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[2014] ZAGPPHC 443
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Rapulo Investments CC v Minister of Agriculture, Forestry and Fisheries and Another (65007/2012) [2014] ZAGPPHC 443 (7 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(GAUTENG
DIVISION, PRETORIA
)
CASE NO: 65007/2012
DATE: 7 February
2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER
BETWEEN
RAPULO INVESTMENTS
CC
......................................................................................................
APPLICANT
AND
MINISTER OF
AGRICULTURE,
FORESTRY
...................................................................
1
st
RESPONDENT
AND FISHERIES
DIRECTOR GENERAL,
DEPARTMENT
OF
....................................................................
2
nd
RESPONDENT
AGRICULTURE,
FORESTRY AND FISHERIES
JUDGMENT
PR1NSLOO. J
[1] The applicant
applies for the reviewing and setting aside of the decision by the
first respondent to refuse an application by
the applicant for the
subdivision of its property known as Portion 11 (a portion of Portion
1) of the farm Rietvlei No 375 JT,
province of Mpumalanga ("the
property") which application was launched in terms of the
Subdivision of Agricultural Land
Act, Act 70 of 1970 ("the
Act").
[2] Prayers 2 and 3
of the notice of motion are, respectively, "for an order
directing the first respondent to grant the application
for the
aforesaid subdivision" and "for an order directing the
second respondent to give effect to the granting of the
application
for subdivision".
[3]
After some debate with Mr Maritz for the applicant, he conceded that
a proper case was not made out on the papers for the relief
sought in
prayers 2 and 3. I am.
inter
alia
.
of the view that no case was pleaded for the existence of exceptional
circumstances for this court to substitute the decision
of the
Minister as intended by the provisions of section 8{ l)(c)(ii) of the
Promotion of Administrative Justice Act. Act 3 of
2000 ("PAJA").
There is also a
prayer for costs to be paid on a punitive scale by the first
respondent and by both respondents, jointly and severally
if the
second respondent opposes the application.
[4] The application
is opposed. Ms Kooverjic appeared for the respondents.
Some remarks
about the Act and the relevant provisions thereof
[5] The long title
of the Act reads "to control the subdivision and, in connection
therewith, the use of agricultural land".
It is common cause
that the property is "agricultural land" as defined in the
Act.
[6] Section 3 reads:
"3.
Prohibition of
ccrtain actions regarding agricultural land. -
Subject to the
provisions of section 2 -
(a) agricultural
land shall not be subdivided;
(b) ...
(c)...
(d) ...
(e)...
(f)
...
(g)...
unless the Minister
has consented in writing."
Section 2 is not
applicable for present purposes. It deals with actions which are
excluded from application of the Act and concerns
mainly state
property.
[7] Section 4 reads:
"4.
Application for
consent of Minister, and imposition, enforcement or withdrawal of
conditions by him. -
(1) (a) Any
application for the consent of the Minister for the purposes of
section 3 shall-
(i) in the case
where any Act referred to in paragraphs (a) to (e) of that section is
contemplated, be made by the owner of the
land concerned;
(ii) be lodged in
such place and in such form and be accompanied by such plans,
documents and information as may be determined by
the Minister.
(b)
For the purposes of paragraph (a) 'owner' shall have the meaning
assigned to it by section 102 of the Deeds Registries Act.
1937 (Act
no 47 of 1937). (
Mv
note
:
it is common cause that the applicant is the registered owner of the
property.)
(2) The Minister may
in his discretion refuse or-
(a) on such
conditions, including conditions as to the purpose for or manner in
which the land in question may be used, as he deems
fit. grant any
such application;
(b) if he is
satisfied that the land in question is not to be used for
agricultural purposes and after consultation with the Administrator
of the province in which such land is situated, on such conditions as
such Administrator may determine in regard to the purpose
for or
manner in which such land may be used, grant any such application.
(3) The Minister or,
in the case of a condition referred to in subsection (2)(b), the
Administrator concerned may enforce any such
condition.
(4) The Minister or,
in the case of a condition referred to in subsection (2)(b), the
Administrator concerned after consultation
with the Minister may vary
or withdraw any such condition and, if it has been registered against
the title deed of the land, the
Minister may direct that it be varied
or cancelled."
[8] Section 7 reads:
"7.
Entry upon and
investigation on land. -
The
Minister may either generally or in any particular case authorise any
person to enter upon any land at all reasonable times
and to carry
out thereon such investigations or to perform thereon such other acts
as are necessary or expedient for achieving
the objects of the Act."
[9] Section 8 reads:
"8.
Delegation of powers. -
(1)
The Minister may delegate to any officer in the Public Service any
power conferred upon him by this Act, excluding a power referred
to
in section 10,
but
shall not be
divested
of anv power delegated by him, and may vary or
withdraw
any decision of any such officer upon application
by
a person affected and feeling aggrieved by such
decision.
(Emphasis
added.)
(2) ...
(3) ..."
[10] Of some
importance for purposes of deciding this matter, is. in my view, to
be alive to the purpose of the Act. This question
has beeen
considered by our courts on more than one occasion.
In
Van der Bijl and
others
v
Lonw and another
1974
2 SA 493
(CPD) the following is said at 499C-E:
"The
purpose of the Act is manifest: its object is to prevent the
sub-division of
economic
units
of farming land into non-viable (
uneconomic
)
sub-units or smaller units ... and for this reason parliament has
very wisely put a stop to unrestricted fragmentation of
arable
land.
The Act, in the interest of national welfare, effects a drastic
curtailment of previous common-law rights of land-owners in
a certain
category to carve their properties into units as small as they
choose, and is indisputably one
of the wisest pieces
of legislation on the statute book ... the broader economic
consideration that inevitably arises when farming
land is cut up into
small units, namely, can the new units survive in their diminished
form and provide a reasonable living for
their owners?"
(Emphasis added.)
In
Wary Holdings
(Pty) Ltd v Stalwo (Pty) Ltd and another
2009
I SA 337 (CC) at 343B-D the following is said:
"The
essential purpose of the Agricultural Land Act has been identified as
a measure by which the legislature sought in the
national interest to
prevent the fragmentation of agricultural land into small
uneconomic
units
...
it imposed the requirement of the Minister's written consent as a
prerequisite for subdivision, quite evidently to permit the
Minister
to decline any proposed subdivision which would have the unwanted
result of
uneconomic
fragmentation."
(Emphasis added.)
More about the
property
[11] The property is
situated in the Machadodorp district, about ten kilometres in the
direction of Badplaas on the R36 road.
[12] The applicant
is the registered owner of the property in terms of Deed of Transfer
no T3443/2008. There are no conditions registered
against this
property that could negatively affect the subdivision application and
no mortgage bond registered against the property
and no question of
mineral rights is applicable.
[13] The property
measures 107.0743 hectares ("ha"). The sources that I
consulted reveal that a hectare is 10 000m
2
or an area
100m x 100m. According to undisputed evidence emerging from the
papers, also to be found on the property are a wet-land
area of 21
ha. Gum-trees of 3.8ha, Black wattle of 4ha, derelict buildings and
kraals of 3ha and a cementary of I ha leaving only
some 74ha of
agricultural land, according to the submissions made on behalf of the
applicant in the papers. A further deduction
from this should be in
the form of the 10m peripheral servitude requirement of the Veld and
Forest Act. It is submitted on behalf
of the applicant that it is a
generally accepted farming practice in that particular area that
about lOha are required, for grazing
purposes, for each head of
cattle. That means that the farm Rietvlei can at most sustain cattle
fanning of about five to seven
head of cattle, "hardly enough to
improve food security in South Africa", to use the words of the
deponent to the replying
affidavit.
[14]
When the two members of the plaintiff first identified the property,
they commissioned a soil and agricultural potential survey
by Dr J A
van der Waals who has a Ph.D in soil science and is a member of the
Soil Science Society of South Africa as well as the
Soil Science
Society of America. He is also an accredited member of the South
African Soil Surveyors Organisation. Dr Van der Waals
prepared a
comprehensive report which is dated 13 June 2007. I
quote
some relevant extracts from his conclusions:
"5.
