ii) attaching significance to the agricultural
potential of
the land sought to be developed when the designation of
that land had already been changed from ‘Agriculture/Forestry’
to ‘Township Development’;
(b)
the provincial minister’s decision
was based on erroneous facts insofar as she failed to appreciate the
benefits of Lagoonbay’s
water plan; and
(c)
to the extent that the provincial
minister’s decision was based on concerns about the
socioeconomic impact of the proposed
development, it was
‘misconceived, speculative and unreasonable’.”
(Original footnotes omitted.)
[8]
Ms Annandale’s submission is based on a very narrow
interpretation of the Lagoonbay
judgment. Properly considered,
the Court considered the various provisions of PAJA that would find
application but legality
was not ruled out. The doctrine of
legality, in my view, finds application and would be considered in
dealing with the review
of the zoning process.
[17]
[9]
The
historical background
:
The first respondent concluded an agreement of
purchase and sale pursuant to which it acquired the site
[18]
on
13 January 2009
.
On the day before,
12 January 2009
,
the first respondent purportedly applied for a demolition permit from
the second respondent.
[19]
On
6 March 2010
the first respondent submitted a plan for approval by the second
respondent. This plan was withdrawn on
18
June 2010
. A second plan was
submitted on
10 May 2010
,
which was approved on
3 August 2010
.
The approved plan provided for a four storey building. This is
in stark contrast to the present structure that consists
of nine
storeys. The site was after application rezoned on
9
December 2011
from a GR1 zone to a GR5
zone. Subsequently the first respondent submitted a deviation
plan which sought to increase the
bulk of the building from
approximately 1800 metres to 9786 square metres. The deviation
plan
[20]
was approved by the second respondent on
25
February 2014
. The development,
as it is presently, has the effect of towering over all the
surrounding properties, obstructing the view
of the owners and
occupiers and compromising the privacy of the surrounding
properties.
[21]
[10]
The legal
background
:
The applicants’ contention is that the
rezoning of the site from GR1 to GR5, was not achieved by due
process, nor was the
rezoning in accordance with the applicable law.
In addition applicants submit that the building plan governing the
present
construction was also not in accordance with the law and
therefore the entire development is unlawful. Applicants
further
contend that the Municipality, as the custodian of orderly
development in accordance with applicable legislation, failed in its
duties and acted without due regard for the law. I shall at
first deal with the first respondent’s application to rezone
and the second respondent’s decision to rezone the site.
The Rezoning decision:
[11] In my view a
rezoning application requires notice of the intended rezoning to the
affected parties.
In the present context it is required to
inform owners or occupiers of land of an event that could impact on
the exercise of their
ownership. Throughout this application
reference was made to the emotive response of certain homeowners
claiming to be affected
by this construction. In my view it is
not an uncommon phenomenon to be emotional in your pursuit of
protecting ownership
of your property. Our law reports are
riddled with cases in which homeowners litigate to protect their
rights pertaining
to their homes and their right to live in these
homes in peace and harmony.
[12] The rezoning of
the property from GR1 to GR5 by the Municipality took place on 9
December 2011
after the first respondent applied for a rezoning of
the property in March 2010. The application was launched in
terms of
the Town Planning Ordinance and the Durban Town Planning
Scheme Regulations (“the Regulations”). Pivotal to
this
review application is whether the applicants were duly notified
of the proposed rezoning. Section 74
bis
of the Ordinance
reads:
“
Service of Documents
Subject to subsection (2), where any notice, order
or other document issued under this Ordinance is to be served on a
person, such
notice, order or document shall be served –
(a)
if the addressee is a natural person –
(i)
by delivering the notice, order or other
document by hand to the person concerned
;
(ii)
who in writing has nominated, for the
purposes of receiving such a notice, order or document –
(aa) any
particular physical address, by delivering it by hand at that
physical address to a person who
apparently is over the age of
sixteen years and apparently resides or works there; or
(bb) any
particular postal address, by sending it by registered post or
signature on delivery mail to that
postal address;
(iii)
who cannot be reached and has not made a
nomination –
(aa) by
delivering it by hand at the addressee’s usual or last-known
place of residence, to a person
who apparently is over the age of
sixteen years and apparently resides at that place; or
(bb) by sending
it by registered post or signature on deliver mail to the addressee’s
usual or last-known
residential or postal address; or
(iv)
who, in writing, has nominated a telefax
number or email address for the purposes of receiving a notice, order
or document, by successful
electronic transmission of the relevant
notice, or der or document to that telefax number or email address;
or
(b)
if the addressee is a company, close
corporation or any other juristic person, or a partnership –
(i)
by delivering the notice, order or document
by hand at the registered office or place of business of the company,
close corporation,
other juristic person or partnership, to a person
who ostensibly holds a responsible position in the company, close
corporation,
other juristic person or partnership’
(ii)
by sending it by registered post or
signature on delivery mail to the registered office or place of
business of the company, close
corporation, other juristic person or
partnership; or
(iii)
which in writing has nominated a telefax
number or email address for the purposes of receiving such a notice,
order or document,
by successful electronic transmission of the
relevant notice, order or document to that telefax number or email
address.”
(My emphasis.)
