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[2019] ZASCA 34
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Chairperson of the Municipal Appeals Tribunal City of Tshwane and Others v Brooklyn and Eastern Areas Citizens Association (1239/2017) [2019] ZASCA 34; [2019] 2 All SA 644 (SCA) (28 February 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1239/2017
In
the matter between:
THE
CHAIRPERSON OF THE MUNICIPAL APPEALS
TRIBUNAL,
CITY OF
TSHWANE FIRST
APPELLANT
THE
CHAIRPERSON OF THE MUNICIPAL PLANNING
TRIBUNAL,
CITY OF
TSHWANE SECOND
APPELLANT
THE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY THIRD
APPELLANT
CALIBER
651 (PTY)
LTD FOURTH
APPELLANT
and
BROOKLYN
AND EASTERN AREAS CITIZENS
ASSOCIATION FIRST
RESPONDENT
Neutral
citation:
The Chairperson of the Municipal Appeals Tribunal,
City of Tshwane & others v Brooklyn and Eastern Areas Citizens
Association
& others
(1239/2017)
[2019] ZASCA 34
(28 March
2019)
Bench:
Ponnan, Majiedt and Swain JJA and Eksteen and Rogers AJJA
Heard:
18 February 2019
Delivered:
28 March 2019
Summary:
Appeal – mootness – s 16(2) of Superior Courts Act –
court a quo setting aside decision by administrative appeal
tribunal
dismissing internal appeal against rezoning decision – in
meanwhile building on subject property completed and occupied
–
appeal not rendered moot by such completion and occupation
Appeal
– piecemeal appellate adjudication – merits of rezoning
still to be determined by administrative appeal tribunal
if review
successful – s 17(1)(
a
) of Superior Courts Act not
engaged – court a quo finally determined all issues before it –
order appealable.
Town
planning – internal appeal against rezoning decision –
appeal lodged after coming into force of Tshwane’s
Land Use
Management By-Law 2016 – applicable appeal procedure one laid
down in s 20 of By-law read with s 51 of
Spatial Planning and Land
Use Management Act 16 of 2013
–
s 59
of Town Planning and
Townships Ordinance 15 of 1986 inapplicable and inconsistent as
contemplated in s 2(2) of Act 16 of 2013 –
objector’s
first internal appeal valid and timeous appeal in terms of By-law –
objector’s second internal appeal
unnecessary and invalid.
ORDER
On
appeal from
: Gauteng Division of the High Court, Pretoria
(Tuchten J sitting as court of first instance):
(a) Save to the extent set out
in the revised order below, the appeal is dismissed.
(b) The appellants jointly and
severally shall pay the first respondent’s costs of appeal,
including those attendant
on the employment of two counsel.
(c) Para 2 of the court a quo’s
order is set aside and replaced with the following:
‘
2.1 The matter is remitted to
the Appeals Tribunal with directions:
2.1.1 to deal with the points in
limine of the fourth respondent as follows, namely to dismiss the
points in limine in regard to
the first internal appeal by the
applicant and the University of Pretoria but to uphold them in regard
to the applicant’s
second internal appeal;
2.1.2. to consider and determine the
first internal appeal after following such further procedures as it
may be required to follow
in terms of s 20 of the Tshwane Land Use
Management By-law of 2016 read with
s 51
of the
Spatial Planning and
Land Use Management Act 16 of 2013
.’
JUDGMENT
Ponnan
JA (dissenting)
[1]
During September 2015 the
fourth appellant, Caliber 651 (Pty) Ltd (the developer) applied, in
terms of s 56 of the Town Planning
and Townships Ordinance 15 of 1986
(the Ordinance), read with s 2(2) of the Spatial Planning and Land
Use Management Act 16 of
2013 (SPLUMA), to the City of Tshwane
Metropolitan Municipality (the Municipality) for the rezoning of Erf
908,
[1]
Brooklyn (the property) from ‘Residential 1’ to
‘Special’. The application drew objections from, amongst
others, the respondent, the Brooklyn and Eastern Areas Citizen
Association (BEACA) and the University of Pretoria (the University).
On 18 May 2016 the Municipal Planning Tribunal of the Municipality
(the Tribunal) resolved, after conducting a hearing, to approve
the
application. That decision was communicated to the developer and the
objectors by letter dated 8 June 2016.
[2]
On 2 August 2016 BEACA gave notice of its intention to appeal against
the decision of the Tribunal. In response, by letter dated
8 August
2016, the developer raised certain points
in limine
, which, so
it contended, rendered the appeal invalid and void
ab initio
.
On 19 October 2016 BEACA filed a second notice of appeal against the
Tribunal’s decision. The second notice appears to have
been
designed to address the criticism raised by the developer in its
letter of 8 August 2016. On 31 October 2016 the City informed
the
parties that the Municipal Appeals Tribunal of the Municipality (the
Appeals Tribunal) would consider the points
in limine
raised
by the developer at a hearing to be convened on 25 November 2016 and,
depending on the decision arrived at on those points,
the ‘merits’
would be dealt with thereafter.
[3]
On 31 January 2017 the Appeals Tribunal issued the following ruling:
‘
That the
point in limine
of
the 2nd respondent is upheld; That the appeal be dismissed as it is
invalid; and
No cost orders were made.’
The
reasons furnished by the Appeals Tribunal for its ruling were:
‘
The appellant misinterpreted
Section 3(12) of the LUM By-Law, due to the fact that its subject is
very clear regarding its purpose
and intention, further to this the
chapter clearly states these provisions are for transitional
arrangements;
In both the 1st and the 2nd appeal
incorrect reference is made to legislation which creates conflict on
the timelines to be adhered
to in the legislation.
The application was considered by the
Municipal Planning Tribunal and the appeal procedure under Section 51
of SPLUMA read with
Section 20 of the LUM By-Law is clear and should
have been followed in this case; and
It is clear that the subject appeal
does not qualify as a “pending appeal” as it was not an
appeal that was submitted
prior to the coming into operation of the
LUM By-Law. On these bases the Tribunal is of the view that the
appeal is invalid and
is dismissed.
The 1st appeal relies on section 59 of
the Ordinance and clearly requires the promulgation of the land use
rights at the time of
lodging the appeal.’
[4]
On 20 March 2017 BEACA applied to the Gauteng Division of the High
Court, Pretoria for an order:
‘
1. That the decision of Tshwane
Metropolitan Municipality’s Municipal Appeal Tribunal dated 31
January 2017 to dismiss an
appeal by the first applicant against the
decision of the Municipal Planning Tribunal be reviewed and set
aside.
2. That Tshwane Metropolitan
Municipality’s Planning Tribunal decision dated 8 June 2016 to
approve an application in terms
of section 56 of Town Planning and
Townships Ordinance 15 of 1986 (“the Ordinance”) to amend
its Town Planning Scheme,
2008 (revised 2014) by rezoning the
Remainder and Portion 1 of Erf 32 and the Remainder and Portion 1 of
Erf 33, Brooklyn (“the
properties”) from “residential”
to “special use” be reviewed and set aside.
