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[2014] ZAGPPHC 194
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Nabuvax (Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and Others (31875/13) [2014] ZAGPPHC 194 (6 March 2014)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 31875/13
DATE:
06 MARCH 2014
In the matter between:
NABUVAX (PTY)
LIMITED
.................................................................
First
Applicant
PROC CORP 160 (PTY)
LIMITED
..................................................
Second
Applicant
JOHANNES JACOBUS CORNELIUS
NAUDE
................................
Third
Applicant
And
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
...........
First
Respondent
BILLION
PROPERTY DEVELOPMENTS (PTY) LTD
..............
Second
Respondent
GAUTENG DEPARTMENT OF TRANSPORT AND
PUBLIC
WORKS
..............................................................................
Third
Respondent
SA NATIONAL ROADS AGENCY
LIMITED
..............................
Fourth
Respondent
NEDBANK
LIMITED
........................................................................
Fifth
Respondent
GROUP FIVE
LIMITED
.....................................................................
Sixth
Respondent
JUDGMENT
Tuchten J
:
1
By notice of motion dated 21 May 2013,
the applicants applied to review and set aside a decision of the
first respondent (“the
City”) taken on 7 December 2012
approving the application by the second respondent (“Billion”)
under s 98 of
the Town-Planning and Townships Ordinance, 15 of 1986
(“the TPO”) for the establishment of Monavoni Extension
58 Township
(“Monavoni”) and for an interdict to prevent
any construction activities on Monavoni pending a reconsideration by
the
City of Billion’s TPO application..
2
Monavoni is divided into two erven, one
of which is a public space. Upon the other, Billion is presently
developing a substantial
shopping centre.
3
The applicants advance several grounds
of review which, reduced to their essentials are, firstly, that the
City did not apply an
independent mind to the application to it by
Billion but subordinated its own decision making powers in favour of
those previously
exercised by
^
another organ of state called
the Gauteng Development Tribunal (“the
GDT”);
[1]
and, secondly, that by exercising its discretion to dispense with
advertisement of the TPO application under s 69(6) of the TPO,
the
City denied interested persons, and particularly the applicants,
their right to be heard in relation to the TPO application.
4
By amended notice of motion dated 26
July 2013, delivered under rule 53(4) when the record on review
became available, the applicants
expanded the relief sought: in
addition to what had previously been claimed, the applicants ask for
orders reviewing and setting
aside the decision of the City to
approve Billion’s building plans and for orders directed at
creating a procedure under
which the City would be required to
reconsider Billion’s application to it for the establishment of
Monavoni.
5
The present application is opposed by
the City, Billion and the fifth respondent (“Nedbank”)
which has funded the development.
The other cited respondents abide.
6
The relief sought in applicants’
notice of motion before amendment was set out in Part B. In Part A,
the applicants sought,
urgently, an interdict, directed at halting
all construction pending the adjudication of their review and
interdict relief pursuant
to Part B. The urgent application for
interim relief came before Kollapen J who, in a written judgment
dated 2 July 2013, ruled
against the applicants and dismissed the
application for an interim interdict on the basis that the applicants
had “not established
a prima facie right with regard to their
attack on the lawfulness of the decision of the [City] on the 7th of
December 2012.”
7
Before the hearing before me started, I
asked the parties to present argument on the question whether in the
light of the finding
by Kollapen J, the issue whether the applicants
had established a clear right was not res judicata or subject to
issue estoppel
on the principles laid down in Caesarstone Sdot-Yam
Ltd v World of Marble and Granite 2000 CC and Others
2013 6 SA 499
SCA. Argument in this regard was presented. I think the answer to the
question I raised lies in the fact that the applicants are
presently
relying on evidence additional to that before Kollapen J and that the
applicants are entitled to have their claims adjudicated
on all the
evidence now before me. On that reasoning, the finding of Kollapen J
is not a bar to the present application, although
the judgment is of
course authority for the conclusions it conveys on the same footing
as any other judgment of the court. The
relevant facts have to a
great extent been set out in the judgment of Kollapen J and I shall
not unnecessarily reiterate the path
travelled by the learned judge
in this regard.
8
The purpose of the application is not to
vindicate any principle. The applicants want to stop the construction
of the shopping centre.
The construction is a few months at most away
from completion. Nedbank, which financed the construction of the
shopping centre,
is presently exposed to the extent of R800 million.
I have concluded that this is a clear case in which, except to the
extent that
I am compelled by law to do so, I should not grant any
remedy at all, that all interested persons have had a full
opportunity to
be heard on the very questions upon which counsel for
the applicants told me during oral argument they still wished to be
heard
and that the discretions which I am empowered to exercise
should be exercised against the applicants.
9
I am directed by high authority
[2]
first to determine whether a ground of review has been established.
If such a ground has been established,
1
may
not shy away from it; I must declare the decision unlawful.
[3]
I must do this because the rule of law is central, indeed vital, to
our constitutional dispensation. Then I must deal with the
consequences of unlawfulness in a just and equitable order.
[4]
The very authority to which I have just referred, allows me, on the
ground that the law often is a pragmatic blend of logic and
experience, to ameliorate the apparent rigour of the Constitution and
the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”).
I may even, after declaring such conduct unlawful, make no order in
favour of the applicant at all.
[5]
1
proceed to analyse the impugned conduct.