Agricultural
potential
5.1 Soil
potential linked to current land use and status
Due to the dominance
of rocky and shallow soils on the site the whole site is considered
to be of low agricultural potential.
5.2
Possible crop ty
pes according to the soil type
Even though the
rainfall in the area should be adequate for a range of crops the
soils on the site are not. This is due to the rocky
and shallow
nature of the soils as well as the significant limitations these pose
to tillage practices.
5.3
Cost-benefit
analysis
Due to the low
agricultural potential of the site a cost-benefit analysis will not
be conducted.
5.4
Water availability,
source and quantity
The presence and
status of boreholes is not known for the site. Due to the
restrictions posed by the soils the site is not considered
to be
suitable for irrigated agricultural practices.
5.6
Economic viability
Due to the low
agricultural potential of the land the survey site is not considered
to be an economically viable crop production
unit.
5.7
Surrounding
developments and activities
The site is borded
by farm land and rangeland on all sides. The surrounding farmland
mostly suffers the same soil restrictions as
the survey site.
6. Conclusion on
agricultural potential of the area
The agricultural
potential of the survey site is considered to be low due to the
dominance of shallow and rocky soils derived mainly
from shale. Small
pockets of deeper soils that occur are restricted in their occurrence
and do not contribute to an increase in
the agricultural potential of
the site."
[15]
As to the situation on surrounding farms, bordering on the property,
the deponent on behalf of the applicant did some research
and made
appropriate submissions in the founding affidavit, which were not
disputed in the opposing affidavit. He did so because
the so-called
land use advisor of the department. Ms D D Cindi, who was instructed
to visit the property after an appeal was noted
against an earlier
refusal of the subdivision application, made some allegations in her
report on which she evidently heavily relied
for her recommendation
that the appeal against the refusal should be turned down by the
minister. She.
inter
alia
.
said the following:
"6.4
The surrounding properties are being utilised for agriculture
(grazing, trout farming) with just the opposite farm having
some
Eskom building a new
;
power
station
(sic)."
And -
"6.9 After the
site inspection it was clear that the area is surrounded by
agricultural activities and the proposed development
will change the
character of the surrounding area and will lead to a loss of
agricultural grazing land."
The undisputed
factual statements of the deponent on behalf of the applicant in the
founding affidavit are the following:
"I have
established the following facts: the farm to the south of the
property belongs to the Cloete family. There is no agricultural
activity on the farm as the owners work at the nearby chrome factory.
The farm to the north of the property has a holiday cabin
for trout
fishermen. Escom has now transversed the farm with power cables. An
Escom substation has been erected and major earthmoving
had to be
done. No agriculture activities arc visible on this farm. The farm to
the east of the property consists mainly of wet-land
and there is
limited agricultural activity. In this respect I would like to draw
the honourable court's attention to the report
by Dr Van der VVaals
... where he states: The surrounding farm land mostly suffers the
same soil restrictions as the survey site.'"
Brief
background notes, and details of other authorisations obtained bv the
applicant from
provincial
and local governments
[16]
After studying the report of Dr Van der Waals the members of the
applicant fell confident that they could get permission from
the
first respondent to subdivide the property in order to create a low
density estate consisting of 21 free-standing accommodation
units
where the owners could follow a country life style of,
inter
alia,
keeping
horses, doing trout fishing and cultivating roses. They were aware of
the restrictions on the subdivision of agricultural
land and had also
taken note of the Department of Agriculture's "National policy
on the preservation of high potential and
unique agricultural land
June 2006". A copy of this policy they attached to their
founding affidavit. The policy deals with
the protection of "high
potential agricultural land” which is defined in the policy as
well as "unique agricultural
land", also defined. It does
not deal with the protection of a relatively small piece of
agricultural land which is hardly
fit for any agricultural activity.
Against this background- the applicant bought the property in
November 2007 and it was registered
in the name of the applicant in
2008. A company of town and regional planners of Pretoria.
Plankonsult Inc was instructed to lodge
the necessary applications
with the relevant authorities on behalf of the applicant for the
purpose of the eventual subdivision.
[17] Authorisation
was granted by the Mpumalanga Department of Agriculture and Land
Administration. Directorate: Environmental Impact
Management, in
terms of the National Environmental Management Act 107 of 1998
("NEMA") for resort development for 21
sectional title
stands on the property. This authorisation was granted as far back as
27 June 2008. It was granted to "Horses,
Trout and Roses"
which is the trade name under which the applicant intends to market
the development of the property. The
environmental authorisation was
granted "for the proposed resort development of 21 sectional
title stands, administrative
offices of 100m
2
, place for
refreshment of 250m
:
, convenient store of 100m
2
,
conference facilities of 250m
2
, ablution facilities. 22
horse stable facilities and accommodation facilities for staff
members on Portion 1 1 (a portion of Portion
1) of the farm Rietvlei
375 JT Machadodorp, Mpumalanga". The findings made, in
conclusion, by this provincial authority are:
"(a) The
proposed development will take place on a previously cultivated land;
therefore there is no fauna and flora that will
be negatively
affected by the proposed development.
(b) No significant
detrimental environmental impacts are anticipated, should the
mitigation measures stipulated in the basic assessment
report and
conditions of this environmental authorisation be implemented and
adhered to."
It is submitted by
the applicant, correctly in my view, that in coming to these findings
the provincial decision-maker probably
considered the agricultural
potential of the property because agriculture is an important element
that impacts on the environment.
[18]
On 5 January 2009 the Nkangala District Municipality approved the
subdivision of the property in terms of the Division of Land
Ordinance 20 of 1986 of the former Transvaal province. It is again
argued, in this regard, on behalf of the applicant that the
municipality would also have considered the agricultural potential of
the property before granting the approval. The approval was
granted
on condition,
inter
alia
,
that consent for subdivision also be obtained from the national
department of agriculture (the respondents). Nkangala noted the
subdivision application lodged on behalf of the applicant by the town
planners Plankonsult, and resolved "that the subdivision
of
Portion 11 ... be approved ..." subject to certain conditions.
The resolution recorded that the farm Rietvlei 375 JT is
to be
subdivided into 24 separate portions as per the attached proposed
diagram lodged by the town planners.
Although
this authority (and others to which reference will still be made) was
noted and recognised in a "ministerial submission"
placed
before the first respondent by senior members of the department with
a recommendation to the Minister not to authorise the
subdivision, I
could find no indication in the papers that this authority for
subdivision which was granted, as well as business
rights that were
granted (sec later references) and the environmental authorisation in
terms of NEMA,
supra
,
granted at provincial level, were ever discussed with the local and
provincial authorities before the national department (respondents)
decided to refuse the subdivision. In this regard it is argued by the
applicant that the fact that one sphere of government granted
consent
for the subdivision, for example, and another sphere refused consent
for the subdivision in respect of the same property
is evidence that
there was no co-operation between the various spheres of government
as required by the provisions of chapter 3
of the Constitution, 1996,
and, more particularly, section 41 thereof It was argued that, to
this extent, the decision by the first
respondent was
unconstitutional. In a proper case, a decision by an administrator
that is unconstitutional, can be set aside on
review in terms of
section 6(2)(i) of PAJA. This is one of a number of review' grounds,
as codified in section 6 of PAJA, relied
upon by the applicant in
support of this review application.
[19] On 8 July 2009
the municipal manager of the Emakazeni local municipality wrote to
the "Department of Agriculture and Land
Admin" of
Nelspruit. noting the granting of the subdivision by "the
municipality" which is. presumably, a reference
to Nkangala
district municipality, and recording that "in light of the above
the municipality supports the business rights
sought by the applicant
provided that the conditions mentioned above are met".
