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2024
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[2024] ZALMPPHC 107
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Bela Bela VTS (Pty) Ltd v Bela Bela Municipality and Others (10379/2023) [2024] ZALMPPHC 107 (10 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 10379/2023
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE: 12/9/2024
SIGNATURE:
In
the matter between:
BELA
BELA VTS (PTY) LTD
Applicant
and
BELA-BELA
MUNICIPALITY
First
Respondent
THE
MUNICIPAL MANAGER:
BELA-BELA
MUNICIPALITY
Second
Respondent
BELA-BELA
MUNICIPAL COUNCIL
Third
Respondent
MEC
OF LIMPOPO DEPARTMENT OF
TRANSPORT
AND COMMUNITY SAFETY
Fourth
Respondent
JUDGEMENT
Gaisa
AJ
INTRODUCTION
[1]
This application concerns the interplay
between local government powers and national regulatory frameworks in
the context of vehicle
testing stations. The applicant, Bela Bela VTS
(Pty) Ltd, seeks to review and set aside a decision by the Bela-Bela
Municipality
not to provide a letter of support for its application
to establish a vehicle testing station. This case raises important
questions
about the role of municipalities in the licensing process
for vehicle testing stations, the interpretation of the relevant
legislative
framework, and the principles governing judicial review
of municipal decision-making.
[2]
The
matter comes before this court as an application for judicial review
in terms of the
Promotion
of Administrative Justice Act
.
[1]
The applicant contends that the municipality's decision was unlawful,
irrational and procedurally unfair. The respondents oppose
the
application on various grounds, including that there is no final
decision to review and that the application is premature.
[3]
This judgment will address the following
key issues:
3.1.
whether there is a reviewable decision
before the court;
3.2.
the proper interpretation of the
legislative framework governing vehicle testing stations;
3.3.
the role and powers of municipalities in
the licensing process;
3.4.
whether the municipality's conduct
constitutes reviewable administrative action;
3.5.
if so, whether the decision should be set
aside on any of the grounds of review.
FACTUAL BACKGROUND
[4]
The salient facts are largely common cause
between the parties. On 20 September 2022, the applicant applied to
the Bela-Bela Municipality
for a letter of support for its
application to establish a vehicle testing station within the
municipal area. This letter of support
is required as part of the
application process to the MEC for Transport in terms of the
National
Road Traffic Act 93 of 1996
and its Regulations.
[5]
Despite follow-ups from the applicant, the
municipality failed to respond substantively to the request for
several months. On 27
July 2023, the Municipal Council considered the
applicant's request but did not pass a resolution in support.
Instead, the matter
was referred back to the municipal administration
[6]
On 3 August 2023, the Municipal Manager
informed the applicant that the Municipal Council could not provide
consent for the application
at that stage, citing concerns about
oversaturation of testing stations in the area and potential impact
on the municipality's
own testing station revenue.
[7]
The applicant subsequently launched this
review application, contending that the decision was unlawful and
invalid. The municipality
opposes the application, arguing
inter
alia
that there is no final decision to
review as the matter remains under consideration.
LEGAL FRAMEWORK
[8]
The
establishment and operation of vehicle testing stations is governed
primarily by the
National Road Traffic Act
[2
]
and the National Road Traffic Regulations, 2000.
[9]
Section 38 of the NRTA provides:
"Any person,
department of state or registering authority desiring to operate a
testing station shall apply in the prescribed
manner to the
inspectorate of testing stations for the registration of such testing
station."
[10]
Regulation 128 sets out the manner of
application for registration of a testing station. Of particular
relevance is clause 6.2.2
of Schedule 3 to the Regulations, which
states:
"The testing
station proprietor shall provide a copy of the written resolution
from the Municipal Council of the municipality
in which the Testing
Station is located, supporting the application of the Testing
Station."
[11]
This provision forms the crux of the
dispute between the parties. Its proper interpretation and effect are
central to determining
the issues in this case.
ISSUES FOR
DETERMINATION
[12]
The following key issues arise for
determination:
12.1.
Is there a reviewable decision before the
court?
12.2.