Section 74
ter
reads:
“
(1)
Where the Ordinance requires public notice by an organ of state it
shall –
(a)
display a notice of a size at least 60
cm by 42 cm on the frontage of the erf
,
or at any other conspicuous and easily accessible place on the land
concerned;
(b)
serve a notice
on
all parties
who in the opinion of the
organ of state may have an interest in the matter, including –
(i)
the
owners and
occupiers
of land adjacent to the erf;
(ii)
the
owners and
occupiers
of land within 100 metres of
the boundary of the erf;
(iii)
the municipal councillor of the ward in
which erf is situated;
(iv)
organs of state with jurisdiction in the
matter; and
(c)
give public notice of the proposed
action in a newspaper
which is
distributed in the area concerned.”
(My emphasis.)
[13]
In
Rampersad and Another v Tongaat Town
Board and Others
[22]
the Court considered the rationale for section 47 of the Town
Planning Ordinance:
“
The
whole idea of objection and representation is fundamental to the Town
Planning Ordinance. Remembering that it is an ordinance
that
seeks to regulate the use to which privately owned land may be put in
private townships,
it is hardly
surprising that the voice of those likely to be affected should be
heard; and, if needs be, heeded. So it is
that s 47 abounds
with procedures designed to give due effect to this object
.
It is unnecessary to discuss them all in any detail, but one may be
noted as illustrating the point being made. The
fourth
respondent, the Town and Regional Planning Commission, is empowered
by s47
bis
(6)(
a
)(iii)
to direct a local authority to conduct a hearing for the purpose of
‘eliciting further information or for the better
gauging of
public attitudes or opinions on any planning matter’.
Hence, so the argument goes, how can opinion ever
be gauged if
insufficient steps are taken to elicit it in the first place.”
[23]
(My emphasis.)
[14]
In
Doctors for Life International v
Speaker of the NA
[24]
it was considered:
“
Public
participation in the law-making process is one of the means of
ensuring that legislation is both informed and responsive.
If
legislation is infused with a degree of openness and participation,
this will minimise dangers of arbitrariness and irrationality
in the
formulation of legislation
. The
objective in involving the public in the law-making process is to
ensure that the legislators are aware of the concerns
of the public.
And if legislators are aware of those concerns, this will promote the
legitimacy, and thus the acceptance,
of the legislation. This
not only improves the quality of the law-making process, but it also
serves as an important principle
that government should be open,
accessible, accountable and responsive. And this enhances our
democracy.”
[25]
(My
emphasis.)
[15]
The first respondent contends that when it applied for rezoning the
Ordinance was in force and
it was obliged to perform in terms of the
Ordinance. The first respondent claimed however that it duly
gave public notice
and notice to the surrounding properties regarding
the rezoning process and that such notification was in terms of the
Municipality’s
direction.
[26]
The first respondent boldly denies any fault on its part, it does so
in the following terms:
“
To
the extent then that there were any shortcomings in the notice given,
that is not the fault of Serengeti which did as it was
told by the
Municipality, and the purpose of the notice provisions was plainly
served.”
[27]
[16] It is necessary
in
casu
to consider the conduct of the first respondent and the
content of the public notice as well as the notices that were sent to
some
registered owners, in order to determine whether the first
respondent complied with its statutory obligations. The
following
notice was sent to various registered owners:
“
NOTICE OF REZONING APPLICATION
TO : THE REGISTERED OWNER
DATE 22/04/2010
298 MUSGRAVE ROAD
DURBAN
BY :
REGISTERED MAIL/HAND DELIVERY
Notice is hereby given in terms
of Section 47
bis
B of the Town Planning Ordinance 1949 (ord. No. 27 of 1949) (as
amended), that the eThekwini Municipality proposes to amend the
BEREA
NORTH Town Planning Scheme in the course of preparation by :
(details of amendment)
PROPOSED REZONING OF LAND ON PORTION 1 OF ERF 2230 DURBAN AND
PORTION 1 OF ERF 2204 DURBAN AT 317 CURRIE ROAD
.
NOTE : 1.
A copy of the proposed amendment is open for inspection at the Town
Planning Office
(address of regional office), weekdays between the
hours of 08h00 and 12h30.
2. Enclosed please
find copy of locality plan.
Any person having sufficient
interest in the proposed amendment may lodge written objections or
representations relating thereto
with the Regional Co-ordinator ;
Land Use Management, Central Region at the address below, by Friday
21 May 2010.
…
CLOSING
DATE FOR WRITTEN OBJECTIONS OR REPRESENTATIONS : 21 MAY 2010.
eTHEKWINI MUNICIPALITY
P.O. BOX 680
DURBAN
4000.”
(My emphasis.)
[17] The following
notice was published in the Mercury on 23 January 2010:
“
ETHEKWINI MUNICIPALITY
Central AREA OFFICE
PROPOSED AMENDMENT : Durban TOWN
PLANNING SCHEME IN THE COURSE OF PREPARATION:
Notice is hereby given that
application has been made to the Council in terms of section 47
bis
B of the Town Planning Ordinance, 1949 (Ord. No. 27 of 1949) (as
amended) for authority to amend the Berea North Area of the Durban
Town Planning Scheme in the course of preparation for Rezoning under
(Property Description) : Erf 1
of 2204 – Erf 1 of 2230 Durban.
