Power Road Taxi Developers (Pty) Ltd v MEC Local Government and Housing, Free State Province and Others (R215/2005) [2007] ZAFSHC 9 (8 February 2007)

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[2007] ZAFSHC 9
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Power Road Taxi Developers (Pty) Ltd v MEC Local Government and Housing, Free State Province and Others (R215/2005) [2007] ZAFSHC 9 (8 February 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : R215/2005
In
the review between:-
POWER
ROAD TAXI DEVELOPERS (PTY) LTD
Applicant
and
THE
MEC LOCAL GOVERNMENT AND
First Respondent
HOUSING, FREE STATE
PROVINCE
MATJHABENG LOCAL
GOVERNMENT
Second respondent
MASOPHA
JONAS LEKITLANE N.O.
Third Respondent
M.J.
LEKITLANE
Fourth Respondent
THE
REGISTRAR OF DEEDS, FREE STATE
Fifth Respondent
PROVINCE
_______________________________________________________
CORAM:
RAMPAI
J
et
EBRAHIM J
_______________________________________________________
HEARD
ON:
16 OCTOBER 2006
_______________________________________________________
JUDGMENT
BY:
RAMPAI J
_______________________________________________________
DELIVERED
ON:
8 FEBRUARY 2007
_______________________________________________________
[1] The matter came to
this court by way of an application for the review of an
administrative decision. The review originates from
an application
made in terms of section 3 of the Removal of Restrictions Act No.
84/1967 in order to have a restriction pertaining
to the township
development scheme of Thabong in Welkom amended. The application for
the amendment of conditions of land use was
made by the third
respondent and submitted to the first respondent for consideration.
In due course the first respondent caused
a notice of the third
respondent’s application to be published in the provincial gazette
and two newspapers circulating in the
province. In addition to the
publication, the first respondent caused the copies of such notice to
be given to each of the owners
of the neighbouring properties. The
notice was given and published in terms of section 3. The first
respondent’s decision to
give no notice to the applicant triggered
off this review.
[2] This review concerns
a property situated at Erf 8001, Thabong on the outskirts of Welkom
in the Free State Province. It is to
be found in Constantia Street.
It measures 9 700 square metres. Its previous owner was the second
respondent. It was previously
used as a clinic. It changed hands in
2001. The third respondent purchased it for R225 000,00. Before
then it was earmarked as
a community facility. Subsequent to the
sale, on 9 April 2004 to be precise, the third respondent applied to
the first respondent
for the amendment of such condition. The first
respondent granted the required approval in terms of section 2 Act
No. 84/67 on 1
March 2005. The approval entailed the rezoning of the
land use of the erf from community facility use to business use. I
shall
refer to it as “the erf”.
[3] The applicant is the
owner of Erf 7855 situated at the corner of Power Road and Hofmeyr
Road in Welkom. Its previous owner was
the predecessor to the second
respondent. It sold for R1 325 000,00. The applicant developed it
into a public taxi terminus. Apart
from that the site also has a
shopping complex and a fuel service station. The initial capital
layout of the property was R6,2 million
expended in 1991. Two years
later the applicant injected an additional R8 million capital into
the project for its further development.
The property is worth R35
million currently. From now on I shall refer to it as “the
property”.
[4] The notice in terms
of section 3 Act No. 84/67 was provisionally gazetted on 4 March 2005
and published in two newspapers, “Die
Volksblad” and “The
Citizen”. There were apparently no objections received within the
period specified in the notice. But
certainly after the expiry of
the period prescribed for public comment, the first respondent had
not received any objection from
the applicant against the third
respondent’s application for the rezoning of the erf.
[5] Prior to the sale of
the erf to the third respondent it was zoned for use as a community
facility. It was the rezoning of the
erf which precipitated the
conflict between the erf owner and the property owner. In
KNOP
v JOHANNESBURG CITY COUNCIL
1995 (2) SA 1
(AD) at 30 e Botha
JA remarked as follows about this sort of conflict:
“
In
the local authority's consideration of an application there are
potentially conflicting interests at stake: those of the applicant
owner who wishes to use his property to his own best advantage; those
of neighbouring owners in the locality who may be adversely
affected
by the subdivision; and those of the local authority itself, which is
charged with the supervision of the orderly, harmonious
and effective
(economically and otherwise) development of the area, 'to promote the
health, safety, good order, amenity, convenience
and general welfare
of such area'. In coming to a decision on the application, the local
authority must weigh up the conflicting
interests involved.”
[6] In its founding
affidavit the applicant advanced no less than 17 grounds on which it
relied in order to have the decision of the
first respondent reviewed
and set aside. Although the applicant’s founding affidavit was
heavily loaded with an arsenal of grounds
of review only one ground
of review was carried forward in the replying affidavit and persisted
with during argument before us.
Therefore, for the purpose of this
judgment, I shall pay particular attention to the remaining ground of
review. It is the anchor
of the applicant’s case.
[7] The applicant comes
on review on the principal ground that the first respondent failed to
comply with the procedure as prescribed
in section 3(6) Act No.
84/67. The crux of the applicant’s case is that in terms of the
section the first respondent was legally
obliged to give notice
of the third respondent’s rezoning application
to the applicant
as the owner of a nearby property on the ground that the application
directly affected its property.
[8] The first four
respondents put up a common defence, the gist of which is that, in
the opinion of the first respondent, the applicant
was not directly
affected by the rezoning application. That being the case, they all
contended that the first respondent was not
legally obliged to give
notice to the applicant in terms of the section. The fifth
respondent did not descend into the arena.
[9] The essence of this
review is procedural fairness. The general rule of our common law
requires that an individual who has an
interest in a matter is
entitled to be notified about an administrative matter that affects
him if tabled before an administrative
organ for consideration and
decision. The underlying purpose of such a notice is to afford such
a person an opportunity of protecting
his interests. The
audi
alteram partem
rule demands that he is entitled to be heard
before a decision is taken by an administrator on the matter that
directly affects him.
[10] In
the year 1967 the provision we are here concerned with saw the light.
Section 3(6) Act No. 84/67 provides:
“
(6)
On receipt of an application the Director-General shall cause a
notice in both official languages to be published once in the
Provincial Gazette of the province and twice with an interval of one
week in a newspaper circulating in the area in which the land
is
situate, stating that such an application has been made, that it is
open to inspection at the office of the Director-General and
at any
other place or places, if any, mentioned in the notice, and that
objections against the application may be lodged with the
Director-General on or before a specified date which shall not be
less than twenty-one days after the date of the last publication
of
the notice, and the Director-General shall also cause, where
possible, a copy of the notice to be served on every owner of land
who in his opinion is directly affected by the application, such
service to be effected by registered post addressed to such owner
at
his last known address.
[Sub-s. (6) amended by Proclamation
R160 of 31 October 1994.]”
[11] In the year 1996 the
RSA Interim Constitution was adopted as the supreme law of the
country. Section 33 thereof provides:
“33 Just
administrative action
(1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3)
National legislation must be enacted to give effect to these rights,
and must-
(a) provide
for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b) impose
a duty on the state to give effect to the rights in subsections (1)
and (2); and
(c) promote an efficient
administration.”