[20] On 12 November
2009 the Director: Land Administration of the Mpumalanga Department
of Agriculture. Rural Development and Land
Administration, wrote to
Plankonsult regarding its "application for business rights in
terms of section 6(1) read with section
8(1 )(a) of the Physical
Planning Act, 1967 (Act 88 of 1967), to be read with section 36 of
the Physical Planning Act. 1991 on
Portion I! (a portion of Portion
1) of the farm Rietvlei no 375 JT" and recorded that the MEC for
this department granted
approval in terms of those sections of the
two planning Acts for the business rights on Portion 11 and stating
that the development
is to be restricted to the following:
"(a) 21
free-standing accommodation units (250m
2
each);
(b) central facility
with the following facilities:
administration
office (100m
2
)
place of
refreshment (250m
2
)
convenience store
(100m
2
)
conference
facilities
ablution facilities
(c) 22 horse stable
facilities with related facilities
(d) accommodation
facilities for staff members."
On the same day; the
same director of land administration also issued a permit by his
department with number DAL A 15/3/3/ i /13
[ 10 J for the use of the
land for the purposes quoted above.
[21] The
conclusionary remarks to be found at the end of the long approval
letter read that the application is recommended (and
obviously later
granted by the MLC) due to the following reasons:
"the
application is situated on low agriculture potential soils which can
only be used for grazing purposes and due to the
small extentof the
property the application area does not qualify as an economical unit
the development
adds value to the application area."
[22] The last
authority obtained by the applicant (through Plankonsult) came,
rather astonishingly, from the national department
itself (the
department of the respondents) on 2 March 2011.
It is a letter
written to Plankonsult on the letter-head of the Department of
Agriculture. Forestry and Fisheries by the "delegate
of the
Minister: Land Use and Soil Management". There is no reference
on the letter and the author is not named. The signature
cannot be
deciphered. The letter is addressed to Plankonsult under the heading
"Proposed business rights: on Portion 1 I (portion
of Portion 1)
of the farm Rietvlei no 375 NO - JT; Mpumalanga province". The
relevant paragraph of the short letter reads
as follows:
"With reference
to the abovementioned matter I wish to inform you that this
Department has no objection to the proposed business
rights for 21
free-standing accommodation units on 0.53ha on condition that the
accommodation will be limited to a maximum of three
consecutive
months and for central facilities on 0.11 ha only."
The
areas indicated are roughly in line with those mentioned by the
Mpumalanga Department of Agriculture. Rural Development and
Land
Administration,
supra
.
namely for 21 free-standing accommodation units of 250m
2
each
and central facilities including an administration office, place of
refreshment, convenience store, conference facilities and
ablution
facilities followed by 22 horse stable facilities with related
facilities and accommodation facilities for staff members.
What makes the
granting of these business rights by the national department
(respondents) more surprising is the fact that it came
about nine
months after the subdivision application had already been refused.
The refusal was in the form of a letter of 2 June
2010 bv another
Delegate of the Minister: Land Use and Soil Management (again, there
is no reference number or name on the letter
and the signature is not
legible, but the author is identified in the opposing papers as Ms
Nompumelelo Claribel Ntlokvvana). The
granting of the business rights
also came about seven months after the applicant appealed to the
Minister (first respondent) to
withdraw the decision of Ms Ntlokvvana
in terms of section 8 of the Act.
I will revert, in
greater detail, to Ms Ntlokwana's refusal and the section 8 appeal.
But it is worth mentioning that when the applicant
recorded this
somewhat belated granting of business rights by the respondents in
the founding affidavit, the following answer was
offered in the
opposing affidavit:
“
102.
Ad paragraph 21
I confirm that the
respondent had granted the applicant business rights. This is
distinct from the subdivision of land rights
103. Due
consideration was taken of the fact that the land was unable to
produce agricultural products (crop production) due to
its lower
potential but other viable activities could benefit the land. The
business rights were granted on the basis that it would
boost the
economic viability of the land."
In
my view, this is a significant statement in the context of the
dispute between the parties. It amounts to an acknowledgement
that
the property is not fit to be used for agricultural purposes. This is
also in line with the findings of Dr Van der Waals and
the
conclusions which the land administration official of the Mpumalanga
Agricultural Department came to, quoted above, that the
property does
not qualify as an economical unit and the proposed development would
add value to the "application area".
It is also in harmony
with the findings,
supra
,
of the Mpumalanga Agriculture Department when it granted the
environmental authorisation to which I have referred. It means that
the respondents acknowledge, that where the property cannot be used
for agricultural purposes, it may be used for distinctly
non-agricuitural
pursuits such as equestrian activities, conferences
and residence in 21 free-standing units on about 250m
2
each,
whether as part of a subdivision or not. It also means, in my view,
that the reasons advanced by the respondents for refusing
the
subdivision, which 1 will deal with, cannot be said to be aimed at
furthering the purpose of the Act which, as I have pointed
out by
reference to decided cases, has as "its object to prevent the
subdivision of economic units of farming land into non-viable
(uneconomic) sub-units or smaller units”. On the respondents'
own admission, there is no question here of subdividing an
"economic
unit". It is a question of subdividing an uneconomic unit and
creating a property where activities are pursued
which will add to
the economic viability of the land, to use the words of the
respondents and to echo the words of the land officials
of the
provincial government. Against this background, it also means, in my
view, that the decision by the first respondent not
to allow the
subdivision was materially influenced by an error of law as intended
by the provisions of section 6(2)(d) of PAJA.
The application
for subdivision and the refusals bv the Minister's delegate and the
Minister
[23] On 18 January
2010 a formal application was lodged with the national department by
the town planners Plankonsult Inc on behalf
of the applicant for the
subdivision of the property into 24 portions which would include 21
free-standing accommodation units.
The application was accompanied by
a detailed motivational memorandum by the town planners. They
recorded the history of the property
since 1946. At the time the land
was used in a limited degree for grazing but that was abandoned and
the house on the property
was also abandoned and fell into disrepair.
The property was not habitable and the land had been lying dormant
for about twelve
years before the memorandum was prepared. The report
of Dr Van der VVaals was enclosed. The submission was made by the
town planners
that "therefore the property cannot be used for
agricultural purposes, and may be subdivided". The proposed
subdivision
was for low-density "lifestyle" estate purposes
that will be to the benefit of the character of the environment. The
so-called permaculture concept would be introduced. Permaculture
refers to land use systems, which promotes stability in society,
utilise resources in a sustainable way and preserve wild life habitat
and genetic diversity of wild and domestic plants and animals.
The
only additional activity on the farm will be the newly established
permaculture design for trout fishing resources. "Water
collection, management, and re-use systems like Keyline, graywater,
rain catchments, constructed wet-Iands. aquaponics and solar
aquatic
ponds play an important role in permaculture designs”.
All the approvals
obtained from provincial and local authorities, which 1 have
analysed, were attached to the memorandum. It was
recorded that no
title restrictions are applicable to the application. Details of the
ownership by the applicant and the title
deed number were supplied as
well as the size of the property. The detailed Environmental
Management Plan ("EMP") was
enclosed. The purpose of the
EMP was to outline the environmental management commitments for the
site before, during and after
construction and to ensure adherence to
ail relevant Environmental, Health and Safety legislation. The EMP
would act as a performance
standard by which construction activities
can be audited against and ensure compliance with regulatory
requirements during construction
through the function of the
Environmental Monitoring Forum. It is clear that significant
employment opportunities would flow from
the project, both during the
construction phase and thereafter on a permanent basis. Permanent
staff housing would be constructed,
in addition to the other
constructions already referred to earlier including the 21 sectional
title free-standing units, clubhouse
area, swimming pool, convenience
store and admin facilities, several fishing dams and horse stables.
There would be "large
open spaces managed with game and
associated trails".