(Street
Address 317 Currie Road, Berea North)
(From)
GENERAL
RESIDENTIAL 1
(To)
GENERAL
RESIDENTIAL 5
Copies of the proposed amendment
are open for inspection at the Town Planning Office, 166 KE Masinga
(Old Fort) Road, Durban during
office hours.
Any person having sufficient
interest in the proposed amendment may lodge written objections or
representations relating thereto
with the Regional Co-ordinator, Land
Use Management at the address below, by Friday 21 May 2010.
Dr
MO Sutcliffe
City
Manager
eThekwini Municipality
Central
Region
PO
Box 680
Durban
4000.”
[18]
It is common cause that no locality plan was enclosed with the notice
to the homeowners as stipulated.
[28]
More importantly, it has to be decided whether the first respondent
who stepped into the shoes of the second respondent had
notified all
the interested parties in accordance with the Ordinance and whether
the notices were delivered in the manner prescribed
by the
Ordinance. Simply put did the respondents comply with the
requirements of the Ordinance.
[19]
The public notice received by some interested parties, not all,
failed to notify those affected by
any rezoning authorisation, as to
the intended zonal change or the purpose of the rezoning. In
fact the notices failed to
meet the very purpose for which it was
intended namely to advise the addressees of the proposed change.
The process of lodging
an objection was also compromised in that no
street address, electronic mail address, work telephone or fax
numbers were provided
for the purpose of objecting to the proposal.
The second respondent in this modern era could certainly have opted
for a speedier
process to lodge an objection than the postal
service. As much as the objections or representations could be
lodged with
the Regional Co-ordinator, the only person whose details
were given was that of the City Manager of the Municipality.
Section
5(d) of the Ordinance provides
inter alia
for speedier
ways of communication which, considering the short time given by the
second respondent, would have been more effective.
Section 5(d)
of the Ordinance reads:
“
[I]nvite members of the
pubic to cause written comments to be lodged with the contact person,
whose name and official title, work,
postal and street address and if
available,
an electronic mail address
,
work
telephone number
and
fax number
must be stipulated;”
(My emphasis.)
[20]
As much as the first respondent contends that notice was given to all
concerned, it fails to show that
the notification was sent to each
and every affected land owner or occupier of land adjacent to the
erf. The Ordinance
requires service of the notice on all
owners and occupiers of land within 100 metres of the boundary of the
site. The notification
process undoubtedly failed to comply
with the notification as required by the Ordinance in terms of
section 74
bis
read with 74
ter
.
The notices that were published and sent by registered mail, lack
particularity. Secondly, the notice board that ought
to have
been displayed in terms of 74
ter
(1)(a)
could not be shown. At best Mr Gouse, deposing on behalf of the
first respondent, averred “as far as I recall
a notice was
displayed”. This assertion is not dispositive of what the
applicants alleged.
[29]
The first respondent evidently turbids the duty to inform occupiers
and homeowners with the issue that some applicants at
a certain stage
became aware of the rezoning.
[30]
The notification was not in accordance with the applicable law and
this non-compliance has to render the rezoning process
invalid.
[21]
Mr Pammenter conceded that if the Ordinance finds application, then
it cannot be contended by the Municipality
that notice of the
rezoning application was duly given. He acknowledged that no
attempt was made to serve the notices on
“occupiers” or
on the individual sectional title owners in the case of those owning
sectional title units. In
my view the Ordinance finds
application. The first respondent in any event contended
wisely, in my view, that the Ordinance
applies.
[22]
The first respondent however contends that if the notice to the
homeowners was inadequate than it should
not be penalised and
prejudiced since it complied with the requirements as informed by the
second respondent. The notices
which the respondent dispatched
to the adjacent owners were 30 in number and save for the name of the
addressee, are all identical.
[31]
In my view the first respondent cannot be excused from adhering to
the letter of the Ordinance since it became the agent
of the organ of
State. Section 74
ter
(2)
provides as follows:
“
Any person who has an interest in any
specific matter, may, by agreement with the organ of state, give
public notice
on behalf of the organ of
state.
”
(My emphasis.)
The
Ordinance equally placed a duty on the second respondent to verify
that the provisions have been adhered to. Section 74
ter
(3)
reads:
“
Where
a
person has given public notice on behalf of an organ of state
,
the organ of state may require proof from that person that public
notice has been given as required.”
(My emphasis.)
The
first respondent cannot merely shift the blame to the Municipality
where it assumed duties on behalf of the municipality.
It
remained Serengeti’s duty to follow the provisions of the
Ordinance.
[23]
The second respondent underplayed its role in the rezoning process
and seemingly blames one individual
for the “mistake”.
This submission is not borne out by the record that shows that the
majority of the council
approved the rezoning. The first
respondent especially relied on this when it stated in its answering
affidavit that the
decision was taken by the Municipality’s
full council and not by particular officials within the
Municipality.
[32]
The Municipality in justifying its action and the rationality thereof
claimed that the decision was taken after a debate
and by all
members.
[33]
[24]
Mr Kemp strongly opposed the submission by Mr Pammenter that it was
one person who had erred.
He relied on the record submitted by
the second respondent which reflects the first respondent’s
response to objections and
its motivation in regard to the rezoning
application.
[34]
The papers reveal that the documentation served before the second
respondent and that its committee members decided in favour
of the
rezoning. The application to rezone was also circulated to
three departments within the Municipality namely ETA,
[35]
Environment and Land Use Management.
