About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 181
|
|
Nabuvax (Pty) Ltd and Others v City of Tshwane Metropolitan Municipality and Others (31875/13) [2013] ZAGPPHC 181; [2013] 3 All SA 528 (GNP) (2 July 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
REPUBLIC OF SOUTH AFRICA )
CASE
NO: 31875/13
DATE:02/07/2013
IN
THE MATTER BETWEEN:
NABUVAX
(PTY)
LTD
....................................................................
1ST
APPLICANT
PROC
CORP 160 (PTY)
LTD
........................................................
2nd
APPLICANT
JOHANNES
JACOBUS CORNELIUS NAUDE
..........................
3rd
APPLICANT
AND
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
..............
1ST
RESPONDENT
BILLION
PROPERTY DEVELOPMENTS (PTY) LTD
.................
2nd
RESPONDENT
GAUTENG
DEPARTMENT OF TRANSPORT
.............................
3rd
RESPONDENT
&
PUBLIC WORKS
SOUTH
AFRICAN NATIONAL ROAD AGENCY
..........................
4
th
RESPONDENT
NEDBANK
LIMITED
.......................................................................
5
th
RESPONDENT
GROUP
FIVE
LIMITED
...................................................................
6th
RESPONDENT
JUDGMENT
KOLLAPEN
J
Introduction
[1]
This is an application brought on the basis of urgency and in terms
of which the applicants, in Part A thereof and pending finalization
of Part B of the application, seek an order that interdicts the
second respondent from performing any construction activities on
Monavoni Extension 58 (the subject property), alternatively
interdicting the second respondent from performing any construction
activities on the subject property until such time as the first
respondent has approved building plans in respect thereof in terms
of
the National Building Regulations and Building Standards Act 103 of
1997 (the ‘NBRBSA’).
[2]
In Part B of the application the applicants seek an order reviewing
and setting aside the decision taken by the first respondent
on the
7th of December 2012 approving the second respondent’s
application in terms of Section 98 of the Town Planning and
Townships
Ordinance 15 of 1986 (‘the Ordinance’) for the
establishment of Monavoni Extension 58 township.
The
first, second and fifth respondents oppose the relief sought.
The facts
The
facts underpinning the dispute are not substantially in issue and may
be summarized as follows:
[3]
During June 2008 the second respondent applied for the establishment
of a township on the subject property in terms of the Development
Facilitation Act No 67 of 1995 (the ‘DFA’). The
advertisements in respect of the application were effected on the 4th
of June and on the 28th of June 2008. The second applicant intimated
its objection to the proposed application on the 24th of June
2008.
[4]
During July 2008, the second respondent withdrew its application and
on the 21st of July 2008 it submitted a second application
in terms
of the DFA in substantially the same terms as the first application.
This application was advertised on the 17th of September
2008 and on
the 24th of September 2008.
[5]
Objections were received from various parties including Zotec
Developments (Pty) Ltd (‘Zotec’) the registered owner
of
Heuweloord Ext 19, Homegold Development (Pty) Ltd (‘Homegold’)
the registered owner of Heuweloord Ext 18 and Atterbury
Property
Development (Pty) Ltd (‘Atterbury’). Following various
pre-hearing meetings held in terms of the DFA, public
hearings were
scheduled and conducted by the Gauteng Development Tribunal (the
‘GDT’) over a period of approximately
ten days between
January 2009 and June 2009. Those participating and represented at
the hearings included Zotec, Homegold and Atterbury
(as objectors) as
well as the first respondent as the relevant local authority and the
second respondent as the applicant before
the tribunal.
[6]
On the 10th of September 2009 the GDT approved the application of the
second respondent and in doing so approved the establishment
of
Monavoni Ext 39 on certain conditions. Zotec, Homegold and Atterbury
filed an appeal against the decision of the GDT which came
before the
Gauteng Development Appeals Tribunal (‘GDAT’) and on the
21st of April 2010, the GDAT dismissed the appeal,
upheld the
decision of the GDT and imposed additional conditions.
[7]
On the 18th of June 2010, the Constitutional Court ruled that
Chapters V and VI of the DFA (in terms of which the second
respondent’s
application was brought)
was
unconstitutional but suspended the order of invalidity until the 17th
June of 2012.
[8]
On the 18th of November 2011 the GDAT approved the subdivision of
Monavoni Extension 39 into Extensions 58 and 59 and on the
23rd of
November 2011, the GDAT approved an application by the second
respondent to phase the development of Monavoni into two
phases -
Extension 58 and Extension 59 respectively.
[9]
On the 10th of April 2012 the GDAT approved conditions of
establishment in respect of the township Monavoni Ext 58.
[10]
During May 2012 Homegold sold Heuweloord Ext 18 to the first
applicant and in July 2012 Zotec sold Heuweloord Ext 19 to the
first
applicant
[11]
On the 7th of August 2012, the first respondent published what it
titled ‘Guidelines: Implementation of Decisions taken
on
Development Facilitation Act Application
’ which was described
by the first respondent as ‘a process to assist with effect
from 7th August 2012 with the implementation
of decisions taken by
the Gauteng Development Tribunal in terms of the
Development
Facilitation Act.’
[12]
On the 18th September 2012, the second respondent submitted a written
request to the first respondent ‘for the implementation,
facilitation and finalization of the approved Land Development Area
known as Monavoni Ext 58 in terms of the Town-Planning and
Townships
Ordinance 1986’.
[13]
On the 18th of October 2012 Zotec and Homegold wrote to the first
respondent requesting that they be informed of any process
by which
the first respondent was to deal with the second respondent’s
DFA application to its conclusion. There was no response
by the first
respondent to this letter and the request it incorporated.