[12] In the year 2000
national legislation was enacted. Section 3 Promotion of
Administrative Justice Act No. 3/2000 provides:
“3 Procedurally
fair administrative action affecting any person
(1) Administrative action which
materially and adversely affects the rights or legitimate
expectations of any person must be procedurally
fair.
(2)(b) In order to give effect to the
right to procedurally fair administrative action, an administrator,
subject to subsection (4),
must give a person referred to in
subsection (1)-
(i) adequate notice of the nature and
purpose of the proposed administrative action;
[Sub-para.
(i), previously para. (a), renumbered by s. 46 of Act 42 of 2001.]
(ii) a reasonable opportunity to
make representations;
[Sub-para. (ii), previously para. (b),
renumbered by s. 46 of Act 42 of 2001.]
(iii) a clear statement of the
administrative action;
[Sub-para. (iii), previously para.
(c), renumbered by s. 46 of Act 42 of 2001.]
(iv) adequate
notice of any right of review or internal appeal, where applicable;
and
[Sub-para.
(iv), previously para. (d), renumbered by s. 46 of Act 42 of 2001.]
(v) adequate
notice of the right to request reasons in terms of section 5.
[Sub-para.
(v), previously para. (e), renumbered by s. 46 of Act 42 of 2001.]
(3)
In order to give effect to the right to procedurally fair
administrative action, an administrator may, in his or her or its
discretion,
also give a person referred to in subsection (1) an
opportunity to-
(a) obtain
assistance and, in serious or complex cases, legal representation;
(b) present and dispute information
and arguments; and
(c) appear
in person.”
[13] In terms of section
1 Promotion of Administrative Justice Act No. 3/2000 an
administrative action means:
“(a) an organ
of state, when-
(i) exercising a power in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or
performing a public function in terms of any legislation; or”
[14] In the year 1998
Mokgoro J in
DE LANGE v SMUTS NO AND OTHERS
[1998] ZACC 6
;
1998 (3) SA
785
(CC) at 835 F – 836 B had this to say about the notion of
procedural fairness:
“
When
contemplating the essential purpose of the protection afforded
through the notion of procedural fairness, my sight is arrested
by
this fact: at heart, fair procedure is designed to prevent
arbitrariness in the outcome of the decision. The time-honoured
principles
that no-one shall be the judge in his or her own matter *
and that the other side should be heard * aim toward eliminating the
proscribed
arbitrariness in a way that gives content to the rule of
law. They reach deep down into the adjudicating process, attempting
to remove
bias and ignorance from it. Everyone is entitled to an
impartial Judge, not because this guarantees a correct decision, but
because
the human arbiter, not being omniscient, should not be
presented with a point of view that his or her position inherently
loads.
Everyone has the right to state his or her own case, not
because his or her version is right, and must be accepted, but
because,
in evaluating the cogency of any argument, the arbiter,
still a fallible human being, must be informed about the points of
view of
both parties in order to stand any real chance of coming up
with an objectively justifiable conclusion that is anything more than
chance.”
[15] The aforesaid
dictum
was quoted in the legal work of J.R. De Ville:
Judicial Review of
Administrative Action in South Africa
on p. 271.
[16] In
MINISTER OF
SAFETY AND SECURITY AND OTHERS v VILAKAZI
(2000) 3 ALL SA 95
(NPD) at 101 b – d Page J commented as follows as regards the onus
which rests upon the applicant on review:
“
It
is not incumbent upon him to show that had he been afforded a proper
hearing, he would have succeeded in persuading the decision-maker
to
decide differently. It is sufficient that the possibility exists
that he could have done so, either by adducing further facts
or by
adducing arguments on the existing facts which could have persuaded
the decision-maker to the contrary view. Where once it
has been
conceded, as it is in the present matter, that the decision involved
is one which entitled the person adversely affected
to a hearing, the
failure to accord him such a hearing must
ipso
facto
invalidate
it.”
[17] The question which
falls to be decided is whether the applicant has made a case by
virtue of which he was entitled to be given
a personal notice in
terms of section 3 Act. No. 84/67.
[18] Mr.
Van Rooyen, counsel for the applicant, submitted that the applicant
has made out a proper case which showed that the requirements
of
section 3(6) had not been complied with. He contended, therefore,
that the decision to rezone the erf was invalid and thus stood
to be
reviewed and set aside.
[19] Mr.
Claasen, counsel for the first respondent, disagreed. He submitted
that the applicant had not discharged the onus of showing
that the
decision complained of was irrational. Therefore, he contended that
the applicant has failed to make out a case to warrant
any
interference with the action of the first respondent on review.
[20] Mr. Ploos van
Amstel, counsel for the second respondent, supported this admissions
made by Mr. Claasen. By and large, Mr. Knoetze
submitted that we can
only review and set the rezoning decision aside if we can find that
the respondent acted
mala fide
or from ulterior motive or that
he failed to apply his mind to the third respondent’s rezoning
application.
[21] In
MOMONIAT v MINISTER OF LAW AND ORDER AND OTHERS; NAIDOO AND
OTHERS v MINISTER OF LAW AND ORDER AND OTHERS
1986 (2) SA 264
(WLD) at 273 D – F Goldstone J, after restating the two different
formulations which our courts have adopted as the test to be
applied
in deciding whether the exercise of a wide discretionary power made
should or should not be reviewed and set aside, concluded
by saying:
“
Whichever formulation is preferred,
the onus to be discharged is a formidable one.”
[22] Innes ACJ, as he
then was, stated the principle as follows in
SHIDIACK v UNION
GOVERNMENT
1912 AD 642
on 651:
“
The
decision of the Minister being essential, it becomes necessary to
consider the circumstances under which the Courts can properly
question his decision. Now it is settled law that where a matter is
left to the discretion or the determination of a public officer,
and
where, his discretion has been
bona
fide
exercised or his judgment
bona
fide
expressed, the Court will not interfere with the result. Not being a
judicial functionary no appeal or review in the ordinary sense
would
lie; and if he has duly and honestly applied himself to the question
which has been left to his discretion, it is impossible
for a Court
of Law either to make him change his mind or to substitute its
conclusion for his own.”
See also
NATHALIA v
PRINCIPAL IMMIGRATION RESTRICTION OFFICER
1912 AD 23
;
UNION
GOVERNMENT v FAKIR
1923 AD 466
on 469;
MINISTER OF LAW
AND ORDER AND OTHERS v HURLEY AND ANOTHER
1986 (3) SA 568
(AD) at 579 A – D;
OMAR AND OTHERS v MINISTER OF LAW AND
ORDER AND OTHERS
1986 (3) SA 306
(CPD) at 315 B.
[23] In the first
respondent’s opposing affidavit K.F. Ralikotsane, deposed on behalf
of the first respondent, that copies of the
necessary notice were
given to the owners of the neighbouring properties and that further
copies thereof were also given to the members
of the general public
by publishing such notices in the provincial gazette and two
newspapers which circulate in the province. There
is no reason to
seriously doubt this version.
