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2024
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[2024] ZALMPPHC 144
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Bela-Bela Municipality and Others v Bela-Bela VTS (Pty) Ltd and Another (Leave to Appeal) (10379/2023) [2024] ZALMPPHC 144 (11 October 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:
11/10/2024
SIGNATURE:
In
the matter between:
BELA-BELA
MUNICIPALITY
First
Applicant
THE
MUNICIPAL MANAGER:
BELA-BELA
MUNICIPALITY
Second
Applicant
BELA-BELA
MUNICIPAL COUNCIL
Third
Applicant
and
BELA
BELA VTS (PTY) LTD
First
Respondent
MEC
OF LIMPOPO DEPARTMENT OF
TRANSPORT
AND COMMUNITY SAFETY
Second
Respondent
In
re:
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
JUDGMENT
Gaisa
AJ
INTRODUCTION
[1]
This is an application for leave to appeal against the judgment and
order I granted
on 10 September 2024. The applicants seek leave to
appeal to the Full Bench of this Court, alternatively to the Supreme
Court of
Appeal.
[2]
The main judgment reviewed and set aside a decision by the Bela-Bela
Municipality
not to support the first respondent's application to
establish a vehicle testing station. The matter was remitted to the
municipality
for reconsideration within specified parameters.
[3]
The test for granting leave to appeal, as per
section 17(1)
of the
Superior Courts Act 10 of 2013
, is whether
"the appeal would
have a reasonable prospect of success".
This standard has
replaced the previous test, which considered whether there was a
reasonable prospect that another court may come
to a different
conclusion.
GROUNDS
OF APPEAL
[4]
The applicants have presented multiple grounds for appeal. I will
systematically address
each of these grounds in turn, providing a
concise summary and analysis of each:
4.1.
Reviewability of the 3 August 2023 letter:
4.1.1. The
applicants contend that I erred in finding that the Municipal
Manager's letter of 3 August 2023 constituted reviewable
administrative action under PAJA.
4.1.2. They argue
that the letter did not have a direct, external legal effect as
required by the definition of administrative
action in PAJA.
4.1.3. I remain of
the view that the letter, which clearly communicated a decision not
to support the first respondent's application
at that stage, had a
direct and immediate impact on the first respondent's ability to
progress its licence application. The fact
that the ultimate
licensing decision rests with the MEC does not negate the practical
and legal effect of the municipality's stance.
4.1.4. While there
may be room for debate on this point, I am not persuaded that there
are reasonable prospects that another
court would come to a different
conclusion on this issue.
4.2.
Limitation on factors to be considered:
4.2.1. The
applicants argue that I erred in limiting the factors the
municipality could consider to only those within its
constitutional
competence.
4.2.2. They contend
this unduly restricts their discretion and conflicts with principles
of cooperative governance.
4.2.3. Upon careful
reconsideration, I maintain that my interpretation accurately
reflects the constitutional division of
powers among different
spheres of government as it pertains to this case. It is imperative
to contextualize the municipality's
role within the framework of its
constitutional mandate and prescribed competencies.
4.2.4. While I
stand by my interpretation, I recognize that this case involves
sophisticated interplay between regulatory
interpretation and
established principles of cooperative governance. The nuanced nature
of these legal and constitutional considerations
leaves room for
judicial discretion. Consequently, there exists a reasonable prospect
that an appellate court, in exercising its
own judgment, might arrive
at a different conclusion regarding the permissible scope of factors
a municipality may consider in
this context.
4.3.
Procedural fairness:
4.3.1. The
applicants contest my finding regarding procedural unfairness, which
was predicated on the extensive delays in
the process and the
apparent lack of opportunity for representations. They contend that
the delays were adequately explained, and
that the first respondent
did not explicitly raise concerns about insufficient opportunities to
make representations.
4.3.2. Upon
thorough reflection, I maintain that the substantial delay in this
matter raises legitimate fairness concerns,
as temporal factors can
significantly impact administrative justice. However, I recognize
that the nexus between delay and procedural
unfairness is nuanced and
context dependent.
4.3.3. While my
initial analysis highlighted important procedural issues, I
acknowledge that there is scope for judicial discretion
in
determining whether these circumstances constitute reviewable
procedural unfairness.
4.3.4. Another
court, applying the same legal principles but potentially weighing
the factors differently, could conceivably
reach an alternative
conclusion on this point.
4.4.
Error of law and rationality:
4.4.1. The
applicants have raised objections to my findings concerning error of
law and rationality, with particular emphasis
on the consideration of
market saturation. Their contention is that such economic factors
fall within the ambit of relevant considerations
for the
municipality's decision-making process.
4.4.2. After
careful consideration, I maintain my position that market saturation
considerations extend beyond the proper
scope of the municipality's
mandate in this specific context. This view is grounded in a detailed
analysis of the relevant legislative
framework and the constitutional
division of powers between different spheres of government.
4.4.3. Nonetheless,
I recognize that the demarcation between pertinent local
considerations and matters reserved for the licensing
authority
involves nuanced legal interpretation. The interplay between
municipal planning powers and provincial licensing authority
in this
domain is complex and subject to evolving jurisprudence.
4.4.4. Given these
intricacies, I am of the opinion that another court should be
afforded the opportunity to consider this
issue.
CONCLUSION
[5]
Upon thorough reflection and rigorous analysis, I maintain my
conviction in the soundness
of my original judgment. However, I
acknowledge that certain aspects of this case—particularly
those concerning the scope
of municipal discretion and the
application of the Promotion of Administrative Justice Act (PAJA) in
this context—involve
nuanced legal considerations. Given the
multifaceted nature of these issues, Given the multifaceted nature of
these issues, there
is a possibility for potentially differing
interpretations, which may justify consideration by another court.
[6]
Furthermore, the legal questions raised in this matter transcend the
immediate case,
touching upon issues of broader public importance.
They necessitate careful examination of the proper interpretation of
regulatory
frameworks and the delicate balance of powers between
different spheres of government.
[7]
The resolution of these questions has potential implications for
administrative law
jurisprudence and the practical implementation of
cooperative governance principles.
ORDER
[8]
In the result, I make the following order:
1. Leave to appeal to the
Full Bench of this Court is granted.
2. The costs of this
application shall be costs in the appeal.
N. GAISA
ACTING
JUDGE OF THE HIGH COURT,
POLOKWANE,
LIMPOPO
APPEARANCES
FOR
THE APPLICANTS
: GSM MOHLABI INC. ATTORNEYS
EMAIL
:
info@gsmmohlabiinc.co.za
:
Glynnmohlabi01@gmail.com
FOR
THE 1ST RESPONDENT
: MATHOPO MAKWEYA ATTORNEYS
EMAIL
:
thandimakweya@gmail.com
DATE
OF HEARING
: 11October 2024
DATE
OF JUDGEMENT
: 11 October 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 11 OCTOBER 2024.