[36]
[25]
In
Allpay Consolidated Investment
Holdings (Pty) Ltd and Others v Chief Executive Officer, South
African Social Security Agency and
Others
[37]
the Constitutional Court held that
matters of procedure should not be confused with the result obtained:
“
This
approach to irregularities seems detrimental to important aspects of
the procurement process. First, it undermines the
role
procedural requirements play in ensuring even treatment of all
bidders. Second, it overlooks that the purpose of a fair
process is to ensure the best outcome; the two cannot be severed.
On the approach of the Supreme
Court of Appeal, procedural requirements
are not considered on their own merits, but instead through the lens
of the final outcome.
This conflates the different and separate
questions of unlawfulness and remedy.
If the process leading to the bid’s success was compromised, it
cannot be known with certainty what course the process
might have
taken had procedural requirements be properly observed.”
[38]
(My emphasis.)
Even under the common law the possible blurring of
the distinction between procedure and merit raised concerns that the
two should
not be confused:
“
Procedural
objections are often raised by unmeritorious parties. Judges
may then be tempted to refuse relief on the ground
that a fair
hearing could have made no difference to the result. But in
principle it is vital that the procedure and the
merit should be kept
strictly apart, since otherwise the merits may be prejudged
unfairly.
[39]
(Original
footnotes omitted.)
[26]
In light of the aforegoing I find that the notification to the public
was wholly inadequate and did
not meet the requirements of the
Ordinance. It cannot be regarded on any level as due compliance
or fair process. The
first and second respondent were made
aware of the deficiencies in the notification process but elected to
trivialise it.
[40]
The notices not only lack particularity but in the absence of
informing all concerned created an illusory right.
[41]
Neither of the respondents could convincingly show that the rezoning
was rational or lawful. There is no doubt in my
mind that the
conduct of the respondents regarding the rezoning amounts to
administrative action and that the rezoning process
affected the
legal rights of the applicants in a manner that is neither fair nor
just. The conduct of the respondents also
violated the
principle of legality.
[27] Mr Kemp has argued
that since the first respondent contends substantial compliance with
the Ordinance,
it ought to have demonstrated that it gave notice in
such a way that the applicants had 30 days to object to the intended
rezoning.
In my view a careful analysis of the papers show that
the first respondent had not substantially complied with section
47
bis
of the Ordinance.
[28] Mr Pammenter in
his concession agreed that the failure to meet the requirements as
per the Ordinance
and to inform the applicants adequately led to
unfair administrative action that deprived the applicants of their
rights.
He submitted that the rezoning should be found to be
invalid but claimed that the Municipality should not be penalised for
the
oversight of one employee. He urged this Court to issue the
following order, which he presented in draft:
“
1.
An Order is granted in terms of paragraph 2.2 of the Notice of
Motion.
2.
The application to rezone the property is referred back to the Second
Respondent for
re-consideration with the following directives:
(a)
The Second Respondent is to ensure that proper notice of the
application is given
in accordance with the provisions of Section 74
ter
of Ordinance 29 of 1947;
(b)
The Second Respondent is to make a final decision on the rezoning
application within
5 months of the date of this Order;
3.
(a) The relief sought in terms
of paragraph
2.1 of the Notice of Motion is adjourned
sine die
.
(b)
Any party to these proceedings is entitled to set the matter down for
hearing again
after the Second Respondent has made a decision on the
rezoning application as referred to in paragraph 2(b) above.
(c)
In the event of the matter being so set down for hearing, all parties
may supplement
the papers they have filed in this matter should they
so desire.
4. Costs.”
[29]
I seriously considered the draft order but find it problematic for
the following reasons.
This Court will refer the matter back to
the Municipality to re-consider the application for rezoning, the
very organ of state
that now has an interest to protect i.e. to avoid
liability for the losses suffered by the first respondent should the
structure
be demolished, in part, or in whole. The Municipality
would end up being judge and jury in its own case. I am mindful
of the Constituional Court’s view in
Allpay
[42]
and it is my considered opinion that a just result could be achieved
without leaving the matter in the hands of the second respondent.
Much of what was submitted by the first
respondent in the heads of argument in opposing the suggestion of the
third, fifth and sixth
applicants’ counsel that the question of
an appropriate remedy should be held over pending the decision on the
merits of
the review, is also relevant to the proposed order of the
second respondent. It is necessary to repeat what was submitted
to me:
“
We
submit that such a two stage approach in the present application
would be highly undesirable in that:
25.1 the application papers run
to 873 pages and the record to another 800 odd pages;
25.2 a decision on
the merits of the review will be based on all of this material and
the court’s determination
of remedy, if that arises, will be
made in the same context;
25.3 particularly
because the applicants place must (sic) emphasis on the alleged
improper conduct of the respondents,
references to which pervade the
papers;
25.4 a bifurcated
hearing such as that proposed by the third, fifth and sixth
applicants will thus entail the
unnecessary expense, not to mention
inconvenience, to the court and to all the parties of having to
consider all of this voluminous
material twice;
25.5 more
fundamentally, the approach may delay the ultimate finalisation of
the review in circumstances where
it is manifestly important that all
parties achieve finality as expeditiously as possible.
26.