10
The central legal problems in this case
arose because during 2008, when Billion initially applied for
township rights on Monavoni,
it did so under the Development
Facilitation Act, 67 of 1995 (“the DFA”). The scheme of
the DFA created in Gauteng
a parallel and in substantial respects
overlapping regime of property development law along with the TPO.
Apparently the procedure
created by the DFA worked faster than that
available under the TPO. In a case like this one, an applicant could
choose whether
to apply to the GDT under the DFA or to the local
authority under the TPO.
11
Billion’s application provoked
opposition, notably by companies called Zotek, Homegold and
Atterbury.
[6]
The GDT, an organ of state vested with powers and duties in many
respects equivalent to those of a local authority under the TPO,
held
public hearings over about ten days between January and June 2009.
Everybody who wanted to be heard, including Zotek, Homegold
and
Atterbury, was heard at these hearings. On 10 September 2009, the GDT
approved the establishment of what was then called Monavoni
Extension
39, subject to certain conditions.
12
Zotek, Homegold and Atterbury went on
appeal to the Gauteng Development Appeals Tribunal (“GDAT”).
They lost. On 21
April 2010, GDAT dismissed the appeal, although GDAT
imposed additional conditions. On 23 November 2011, GDAT approved an
application
by Billion to develop Monavoni Extension 39 in two
phases, Extensions 58 and 59 respectively. The application now before
me deals
with Monavoni Extension 58.
13
On 18 June 2010, the Constitutional
Court ruled that Chapters V and VI of the DFA were
unconstitutional.
[7]
The ground of invalidity was that the impugned provisions of the DFA
infringed the autonomy of municipalities to regulate the use
of land,
zoning and the establishment of townships. The declaration of
invalidity was suspended for 24 months subject to certain
conditions.
[8]
14
The national government proceeded to
frame legislation to remedy the situation caused by the declaration
of unconstitutionality.
That legislation was passed in the form of
the Spatial Planning and Land Use Management Act, 16 of 2013
(“SPLUMA”).
In the preamble to this measure, the claim is
made that it
... is necessary that a uniform, recognisable
and comprehensive system of spatial planning and land use management
be established
throughout the Republic.
This
case shows how true that claim is.
15
SPLUMA was assented to by the President
on 2 August 2013. But under s 61, provisions of SPLUMA only come into
operation on a date
or dates fixed by the President by proclamation.
No such dates have as yet been fixed. So although counsel before me
were agreed
that the legal problems which arise in this case will be
resolved if and when the transitional provisions in s 60(3) of SPLUMA
are brought into operation, this has not yet happened.
16
All parties are furthermore agreed that
despite the Constitutional Court’s declaration of invalidity,
the GDT was empowered
to proceed with the complex procedure required
for the establishment of an urban township until the expiry of the
period of suspension
of that declaration. It did so. But certain
essential formal steps in relation to Monavoni had not been taken by
the time the period
of suspension of the declaration of
constitutional invalidity expired on 17 June 2012. Counsel for the
applicants identified 14
such steps not taken. Counsel for Billion
say that there were but four such uncompleted steps. It does not
matter who is right
on this score because it is common cause that the
township creation process under the DFA stalled on 17 June 2012. If
the parallel
procedure under the TPO had not been available, no
townships could have been created in the province of Gauteng until
the President
exercised his powers to bring the provisions of SPLUMA
into operation or other legislation was enacted and brought into
operation.
17
During argument it was suggested, rather
diffidently, by counsel for the applicants that although SPLUMA is
apparently to be brought
into operation as early as May 2014, ie in
some two to three months time,
I should nevertheless approach this case on the
footing that SPLUMA might never be brought into operation at all. I
shall not do
so. SPLUMA was enacted to remedy the very serious (as
this case shows) lacuna brought about by the constitutional
imperfections
of the DFA and the slow progress made by interested
parties for whatever reason in wending their ways through the
bureaucracy attendant
upon township establishment, in Gauteng at
least. I shall approach this case on the footing that the
constitutional obstacles so
placed in the path of Billion toward the
development of Monavoni are intended by the legislature in due course
to be eliminated
by a stroke of the presidential pen.
18
In a letter dated 18 September 2012,
Billion asked the City to implement and finalise the establishment of
Monavoni underthe TPO.
But the City required of Billion that it
submit a formal application for township establishment in terms of s
96 read with s 69
of the TPO.
19
Section 96(1 )(a) of the TPO reads:
An owner of land who wishes to establish a
township on his land may, in such form as the Director may determine,
apply in writing-
(a) to the authorised local authority within
whose area of jurisdiction the land is situated;
and if he so applies he shall comply with such
requirements as may be prescribed.
20
But it seems that the City was confusing
form with substance. Although it insisted on an application under the
TPO, the City was
operating under a policy which it had expressed in
a set of guidelines in relation to the implementation of decisions
taken on
DFA applications.
*
21
This policy document (“the
Guidelines”) is headed “GUIDELINES: IMPLEMENTATION OF
DECISIONS TAKEN ON DEVELOPMENT
FACILITATION ACT APPLICATIONS”.
It was issued on the authority of the City’s director:
corporate legal compliance,
who is recorded as having approved a
process to assist from 7 August 2012 with the implementation of
decisions taken by the [GDT]
in terms of the DFA., to be done subject
to various approved conditions, prescribed processes and procedures.