[24] The section
recognises two categories of potential interests. The first category
consists of immediate owners. In this first
category the section
requires that notice of the intended rezoning application be given to
the specific owners. These are owners
of the neighbouring
properties. By neighbouring properties is meant much more than
adjacent properties, but also properties in the
immediate vicinity of
the property whose use the rezoning application is concerned about.
Every immediate owner has to be given
a personal rezoning notice by
way of a private registered mail, provided the administrator is of
the opinion that the application
directly affects such immediate
owner. The underlying idea of this personal manner of service is to
ensure that all the immediate
owners with direct interest in the
matter are made aware of the pending change. It may indeed be so
that the mere proximity of the
immediate owners to an erf concerned
per se
should suggest or even compel any reasonable and
objective person to reckon that the rezoning is likely to affect the
immediate owners
directly. However, the section imperatively
dictates that the subjective and not the objective value judgment
should be applied
to determine which immediate owner should or should
not be served. The selective elimination process is the prerogative
of the administrator
in whom the exercise of the public power is
vested. The law prescribes no fixed radius.
[25] The second category
consists of distant owners. The section requires that notice of the
intended rezoning be given to unspecified
owners. Firstly, these are
remote property owners in general. They are owners of properties
which are neither adjacent nor neighbouring
to the property in
respect of which the rezoning has been applied for. Secondly, the
immediate property owners in the first category,
who in the opinion
of the administrator, deserved no personal service of the notice.
The manner in which the requisite rezoning
notice has to be given to
this second category of property owners is by way of public
announcement through publication in a provincial
gazette and
newspapers with a wide provincial circulation. Through this second
method of notification the lawmaker apparently targets
not only the
remote property owners but also the landless members of the public
who may possibly have general interest in the proposed
change of
land-use irrespective of where they may live in the province. In
this way such distant or nearby members of the property
are also
alerted to a rezoning application and therefore afforded opportunity
of objecting if they wish to do so. Therefore, in
this second
category we have people who may be indirectly affected by the
rezoning of the erf concerned.
[26] There
are no hard and fast rules an administrator can fall back on in order
to determine whether a landed property was so proximate
that on
account of its mere proximity its owner would necessarily be directly
affected by the application and therefore deserves
personal
notification. Similarly there are no such rules that can assist an
administrator to determine whether a fixed property
was so remote
that on account of its distant situation its owner would probably not
be directly affected and therefore deserves no
private and personal
service but rather public and general notification. In both targeted
categories of land owners there is simply
no radius to demarcate the
critical range of direct interests on which the administrative
rezoning decision or act may have direct
adverse impact.
[27] It seems to me that
the area between direct interest and indirect interest can be quite
blurred in certain circumstances. This
is one of such situations.
There appears to be a grey area between the applicant’s property
and the third respondent’s erf.
The two were originally developed
in accordance with the official state policies of separate
development. The one was in the so-called
white area and the other
in the so-called black area. There were two separate local
authorities charged with the administration
and development of the
two areas separately. There were two town-planning schemes each of
which was designed to regulate the development
of each area
separately. The schemes are still of force and effect. The only
real significant change now is that currently the
second respondent
is the successor in title of the two previous local authorities with
responsibilities to develop those two areas.
This history cannot be
simply wished away now as Mr. Van Rooyen has urged us to do. To do
so would perpetuate the inequalities
of the past developmental and
social programmes and sustain the socio-economic imbalance. It is a
factor which was probably taken
into account in favour of the third
respondent by the first respondent in making his decision.
[28] The section does not
require the first respondent to give private and personal notice of
the rezoning application to every nearby
owner of a property in the
vicinity of the one the rezoning application is all about. The
import of the words: who in his opinion
is directly affected, is
restrictive. It limits the obligation to give notice through the
method of private and personal service
to immediate owners and only
to such immediate owners who, in his opinion, appear to be in danger
of been adversely affected by the
rezoning. The section gives the
first respondent wide discretion. It is therefore conceivable that
even the owner of a nearby property
may, without any improper motive,
be excluded and eliminated in the process. The first respondent
enjoys free and unfettered discretion
to decide which immediate owner
is likely to bear the adverse impact of the proposed rezoning. The
proximity of such an immediate
owner alone is not a decisive factor.
If it were, the section would simply have stated that all immediate
owners within a specified
radius should be given personal notice of
the application. In
HAYES AND ANOTHER v MINISTER OF FINANCE
AND DEVELOPMENT PLANNING, WESTERN CAPE, AND OTHERS
2003 (4)
SA 598
(CPD) at 632 C – D per Erasmus AJ the administrator’s
opinion was described as follows:
“
The
subsection obliges the Director-General to effect the service of the
notice on the owners concerned once he has formed the requisite
opinion. The opinion required is, in my view, a conclusion reached
after due deliberation and due application of the mind (see MEC
for
Economic Affairs, Environment and Tourism v Mackay Bridge Farm CC
[1996] 3 B All SA 340 (SE) at 346f - g). “
[29] In
SOUTH
AFRICAN DEFENCE AND AID FUND AND ANOTHER v MINISTER OF JUSTICE
1967 (1) SA 31
(CPD) at 35 a – d Corbett J, as he then was,
described this kind of administrative discretion as follows:
“
On
the other hand, it may fall into the category comprised by instances
where the statute itself has entrusted to the repository of
the power
the sole and exclusive function of determining whether in its opinion
the pre-requisite fact, or state of affairs, existed
prior to the
exercise of the power. In that event, the jurisdictional fact is, in
truth, not whether the prescribed fact, or state
of affairs, existed
in an objective sense but whether, subjectively speaking, the
repository of the power had decided that it did.
In cases falling
into this category the objective existence of the fact, or state of
affairs, is not justiciable in a Court of law.
The Court can
interfere and declare the exercise of the power invalid on the ground
of a non-observance of the jurisdictional fact
only where it is shown
that the repository of the power, in deciding that the pre-requisite
fact or state of affairs existed, acted
mala
fide
or from ulterior motive or failed to apply his mind to the matter.
(See e.g.
Minister
of the Interior v Bechler and Others
,
supra
;
African
Commercial and Distributive Workers' Union v Schoeman, N.O. and
Another
,
1951 (4) SA 266
(T) ; R v Sachs,
1953 (1) SA 392
(AD)).”
[30] In
REX v
SCHEEPERS
1942 TPD 122
on p. 124 Scheiner J, as he then was,
said the following about a discretionary power to make such
regulations as appear to the minister
to be necessary or expedient:
“
Pausing
there for a moment, it will be seen that the powers given in sub-sec.
(1) are expressed in the wildest possible terms; there
is no
limitation in terms and presumably the only limitation would be found
in the
bona
fide
exercise of the powers.”
[31] In
STANTON v
MINISTER OF JUSTICE AND OTHERS
1960 (3) SA 353
(TPD) at 359 g
– h Jansen J, as he then was, commented:
“
The
enabling section does not merely refer to 'regulations . . .
necessary or expedient' but specifically states 'such regulations
as
appear to him (viz. the Governor-General) to be necessary or
expedient'. It has been held that such words give a complete
discretion
to decide what regulations are necessary for the purposes
named in the sub-section and that it is not open to the Courts to
investigate
the question as to whether or not it was in fact
necessary or expedient for the purposes named to make the regulations
which were
made (
Rex
v Comptroller of Patents: Ex parte Bayer Products Ltd.