[24] The response of
the Minister to this application was short and sweet. It came in the
form of a letter of 2 June 2010 on the
department's letterhead
written to Piankonsult bv Ms Ntlokwana. to whom I have already
referred as the delegate of the Minister:
Land Use and Soil
Management. Obviously the Minister delegated the power to deal with
the subdivision application lo Ms Ntlokwana
in terms of section 8 of
the Act. Ms Ntiokwana's finding and refusal was really a one liner:
"I herewith
inform you that in terms of scction 4 of the Act I do not grant
conscnt for the abovementioned application (this
is the subdivision
mentioned in the heading of the letter) as the proposed application
will lead to encroachment and the creation
of a new node in an
agricultural area."
The
terms "encroachment" and "node" are not defined
in the Act, neither are they even mentioned therein as far
as I could
make out. As the applicant complains in the founding affidavit,
nothing to be found in dictionary definitions appears
to be of
assistance. The closest 1 could get in the
Oxford
Dictionary>
was
"knob on root or branch, swelling on gouty or rheumatic joint".
Other definitions deal with matters involving astronomy
and science.
In the opposing affidavit it is stated that a certain
inter-departmental policy (to which I will later refer) refers
to the
concept "new node
1
'
and although "node” has not been defined in the policy
document, it is common terminology within the department and
"in
this instance, it refers to a 'development' created, being a township
development or residential development, on agricultural
land”.
As is correctly
pointed out on behalf of the applicant, there is no suggestion or
indication of any nature that the proposed subdivision
would have
anything to do with the establishment of a township. That would
appear to leave one with a residential development on
agricultural
land, or, as described by Plankonsult. a low density "lifestyle"
estate.
[25] I add. in
passing, that, rather astonishingly, about a month after MsNtlokwana
refused the subdivision application on 2 June
2010, another Delegate
of the Minister: Land Use and Soil Management, Ms/wane, on 5 July
2010, also dealt with the subdivision
application and also turned it
down in a one page letter. It is clear that Ms Ntlokwane and Ms Zwane
acted independently of one
another so that the delegation in terms of
section 8 was bestowed upon two separate "delegates of the
Minister" to deal
with the same application. This strange
occurrence is unexplained in the opposing affidavit. In my opinion,
Ms Zwane's findings
do not take the matter any further given the
details already explained. She felt that "the property is
situated outside the
existing urban edge and represents urban sprawl
and leap frog development" and "it should also be noted
that ihe properly
can be used for grazing purposes despite its
relative small size and will make a contribution in its present form
for agricultural
production in the country". Of course, the
last-mentioned finding is at odds with the concessions already made
in the opposing
affidavit, to which I have referred.
It is common cause
that Ms Zwane's letter never reached the applicant. It only emerged
when it was attached to the opposing affidavit.
Ms Kooverjie. in her
address before me, quite properly, pointed out that Ms Zwane's letter
did not serve before the Minister before
she made her decision to
refuse the subdivision and that it could be ignored. I will do so.
for purposes of this judgment.
[26] It is common
cause that neither Ms Ntlokwana nor anybody else inspected the
property before the refusal was conveyed to the
applicant.
[27] On 2 August
2010, the applicant's attorney wrote to the Minister (first
respondent) asking for reasons for the 2 June 2010
refusal in terms
of section 5 of PAJA. In his letter, the attorney referred to the two
perceived grounds for the refusal namely
that "the proposed
application" will lead to encroachment, and, secondly, the
creation of a new node in an agricultural
area. As to the
last-mentioned "ground" the attorney pointed out that he
could not make out what "node" meant
in this particular
context and asked for reasons. As for the first "ground",
namely the perceived encroachment, the learned
attorney said (he
following in his letter: "The proposed application (for
subdivision) will lead to encroachment. You do not
state on what the
application will encroach. We cannot believe that the reason for
refusal is that the proposed subdivision will
encroach on
agricultural land because that is the reason why my clients applied
for your consent in the first place. That is also
what we understand
the purpose of section 4 of the Act to be: because subdivisions of
this nature by definition encroach on agricultural
land, the
legislature bestowed on the Minister the power to decide in
particular cases to nevertheless grant such consent for the
reasons
and purposes allowed by the Act and departmental policy. We submit
that by giving the reason for refusal of the application
as
encroachment on agricultural land, your Department will be defying
the very Act that you are empowered to administer. If this
reason was
valid, we submit with respect that you would not be able to approve
any subdivision of this nature because all such
subdivisions would
encroach on agricultural land."
I find myself in
respectful agreement with this argument. In my view, this ground for
refusal, such as it is, cannot be descibed
as anything but irrational
in the context of this case. In any event, the reasons requested in
terms of section 5 were never supplied
and, in argument before me. I
was reminded of the presumption specified in section 5(3) of PAJA
that if an administrator fails
to furnish adequate reasons for an
administrative action it must, subject to subsection (4) (which does
not apply) and in the absence
of proof to the contrary, be presumed
in any proceedings for judicial review that the administrative action
was taken without good
reason.
In
recognition of the argument of the learned attorney; it may be useful
to refer to some dictionary definitions of "encroach".
In
the
Concise Oxford
Dictionary
it
is said to mean "intrude usurping!} (on others' territory,
rights, etc); make gradual inroads on ..." The relevant
meaning
proposed in the
South
African Concise Oxford Dictionary'
is
"gradually and steadily intrude on (a person’s territory,
rights, etc)" and the Afrikaans meaning to be found
in the
Bilingual
Dictionary
of
Bosnian. Van der Merwe and Hiemstra is "die grense oorskry.
indring ... oortree op (grond)..."
[28] When the
adequate reasons were not forthcoming in the spirit of section 5 of
PAJA, the applicant, on 25 August 2010, lodged
an appeal against the
delegate Ms Ntlokwana's refusal to allow the subdivision.
In
launching this "appeal" the applicant recognised that it
was not an "appeal" in the normal sense, but a step
taken
in terms of the provisions of section 8(1) of the Act,
supra
,
which provides that the Minister shall not be divested of any power
delegated by her and may vary or withdraw' any decision of
the
delegate upon any application by any person affected and feeling
aggrieved by such decision. What was launched was an application
to
the Minister to withdraw the decision by the delegate Ms Ntlokvvana.
The application was
launched within the prescribed 90 day period determined for
applications of this nature.
[29] It is the
subsequent refusal by the Minister of this application in terms of
section 8(1). namely the Minister's refusal to
withdraw the decision
of the delegate in terms of that subsection, which both parties,
correctly, recognise as a refusal to grant
the subdivision
application and against which refusal this review application is
directed.
[30]
On 30 August 2010 the national department acknowledged receipt of the
section 8(1) "appeal". No further reaction
was received
from either the Minister or the department. Later enquiries revealed
that a certain Ms Dansilc Cindi of the department
inspected the
property on or about 14 and 15 October 2010 and wrote a report on her
inspection. The applicant’s attorney
only received a copy of
the report by Ms Cindi almost a year later, on 2 September 2011. In
fairness, it must be pointed out that
proceedings were delayed,
inter
alia
,
by a purported withdrawal of the "appeal" by Plankonsult
without a mandate. The "appeal" was then reinstated
by
agreement between the parties.
[31] The Cindi
report is confusing in the sense that it refers to two subjects
namely the "DFA application on the farm Kromdraai
..." and
the subdivision application of this particular property, the farm
Rietviei. "DFA" is a reference to the
Development
Facilitation Act of 1995
and inspired the applicant to conclude that
Ms Cindi applied the wrong legislation for purposes of her
inspection. Nevertheless.
Ms Cindi, in a late supplementary
affidavit, indicated that the reference to the DFA is limited to the
Kromdraai application. For
present purposes, 1 accept that statement
to be correct.
[32] The Cindi
report is a concise two and a half page affair. The relevant portions
appear to be the follow ing:
"6.3
The area is currently zoned agriculture and appears to have had
agricultural activities (grazing), on site cow dung was
identified
but there were no cattle on the farm. (
Mv
note
:
this subject received a fair amount of attention in the papers. The
undisputed evidence, which I already pointed out, is that
the land
had not been inhabited or used and had been lying dormant for some
ten years before Plankonsult lodged the application.