22
The policy document however then
proceeds:
Further, this document should and cannot be
considered or interpreted in any way that the local authority has any
obligation explicitly
or by implication to implement any DFA
applications, nor is it to be regarded as an acknowledgement of any
kind that the DFA can
in any manner or form continue to exist in so
far as it is unconstitutional with reference to Chapter V and VI
thereof.
These guidelines are only applicable with
regard to decisions that the City ... in its opinion can deal with
subject to the conditions
contained herein.
23
And then, before the actual guidelines
themselves are set out, the functionary required to deal with such
matters is warned that
what is to follow are only guidelines which do
not cover all eventualities.
24
What, one wonders, is the procedure to
be followed in the light of the policy expressed in the Guidelines by
the unfortunate functionary
required to pick up the pieces of the
stalled DFA processes? Is he required to treat the application to the
City under s 96(1 )(a)
of the TPO as he does every other such
application? Probably not. Is he required to implement the decisions
of the DFA? The only
answer with which I can come up is yes, perhaps,
sometimes.
25
The policy document gains somewhat in
clarity when one reads it subject to what is contained in an
accompanying document headed:
“SUGGESTED PROCESSING OF
IMPLEMENTATION OF DFA APPLICATIONS”. It begins by reciting the
cautions in the policy document
about the unconstitutionality of
Chapters V and VI of the DFA and pointing out that the provisions and
functions in the DFA were
“no longer capable of being used or
implemented". But the processing document continues:
The City... shall attempt to implement
applications subject to the classifications hereunder, provided the
applications are in line
with the policies of the Council and if they
were supported by the Council in its sole opinion, [emphasis as in
the text]
26
The processing document then deals with
different types of applications that may come before the City after
having their progress
through the DFA procedure stalled by the
declaration of constitutional invalidity and the expiry of the period
of suspension of
that declaration, including cases such as the
present where the township was approved under the DFA but did not
come into operation.
The processing document observes, correctly,
that if such an application is a new application, “the
provisions of section
69(3) to (11) shall apply." It then deals
extensively with a practical problem functionaries can expect
frequently to encounter
in relation to such “new”
applications. The general rule, imported by s 33 of the Constitution,
which PAJA seeks to
implement, is that where administrative action is
contemplated which materially and adversely affects the rights of the
public,
the administrator (in this case the City through its
delegated functionary) should consider which of a range of possible
courses
would be appropriate in the circumstances to give effect to
the right of members of the public to be heard before the proposed
action is taken.
27
In s 4(1) of PAJA, an administrator is
enjoined to decide whether to hold a public enquiry or a notice and
comment procedure (or
both). In addition, and where the
administrator, is empowered by any empowering provision, the
administrator must decide whether
some other fair but different
procedure should be followed. If the public enquiry procedure is
selected, s 4(2) sets out the procedure
which should be followed. If
the notice and comment procedure is selected, s 4(3) sets out the
procedure which should be followed.
But all this is subject to s
4(4): where it is reasonable and justifiable in the circumstances,
the administrator might legitimately
depart from the provisions to
which I have referred, if in doing so he takes into account all
relevant factors.
28
It seems that the author of the
processing document focussed exclusively on the provisions of s
69(6)(a) of the TPO and overlooked
the prescriptions of PAJA to which
I have referred. Section 69(6)(a) reads:
After the provisions of subsections (1) and (2)
have been complied with-
(a) the local authority may, in its discretion,
give notice of the application by publishing once a week for 2
consecutive weeks
a notice in such form and such manner as may be
prescribed; ...
29
The processing document makes reference
to the text of s 69(6)(a) and then reads in this regard:
This effectively means that the application
does not have to be re-advertised unless the local authority so
requires. To comply
with PAJA there is fair justification to exercise
this discretion since the application has already gone through a
public participation
process, only in terms of different legislation.
30
While I agree that a prior public
hearing is a factor which might legitimately weigh, even weigh
heavily, with an administrator
acting in the present context under s
69(6)(a) of the TPO, I think that this recommendation is too widely
stated. It invites the
individual administrator to select one of only
two choices: to direct publication as provided for in s 69(6)(a) or
to direct that
no such publication is necessary, which means that no
notice of any kind, to any member of the public at all, need be
given. It
does not direct the attention of the functionary to the
provisions in PAJA regarding a notice and comment procedure or other
fair
and reasonable procedure to ensure the protection of the right
of members of the public to be heard in regard to the proposed
action.
31
My impression is reinforced by the terms
of paragraph 4 of the processing document:
The biggest stumbling blocks will be revealed
when there are points of dispute between the local authority and the
GDT overruled
the objections of the local authority. Further, there
should be an understanding that the engineering services agreements
shall
also become a problem because they might have to be reaffirmed
as engineering services agreements in terms of Chapter 5 of the
Ordinance instead of section 40 of the DFA. This will require an
understanding from all parties that the township is only a conversion
and except for small non-material implementation amendments
it should not be a process whereby the terms
are being renegotiated.
If the rights that
are applied for differ in any way you will understand that it means
that the application can only be regarded
as a new application and
will have to go through the full township establishment process, [my
emphasis]
32
It is clear what happened: the City was
faced with a novel and confusing situation. On the one hand,
applicants under the DFA whose
applications had stalled because of
the expiry of the suspension of the declaration of constitutional
invalidity had certain rights
which one may describe as vested
because nothing in that declaration vitiated such rights. On the
other, the City could only process
such applications where they were
brought under the TPO. The City sought to resolve this apparent
conflict by according special
status to stalled DFA applications: the
solution devised by the City was that such stalled DFA applications
as were brought before
the City under the TPO in substantially the
same terms would - if the City had supported the application under
the DFA process
- be treated not as “new” applications
(in which the full rigour of the TPO would be applied) but as
“conversions”.