What is the proper interpretation of clause
6.2.2 of Schedule 3 to the Regulations?
12.3.
What is the role and extent of municipal
powers in relation to applications for vehicle testing stations?
12.4.
Does the municipality's conduct constitute
administrative action reviewable under PAJA?
12.5.
If so, should the decision be set aside on
any of the grounds of review raised by the applicant?
ANALYSIS
[13]
Is there a reviewable decision
?
13.1.
The first issue to address is whether there
is in fact a reviewable decision before the court. The respondents
contend that the
application is premature as there is no final
decision, merely a referral back to the administration.
13.2.
In
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[3]
the Supreme Court of Appeal held that:
"…
administrative decisions are often built on the supposition that
previous decisions were validly taken... [and] until
the decision is
set aside by a court in proceedings for judicial review it exists in
fact and it has legal consequences that cannot
simply be overlooked."
13.3.
While the Municipal Council did not pass a
formal resolution rejecting the applicant's request, the letter of 3
August 2023 from
the Municipal Manager clearly communicates a
decision not to support the application at that stage. This
constitutes an administrative
decision with direct, external legal
effect on the applicant's rights.
13.4.
The fact that the municipality
characterises this as an interim position does not detract from its
immediate impact on the applicant's
ability to progress its licence
application.
13.5.
I therefore find that there is a reviewable
decision before the court. The application is not premature.
[14]
Interpretation of clause 6.2.2 of
Schedule 3
14.1.
The proper interpretation of clause 6.2.2
is central to determining the role and powers of the municipality in
this process. The
applicant contends that this provision merely
requires the municipality to confirm that the proposed testing
station would be located
within its jurisdiction. The respondents
argue that it empowers the municipality to consider the merits of the
application and
exercise discretion in whether to support it.
14.2.
In
Cool
Ideas 1186 CC v Hubbard and Another
[4]
the Constitutional Court reaffirmed the principles of statutory
interpretation:
"A fundamental
tenet of statutory interpretation is that the words in a statute must
be given their ordinary grammatical meaning,
unless to do so would
result in an absurdity. There are three important interrelated riders
to this general principle, namely:
(a)
that statutory provisions should
always be interpreted purposively;
(b)
the relevant statutory provision
must be properly contextualised; and
(c)
all statutes must be construed
consistently with the Constitution, that is, where reasonably
possible, legislative provisions ought
to be interpreted to preserve
their constitutional validity."
14.3.
Applying these principles, I make the
following findings on the proper interpretation of clause 6.2.2:
14.3.1.
The ordinary grammatical meaning of the
words "supporting the application" suggests more than mere
confirmation of location.
It implies an evaluative process by the
Municipal Council.
14.3.2.
The purposive approach supports this
interpretation. The legislature's inclusion of this requirement
suggests an intention for municipalities
to play a meaningful role in
the process, likely due to their local knowledge and planning
responsibilities.
14.3.3.
Contextually, this interpretation aligns
with the broader regulatory framework for vehicle testing stations,
which involves multiple
levels of government in ensuring public
safety and proper planning.
14.3.4.
A constitutionally compliant interpretation
must respect the principle of cooperative governance enshrined in
Chapter 3 of the Constitution.
This favours an interpretation that
gives meaningful effect to the municipal role rather than reducing it
to a rubber stamp.
14.3.5.
I therefore conclude that clause 6.2.2
empowers municipalities to substantively consider applications for
support and exercise discretion
in whether to provide such support.
However, this discretion is not unfettered and must be exercised
lawfully, rationally and in
accordance with the constitutional
principles of cooperative governance.
[15]
Role and extent of municipal powers:
15.1.
Having established that municipalities have
a substantive role to play, it is necessary to delineate the extent
of their powers
in this context. The respondents' argument that they
can consider factors such as market saturation goes too far.
15.2.
South African
constitutional law affirms that municipalities must respect the
distinct functions assigned to other spheres of government
and may
not usurp powers beyond their constitutional mandate. This principle
is rooted in Section 41(1)(e) of the Constitution,
which underscores
the importance of cooperative governance and mandates that all
spheres of government must respect each other’s
constitutional
status and functions. The Constitutional Court has been instrumental
in reinforcing this division of powers, ensuring
that municipalities
operate within their designated competencies and refrain from
encroaching on functions that belong to the national
or provincial
spheres of government.