[14]
The position taken by the first respondent in response to the request
of the second respondent of the 18th of September 2012
was to request
the second respondent to submit a new application to it in terms of
the Ordinance. The second respondent duly submitted
an application
for township establishment in respect of Monavoni Ext 58 in terms of
Section 96 read with Section 69 of the Ordinance.
[15]
On the 3rd of December 2012, a special meeting of the first
respondent’s City Planning and Development Committee, after
considering a request in that regard made by the second respondent,
resolved ‘that the request by the applicant for the City
not to
advertise in terms of the advertising procedure as stipulated in
Section 69(6)(a) of the Ordinance 1986 on the proposed
township
Monavoni Ext 58 be approved’.
[16]
On the 7th December 2012 the first respondent approved the
establishment of Monavoni Ext 58.
[17]
During the timelines indicated above, various collateral and related
events occurred with regard to both the DFA process and
the processes
of the first respondent and they included but were not limited to the
approval of the General Plan of the township
by the Surveyor General
on the 1st of February 2012, the conclusion of agreement on
electrical services on the 6th of February
2012, the conclusion of an
agreement on sewerage services on the 11th of April 2012, a water
services agreement on the 22nd of
May 2012 and the opening of the
township register on the 13th of August 2012.
[18]
On the 1st of October 2012 the second respondent commenced earthworks
on the subject property and commenced construction during
the
beginning of February 2013 resulting in the first respondent issuing
a contravention notice in terms of Section 4(1) of the
NBRBSA on the
15 th of February 2013.
[19]
On the 20th of February 2013 the second respondent submitted building
plans to the first respondent for approval and following
an
application submitted by the second respondent on the 15th of March
2013 for provisional authority to continue with building
activity
under Section 7(6) of the NBRBSA, the first respondent granted such
provisional authority on the 10th of May 2013.
[20]
The applicants launched these proceedings on the 22nd of May 2013 and
in seeking the relief to which reference has already
been made, take
the stance that the decision by the first respondent of the 7th of
December 2012 to approve the second respondent’s
application in
terms of the Ordinance was amongst other things ultra vires its
powers, was illegal in that it was procedurally
unfair to the extent
that it violated the peremptory provisions of the Promotion of Just
Administrative Action Act (‘PAJA’),
and was taken in
conflict with the other provisions of PAJA including that it failed
to properly consider the matter and failed
to take into account
relevant considerations.
[21]
The first, second and fifth respondents in opposing the relief sought
have raised various defences which include in limine
a challenge to
the applicants’ locus standi as well as contending that the
application was not instituted without unreasonable
delay as is
required by PAJA. In addition the respondents dispute that the
applicant has made out a case for urgency.
They
also oppose the application on the merits to the extent that it may
become necessary and contend that the actions of the first
respondent
were lawful, were procedurally fair and are beyond attack.
[22]
The issues in dispute and for determination are the following: In
Limine:
a)
The locus standi of all the applicants;
b)
Whether the application was brought without unreasonable delay; and
c)
Related to b) above, the question of urgency.
On the merits:
a)
In establishing whether the applicants have demonstrated the
existence of a prima facie right:
i.
Whether the decision of the first respondent in dispensing with the
advertisement of the application by the second respondent,
resulted
in procedural unfairness and thereby rendered the decision of the 7th
of December 2012 unlawful and accordingly liable
to be reviewed and
set aside;
ii.
Whether the decision of the first respondent in approving the
application of the second respondent on the 7th of December 2012
is
liable to be reviewed and set aside on account of the failure by the
first respondent to properly apply its mind to the application,
it
being contended that it simply ‘rubber stamped’ the
approval of the application; and
b)
To the extent that it is necessary, whether the applicants have
proved a reasonable apprehension of irreparable and imminent
harm,
have proved that the balance of convenience favours the applicants
and the absence of an alternate remedy.
[23]
The locus standi of the first applicant is premised on its purchase
of the townships of Heuweloord Ext 18 and 19 from Homegold
and Zotec
respectively and in respect of which it has not yet taken transfer.
These two townships are situated close to the subject
property.
[24]
The second applicant is the owner of the Mall@Reds situated a few
kilometres away from the subject property and contends that
it has a
socio-economic interest in the viability of its existing shopping
centre and that the second respondent’s proposed
development
will compete with the second applicant for the same patrons.
[25]
The third applicant is the owner of a smallholding situated some 500
metres away from the subject property and contends that
the
development on the subject property will impact on his ability to use
and enjoy his property and will result in a loss of value
of his
property on account of the increase in traffic as well as the noise
and light pollution that the second respondent’s
development
will generate.
[26]
The challenge of the respondents in respect of the first applicant’s
locus standi is that the sale agreements with Zotec
and Homegold were
entered into by Mr Kyriakis Anastiadis (a director of the first
applicant and the second applicant) as trustee
for a company to be
formed and given that there is no evidence on the papers that the
first applicant has been registered as the
company intended to become
the purchaser and that it has properly ratified and accepted the said
agreements, the only interest
of the first applicant, if it has any
interest at all, is its financial self-interest which it is submitted
is not enough in itself
to establish locus standi.
[27]
In this regard the first applicant states, and it is not challenged,
that it is in the process of taking transfer of the townships
of
Heuweloord Ext 18 and 19. On that basis it must necessarily follow
that it was the company in respect of whom Mr Anastiadis
contracted
and that the process of transfer can only be effected if the first
applicant ratified and accepted the agreements. As
prospective owner
of properties in close proximity to the subject property, it must be
eminently arguable that the first applicant
has an interest in the
land use of the subject property sufficiently so to clothe it with
locus standi. On what is before me, I
have no basis to find otherwise
and I would be loathe to close the doors of the Court to a litigant
on such technical and formalistic
grounds.
The
stance of the respondents with regard to the second and third
applicants is inter alia that neither of these applicants objected
to
the application in terms of the DFA and that, like the first
applicant, all they seek to do is protect their own self-interest.