,
1941 (2) A.E.R. 677).
Words substantially similar to those appearing
in sec. 3 (1) were not restrictively interpreted but found to confer
'powers . . .
of the widest possible character' in
Rex
v Beyers
,
1943 AD 404
(cf.
Rex
v McGregor
,
1914 AD 493).”
[32] The enabling section
we are here dealing with does not merely refer to any person or owner
who will be affected by the rezoning.
It is not where it all ends.
It goes further. It specifically adds, and this is a very important
addition, that the key words
are: “who, in his opinion” will be
affected by the application. Such complete discretion is indicative
of the immense power
conferred on a public functionary entrusted with
a wide discretion to exercise public power. The restrictive argument
advanced on
behalf of the applicant suffocates the enabling section
and renders the vital qualifying words virtually meaningless. To
uphold
such an argument would boil down to denying such keywords,
their natural character which is wide and liberal. Sitting as we are
in the revisionary mode, it is not open to us to enquire as to
whether or not the rezoning, in fact, will have any direct adverse
impact on the applicant’s property. The whole matter has to be
judged through the lenses of the administrator and nobody else.
[33] On review our power
to interfere with the administrative decision, based on such wide
discretion, is very limited. The legal
position was eloquently spelt
out in
SHIDIACK v UNION
GOVERNMENT
1912
(AD) 642 on p. 651 per Innes ACJ, as he then was:
“
The
decision of the Minister being essential, it becomes necessary to
consider the circumstances under which the Courts can properly
question his decision. Now it is settled law that where a matter is
left to the discretion or the determination of a public officer,
and
where his discretion has been
bona
fide
exercised or his judgment
bona
fide
expressed, the Court will not interfere with the result. Not being a
judicial functionary no appeal or review in the ordinary sense
would
lie: and if he has duly and honestly applied himself to the question
which has been left to his discretion, it is impossible
for a Court
of Law either to make him change his mind or to substitute its
conclusion for his own. This doctrine was recognised
in
Moll
vs. Civil Commissioner, Paarl
(14 S.C., at p. 468; it was acted upon in
Judes
vs. Registrar of Mining Rights
(1907, T.S., p. 1046); and it was expressly affirmed by this Court in
Nathalia
vs. Immigration Officer
(1912, A.D. 23).”
[34] The learned Judge
went further to outline the positive dimension of the doctrine by
indicating the limited class of customary
instances where courts of
review might interfere with an administrative act of a decision-maker
such as the first respondent and
the second respondent:
“
There
are circumstances in which interference would be possible and right.
If for instance such an officer had acted
mala
fide
or from ulterior and improper motives, if he had not applied his mind
to the matter or exercised his discretion at all, or if he
had
disregarded the express provisions of a statute – in such cases the
Court might grant relief.”
See also
GUMEDE
AND OTHERS v MINISTER OF LAW AND ORDER
1987 (3) SA 155
(D &
C) at 158 b.
[35] In the instant case
there is no suggestion that the first respondent’s act was tainted
by any
mala fide
conduct or that the first respondent was
actuated by an ulterior and improper motive in deciding to give no
personal notice to the
applicant. The crux of the applicant’s case
was that the applicant was directly affected by the rezoning
application and that
the first respondent’s decision not to give
him personal notice amounted to an unfair procedure. It was
therefore contended, on
behalf of the applicant, that the mere fact
that the applicant was not personally served with a copy of the
rezoning notice was indicative
of the first respondent’s failure
properly to apply his mind to the matter. Mr. Van Rooyen vigorously
argued that if the first
respondent had properly applied his mind to
the third respondent’s rezoning application, as he was supposed and
obliged to have
done, he certainly would not have overlooked the
applicant’s huge and imposing physical structure situated less than
half a kilometre
away as a crow flies from the erf.
[36] It must be borne in
mind that there was a heated factual dispute as regard the distance
between the applicant’s property and
the third respondent’s erf.
According to De Wet, the applicant’s deponent, the distance was no
longer than 400 metres; 2 kilometres
according to Ralikotsane, the
first respondent’s deponent, and 1,2 kilometre according to
Lekitlane, the third respondent’s deponent.
Although Motseki, the
second respondent’s deponent, did not give an estimate, he disputed
that the distance was as stated by the
applicant. I shall consider
the estimates of the respondents as one in this regard. Their
estimates are significantly different.
For the sake of this argument
I use 1,6 kilometres as a probably realistic approximate estimate of
the distance between the property
and the erf. The figure is a
reasonable estimate representative of an average distance according
to the estimates of the respondents.
The respondents consolidated
version has to prevail over the applicant’s version in the light of
the factual dispute.
PLASCON-EVANS PAINTS LTD v VAN RIEBEECK
PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(AD).
[37] Mr. Van Rooyen
contended that even if the version of the first respondent who
estimated the distance as 2 kilometres, was accepted
as true it made
no difference to the applicant’s contention that the two were so
close to each other that any reasonable administrator
in the shoes of
the first respondent would instantly have realised that the third
respondent’s rezoning application directly affected
the applicant.
Counsel pointed out that a displacement of 3 kilometres and not a
distance was generally accepted by the town-planners
as a
satisfactory minimum benchmark to indicate that the property owners
within that radius would be directly affected by the rezoning.
He
made this contention in response to my comment that the shortest
route of 288 metres as the crow flies was illegal since it was
a
footpath across a railway track and that it could not be used by
motor vehicles. However, Mr. Claasen’s contention was that a
displacement was an irrelevant factor in this case because, as he
said, people could not fly because they were not crows.
[38] As I see it, neither
the distance nor the displacement between the property and the erf
was the exclusive decisive factor. In
its wisdom the legislator
chose to leave the entire matter in the hands of the decision-maker.
It is quite understandable why it
was undesirable for the legislator
to be prescriptive. Instead what the legislator elected to do, was
to create a broad legal framework
within that ambit and entrusted the
widest possible discretion to an administrative functionary to
consider which factors are relevant
in the peculiar circumstances of
a case at hand. Having so applied his mind, the functionary is then
called upon to decide as to
which property owner, in the
administrator’s own opinion, deserves to be given a private
personal notice over and above the public
and general publication.
[39] In my view, the fact
that the first respondent decided to give personal notice to at least
some of the immediate owners of neighbouring
properties and caused
such notice to be served in the prescribed statutory manner
objectively demonstrates that the first respondent
indeed applied his
mind to the matter. If this is accepted, and I think it must, then
it cannot be said that the first respondent’s
decision was
irrational. It is not within our province as a court of review to
enquire whether the first respondent exercised the
discretion
entrusted to him wrongly. We are precluded by the sound principles
of administrative law from substituting the functionary’s’
decision with our decision or whatever decision we consider should
have been the right decision in the circumstances. We are not
at
liberty to usurp at will the discretionary powers granted to the
public decision-maker such as the first respondent.
