SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy


THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 880/2023

In the matter between:

GEORGE LOCAL MUNICIPALITY
APPELLANT

and

CAPE ESTATES PROPERTIES (PTY) LTD
(FORMERLY MAGNOLIA RIDGE PROPERTIES
77 (PTY ) LTD) FIRST
RESPONDENT
THE APPEAL AUTHORITY,
GEORGE LOCAL MUNICIPALITY SECOND
RESPONDENT

2 DEPUTY DIRECTOR PLANNING AND SENIOR
MANAGER: LAND USE MANAGEMENT THIRD
RESPONDENT

Neutral citation: George Local Municipality v Cape Estate Properties (Pty) Ltd
and Others (880/2023 ) ZASCA 39 (8 April 2025 )
Coram: MOCUMIE, KEIGHTLEY and SMITH JJA and VALLY and
MOLITSOANE AJJA
Heard : 21 February 2025
Delivered : This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website, and released to SAFLII. The date for hand down is deemed to be 08 April
2025 at 11h00.
Summary: Administrative Law – review – Promotion of Administrative Justice
Act 3 of 2000 (PAJA) – rectification of zoning scheme map – refusal of
rectification application review ed and set aside – substitution justified in terms of s
8(1)( c)(ii)( aa) of PAJA – declaratory relief – industrial zoning not limited to
sawmill use.

3

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town (Nziweni ,
Ndita and Fortuin JJ sitting as court of appeal):
The appeal is dismissed with costs, including the costs of two counsel where so
employed.


JUDGMENT
Keightley JA ( Mocumie and Smith JJA and Vally and Molitsoane AJJA
concurring):

Introduction
[1] The first respondent, Cape Estates Properties (Pty) Ltd (Cape Estates) , is the
owner of Erf 2[...] , George ( Erf 2[...] ). This appeal is concerned with the zoning of
that property . Specifically at issue is a decision by the appellant, the George Local
Municipality ( the Municipality ), to refuse an application (the rectification
application) by Cape Estates for rectificatio n of the zoning of Erf 2[...] depicted in
the Municipality’s 2017 Zoning Scheme Map (the 2017 zoning map ).
[2] The 2017 zoning map depicted Erf 2[...] as having a split zoning: 4,1
hectares of the property was zoned ‘Industrial Zone II’ (industrial) , with the
remaining approximately 7 hectares zoned ‘Agricultural Zone 1’ (agricultural) .
Cape Estat es took the view that the split zoning of Erf 2[...] in the 2017 zoning
4 map was erroneous . It contended that the entire 11,1875 hectares of Erf 2[...]
should have been depicted as having an industrial zoning . The rectification
application was aimed at correcting this averred error. After both the rectification
application , as well as a subsequent internal appeal to the Municipality’s Appeal
Authority (the appeal authority) failed, Cape Estates instituted review proceedings
in the Western Cape Division of the High Court, Cape Town (the high court) .
Thulare J, sitting as the court of first instance, dismissed the review application .
However, the review succeeded on appeal to a full court of the high court (the full
court) . The appeal against the full court’s decision comes before this Court by way
of special leave .
[3] In its application to the high court Cape Estates sought an order reviewing
and setting aside the rejection of its internal appeal. Instead of seeking a remittal of
the to the appeal authority , Cape Estates prayed for an order upholding the internal
appeal. In addition to the review relief , Cape Estates applied for a declaratory order
to the effect that the industrial zoning of Erf 2[...] was not restricted to sawmill use.
[4] In upholding the appeal, the full court granted the declaratory order, the
review relief and the order of substitution sought by Cape E states. It s order read:
‘1. It is hereby declared that:
1.1 The entire extent of Erf 2[...] , George is zoned “Industrial Zone II” ; and
1.2 The zoning of Erf 2[...] , George is “Industrial Zone II ” without any restrictions as
to the use of the property to sawmill purposes only.
2. The decision of the ( Appeal Authority) taken on 1 November 2018, dismissing the
appellant’s appeal is hereby reviewed and set aside in its entirety and replaced with the following
order:
2.1 “The appeal by Magnolia [Ridge] Propert ies 77 (Pty) Ltd against the refusal on 10
January 2018 by the Municipality’s Deputy Director Planning and Senior Manager Land
5 Use Management, of the Applicant’s requests for rectification of an error on the
Munciplay’s Zoning Scheme Map relating to Erf 2[...] is upheld . . .’
By way of explanation, Magnolia Ridge Properties 77 (Pty) Ltd was the name
under which Cape Estates was previously registered .
Factual background
[5] Erf 2[...] has a complicated history of use, subdivision and zoning . It is this
history that frames the issues to be determined in this appeal , and it is necessary to
set it out in some detail.
[6] Initially Erf 2[...] formed part of a larger property , being the Remainder
Kraaibosch 195/1, George (Kraaibosch 195/1 ). There was a sawmill on one part of
the property , which had been in use since 1943 . The rest of Kraaibosch was under
pine plantation. Kraaibosch 195/1 had never been zoned. In 2021, the then owner
of the property (the owner) wished to obtain official confirmation of the applicable
zoning . It engaged town planners to apply for a zoning certificate on its behal f (the
2001 zoning application) . At that time, the statutory instrument regulating the
zoning request was the Land Use Planning Ordinance 15 of 1985 (LUPO). Section
14(1) of LUPO provided that :
‘With effect from the date of commencement of this Ordinance [ 1 July 1986] all land referred to
in section 8 shall be deemed to be zoned in accordance with the utilisation thereof, as determined
by the council concerned. ’
[7] The 2001 zoning application described Kraaibosch 195/1 as being 259,4973
hectares in extent . In light of s14 , the existing use of the property was an important
component of the 2001 zoning application. In this regard , the application recorded
that ‘ . . . the Urbans Industries sawmill . . . occup [ies] ±18 hectares of the property
6 (and) . . . [t]he rest of the property is under pine plantation. ’ The sawmill has been
in use since 1943 and the remainder was used all these years as a plantation.
[8] The M unicipality’s Director: Planning and Economic Development (the
Director) compiled a report , dated 7 May 2001, containing recommendations to
assist the Planning Committee ’s determination under s14(1) of LUPO (the
Director’s report) . The Director’s report recorded ‘suppor t … (for) the zoning as
Industrial Zone 1 (Industry) for the existing activities . . .’ As to the remainder of
the property , the recommendation was that it :
‘. . .[S]hould be zoned Agricultural Zone 1 seeing that it is covered with plantations. For any
extensions to the existing sawmill, a land use application will however be required. Future
development can then be managed in a holistic manner.’
[9] The recommendations (recommendations 1 and 2) in the Director’s report
were :
‘1. That the application for the determination of the zoning for Kraaibosch 195/1, Division
George as Industrial zone 1 (Industry) be granted in terms of Section 14(1) of [LUPO], subject to
the conditi ons contained in Annexure A and imposed in terms of Section 42(1) of the Ordinance .’
2. That the above recommendation will entail an amendment to the Zoning Map and an
addition to the Registrar of Departures set out in the Annexure hereto.’