3. That it is declared that the
Planning Appeal Tribunals of the City of Tshwane Metropolitan
Municipality were constituted irregularly
as prescribed in sections
36 and 51 of Spatial Planning and Land Use Management Act, 16 of 2013
(“SPLUMA”) read with
its Regulations and sections 17 and
19 of the Municipality’s Land Use Management By-laws of 2016.
4. That the application to rezone the
properties in terms of section 56 of the Ordinance by Caliber 651
(Pty) Limited, the owner
of the properties, be referred back to the
City of Tshwane Metropolitan Municipality.
5. Ordering the respondents to pay the
costs of this application, jointly and severally, the one paying the
other to be absolved.
6. Further and/or alternative relief.’
[5]
The application cited the Chairperson of the Appeals Tribunal, the
Chairperson of the Tribunal, the Municipality, the developer,
the
Minister of Rural Development and Land Reform, the Minister of
Cooperative Governance and Traditional Affairs and the
University
as the first to seventh respondents respectively. The application
succeeded before Tuchten J, who issued the following
order:
‘
1. The review is upheld. The
decision of the Municipal Appeals Tribunal of the first respondent
(the Appeals Tribunal) made on 31
January 2017 to uphold the point
in
limine
of the fourth respondent and dismiss the appeals brought
by the first applicant and the University of Pretoria as invalid is
hereby
set aside.
2. The matter is remitted to the
Appeals Tribunal with directions:
2.1.1 to deal with the point
in
limine
of the fourth respondent in accordance with this judgment;
2.1.2. to consider the merits of the
dispute between the parties and any other submissions the parties may
make in the appeals which
were brought before it by the first
applicant and by the University of Pretoria; and
2.2.
in the case of the first appeal, to confirm, vary or revoke the
decision of the second respondent appealed against as required
by s
52(3) of the Spatial Land Use and Management Act, 16 of 2013; and
2.3.
in the case of the second appeal, to uphold the appeal subject to any
condition the Appeals Tribunal may consider expedient
or dismiss it,
all as required by s 59 of the Town- planning and Townships
Ordinance, 15 of 1986 (T).
3. The third and fourth respondents,
jointly and severally, must pay the costs of the applicant, including
the costs consequent
upon the employment of both senior and junior
counsel.’
[6]
With the leave of the learned judge, the Chairperson of the Appeals
Tribunal (as the first appellant), the Chairperson of the
Tribunal
(as the second appellant), the Municipality (as the third appellant)
and the developer (as the fourth appellant) appeal
against his
judgment.
[7]
Shortly before the appeal was due to be heard, the developer filed
what was described as a ‘supplementary & clarifying
affidavit’, the relevant portion of which reads:
‘
3.2 . . . At the time that the
litigation commenced, the building was under construction and
although there were two applications
for interdicts to prevent the
continued building of the building in question, such applications
were unsuccessful. The fourth appellant
accordingly continued with
the construction of the building.
3.3. The building was completed in
phases and as the phases were completed, certificates of occupancy
were issued by the City of
Tshwane, as appears from such certificates
of occupancy annexed hereto as Annexures “SA1” to “SA3”.
3.4. Annexure “SA1” shows
a certificate of occupancy dated 16 March 2018 for phase 1 of the
building allowing occupancy
of 5 338.2 m² of building.
3.5. This was followed-up with a
further certificate of occupancy dated 16 July 2018 in terms of which
10 681.8 m² of occupancy
was approved (this included phase 2
with phase 3) and finally on 5 December 2018 in terms of which 11 553
m² of building was
approved.
3.6. The building is totally complete
and the entire building has been certified for occupancy by the City
of Tshwane.
4.1. What is of significance is that
the entire building has also been let out and will be fully occupied
in January 2019. Some
1 200 beds are to be occupied and have been
occupied in the building in question.
4.2. What is also of significance is
that it will have been seen from the record that the first
respondent, Brooklyn Eastern Areas
Citizen Association made much of
the purported allegations that the University of Pretoria was
diametrically opposed to the construction
of the building and the
making available of units for occupation by young people and/or
students in the area of the university.
4.3. In fact this was one of the main
contentions relied upon by the first respondent as to why it was
undesirable that this building
should be approved for construction.
The fourth appellant has always denied these allegations and stated
that there was a tremendous
need for student accommodation in the
area.
4.4. On 5 December 2018 a contract was
entered into between First Property Trust (Pty) Ltd, an agent with
the right to lease out
the units in the building situated at 180
William Road, Brooklyn with the University of Pretoria. In this
regard, I annex hereto
as Annexure “SA4”, a true copy of
such agreement of lease, without annexures.
4.5. In such agreement of lease the
University of Pretoria itself and directly leases 904 beds in the
building on the basis as set
out in paragraph 1.3 of Annexure “SA4”.
Such constitutes approximately 75% of the total beds available in the
building.
4.6. As can been seen from the lease
agreement, the University of Pretoria itself shall allocate the beds
to students itself and
this has transpired due to the fact that there
is a dire shortage and need for student accommodation in the
immediate vicinity
of the university.’
[8]
This raises starkly the question of whether the judgment sought on
appeal will have any practical effect or result as contemplated
by s
16(2)(
a
) of the
Superior Courts Act 10 of 2013
. That section
provides: ‘When at the hearing of an appeal the issues are of
such a nature that the decision sought will have
no practical effect
or result, the appeal may be dismissed on this ground alone.’
[9]
It has been suggested that we should pay no heed to the affidavit
filed on behalf of the developer. I cannot agree. The affidavit
has
been filed by one of the appellants. It reveals that the building,
the subject of the zoning challenge, has been completed
and the
entire building certified for occupation. That, whilst the appeal was
pending before this court. Moreover, all of this
occurred with the
approval of the relevant officials in the employ of the Municipality
– the other appellants under a different
guise. What is more is
that the building is fully tenanted, with approximately 75% of the
available beds having been taken up by
one of the objectors, the
University, with a view to sub-letting the accommodation to students
of its own choosing. Indeed, by
the time of the hearing of the
appeal, such allocations had been made and students were in
occupation since the commencement of
the 2019 academic year.
[10]
BEACA sought to suggest that the receipt of the affidavit would
occasion it prejudice. The nature of such prejudice is unclear
to me.
First, that the building has been fully completed, approved for
occupation and let is not in dispute. Second, insofar as
this aspect
of the case, namely mootness, is concerned, the affidavit filed is
adverse to the interests of the developer. Its receipt
therefor far
from occasioning any prejudice, in truth, redounds to the benefit of
BEACA. Third, although in general an appeal court
decides whether the
judgment appealed is right or wrong according to the facts in
existence at the time, the affidavit was filed,
as the deponent to
the affidavit points out:
‘
5.1 I have been advised that it
is necessary and essential that these facts be placed before the
Honourable Court so that the Honourable
Court has all relevant
factors and information before it at the time of the hearing.’
