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



IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case no: 7157/2023

In the matter between:

CHOISY-LE-ROI (PROPRIETARY) LIMITED APPLICANT

and

THE MUNICIPALITY OF STELLENBOSCH FIRST RESPONDENT

THE APPEAL AUTHORITY
IN RESPECT OF THE MUNICIPAL PLANNING
TRIBUNAL OF THE MUNICIPALITY OF STELLENBOSCH SECOND RESPONDENT

Coram: BHOOPCHAND AJ
Heard: 28 July 2025
Delivered: 11 August 2025

Summary: Administrative Law . Municipal Planning Law. Second judicial review of
the Municipality’s Appeal Authority to confirm the decision of the Planning Tribunal to
reject the Applicant’s rezoning application . Municipal planning instruments and

reliance on ‘corrected’ Municipal Spatial Development Framework. Uncorrected
Gazetted MSDF is legally binding on the Municipality in its interactions with the
public. Appeal Authority’s decision influenced by an error of law. Review upheld and
matter remitted to the Appeal Authority for further reconsideration.


ORDER


1. The decision of the second respondent dated 9 November 2022
confirming the decision of the Stellenbosch Municipal Planning Tribunal
to refuse the applicant’s application for the rezoning of Erf 1[...],
Stellenbosch, is reviewed and set aside.
2. The applicant’s appeal against the Municipal Planning Tribunal’s
decision is remitted to the second respondent for further
reconsideration.
3. The Respondents shall pay the costs of this application.


JUDGMENT

Bhoopchand AJ:

[1] Amid heady hills overlooking val leys of vineyards, green belts , and golf
courses on the urban edge of Stellenbosch, lies Techno Park, once envisaged as an
enclave of science and innovation . Though the purity of its founding purpose has
gradually softened, diluted by a variety of enterprises entering its fold , the
municipality remains resolute that no residential development shall take root here.
Yet, within its borders, a solitary landowner t ests its boundaries , challenging the
vision with stubborn steadfastness , stirring a tension between the park’s original
blueprint and a changing tide.

[2] This is a second application for judicial review of the decision of the Second
Respondent ( ‘the Appeal Authority ’), of the Stellenbosch M unicipality (‘the

Municipality’), arising from the Applicant’s application submitted in 2017 for rezoning
of the erf it o wns in Technopark . The Applicant applied for the rezoning of its
property from a special zone 1: Technology or Science Park to Specific Business to
permit a mixed land use development comprising a building with three storeys of
shops, offices, and retail stores on the ground floor and 18 duplex apartments on the
second and third floors , and a private roof garden. The First Respondent appears
resolute in its Council’s vision and position that Techno Park should be developed
and promoted to become an even more specialised zone for technolo gical invention
and a hub for specialised business. This Court accepts that the reconsidered appeal
decision constitutes administrative action within the meaning of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’).

[3] Municipal planning is the formal process through which local government s
manage land use , development, and spatial organisation within their demarcated
areas.1 Section 151(3) of the Constitution 2 empowers municipalities to govern on
their own initiative subject to national and provincial legislation. A rezoning
application in a municipality like that of Stellenbosch triggers a multilayered legal and
procedural framework encompassing national, provincial and municipal legal
instruments. The Spatial Planning and Land Use Management Act of 2013
(‘SPLUMA’) was enacted to create a unified, equitable, and efficient system of
spatial planning and land use management across South Africa . The Western
Cape’s Land Use Planning Act of 2014 does not dictate municipal planning, but
requires municipalities to ensure consistency with provinc ial and national spatial
frameworks. The Stellenbosch Municipal Spatial Development Framework (‘MSDF’)
guides land use and development decisions in the municipality. It must align with
SPLUMA and LUPA. Section 20 of SPLUMA requires the Municipality to give notice

SPLUMA and LUPA. Section 20 of SPLUMA requires the Municipality to give notice
of its framework and any proposed amendments in the Gazette and the media . The
Stellenbosch Municipal Land Use Planning By -law (2023) governs local rezoning