[10] The conditions (conditions 1, 2 and 3) referred to in Annexure A were the
following:
‘1. The approval granted as per recommendation, lapses should the undermentioned
conditions not be complied with to the satisfaction of the Council ;
2. That a site plan be submitted showing the location of the saw mill with all structures and
the surrounding p lantations with access and other routes ;
3. That the zoning of Kraaibosch 195/1, Division George be Industrial Zone 1 (for on ly the
existing saw mill ) with the remainder of the property zoned Agricultural Zone 1.’ (Emphasis
added , words in brackets in the original .)
7 As will become apparent later, it is condition 2 that is central to the appeal against
the review relief granted by the full court .
[11] On 22 May 2001, the Planning Committe e of the Municipality met and
resolved to adopt recommenda tions 1 and 2, as well as conditions 1, 2 and 3 in the
same terms as those recorded in the Director’s report (the 2001 zoning
determination ). On 6 June 2001, the Municipality wrote to the owner’s urban
planners advising them that ‘ [d]uring a meeting held on 22 May 2001 Council
decided that the determination of the zoning for Kraaibosch 195/1, division George
as Industrial zone 1 (for only the existing saw mill ) be granted in terms of Section
14(1) of [LUPO], subject to the conditions contained in Anne xure A . . . ’ (Words in
brackets in the original .)
[12] The effect of th e 2001 zoning determination by the Municipality was that the
entire Kraaibosch 195/1 was designated as having a split zoning, meaning part
industrial and part agricultural. The nub of the dispute between the parties is the
extent of the industrial zoning associated with the sawmill activities on that part of
Kraaibosch 195/1 that ultimately became, through furth er subdivision, Erf 2[...] .
[13] It is no t disputed that the owner did not directly respond to the requirement
in condition 2 by submitting the site plan as described. However, on 31 May 2001,
that is between the time that the 2001 the zoning determination was made and the
subsequent letter formally advising the owner the outcome, the owner ’s land
surveyors submitted a subdivision application to the Municipality (the 2001
subdivision application) . This was aimed specifically at subdivid ing the sawmill
site from the remainder of Kraaibosch 195/1 . In the application, the sawmill site
for which approval was sought was referred to as Portion A.
8 [14] The 2001 subdivision application was accompanied by, among others, a
sketch plan illustrating the proposed subdivision of Portion A from the remainder
of Kraaibosch 195/1 (the subdivision plan) , a copy of the locality plan and a
diagram of the property . The subdivision plan show ed the proposed Portion A ,
measuring 17 ,3 hectares, to be subdivided from Kraaibosch 195/1 measuring
259,4793 hectares in total. The sawmill was depicted as being located on the
proposed Portion A . In the legend inserted at the bottom of the subdivision plan,
Kraaibosch 195/1 was described as being zoned ‘Agricultural Zone 1 ’ and
‘Industrial Zone 1 ’.
[15] In the 2001 subdivision application it was stated that the subdivision was
intended for ‘industrial purposes’ . The application repeated that Kraaibosch 195/1
had already been zoned as industrial and agricultural . The motivation given for the
subdivision was the following:
‘The portion of the property that is to be subdivided in terms of this application has been used
since 1943 for sawmill purposes and thus assumes Industrial Zone 1 zoning in terms of Section
14 of [LUPO]. The primary reason for the owner requiring to subdivide the land is to separate
the sawmill from the remainder of the property which i s used for commercial purposes. This will
enable the owner to inject valuable capital into the sawmill enterprise from outside sources and
thus upgrade the sawmill with modern machinery. …. The owner requires to separate the sawmill
portion of the property from the remainder in order to be able to inject capital to upgrade the
factory to modern standards. ’ (Emphasis added.)
[16] The subdivision (the 2002 subdivision) was approved sometime between 23
January 2002 and 8 February 2002 by the Municipality’s Development Control
Committee (DCC) . The uncertainty about the date of the 2002 subdivision decision
arises because there is no record of the actual resolution approving the subdivision.
The review record included a document headed ‘Agenda Executive Committee
9 Meeting 30 January 2002. Minutes Development Control Committee Meeting 23
January 2002 ’ (the agenda/minutes docu ment) .
[17] Although t here was some dispute about the status of the agenda/minutes
document it is unnecessary to engage in any debate on that issue. Suffice to note
that the scribe recorded that ‘The Urban’s Saw Mill is situated on the proposed
portion A. This portion is also zoned Industrial zone 1 for the activities on the