[40] In
PHARMACEUTICAL
MANUFACTURERS ASSOCIATION OF SA AND ANOTHER: IN RE EX PARTE PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS
[2000] ZACC 1
;
2000 (2) SA 674
(CC) on p. 709 par. 90 per Chaskalson CJ commented about the two
critical aspects of the review standard whenever the exercise of
a
public power comes under the spotlight of judicial review.
[41] In
the first instance the learned chief justice stated that rationality
of a public functionary’s decision in a judicial sense
was a
minimum threshold requisite applicable to the exercise of any public
power by members of the executive and other subordinate
public
functionaries and that public act or public decision which fell short
of such threshold was inconsistent with the constitutional
requirement and therefore unlawful.
[42] In the second place
the chief justice cautioned that the setting of such minimum
threshold standard should not be understood
to mean that members of
the judiciary could or should substitute their preferred personal
opinions as to what was an appropriate
public decision or public act
for the
opinions of those members of the executive in whom the
exercise of public power has been vested by the legislator.
[43] When a court of
review is called upon, as we are, to scrutinise and to nullify a
decision or an act performed by a member of
the executive, it is well
to remind those presiding over the court contest that:
“
As
long as the purpose sought to be achieved by the exercise of public
power is within the authority of the functionary, and as long
as the
functionary's decision, viewed objectively, is rational, a Court
cannot interfere with the decision simply because it disagrees
with
it or considers that the power was exercised inappropriately. 108 A
decision that is objectively irrational is likely to be
made only
rarely but, if this does occur, a Court has the power to intervene
and set aside the irrational decision.”
Per
Chaskalson CJ
in
PHARMACEUTICAL MANUFACTURERS ASSOCIATION
OF SA AND ANOTHER: IN RE EX PARTE PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA AND OTHERS
,
supra
at par. 90.
[44] Since
the aforesaid constitutional decision was handed down, the principle
was repeatedly applied in several recent decisions
of our courts.
See
MINISTER
OF ENVIRONMENTAL AFFAIRS AND TOURISM AND OTHERS v PHAMBILI FISHERIES
(PTY) LTD; MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM
AND OTHERS v
BATO STAR FISHING (PTY) LTD
2003 (6) SA 407
(SCA) on 431 par. 51 – 432 par. 53;
SOUTH
AFRICAN JEWISH BOARD OF DEPUTIES v SUTHERLAND NO AND OTHERS
2004 (4) SA 368
(WLD) on 383 at 25;
FOODCORP
(PTY) LTD v DEPUTY DIRECTOR-GENERAL,DEPARTMENT
OF
ENVIRONMENTAL AFFAIRS AND TOURISM, BRANCH MARINE AND COASTAL
MANAGEMENT
2004 (5) SA 91
(CPD) on 109 at 64 and LIBERTY LIFE ASSOCIATION OF
AFRICA LTD v KACHELHOFFER NO AND OTHERS
2005 (3) SA 69
(CPD) on 102
at 79.
[45] Perhaps it is fair
comment to say it appears to me that rare are domestic court
judgments nowadays that declared and nullified
a public functionary’s
decision on the ground that it was objectively unreasonable and
therefore susceptible to judicial review.
[46] It seems to me only
logical that we have to examine the merits in order to evaluate the
possible interest the applicant may probably
have in the rezoning of
the erf. By saying so I do not suggest that it was incumbent upon
the aggrieved applicant to show to us
on review that had he been
adequately notified of the nature and purpose of the proposed
administrative action and afforded reasonably
opportunity to present
his objection at the hearing he would have swayed the executive
functionary to decide differently. We have
to examine the conduct of
the functionary to determine whether he applied his mind. However,
counsel for the applicant, was at pains
to argue that it was
impermissible to consider the merits. He passionately contended that
the essence of the applicant’s complaint
against the administrative
decision was procedural unfairness. He contended that the first
respondent was not supposed to consider
the merits before the
procedural imperative had been complied with.
[47] I am not persuaded
by the aforesaid contention of the applicant. The difficulty I have
with the contention is this: It implicitly
dichotomises the enabling
statutory provision which is the fountain from which the first
respondent as a public functionary draws
his discretionary power. To
argue that first and foremost a public functionary must only look
around and blindly give personal notice
to any property owner within
a radius of 3 kilometres from the erf specified in the rezoning
application, is inconsistent with the
import of the section. In the
decision of
RUSTENBURG PLATINUM MINES LTD (RUSTENBURG SECTION)
v COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
(2006) SCA 115 (RSA) at par. 31 Cameron JA writing for the unanimous
full bench of five remarked as follows about the connective
tissue
between the procedural aspect and the substantive aspect involving
the exercise of a discretion:
“
In
a review, the question is not whether the decision is capable of
being justified but whether the decision-maker properly exercised
the
power entrusted to him or her. The focus is on the process, and on
the way in which the decision-maker came to the challenged
conclusion. This is not to lose sight of the fact that the line
between review and appeal is notoriously difficult to draw. This
is
partly because
process-related
scrutiny can never blind itself to the substantive merits of the
outcome
.
Indeed, under PAJA the merits to some extent always intrude, since
the court must examine the connection between the decision and
the
reasons the decision-maker gives for it, and determine whether the
connection is rational.
That
task can never be performed without taking some account of the
substantive merits of the decision.
”
I share these sentiments
mindful of the fact that no public power was involved in the above
case. However, that is besides the point.
[48] The section clearly
requires that prior to the actual despatching of the requisite
notice, those in whom the power has been vested,
must think about the
possible conflict of interests, the rezoning may create. The
functionary concerned naturally has to evaluate
albeit in a cursory
manner the vested interests of the immediate property owners so as to
form a
prima
facie overview of what direct adverse impact the
change of land use might possibly have on which of the immediate
owners who might
possibly have some direct existing interests. Such
a preliminary determination of interest is a vital step of the
selective elimination
process which necessarily has to underpin the
procedural fairness of the notification process.
[49] The applicant’s
contention not only to have the process fragmented but also to have
it reversed is incompatible with the wide
discretion and the
structural scheme of the section. Accordingly the contention is one
which I find myself unable to uphold on review.
[50] As I have already
pointed out elsewhere in this judgment, proper interpretation of
section 3(6) requires that a distinction be
drawn between the group
of persons, which consists of the members of the general public in
the area where the piece of land is situated
who may possibly have
some general interest in the rezoning application on the one hand
and on the other hand the group of persons
which consist of
particular class, as seen through the eyes of the functionary in whom
the discretion vests. This particular class
has to be seen,
recognised and identified as a special group which will be directly
affected by the application. An administrative
action is
procedurally unfair not only because it directly affects a person’s
rights or legitimate expectations. But the law requires
that it must
do so in a big way. It must materially and adversely impact upon
such rights and such expectations – section 3(c)
PAJA
supra
.
[51] The phrase “who in
his opinion is directly affected”, conveys a clear understanding
and appreciation that there may well
be differences of opinion among
different people as regards the precise composition of the
particularly vulnerable special class
of such immediate owners.