1 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others [2010]
ZACC 11 ; 2010 (6) SA 182 (CC) para 5 7, where the apex Court described municipal
planning as: ‘the term [municipal planning] is not defined in the Constitution. But “planning” in
the context of municipal affairs is a term which has assumed a, well -established meaning
which includes the zonin g of land and the establishment of townships. In that context, the
term is commonly used to define the control and regulation of the use of land.’
2 The Constitution of the Republic of South Africa, Act 108 of 1996

procedures, including application requirements, public participation, d ecision
timelines, and appeal mechanisms.3

[4] The Integrated Development Plan (IDP) is the Municipality’s master plan for
development. It sets out, among others, the land use vision in the Municipality. In a
rezoning application, the proposed changes must align with the strategic vision
contained in the IDP. The MSDF is a spatial expression of the IDP, the latter being
the benchmark against which rezoning proposals are measured . If a proposed
rezoning change contradicts the IDP , e.g., an application for a mixed land use
comprising a largely residential component in a technology or science park , it will
require sufficient motivation or risk rejection. The Stellenbosch Zoning Scheme by-
law defines permissible land uses per zone and overlays. It determines whether
rezoning is needed and what new rights may be granted.

[5] A zoning scheme overlay is an extra layer of rules that apply to a base zoning
of a property, usually adding something extra, e.g., a mixed-use overlay may allow a
blend of residential and commercial uses in specific zones. Another key
consideration in rezoning applications is site -specific factors like location, the size
and shape of the property, topography, existing infrastructure, surrounding land use,
and environmental or heritage factors.4

[6] The Applicant's rezoning application fell to be considered under the 1996
MSDF. The Municipality’s Planning Tribunal (SMPT) refused the rezoning application
of erf 1[...] on 20 July 2018. The Municipality’s Appeal Authority, constituted by its
Executive Mayor, confirmed t he SMTP’s decision on 3 February 2020 . By the time
the first appeal was heard, the 2019 MSDF had been adopted by the Municipal
Council, and the adoption history and the gazetted MSDF featured prominently in the
Appeal Authority’s decision. The Appeal Autho rity relied upon the approved 2019

Appeal Authority’s decision. The Appeal Autho rity relied upon the approved 2019
MSDF, but interpreted it against the draft documents , which contained content that
conflicted with the Municipal Council ’s decision in 2019 to exclude residential
development in Technopark.

3 Section 65 sets out the appeal process.
4 Sources for the information contained in this paragraph: Western Cape . Gov.za,
Stellenbosch. Gov.za

[7] The Applicant approached this Court for a judicial review of that decision . The
Court’s judgment appears as Choisy-Le-Roi Owners (Pty) Ltd v The Municipality of
Stellenbosch and Another 5. The first review Court found that the Executive Mayor
had regard to irrelevant considerations, while at the same time failing to have regard
to the relevant ones.6 The ratio of the Court, after providing an insight into the proper
interpretation of statutes and acknowledging that the MSDF was not a statute , but
had a binding legal effect on the Municipality and the users and developers of land,
found that the Appeal Authority was obliged to interpret the text of the gazetted
MSDF, and not rely on the earlier drafts to give the text a contextual meaning
inconsistent with the language used.7 The enquiry should determine the effect of the
text on the citizen who did not participate in its articulation , as opposed to contract
interpretation, where its effect is directed at what was mutually intended by the
parties. The Executive Mayor’s approach to interpreting the MSDF conflicted with the
objective of a spatial development framework , which must ‘provide clear and
accessible information to the public and private sector and provide direction for
investment purposes ’.8 The Court expressed the view that the operative parts of
sections 5 and 6 of the gazetted framework did not exclude residential development
in Technopark.9 The first review Court set aside the Appea l Authority’s decision on
11 May 2022, and remitted it for reconsideration.