property.’ (Emphasis added.) Further, that ‘the Directorate supports the proposed
subdivision of the Urban’s Saw Mill from the bigger pr operty. The remainder of
the property is covered with plantations and therefore zoned Agriculture zone 1.’
The document also records, under the heading ‘Resolved’, that ‘the application for
the subdivision of Kraaibosch 195/1, Division George in two portions (Portion A =
± 17,3 ha; Remainder = ± 242,17 ha) in terms of Section 24 of [LUPO] be
approve d’. (Emphasis added.) The approval was subject to certain conditions but
these are not relevant to the appeal.
[18] On 8 February 2002, the Municipality advised the owner’s land surveyors,
who had made the subdivision on the owner’s behalf, that the DCC had approved
the subdivision application . The approval was stated to be on the same terms as
those under the heading ‘Re solved’ in the agenda/minutes document. On the same
date the Municipality ’s stamp was affixed to the subdivision plan, reflecting
Portion A as comprising the 17,3 hectares of land, part of which was occupied by
the sawmill.
[19] In 2008 it became necessary to apply for a further subdivision affecting
Portion A (the 2008 subdivision) . This was because of a re -alignment of the N2
national road which had the effect of moving the n ew road reserve further south.
As a consequence of the re -alignment and new road reserve, Portion A of the 2002
10 subdivision was now split into four sections : Portion F, 195/57, Portion J and
Portion L . The site of the sawmill was on Portion F . According to Cape Estates ,
Portion F contained most of the buildings and operations of the sawmill. This was
not disputed by the Municipality. The subdivision plan accompanying the 200 8
subdivision application recorded Portion F as being ± 10,3 hectares in extent, and
zoned as ‘Industrial Zone 1 ’. The 2008 subdivision was approved. Affixed to the
subdivision plan was the stamp of the Municipality, dated 16 July 2008. An
additio nal stamp recorded ‘Subdivision approved in terms of Section 25(1) of the
Land Use Ordinance 15 of 1985 subject to the conditions contained in line
covering letter .’ This stamp bore the signature of the Director Planning and
Development.
[20] In December 2008, the Municipality devised a draft Spatial Development
Framework (SDF) map. It reflected that Portion F (previously Portion A) was
zoned Industrial 1. It is common cause that this draft SDF map was never adopted
for reasons that are not clear from the record.
[21] In the meantime, Cape Estates (under its former name, Magnolia Ridge
Properties 77 (Pty) Ltd) , had taken transfer of Portion F in 2007. In 2010 it
obtained a certificate of registered title in respect of what had been identified as
Portion A, later Portion F, in the 2008 subdivision. In the certificate of registered
title the property acquired its present designation as Erf 2[...] . A diagram by the
Surveyor General attached to the certificate of registered title depicted Erf 2[...] as
measuring 11,1875 hectares .
[22] The last stage of Erf 2[...] ’s complicated zoning and subdivision history took
place in 2017 . In August and September of that year the Municipality published the
11 George Integrated Zoning Scheme By -Law1 (the Zoning By -Law) and the 2017
zoning map . The Zoning By -Law set out the procedures and conditions relating to
the use and development of land in the different zone s, while the zoning map
indicate d the zoning of the municipal area into land use zones.2 As noted earlier,
what precipitated the litigation culminating in the present appeal was the split
zoning of Erf 2[...] in the 2017 zoning map .
[23] Believing that the 2017 zoning map had erroneously designated only a
portion of Erf 2[...] as industrial, rather than the entire erf, Cape Estates sought to
exercise its rights under s 8 of the Zoning By -Law by instituting the rectification
application. Section 8 provides :
‘(1) If the zoning of a land unit is incorrectly indicated on the zoning map, the owner of an
affected land unit may submit an application to the Municipality to correct the error .
(2) An owner contemplated in subsection (1) must apply to the Municipality in the form
determined by the Municipality and must -
(a) submit proof of the lawful land use rights ; and
(b) indicate the suitable zoning which should be allocated.
(3) The onus of prov ing that the zoning is incorrectly indicated on the zoning scheme map is
on the owner.
. . .
(5) If the zoning of a land unit is incorrectly indicated on the zoning map, the M unicipality
must amend the zoning map .
(6) If the correct zoning of a land unit c annot be ascertained from the information submitted
to the Municipality or the records of the Municipality , a zoning determination in terms of the
Bylaw on Municipal Land Use Planning should be processed and the outcome of such zoning
determination must be recorded on the zoning scheme map.’