The cow dung
appears to have been dropped by a calf kept on the premises for
Christmas slaughter purposes by some of the employees
of the
applicant.)
6.4
The surrounding properties are being utilised for agriculture
(grazing, trout farming) with just the opposite farm having some
Escom building a new' power station. (
Mv
note
:
this is not in line
with the clear
evidence offered by the applicant in the founding affidavit, already
quoted above, about farming activities, or the
lack thereof, on all
the surrounding farms. This evidence is undisputed in the opposing
affidavit.)
6.5
There is one existing unit on the farm as well as four dams, four
boreholes with streams and a wet-land area. (
My
note
:
In tiie founding affidavit it is stated on behalf of the applicant
that in the two years and nine months since the application
for
subdivision was lodged with the department, and in view of the scries
of authorisations received from provincial and local
governments, the
applicant started developing the property in the expectation of
receiving permission to subdivide, which expectation,
the applicant
submits, was reasonable. The applicant had spent in excess of R5
million on the development carted in 60 000 tons
of soil and
constructed five trout dams in developing the property. The applicant
cannot obtain any return on its investment unless
permission to
subdivide is received.)
6.6 There will not
be any service agreement with the local municipality as the proposed
development will use the existing water
from boreholes, will have
septic tank for sewage disposal and will use solar electricity.
6.7
There
(sic)
PDA
(presumably the Provincial Department of Agriculture) has given
positive recommendation on the application for business rights
in
terms of
section 6(1)
read with
section 8(1
)(a) of the Physical
Planning Act, 1967 (Act 88 of 1967) and granted authorisation in
terms ofNEMA (Act 107 of 1998).
6.8
The Nkangal
(sic)
DM
(presumably district municipality) and Emakhazeni LM (presumaly local
municipality) granted approval for the proposed (? nothing
inserted)
in terms of section 6(1) of the Division of Land Ordinance 1986
(Ordinance 20 of 1986) with one of the conditions being
that the
application must receive an approval in terms of Act 70 of 1970.
6.9
After the site inspection it w
r
as
clear that the area is surrounded by agricultural activities (
mv
note
:
this is not in line with the undisputed evidence,
supra)
and
the proposed development will change the character of the surrounding
area and will lead to a loss of agricultural grazing land."
(
Mv
note
:
this is not in line with the concessions made by the respondents in
the opposing affidavit.
supra.)
A few photographs
which Ms Cindi took of the site do nothing, in my view, to advance a
case for refusing the subdivision. The most
significant photograph is
the one showing the three droppings of cow dung to which 1 have
referred.
[33] Ms Cindi's
recommendation is brief and to the point:
"The department
must stick to the previous decision to disapprove this application
for subdivision of Portion 11 of the farm
Rietvlei 375 - JT into 24
portions ranging from 1.7083ha to 14,0697ha."
[34] The applicant
filed an extensive objection to the Cindi report, ft does not appear
from the opposing affidavit whether or not
this objection was
received and considered.
[35]
Ms Cindi filed a belated supplementary affidavit in support of the
case of the respondents. She says the factors which she
took into
account when considering the application for subdivision were the
"agricultural land" zoning of the property,
the fact that
it was situated ten kilometres from Machadodorp. the "fact"
that the land showed signs of agricultural
activities (grazing) of
animals. She concedes that there was no cattle on the farm and relies
on the cow dung to which 1 have referred.
She also took into account
the fact that the surrounding land are
(sic)
also
zoned as agricultural land and that Escom further had a power station
in the surrounding area.
She says that she
specifically took into account the objective of the department "to
preserve agricultural land from any land
development, that will pose
a threat to the subject and surrounding agricultural land". (Of
course, this is at odds with the
concessions of the respondents in
their opposing affidavit, which I have quoted, and where they say
that the "business rights
were granted on the basis that it
would boost the economic viability of the land", after conceding
that the land could not
be used for agricultural purposes. This makes
nonsense of Ms Cindi's allegation (without any motivation) in her
affidavit to the
effect that the development "would certainly
change the charac-tcr of the surrounding agricultural land and have a
negative
impact on it".
Nowhere in the Cindi
report or in her affidavit or in the opposing affidavit of the
respondents is it stated that Ms Cindi ever
considered the contents
of the Van der Waais report.
[36] When no
reaction was received from the department with regard to the
applicant's objections to the Cindi report, the applicant
threatened
to refer the matter to the Public Protector because of the undue
delay. The latter official in fact summoned the Minister
to appear
before her but it then emerged that the Minister had in the meantime
taken a decision which her department erroneously
sent to the wrong
address. The decision is dated 8 March 2012 but it was only
ultimately received by the applicant on 16 June 2012.
[37]
The Minister signed the refusal to set aside the delegate's decision
and, as explained, the refusal to grant the subdivision,
on 8 March
2012, the same day when she was presented with, and counter-signed, a
so-called ministerial submission signed earlier
by the Deputy
Director: Agricultural Land Administration (on 5 January 2012); the
Acting Director: Land Use and Soil Management.
Ms Ntlokvvana (on 3
February 2012): the Acting Chief Director: Natural Resources
Management (on 6 February 2012); the Acting Deputy
Director-General:
Forestry and Natural Resource Management (on 8 February 2012) and the
Director General (on 19 February 2012).
[38] The declared
purpose of the ministerial submission is the following:
'1. Purpose
1.1 To request the
Minister to consider an appeal against the decision of her Delegate
in terms of section 8(1) of the Subdivision
of Agricultural Land Act,
Act 70 of 1970.
1.2
To
request the Minister to sign the letter included herein to
convev
her decision on the application
."
(Emphasis added.)
The letter which the
Minister is urged to sign "to convey her decision" was
undoubtedly also crafted by those who prepared
and signed the
ministerial submission and attached thereto for the Minister to sign.
As I have pointed out, she signed it on the
same day when she
counter-signed the ministerial submission. The letter is erroneously
addressed to a mysterious Mr Ivan Pauw'
of Arcadia who had nothing to
do with the case. I will revert to the contents of the letter.
The ministerial
submission is a relatively concise affair. It deals with the
background of the application and Ms Ntlokwana's decision
of 2 June
2010 refusing the subdivision. It describes the extent of the
property and the measurements of the various proposed subdivisions
as
set out. for example, in the summary crafted by the provincial
Department of Agriculture, to which I have referred. These are
the 21
free-standing accommodation units on 250m
2
each, the
administrative offices, horse stables, staff accommodation and so on.
It records the fact that business rights and the
proposed subdivision
have been granted and authorised by the provincial and local
authorities. It summarises the "grounds
of appeal"
(erroneously so termed) as being that the property is of low
agricultural potential and does not qualify as an
economic unit, the
development will add value to the "application area" and
the fact that all the other authorisations
had already been obtained.
The ministerial
submission then contains the following three paragraphs:
"3.
The department erred by not considering one of the most fundamental
principles for the protection of agricultural land
when considering
the application, ie to ensure the protection of subdivision of
agricultural land into uneconomical units and by
not taking into
account the aim of the Act. (
Mv
note
:
The 'department' referred to could be the provincial department which
granted the business rights and environmental authorisation
and/or
the district municipality which granted the subdivision. As already
explained, this is not a question of subdividing an
economical unit
so that the subdivision will not fly in the face of the objects and
aims of the Act as also illustrated by extracts
from the reported
judgments.
.supra).
4.
The department erred by not taking into account some of the Chapter 1
of DFA principles, the 'optimal utilisation of resources'
which must
guide all decisions pertaining to the use of land. (
Mv
note
:
the DFA must be a reference to the
Development Facilitation Act 67 of
1995
. As already explained, this Act has nothing to do with the case.
