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2024
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[2024] ZAECELLC 16
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Buffalo City Metropolitan Municipality v Own Haven Housing Association NPC and Another (1217/2019) [2024] ZAECELLC 16 (2 April 2024)
OF
INTEREST
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO. 1217/2019
In
the matter between:
BUFFALO
CITY METROPOLITAN MUNICIPALITY
Applicant
And
OWN
HAVEN HOUSING ASSOCIATION NPC
First Respondent
LORLES
CC
Second Respondent
JUDGMENT
IN RESPECT OF
APPLICATION
FOR LEAVE TO APPEAL
HARTLE
J
[1]
The applicant seeks leave to appeal against paragraphs 2, 3, 4 and 6
of my order
handed down on 26 June 2023.
[2]
In a notice dated 5 July 2023, the applicant raised several grounds
for its
entitlement for leave to appeal but ultimately only persisted
with two main threads for its disagreement with my judgment and
order.
The first concern relates to my finding as to the adequacy or
inadequacy of the required public participation by the applicant’s
Council that preceded its impugned policy making. The second aspect
of concern relates to the supposed findings made by me in relation
to
the rationality or legality review insofar as it impacts upon the
first respondent.
[3]
With
reference to the comprehensive submissions made by the parties in
their heads of argument and in oral argument before me, I
am not
convinced that there are either reasonable prospects of success in
the proposed appeal concerning the condensed grounds
or that there is
some other compelling reason why the appeal should be heard in these
two remaining respects.
[1]
[4]
Concerning the legality of the public participation process, I have
revised
my judgment in which I exhaustively explained why I felt
constrained to find as I did and I do not believe objectively that
another
court would reasonably arrive at a conclusion different to
mine.
[5]
Inasmuch as I was criticised for applying a reverse onus, I do not
believe that
there is any substance to the complaint. I
properly found that the onus was indeed on the respondents to make
their case
in this respect and this they did with reference to the
admissible evidence which, viewed from their perspective, supported
the
premise that there was simply an absence of any participatory
democracy when it came to the substantial revision of the rates
policy
in the mandatory respects required.
[6]
Concerning
the complaint that I adopted the wrong approach or failed to properly
apply the provisions of Rule 53, the applicant
overlooks the
respondents’ unchallenged averment that it first embarked on an
objective to obtain all the necessary material
utilising the
machinery of the Promotion of Access to Information Act.
[2]
Thereupon it availed itself of the additional procedure that avails
itself at the behest of an applicant for review in the
machinery of
Rule 53. The respondents selected from both measures taken to
get to the bottom of the question whether the
applicant had complied
with the public participation and consultative process required that
which it considered relevant to the
review. They also warned the
applicant (following the approach adopted in
Venmop
275 (Pty) Ltd & Another v Cleverlad Projects (Pty) Ltd &
Another
)
[3]
that if there was something which they had failed to include in the
record which the applicant thought was relevant, such documents
could
be introduced into evidence as annexures to the answering affidavit.
The respondents were further meticulous in their examination
of
everything disclosed by the applicant to satisfy their zeal to prove
that the municipality had not done right by them in complying
with
the requirements for public participation with particular relevance
to the rates policy.
[7]
Ironically the applicant did not take issue with my conclusion that
neither
party expected me to have regard to the several volumes
constituting that which the respondents by necessary implication
earmarked
as not being of any relevance to the legality review yet it
seeks to imply that there might be something still lurking therein
that possibly negates the respondents’ complaint that there was
not an adequate public consultative process.
[8]
A careful dispassionate appraisal of my judgment demonstrates to my
mind that
I correctly applied the law regarding the approach to be
adopted in a Rule 53 scenario as well as the onus resting on the
respondents.
This led me to a comprehensive review of all the
relevant evidence to properly determine the issues before me.
[9]
The
applicant would do well to consider the cautionary remarks of Leach
JA in
Kalil
v Managing Municipality
[4]
that it is crucial in matters of public-interest litigation, where
the legality of government officials’ actions are at stake,
that they should “
neither
be coy
”
nor “
play
fast and loose with the truth
”.
On the contrary, as the Supreme Court of Appeal observed, it is the
duty of such officials to take the court into
their confidence and
fully explain the facts so that an informed decision can so be taken
in the interests of good governance.
[10]
The applicant could not have been in any doubt what case it had to
meet and answer to in such
capacity, even if the onus was on the
respondents to make out the case they sought to present.
Certainly there was no suggestion
of any untruths on the part of the
applicant, but its recourse to the gap left by the omission of
certain folders which it did
not suggest were relevant after all, is
somewhat mischievous.
[11]
Regarding the second leg to the present application, I made it clear
(in paragraph 125 of my
judgment) that it was strictly unnecessary to
deal with the issue of substantive rationality and that the remarks
made in this
regard, some antithetical even to submissions made on
behalf of the respondents, was merely to be of assistance to the
parties
going forward. I made no “
findings
”
binding on the Municipality.
[12]
Having said that I am unpersuaded that there are prospects of
success, it is so that I must still
enquire into whether there is a
compelling reason to entertain the appeal.
[13]
Whilst the subject matter of the review implicated a constitutional
issue, the legality enquiry
(related to process) was essentially a
once off historical introspection into a situation which pertained to
policy making (in
the narrow sense of the applicant’s Council
adopting a rates policy) in 2018. The force of the applicant’s
argument
was furthermore focused on whether I correctly found on the
evidence that the impugned resolution fell afoul of the peremptory
requirements for public participation rather than on the remedy which
I ordered in the peculiar circumstances of the matter. As
I further
indicated above, it was unnecessary to have gone any further once I
found that the applicant’s Council’s
efforts had not
passed constitutional muster, rendering the policy implicated thereby
invalid.
[14]
My
judgement raises no questions in law or a discrete issue of public
importance that will have an effect on future disputes.
[5]
[15]
The applicable law (catering for the interests of litigants in
similar positions to the parties)
on the subjects of both the
requirements of Rule 53 and the nature and extent of the
constitutional obligation on a municipality
to encourage the
involvement of local communities in matters of local government to
which expression is given in local government
legislation, is well
versed and articulated in numerous judgments of the courts as I
indicated in my judgment, and does not in
my view therefore require
anything to be rehashed or revisited.
[16]
In all the circumstances I am not inclined to grant the applicant the
leave sought.
[17]
The order which I issue is as follows:
1. The
application for leave to appeal is dismissed with costs.
2. The
costs shall include the costs of two counsel, where applicable.
_________________
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
: 6
December 2023
DATE
OF JUDGMENT
:
2 April 2023
Appearances:
For
the applicant: Mr. R Buchanan SC together with Mr. L X Mpiti
instructed by Makhanya Attorneys, East London (ref. Mr. Makhanya).
For
the respondents: Mr. E A S Ford SC together with Mr. J G Richards
(now SC) instructed by Bax Kaplan Russell Inc., East London
(ref. Mr.
S Clarke).
[1]
See
section 17
(1)(a) of the
Superior Courts Act, No. 10 of 2013
.
[2]
No. 2 of 2000
[3]
2016 (1) SA 78
(GJ) at [17].
[4]
2014
(5) SA 123
(SCA) at [30]
[5]
Caratco
(Pty) Ltd v Independent Advisory
(Pty)
Ltd
2020 (5) SA 35
(SCA) at [2].