15.3.
Municipalities
may not usurp the functions of other spheres of government.
Municipalities must respect the separation of powers
and cannot
assume roles that are constitutionally assigned to other spheres of
government.
[5]
15.4.
The power to register and regulate vehicle
testing stations clearly falls within the provincial government's
transport function.
While municipalities have a role to play, they
cannot arrogate to themselves powers that properly belong to the
provincial sphere.
15.5.
I therefore find that in considering
whether to support an application under clause 6.2.2, municipalities
are limited to factors
within their constitutional competence. These
would include:
15.5.1.
Compliance with local zoning and land use
regulations
15.5.2.
Alignment with integrated development plans
and local economic development strategies
15.5.3.
Local traffic management considerations
15.5.4.
Any other factors directly related to
municipal planning and local government matters
15.6.
Considerations such as market saturation or
impact on existing testing stations fall outside the municipality's
remit and are more
properly considered by the MEC in deciding whether
to grant the licence.
15.7.
Does the conduct constitute
administrative action?
15.7.1.
Having found that there is a reviewable
decision and clarified the scope of municipal powers, the next
question is whether the municipality's
conduct constitutes
administrative action reviewable under PAJA.
15.7.2.
The
elements of an administrative action for review purposes were
summarised by the Constitutional Court in
Minister
of Defence and Military Veterans v Motau and Others
[6]
,
by Khampepe J as follows:
"[33] The concept
of 'administrative action', as defined in s 1(i) of PAJA, is the
threshold for engaging in administrative-law
review. The rather
unwieldy definition can be distilled into seven elements: there must
be (a) a decision of an administrative
nature; (b) by an organ of
state or a natural or juristic person; (c) exercising a public power
or performing a public function;
(d) in terms of any legislation or
an empowering provision; (e) that adversely affects rights; (f) that
has a direct, external
legal effect; and (g) that does not fall under
any of the listed exclusions."
15.7.3.
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[7]
,
O'Regan J said:
"[25] The
provisions of s 6 divulge a clear purpose to codify the grounds of
judicial review of administrative action as defined
in PAJA. The
cause of action for the judicial review of administrative action now
ordinarily arises from PAJA, not from the common
law as in the past.
And the authority of PAJA to ground such causes of action rests
squarely on the Constitution. It is not necessary
to consider here
causes of action for judicial review of administrative action that do
not fall within the scope of PAJA. As PAJA
gives effect to s 33 of
the Constitution, matters relating to the interpretation and
application of PAJA will of course be constitutional
matters."
15.8.
Applying these criteria to the present
case
:
15.8.1.
The decision was made by the Bela-Bela
Municipality, an organ of state.
15.8.2.
In considering the application for support,
the municipality was exercising a public power derived from clause
6.2.2 of the Regulations.
15.8.3.
This power is exercised in terms of
empowering legislation, namely the NRTA and its Regulations.
15.8.4.
The decision adversely affects the rights
of the applicant by impeding its ability to progress its licence
application.
15.8.5.
The decision has a direct, external legal
effect on the applicant's position.
15.9.
I therefore conclude that the
municipality's decision constitutes administrative action reviewable
under PAJA.
GROUNDS OF REVIEW
[16]
The applicant has raised several grounds of
review, including that the decision was procedurally unfair, based on
an error of law,
and irrational. Having regard to the evidence before
me, I make the following findings:
16.1.
Procedural fairness:
The extensive delay in
responding to the applicant's request, despite follow-ups, falls
short of the standards of procedural fairness
required by section 3
of PAJA. Despite the lengthy, not properly explained delay by the
municipal respondents, the municipal respondents
failed to give the
applicant an adequate opportunity to make representations before
reaching its decision.
16.2.
Error of law
:
The
municipality's consideration of factors outside its remit, such as
market saturation, constitutes an error of law in the form
of a
misconstruction of its powers under clause 6.2.2.