Ms Cindi herself stated that her reference to the DFA had to do
with
the Kromdraai farm and not with this subdivision application. The
authors of the ministerial submission also do not specify
which
'Chapter I principles' they have in mind, let alone explain how these
'principles' apply to this subdivision application.)
5.
The department erred by not taking into account on a holistic basis,
the motivation contained in the appellant's memorandum,
the Nkangala
district municipality supported the proposed subdivision." (
My
note
:
this, with respect, is a nonsensical observation which makes no
sense. In any event, the approval by the Nkangala district
municipality
of the subdivision and all the other authorisations
obtained by the applicant can only serve to support the application
for subdivision
and cannot justify a recommendation that the
subdivision be refused.
[39] Under the
heading "deliberation" some statements are made by the
creators of this ministerial submission which I
will briefly
summarise:
1. "The
property is currently zoned agriculture and appears to have
agricultural activities (grazing), for an example cow dung
was
identified during site inspection." For reasons repeatedly
mentioned, this statement is factually incorrect.
2. After site
inspection it was clear that the area is surrounded by agricultural
activities and the proposed development will change
the character of
the surrounding area and will lead to a loss of agricultural grazing
land. As already illustrated, this statement
is not correct.
3.
The department does not support the creation of a new node in
agricultural land "as this will create an environment in which
the land competitors will see a way to start developing townships or
golf estate in the farming area and will catch the attention
of land
owners to see the fast and huge turn-overs of small portions. It will
furthermore reduce the confidence of farming which
will lead to
shortage of food production in the country." There is no factual
basis on the papers for this statement. It is
pure speculation.
Applicants wishing to subdivide economical units will face the
difficulty of a clash with the objects and aims
of the Act,
supra.
Moreover,
few' developers can afford the huge input costs involved in such a
project. The present case, for reasons mentioned, does
not involve an
economic unit neither can the development lead to a shortage of "food
production in the country".
4.
"The applicant refers to the principles of a
[sic)
Development
Facilitation Act (DFA
) 67 of 1995. which promotes maximum utilisation
of resources. The land in question is still an agricultural land:
hence it must
be used for food production and not residential as
intended by the applicant." The applicant did not refer to the
DFA other
than in response to Ms Cindi's reference thereto. The
applicant, correctly, stated that the DFA does not apply to this
matter.
Moreover, it is common cause that the property in question
cannot be used for food production.
5. "The
approval of this subdivision application will set precedent and all
farmers in the surrounding area/s are likely to
apply for similar
type of subdivision or similar leading to encroachment in
agricultural land." This is a repetition of an
earlier similar
and incorrect statement without any factual basis.
[40] Then follows
the recommendation: "It is recommended that the extent of the
unit be kept as 107.0743 hectares in order
to ensure sustainable
agricultural production and improve food security of the country."
It is common cause that the property
is incapable of leading to
sustainable agricultural production or the improvement of food
security in the country. The recommendation
is, therefore, based on a
false premise.
[41] There is also a
list of "attachments’' which list does not include certain
important documents singled out by the
applicant. 1 do not propose
dwelling on those details.
[42] There is also
under "organisational implications" the following
statement:
"This may
impact negatively on the objectives of Subdivision of Agricultural
Land Act 70 of 1970 to prevent the creation of
non-viable units for
addressing food security."
In the case of this
particular property, this statement is legally and factually
incorrect. 1 have demonstrated the reasons for
making this
observation.
[43] All the
signatories, which 1 have listed “then placed their signatures
under their recommendation "that the Minister
considers an
appeal against the decision of'her Delegate ... by signing the letter
included herein to convey her decision on the
application".
Rather astonishingly "her Delegate", namely Ms Ntlokwana,
is also one of the signatories!
[44] As I already
pointed out, the letter submitted to the Minister for signature was
signed by her on the same day when she counter-signed
the ministerial
submission and was obviously also crafted by the authors of the
submission and worded along the lines of a refusal
of the
subdivision. As pointed out, it was incorrectly addressed to Mr Ivan
Pauw
;
and reads as follows:
"Dear Mr Ivan
Pauw
Appeal against
the decision on proposed subdivision Portion 11 of the farm Rietvlei
No 375 — JT; Mpumalanga Province lodged
in terms of section
8(1) of the Subdivision of Agricultural Land Act, Act 70 of 1970
Your application
regarding the abovementioned matter refers.
I have carefully
considered the appeal against the decision of the delegate on the
above matter and decided not to withdraw the
decision. The reasons
for my decision are as follows:
protecting
agricultural land against fragmentation remains the primary
responsibilities of this Department
the
approval of proposed subdivision will set a precedent for similar
subdivision in the area and would jeopardise agriculture’s
position of protecting agricultural land.
Should you feel
aggrieved by the decision you have a right to take this matter on
Judicial Review within 180 days of the date of
this decision. Yours
faithfully
(Signed by the
Minister or first respondent) on 8 March 2012"
[45] The reasons
given by the Minister do not appear to be in total harmony with those
given by her delegate whose decision she
is upholding. The delegate
was more concerned about "encroachment and the creation of a new
node in an agricultural area".
The motivation offered by Ms
Cindi also does not appear to correspond with the reasons given by
the Minister because Ms Cindi felt
that the proposed development
"will change the character of the surrounding area and will lead
to a loss of agricultural grazing
land”.
[46] The reasons
given by the Minister for her decision are. in my view, unconvincing:
the first reason about protection against
fragmentation and the
responsibilities of the department cannot be divorced from the
objects of the Act. It is the mandate of the
department to uphold the
objects of the Act. In this case, as illustrated, the subdivision
will not offend the objects of the Act.
The decision based on this
reason is therefore materially influenced by an error of law. The
second reason about setting a precedent
has no factual basis at all.
It amounts to nothing more than speculation. Bach case must be
treated on its own merits. This application
cannot be tainted by
other applications which may or may not become a reality and the
details of which are not known. In my view;
the decision to refuse
the subdivision based on this reason, is so unreasonable and
irrational that a reasonable administrator
could not have come to the
same conclusion.
[47] Moreover, the
considerations in the ministerial submission leading up to the
recommendation against subdivision are flawed
and without merit for
the reasons I have mentioned. The Minister, in taking her decision on
the ground of the ministerial submission,
and in signing the letter
attached thereto and drafted by the authors of the ministerial
submission consequently, in making her
decision. took irrelevant
considerations into account (such as that the subdivision will
"impact negatively" on the objectives
of the Act, will lead
to a "loss of agricultural grazing land", will somehow
offend the principles of the
Development Facilitation Act and
will
"set precedent" and inspire all farmers in the surrounding
areas to apply for similar subdivisions) and to ignore
relevant
considerations (such as that the subdivision will not fly in the face
of the objectives of the Act. that the land is not
a viable
economical unit and has been lying dormant for many years and that
the DFA does not apply to this case).
On this same
subject, it was argued on behalf of the applicant, that, where the
Minister was clearly influenced by the (flawed)
ministerial
submission and its signatories who also prepared the letter for her
to sign, her decision is. in addition, reviewable
on the strength of
the provisions of section 6(2)(e)(iv) ofPAJA w'hich provides that the
court has the power to judicially review
an administrative action if
it was taken "because of the unauthorised or unwarranted
dictates of another person or body".
In addition, the
ministerial submission was also tainted, in my view, by the fact that
it was signed by the very delegate whose
decision was under
consideration in the appeal.
[48] In addition to
the aforesaid review grounds which I have dealt with, the applicant
also made submissions, in the founding affidavit,
regarding review
grounds. The one ground, already briefly touched upon, deals with the
first reason offered by the Minister namely
her apparent view that
the department has a duty to protect agricultural land against
fragmentation. The argument is that the Act
does not prohibit
subdivision but is designed to control subdivision. The development
of a sectional title scheme involving a number
of accommodation units
must, inevitably. lead to fragmentation of a particular portion of
agricultural land. In sections 3 and
4 of the Act one finds clear
provision for subdivision to be consented to by the Minister in
appropriate cases. It is argued that
a case like this, with
non-viable agricultural prospects on a small piece of agricultural
land could be one of those instances
where the Minister may exercise
her discretion in favour oí' subdivision. The argument is that
the apparent attitude that
subdivision is prohibited suggests that
the Minister does not have a clear understanding of the Act so that
her decision was materially
influenced by an error of law. The same
applies to Ms Ntlokvvana's concern about '’encroachment"
already dealt with.