[28]
In GIANT CONCERTS CC v RINALDO INVESTMENT (PTY) LTD AND OTHERS
2012
ZACC 28
the Court in dealing with own interest standing said that a
litigant need not show the same ‘sufficient, personal and
direct
interest’ that the common law requires but must still
show that a contested decision directly affects his or her rights or
interests, or potential rights or interests and that this requirement
was to be generously and broadly interpreted to accord with
constitutional goals.
(See
also JACOBS ENN ANDER v WAKSENANDERE
[1991] ZASCA 152
;
1992 (1) SA 521
(A))
[29]
Section 34 of the Bill of Rights, which guarantees access to courts
to resolve justiciable disputes, would be severely undermined
and be
rendered meaningless if challenges to locus standi on speculative
grounds were to succeed.
The
failure to object to the DFA cannot have the punitive consequence the
respondents contend for in that it serves to disqualify
the second
and third applicants on account of past conduct which has not been
demonstrated to be either culpable nor deliberate
.
The
affirmation by the Constitutional Court of a generous approach to
standing as well as the recognition by our Courts that the
protection
of a self-interest may in certain circumstances suffice, satisfy me
that the challenge to the locus standi of the applicants
is
unsustainable and is destined to fail.
Was the application brought without
unreasonable delay and the related stance of self-created urgency.
[30]
These two issues in dispute are related and the facts relevant to
their determination are inextricably intertwined. I will,
to that
extent, deal with them together.
Section
7(1) of PAJA provides that proceedings for judicial review must be
instituted without unreasonable delay and not later than
180 days of
the administrative action sought to be reviewed.
[31]
The second respondent, relying on the dicta in THABO MOGUDI SECURITY
SERVICES CC v RANDFONTEIN LOCAL MUNICIPALITY AND ANOTHER
2010 (4) ALL
SA 314
(GSJ), contends that even if review proceedings are brought
within 180 days (as it was in casu), the requirement that it be
brought
without delay must still be met and it is not automatically
met simply on account of the fact that it is brought within the 180
day period.
The
dicta in THABO MOGUDI SECURITY SERVICES (supra) is sound and logical
and I do not understand Section 7(1) as having the effect
of
insulating an applicant who brings proceedings within 180 days from
the enquiry as to whether there was no unreasonable delay.
Counsel
for the applicants also associated himself with this stance.
(See
also GQWETHA v TRANSKEI DEVELOPMENT CORPORATION LTD AND OTHERS
2006
(2) SA 603
SCA)
[32]
On that basis the question to be determined is whether the
proceedings were brought without unreasonable delay
The
second respondent seeks to rely on the history of the matter and the
involvement of Zotec and Homegold suggesting that the information
and
knowledge available to Zotec and Homegold would in all probability
have been within the knowledge of the first applicant by
the middle
of 2012.
[33]
In this regard it is suggested that they would have been aware of the
DFA process and decisions taken in consequence thereof
at an early
stage and in particular when they concluded the sale agreements with
Homegold and Zotec on the 18th of May 2012 and
the 13 th of July 2012
respectively. They would in addition have become aware of massive
earthworks during October 2012 and the
fact that Zotec and Homegold
elected to write to the first respondent on the 18th of October 2012
with regard to the possibility
of a converted application must all,
the respondents argue, point in the direction that they could and
should have acted with greater
decisiveness and earlier.
[34]
On what is before me, the applicants became aware for the first time
of earthworks on the subject property during the first
half of
February 2013. There is nothing to suggest that they should have
become aware of the earthworks on the subject property
any earlier.
This
discovery prompted them to seek an urgent meeting with the first
respondent’s traffic engineer who in a meeting held
on the 13th
February 2013 informed the applicants that the first respondent had
approved the second respondent’s application.
[35]
The applicants thereafter and on the 18th of February 2013 served a
notice requesting information in terms of the Promotion
of Access to
Information Act (PAIA), consulted with senior counsel on the 27th
February 2013, and wrote to the first respondent
on the 28th of
February 2013 requesting information with regard to the procedures
followed by the first respondent including the
details relating to
the public participation process followed.
[36]
It states that it experienced considerable difficulty in receiving a
substantive response to its request for information and
was only
favoured with the information it sought during the middle of April
2013. It also took steps in this regard to source documentation
which
served before the GDT and the GDAT. It then proceeded to prepare the
papers in these proceedings which were launched on the
21st of May
2013.
[37]
In the context of both determining the question of unreasonable delay
as contemplated by PAJA as well as the question of urgency
in the
launch of these proceedings I am not convinced that a case has been
made out that the applicants acted unreasonably in terms
of the
timeline I have outlined. It must be recalled, whatever the history
of the matter may have been, that the decision which
is the subject
of the intended review was taken on the 7th of December 2012 .Clearly
nothing could have been done prior to that
date even if the knowledge
of Zotec and Homegold is imputed to the applicants.
[38]
The letter of the 18th of October 2012 by Zotec and Homegold
requesting information on the conversion application was not
responded to by the first respondent and given that the second
respondent was exempt from advertising the application it submitted
on the 7th of November 2012, it is inconceivable how the applicants
could have been expected to do more than what they did, and
if they
were so expected it raises the question as to when and under what
circumstances this was to have taken place and what precisely
would
have been required of them.
[39]
While the earthworks may have commenced in October 2012, it does not
necessarily follow that applicants should have become
aware of it
then. They say they became aware of it during mid-February 2013 and
there is in my view nothing to gainsay that.
From
the middle of February 2013 they conducted themselves reasonably and
expeditiously until the launch of this application. It
could hardly
have been expected of them to launch proceedings earlier under
circumstances where they were not possessed of the
relevant facts and
information they sought and which was peculiarly within the knowledge
of the first respondent and which the
applicants only succeeded in
obtaining in mid-April 2013.