33
Counsel for Billion sought to justify
this hybrid procedure on the footing that the fact that an applicant
who applied to the City
because its DFA application had so stalled
had vested rights. These vested rights would in context always relate
to steps in the
DFA process toward township establishment. I think
that this argument rests on a misconception of the nature of the
rights which
vested. Whatever
• other content such rights had, they did
not constitute, as such, rights under the TPO. That is because, quite
simply, no
functionary acting under the TPO had applied his mind to
the relevant question. So, although what such an applicant enjoyed
was
a right under the DFA which, absent the declaration of
constitutional invalidity, would have entitled such an applicant to
proceed
to the next stage of the DFA process of township development,
such an applicant enjoyed no such right under the TPO process.
34
Applicants whose applications under the
DFA had stalled should therefore have been treated in the same way as
applicants who had
brought what the City called “new”
applications. In truth both categories were new applications because
they had never
before been brought under the TPO. It is of course
quite correct that in the stalled applications there was, as in the
present
case, likely to be material before the City which was
generated in the course of the DFA process and that the City might in
a proper
case have regard to such material. But that fact did not, as
a matter of principle, empower the City to create a special category
of TPO applications for which there was no recognition in the TPO
itself.
35
I must also make reference to a document
drawn by the City which it required applicants under the TPO with
stalled DFA applications
to sign. It is-headed “ACKNOWLEDGEMENT
AND WARRANTY: LAND DEVELOPMENT APPLICATION”. The acknowledgment
document records
that the City “resolved to attempt to
implement Land Development Applications”; and that the
applicant is “fully
aware of the risks of the “implementation”
[quotation marks as in original] of the Land Development
Application”.
36
The conclusion is to my mind
irresistible: the City decided as a matter of policy, in relation to
TPO applications for the establishment
of townships following stalled
DFA applications for the same relief, to subordinate its own decision
making powers in certain substantial
but largely undefined respects
to those which had been exercised by the GDT. As a matter of policy,
therefore, the City fettered
its own discretion in a manner not
permitted by the TPO.
[9]
37
I have analysed the City’s policy
in relation to stalled DFA applications which then came before the
City as “new”
TPO applications. The question remains,
however: on what basis was Billion’s TPO application to the
City treated? Counsel
for the first and second respondents contend
that, in effect, the policy was overridden by the functionaries who
dealt with the
application on its merits strictly in accordance with
the relevant provisions of the TPO.
38
It permissible and may in certain cases
well be desirable for an administrator to develop a guiding policy.
There must nevertheless
be an exercise of discretion in cases where
such a policy exists.
[10]
But in my view it is not open to the respondents to contend that the
policy as formulated in the documents I have discussed was
not
implemented. In paragraph 110 of the City’s answering
affidavit, the assertion if made that Billion’s TPO application
to the City was indeed “considered and dealt with in line with
the guidelines and the [TPO]”.
39
It thus follows in my view that the
applicants have established their contention. By following the
process it did, the City’s
action failed, impermissibly, to
take into account those considerations prescribed by the TPO where
similar or even identical considerations
were
prescribed by the DFA and had been dealt with
by the GDT. The process so followed was not authorised by the
empowering provisions
of the TPO.
[11]
40
I have already referred to what in my
view was the impermissible manner in which the City approached its
discretion under s 69(6)
of the TPO in regard to advertising
Billion’s TPO application to it. There are certain factual
matters relevant to the question
whether in fact the right of the
public to be heard on the question was infringed by the way that the
City approached the matter.
41
The TPO application was preceded by
lengthy public hearings under the DFA, culminating in the appeal to
GDAT. Counsel for the applicants
accepted during argument that until
the appeal was dismissed by GDAT in 2010, the administrative action
that had been undertaken
was without any reviewable flaw and that the
rights of the public to be heard had received their full legitimate
expression.
42
The applicants submit, relying on the
evidence of a town planner, Mr Dacomb, that because of the time which
had elapsed between
the hearings and the consideration of Billion’s
TPO application to the City, there were changed circumstances which
warranted
full advertisement
under s 69(6) so that interested parties could
once more ventilate their concerns. -
43
But town planning is not based,
necessarily, on a static situation. The more so, when a new
development such as that on Monavoni
is under consideration. The
evidence for the City and Billion was that when considerations such
as traffic and general desirability
are considered, projections as to
what is likely to take place in the future are brought into account.
I am satisfied that this
evidence is correct. Indeed, it could hardly
be otherwise.
44
Counsel for the applicants also argued
that certain steps in the process of township creation under the TPO
had, as a matter of
law, to be completed before any approval was
given by the local authority under s 96(1 )(a). I do not think that
any of the uncompleted
steps (eg expropriation of land for roads)
present in this case need have been completed before approval was
given. There is textual
support for this conclusion in certain
instances in the TPO itself. I need not deal with those provisions
because the very power
to approve subject to conditions necessarily
implies that certain steps will be uncompleted on the date approval
is given. Counsel
for the applicants themselves observed in their
written argument
[12]
that the discretion to impose
conditions is
extremely wide, its only limitations being those imposed . by law. le
that the functionary must apply his mind properly,
act honestly and
in good faith, without ulterior motive, and must not impose
unreasonable conditions.