On the Minister's apparent approach, judging by
the wording of the first reason given, it would mean that she would
not be able
to approve any application for subdivision of
agricultural land.
More or less the
same argument is offered with regard to the second reason to the
effect that the subdivision will set a precedent
for similar
subdivision in the area. This, it is argued, also means that on the
reasoning of the Minister it would mean, logically,
that she cannot
approve any subdivision in any area because it could set a precedent.
This approach renders her decision irrational,
unreasonable and
tainted because it was influenced by an error of law.
[49] Other review
grounds, ail based on section 6 of PAJA. advanced on behalf of the
applicant deal with the grounds listed in section
6(2)(f)(ii): the
decision of the Minister was not rationally connected to the purpose
of the empowering provision (the purpose
of the Act was
misinterpreted, as explained); it was not rationally connected to the
information before the Minister when she took
her decision (this
would include, for example, the report of Dr Van der Waals and
details about the history of the property as
explained by
Plankonsult); and it was not rationally connected to the reasons
given for it by the Minister (the reasons have been
analysed and
criticised).
[50] I add that the
applicant duly asked for adequate reasons for the decision by the
Minister in terms of section 5 of PAJA. This
was done on 27 July
2012. No response was ever received to this request. The same
remarks, made earlier, about the presumption
to be found in section
5(3) of PAJA, will apply in this instance.
Submissions made
in the opposing affidavit and the "policy" relied upon by
the respondents
[51] The first 25
pages of the 43 page document are devoted, mainly, to summarising the
chronological process and procedural path
followed by the application
and also to dealing with the "policy" relied upon by the
respondents in this case, and to
which 1 will revert. Pages 37-43
deal with condonation issues relating to the late filing of the
opposing affidavit and even later
filing of supplementary affidavits
by the Minister and Ms Cindi. The condonation aspect was not placed
in dispute and the matter
proceeded accordingly. Pages 25-36 deal
with the allegations made in the founding affidavit.
[52] The
respondents, correctly, identified the crux of this dispute as
revolving around whether or not the decision of the first
respondent
to refuse the subdivision of the agricultural land in issue is
justified.
[53] The respondents
repeatedly state that the development will involve the establishment
of a township. In reply, the applicant,
correctly in my view, states
that this is not a township development. It is a low density
residential development. In the comprehensive
memorandum filed in
support of the business rights application, it is pointed out by the
Plankonsult town planner that the density
is only one dwelling unit
per 5ha.
[54] The respondents
recognised that, in terms of the Constitution, agriculture is a
concurrent national and provincial legislative
competency. They
recognise the need, therefore, for co-operative governance between
the various tiers of government, and that the
different levels are
expected to liaise with one another which will ensure consistency in
the decision. This is, no doubt, a reference
to section 41 of the
Constitution, which I have already dealt with. I pointed out that
I could see no sign
of consultation between the local, provincial and national
authorities before the final decision was taken by
the Minister. No
such reference to consultations is to be found in the opposing
affidavit. The fact that some of the authorisations
granted by the
local and provincial levels were subject to the national Minister's
consent, does not. in my view, amount to co-operation
as. for
example, intended by the provisions of section 41(1 )(h) of the
Constitution. It is for this reason that it was argued
on behalf of
the applicant that the decision was unconstitutional and for that
reason alone falls to be reviewed and set aside
in terms of the
provisions of section 6(2)(i) of PAJA.
[55] The granting of
the various authorisations by local and provincial government is
recognised and summarised in the opposing
affidavit.
[56] Under a heading
dealing with subdivision in terms of the Act, there are references to
sections 24. 25 and 27 of the Constitution
which, in my view; are not
directly applicable to this case.
[57]
The deponent to the opposing affidavit recognises that "the
essential object of the SALA (this is the Act) is to act in
the
national interest and to prevent the fragmentation of agricultural
land into small uneconomical units". What she does
not say, is
that the object of the Act. as repeatedly stated by our courts, is to
prevent the fragmentation with subdivision of
economical
units.
[58] The deponent to
the opposing affidavit then turns to the "national policy on the
preservation of agricultural land"
which the respondents relied
upon for purposes of this case and which received some attention
before me during the proceedings.
The document is attached to the
opposing papers. It is styled:
"National
policy on the preservation of agricultural land
Draft 2 for
discussion purposes June 2007."
It is referred to by
the respondents as "the policy". I will do the same. It is
common cause that the policy has not been
published and gazetted. It
was not placed at the disposal of applicants for subdivision like
this applicant.
What
is of significance, for present purposes, in my view; is that the
respondents recognise, in their opposing affidavit, that
"this
policy focused on the prevention of the loss of
productive
agricultural
land to non-agricultural uses. The objective of this policy was to
assist the department in its decisions regarding
the subdivision of
agricultural land."
This sentiment is
repeated later in the opposing affidavit.
"This
'policy' therefore highlights the department's objective to ensure
that, adequate agricultural land is preserved. To
this end it
inter
alia
discourages
the subdivision of
productive
or prime agricultural land
into
non-viable units or for the purposes of a non-agrícultural
use." (Emphasis added.)
As indicated
earlier, these sentiments are in line with the objects of the Act.
However, in the present case, the subdivision, if
granted, will not
fly in the face of the objects of the Act. because the land to be
subdivided is not an economical unit and neither
"productive'’
nor "prime" from an agricultural point of view.
These sentiments are
in line with the following introductory remarks contained in the
lengthy printed document constituting the
policy:
"A major
function of the Department of Agriculture (DoA) is the conservation
of natural agricultural resources, which involves
various aspects,
the key issues being:
maintaining
the
productive
quality
of
agricultural land (eg soil, water)
ensuring
that adequate
productive
land
is
available for agricultural purposes." (Emphasis added.)
At this point it is
also useful to revisit a statement made in the opposing affidavit,
quoted earlier, when the respondents dealt
with the fact that the
national department itself had granted business rights to the
applicant which would cover the same areas
(eg 21 free-standing units
on 250m
2
each, the administrative blocks, staff
accommodation, etc) as those applied for:
"Due
consideration w'as taken of the fact that the land was unable to
produce agricultural products (crop production) due to
its low
potential but other viable activities could benefit the land. The
business rights were granted on the basis that it would
boost the
economic viability of the land."
[59] Against this
background, I am of the view that the policy does not apply to this
case. Il also cannot be applied for another
reason namely that it was
not properly published to applicants in advance.
In
contending for the policy to be applied, the respondents relied on
what was said in
MEC
for Agriculture, Conservation, Environment and Land A ffairs v Sasoi
Oil (Pty) Ltd and another
2006
5 SA 483
(SC A) at 49IA-D:
"The
adoption of policy guidelines by state organs to assist
decisionmakers in the exercise of their discretionary powers has
long
been accepted as legally permissible and eminently sensible. This is
particularly so where the decision is a complex one.
requiring the
balancing of a range of competing interests or considerations, as
well as specific expertise on the part of a decision-maker.
As
explained in
Halo
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
4 SA 490
(CC) paragraph [48], a court should in these circumstances
give due weight to the policy decisions and findings of fact of such
a decisionmaker. Once it is established that the policy is compatible
with the enabling legislation, as here, the only limitation
to its
application in the particular case is that it must not be applied
rigidly and inflexibly,
and
that
those
affected by it should be aware of it
."
(Emphasis added.)