[40]
I am accordingly satisfied that the challenge to the application on
the basis of unreasonable delay and self-created urgency
cannot
succeed. There was no unreasonable delay nor could it be said that
the urgency associated with this application was self-created.
The
merits
[41]
Before dealing with the determination of the issues in dispute and in
placing the conduct of the first respondent in relation
to its
decision of the 7th of December 2012 under scrutiny, it is important
to have regard to two developments, the processes associated
with
them and the consequences arising from them. They are:
a)
The history of the matter and in particular the procedure followed,
the decisions taken by the GDT and the GDAT and the other
actions
associated with it; and
b)
The effect of the Constitutional Court order of invalidity on both
the position of the first respondent as well as that of the
second
respondent.
The
history and the effect of the DFA process
[42]
With regard to the first issue it appears to be not in dispute that
when the second respondent applied in terms of the DFA
for the
establishment of the township of Monavoni Ext 39, proper notice was
given and advertisements duly placed.
Interested
parties and those intending to object had full knowledge of what the
application entailed as well as the opportunity
to make their views
known in the form of objections as well as during the course of the
public hearing held during 2008 and 2009
over a period of some 10
days.
[43]
Zotec and Homegold participated fully in this process and the first
respondent’s participation as local authority placed
it in a
position where it had full knowledge of the issues, the deliberations
and the various competing considerations that came
before the
Tribunal.
[44]
The decision of the GDT of the 10th of September 2009 was the
consequence of a seemingly intensive process and the effect thereof
was to endow the second respondent with certain defined rights which
it acquired following the submission of its application and
the
deliberations and the decision of the tribunal.
It
secured as a consequence of its application permission to establish a
land development area in respect of Monavoni Ext 39.
In
the same vein, when the appeal to the GDAT was lodged, considered and
disposed of in favour of the second respondent, it had
the effect of
reaffirming , albeit with some changes in the conditions attached to
the approval, the rights the second respondent
was granted by the GDT
.
[45]
It is important to set out this history in the context of reviewing
the actions of the first respondent relevant to its decision
of the
7th of December 2012 as the decision of the 7th of December 2012
preceded by the above developments provides the context
and the prism
within which the decision of the 7th of December 2012 should also be
considered.
It
would be inconceivable in my view to consider the actions of the
first respondent in isolation as the processes and the decisions
of
the GDT and the GDAT are part of a continuum which commenced in June
2008 when application
was
first made and concluded (for the purposes of this application) in
December 2012 with the decision of the first respondent.
[46]
That the processes and the decisions of the GDT and the GDAT had
effect and consequence and continued to remain relevant even
when the
first respondent became seized with the matter is in addition
supported by the manner in which the Constitutional Court
dealt with
the challenge to the validity of Chapters V and VI of the DFA.
The Constitutional Court’s order
of invalidity
[47]
When the Constitutional Court in JOHANNESBURG METROPOLITAN
MUNICIPALITY v GAUTENG DEVELOPMENT TRIBUNAL AND OTHERS
2010 (6) SA
182
CC pronounced on the invalidity of Chapters V and VI of the DFA,
it did so mindful of the following considerations:
a)
That in making an order of invalidity it had a wide discretion to
formulate an order which was just and equitable mindful of
the
interests of litigants and others affected by the order;
b)
That serious disruptions in State administration could result if an
order had immediate effect; and
c)
That an order of immediate invalidity would likely prejudice land
developers and have a negative impact on the economy.
[48]
It accordingly suspended the order of invalidity for 24 months and
while it barred tribunals from considering new development
applications it emphasized that it was ‘necessary for these
tribunals to finalise all applications pending before them’.
The
Court also went on to remark that ‘ ...this will not only avoid
a disruption but will also facilitate a speedy determination
of the
matters concerned. It must be remembered that the municipalities and
tribunals are part of the government which is under
a constitutional
obligation to respond promptly to people’s needs.
[49]
The consequence of the declaration of invalidity of the 18th June
2010 was that it left the decisions of the GDT of the 10th
September
2009 and of the GDAT of the 21st April 2010 as well as all other
actions taken prior to and in consequence thereof, wholly
intact and
that for the period of suspension the tribunals were empowered to
continue dealing with and finalizing applications
before them.
[50]
The decisions with regard to the subdivisions of Monavoni Ext 39 into
Ext 58 and 59 as well as the approval of the application
to phase the
establishment of Monavoni Ext 39 were accordingly all clothed with
validity and so too were the various actions taken
during this period
with regard to the various agreements regarding the provision of
services and other related matters.
[51]
In the context of this application and in particular the rights the
second respondent secured as a result of its DFA application,
there
could hardly be said to be any diminution of the rights it acquired
when Chapters V and VI of the DFA were pronounced to
be
unconstitutional.
Procedural fairness and the decision
of the 7th of December 2012
[52]
It is common cause between the applicants and the first respondent
that after the expiration of the twenty-four month suspension
of
invalidity, the first respondent dealt with the application of the
second respondent as a new application in terms of the Ordinance.
[53]
On this basis if what was before the first respondent was a new
application, was the decision to exempt to second respondent
from
advertising the application in terms of Section 69(6) of the
Ordinance so fatally flawed that it rendered the decision of
the 7th
December 2012 illegal?
[54]
Section 69(6) provides as follows:
‘
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’.
[55]
The applicants’ submissions are broadly that:
a)
The discretion relates not to the obligation to advertise but rather
the manner of advertising and accordingly on this interpretation
there can be no discretion not to advertise;
b)
Alternatively and on the basis that Section 69(6) does grant a
discretion not to advertise, it is repugnant in that an
administrative
action absent procedural fairness conflicts with
Section 33 of the Constitution which guarantees the right to fair
administrative
action;
c)
It also argues that the discretion that would provide the basis to
exempt advertising conflicts with the provisions of Section
3 and
Section 4 of PAJA; and
d)
Finally it contends that if regard be had to how the discretion was
exercised there was no reference to or an appreciation of
the
requirements of PAJA and that this rendered the exercise of the
discretion unlawful.