1 George Integrated Zoning Scheme By -law, Provincial Gazette Extraordinary 7821 (1 September 2017).
2 This is in terms of s 4 of the Zoning Scheme By -Laws, read with s 25 of the Spatial Planning and Land Use
Management Act , 16 of 2013 (SPLUMA).
12 [24] The town planners appointed by Cape Estates to submit the rectification
application on its behalf explained that the basis for t he application was that:
‘The allocation of a zoning of Industrial Zone II is correct, but not the extent as currently
indicated on the Zoning Scheme Map. The extent of the … Industrial Zone II zoning is currently
indicated as approximately 4,1 ha on a por tion of Erf 2[...] , George with the remainder of the
property indicated as Agricultural Zone I. The total extent of Erf 2[...] , Georg e should be
indicated as having a zoning of Industrial Zone II .’
[25] In support of the rectification application , the planners referred to the 2001
zoning determination , which they asserted designated a split zoning of industrial ,
for the sawmill portion of Kraaibosch 195/1 , and agricultural for the remainder .
They pointed out that the motivation for the 2002 subdivision was to separate the
land on which the sawmill act ivities took place, with its industrial zoning , from the
remainder of the larger Kraaibosch 195/1. The rectification application underlined
that the Municipality had endorsed the subdivision plan , which showed no split
zoning for Erf 2[...] .
[26] The gist of the rectification application was that the original zoning and use
rights accorded under the 2001 zoning designation were preserved, post - LUPO, by
the Western Cape Land Use Planning Act, 2014 (LUPA).3 According to Cape
Estates, in 2001 the entire portion of what was now Erf 2[...] had been certified as
industrial. When adopting a new zoning scheme and zoning map the Municipality
had to apply the zoning that was already in existence. It could n ot undertake a new
zoning exercise and accord a different , split zoning to Erf 2[...] . The effect of the