Notwithstanding such natural and objective differences, as evidenced
by the differing views of the parties
in this case, the opinions of
any other assessor however knowledgeable and whatever his or her
expertise and repute might be must
yield to the opinion of the
functionary in whom the exercise of public power legally resides.
The decision of the functionary concerned
does not fall to be
reversed on judicial review just because it turns out later that two
or so property owners with direct interest
and thus directly or
adversely affected were wrongly but innocently not properly
identified and personally notified by the functionary.
It is a
matter of
bona fides
.
[52] I have earlier given
a descriptive exposition of the applicant’s property and the third
respondent’s erf. A closer and comparative
analysis of the two
reveals the real characters of these two competing interests even
better. The applicant’s property is situated
in Power Road on the
outskirts of an industrial area, whereas the third respondent’s erf
is situated in Constantia Street on the
outskirts of a residential
area. The property lies south of an active electrified railway track
whereas the erf lies north of the
railway line in question. The
railway track is fenced on both sides. Power Road and Constantia
Street are linked together by means
of an overhead bridge over the
railway track and the electric power line. Constantia Street runs
parallel to both the railway track
and the electric power line
whereas Power Road runs perpendicular to both. The Power Road
property is essentially a huge terminus
which provides primarily long
distance taxi services in addition to the short distance local taxi
services around the goldfields
as well as local taxi services. The
Constantia Street erf is conceptualised and envisaged to be
developed, first and foremost, as
a suburban shopping centre instead
of a comprehensive public taxi terminus like the huge property
developed as a taxi terminus in
Power Road.
[53] There is no
provision for non-taxi parking of the shoppers’ motor vehicles at
the taxi terminus in Power Road. But at the
Constantia Street
shopping centre provision is made for a public parking for the
exclusive convenience of the general shoppers.
No taxis will be
stationed at the proposed shopping centre in Constantia Street. Of
course there will obviously be a taxi drop-and-pick-up
zone. There
are a number of retail shops on the property in Power Road which were
designed to serve chiefly taxi commuters in particular
and therefore
more readily accessible to them than the ordinary buyers from the
street. The development of the shopping centre on
the erf in
Constantia Street will also have retail shops but they will target
the general consumers using Constantia Street as their
customers.
Their prime fertile market would be predominantly non-travelling
residents of the suburbs of Thabong.
[54] The collective
buying power of Welkom and Thabong appears to be so economically
attractive that it generates investor confidence.
This is evidenced
by the undisputed fact that the applicant itself is currently
developing a new shopping centre in Welkom to the
staggering tune of
R25 million. It stands to reason that if the buying power of the
area was so volatile and on a rapid economic
downswing that the
development of the erf in Constantia Street would have material and
adverse impact on the commercial enterprises
in the area as a whole,
the applicant would probably not have embarked on such a new colossal
enterprise in which such massive capital
has been injected. It is
indeed remarkably lamentable that the applicant’s deponent
neglected to divulge this information about
its own multi million
rand development in the same area. From this omission we can only
draw an inference adverse to the applicant.
[55] The aforegoing
comparison shows that the third respondent’s erf will have a
distinctively individualistic character which will
fundamentally be
different from that of the applicant’s property. Therefore any
interests the applicant might have had in the
rezoning application
appear to be unclear, uncertain, remote and vague. It seems to me
that whatever interest the applicant might
have justifies no finding
on review that as the owner of the property the applicant was
directly affected by the application and
therefore that the applicant
should have been personally notified. It follows from this that the
applicant’s alleged interest
was not of such a compelling nature
that it can be said that the first respondent’s decision to give no
personal notice to the
applicant indicates that such decision has to
be adjudged as objectively irrational. It is my considered opinion
that this case
is not one of those rare cases where a court would be
justified to intervene on review. I have come to the above
conclusion after
painstakingly weighing up the facts, the submissions
and the law. However, I have arrived at it with some certainty and
firmness.
[56] Mr. Claasen
contended, and in my view, correctly so, that, and I think I have to
quote him verbatim:
“
5.5 Soos
vermeld, behandel Applikant die artikel asof dit slegs verwys na ‘n
objektiewe feit van
“directly
affected” “regstreeks deur die aansoek geraak word”
sonder om oorweging te skenk aan die ander vereiste en hekkie wat
Applikant moet oorkom naamlik dat dit slegs gesien en gelees kan
word
deur die bril van die LUR indien dit, in die lig van die beginsels
van dorpsbeplanning, die Applikant volgens
“
sy
mening
”
regstreeks deur die aansoek geraak word.”
I am persuaded by this
contention.
[57] The real underlying
reason for the applicant’s objection to the proposed rezoning of
the third respondent’s erf is nothing
other than the perceived fear
of the pure economic impact the new development might have on the
retail enterprises who are lessees
on its property. The respondents
contended that the essence of the objection is aimed at eliminating
economic competition. Pure
economic considerations cannot sustain a
valid objection in the matter of this nature. On the contrary lawful
and healthy economic
competition is recognised and accepted as an
indispensable hallmark of a free market system. It curbs undesirable
monopolistic practices
which are economically unhealthy and unwanted
in a capitalistic free market system. Viewed from this perspective
it becomes quite
apparent that the objection is not prompted by any
serious and genuine consideration relevant or applicable to town
planning. Through
this opposition to the development of the erf or
through this complaint or objection all the applicant is endeavouring
to achieve
is to safeguard his own financial interests. Monopolistic
business practices at the expense of the interest of the general
public
should be eradicated. No impression should be created that a
court of law tolerates such economic tendencies.
[58] A lot has been
written about the object of town planning system. In
LUZON
INVESTMENTS (PTY) LTD v STRAND MUNICIPALITY AND ANOTHER
1990
(1) SA 215
(CPD) at 226 f – g Friedman J commented:
“
In order to examine what could be
included in the 'wider meaning' of town planning, Feetham JA in the
Rossmaur case referred to The
Oxford English Dictionary which
contains the following description of town planning:
‘
The
preparation and construction of plans in accordance with which the
growth and extension of a town is to be regulated, so as to
make use
of the natural advantages of the site, and to secure the most
advantageous conditions of housing and traffic, the convenient
situation of public buildings, open spaces, et cetera.'”
See also
BROADWAY
MANSIONS (PTY) LTD v PRETORIA CITY COUNCIL
1955 (1) SA 517
(AD) per Van den Heever JA and the comments of the co-authors P.E.
Claassen and J.R.L. Milton under the article with the heading
“Land-Use Planning” published in Fuggle & Rabie:
Environmental Management in South Africa
on p. 726 par.
28.8.1.1.
[59] The central theme of
town planning was outlined by the author Van Wyk:
Planning Law,
Principles and Procedures of Land-use Management
(1999) who was
quoted with approval in
PICK ‘N PAY STORES LTD AND OTHERS v
TEAZERS COMEDY AND REVUE CC AND OTHERS
(2002) 3 ALL SA 147
(WLD) on 154 at par. 37:
“’
The purpose of a town-planning
scheme finds concrete expression in the theme which is central to
town-planning, namely zoning.