I
cannot but agree. It seems to me that a litigant in the position of
the developer has a duty in circumstances such as this to
bring these
facts to the attention of this court.
Fourth,
in deciding whether the affidavit should be received, this court has
the power to regulate its own process.
[2]
[11]
There are indeed several
instances where this court has had regard to post- judgment facts in
considering whether or not an appeal
is moot as contemplated by
s
16(2)
(a).
[3]
Tecmed Africa v Minister of
Health
[4]
is a clear case in point. There, in analogous circumstances, this
court had regard to an affidavit filed on behalf of the respondent
in
arriving at the conclusion that the appeal was moot. That the
affidavit had been filed absent a substantive application, and
without the requisite leave of this court mattered not. Nor can it be
of any moment that it was filed by a respondent with the
specific
view to persuading this court that the relief sought by the appellant
would not have any practical effect or result. The
purpose of the
affidavit can hardly be decisive, but rather, and predominantly, its
effect. Moreover, that it has been filed by
an appellant ought, at
any rate, to weigh more heavily in this case. For, during the
pendency of the appeal and whilst the objection
to the rezoning
remains unresolved, the developer elected, with the approval of the
Municipality, to finalise construction of -
and let - the building.
It follows, in my view, that no warrant exists for disregarding the
affidavit, the significance of which,
as counsel for the developer
submitted in his supplementary heads of argument is that ‘in
these circumstances the events
have overtaken the dispute between the
parties.’
[12]
This Court has a discretion in
regard to
s 16(2)(
a
).
There are cases where, notwithstanding the mootness of the issue as
between the parties to the litigation, it has dealt with
the merits
of an appeal.
[5]
With those must be contrasted cases where it has declined to do
so.
[6]
As Wallis JA pointed out in
Qoboshiyane
NO & others v Avusa Publishing Eastern Cape (Pty) Ltd &
others:
[7]
‘
The broad distinction between
the two classes is that in the former a discrete legal issue of
public importance arose that would
affect matters in the future and
on which the adjudication of this Court was required, whilst in the
latter no such issue arose.’
[13]
It was submitted on behalf of the appellants that a discrete legal
issue, namely the jurisdiction of the Appeals Tribunal to
consider an
appeal of the kind encountered here, did indeed arise in this case.
That issue, so the submission went, appertaining
as it did to
jurisdiction, had of necessity to be determined as a point
in
limine
by the Appeals Tribunal. Accordingly, so the submission
continued, as Tuchten J had erred, it was necessary for this court to
put
matters to right. The point hardly need detain us, for the
answering affidavit filed in opposition to the review application in
the court a quo recorded:
‘
9.
The transition of
municipal planning and municipal planning law: the period after the
enactment of the by-law
9.1.
On 2 March 2016, some 9 months after the enactment of SPLUMA and some
3½ months after the SPLUMA Regulations came into
operation –
in the absence of the promulgation of any new provincial planning
legislation in the Gauteng Province to support
SPLUMA – the
Municipality adopted the By-law.
9.2.
After the said date, rezoning applications could only be dealt with
in terms of SPLUMA, the SPLUMA Regulations and the By-law.
9.3.
Any appeal noted after 2 March 2016 against a rezoning decision,
regardless of whether the rezoning application was made during
the
pre-SPLUMA period or the interim period of transition, would be dealt
with in terms of SPLUMA (section 51), the SPLUMA Regulations
(regulations 20-30) and the By-law (sections 19-20).
9.4.
On 24 March 2016, by Council Resolution (Annexure “A7”),
the Municipality finalised the establishment of the MPT
and the MAT.
9.5.
The said resolution informs that as far as the MPT was concerned:
9.5.1.
all municipal officials that served on the CP & DC would
henceforth serve as members of the MPT; and
9.5.2.
the following non-municipal officials were then appointed to the MPT
in terms of section 36 (1) of SPLUMA, namely Ms Viwe
Qegu, Mr Israel
Moketla Mamabolo, Ms Stefani Chetty, Mr DO Nkoane, Mrs R Du Plessis
and Mr Theslgan Pillay.
9.6.
On 28 April 2016, the names of all members of the MPT so appointed
were published in the Provincial Gazette No. 153 (Annexure
“A8”).
9.7.
As far as the MPT was concerned, the said resolution confirmed that
all councillors serving on the SLDT would henceforth serve
on the
MAT.
9.8.
With the establishment of the MPT and the MAT having been finalised,
these tribunals were then put to work.
10. The hearing of the 4th
respondent’s rezoning application and objections thereto
10.1.
Since the 4th respondent’s rezoning application was submitted
to the Municipality after the enactment of SPLUMA, but
before the
enactment of the SPLUMA Regulations and the By-law by which the
format in which rezoning applications had to be submitted
after 1
June 2015 and procedural and substantive considerations that would
apply during the consideration thereof, were not yet
in existence.
SPLUMA, which was enacted by then, being framework legislation, also
does not contain any guidance in this regard.
As a result of these
lucanae
, section 56 of the 1986 Ordinance continued to provide
such guidance.
10.2.
The 4th respondent’s rezoning application was consequently
brought in terms of section 56 of 1986 Ordinance, within
the very
broad principles contained in SPLUMA applying thereto. Such an
approach is not novel. Before the demise of the DFA, rezoning
applications would be submitted in terms of section 56 of 1986
Ordinance and the principles and guidelines contained in the DFA
would guide the Municipality’s decision making process in
respect of such an application.
10.3.
SPLUMA, as framework legislation, empowers the Municipality, by
virtue of section 41(2)(d) of SPLUMA, read with section 40(4)
thereof, to consider applications referred or submitted to it, such
as the 4th respondent’s rezoning application.’
[14]
The issue accordingly did not arise for adjudication before Tuchten
J. Nor is it encompassed by any of his orders. Tuchten
J arrived at a
contrary conclusion to the Appeals Tribunal on the point
in
limine
. However, so argued counsel, some of the reasoning of the
learned judge now conduces to confusion and gives rise to uncertainty
before the Appeals Tribunal, thus this court should pronounce on
those issues for the benefit of litigants who will in the future
approach the Appeals Tribunal.
[15]
Several obstacles stand in the
way of acceding to counsel’s request. First, an appeal lies
against the substantive order of
a court, not its reasoning.
[8]
Second, absent an undisputed factual substratum, it would be
extremely difficult to define the limits of any order that should
issue in this case. Third, whatever issues are likely arise in the
pending matters none of them are yet ‘ripe’ for
adjudication by this court.
[9]
Fourth, ‘it is desirable that any judgment of this Court be the
product of thorough consideration of,
inter
alia
, forensically tested
argument from both sides on questions that are necessary for the
decision of the case’.