It is so that the Constitutional Court followed a two stage hearing
in
All Pay
. Apart from the fact that it is the
court of final instance so there is no potential for piecemeal
appeals, there had been
a significant delay between the application
being launched and the appeal to the SCA, and a further delay between
that appeal and
the CC hearing. The factual material in the
affidavits would have been hopelessly out of date and not allowed the
court property
to consider the facts relevant to a fuse and equitable
remedy so the parties were directed to provide factual information.
27.
The present situation is different. All the relevant
information is before the court
and is current as an expedited
hearing has been arranged.
28.
We submit that a piecemeal hearing is most undesirable.”
I agree that a piecemeal approach given the
facts of this matter would be undesirable and time consuming.
Respectfully I do
not see the approach followed by the Court in
Allpay
to
be an approach to be followed in each and every review matter.
Ms Annandale is correct that the present matter is to be
distinguished from
Allpay
and accordingly this review should be finalised on the merits and the
remedial relief.
The Building Plans:
[30]
The first respondent submitted that the applicants’ reliance on
the legality doctrine is
misplaced since all three decisions
exercised by the second respondent fall within the definition of
administrative action in section
1 of PAJA.
[43]
I have dealt with legality
supra
under
rezoning and do not consider it necessary to repeat what was stated
earlier. It is however common cause that the approval
of the
building plans is administrative action
[44]
which falls within the ambit of judicial review of section 6 of
PAJA.
[31]
The approval process of building plans is governed by section 7(1) of
the Building Standards
Act
[45]
(hereinafter referred to as “the Building Act”) which
reads:
“
(1)
If a local authority, having considered a recommendation referred to
in section 6(1)(a) –
(a)
is satisfied that the application in
question complies with the requirements of this Act and any other
applicable law, it shall
grant its approval in respect thereof;
(b)
(i) is not so satisfied; or
(ii) is satisfied that the
building to which the application in question relates –
(aa) is to be erected in such
manner or will be of such nature or appearance that –
(aaa) the area in which it is to be
erected will probably or in fact be disfigured thereby;
(bbb) it will probably or
in fact be unsightly or objectionable;
(ccc) it will probably or
in fact derogate from the value of adjoining or neighbouring
properties;
(bb) will probably or in
fact be dangerous to life or property, such local authority shall
refuse to grant its approval
in respect thereof and give written
reasons for such refusal:
Provided that the local authority shall
grant or refuse, as the case may be, its approval in respect of any
application where the
architectural area of the building to which the
application relates is less than 500 square metres, within a period
of 30 days
after receipt of the application and, where the
architectural area of such building is 500 square metres or larger,
within a period
of 60 days after receipt of the application.”
In
Turnbull-Jackson
v Hibiscus Coast supra
the second
respondent made written submissions to the Constitutional Court in
respect of the legal interpretation and application
of section 7(1)
of the Building Act, the submission reads:
“
[T]he eThekwini Municipality submits:
(a)
If a municipality must be satisfied that
none of the ‘undesirable outcomes’ will be triggered by
the proposed building
that will result in a significant increase in
the number of refusals. Moreover, this is not the test
envisaged in s (1)(
b
),
which is whether the is satisfied that the undesirable outcome will
probably or in fact arise.
(b)
In the context of s 7 the word ‘satisfied’
means just that, not ‘reasonably satisfied’. The
municipality
must make the enquiry, at the end of which it is either
satisfied or not. That this is what the legislature
contemplated
is borne out by the way in which it changed the test
when dealing with the more esoteric concepts of disfigurement,
unsightliness
or objectionableness of buildings, and derogation from
their value.
(c)
A high level of certainty or confidence is
required in order to be ‘satisfied’ both with respect to
the material canvassed
in subs (1)(
a
)
and that canvassed in subs (1)(
b
).
(d)
It would be extremely difficult in many
cases for a municipality to be ‘satisfied’ that, for
instance, the erection
of a building
would
not
derogate from the value of
neighbouring properties (or even that this would probably not occur).
(e)
If an approval can be set aside by a court
merely on the ground that as a matter of fact the proposed building
will devalue neighbouring
properties, then the decision on the
‘merits’ of the plans is ultimately that of the court,
and not of the municipality.
This creates a situation where
appeal (as opposed to review) is available as a remedy for someone
who objects to the approval of
building plans. It would embroil
municipalities in numerous and expensive lawsuits involving,
presumably, expert evidence
on the merits of its decisions on the
esoteric factors of s 7(1)(
b
)(ii).
The price to be paid, insofar as the efficient performance of a
municipality’s duties is concerned, will be particularly
high.”
[46]
The Municipality and
its building control officer should have adopted a stringent
consideration of whether the building plans met
the requirements of
section 7(1)(b) of the Building Act. The second respondent
conceded in a supplementary affidavit that
the structure would have
been the first building in the Berea area based on a GR5 zoning.
Presently the Coastlands Hotel
meets GR3 zoning. The
Municipality failed to give reasons as to how the conclusion was
reached in respect of the deviation
plans and why it met the
requirements of section 7(1)(b).
[47]
[32]
The first respondent has also argued that applicants need to
demonstrate a material irregularity.