Zoning is essentially the allocation
of different uses to different areas. Most jurisdictions proclaim,
in similar language, the
purpose of zoning in words echoing these –
‘... the power of government to protect health, safety, welfare and
morals.’ The
purpose of zoning in terms of a town-planning scheme
is the creation and retention of the specific character of an area.
Such purpose
would be frustrated if a use were allowed for which no
provision is made in the town planning scheme or if a person uses
land contrary
to the purpose for which it is zoned.’”
[60] The ultimate goal to
be achieved through town planning system is to improve the quality of
life and the general welfare of the
community concerned. This goal
embraces the creation of better living environment through
bio-conservation and dynamic development.
Vide
P.E. Claassen
and J.R.L. Milton in Fuggle & Rabie:
Environmental Management
in South Africa
on p. 715 par. 28.1.
[61] The town planning
system is a dynamic process. It is constantly evolving in order to
address emerging challenges in society.
In this country town
planning developed as a control-oriented physical regulation system.
The legal mechanisms of town planning
were for many years regrettably
bent chiefly on official control. The bureaucratic red tape often
retarded growth and stifled productive
exploitation of land.
“
It
soon became clear that zoning land for a specific use, by itself,
would not initiate development. The intentions of the owner
of the
land, and especially market forces, carry much more weight than the
allocated zoning on the town-planning scheme.”
P.E. Claassen &
J.R.L. Milton,
supra
at p. 716 par. 28.2.2.
[62] Today town planning
system is trying to shake off its technocratic hindrances, its
bureaucratic shackles and its social engineering
image. Nowadays the
system is striving to become people-orientated system to be utilised
by the whole community. A wide range of
professions with a variety
of skills and expertise from different spheres of learning contribute
to the system. It is not the domain
of one profession.
Vide
P.E.
Claassen & J.R.L. Milton,
supra
.
[63] In terms of the town
planning scheme zoning is essentially the official allocation of
different land-uses to different pieces
of land and it is employed in
the creation of specific character for a particular area. Moreover
it is designed to retain and to
preserve not only the original
character so created but also to perpetuate its original use as much
as possible. It has to be borne
in mind, though, that zoning was
never meant to be a rigid and static device of a town planning
scheme. If it were, it would lead
to paralysis of development.
Section 3 recognises that zoning is a flexible and adaptable
regulatory tool.
“
Control
of development in the form of zoning is based on the principle that a
landowner voluntarily subjects himself to control because
he wants
his neighbours to be controlled also. Or, put differently, the will
of the individual is subject to what is good for the
community.”
P.E. Claassen &
J.R.L. Milton,
supra
at p. 719 par. 28.4.1.
[64] An important
incident of the right of ownership is that generally speaking the
owner is free to exploit and to enjoy the optimal
benefits his
property can offer provided he of she does so within the permissible
perimeters of the law. Therefore the right of
the third respondent
to exploit his property is subject to lawful official controls of the
proposed development:
“
Development
control invariably affects the welfare of the people involved.
Furthermore, opinions as to what is right and what is
wrong are often
subjective, depending on the income group, culture and political
affiliation of the beholder, and the effect of a
decision on him or
her. It is therefore essential that all decisions be taken on a
democratic basis. That is, final decisions must
be taken by a
democratically elected person or body, which is responsible to the
public.”
Vide
P.E.
Claassen & J.R.L. Milton,
supra
at p. 720 par. 28.4.1.
[65] When the applicant’s
grounds of his complaint based on procedural unfairness or the
grounds of his complaint based on violation
of his legitimate
expectation are weighed up against the aforesaid principles,
objectives and purpose of the town planning scheme
it becomes
crystally clear that the complaint relied upon by the applicant has
no semblance of grounds relevant to sustain an objection
to an
application for the rezoning of land-use. Important objectives of
town-planning schemes include considerations relative to
housing,
traffic, public convenience, open spaces, recreational amenities,
health, public safety, general welfare, environment, public
orderliness and morality. Harmonious development embraces all these
considerations in an integrated programme in order to improve
the
general quality of life in an area by accelerating growth and
regulating productive exploitation of land. This is the theme
of
town-planning schemes according to the caselaw and the authorities
cited above. It is not the applicant’s case that the amendment
of
the land-use from communal to commercial will undermine or frustrate
any of the basic objectives of town planning scheme. The
real
concern seems to be the possible adverse impact the new development
might have on its financial interests which stem from the
27
retailers who trade on the said taxi terminus as the applicant’s
tenants.
[66] It must be stressed
that the first respondent disregarded the applicant on the advice of
members of the township board who are
themselves very experienced
town planners. There was no suggestion that such team of experts did
not first investigate the matter
before it advised the honourable
MEC.
Vide
THE ADMINISTRATOR, TRANSVAAL AND THE FIRS
INVESTMENTS (PTY) LTD v JOHANNESBURG CITY COUNCIL
1971 (1) SA
56
(AD) at 80 c – d. I did not hear counsel for the applicant
contending that the MEC acted in an arbitrary manner. On the
contrary
the contention was that he was wrong in deciding that the
applicant deserved no personal, notice, because as the MEC reckoned,
the
applicant was not directly affected by the application.
[67] In my view, prior
executive deference was particularly appropriate in the instant case
where the public functionary was called
upon to make an
administrative decision of a very technical nature in which the
public functionary himself had limited or no particular
proficiency
or specialised expertise.
Vide
MINISTER OF
ENVIRONMENTAL AFFAIRS AND TOURISM AND OTHERS v PHAMBILI FISHERIES
(PTY) LTD; MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM
AND OTHERS v
BATO STAR FISHING (PTY) LTD
2003 (6) SA 407
(SCA) at 432 f –
g and
BEL PORTO SCHOOL GOVERNING BODY AND OTHERS v PREMIER,
WESTERN CAPE, AND ANOTHER
[2002] ZACC 2
;
2002 (3) SA 265
(CC) on p. 292
(87).
[68] The only question
now is whether the decision of the first respondent can be nullified
on review on the grounds that it was an
irrational administrative
decision. Only the applicant persists with this personal opinion
that the applicant falls in the category
of immediate owners who the
MEC should have found had to be personally notified since they were
directly affected. It is significant
to mention that in his founding
affidavit and even in his replying affidavit the applicant’s
deponent remains the only voice in
the wilderness on this important
point. The applicant’s own expert, himself a town planner, hardly
supports the applicant in this
connection.
[69] On the contrary
there are several individuals who do not support the applicant’s
claim that he was directly affected and therefore
entitled to
personal service of the rezoning notice. The dissident majority
included the following: The members of the specialised
unit of
planning directorate in the MEC’s department; the highly
specialised town and regional planners who lodged the rezoning
application on behalf of the third respondent; the competent
personnel with years of experience in the management and
implementation
of town planning schemes attached to the planning
spatial and development directorate who visited the erf, inspected
the area and
identified which properties were directly affected and
had to be given the requisite and adequate notice; the MEC who
considered
all the physical assessment reports by experienced experts
in his department who had identified the property owners with direct
interests;
the members of the town planning board who considered and
supported the recommendation; the second respondent, the Matjhabeng
Local
Municipality; the municipal manager of the second respondent as
well as the experts Laubscher Slabbert and Brink. All these
knowledgeable
experienced and skilful individuals in town planning
schemes were objectively convinced that the applicant was not
entitled to the
notice registered in terms of section 3(6) which
notice the applicant asserts should have been personally served on
the applicant.