[10]
Fifth, as Innes CJ observed as long ago as
Geldenhuys
and Neethling v Beuthin
1918
AD 426
at 441:
‘
Courts of Law exist for the
settlement of concrete controversies and actual infringements of
rights, not to pronounce upon abstract
questions, or to advise upon
differing contentions, however important.’
In
National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs &
others
2000 (2) SA 1
(CC)
2000 (1) para 21 fn 18 the Constitutional Court echoed what the
learned Chief Justice had stated over eight decades earlier
when it
said: ‘A case is moot and therefore not justiciable if it no
longer presents an existing or live controversy which
should exist if
the court is to avoid giving advisory opinions on abstract
propositions of law.’ This principle has been
emphasised in a
long line of cases of this court.
[11]
[16]
The cumulative consequence of all the factors that I have alluded to
is that no practical effect or result can be achieved
in this case.
[17]
In the result, I would strike the appeal from the roll with costs,
including those consequent upon the employment of two counsel.
_____________
V
M Ponnan Judge of Appeal
Rogers
AJA (Majiedt and Swain JJA and Eksteen AJA concurring)
[18]
I respectfully disagree with Ponnan JA’s judgment. In my view
the appeal is not moot and this court is obliged to determine
it on
its merits. I adopt the abbreviations my colleague uses save that I
shall refer to the Municipality’s Appeals Tribunal
as the MAT.
Appealability
[19]
The circumstances in which the developer came to file the affidavit
on which my colleague bases his decision are the following.
On 5
December 2018 the registrar of this court addressed a letter to the
parties directing them to file further heads of argument
on the
following questions: (a) whether the order of Tuchten J was
dispositive of any of the substantive issues between the parties,
and
appealable; (b) whether entertaining the appeal would not conduce to
a fragmented disposal of the issues and a possible proliferation
of
piecemeal appeals. (Simply for convenience, I shall refer to these
points collectively as the piecemeal points.) The municipal
parties
and the developer filed their supplementary submissions on 7 January
2019 while BEACA filed its supplementary submissions
on 21 January
2019. The developer’s affidavit was delivered together with its
supplementary submissions.
[20]
From the developer’s supplementary submissions one can see that
it did not seek to deploy the evidence in the belated
affidavit in
order to show that the appeal was moot. On the contrary, the
developer wished the court to hear the appeal and to
reverse Tuchten
J’s decision. The developer relied on the completion and
occupation of the building for purposes of an argument
that it would
not be just and equitable, in terms of s 8(1) of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), for
the MAT’s
decision dismissing the internal appeals to be set aside. For this
reason, so the argument ran, the court a quo’s
granting of
consequential relief – the setting aside of the MAT’s
decision – should be reversed, even if the
MAT’s decision
was vitiated by a review irregularity. The developer’s
contention was not that the appeal was moot in
terms of s 16(1)(
a
)
of the
Superior Courts Act; its
contention was that, on the merits of
the appeal, the granting of consequential review relief was not just
and equitable.
[21]
At the hearing of the appeal counsel made submissions on the
piecemeal points and on the merits of the appeal. Counsel for
the
municipal parties and the developer submitted that this was not a
case of undesirable piecemeal appellate jurisdiction. BEACA
argued
the contrary. The developer’s counsel did not expand on its
supplementary submissions regarding the appropriateness
of setting
aside the MAT’s decision in view of the completion of the
building. The question whether the information in the
belated
affidavit rendered the appeal moot was raised by a member of the
court but hardly touched on in argument. None of the litigants
took
the view that the appeal was moot.
[22]
Although my colleague does not
base his judgment on the piecemeal points, it is necessary to deal
briefly with them since they were
embraced by BEACA. I am satisfied
that the appeal is not one which this court is entitled to decline to
entertain. Tuchten J’s
judgment has all three attributes of a
final appealable judgment as laid down in
Zweni
v Minister of Police
:
[12]
(a) He upheld the review, granted
consequential relief and ordered the appellants to pay the costs.
Those orders were final in effect.
The court a quo could not alter
them.
(b) Tuchten J’s judgment was
definitive of the rights of the parties. This requirement must be
understood as referring to
the rights at issue in the court a quo
since those are the only rights which that court can adjudicate. The
rights at stake in
the court a quo concerned the jurisdiction of the
MAT, ie whether the internal appeals were validly before the MAT.
BEACA asserted
that it had lodged valid internal appeals and had the
right to have them decided by the MAT on their merits. The appellants
contested
those rights. The court a quo finally determined them in
favour of BEACA.
(c) Tuchten J’s judgment
disposed not merely of a substantial portion but the whole of the
relief claimed in the main proceedings.
The ‘main proceedings’
in
Zweni
is a reference to the proceedings in the court a quo.
In the present case there is nothing left of those proceedings.
[23]
It is true that Tuchten J did
not determine the merits of the rezoning decision. That is because
those merits were not an issue
in the case before him. The merits of
the rezoning decision will never serve before a court. There is no
statutory appeal from
the MAT to the High Court. Our courts have been
astute to maintain the distinction between appeal and review, between
merits and
process. As Prof Hoexter writes:
[13]
‘
Appeal . . . is concerned with
the merits of the case, meaning that on appeal the second decision-
maker is entitled to declare
the first decision right or wrong.
Review, by contrast, is not concerned
with the merits of the decision but whether it was arrived at in an
acceptable fashion.’
[24]
Conceivably the way in which the MAT decides the merits (if the
present appeal fails) may be vitiated by a review irregularity,
but
that is speculation. There is no reason to think it more likely than
not that the MAT’s decision on the merits will be
open to a
review challenge. If it were not irregular, the present appellants
could not have it set aside on the ground that no
valid internal
appeals served before the MAT because that question has been rendered
res judicata
by Tuchten J’s decision. If there were in
due course a review challenge on the merits, that would give rise to
fresh litigation
in the High Court involving the adjudication of
different rights to those which Tuchten J finally determined.
[25]
Where legislation has entrusted the merits of a matter to an
administrative functionary, the merits are hardly ever a matter
for
the courts. The usual order where a review succeeds is that the
matter is remitted to the functionary to determine the merits
afresh.
In all successful reviews where the usual order is made it could be
said that the ‘substantive issue’ between
the parties (ie
the merits of the decision entrusted to the functionary) has not yet
been determined. And in all such cases the
remittal is pregnant with
the possibility that the functionary’s fresh decision will be
vitiated by review irregularity,
spawning further review proceedings.
There are many instances where this court has adjudicated such
appeals and not a single instance,
so far as I am aware, where it has
declined to do so.
[26]
Section 17(1)(
c
) of the
Superior Courts Act, which
embodies
the legislative policy against piecemeal appellate adjudication, is
confined to situations where the appeal will not dispose
of ‘all
the issues in the case’. The ‘case’ must mean the
legal suit in the court a quo. It cannot encompass
issues with which
the court a quo is not concerned but which might have to be
adjudicated by an administrative functionary from
whose decision no
appeal lies.