[56]
In assessing the potency of this challenge it may be useful to
commence with the caution expressed in Section 3(2) of PAJA
that ‘a
fair administrative procedure depends on the circumstances of each
case’. Professor Cora Hoexter in Hoexter
C (2012)
Administrative Law in South Africa (2nd Edition) writes as follows
(at pages 364 and 365) about what she terms the variable
concept of
fairness:
‘
Fairness
is a highly variable concept. In South African law what makes a
hearing fair has always depended on the circumstances...
’
Hoexter
then refers with approval to the dicta of ZULMAN JA in CHAIRMAN,
BOARD ON TARIFFS AND TRADE v BRENCO INC
2001 (4) S A 511
(SC A) that
the requirements of the audi principle are ‘contextual and
relative’.
[57]
At the same time our Courts have consistently affirmed the importance
of procedural fairness as a mechanism and opportunity
to enable
people to participate in decisions that affect them. It is in essence
at the heart of the participatory nature of a democracy.
(See
JOSEPH AND OTHERS v CITY COUNCIL OF JOHANNESBURG AND OTHERS
2010 (3)
BCLR 212
(CC) and MOBILE TELEPHONE NETWORKS (PTY) LTD v SMI TRADING
CC
2012 (6) SA 638
(SCA)).
[58]
An ordinary reading of Section 69(6) must lead to the conclusion that
the discretion referred to relates to the decision not
to advertise
as opposed to the manner of the advertising as contended for by the
applicants. The interpretation contended for by
the applicant is
simply not supported by the ordinary language used by the lawmaker
and would require a convoluted construction
of a relatively simple
text. I was urged by the applicants, relying on the dicta in NATIONAL
COALITION FOR GAY AND LESBIAN EQUALITY
AND OTHERS v MINISTER OF HOME
AFFAIRS AND OTHERS 2000 (2) SA (1) CC, to adopt the interpretation
contended for as it would in terms
of Section 39(2), advance the
spirit of the Bill of Rights, which carried with it the implication
that interpreting Section 69(6)
as providing for a discretion not to
advertise was inconsistent with the Bill of Rights.
[59]
I take a different view to the applicant’s construction of the
section and the consequences it contends for. The existence
of a
discretion is not repugnant nor objectionable in itself; it is rather
the manner in which it is exercised that is relevant.
Hoexter (supra)
at page 47 makes the observation:
'.
. .that it is important to realize that the holder of discretionary
power never has a completely free hand. First, to act with
discretion
means to act wisely and after due reflection; and so while discretion
can be very wide, it is never completely ‘free”,
“unfettered”, “absolute” or “arbitrary”.
. . Baxter rightly describes an ‘unfettered
discretion ’
as a contradiction in terms ’.
[60]
On that basis it must also follow that a decision not to advertise
must be considered in context in ultimately determining
whether
procedural unfairness necessarily results from such a decision in all
cases. In this regard even the extensive provisions
to be found in
Sections 3 and 4 of PAJA relating to procedural fairness in
themselves contemplate a departure from their prescripts
when it is
reasonable and justifiable to do so.
Section
69(6) of the Ordinance simply vests a discretion with the first
respondent to exempt advertising. It is trite that such
a discretion
must be exercised with an open mind, must not be arbitrary or
capricious and must not be fettered by rigidity. It
is also that the
discretion to be exercised may be exercised in accordance with
existing policy and principles.
(See
KEMP NO v VAN WYK 2005(6) SA 519 SCA)
[61]
On any construction of the Ordinance it must be evident that the
discretion vested in the first respondent is not open-ended
and
untrammeled. In the end it is not a question of the existence of the
discretion that should be the subject matter of any enquiry
but the
manner in which it is exercised.
[62]
As a matter of law I am not convinced that the existence of the
discretion to be found in Section 69(6) is incompatible with
Section
33 of the Constitution or the provisions of Section 3 and Section 4
of PAJA given that Section 3(l)(4)(a) and Section 4(1
)(a) of PAJA
both provide when it is reasonable and justifiable to do so for an
administrator to depart from the prescribed requirements
in relation
to procedural fairness.
The manner in which the discretion was
exercised
[63]
It is common cause that the DFA application was accompanied by an
extensive advertisement process that included advertisements
in the
Beeld and the Citizen newspapers as well as in the Provincial Gazette
on the 17th of September and the 24th of September
2008. In addition
some 13 site notices were placed on the boundaries of the subject
property, surrounding property owners were
informed by registered
post and hand post of the application and some 15 copies were lodged
with the first respondent.
The
objections that were received were considered in the course inter
alia of a 10 day hearing of the GDT and were by all accounts
fully
ventilated and considered.
[64]
The applicants relying on the contents of the Guidelines issued argue
that they represent, in advance, a fettering of the discretion
the
first respondent was required to exercise and that accordingly it
could never be said that when the discretion was ultimately
exercised
on the 3rd of December 2012, it was done so lawfully. In this regard
they rely on Clause 3.4.3.1 and 3.4.3.4 which they
contend takes an
advance position that advertisement is not necessary. In addition
they suggest that the requirement in the Guideline
and the conditions
and application shall not be an amended version (of the DFA
application) unduly restricts the kind of application
that can be
submitted and unduly fetters the discretion of the first respondent
making it impossible for it to treat any application
so submitted as
a new application.
[65]
While I am not necessarily in agreement that the language used in the
Guidelines represents and constitutes an advance fettering
of
discretion, at the end of the day the litmus test in this regard must
be the decision taken and the manner in which it was taken.
The
decision not to advertise was taken in response to a request made by
the second applicant who also elected to submit a new
application in
the same terms as the DFA application.