3 Section s 33(1 )(a) and ( b) of LUPA provide that the existing zoning map , register and scheme regulations in
existence in terms of section 8 of LUP O immediately before the commencement of LUPA remain in force ; and a use
right and a lawful zoning in terms of th e zoning scheme remains in force . Section 78(1) further provides that any
approval, design ation, consent , right or authori sation issued, granted or in force in terms of LUPO , and in existence
immediately before the commencement of LUPA remains in force and is regarded to have been issued or granted in
accordance with LUPA.
13 2017 Zoning Map was erroneously to reduce the size of the existing Industrial
zoning of Erf 2[...] from the entire ty of the property, to 4,1 hectares.
[27] In a lette r dated 10 January 2018 (the refusal letter) , the Municipality stated
its reasons for rejecting the rectification application. Referring to the 2001 zoning
certification, the Municipality recorded that the industrial zoning was limited to the
‘existing (sawmill) activities’ only, and that a land use application was stated to
have been necessary for any extensions to the existing s awmill. Moreover, and
significantly for this appeal, the refusal letter recorded that there was no proof that
there had been compliance with condition 2 attached to the 2001 zoning
certification, which had required the submission of a site plan.
[28] For this reason, the Municipality explained that it had relied on other
information to determine the extent of the sawmill site. It had considered building
plans dated 1984 and 1990 and aerial photographs from 1985 and 2002 showing
the area of land disturb ed by the sawmill activities. These were attached to the
refusal letter. As to the 2002 subdivision, the refusal letter stated that the zoning of
the two erven had not been recorded in the subdivision approval, and that, in any
event, a subdivision applica tion does not provide any zoning rights. For these
reasons, the refusal letter concluded that the zoning as indicated on the 2017
zoning map was accurate .
[29] In its internal appeal against the refusal of the rectification Cape Estates
advanced substantially the same arguments as it had advanced in the rectification
application. The appeal authority provided several reasons for its rejection of that
appeal . In the main, they mirrored the reasons provided by the Municipality in the
rectification refusal . The appeal authority concluded that ‘[i]n the absence of the
requested site plan of the existing saw mill with all structures or only the existing
14 saw mill, these records are the most appropriate determination to make an
informed decision of the extent of the saw mill, in determining the effect of the
decision taken by the District Municipality in 2001 .’ (Emphasis added.) The
records referred to were the buildi ng plans and aerial photographs identified in the
rectification refusal.