[27]
Turning to the question of mootness,
s 16(2)(
a
) of the
Superior Courts Act applies
where the issues are of such a nature
‘that the decision sought will have no practical effect or
result’. So one tests
mootness by asking whether the relief the
appellants seek in the appeal will have practical effect or result.
Only where such relief
would have ‘no’ practical effect
or result (which would include effects and results so trivial as to
be disregarded
as
de minimis
) is the appeal moot. The relief
the appellants seek on appeal is a reversal of the court a quo’s
judgment setting aside the
MAT’s decision dismissing the
internal appeals. One must thus determine whether such an outcome
will, in its practical results
and effects, differ from the status
quo to an extent that is not trivial.
[28]
If the court a quo’s judgment stands, the MAT and the bevy of
municipal officials involved in its work must deal with
the merits of
the internal appeals. The developer and BEACA must participate in the
appeals. Probably they will feel it wise to
be legally represented as
hitherto. If the MAT were to give a decision on the merits which a
party regards as vitiated by a review
irregularity, such party would
have to institute further review proceedings with considerable outlay
of money, time and effort
by everyone concerned. All of this would be
avoided if the appellants achieve what they seek on appeal, namely an
affirmation that
the MAT rightly upheld the in limine objections.
[29]
There are several reasons why, in my respectful view, a mootness
objection, based on the completion of the building, must fail.
The
first is procedural. The registrar’s letter requesting
supplementary submissions on the piecemeal points did not authorise
the filing of an affidavit. The belated affidavit did not even deal
with the piecemeal points. In their responding submissions
BEACA’s
counsel objected to this irregularity and said that their client was
prejudiced by lack of opportunity to present
evidence rebutting or
explaining the developer’s averments. At the hearing the
developer’s counsel did not apply for
leave to file the
affidavit. It is thus not properly before us. And as I have said, the
question of mootness (which was not the
point raised in the
supplementary affidavit), and the possible answers to it, were hardly
touched on in argument.
[30]
Even if it were appropriate to receive the affidavit and engage with
the question of mootness, the appeal is not moot. A decision
by this
court to decline jurisdiction would mean that Tuchten J’s
judgment stands, and the effects and results described
in para 28
above would ensue. The difference between those effects and results
on the one hand, and their avoidance on the other,
is real and
substantial. This is so even if it were certain that the MAT could
and would have regard to the fact that the building
has been
completed.
[31]
In any event, it is by no means certain that the MAT can permissibly
have regard to the completion of the building. Counsel
for the first
to third appellants (the municipal parties) said in their
supplementary submissions that such evidence would be inadmissible
by
virtue of
s 20(11)(
d
)(ii) of the By-law, which precludes the
MAT from considering new evidence that may negatively affect the
respective rights and
obligations of interested and affected parties.
The developer and BEACA did not argue otherwise.
[32]
Even if one were to assume that the MAT could and would receive
evidence of the completion of the building, it does not follow
that
the MAT could or would rely on this evidence to avoid a decision on
the merits of the rezoning decision. The MAT is likely
to regard
Tuchten J’s judgment as a mandatory injunction to adjudicate
the merits. If the MAT were to decide the merits in
favour of BEACA,
the latter has held out partial demolition as something it may
pursue. We cannot know how things will unfold.
Viewing matters from
the developer’s perspective, success before us would mean that
it would not be exposed to the risks
inherent in the course BEACA
intends to follow.
[33]
If my colleague’s suggestion is that the developer can safely
ignore the internal appeals on the basis that, whatever
the MAT does,
its interests cannot conceivably be prejudiced because the building
is now completed (ie that the internal appeals
are now a
dead-letter), I respectfully disagree. The developer has not stated
in its affidavit that it will withdraw from the internal
appeals if
Tuchten J’s judgment stands. That would be a high-risk
strategy. The developer is before us precisely because
it wants
Tuchten J’s judgment reversed. The developer’s interests
would clearly be adversely affected by a decision
of the MAT that the
subject properties should not have been rezoned so as to permit the
building that now stands on them.
[34]
Finally, reliance on mootness here will not have the effect it
ordinarily has, namely putting an end to formal contestation
which is
already practically dead. A refusal to decide the appeal will lock
the parties into further contestation before the MAT.
The one course
which would assuredly bring contestation to an end is if the
appellants could persuade us of the correctness of
their submissions
on the merits of the appeal. The only other course which might have
this effect is the one which the developer
has urged us to take,
namely to rely on the completion and occupation of the building as a
basis for a discretionary decision,
in terms of
s 8
of PAJA, to
decline to set aside the MAT’s dismissal of the internal
appeals. This course, which my colleague does not adopt
and which
does not commend itself to me, would not involve the invocation of
s
16(2)(
a
) but would be a decision on the merits of the appeal.
The
merits of the appeal
[35]
The developer lodged its rezoning application with the Municipality
in September 2015. Although SPLUMA came into force on 1
July 2015,
the regulations necessary to make it effective were only promulgated
in November 2015. This explains why the developer
described its
rezoning application as one submitted in terms of s 56 of the
Ordinance read with s 2(2) of SPLUMA. Section 2 (2)
provides:
‘
Except as provided for in this
Act, no legislation not repealed by this Act may prescribe an
alternative or parallel mechanism,
measure, institution or system on
spatial planning, land use, land use management and land development
in a manner inconsistent
with the provisions of this Act.’
[36]
As Tuchten J explained in his
judgment, SPLUMA was the second legislative attempt to create a
uniform town planning regime for South
Africa. The first attempt was
the
Development Facilitation Act 67 of 1995
, but Chapters V and VI
thereof were found by the Constitutional Court to be invalid because
they infringed the autonomy of municipalities
to regulate the land
use and municipal planning within their areas of jurisdiction.
[14]
These defects were remedied by SLPUMA. The Municipality gave further
effect to SPLUMA by enacting the By-law which came into force
on 2
March 2016. A feature of SPLUMA and the By-law is that land use
adjudication, including internal appeals, remains within the
municipal sphere. In terms of the Ordinance, by contrast, internal
appeals are determined at provincial level.
[37]
Section 3 of the By-law contains transitional provisions. Section
3(1) deals with land use or development applications which
were
pending on 2 March 2016 when the By-law was promulgated. That section
applied to the developer’s pending rezoning application.
It was
common cause in the court a quo that, pursuant to s 3(1) of the By-
law, the developer’s rezoning application came
before the MPT
functioning in terms of SPLUMA and the By-law. The MPT granted the
rezoning application on 18 May 2016.