The
minutes of the meeting of the 3rd of December 2012 and not the
Guidelines and the applicants’ interpretation of them must
be
decisive in this enquiry.
[66]
The minutes of the meeting of the 3rd of December 2012, when the
decision not to advertise was taken, reflect a full and comprehensive
consideration of the matter with a full motivation for the decision.
It traverses the history of the DFA process, the objections
received
and the state of those objections, the rights that had vested in the
second respondent and the question of prejudice to
objectors or
potential objectors
[67]
It would in my view, to the extent that it may be both relevant and
necessary, constitute a reasonable and justifiable departure
from the
standard procedure, shaped and informed as it was by the special and
somewhat unusual circumstances that characterize
the history of the
second respondent’s attempts over some time to secure rights in
and to the subject property.
[68]
Notwithstanding that the first respondent was dealing with a new
application, its reliance on the public participation process
under
the DFA process was neither misplaced nor irregular. The DFA process
of public participation continued to retain relevance
notwithstanding
the order of invalidity. On the contrary the terms of the order of
invalidity required recognition of that process
if the rights the
second respondent had secured until the 17th of June 2012 were to
have any meaning.
[69]
Counsel for the applicants accepted that the rights acquired and the
steps taken in term of the DFA process remained valid
and could not
be re-visited as it were. The insistence by the applicants that the
application should have been readvertised
would have had the
consequence that the public would have been invited to participate in
the consideration of an application, of
which an overwhelmingly
substantial part had already been determined and was beyond
influence. This would render any public participation
process
illusory and meaningless and would simply beg the question in the
light of the ongoing validity of the DFA decision and
processes even
after the 17th of June 2012, what process would the public be invited
to participate in?
[70]
The applicants also challenge the decision of the 3rd of December
2012 on the basis that ex facie the decision, it does not
appear that
the first respondent considered the requirements of PAJA before
deciding to depart from the standard procedure of advertising.
As I
have indicated, the minutes of the 3rd of December 2012 represent a
detailed and proper consideration of all the relevant
facts before
the discretion in favour of departure was arrived at. In the result
the decision cannot be assailed and if the Court
is asked to assail
it on the basis that notwithstanding that on the face of it, it
represents a reasonable and justifiable basis
for departure, it
remains unlawful simply because there is no indication that the
requirements of PAJA were ‘consciously’
applied, it would
have the unfortunate effect of promoting form over substance and
would constitute an overly technical and formal
approach to
administrative decision-making.
[71]
Even if from a purist’s perspective this lack of consciousness
could be characterized as a flaw in the process, it would
be worth
recalling the caution of the Supreme Court of Appeal (per Nugent JA)
in ALLPAY CONSOLIDATED INVESTMENT HOLDINGS (PTY)
LTD AND OTHERS v THE
CHIEF EXECUTIVE OFFICER OF THE SOUTH AFRICAN SOCIAL SECURITY AGENCY
AND OTHERS
(2013) ZASCA 29
(27 MARCH 2013) that:
‘
There
will be few cases of any moment in which flaws in the process of
public procurement cannot be found, particularly where it
is
scrutinized intensely with the objective of doing so. But a fair
process does not demand perfection and not every flaw is fatal.
’
[72]
The applicants suggest that the effluxion of time from the time the
second respondents submitted the application in terms of
the DFA in
2008 to the time the first respondent took its decision on the 7th of
December 2012, preceded by its decision not to
require advertising,
was some 4 years and that changed circumstances over that time with
regard to the area, developments that
occurred and the change in the
population residing there all would have in their totality justified
a new advertisement as opposed
to relying on the public participation
process associated with the DFA process.
[73]
The response to this challenge is to be found in the affidavit of Mr
Willem Georg Groenewald, the Town Planner engaged by the
second
respondent whose testimony was that given the long periods (often up
to 5 years) for DFA applications to be finalized ,
Town Planners
normally provide in anticipation of such delays a realistic future
market entry date in their calculations and take
realistic future
development trends in the area including population growth, economic
growth, traffic growth and increase in infrastructure
demand and that
this was done in relation to the application of the second respondent
in terms of the DFA.
[74]
The minutes of the meeting of the first respondent of the 3rd
December 2012 demonstrate in my view that the question of procedural
fairness was considered and that there was a proper exercise of the
discretion vested in the first respondent. The decision not
to
advertise did not in my view result in procedural unfairness when
regard is had to the history of the matter and the extensive
process
of public participation in the DFA process. In addition if regard is
had, as it must, to the particular unique and unusual
circumstances
that reference has already been made to, then I can find nothing in
principle that prevents the public participation
in the DFA process
being used to satisfy the public participation requirement in the
Ordinance process particularly when the two
applications albeit
submitted under different legislation, deal with precisely the same
subject matter, the same subject property
and for the same relief.
[75]
The challenge to the legality of the decision of the 7th of December
2012 must accordingly fail on this leg of the attack.
‘
The first respondent failed to
apply its mind to the application of the second respondent and simply
“rubber stamped”
it with the decision of the DFA process’
[76]
The applicants’ stance is that after the new application was
submitted by the second respondent on the 7th November of
2012, the
first respondent failed to properly apply its mind and consider the
application on its merits but simply used the DFA
processes and
outcomes to cloak the application with its approval.
[77]
In support of this they point out that the application was processed,
considered and approved within a period of 30 days which
they regard
as highly unusual and in their view provides the evidence of an
application not properly considered. In addition they
contend that
when the second respondent submitted its application in terms of the
DFA the first respondent opposed it and its change
in stance in now
approving it could only have arisen as a consequence of it rubber
stamping the DFA approval as it’s own.