Issues and analysis
The review
[30] As far as the review relief is concerned, t he parties were agreed that in
compiling the 2017 zoning map the Municipality could not embark on a new
rezoning exercise. Its powers were limited to applying the zoning accorded to Erf
2[...] in the 2001 zoning determination . They were also agreed that the core issue
determinative of the appeal was whether Cape Estates had complied with condition
2 of the 2001 zoning certification. On that score, the Municipality accepted that if
the finding was that condition 2 had been complied with then its appeal in respect
of the review must fail. For its part, Cape Estates accepted that the purpose of
condition 2 was to define the precise extent of the land zoned for industrial
purposes. Save for these points of commonality, the parties adopted divergent
approaches to the core issue and its determin ation .
[31] The Municipality proceeded from the premise that because the site plan
required by condition 2 was not provided by the owner, the 2001 zoning decision
of the Municipality was ‘inchoate ’. That being the case, the Municipality submitted
that it remained open to it to ‘complete’ the original zoning exercise in 2017, when
it compiled its 2017 zoning map . It did so by giving effect to what it interpreted as
the intention behind the 2001 zoning decision, namely, to zone only the actual
footprint of the sawmill itself as industrial. In the absence of the site map required
under condition 2, the Municipality contended that all it had done in 2017 was to
15 undertake the clerical exercise necessary to finalise the 2001 zoning determination.
It had used the information then available to it to arrive at ‘the best objective,
logical and practical determination for the zoned area’ . Based on that information,
it concluded that the industrial zoning of Erf 2[...] was limited to 4,1 hectares
which it calculated to be the extent of the sawmill footprint .
[32] The difficulty with the Municipality’s primary premise is that it is contrary
to the clear terms of the conditions attached to th e 2001 zoning determination .
Condition 1 express ly stated that ‘[t]he approval lapses should the undermentioned
conditions not be complied with.’ (Emphasis added). Under the express terms of
condition 1 the zoning determination could not limp along in an incomplete state
for an indefinite period : either there was compliance with condition 2 within a
reasonable time, or , failing this, the conditional zoning determination lapse d.
[33] It cannot rationally be contended that condition 2 could have remain ed
unsatisfied for a period of 16 years without lapsing . If, as the Municipality avers ,
the owner did not satisfy condition 2, the effect of condition 1 was that the 2001
zoning determination lapsed . This would have caused the zoning status of Erf 2[...]
to revert to ‘undetermined’. In this instance , by 2017 there would have been no
industrial zoning in respect of Erf 2[...] at all, and hence no power to determine its
extent. It follows that t he Municipality proceeded on the incorrect legal premise ,
namely that it had the power to finalise what it incorrectly assumed to be an
incomplete zoning exercise by conducting its own determination of the extent of
the industrial zoning of Erf 2[...] . Based on this incorrect legal pre mise, what the
Municipality effectively did in 2017 was to engage in an impermissible, unlawful
re-zoning exercise .
16 [34] However, this error on its own does not mean that Cape Estates was entitled
to rectification in the terms it sought. It wanted the 2017 zoning map to be rectified
so that Erf 2[...] was zoned industrial to its full extent . A rectification in these terms
would only be possible if condition 2 had been complied with. This is why the
issue of compliance with condition 2 lies at the heart of the appeal in respect of the
review relief. If there was no compliance, for the reasons explained above, the
2001 zoning determination would have lapsed , and there would have been no
industrial zoning at all. The effect of that state of affairs would be that the
rectification application, and consequently, the review of its refusal, would have
been ill-founded . On the other hand, if condition 2 was satisfied, the review would
have had to succeed . Hence, the cardinal question: was there compliance with
condition 2?
[35] As I indicated earlier, it is common cause that the owner did not directly
respond to the requirement in condition 2 by formally submit ting to the
Municipality a site plan ‘showing the saw mill with all structures’ . According to
the Municipality, this was fatal to the review application. Cape Estates contends
that this is not so, as there was substantial compliance with this condition.
[36] It is significant that absolute compliance with the conditions was not
required. This is plain from the terms of condition 1, which stated that the zoning
determination would lapse if conditions 2 and 3 were not complied with ‘to the
satisfaction of the Council’. It is also important to bear in mind that conditions
generally are imposed for a purpose . The purpose of condition 2 was to enable the
Municipality to determine what portion of the larger Kraaibosch 195/1 property
was associated with the sawmill and, hence, what the extent was of the use
described by the owner. From this it follows that t he question is whether the
17 Municipality was satisfied that this purpose had been met . It is in this respect that
the zoning and subdivision history of Kraaibosch 195/1 and Erf 2[...] is key.
[37] The original motivation for the 2001 zoning determination application and
for the subsequent subdivision of Kraaibosch 195/1 in 2002 was to distinguish, and
subsequently separate , the smaller portion of the property associated with the
sawmill use from the larger remainder of the property associated with agricultural
use. As recorded earlier, t he owner made this clear in both the zoning
determination application and the subsequent 2001 subdivision application. In the
former application, it was indicated expressly that the sawmill occupied
approximately 18 hectares of Kraaibosch 195/1 .
[38] The existing use of the land was critical to the zoning determination because
s 14 of LUPO provided for a deemed zoning based on the existing use of the land
in question. For this reason, the information provided by the owner about the
extent of the claimed industrial use associated with the sawmill activities was
important. Section 14 stipulated that the Municipality had to make the final
deter mination of the deemed zoning based on the existing use of the land . There is
no indication from the manner in which the Municipality treated the 2001 zoning
determination that it was dissatisfied with the information provided by the owner
that the extent of the sawmill use was approximately 18 hectares.
[39] The purpose of the request for a site plan, the parties agree, was to determine
the precise extent of the industrial zoning. It is significant that the owner ’s
submission of its subdivision application, together with the subdivision plan , was