[38]
Section 3(12) of the By-law is headed, ‘Appeals pending or
submitted in terms of other legislation upon the coming into
operation of this By-law’, and reads:
‘
Upon
the coming into operation of this By-law, any other legislation,
which as a result of the coming into operation of this By-law
in
terms of section 2(2) of the Act, is inconsistent with the Act, and
which provides for an appeal procedure against a decision
of the
Municipality on land development application shall be dealt with by
the Municipal Appeals Tribunal, in terms of the processes
and
procedures as contemplated in that legislation.’
[39]
The Act referred to in s 3(12) is SPLUMA. As Tuchten J observed, s
3(12) as formulated does not make sense. He held that it
should be
interpreted as follows (the underlined words being his insertion):
‘
Upon the coming into operation
of this By-law,
any appeal pending or submitted in terms of
any
other legislation . . . shall be dealt with by the Municipal Appeals
Tribunal, in terms of the processes and procedures as contemplated
in
that legislation.’
This
interpretation was not challenged before us and is in my view
correct, particularly having regard to the subject matter of
s 3 as a
whole and the sub-heading of s 3(12).
[40]
On 28 September 2016 the Municipality, evidently regarding the
Ordinance as still regulating the developer’s application,
caused the MPT’s decision to be notified by publication in the
Provincial Gazette
in terms of s 57 of the Ordinance. In its
answering papers, the developer said that since the procedures
relating to its application
were no longer governed by the Ordinance,
such publication had been unnecessary.
[41]
Be that as it may, some weeks earlier, on 2 August 2016, BEACA lodged
the first of two internal appeals against the MPT’s
decision.
The following features of the documentation lodged by BEACA may be
noted:
(a) The covering letter from BEACA’s
attorneys, JIR Attorneys & Associates (JIR), described the appeal
as one against
the MPT’s decision without identifying the
legislative regime under which it was lodged.
(b) The notice of appeal, apparently a
prescribed municipal form, required the appellant, in a section
headed ‘APPEAL DETAILS’,
to describe the ‘Type of
application’ and ‘Relevant legislation applicable’.
In a footnote to the former
item, there appeared the pre- printed
words: ‘Application i.t.o. section 58 of the [Ordinance] read
with sections of [SPLUMA]
read with [the By-law].’ BEACA simply
copied this wording in the spaces provided. This information related
to the rezoning
application lodged by the developer rather than to
the appeal.
(c) At the foot of the prescribed form
the appellant was required to declare that the appeal was submitted
to the ‘Appeals
Authority’ in terms of s 20 of the By-law
and that the appellant was bound by all the provisions of the By-law.
The appellant
was also required to acknowledge that the appeal
contemplated in s 20 could be written or oral. BEACA duly signed the
declaration
and acknowledgment. (It was common cause in the court a
quo that as at August 2016 the MAT was the Municipality’s only
appeal
authority.)
(d) Attached to the prescribed form
was a lengthy document, on a JIR letterhead, setting out the grounds
of appeal. The heading
read: ‘Appeal submitted in terms of
section 59 of the [Ordinance] read with section 4 of the [By-law] in
respect of [the
subject properties]’.
(e) In the introductory part of the
grounds of appeal JIR noted that the By-law had been promulgated on 2
March 2016. Attention
was drawn to the transitional provisions of ss
3(1) and 3(12) of the By-Law. JIR said that, in the light of these
provisions, BEACA’s
appeal was submitted in terms of s 59 of
the Ordinance to the MAT established in terms of SPLUMA.
(f) After advancing several points in
limine, including that the developer should have resubmitted the
rezoning application in terms
of SPLUMA and the By-law, JIR dealt at
length with the merits. (BEACA’s so-called points in limine
were not in truth points
in limine in relation to the appeal. They
were grounds of appeal based on technicalities rather than the
merits.)
[42]
On 8 September 2016 the developer filed a response to the first
internal appeal. The developer raised its own points in limine,
which
can be summarised thus.
(a) BEACA elected to note its appeal
in terms of s 59 of the Ordinance read with s 3(12) of the By-law.
Having done so, BEACA was
obliged to follow the procedure laid down
in the Ordinance, which meant that the appeal could only be noted
within the 56-day period
following publication of the scheme
amendment in the
Provincial Gazette
. The internal appeal was
thus premature.
(b) In any event, BEACA should not
have noted its appeal in terms of s 59 of the Ordinance but in terms
of s 20 of the By-law. This
was so because no internal appeal in
terms of the Ordinance was pending when the By-law came into force on
March 2016, so that
s 3(12) of the By-law was inapplicable.
[43]
As stated, the Municipality published the scheme amendment in the
Provincial Gazette
on 28 September 2016. On 19 October 2016
BEACA lodged a second internal appeal. The covering letter and
prescribed form were the
same as before. Attached to these documents
was a ‘Notice of Appeal’ which set out the grounds of
appeal in detail.
This document in its heading stated that the appeal
was directed to the MAT in terms of s 59 of the Ordinance read with s
51 of
SPLUMA. It stated, further, that the first internal appeal had
been filed as a precaution and that the second appeal supplemented
the previous one and should be read with it. (It may be more accurate
to say that the second appeal was filed as a precaution in
order to
meet the developer’s prematurity point.)
[44]
The MAT heard submissions on the parties’ points in limine on
25 November 2016. In advance of the hearing the developer’s
attorneys filed heads of argument. In regard to the first internal
appeal, the developer advanced the same points in limine I summarised
earlier. In regard to the second internal appeal, the developer
complained that it was legally impossible for an appeal to be noted
in terms of both s 59 of the Ordinance and s 51 of SPLUMA. To the
extent that the second internal appeal was brought in terms of
SPLUMA, s 20(1)(
b
) of the By-law required it to be lodged
within 21 days of notification of the rezoning decision. The second
internal appeal was
thus late by several months.
[45]
Following the hearing of argument, the MAT upheld the developer’s
points in limine. My colleague has quoted the reasons
which the MAT
gave. In essence, the MAT held that s 3(12) of the By-law was
inapplicable because no internal appeal was pending
when the By-law
came into force. In the event, therefore, BEACA should have pursued
its appeals in terms of s 51 of SPLUMA and
s 20 of the By-law.
[46]
I have already mentioned that
Tuchten J, in an obiter dictum, expressed the view that the MAT was
not in general entitled to determine
points in limine, its primary
statutory function being to deploy its expertise to decide internal
appeals on their merits. I disagree.
Section 20(9)(
e
)(i)
read with ss 18(3)(
a
)-(
e
)
of the By-law requires the MAT to deal with points in limine first
and, having decided them, either to terminate or proceed with
the
hearing. Even in the absence of these statutory requirements, an
administrative functionary must always take care to ensure
that the
jurisdictional prerequisites for the invocation of its powers are
present. If it finds that they are not, it must refrain
from
adjudicating. The rule of law is not enhanced by insisting that
administrative functionaries perform their adjudicative functions
despite their view that the jurisdictional prerequisites for the
exercise of such functions are absent. This does not mean that
an
administrative functionary’s decision on the presence or
absence of a jurisdictional prerequisite is binding or that the
functionary can in this way confer on itself, or deprive itself of,
statutory jurisdiction, only that the functionary must endeavour
to
act within the limits of the law, leaving it to a court on review to
correct it if it has gone wrong.