Finally they argue that
the fact that the first respondent did not request any new reports
from it’s various departments
following the submission of the
second respondents application, but relied on earlier reports
produced is indicative of a failure
by the first respondent to apply
its mind and is consistent with the conclusion of ‘rubber
stamping’ the applicants
contend for.
[78]
In responding to this attack, the first respondent placed reliance on
the contents of the application submitted by the second
respondent on
the 7th of November 2012. If one has regard to that application it
includes amongst other things:
a)
A request that the application not be advertised together with a full
motivation for it;
b)
Details of the DFA process as well as the second respondent’s
application of the 18th September 2012 for the implementation
of the
DFA decision; and
c)
The comments received from the various departments of the first
respondent.
[79]
In my view and to the extent that the history and context continue to
remain relevant, the first respondent’s knowledge
and
involvement in the DFA process could simply not be excised from the
equation. If one has regard to the application it appears
that many
of the reports that were produced by the various departments of the
first respondent were produced after the decision
of the GDT and the
GDAT and thus the charge of rubber stamping is hardly sustainable in
the light of those reports produced as
they were on the dates as
indicated. To the extent that the reports reflect a change in stance
on the part of the first respondent
to the second respondent’s
application can hardly be considered as suspicious or sinister and
one must be cautious in not
engaging in unwarranted speculation when
the facts point in a different direction.
[80]
In this regard it also appears that the meeting of the 3rd of
December 2012 dealt with how the first respondent intended dealing
with the application. In paragraph 8 of those minutes the following
appears:
‘
With
reference to the progress made on the DFA application (refer to
paragraph 3 above), the application in terms of the Ordinance,
which
is identical to the DFA application, need not be re-circulated to
internal departments or external stakeholders ’
To
this extent and even if it is contended that in considering the new
application, the first respondent placed great reliance on
the DFA
process and the outcomes it generated, it cannot be said that it did
not apply its mind to the application. If in applying
its mind it
relied on what had happened during the DFA process, that in itself
would not be objectionable. On the contrary such
an approach would be
in line with the spirit and the letter of the judgment of the
Constitutional Court.
If
the DFA process was to have any consequence as the Constitutional
Court judgment required, then the rights acquired would have
to be
meaningful and capable of enforcement - if not it would be akin to
the Constitutional Court applying retrospectivity to the
order of
suspension. Under those circumstances it was not only permissible but
necessary and warranted that the first respondent
considered what had
transpired during the DFA process when it applied its mind to the
second respondent’s application in
terms of the Ordinance. It
did so and to that extent it can hardly be suggested that it acted
outside its powers or that it substituted
the decision it was
required to take with the decision of the DFA.
[81]
In this regard it is worth recalling what the Court said in
JOHANNESBURG METROPOLITAN MUNICIPALITY (supra) on this aspect:
‘
Finally
a necessary feature of this suspended declaration of invalidity is
that it should not have retrospective effect if the period
of
suspension expires without the defects in the Act having been
corrected. In exercising their powers under the impugned chapters,
development tribunals have approved countless land developments
across the country. It would not be just and equitable for these
decisions to be invalidated if the declaration of invalidity comes
into force. ’
In
the result the contention that the first respondent failed to
properly apply its mind to the application of the second respondent
when it considered and approved it is without merit and the challenge
on this leg must also fail.
The ultra vires argument
[82]
As I understand the submission, the applicants contend that the
guidelines to the extent that they provide for innovative
procedures
including the conversion of a DFA application to an Ordinance
application and the option of the first respondent requiring
a new
application, are ultra vires in that they were not properly
authorized by the first respondent and in any event fell outside
its
statutory powers.
[83]
In dealing with this challenge, it is evident that the second
respondent’s application of the 7th of November 2012 was
made
in terms of the Ordinance which expressly provides for such
applications. Whatever the status of the guidelines may be and
notwithstanding the criticism directed towards them, they are not
relevant on this aspect of the matter as the application requested
by
the first respondent and submitted by the second respondent fell
within the ordinary powers of the first respondent. In doing
so the
first respondent exercised a power it was entitled to and could not
be said to be acting ultra vires.
[84] The second respondent’s
position The ‘conversion’ / new application argument
The
stance of the second respondent is that when the period of invalidity
expired on the 17th of June 2012, both the decisions of
the GDT and
the GDAT had been finalized as well as the division of the
development and other DFA acts required and / or necessary
in terms
of the DFA. The second respondent acquired vested rights in those
approvals. When the matter then came before the first
respondent what
was before it was a properly approved development application in
favour of the second respondent.
[85]
To that extent requiring a ‘new’ application to be
submitted, and if such an application was to be treated as a
de novo
application, would not only have the effect of undermining the second
respondent’s rights which it validly acquired,
and which to
date have never been successfully challenged, but would also fly in
the face of the specific cloaking of validity
given by the
Constitutional Court to what it acquired in terms of the GDT and GDAT
processes.
[86]
In order to act in accordance with the letter and spirit of the
Constitutional Court judgment as well as to avoid making inroads
into
the rights of the second respondent, what was required of the first
respondent when the suspension of invalidity expired on
the 17th of
June 2012 was to implement the approval secured by the second
respondent. Its guidelines issued in this regard during
August 2012
strongly suggest that this is what it was committed to doing. The
‘new’ application must be accordingly
viewed in that
context.
[87]
On this basis the second respondent submits that there was
accordingly nothing to convert and indeed no basis in law for the
first respondent to have requested the submission of a ‘new’
application and to treat it as a de novo application.
This
is consistent with the stance adopted by the second respondent when
on the 18th of September 2012 it wrote to the first respondent
requesting the implementation of the decision taken by the GDT and
the GDAT. At that stage it had secured the necessary approvals
which
were not in any manner affected by the declaration of invalidity and
was entitled to proceed to the next stage of the process:
the
implementation of the decision taken.