The Constitutional Court
in
Allpay Consolidated Investment
Holdings (Pty) Ltd and Others v Chief Executive Officer, South
African Social Security Agency and
Others
[48]
dealt with materiality as follows:
“
[28]
Under the Constitution there is no reason to conflate procedure and
merit. The proper approach is to
establish, factually, whether
an irregularity occurred. Then the irregularity must be
legally
evaluated
to determine whether it
amounts to a ground of review under PAJA. This legal evaluation
must, where appropriate,
take into
account the materiality of any deviance from legal requirements, by
linking the question of compliance to the purpose
of the provision,
before concluding that a review ground under PAJA has been
established
.
[29]
Once that is done, the potential practical difficulties that may flow
from declaring the administrative
action constitutionally invalid
must be dealt with under the just and equitable remedies provided for
by the Constitution and PAJA.
Indeed, it may often be
inequitable to require the rerunning of the flawed tender process if
it can be confidently predicted that
the result will be the
same.”
[49]
(My emphasis.)
See paragraph 58:
“
The
materiality of irregularities is determined primarily by assessing
whether the purposes the tender requirements serve have been
substantively achieved.”
[50]
The
Court also dealt with the judicial task of a court faced with a
challenge of validity and held:
“
Doing
this kind of exercise is no different from any other assessment to
determine whether administrative action is valid under
PAJA. In
challenging the validity of administrative action an aggrieved party
may rely on any number of alleged irregularities
in the
administrative process. These alleged irregularities are
presented as evidence to establish that any one or more of
the
grounds of review under PAJA may exist.
The
judicial task is to assess whether this evidence justifies the
conclusion that any one or more of the review grounds do in fact
exist.
”
[51]
(My emphasis.)
I have
found that the second respondent did not have the power to rezone
because of its failure to notify the applicants in accordance
with
the Ordinance. The deviation plan cannot be separated from the
GR5 zoning, since it was only after the rezoning that
the deviation
plan could be approved and the 9-storey structure be erected.
It has not been shown that the second respondent
had satisfied itself
that none of the undesirable outcomes would be triggered as envisaged
by section 7(1) of the Act.
[33] In
Lester
v Ndlambe Municipality and Another
[52]
the SCA distinguished between neighbour law and public law as
follows:
“
It is easy to understand
why neighbour law, which is premised considerations of fairness,
equity and justice would afford courts
a discretion on whether to
order removal of the offending structure or whether to award
damages. But it seems to me that
public law remedy such as a
demolition order in terms of section 21 is a different matter
altogether. Here it is common cause
that the dwelling is an
illegal structure and not a mere encroachment on a neighbour’s
property. Moreover, as stated,
it constitutes a criminal
offence under section 4(4) of the Act.”
[34] Has the jurisdictional basis for a
demolition order been established?
The present building
is based on a GR5 zoning, which this Court has found to have been
unlawful and invalid. Without a GR5
zoning the first respondent
has erected an illegal structure because the plan authorising the
building could not have been authorised
in terms of a GR1 zoning
which permits for a building no higher than four storeys. It is
common cause that the first respondent
submitted plans in accordance
with the GR1 zoning and that no serious challenge was launched
against those plans. Ms Annandale
has argued that a finding of
invalidity of the rezoning does not necessarily lead to a finding of
the building plans being invalidated.
She relied on
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[53]
in support of her submissions that the
conduct of the first respondent was lawful and valid. I
understand this submission
to be based on the presumption of
regularity. If the applicants did not apply for a review of the
rezoning and the plans,
then the consequence, i.e. the plans that
were authorised on GR5 zoning, could have been recognised as valid
till set aside.
In casu
however, the review is concerned with the legality of the rezoning
and the authorisation of the plans. On these facts this
matter
is to be distinguished from
Oudekraal
.
It was also contended on behalf of the first respondent that
Lester
is not applicable and that this Court should not order any
demolition.
[35]
It appears that Mr Kemp is in agreement with this interpretation of
Oudekraal
since
he contended in his reply that
Oudekraal
should be distinguished in light of
Camps
Bay Ratepayers and Residents’ Association v Harrison
[54]
para 62:
“
During
argument counsel for the applicants also seemed to make something of
the fact that the September 2007 plans were presented
as a rider to
the February 2005 plans, and that the former therefore depended on
the validity of the latter I accept that that
is so. The
conclusion, that an attack on the former must consequently be
understood to be an automatic attack on the latter,
however, is a
non
sequitur
. As was explained in
Oudekraal Estate (Pty) Ltd v City of
Cape Town and Others
, administrative
decisions are often built on the supposition that previous decisions
were validly taken and, unless that previous
decision is challenged
and set aside by a competent court, its substantive validity is
accepted as a fact. Whether or not
it was indeed valid is of no
consequence. Applied to the present facts this means that the
approval of the February 2005
plans must be accepted as a fact.
If the footprint issue was part of that approval, that decision must
likewise be accepted
as a fact, unless and until it is validly
challenged and set aside.”
[55]
[36]
I understand
Lester
to
direct that once a court has made a finding that a structure is
illegal, the jurisdictional basis for a demolition has been proved.
Once a ground of review under PAJA has been established then this
Court has to deal with its consequence. In terms of section
172(1)(a) of the Constitution the administrative action by the
Municipality has to be declared unlawful.