[70] It has to be
mentioned that the first respondent caused the notice to be published
twice in two newspapers although the section
requires two
advertisements in a single newspaper at one week interval. This
fortifies the contention that the first respondent took
more than
reasonable steps to ensure that nobody was prejudiced. It has to be
remembered that before the sale of the erf to the
third respondent,
it was a disused structure. It was vandalised. The former community
clinic was a hazardous haven for the homeless.
It was an
unattractive dilapidated building. Environmentally it was an
eye-sore. The pressing social, health, safety and environmental
needs of the affected community besides the productive exploitation
of the erf are examples of some relevant factors which, I have
reason
to believe, strongly influenced the second respondent’s support to
the rezoning. Therefore there was a rational connection
between the
decision and the reasons.
[71] The
third respondent and the fourth respondent are of course, also
convinced that the applicant is not an immediate owner of
a property
directly affected by the application. Virtually all the town
planners and the regional planners who are reputable experts
in the
field are of the opinion that the applicant’s objection is nothing
but a typical commercial objection and that the correct
property
owners were given the requisite notice in terms of section 3(6) Act
no. 84/67. It must be emphasized once again that the
two properties
we are here dealing with are regulated in accordance with two
completely different township development schemes.
[72] In the result, I am
of the view that the applicant has made out no case that the first
respondent did not properly comply with
the procedure as laid down in
section 3(6) Act No. 84/67. Seeing that the applicant has failed to
discharge the onus of proving
on a balance of probabilities that the
administrative decision complained of was irrational, there is no
reason for us to vitiate
a rational decision arrived at pursuant to
an exercise of a public power by virtue of a discretion so wide. In
my view the first
respondent has committed no reviewable procedural
irregularity. I hold the firm view that in this case, on the facts,
the public
functionary has applied his mind to the appropriate
procedural issue we are concerned with. There does not seem to me to
be any
basis for concluding that his decision is not capable of
objective substantiation. See
ROMAN v WILLIAMS N.O.
[1997] 9 BCLR 1267
(C) at 1276 C and
COETZEE v MINISTER OF
HEALTH AND ANOTHER
[1996] 3 BCLR 417
(TPD) at 425 F. An
administrative decision will be reviewable where it is not capable of
reasonable justification when regard is
had to the factual premises
on which it is based. The result of this conclusion is that I am of
the view that there is no proper
basis for us to find that there was
a reviewable procedural irregularity in this matter.
[73] The applicant relied
on several decisions which were all distinguishable. In all those
cases, which I deem unnecessary to cite
here, the courts held that
the requisite notice must be given to each and every member of the
township concerned because it was a
condition in the title deed of
each and every property covered by such township development scheme
that every property owner who
intended removing or amending any
condition in the title deed was obliged to give notice to each
property owner in the specific neighbourhood
in a prescribed manner.
In the present case there is no such title deed condition in terms of
which any of the respondents was legally
obliged to give notice to
every single property owner in the neighbourhood of the erf in
Thabong, let alone a property owner outside
such township as is the
case with the applicant.
[74] The following cases
are therefore no authority for the propositions that the first
respondent was legally obliged to give personal
and adequate notice
to the applicant by registered mail:
STRYDOM v DIE
LAND- & LANDBOUBANK VAN SUID-AFRIKA
1972 (1) 801 AD;
EX PARTE HERITAGE
DEVELOPMENTS (PTY) LTD EX PARTE PETERSEN AND OTHERS
1980 (4)
SA 87
(TPD);
EX PARTE GLENRAND
(PTY) LTD
1983 (3) SA 203
(WLD);
BECK AND OTHERS v
PREMIER, WESTERN CAPE, AND OTHERS
1998 (3) SA 487
(CPD);
PICK 'N PAY STORES
LTD AND OTHERS v TEAZERS COMEDY AND REVUE CC AND OTHERS
2000
(3) SA 645
(WLD);
HAYS & ANOTHER
v MEC FOR FINANCE WC & OTHERS
– Case No. 1222/2000
(CDP) delivered 18 July 2001.
CAMPS BAY
RATEPAYERS AND RESIDENTS ASSOCIATION AND OTHERS v MINISTER OF
PLANNING, CULTURE AND ADMINISTRATION, WESTERN CAPE, AND
OTHERS
2001 (4) SA 294
(CPD)
CAMPS BAY
RATEPAYERS AND RESIDENTS ASSOCIATION AND OTHERS v MINISTER OF
PLANNING, CULTURE AND ADMINISTRATION, WESTERN CAPE, AND
OTHERS
2001 (4) SA 294
(CPD).
[75] Throughout this
judgment I was mindful of the fact that the fundamental core of the
notion of procedural fairness is the basic
tenet of natural justice
which commands a decision-maker to hear the other party as well.
Fair administrative procedure is designed
to eradicate arbitrariness
and to entrench rationality in the reasoning process in order to
arrive at a balanced decision whatever
the outcome, having traversed
versions of the parties, having scrutinized the actions of the
functionary and having considered the
essential purpose of the
protection afforded through the notion of procedural fairness,
nothing arrests my mind and moves me to find
that the procedure
followed, failed to reach down into the avenue of a rational
adjudicating process to give content to the rule
of law. (
Vide
DE LANGE v SMUTS
supra
, per Mokgoro J at
835 F – 836 B). I am not satisfied that the omission to give the
applicant direct and adequate notice constituted
a reviewable
fundamental misdirection or procedural irregularity, if any, of such
a magnitude that it vitiated the exercise of a
proper discretion by
the first respondent, the MEC. (
FERREIRA v PREMIER, FREE
STATE, AND OTHERS
2000 (1) SA 241
(OPD) at 251 i – 252 a
per Van Coller J.)
[76] In the
circumstances, it follows that the applicant has failed to make out a
case to justify the review and the setting aside
of the first
respondent’s decision. I am therefore inclined to dismiss the
application with costs. In the light of the view I
take on the
merits, I chose not to deal with the point
in limine
raised by
Mr. Ploos van Amstel pertaining to the non-joinder of the township
development board or the regional development board.
[77] Accordingly I make
the following order:
77.1 The application is
dismissed.
77.2 The applicant is
directed to pay the costs of all the respondents.
______________
M. H. RAMPAI, J
I
concur.
_____________
S. EBRAHIM, J
On behalf of the
applicant: Adv. P. C. F. van Rooyen SC
Instructed
by:
Hill
McHardy & Herbst Inc.
BLOEMFONTEIN
On behalf of first
respondent: Adv. J. Y. Claasen
Instructed by:
The
State Attorney
BLOEMFONTEIN
On behalf of second
respondent: Adv. C. Ploos van Amstel SC
Instructed
by:
Peyper
Attorneys Inc.
BLOEMFONTEIN
On behalf of third and
fourth
respondents: Adv.
B. Knoetze SC
Instructed
by:
Naudes
Attorneys
BLOEMFONTEIN
/sp