[88]
In this regard it was pointed out that the second respondent in
acceding to the first respondent’s request to submit
a ‘new’
application did so not in the belief that it was necessary or that it
had somehow lost the rights it acquired
as a result of the DFA
process but rather in the belief that it would expedite the
finalization of the process.It must then necessarily
follow,
according to the second respondent, that the ‘new’
application seen in its proper historical context, particularly
the
rights secured by the second respondent in terms of the DFA process
could only have been an application for the implementation
of the DFA
decision. It would accordingly follow that no re-assessment or
re-consideration of the application would be required
as that had
already been a part of the DFA process. Similarly a requirement to
advertise would have ignored the full public participation
process
that the DFA application had been subjected to. The decision of the
7th of December 2012 could therefore not constitute
a decision on the
re-consideration of a new application in the ordinarily understood
meaning of the term.
[89]
Simply put there was neither ‘conversion’ nor the need
for a ‘conversion’ and in addition the request
for a
‘new’ application that would seek to secure rights
already granted was unnecessary, superfluous and not competent
in
law. In the light of the decisions of the GDT and the GDAT there was
simply no basis for the entertainment of a ‘new’
application. Simply put all that was required of the first respondent
was the implementation of the decisions of the GDT and the
GDAT and
the ‘new’ application submitted was in effect nothing
more than a request for the implementation of the GDT
and GDAT
decisions.
[90]
To the extent that the first respondent engaged with the application
and attended to the outstanding conditions and other administrative
issues, these would according to the second respondent constitute the
implementation of the decisions of the GDT and the GDAT which
were
consistent with the implementation mode of the guidelines it had put
out and further in accordance with its constitutional
obligations as
they are set out in Section 153 of the Constitution namely ‘to
give priority to the basic needs of the community
and to promote the
social and economic development of the community
[91]
While there is some attraction to the contention advanced by the
second respondent as detailed above, the insurmountable obstacle
that
it presents is that firstly the organ of state whose actions are
under review, namely the first respondent, takes the position
that
what was before it was a new application and the Court to that extent
is enjoined to review its action in that context. Secondly
and while
it is so that the stance of the second respondent was initially to
request the first respondent to simply implement the
DFA decision it
had secured in its favor, once it completed the new application it
would have to accept that what was then before
the first respondent
was an application in terms of the Ordinance. Of course if it had
refused to submit a new application and
persisted in its stance that
the first respondent was obliged to simply implement the DFA decision
and then had come to Court seeking
a mandamus on the basis if the
first respondent had refused to accede to its request, the position
would have been different and
the Court would have been obliged to
have considered and adjudicated that issue. That is not the case and
accordingly it is not
necessary to make any finding or order on that
particular submission.
Unlawful building activities
[92]
When building activities commenced during February 2013, no buildings
plans had been submitted for approval in respect of such
building
activities causing the first respondent to issue a contravention
notice in terms of the NBRBSA against the second respondent
on the
15th February 2013.
[93]
On the 20th of February 2013, the second respondent submitted
building plans for consideration and approval by the first respondent
in respect of the building works on the subject property and on the
15th March 2013 it submitted an application in terms of Section
7(6)
of the NBRBSA for the grant of a provisional authority to build,
which application was approved by the first respondent on
the 10th of
May 2013.
[94]
Thus even though the second respondent appeared to have adopted a
cavalier attitude when it commenced building operations without
approved plans or any other authority to do so, that situation was
remedied and regularized and at the time of the launch of these
proceedings the building activities that are being undertaken were
being effected in terms of a validly issued authority.
Nothing
further needs to be said on this issue save that the historical
default of the second respondent which has since been remedied
cannot
form the basis of any relief the applicants may seek.
[95]
Finally the argument that the first respondent was doing the bidding
of the second respondent in issuing a provisional authority
to build
hardly stands up in the face of the decision by the first respondent,
without a complaint or being prompted to do so,
to issue a
contravention notice as it did against the second respondent on the
15th of February 2013.
Conclusion
[96]
In all the circumstances and for the reasons already given the
applicants have not satisfied the requirements for the grant
of an
interim interdict in that they have not established a prima facie
right with regard to their attack on the lawfulness of
the decision
of the first respondent of the 7th of December 2012 . Under those
circumstances there is no need to consider the other
requirements for
the grant of interim relief.
[97]
Finally I pause to mention that this application has in a substantial
manner focused on the issue of procedural fairness. Viewed
in its
historical context and beyond the intricacies and the technicalities
of the legal arguments raised and debated, it could
hardly be said
that the first and second applicants did not in a protracted and
substantial manner participate in a public process
that provided them
with the opportunity to shape and inform an application they were
opposed to. That is what the law guarantees
and I am satisfied that
that is what occurred.
Under
those circumstances the only appropriate order to make is to dismiss
the application with a suitable order as to costs.
Order
[98]
I make the following order:
1.
Part A of the application is dismissed;
2.
The applicants are ordered, jointly and severally, the one paying the
others to be absolved, to pay the costs of the first, the
second and
the fifth respondents which costs in respect of the second respondent
shall include the costs of two counsel.
N
KOLLAPEN
JUDGE
OF THE NORTH GAUTENG HIGH COURT
31875/2013
HEARD
ON: 25 & 26 JUNE 2013
FOR
THE APPLICANTS: ADV M MARITZ SC & ADV A LI VERS AGE
INSTRUCTED
BY: WELGEMOED ATTORNEYS
FOR
THE FIRST RESPONDENT: ADV V SONI SC
INSTRUCTED
BY: DLAMINI ATTORNEYS
FOR
THE SECOND RESPONDENT: ADV R J RAATH SC & ADV J A VENTER
INSTRUCTED
BY: ADRJAAN VENTER ATTORNEYS
FOR
THE FIFTH RESPONDENT: ADV L M DU PLESSIS
INSTRUCTED
BY: CLIFFE DEKKER HOFMEYR