SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case No: 1005/2019
Reportable: Yes / No
In the matter between:
CAROLINE NOMATAMSANQA NTSHEBE 1st Appellant
MALINDELA WISEMAN MPINDA 2nd Appellant
and
MBIZANA LOCAL MUNICIPALITY 1st Respondent
POWER OF GOD ASSEMBLIES 2nd Respondent
CORAM: DAWOOD ADJP , PAKATI J et MTSHABE AJ
JUDGMENT ON APPEAL
______________________________________________________________________________
PAKATI J
Introduction
[1] This is an appeal against the judgment of Mnguni J, on 24 August 2021,
which dismissed the appellant’s application seeking relief against the Mbizana
Local Municipality, and Power of God Assemblies, the first and second
respondents, respectively. Both respondents opposed the appeal.
[2] The following was the relief sought by the appellant:
“(a) A Declarator that the actions of the First Respondent in rez oning ERF 1[...] was unlawful
and in contravention of the Spatial Planning and Land Use Management Act No. 16 of 2023;
(b) Interdicting the First and / or the Second Respondents from utilising the property known as
ERF 1[...] Bizana, from any other purpose than as envisaged in the restrictive condition of the
title deed of the property which provides that, “ It shall be used only for the purpose of erecting
thereon one dwelling together with such outbuildings as are ordinarily required to be used
therewith;”
(c) T hat the First Respondent be ordered to compensate the Second Respondent for cost of
erecting the church building/structure at ERF 1[...] built pursuant to the First Respondent
rezoning ERF 1[...];
(d) That the First Respondent be ordered to demolish the building / structure at ERF 1[...] built
pursuant to the First Respondent rezoning ERF 1[...];
(e) That the First Respondent be ordered to pay the costs of this application on an attorney and
client scale;
(f) That the Second Respondent be ordered to pay costs of this Ap plication only in the event of it
unsuccessfully opposing this Application.
(g) Further and / or alternative relief.”
[3] Leave to appeal was granted by Rusi J on 11 October 2022, to the Full
Bench of this Division, Mthatha against paragraphs 1 and 2 of th e Judgment of
Mnguni J, which was handed down on 24 August 2021. The application before the
court a quo was as a result of the second respondent building a church on Erf 1[...]
(“the property”) without removal, suspension or amendment of the restrictions on
the title deed; the land not being rezoned and without changing the Land Map
Scheme of the Municipality. The restrictions did not allow the building of a church
on the property.
[4] It is worth mentioning at this early stage that when the appeal was heard Mr
Mapoma, who initially appeared for the appellants, advised that the second
appellant had since passed on. On 29 January 2025, Nkele Attorneys filed a notice
of withdrawal as the attorneys of record of the second appellant. Mr Mapoma
advised further that two executors of the second appellant’s estate did not instruct
the legal team of the second appellant and no substitution was prepared. Reference
shall accordingly be made to the first appellant as the appellant when setting out
facts, despite there being two applicants for the sake of convenience in keeping
with the factual position and the appeal is only being prosecuted by the first
appellant.
[5] Mr Mapoma advised that the appellant only pursued prayers (a) and (b) of
the notice of motion as prayers (c) and (d) dealing with compensation and
demolishing the building were not possible in the circumstances of this case.
Condonation
[6] Mr Mapoma applied for condonation of the late filing of the appellant’s
bundle in respect of the appeal which was supposed to have been filed on or before
02 February 2023 but were served on 16 February 2023 and filed on 17 February
2023, ten days later. In his affidavit, Mr Wanda Taliwe, an attorney on behalf of
the appellant, explained in an affidavit dated 07 December 2023, that after
judgment was granted by Mnguni J, the appellants were granted leave to appeal to
the Full Bench of this Division against the order of the court a quo on 11 October
2022. On 07 November 2022, the notice of appeal was served on the respondents’
legal representatives. The following day, 08 November 2022, Mr Taliwe visited the
Registrar’s office in preparation for the appeal bundles for the parties and
requested for the court file to be allocated a date for the hearing of the appeal. At
that stage, the file could not be located and was found only on 16 November 2022
at the typing pool. The file w as then taken to the appeals office for safekeeping.