45
The first applicant is a property
developer in direct competition with Billion. The second applicant
owns property near Monavoni
and is active in the retail trade in
Centurion. Both the first and second applicants objected to Billion’s
application under
the DFA and were heard during the public hearings
which followed the objection. I do not know the precise relationship
between
the first and second applicants. But they are represented in
these proceedings by their director and deponent to the applicants’
main founding affidavits, Mr Anastasiades. The first and second
applicants jointly objected, through the same attorney, to Billion’s
DFA application. All the applicants were represented before me by the
same counsel and attorneys. The third applicant is the owner
of and
is resident upon an agricultural holding 500 metres north of the
development on Monavoni. The third applicant did not object
to the
DFA application.
46
There is no indication in the papers of
the relationship between the first and second applicants on the one
hand and the third applicant
on the other. The objection of the third
applicant is restricted to the effect
that the proposed development, half a kilometre
away from him, will have on the peace and tranquillity of what he
calls his agricultural
[13]
life style. The third respondent does not explain why, having taken
no objection to the DFA application, he has joined in this
application. It is difficult to understand why he seeks to object at
this late stage and I do not think that the City when considering
how
to exercise its discretion under s 69(6) need, in the light of the
public hearings under the DFA, to have taken persons in
the third
applicant’s position into account. I conclude that there is no
valid reason to distinguish between the applicants
in relation to the
interest which they have come to court to protect.
47
Another factor I take into account in
this part of the case is that counsel for the applicants, when driven
to do so by the court,
set out the issues upon which the applicants
said they still wished to be heard and in relation to which they
contended that the
hearing before the DFA had been inadequate. These
issues are far removed from the extensive complaints made in the
founding affidavit
and were identified by counsel for the applicants
as emerging from a single paragraph with three subparagraphs at page
3 159 of
the papers, a paragraph in the applicants supplementary
founding affidavit delivered under rule 53(4) when the record on
review
became available. This paragraph reads as follows:
3.5 From the above it is clear that the [City],
before having taken its decision on 7 December 2012 or [on?] to
approve the relevant
township application or not, it had to have
complete certainty as to
3.5.1
what roads will need to be designed and
constructed in order to provide sufficient access to the proposed
development;
3.5.2
whether the necessary environmental
authorisations were in place permitting the construction of such
roads; and
3.5.3
whether the necessary expropriations
necessary in order to construct such roads were finalised.
48
I must explain how the first and second
respondents came to be interested in Monavoni’s development in
the first place. In
2004, Zotek and Homegold applied for township
development on Heuweloord Extension 12. Approval was granted in 2009.
In 2011, this
township was divided into two separate townships,
Heuweloord Extensions 18 and 19 respectively.
[14]
In 2012, Homegold and Zotek sold Heuweloord Extensions 18 and 19 to
the first applicant. The respective sale agreements were suspensively
conditional. Homegold and Zotek undertook in the sale agreements to
advance and protect the interests of the first applicant in
relation
to town planning matters. The first
Page 25
applicant is now, in 2014, in the process of
taking transfer of the Heuweloord townships. It is inconceivable that
the first and
second applicants, in the person of Mr Anastasiades,
were not completely aware of all the dealings of Zotek and Homegold
in relation
to Monavoni and Billion’s application to the City
under the TPO.
49
To be more specific: both the Heuweloord
agreements were originally dated 18 May 2012, one month before the
expiry of the order
of suspension of constitutional invalidity. Both
were signed by Mr Anastasiades, were in close to identical terms and
were subject
to a satisfactory due diligence investigation by
representatives of first the applicant’s representatives
... in respect of the Property and the status
of the township development with regard to the property ...”,
as well as being subject to a written advice to
the seller within 60 days after signature that the first applicant
wanted to proceed
with the transaction. I agree with counsel for
Billion, that in commercial terms Mr Anastasiades held options in
relation to the
Heuweloord townships.
50
An addendum to both agreements was
concluded on 13 July 2012. The addendum extended the period of the
suspensive conditions to
31
October 2012, firstly to enable Zotek
and Homegold to have the opportunity to have an area called the
Theron Road area transferred
to Homegold and incorporated into
Homegold’s Heuweloord township; and, secondly, to afford the
first applicant the opportunity
to approach the City at its own cost
to agree in principle to achieve access into and out of the
Heuweloord townships from a road
called Marais Road. Further, under
the addendum, Zotek and Homegold undertook to provide the first
applicant with whatever reasonable
assistance it required in this
regard.
51
The background to all this is that there
is presently or initially was indeed access from the Heuweloord
townships to Marais Road.
But in accordance with the City’s
master plan for the area, the City intends to have a fly-over
constructed in Marais Road
to link Marais Road with an important
provincial road called the R55. This fly-ever, when completed, will
exclude the Heuweloord
townships from direct access to Marais Road.
There will still be access from these townships to Marais Road, but
the journey by
road of most of the residents from their homes in the
Heuweloord townships to Marais Road will probably take a bit longer.
52
This was at issue when the establishment
of the Heuweloord townships came before the City under the TPO. The
simple truth, inconvenient
for the applicants, is that Zotek and
Homegold consented to the construction of the fly-over and Mr
Anastasiades knew at all material
times that they had so consented.