5 (10240/2020) [2022] ZAWCHC 71; 2022 (5) SA 461 (WCC) (11 May 2022) (‘Choisy-Le-Roi’)
6 Choisy-Le-Roi at para 41
7 Choisy-Le-Roi at paras 35-40, Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13 (16 March 2012); [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) at
para 18 , University of Johannesburg v Auckland Park Theological Seminary and Another

para 18 , University of Johannesburg v Auckland Park Theological Seminary and Another
[2021] ZACC 13 (11 June 2021); 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC) , Capitec Bank
Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021]
ZASCA 99 (9 July 2021); [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) at para 49. The
reasoning of the first review Court is not inconsistent with Dexgroup Pty Ltd v Trustco Group
International (Pty) Ltd [2013] ZASCA 120; [2014] (1) All SA 375(SCA) where it was stated
that: ‘ ‘…These cases make it clear that in interpreting the starting point is inevitably the
language of the document but it falls to be construed in the light of its context, the apparent
purpose to which it is directed and the material known to those responsible for its production.
Context, the purpose of the provision under consideration in the background to the
preparation and production of the document in question are not secondary matte rs introduced
to resolve linguistic uncertainty but are fundamental to the process of interpretation from the
outset’
8 Choisy-Le-Roi at para 40
9 Choisy-Le-Roi at para 41

[8] An examination of the respective sections of the gazetted MSDF reveals a
conflict between its content and the stated policy of the Municipal Council to make
Techno Park an even more specialised zone. Table 20, under part 5 of the gazetted
MSDF, referring to plans and settlement proposals, deals with the spatial proposal
for Technopark . It supports the park’s further development as a balanced
community, em phasising residential opportunity. In Table 28, under the
implementation framework and the development and land use , the focus was to
establish balanced precincts, e.g., Techno Park. Table 50 under policy refers to the
pursuit of mixed use of land in Techno Park.

[9] The Spatial Planner of the Municipality corrected tables 20 and 28 of the
MSDF on 17 May 2022 . On 25 May 2022, its Council noted and approved the
‘corrections’ and the placement of the ‘corrected’ MSDF on the Municipality’s
website. Neither a notice of the ‘corrections’ nor the ‘corrected’ MSDF appeared in
the provincial gazette , as the Municipality insisted that the ‘corrections’ did not
amount to an amendment n ecessitating the MSDF to be re -gazetted. The 2019
MSDF, as gazetted, remained the same as the MSDF scrutinised by the first Appeal
Authority and the first review Court.10

[10] The Appeal Authority reconsider ed the rezoning application pursuant to the
outcome of the first judicial review . It reminded the Applicant that it purchased
property in an area with development restrictions , referred to the financial
implications voiced by the Applicant if the rezoning was not granted and the negative
impact on other property owners in the park who conformed to the vision for the
area.

[11] The Appeal Authority resolved on 9 November 2022 to once again dismiss the
Applicant’s appeal against the Municipality’s Planning Tribunal. In arriving at this
decision, the Appeal Authority appraised the process in correcting the MSDF

decision, the Appeal Authority appraised the process in correcting the MSDF
pursuant to the first judicial review in detail. Reference to the 2019 Zoning Scheme
by-law was fleeting as the Appeal Authority got to and concentrated on the focus of

10 Respondents’ Counsel was unaware as to whether the ‘corrected’ MSDF was re-gazetted and
declined to commit himself as this aspect was not covered in the answering affidavit. A search
conducted by this Court could not confirm that the corrected MSDF was re-gazetted.

the report, ‘the material consideration in the adjudication of the appeal ’, supporting
the decision against rezoning , namely the 2019 MSDF. It affirmed that the 2019
MSDF was still in place when the appeal was reconsidered. The Municipality
asserted its Council’s constitutional authority to govern at the municipal level and to
determine its planning and zoning schemes and its MSDF.11