[15]
In our current system of judicial review under PAJA, where an
administrative decision can be impeached if it was materially
influenced
by an error of law,
[16]
it no longer matters much whether or not the power to determine
points in limine is expressly conferred on the statutory functionary;
in either case, a review court can set aside the decision if it is
vitiated by an error of law.
[47]
I thus turn to consider the validity of BEACA’s first internal
appeal. In their opposing papers in the court a quo the
appellants
stated that the only appeal procedure available to BEACA was an
appeal to the MAT in terms of s 51 of SPLUMA read with
s 20 of the
By-law. They supported the MAT’s decision along the same lines
as the points in limine the developer had advanced.
By purporting to
bring its appeal in terms of s 59 of the Ordinance, BEACA had, they
contended, followed the wrong procedure.
[48]
The appellants alleged, in this regard, that because BEACA’s
internal appeal was not pending on 2 March 2016, s 3(12)
of the
By-law was inapplicable. If that transitional provision had been
applicable, the processes and procedures contemplated in
the
Ordinance would have been applicable but the MAT rather than
provincial functionaries would have been the appeal authority.
However, because BEACA’s internal appeal was only lodged on 2
August 2016, the applicable processes and procedures were those
laid
down in s 51 of SPLUMA read with s 20 of the By-law.
[49]
The municipal parties added, in their opposing papers, that the
appeal procedure contemplated in s 59 of the Ordinance ran
foul of s
2(2) of SPLUMA, even though the Ordinance had not formally been
repealed. That contention is undoubtedly correct. It
is thus a matter
of surprise that the municipal parties went on to allege that BEACA,
having brought its appeal in terms of s 59
of the Ordinance, was
obliged to pursue it to the provincial appeal authority contemplated
in s 59 of the Ordinance, namely the
Townships Board. Such a course
would not only have been constitutionally repugnant; it was contrary
to the case which both the
municipal parties and the developer
advanced, namely that the only permissible appellate regime was the
one contemplated by s 51
of SPLUMA read with s 20 of the By-law.
[50]
In their written and oral submissions in this court the municipal
parties engaged in a tactical retreat from the position so
clearly
articulated in their answering papers. They now claim that because
the developer’s rezoning application was lodged
in terms of the
Ordinance and could only have been considered by the MPT in terms of
the Ordinance, that legislation continued
to govern the appeal
process, including the requirement that an appeal be adjudicated by
the provincial Townships Board (the papers
are silent as to whether
such a body still exists) and ultimately by the MEC (in lieu of the
‘Administrator’). References
by the developer and the MPT
to planning considerations arising from SPLUMA are now dismissed by
the municipal parties as ‘meaningless’.
[51]
At least insofar as the appeal regime is concerned, the municipal
parties’ new case is untenable. The pending appeals
contemplated in s 3(12) of the By-law would include appeals against
decisions made by the MPT in terms of the Ordinance, since
that is
the primary (if not the only) legislation under which such planning
decisions would have been made prior to 2 March 2016.
Such pending
appeals are required to be determined by the MAT, not the Townships
Board. Only the ‘processes and procedures’
of the
Ordinance remain applicable. This is understandable, since in respect
of such appeals aggrieved parties would already have
embarked upon
their appeals under the Ordinance’s processes and procedures.
The lawmaker could not have intended to prejudice
them by requiring
them, in effect retrospectively, to comply with new processes and
procedures (particularly new time-limits).
The contention now
advanced by the municipal parties would entail that older appeals (ie
those already pending as at 2 March 2016)
must be decided by the MAT
whereas newer appeals (those lodged on or after 2 March 2016) must be
dealt with by the provincial bodies
under the Ordinance. That is
absurd and counter-intuitive, and is not dictated by the wording of
the legislation. It must be accepted
now that after the commencement
of SPLUMA and the By-law the provincial appeal authority, the
Townships Board, lacks the requisite
jurisdiction to hear appeals
emanating from rezonings granted by the Tshwane Municipality.
[52]
In my view, the appellants were correct, when they contended in their
answering papers, that s 3(12) was inapplicable, given
that BEACA’s
appeal was not pending as at 2 March 2016. And it seems to me to be a
necessary implication of s 3(12) that
an internal appeal lodged after
the coming into force of the By-law must also be brought to the MAT,
but wholly in terms of SPLUMA
and the By-law, rather than in terms of
the processes and procedures contained in the Ordinance. Put
differently, s 20 of the By-
law is operative in respect of all
appeals against MPT decisions where the appeals are lodged on or
after 2 March 2016.
[53]
It does not follow that BEACA’s internal appeal was invalid. As
Tuchten J observed, SPLUMA and the By-law do not require
an aggrieved
party to identify the legislation under which its appeal is brought.
BEACA quite clearly intended to pursue an appeal
to the MAT, not to
the moribund provincial functionaries contemplated in the Ordinance.
BEACA and its advisors evidently found
the legislative regime
confusing, which is unsurprising. In the prescribed form BEACA
(correctly) identified the appeal as one
submitted to the MAT in
terms of s 20 of the By-law. In the accompanying grounds of appeal,
by contrast, BEACA’s attorneys
(incorrectly) identified the
legal route to the MAT as lying via s 59 of the Ordinance read with s
3(12) of the By-law. If it was
unnecessary to identify the
legislative route, an erroneous setting out of the legislative route
cannot invalidate the appeal,
particularly where the error was of a
kind that is excusable and could cause no prejudice.
[54]
The MAT, having found that BEACA had a right to pursue an internal
appeal in terms of s 20 of the By-law, should have asked
itself
whether in substance BEACA’s internal appeal complied with the
requirements of the law. BEACA’s appeal so complied.
The
prescribed fee was paid. The appeal was lodged within the 21-day
limit prescribed by s 20(1)(
b
), ie within 21 days of the date
on which BEACA was notified of the MPT’s decision (BEACA was so
notified on 12 July 2016).
The documents prescribed by s 20(8) were
submitted. No other non-compliance was alleged. The only complaint
was that the grounds
of appeal incorrectly identified the legal basis
on which the MAT was seized with the matter.
[55]
The developer’s other point in limine, which the MAT also
upheld, was that the first internal appeal was premature. That
contention, however, presupposes that the appeal was before the MAT
in terms of s 59 of the Ordinance read with s 3(12) of the
By-law.
Only in that event would the applicable time-limit have been the one
prescribed by the Ordinance rather than the By-law.
Since the appeal
was validly and substantively brought in terms of s 20 of the By-law,
the prematurity point fell away. It is thus
unnecessary to decide
whether the court a quo was correct to find that an aggrieved party
wishing to pursue an appeal in terms
of the Ordinance can do so
before the scheme amendment is published in the
Provincial
Gazette
.