Zotek and Homegold knew when the Heuweloord townships were
established that the fly-over which
would deprive them from direct
road access to Marais Road was proposed and therefore likely to be
constructed. Having themselves
agreed to the construction of the
fly-over in relation to their own townships, it is absurd that they
should want a hearing to
object to the fly-over in relation to
Monavoni. I have found that the first applicant is in every relevant
respect the successor
to Zotek and Homegold and that the three
applicants do not have separate interests in relation to the
desirability of Monavoni.
53
So the motive of the applicants in
bringing this application is quite clearly not to demonstrate in due
course the undesirability
of the decision to establish Monavoni but
to secure an economic advantage for Mr Anastasiades to which in his
true representative
capacity as the prospective owner of the
Heuweloord townships, Mr Anastasiades was not entitled.
54
It is correct, as counsel for the
applicants submitted, that the motive of an applicant for bringing an
application- for judicial
review is generally not relevant to the
question whether the decision passes the muster of PAJA. But in my
view the motive of the
applicants, what they seek on their own
version to address in a resumed TPO process before the City and heir
own knowledge or imputed
knowledge of what has already transpired in
the TPO process before the City are all relevant to the question
whether the applicants
were adequately heard on relevant matters
before the City took its decision on 7 December 2012
.
55
The applicants have attached to their
founding affidavits a series of letters which passed shortly before
the decision was taken.
These letters were put up by the applicants
without comment. So it can hardly be argued successfully, as counsel
for the applicants
sought to do, that any of these letters is
otherwise than regular and what it purports to be.
56
The first two of these letters are dated
18 October 2012. They are written by Mr Fyall, the projects director
of Zotek and Homegold
respectively, to the City’s municipal
manager.
[15]
The letters display a knowledge of the history of the progress of
Billion’s applications under the DFA and the TPO, as well
as
the policy of the City in relation to advertising in terms of s 69(6)
as expressed in the Guidelines.
[16]
Zotek and Homegold refer to their status as objectors under the DFA
process and submit that they are entitled to be fully informed
of any
application under the TPO.
57
These two letters were submitted to the
City’s strategic executive director, city planning, development
and regional services
undercover of a letter dated 31 October 2012
written by town planner Ms Messner-Roloff on behalf of Zotek and
Homegold. The letters
were followed up by a further letter dated 15
November 2012 from Ms Messner-Roloff which reads:
The letters from Homegold ... and Zotek ...
submitted to the City ... on 31 October 2012 regarding the submission
of applications
fortownship establishment Monavoni Extensions 58 and
59 refer.
We would like to place on record that our
clients are willing to withdraw the objections against the submission
'and approval of
the townships ... in terms of ... the [TPO] ...to
adopt the decisions granted by the [GDT] in terms of the [DFA]
subject to the
following:
1)
that the City ... reconsider the
excessive road upgradings required for the proposed townships with
specific reference to the “fly
over” required between
Marais Road and the Provincial Road K71;
2)
That the previously approved access to
the proposed township Heuweloord Extension 18 (a division of
Heuweloord Extension 12) from
Marais Road be reinstated; and
3)
That the Tsh wane Roads Master Plan be
amended accordingly, [my emphasis]
58
The letter concludes with a statement
that it was written without any prejudice of rights. As the letter
was put up by the applicants
in their founding affidavit, it cannot
be, and was not, suggested that the letter constituted an
inadmissible offer of settlement.
But to my mind it was an offer of
settlement of sorts: it offers to trade the nuisance value
represented by Zotek and Homegold’s
potential for objecting to,
and thereby complicating and delaying, Billion’s TPO
application for a concession on the Marais
Road fly-over.
59
The City, acting in accordance with the
policy articulated in the Guidelines, did not recognise that Zotek
and Homegold were entitled
to a hearing on the issue of roads. The
City thought that the rights of Zotek and Homegold had been
adequately catered for in the
DFA process. But in what was described
in argument before me as an act of grace, the City had regard to the
contents of Ms Messner-Roloff’s
letter dated 15 November 2012.
It referred the letter to its own transport department for comment.
In a letter dated 30 November
2012, a representative of the City’s
executive director: infrastructure design, construction and
maintenance division responded:
Comments are herewith provided on the points
raised in the letter
[17]
from [Ms].. Meissner-Roloff...:
1.
In terms of the roads master plan for
the area, the following comments are made: The planned K52 is an
east/west class 2 road and
is situated about one kilometre towards
the north of the M34. It is planned to link with the future PWV9. The
main function of
this road will therefore be to provide access to the
freeway network as well as the east/west mobility in the area. The
M34 is
a class 3 road with the function to provide east/west mobility
for traffic just wanting to cross the PVW9. Marais Road is planned
as
a class
3
road
with the function to provide east/west mobility within as well as
through the core of the planned node for the area.
A traffic study has been done in which the
estimated future traffic demand for the area has been taken into
account. In order to
allow for future traffic demand, it was proposed
in the study that a grade separation
[18]
be provided at the intersection of the R55 with Marais Road. Since
the R55 is a provincial road, the findings of the study were
discussed with officials from the Gauteng Department of Roads and
Transport.
The intersection of Marais Road with the R55
will serve as the main access to the core off the node. It will
provide access from
the R55 (which is a north/south road), the N
14-freeway as well as from the east via Apiesdoring Road. Since it
will be a 4- legged
intersection, it can be expected to have limited
capacity, especially due to the heavy turning movements expected at
the intersection.
It was also agreed with the province that the grade
separated ramp must be provided.