[12] The Appeal Authority emphasised five parts of the MSDF that were relevant to
the application for rezoning, namely tables 20, 28, 50, 51, and the paragraph entitled
‘Techno Park’. This was bound to raise questions on review as to whether the
Executive Mayor’s reliance on the ‘ corrected MSDF’ as opposed to the legally
binding gazetted version was applicable. In relying upon its ‘corrected version’ , the
Appeal Authority paradoxically reiterated the first rev iew Court’s explication that
reviews are focused on the legality of the decision. Section 18 of the Western Cape’s
LUPA specifies the conditions relating to the publication of spatial development
frameworks. Section 18(1) requires the Municipality to publi sh a notice of the
adoption or amendment of an MSDF in the Provincial Gazette. 12 A notice in this
context means a formal announcement, not the publication of the full MSDF. The
purpose is to inform the public of the adoption or amendment , and where the
document can be accessed. Neither SPLUMA nor LUPA make provisions for
corrections. If the ‘corrections’ are material, i.e., the changes are material in that they
change the substance or interpretation of the MSDF, they should be treated as
amendments to the MSDF. There is, however, no collateral challenge to the
Municipality’s decision to correct the 2019 MSDF or the Council’s decision to note
the corrections and publish the corrected MSDF on its website. It does matter that
the ‘corrected’ version was not gazetted as the uncorrected one is legally binding on
the Municipality and the Applicant ’s contentions that the second appeal was based

the Municipality and the Applicant ’s contentions that the second appeal was based
on a non-binding document are conclusive of this review.

[13] The Applicant raised seven grounds of review under PAJA. It belatedly
instituted this review, even though it barely complied with the prescribed 180 days

11 In Tronox KZN Sands (Pty) Ltd and KwaZulu -Natal Planning and Development Appeal
Tribunal and Others [2016] ZACC 2 ; 2016 (4) BCLR 469 (CC), the Constitutional Court
confirmed that municipal planning decisions lie within the exclusive competence of
municipalities
12 As alluded to earlier in this judgment, Section 20 of SPLUMA requires the Municipality to give
notice of its framework and any proposed amendments in the Gazette and the media.

after learning of the Municipality’s intention to amend the 2019 MSDF.13 The notice
does not refer to Techno Park. It isn't easy to understand the Applicant’s contention
that the Municipality’s position concerning Techno Park remained unchanged based
on the notice . The Applicant’s grounds of review emanate from three alleged errors
or misdirections in the second appeal decision. They relate to the reliance upon the
‘corrected MSDF’, the provisions of the gazetted MSDF, and the Applicant’s
knowledge that the property was subject to a developmental restriction. The
Applicant denies the ‘corrections’ t o the MSDF are relevant to the appeal decision
but alleges that if they are considered to be applicable by this Court , then Table 51
makes positive remarks about residential use within Technopark. Be that as it may,
the thrust of the Applicant’s complaints relating to the MSDF has been addressed.

[14] As for the Applicant’s knowledge of the restrictions that applied to the
development of its property, the report informing the decision refers to the
Applicant’s submission tha t it would suffer financially if the rezoning to mixed use
with a prominent residential component was not granted and the effect on other
property owners if the rezoning was granted. This Court can find no procedural or
legal impediment that prohibits the Appeal Authority from addressing the Applicant’s
contentions that were raised during the latter’s exercise of its legitimate expectation
to a hearing. 14 The Court is cognisant of the Applicant’s submission that a rezoning
application is directed at the restrictions that apply to a particular property.

[15] The Respondents defended the Appeal Authority’s reliance on the ‘corrected’
MSDF. They asserted that the decision of the Municipal Council to note the
‘corrections’ was not the subject of a review . The Respondents confirmed that the
‘corrected’ MSDF was published on the Municipality’s website. They contend that the

‘corrected’ MSDF was published on the Municipality’s website. They contend that the
Council’s decision (to note the corrections to the MSDF) stood until challenged and
set aside.15 The Respondents submitted that even if they committed an error of law