[56]
[37]
It is found that the second respondent’s approval (12 December
2011) in terms of section 47
bis
of the Ordinance for rezoning
of the property from GR1 to GR5 is unlawful and invalid, the approval
of the building plan (the deviation
plan) in respect of the
development is unlawful and invalid. The second respondent
failed to comply with just administrative
action, accordingly the
decisions relating to the rezoning and the approval of building plans
based on the GR5 rezoning are hereby
reviewed and set aside.
[38]
All of the parties addressed me on the relief sought including
whether it is open to this Court to
issue a demolition order or any
other order. Having considered all of the submissions and the
papers I am of the view that
the relief should be in line with the
findings. What remains valid is that part of the building that
was built in accordance
with the GR1 zoning and the plan approved by
the second respondent on 3 August 2010. There is an obligation
on this Court
to uphold the law. This Court by the operation of
the legality doctrine is duty bound to order that the part of the
structure
that is illegal be demolished.
[39]
In light of this finding this Court considers the following relief as
just and equitable and it is
ordered that:
1.
The development on the property situate at
317 Currie Road that exceeds GR1 zoning be demolished.
2.
The respondents to pay the costs of this
application, jointly and severally, such costs to include the costs
of two counsel where
so employed.
STEYN J
Application heard on : 14 May 2015
Counsel for the 1
st
, 2
nd
& 4
th
Applicants : Mr LGF Putter SC; Mr TG Madonsela
Instructed by : Saley Laher Hoosen Inc,
Counsel for the 3
rd
, 5
th
& 6
th
Applicants : Mr KJ Kemp SC; Mr HS Gani
Instructed by : Theyagaraj Chetty Attorneys
Counsel for the 1
st
Respondent : Ms A Annandale SC; Mr
M Swain
Instructed by : Garlicke & Bousfield
Counsel for the 2
nd
Respondent : Mr CJ Pammenter SC
Instructed by : Livingston Leandy
Judgment handed down on : 29 June 2015
[1]
On 12
December 2011.
[2]
The word
“Serengeti” comes from the Maasai language meaning
“Endless Plains” – See askville.amazon.com
accessed on 16/6/2015.
[3]
See
photographs at 793 to 811 of the papers.
[4]
The
Constitution of the Republic of South Africa, 1996.
[5]
2006 (2) SA
311 (CC).
[6]
See section
165(4) of the Constitution reads:
“
Organs
of State, through legislative and other measures,
must
assist
and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.”
(My emphasis.)
[7]
Act 3 of
2000.
[8]
See section
33 of the Constitution that reads: “
Just
administrative action
.
–
(1) Everyone
has the right to administrative action that is lawful, reasonable
and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3)
National legislation must be enacted to give effect to these rights,
and must –
(a)
provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b)
impost a duty on the state to give effect to the rights in
subsections (1) and (2); and
(c)
promote an efficient administration.”
[9]
[2014]
SAGPJHC 51 (31 March 2014).
[10]
Section 6(2)
reads: “A court or tribunal has the power to judicially
review an administrative action if –
(a)
The
administrator who took it –
(i)
was
not authorised to do so by the empowering provision;
(ii)
acted
under a delegation of power which was not authorised by the
empowering provision; or
(iii)
was
biased or reasonably suspected of bias;
(b)
a
mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c)
the
action was procedurally unfair;
(d)
the
action was materially influenced by an error of law;
(e)
the
action was taken –
(i)
for
a reason not authorised by the empowering provision;
(ii)
For
an ulterior purpose or motive;
(iii)
Because
irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv)
Because
of the unauthorised or unwarranted dictates of another person or
body;
(v)
In
bad faith; or
(vi)
arbitrarily
or capriciously;
(f)
the
action itself –
(i)
contravenes
a law or is not authorised by the empowering provision; or
(ii)
is
not rationally connected to –
(aa) the
purpose for which it was taken;
(bb) the
purpose of the empowering provisions;
(cc) the
information before the administrator; or
(dd) the
reasons given for it by the administrator;
(g)
the
action concerned consists of a failure to take a decision;
(h)
the
exercise of the power or the performance of the function authorised
by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power or
performed
the function; or
(i)
the
action is otherwise unconstitutional or unlawful.”
[11]
Also see
Brashville
Properties 5, (Pty) Ltd v Colmant
[11]
the
SCA referred to
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[11]
and held that:
“
Administrative
action means any decision of an administrative nature made …
under an empowering provision [and] taken …
by an organ of
State, when exercising a power in terms of the Constitution or a
provincial constitution, or exercising a public
power or performing
a public function in terms of any legislation, or [taken by] a
natural or juristic person, other than an
organ of State, when
exercising a public power or performing a public function in terms
of an empowering provision, which adversely
affects the rights of
any person and which has a direct, external legal effect …”
[12]
See para 85
at 282.
[13]
The
applicants could hardly react or challenge the proceedings if they
were not supplied with the information regarding the rezoning
and
the approval of plans based on the rezoning. (See
WeenenTransitional
Local Council v Van Dyk
2002 (4) SA 653
(SCA) paras 13-17.)
[14]
2002 (2) SA
589 (N).
[15]
Supra
609F-610B.
[16]
2014 (1) SA
521 (CC).