contemporaneo us with the 2001 zoning determination . The motivation for the
subdivision dove -tailed with that for the zoning determination, namely to shave off
the sawmill portion , Portion A, from the remainder of Kraaibosch 1 95/1. Although
18 the site plan did not include ‘all structures’ associated with the saw mill, as stated
in condition 2 , it is clear from my earlier description of what information was
included in the subdivision plan that it provided other information critical to the
determination of the preci se extent of the use associated with the saw mill , and
hence of the industrial zoning .
[40] It must have been apparent to the Municipality when it considered both
applications in 2001 and 2002 that the sawmill use (and hence industrial zoning)
expressly referred to by the owner extended to the entire portion of land that
became Portion A, measuring at least 17,3 hectares. Even if the approximation of
18 hectares referred to in the 2001 zoning application was insufficiently precise ,
the subdivision plan, submitted almost at the same time , provided the required
precision.
[41] Had the Municipality not been satisfied with the information provided in the
2001 zoning application, or in the 2001 subdivision application as to the extent of
the industrial use, one would have expected that it would have raised queries and
engaged with the owner on this score. There is nothing in the record indicating that
it did so. On the contrary, the record shows that the Municipality consistently
treated the property that became Erf 2[...] as being zoned industrial in its entirety . It
did not dispute the information provided by the owner in the 2001 zoning
application that the extent of the sawmill use was approximately 18 hectares before
making its zoning determination. Zoning was a prerequisite for the approval of a
subdivision application . The Municipal ity accepted the information provided by
the owner in both subdivision applications that the property was zoned industrial.
This was echoed in the 2008 draft SDF map , which reflected Portion A as being
zoned industrial . It is so that th e draft was not adopted. However, it is indicative of
the Municipality’s understanding (at least until it did an about -turn in 2017) that
19 the effect of the 2001 zoning determination was that the entire extent of what is
now Erf 2[...] was used for industrial purposes.
[42] The Municipality submitted that no store could be placed on the 2001
subdivision application , and subsequent approval, for purposes of assessing
whether there had been compliance with condition 2 . This was for two reasons.
First, because the DCC, which was res ponsible for the subdivision decision , did
not exercise zoning powers or functions. The second reason was that the 2001
zoning determination was expressly limited in condition 3 to ‘only the existing saw
mill’ . Consequently, the Municipality argued, the intention was that only the actual
footprint of the sawmill itself was zoned industrial , and the subdivision plan did
not show this detail .
[43] The difficulty with these submissions is that they are divorced from the
context in whi ch the applications and decisions were made. It is established on the
facts that the owner never provided information to the Municipality indicating that
the existing industrial use was limited to the actual footprint of the sawmill. Nor
did the Municipality understand the application to be so limited. Consequently,
condition 3 simply cannot sensibl y be read to mean that only the footprint of the
sawmill was zoned industrial. The fact that the Municipality’s subdivision
authority, the DCC, plainly also understood the industrial zoning in the same way
as the owner underscores this point. Cape Estates did not contend that the DCC
authorised the zoning . The important point is that the DCC never queried the extent
of the indu strial zoning described by the owner in either the 2001 or 2008
subdivision applications. In fact, as I have already noted, nor did the powers -that-
be within the Municipality who had zoning authority at the time.
20 [44] I conclude that t he effect of the 2001 zoning determination was that the
entire portion of the property associated with the sawmill was conditionally zoned
industrial. Condition 2 was aimed at determining the precise extent of that portion.
Its purpose was not, as the Municipality subsequently contended, to determine the
extent only of the actual sawmill itself . Thus, t o achieve the purpose of condition 2
it was not necessary to map out the sawmill buildings , because the zoning was not
limite d to them . The subdivision plan achieved th e purpose of condition 2 by
providing all the information necessary to make a precise determination of the
extent of the industrial use associated with the sawmill. It follows that there was
substantial compliance with condition 2 .
[45] For these reasons, the full court was correct in granting an order reviewing
and setting aside the appeal authority’s decision to dismiss Cape Estate ’s internal
appeal against the refusal of its rectification application. What of the order
substituting the decision of the appeal authority with one upholding the internal
appeal ? The Municipality submitted that the order of substitution was not justified
as planning issues fall within the constitutional domain of the Municipality.
Accordingly, it should be for the Municipality and not the courts to consider the
internal appeal. It s ubmits that the full court erre d in not ordering that the internal
appeal be remitted to the appeal authority for fresh determination.
[46] Section 8(1) (c)(ii)( aa) of the Promotion of Administrative Justice Act , 3 of
2000 (PAJA) gives courts the power , in exceptional circumstances, to substitute the
administrative action under review rather than remitting it to the administrator
concerned. The question of exceptional circumstances must be determined in the
context of what is just and equitable in the circumstances. Considerations include
21 whether the court is in as good a position as the administrator to make the decision,
as well as whether the decision is a foregone conclusion.4
[47] In this case, the nub of the review was whether there had been compliance
with condition 2. The essential inquiry was a legal one , involving the interpretation
of the conditions attached to the 2001 zoning determination and the purpose , in
particular, of condition 2. These are issues generally well suited to judicial
determination. T hey do not engage the discretionary powers accorded to the
Municipality and its appeal authority. The effect of the full court ’s determin ation
that there had been compliance with condition 2 was that the refusal of the
rectification application could not survive. Consequently, a remittal back to the
appeal authority would serve no purpose : it would have been bound to implement
the court’s decision and the outcome of any remittal would have been a foregone
conclusion . Thus, e xceptional circumstances existed w arranting the full court’s
order of substitution . The appeal must fail in this respect as well.