[56]
During argument before us BEACA’s counsel conceded that, if we
were to find that the first internal appeal was validly
before the
MAT, there was no basis on which BEACA was entitled to lodge, or
indeed needed to rely on, the second internal appeal.
Apart from
anything else, if s 20 of the By-law rather than s 59 of the
Ordinance governed the procedure, as I have found to be
the case, the
second appeal was out of time, having been lodged more than 21 days
after BEACA was notified in writing of the MPT’s
decision. The
court a quo seems to have thought that in terms of s 3(12) of the
By-law BEACA was entitled to submit an appeal in
terms of s 59 of the
Ordinanc. For reasons I have explained, that is incorrect.
[57]
It follows that I would in substance uphold the court a quo’s
orders, except for para 2.3, which directed the MAT to
determine the
second appeal as well as the first. There is no basis for interfering
with the costs order in the court a quo, given
that BEACA remains the
dominantly successful party in that court. BEACA is also the
dominantly successful party in this court,
the appellants’
limited success being technical in nature. A minor revision in the
wording of para 2 of the court a quo’s
order is desirable to
avoid confusion.
[58]
The following order is made:
(a) Save to the extent set out in the
revised order below, the appeal is dismissed.
(b) The appellants jointly and
severally shall pay the first respondent’s costs of appeal,
including those attendant on the
employment of two counsel.
(c) Para 2 of the court a quo’s
order is set aside and replaced with the following:
‘
2.1
The matter is remitted to the Appeals Tribunal with directions:
2.1.1 to deal with the points in
limine of the fourth respondent as follows, namely to dismiss the
points in limine in regard to
the first internal appeal by the
applicant and the University of Pretoria but to uphold them in regard
to the applicant’s
second internal appeal;
2.1.2. to consider and determine the
first internal appeal after following such further procedures as it
may be required to follow
in terms of s 20 of the Tshwane Land Use
Management By-law of 2016 read with
s 51
of the
Spatial Planning and
Land Use Management Act 16 of 2013
.’
__________________
O
L Rogers Acting Judge of Appeal
APPEARANCES:
For
First to Third Appellants: A Liversage SC (with him L Kotze)
Instructed
by:
Malebye,
Meleho Attorneys, Pretoria North Rossouws, Bloemfontein
For
Fourth Appellant: M Rip SC Instructed by:
Ivan
Pauw & Partners Attorneys, Pretoria Phatshoane Henney Attorneys,
Bloemfontein
For
First and Second Respondent: LGF Putter SC (with him H van Eetveldt)
Instructed
by:
Shaukat
Karim & Co., Durban Honey Attorneys, Bloemfontein
[1]
The rezoning application related to 4 erven (Rem and Portion 1 of
Erf 32; Rem and Portion 1 of Erf 33). Subsequently the 4 erven
were
consolidated into Erf 908.
[2]
Mukkadam v Pioneer Foods (Pty) Ltd and Others
2013 (5) SA 89
(CC)
paras 31 – 34 and 42.
[3]
See inter alia Radio Pretoria v Chairman, Independent Communications
Authority of South Africa & another
2005 (1) SA 47
(SCA);
Western Cape Education Department v George
1998 (3) SA 77
(SCA); The
Kenmont School & another v DM & others
[2013] ZASCA 79
(SCA); Legal Aid South Africa v Magidwana & others
[2014] 4 All
SA 570
(SCA); Deutsches Altersheim Zu Pretoria v Dohmen & others
[2015] ZASCA 3
(SCA); Tecmed Africa v The Minister of Health
[2012]
ZASCA 64
;
[2012] 4 All SA 149
(SCA) and Absa Bank Ltd v Van Rensburg
& another 2014 (4) SA 626 (SCA).
[4]
Tecmed Africa v The Minister of Health [2012] ZASCA 64; [2012] 4 All
SA 149 (SCA).
[5]
See inter alia Natal Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1)
SA 432
(SCA) at 444I-445B; The Merak S: Sea Melody Enterprises SA v
Bulktrans (Europe) Corporation
[2002] ZASCA 18
;
2002 (4) SA 273
SCA
para 4; Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie
[2005] ZASCA 15
;
2005 (4) SA 509
(SCA) paras 5-7; Executive Officer
of the Financial Services Board v Dynamic Wealth Ltd & others
[2011] ZASCA 193
;
2012 (1) SA 453
(SCA) paras 43-46.
[6]
See inter alia Radio Pretoria v Chairman, Independent Communications
Authority of South Africa see fn 3 above; Rand Water Board
v Rotek
Industires (Pty) Ltd
[2003] ZASCA 22
;
2003 (4) SA 58
(SCA); Minister
of Trade and Industry v Klein NO [2009] ZASCA 77;
[2009] 4 All SA
328
(SCA); Clear Enterprises (Pty) Ltd v Commissioner for South
African Revenue Services & others
[2011] ZASCA 164
(SCA); The
Kenmont School & another v DM see fn 3 above; Ethekwini
Municipality v South African Municipal Workers Union &
others
[2013] ZASCA 135
(SCA); Legal Aid South Africa v Magidwana see fn 3
above; and Deutsches Altersheim Zu Pretoria v Dohmen & others
see fn 3
above.
[7]
Qoboshiyane NO & others v Avusa Publishing Eastern Cape (Pty)
Ltd & others
[2012] ZASCA 166
;
2013 (3) SA 315
(SCA) para 5.
[8]
Absa Bank Ltd v Mkhize & another, Absa Bank Ltd v Chetty, Absa
Bank Ltd v Mlipha
2014 (5) SA 16
(SCA);
[2013] ZASCA 139
para 64.
[9]
See Clear Enterprises (Pty) Ltd fn 5 above.
[10]
Per Howie JA in Western Cape Education Department v George see fn 3
above at 84E.
[11]
See by way of example Legal-Aid South Africa v Magidiwana &
others and Deutsches Altersheim Zu Pretoria v Roland Heinrich
Dohmen
fn 14 above and the cases there cited. In Radio Pretoria para 41,
Navsa JA said:
‘
Courts
of appeal often have to deal with congested court rolls. They do not
give advice gratuitously. They decide real disputes
and do not
speculate or theorise (see the Coin Security case (supra) at para
[7] (875A-D)). Furthermore, statutory enactments
are to be applied
to or interpreted against particular facts and disputes and not in
isolation.’
[12]
Zweni v Minister of Police and Order
[1992] ZASCA 197
;
1993 (1) SA
523
(A) at 532J-533B.
[13]
Cora Hoexter Administrative Law in South Africa 2 ed 108
[14]
Johannesburg Metropolitan Municipality v Gauteng Development
Tribunal & others 2010 (6) SA 182 (CC).
[15]
Cf Minister of Public Works v Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
(A) at
751F-H.
[16]
Section 6(2)(d).