[17]
See
Judicial
Service Commission v Cape Bar Council
2013 (1) SA 170
(SCA) at para 21: “As Ngcobo CJ said in
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
2010 (3) SA 293
(CC)
(2010 (5) BCLR 391
;
[2010] ZACC 4)
para 49, it
has by now become axiomatic that the doctrine or principle of
legality is an aspect of the rule of law itself which
governs the
exercise of all public power, as opposed to the narrow realm of
administrative action only. The fundamental
idea expressed by
the doctrine is that the exercise of public power is only legitimate
when lawful (see
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolital Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) para 56). By way of example, it was held in
Fedsure
,
on the basis of the legality principle, that a body exercising
public power has to act within the powers lawfully conferred
upon
it. And in
Pharmaceutical
Manufacturers Association of SA and Another; In re Ex parte
President of South Africa and Others
2000 (2) SA 674
(CC)
(2000 (3) BCLR 241
;
[2000] ZACC 1)
(para 20) it
was held that the principle of legality also requires that the
exercise of public power should not be arbitrary
or irrational (see
also
Albutt
supra para 49 and the cases cited in fn 43).”
[18]
The site is
Portion 1 of 2204 – Portion 1 of 2230 Berea North, also
referred to as 317 Currie Road, Durban.
[19]
Permission
to demolish was granted on 12 January 2009 by the Development
Planning, Environment and Management Unit. (See
page 202.)
[20]
Deviation
generally means a deviation from the original, in this matter,
however, the first respondent’s deviation plan
is a plan that
in truth substitutes the earlier approved plan.
[21]
See the
first applicant’s supplementary affidavit at 199 para 52.
[22]
1990 (4) SA
32
(D and CLD).
[23]
Supra
at 38E-G.
[24]
2006 (6) SA
416 (CC).
[25]
Supra
at 488E-G.
[26]
See
answering affidavit, at 420, para 141.
[27]
See
supra
,
422, para 149.
[28]
See
supra
para 14 of the notice.
[29]
See page 422
of the papers.
[30]
See page 421
para 147.
[31]
For examples
see the record pages 70 and 75.
[32]
See 428,
para 169.
[33]
See second
respondent’s affidavit para 43.
[34]
See record
page 237 onwards.
[35]
Ethekweni
Transport Authority.
[36]
See record
page 177
et
seq.
[37]
2014 (1) SA
604
(CC) hereinafter referred to as the ‘
Allpay
merits decision’.
[38]
Supra
at para 24.
[39]
Allpay
merits
supra
para 26.
[40]
See pages
242 and 243 of Volume 1 of the record filed by the second respondent
and the first respondent’s response thereto.
[41]
See
Heatherdale
Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and
Another
1980 (3) SA 478
(T) at 491G-H.
[42]
Allpay
merits
judgment.
[43]
Section 1
reads: Definitions – In this Act, unless the context indicates
otherwise-
“
administrative
action” means any decision taken, or any failure to take a
decision, by –
(a)
an
organ of state, when –
(i)
exercising
a power in terms of the Constitution or a provincial constitution;
or
(ii)
exercising
a public power or performing a public function in terms of any
legislation; or
(b)
a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in
terms
of an empowering provision,
which adversely
affects the rights of any person and which has a direct, external
legal effect, but does not include –
(aa) the
executive powers or functions of the National Executive, including
the powers or functions referred to in sections
79(1) and (4),
84(2)(a), (b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b), (c),
(d) and (e), 91(2), (3), (4) and (5), 92(3),
93, 97, 98, 99 and 100
of the Constitution;
(bb) the
executive powers or functions of the Provincial Executive, including
the powers or functions referred to in sections
121(1) and (2),
125(2)(d), (e) and (f), 126, 127(2), 132(2), 133(3)(b), 137, 138,
139 and 145(1) of the Constitution;
(cc) the
executive powers or functions of a municipal council;
(dd) the
legislative functions of Parliament, a provincial legislature or a
municipal council;
(ee) the
judicial functions of a judicial officer of a court referred to in
section 166 of the Constitution or of a Special
Tribunal established
under section 2 of the Special Investigating Units and Special
tribunals Act, 1996 (Act No. 74 of 1996),
and the judicial functions
of a traditional leader under customary law or any other law;
(ff)
a decision to institute or continue a prosecution;
(gg) a
decision relating to any aspect regarding the nomination, selection,
or appointment of a judicial official or any
other person, by the
Judicial Service Commission in terms of any law;
…
(hh) any
decision taken, or failure to take a decision, in terms of any
provision of the
Promotion of Access to Information Act, 2000
; or
(iii)
any
decision taken, or failure to take a decision, in terms of
section
4(1)
;”
[44]
See
Walele
v City of Cape Town and Others
[2008] ZACC 11
;
2008
(6) SA 129
(CC) para 27 and
Brashville
supra
para
12.
[45]
Act 103 of
1977.
[46]
Ibid
at 617 fn 105.
[47]
See record
Vol 2 page 46 for the plans submission; page 69 for the approval of
the Elevation Department and pages 70-71 for municipal
approval.
[48]
2014 (1) SA
604
(CC).
[49]
Supra
at 616a-c.
[50]
Supra
at 626.
[51]
Supra
at
622c-d.
[52]
(2014) 1 All
SA 402 (SCA).
[53]
2004 (6) SA
222 (SCA).
[54]
2011 (4) SA
42 (CC).
[55]
Supra
at 67F-H.
[56]
See
All
pay supra
at para 27.