13 The Court did not consider it necessary to grant condonation for the belated application as it
complied with the 180 days prescribed in PAJA.
14 In general town planning schemes are conceived not only in the interests of the general public
but in the interests of inhabitants of the area covered by the scheme. (Administrator Transvaal
and the Firs Investments (Pty) Ltd v Johannesburg City Council 1971 (1) SA 56 (A) at 70D;
BEF (Pty) Ltd v Cape Town Municipality & others 1983 (2) SA 387 (C) at 401F)
15 Oudekraal Estates (Pty) Ltd v City of Cap e Town and Others 2004 (6) SA 622 (SCA) [2004] 3
All SA 1

in this respect, it did not vitiate the whole appeal as the Appeal Authority considered
other factors as well , in arriving at its decision. In oral argument, Respondents’
Counsel asserted that the Appli cant was unable to disentangle the complaints
against the MSDF from the other legal instruments that applied to rezoning , e.g., the
Zoning Scheme . As alluded to earlier in this judgment , the focus of the appeal
decision is on the MSDF, and the argument thus raised is unsustainable.

[16] The Respondents assert that the only question before this Court in this review
is whether the Second Respondent committed a reviewable irregularity in deciding
the appeal against the rezoning decision of the MPT under, among others , the
rectified MSDF , or not. The Respondents explained that the point of the Applicant
being bound by the zoning restrictions imposed on its property is simply that until
there is a rezoning, the zoning conditions remain.16 The latter contention would mean
that any rezoning application would be superfluous. The report does not support this
proposition. The Respondents further assertion that the Second Respondent simply
recorded the Applicant’s knowledge of the restrictions on the property as a fact, and
as she was required to consider all the facts relating to the appeal, has already found
accord with this Court.

[17] As long as the 2019 MSDF remained in its original form with tables 20 and 28
as published in the provincial gazette, the gazetted MSDF represented the law
relating to spatial development in the Stellenbosch Municipality. The Appeal
Authority’s reliance on a ‘corrected’ MSDF is a decision that is procedurally unfair,
irrational, and materially influenced by an error of law. The Appeal Authority’s
decision was irrational as it ignored the binding version of the Municipality’s own
planning instrument. T he first judicial review found that the gazetted MSDF was the

planning instrument. T he first judicial review found that the gazetted MSDF was the
legal instrument t hat bound the Municipality in its interactions with its citizens.
Gazetting is not just a formality ; it is the official act of publication that gives a
planning instrument like the MSDF legal force and public visibility . Publication on a
website does not equate to gazetting. This Court finds that the second appeal
conducted by the Municipality’s Appeal Authority must suffer a similar fate as the first
judicial review , albeit that the review succeeds on different grounds. The second

16 KwaDukuza Municipality v Lahaf (Pty) Ltd (940/18) [2020] ZASCA 9; [2020] 2 All SA 356
(SCA) (18 March 2020)

appeal decision falls to be set aside and remitted to the Appeal Authority for further
reconsideration.

[18] In setting aside the Appeal Authority’s second appeal decision, this review
Court, as was the case with the first review Court, is not concerned with the merits of
the impugned decision, but only with its legality. Th e setting aside of th e Appeal
Authority’s decision does not pre suppose a different outcome to the further
reconsideration of the rezoning application. A different incarnation of the MSDF was
imminent after a 2023 public participation process and may influence the outcome of
a further reconsideration of the Applicant’s application to rezone its property.

ORDER

1. The decision of the second respondent dated 9 November 2022
confirming the decision of the Stellenbosch Municipal Planning Tribunal
to refuse the applicant’s application for the rezoning of Erf 1[...],
Stellenbosch, is reviewed and set aside.
2. The applicant’s appeal against the Municipal Planning Tribunal’s
decision is remitted to the second respondent for further
reconsideration.
3. The Respondents shall pay the Applicants party and party taxed or
agreed costs and Counsels fees on scale B.


_____________________________
BHOOPCHAND AJ
Acting judge
High Court
Western Cape Division


Judgment was handed down and delivered to the parties by e -mail on 11 August
2025
Applicant’s Counsel: A Toefy

Instructed by Hofmeyr Attorneys
Respondent’s Counsel: D Borgstrom SC
Instructed by Rufus Dercksen Inc