The declaratory relief
[48] The Municipality submi tted that the full court erred in granting an order
declaring that the industrial zoning of Erf 2[…] was ‘without restrictions as to the
use of the property to sawmill purposes only’. It contend ed that the effect of the
2001 zoning determination was to limit the industrial zoning further such that only
sawmill use (and no other primary or consent use) was permitted. The appeal in

4 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa and Anothe r [2015] ZACC
22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 35
22 this regard turns on an interpretation of the documents recording the zoni ng
determination.
[49] The 2001 zoning determination resolution recorded simply that ‘the
application for the determination of the zoning for Kraaibosch 195/1 … as
Industrial zone 1 (Industry) be granted in terms of Section 14(1) of [LUPO] ,
subject to the conditions contained in Annexure A and imposed in terms of Section
42(1) of [LUPO].’ No mention was made in the resolution to the sawmill, or to
sawmill use. In fact, no mention is made either to the agricultural zoning that was
also determined in respect of the remainder of the property . To find these
references, regard must be had to the conditions attached to the resolution . Both
condition s 2 and 3 referred to the saw mill , with condition 3 being primar ily
relevant. It stated that ‘the zoning of Kraaibosch 195/1 … be Industrial Zone 1 (for
only the existing saw mill) with the remainder of the property zoned Agricultural
Zone 1.’ (Words in brackets in the original, emphasis added.)
[50] The Municipality contends that condition 3 must be interpreted as limiting
not only the extent of the industrial zoning determined, but also the nature of the
permitted use. It reli es on the words in brackets to support its argument that
condition 3 gave permission only for sawmill use on that portion of the property
zoned industrial. The Municipality submitted that the latter limitation is plain from
the language used.
[51] It does not seem to me to be obvious from the words in brackets that this is
what was intended. In my view, the words may as easily be read as doing no more
than limiting the extent of the industrial zoning to the land associated with the
sawmill activitie s. This interpretation becomes even more persuasive when
condition 3 is considered in its broader context.
23 [52] To begin with, the Municipality determined a split zoning for Kraaibosch
195/1 based on the existing uses of part industrial, relating to the sawmill , and part
agricultural, relating to the pine plantations. The primary focus of the
determination must have been to demarcate the extent of the industrial zoning, on
the one hand, and the agricultural zoning on the other. In this context, the words
‘for only the existing sawmill, with the remainder . . . zoned Agricultural’ seem to
me to be serving this exact purpose . The words in brackets described th at part of
the property associated with the sawmill and hence to be zoned industrial. This was
neces sary, too, because as I noted earlier, the resolution itself did not deal with the
demarcation of the split zoning , between industrial and agricultural at all. That
function was served by condition 3.
[53] Moreover, the Municipality accepted that the zoning sch eme applicable at
the time made no provision for sawmill activities either as a primary or a consen t
use. The restriction to sawmill use, if this is what the Municipality intended, would
have been erroneous and unlawful. It was submitted by the Municipality that even
if this was so, the restricted use would remain in effect until reviewed and set
aside. This submission is mis directed. The interpre tation of condition 3 cannot
proceed from the premise that the Municipality intended to act beyond the scope of
its powers by imposing an unlawful use restriction. It must proceed from the
premise that the Municipality knew the extent of primary and consent uses
associated with industrial zoning in 2001. As such, the sensible interpretation of
the words appearing in brackets in condition 3 , must be that they served no purpos e
other than to define the extent of the industrial zoni ng, distinct from the
agricultural zoning for the remainder of Kraaibosch 195/1.
[54] For the se reasons, I find no merit in the appeal in respect of the declaratory
relief.
24 Order
[55] There being no merit in an y of the grounds advanced in support of the
appeal, I make the following order :
The appeal is dismissed with costs, including the costs of two counsel where so
employed.

______________ _____________
R M K EIGHTLEY
JUDGE OF APPEAL

25
Appearances
For the appellant: R Paschke SC and K Reynolds
Instructed by: Du Plessis Hofmeyer Malan Inc , Somerset West
c/o Webbers Attorneys , Bloemfontein

For the respondent: P Hathorn SC and A E Erasmus
Instructed by: Raubenheimers Inc, George
c/o Symin gton & De Kok Inc , Bloemfontein.