To ensure proper accessibility to the node, it
can therefore be concluded that the grade separated ramp from west to
east (“fly
over”) cannot be removed from the road
network.
2.
A new layout plan has been approved for
Heuweloord Extension 18. The previous direct access to Marais Road is
not in line with the
approved plan and cannot be supported.
3.
The Tshwane Roads Master Plan was
compiled with the view to ensure satisfactory access to the node,
once the node has developed
to its potential. The master plan can
therefore not be amended at this stage, without taking the future
accessibility to the area
into account, [my emphasis]
60
The controversy over the proposed Marais
Road fly-over was nothing new. It h£d been raised in the DFA
process and dealt with
much as the letter dated 30 November 2012
indicated. The City was entitled to take this history into account.
The minutes of the
meeting of the City’s planning and
development committee in December 2012, at which Billion’s TPO
application was considered,
do not reflect any discussion of the
opposition to the proposed Marais Road fly-over. But the minutes show
that the documents to
which I have referred were before the committee
when it took its decision. The terms of that decision necessarily
imply that the
City applied its mind to the opposition of Zotek and
Homegold to the fly-over and decided against them. The City’s
decision
to reject the objection cannot be faulted.
61
So, to summarise: the City legitimately
decided to exercise its discretion against advertising in the wide
sense because it was
entitled to assume that members of the public
generally who wanted to be heard on the application had been heard
under the DFA
process. But it should have taken reasonable steps to
identify those who might want to be heard on Billion’s TPO
application
and to employ a notice and comment procedure in relation
to such persons. If it had done so, it would have identified Homegold
and Zotek. It could not, without information supplied by Zotek and
Homegold, have known that Mr Anastasiades or his companies were
interested parties. But, as I have found, Mr Anastasiades and,
through him, his companies knew of Billion’s TPO application.
They chose not to object or otherwise declare their interest. They
chose to have their interests represented by Zotek and Homegold.
The
third applicant before me wanted, as his counsel made clear in
argument, only to be heard on the Marais Road fly-over; but
why the
third applicant should genuinely want to be heard on this question
escapes me.
62
In fact, more by accident than design on
the part of the City, Zotek and Homegold and, by extension Mr
Anastasiades and his companies,
were heard by the City, before the
City’s decision of 7 December 2012, on the very question upon
which they wanted to be
heard. So there was no failure of audi
alteram partem. The review grounds subsumed under this head must
fail.
63
So the applicants have established one
broad ground of review: that in approaching Billion’s TPO
application in accordance
with its policy as stated in the
Guidelines, the applicant misconceived and impermissibly abridged its
own jurisdiction. Did this
administrative error lead to a failure of
administrative justice?
[19]
In my view it did not. I shall now turn to the exercise of my
discretion.
64
I have no discretion as to the order I
must make in relation to the process followed by the City in
considering Billions’s
application under the TPO. But I do have
discretions in relation to the prayers for the decision under attack
to be set aside.
In exercising this discretion, I shall try to strike
a balance between the interests of the parties and the public at
large in
whose interests the City must act.
[20]
65
As I see it, justice requires that I
should not set aside the decision of
7
December 2012 to establish Monavoni. In
coming to this decision,
I
attach
weight to the following factors:
65.1
This is not a case of a developer of
property who sets out to
act in conflict with the law in the hope that
he will ultimately be able to point to substantial improvements,
hoping that a sense
of judicial reluctance to order the demolition of
a well built structure will let him get away with his unlawful
scheme.
[21]
65.2
In the present case, Billion has
developed Monavoni in accordance with administrative decisions in its
favour.
[22]
This is not a case where the developer has flouted the rule of law.
Billion brought its DFA application under a legislative property
development regime then in operation. It is not suggested that
Billion was at fault in relation to its inability to complete the
township establishment process within the period of suspension of the
declaration of constitutional invalidity of that legislative
regime.
65.3
The legislature, by the enactment of
SPLUMA, has indicated that Billion’s vested rights derived
under the DFA process will,
upon the coming into operation of SPLUMA,
be capable of being converted into rights of the same character as
those conferred by
the City’s decision to establish Monavoni.
65.4
Through the DFA process, everybody who
wanted to be heard on the desirability of establishing Monavoni was
heard. There is no indication
at all that in the time that has
elapsed since the hearings underthe DFA, new issues in that regard
have arisen. It is highly unlikely,
to say the least, that if the TPO
process before the City were to start again, whether from the
beginning or in some truncated
form,
[23]
the result would be.any different.
65.5
The Marais Road fly-over issue, the real
grievance of the applicants, has already been exhaustively
ventilated. The applicants have
no^put up any material to contradict
the views of the City’s transport department as evidenced by
the letter dated 30 November
2012.
65.6
There is no indication at all that the
decision of the City to construct the Marais Road fly-over was
anything other than rational
or that any further process will cause
the City to change its mind on this question.
65.7
The applicants are driven by an ulterior
purpose: to exert pressure on the City to change its position in
relation to the Marais
Road fly-over. They will suffer no prejudice
at all if the shopping centre is allowed to be completed.
65.8
The shopping centre development will
enhance the area. It will provide an amenity for the residents of the
area, jobs for many people
and an additional source of revenue for
the City. The rates derived from Monavoni as developed will far
exceed the rates payable
in respect of Monavoni as agricultural
holding.