It appears that in
this case, the "policy" was "issued" in the form
of general guidelines termed "Environmental
Impact Assessment
(EIA) Administrative Guideline - guideline for the construction and
upgrade of filling stations and associated
tank installations. March
2002". I could not quite make out whether the guidelines were
gazetted or issued in some other way
to inform prospective
applicants. See the report at 486C-H.
[60] In the present
case, it is common cause that the policy was not distributed in
advance for the information of prospective applicants
for
subdivision. It appears to be more of an inter-departmental
"discussion document''.
The
learned author, Cora Hoextcr.
Administrative
Law in South Africa
2
nd
ed
p32 deals with the subject as follows:
"Administrators
also produce and rely on standards or
quasi
-legislation
-instruments that tend to be less formal and less official than
rules. For example, an Administrator may issue policy
determinations,
guidelines, directives, circulars or manuals which govern the way in
which the Administrator acts, but which are
not necessarily published
as official rules or regulations. Standards can be extremely helpful
to Administrators, as our courts
have acknowledged (
my
note
:
here the learned author refers to
Sasol
Oil, supra
.
and the remarks of the learned Judge of Appeal and then continues
...) but standards are also sometimes viewed with suspicion,
especially when they are not published or readily accessible. As
Baxter
says
there is a fear that they may create a kind of 'secret law' that
deviates or derogates from the standards already determined
by the
legislature in the empowering legislation ... administrative lawyers
are thus understandably concerned that standards relied
upon by
public bodies should be in line with the enabling legislation and
revealed to those affected by them."
In
the course of her discussion on the subject, the learned author
refers to
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
2001
4 SA 501
(SCA) where the learned judge says the following at 509D-G:
"I
prefer to begin by stating the obvious, namely that laws, regulations
and rules are legislative instruments, whereas policy
determinations
are not.
As
a matter of sound government, in order to bind the public, policy
should
normally be reflected in such instruments.
Policy
determinations cannot override, amend or be in conflict with law
;
s
(including subordinate legislation)." (Emphasis added.)
In any event, in my
view', the portions of the policy relied upon by the respondent,
particularly those listed in paragraph 9.2.1
of the policy, do not
serve to advance a case for refusing subdivision in this particular
instance, where the objects of the Act
will not be defeated.
Will the land in
question be used for agricultural purposes?
[61] I deal with
this issue in view of the wording of section 4(2) of the Act which 1
quote again:
"(2) The
Minister may in his discretion refuse or -
(a) on such
conditions, including conditions as to the purpose for or manner in
which the land in question may be used, as he deems
fit. grant any
such application:
(b)
if
he is satisfied that the land in question is not to be used
for
agricultural purposes
and
after consultation with the Administrator of the province in which
such land is situated, on such conditions as such Administrator
may
determine in regard to the purpose for or manner in which such land
may be used, grant any such application." (Emphasis
added.)
[62] In the present
case, it is common cause that the land has not been used for
agricultural purposes for the last ten or twelve
years. The applicant
argues that it is not to be used for agricultural purposes if the
subdivision were to go ahead. The respondents
do not appear to agree
with this submission unequivocally and still slip in the odd
reference to "grazing" as I have
illustrated.
The respondents, in
their opposing affidavit, acknowledge that they granted business
rights 'Tor the trout and equestrian facilities".
[63]
No one contended that the trout breeding and fishing as well as the
stabling and* riding of horses will amount to "agricultural
activities", in the June 2013 service issue of
Dictionary
of legal words and phrases
compiled
by judge R D Claassen, "agriculture" is defined as "the
science and art of cultivating the soil, including
the gathering of
crops, and the rearing of live-stock ... and the stabling of race
horses is not an agricultural purpose within
the meaning of Ordinance
20 of 1933 (T)’\
[64] It was not
argued by any of the parties that the horse and trout acti vities
ought to be regarded as "agricultural purposes"
for
purposes of this dispute, or for any other purpose, for that matter.
[65] The only issue,
for purposes of deciding this question, which exercised my mind, is
the occasional reference to the cultivation
of roses in the
motivational papers presented by the applicant. No details are
provided and there is no suggestion that roses would
be cultivated
for commercial purposes. The issue was. perhaps correctly, ignored bv
the respondents, it was not addressed in any
detail by the applicant.
In the Plankonsult
memorandum tiled in support of the application for business rights,
it is stated that in the proposed development
guests will be allowed
in and "will be driving through with rose gardens on both sides
of the road to the central facility
...” and it is stated that
"at the entrance, 500 rose plants will be planted with an
irrigation system for landscaping
purposes". It appears,
therefore, that roses will be cultivated for decorative purposes and
use on the property and not for
commercial purposes. In this
motivational memorandum it is stated that the developers have
identified "a need for a rural
development with equestrian and
trout facilities". Roses are not mentioned.
[66] There is also
the oft quoted passage from the opposing affidavit where the
respondents acknowledge that the land was "unable
to produce
agricultural products (crop production) due to its low potential but
other viable activities could benefit the land.
The business rights
were granted on the basis that it would boost the economic viability
of the land."
[67] In all the
circumstances I have come to the conclusion that, on the overwhelming
weight of the evidence, the land in question,
if the subdivision is
granted, is "not to be used for agricultural purposes" in
the spirit of section 4(2)(b) of the
Act.
Conclusion
[68] In view of the
aforegoing. 1 have come to the conclusion, and I find, that the
review grounds relied upon by the applicant,
which 1 analysed, are
well-founded so that the decision of the Minister in refusing the
subdivision falls to be reviewed and set
aside.
[69] The matter is
to be referred back to the Minister for reconsideration. If she
agrees with my views, it will be necessary for
her to consult with
the "Administrator" of Mpumalanga province, or his
successor in title which must now be the Premier,
or some other
senior official, in the spirit of section 4(2)(b) of the Act, I will
mention this in the order which I propose making.
The costs
[70] I see no reason
why the costs should not follow the result.
[71]
Ms Kooverjie argued that even in the event of the applicant being
successful, the respondents should not be mulcted in costs
because
they acted in good faith. Ms Kooverjie referred me to the case of
Attorney-General,
Eastern Cape
v
Blom and others
1988
4 SA 645
(AD) at 670F-G. In my view, if one considers the judgment in
greater detail at 670A-G, there is nothing in those utterances by the
learned Judge of Appeal which supports the contention of Ms Kooverjie
in this particular case.
[72] Costs were also
only asked against the first respondent and against both respondents
if the second respondent were to oppose
the application. As I already
pointed out, both respondents filed the opposing affidavit. In
practice, it will make little difference
whether costs are granted
against only the first or against both respondents. Nevertheless, as
both respondents entered the fray,
Í propose ordering costs
against them jointly and severally. I do not consider this to be an
appropriate case to grant costs
on a punitive scale as contended for
by the applicant.
The order
[73] 1 make the
following order:
1. The first
respondent’s decision, dated 8 March 2012, to refuse the
application of the applicant for the subdivision of
land known as
Portion 11 (a portion of Portion 1) of the farm Rietvlei number 375
JT, province of Mpumalanga in terms of the subdivision
of the
Agricultural Land Act 70 of 1970 is reviewed and set aside.
2. In terms of the
provisions of section 8(l)(c)(i) of PAJA. the matter is remitted to
the first respondent for reconsideration.
3. The first
respondent is ordered to come to a decision within 30 calendar days
from the date of this order and, if she decides
to apply the
provisions of section 4(2)(b) of Act 70 of 1970. to conclude her
consultations with the Administrator or his successor
in title,
within a further 20 calendar days thereafter.
4. The respondents,
jointly and severally, are ordered to pay the costs of the
application.
W
R C PRINSLOO
JUDGE
OF THE GAUTENG DIVISION. PRETORIA
HEARD ON: 2
SEPTEMBER 2013
FOR THE APPLICANT: N
C MARITZ
INSTRUCTED BY:
HENNING VILJOEN ATTORNEYS
FOR THE RESPONDENTS:
H KOOVERJIE
INSTRUCTED BY: STATE
ATTORNEY