16.3.
Rationality
:
In
Pharmaceutical Manufacturers
Association of South Africa and Another: In re Ex Parte President of
the Republic of South Africa
and Others
[8]
the
Constitutional Court held that rationality is a minimum threshold
requirement applicable to the exercise of all public power.
The
decision must be rationally related to the purpose for which the
power was given:
”
[85]
It is a requirement of the rule of law that the exercise of public
power by the Executive and other functionaries should not
be
arbitrary. Decisions must be rationally related to the purpose for
which the power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the
standards demanded by our
Constitution for such action.
[86]
The question whether a decision is rationally related to the purpose
for which the power was given calls for an objective enquiry.
Otherwise a decision that, viewed objectively, is in fact
irrational, might pass muster simply because the person who took
it
mistakenly and in good faith believed it to be rational. Such a
conclusion would place form above substance and undermine an
important constitutional principle.”
[17]
The municipality's stated reasons for not
supporting the application - concerns about oversaturation and impact
on municipal revenue
- are not rationally connected to the purpose of
clause 6.2.2, which is to allow municipalities input on local
planning and governance
issues. These considerations fall outside the
municipality's proper role in the process.
[18]
I therefore find that the decision falls to
be set aside on multiple grounds under section 6 of PAJA.
REMEDY
[19]
Section 8 of PAJA gives the court broad
remedial powers when reviewing administrative action. In light of the
constitutional principle
of separation of powers, courts should be
cautious about substituting their own decision for that of the
administrator.
[20]
In the circumstances of this case, I
consider it appropriate to:
20.1.
Set aside the municipality's decision of 3
August 2023;
20.2.
Remit the matter back to the Municipal
Council for reconsideration;
20.3.
Direct the municipality to reconsider the
application within 20 days of the order of this court, having regard
only to factors within
its constitutional competence as outlined in
this judgment;
20.4.
Direct the municipality to provide written
reasons, within 5 days of the reconsideration, for its decision to
the applicant.
CONCLUSION
[21]
While municipalities have an important part
to play in the regulation of vehicle testing stations, they must
exercise their powers
within constitutional bounds and with due
regard to the principles of rationality and procedural fairness.
ORDER
[22]
In the result, I make the following order:
22.1.
The decision of the Bela-Bela Municipality
communicated on 3 August 2023, declining to support the applicant's
application for a
vehicle testing station, is reviewed and set aside.
22.2.
The matter is remitted to the Bela-Bela
Municipal Council for reconsideration.
22.3.
The Bela-Bela Municipality is directed to
reconsider the applicant's request for support within 20 days of this
order, having regard
only to factors within its constitutional
competence as set out in this judgment.
22.4.
The Bela-Bela Municipality is directed to
provide written reasons for its decision to the applicant within 5
days of making such
decision.
22.5.
The respondents are ordered to pay the
applicant's costs.
N. GAISA
ACTING JUDGE OF THE
HIGH COURT,
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF :
MATHOPO
MAKWEYA ATTORNEYS
EMAIL
:
thandimakweya@gmail.com
FOR
THE DEFENDANT :
GSM
MOHLABI INC .ATTORNEYS
EMAIL
:
info@gsmmohlabiinc.co.za
Glynnmohlabi01@gmail.com
DATE
OF HEARING :
9
September 2024
DATE
OF JUDGEMENT :
10
September 2024
This
judgment is handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 10 SEPTEMBER 2024 at 12:00 PM.
[1]
Act
3 of 2000 (“PAJA”)
[2]
Act
93 of 1996 (“NRTA”)
[3]
2004
(6) SA 222 (SCA)
[4]
2014
(4) SA 474
(CC) at para [28].
[5]
Minister
of Local Government, Environmental Affairs and Development Planning,
Western Cape v The Habitat Council and Others (2014)
ZACC 9; 2014
(5) SA 256 (CC)
[6]
2014(5)
SA 69 (CC)
[7]
[2004]
ZACC 15
;
2004 (4) SA 490
(CC)
[8]
[2000] ZACC 1
;
2000
(2) SA 674
(CC)