65.9
If the decision to establish were set
aside, great financial hardship would be caused to Billion, those
engaged in the construction
of the shopping centre, from large
contractors down to labourers and their families, to Nedbank and to
the City. Nedbank has financed
the development to the present sum of
R800 million. Nedbank’s security lies in the fact that
Monavoni, the security for the
advances Nedbank has made, will in the
future provide revenue mainly in the form of rentals. If Monavoni
loses its character as
a shopping centre, the chances of Nedbank’s
recouping its investment will be significantly diminished.
65.10
There are presently large uncompleted
concrete structures on Monavoni. It will never again have the
character of an agricultural
holding. If the development is halted,
it will become an eyesore with no value except as a potential
shopping centre.
66
I turn to the prayer to review and set
aside the decision to allow Billion to approve building plans for
Monavoni. The decision
to allow building in accordance with the plans
submitted by Billion flowed from the decision to establish Monavoni
as a township.
Once the establishment decision is allowed to stand,
then the foundation for the second building plans decision has not
been removed
[24]
and there is no basis upon which to impugn the second decision. In
any event, the same factual considerations as those above apply
to
the exercise of my discretion to make an order in this regard that is
just and equitable.
67
These conclusions mean that the prayer
for an interdict must be refused. What was sought was an interim
interdict, to operate after
the decisions under attack had been set
aside and pending the conclusion of a fresh process to be undertaken
by the City. As I
have declined to set any decision aside, there is
no room for such an interdict. But I am bound to add that even if the
applicants
had been successful in that regard, I would have refused
the interdict on the ground that the balance of convenience favoured
the
respondents on the material in paragraph 65 above.
68
There remains the question of costs. On
the authority of Allpay para 97, I am' bound to conclude that the
applicants have been substantially
successful. But the respondents
who opposed the application have been equally successful, if not more
so. I think costs must lie
where they fall. I shall make no order as
to costs.
69
I make the following order:
1
The decision of the first respondent on
7 December 2012 approving the second respondent’s application
in terms of the Town-Planning
and Townships Ordinance, 15 of 1986 for
the establishment of Monavoni Extension 58 Township (“the
approval decision”)
is declared to be inconsistent with the
Constitution and unlawful.
2
The court declines to set aside the
approval decision.
3
The prayer for the review and setting
aside of the first respondent’s approval of building plans on
10 May 2013 in relation
to Monavoni Extension 58 Township is refused.
4
The prayer for an interdict in relation
to construction on and occupation of buildings on Monavoni Extension
58 Township is refused.
5
There will be no order as to costs.
NBTuchten Judge of the High Court
5
March 2014
[1]
The applicants allege in terms that the City rubberstamped
Billion’s
application to
the City under the TPO.
[2]
Allpay Consolidated Holdings (Pty) Ltd and Others
v Chief Executive
Officer, South African Social Security Agency, and Others
2014 1 SA
604
CC para 25
[3]
As required in terms under s 172(1 )(a) of the Constitution.
[4]
As required in terms under s 172(1 )(b) of
the Constitution.
[5]
Allpay paras 84 and 85
e
For the full names of the objectors, see
paragraph 5 of the judgment of Kollapen J.
[7]
Johannesburg Metropolitan Municipality v Gauteng
development
Tribunal and Others
2010 6 SA 182
CC.
[8]
Paragraph 95 of the Constitutional Court judgment.
g
I
am
guided, in coming to this conclusion, by the reasoning in Minister
of Local Government, Western Cape v Lagoonbay Lifestyle
Estate and
Others
2014 1 SA 521
CC para 65.
[10]
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and
Others
[2004] ZACC 15
;
2004 4 SA 490
CC para 57; see also Kemp NO v Van Wyk
2005 6
SA 519
SCA paras 1 and 10.
[11]
Sections 6(2)(b), 6(2)(e)iii) and 6(2)(f)(i) of PAJA
[12]
On the authority of Administrator, Cape Province v Ruyterplaats
Estates (Pty) Ltd
1952 1 SA 541
AD 554C
[13]
Actually, what used to be called a peri-urban life style.
The third
applicant lives on what is known in Gauteng as a plot.
[14]
The Heuweloord townships are a few hundred metres from
Monavoni.
[15]
These letters show that Zotek and Homegold also had the
same head
office, postal address, email address, web page and managing
director, the only director of either company identified.
[16]
It seems, in addition, likely that the applicants, and
therefore
Zotek and Homegold, knew of the existence and contents of the
Guidelines because the Guidelines are an annexure to
the applicants’
founding affidavit, drawn before the applicants gained access to the
record on review.
[17]
The context makes it clear that the response was to the
letter dated
15 November 2012, the contents of which I have quoted.
“Grade separation” is the
technical tern for a fly-over.
[19]
One should not forget that the heading to s 33 of the Constitution
is “Just Administrative Action” and that PAJA was
intended, as its name makes plain, to promote administrative
justice.
[20]
Compare Millennium Waste Management (Pty) Ltd v Chairperson,
Tender
Board Limpopo and Others
2008 2 SA 481
SCA paras 22 and 23
[21]
Compare the facts in Lester v Ndlambe Municipality
[2013] ZASCA 95
[22]
I have not overlooked the fact that at one stage the City
caught
Billion out for building otherwise than in accordance with approved
plans
[23]
As sought by counsel for the applicants for the first time
in oral
argument in reply.
[24]
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 6 SA
22
SCA para 13; Camps Bay Ratepayers’ and Residents’
Association and Another v Harrison and Another
2011 4 SA 42
para 62