Due to Mr Taliwe’s inexperience, he sought assistance from the Registrar for the
setting down of the appeal. On 16 February 2023, the appeal bundle was served on
the respondents and filed on 17 February 2023. The reason the appeal bundle was
served ten days late was because Mr Taliwe was busy with a two -day trial of
Tamsanqa Nkele v Road Accident Fund. On 02 and 03 February 2023 he attended
to default judgment matters which were set down on 08 February 20 23. On 09
February 2023, he dealt with opposed motion and served the appeal bundles on the
respondents on 16 February 2023. According to Mr Taliwe, the notice of appeal
was filed within the prescribed time limits and only the index bundle was filed out
of time.
[7] Mr Mapoma submitted that the respondents did not suffer prejudice and if it
was there, it was minimal. He added that the appellant has prospects of success in
the appeal.
[8] Mr Kunju, for the respondents argued that no proper application for
condonation was made and no full explanation was given. He argued further that
the delay was for a considerable period and unaccounted for.
[9] In Van Wyk v Unitas Hospital and Another1 the Constitutional Court held:
“[20] this court has held that the standard for considering an application for condonation is in the
interest of justice. Whether it is in the interest of justice to grant condonation depends on the
facts and circumstances of each case. Factors that are relevant to this enquiry include but are not
limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay
on the administration of justice and other litigants, the reasonableness of the explanation for the
1 2008 (2) SA 472 at para [20].
delay, the importance of the issue to be rais ed in the intended appeal and the prospects of
success.”
[10] In casu, the application for condonation is in the interests of justice, the facts
of this case will exhibit that. Mr Taliwe explained the delay and that part of the
delay was due to his inexperience. The litigants cannot be prejudiced by a delay of
ten days as submitted by Mr Mapoma. The issues to be raised in this appeal are of
importance and the appellants do have prospects of success. In my view
condonation ought to be granted.
Background facts
[11] The property is situated in a residential area and zoned as such in Upper
Winnie Madikizela Mandela Street. It shares a boundary that separates the property
being Northern boundary and 1[...]2, Southern boundary. This area is mostly
occupied by old people who treat their homes as their retirement homes. The
appellant, Ms Caroline Ntshebe, occupies Erf 1[...]2 and is the deponent to the
founding affidavit. The appellant asserted that the property, a vacant site, belonged
to Mr Vernon Melane (“the dec eased”) who since passed away. It was used as a
thoroughfare to access properties on Mathwebu Street which runs parallel Winnie
Madikizela Mandela Street. A three roomed structure was erected towards the
Western boundary of the property. It was leased to s ome people who moved out at
some stage and the deceased sold the property to the second respondent on 30
April 2014, in a deed of transfer number T[...]. As of 2015, the area was still zoned
for residential purposes. The title deed of the property c ontained certain restrictive
conditions namely:
“This erf shall be subject to the following further conditions provided especially that where, in
the opinion of the Administrator after consultation with the Municipality, it is expedient that the
restriction in any such condition should at any time be suspended or relaxed, he may authorise
the necessary suspension or relaxation subject to compliance with such conditions as he may
impose:
(a) It shall not be sub-divided;
(b) It shall be used only for the purpose of e recting thereon one dwelling together with such
outbuildings as are ordinarily required to be used therewith;
(c) Not more than half the area thereof shall be built upon
(d) “
[12] On 08 November 2022, the appellant filed a notice of appeal and listed the
grounds summarised as set out below in that the trial court erred in:
12.1 finding that it was the respondents’ uncontroverted evidence that the property
was rezoned pursuant to a valid decision taken on 24 June 2016, and that the title
deed was amended to refl ect the zoning, and the respondents did not produce a
council resolution confirming that the rezoning decision was made.
12.2 in finding that the advertisement in Pondo News was accompanied by a notice
to the affected parties, and that the applicants were served with the notices, when it
should have found to the contrary.
12.3 in failing to find that the title deed was not amended to reflect t he change in
zoning, when, to the contrary, the undisputed evidence was that the first
respondents Land Scheme Map on 6 th July 2018, still reflected the property as
zoned for residential purposes.
12.4 in finding that the appellant’s reliance on Section 4( 3) of Promotion of
Administrative Justice Act 2, and regulations 18(1) (b); 18(3) (a)(4) of PAJA was
misplaced as the application before it was not a review when to the contrary the
second respondent followed a process initiated by notice governed by Secti on 4(3)
of PAJA.
12.5 in finding that the averments made at paragraphs 51 and 73 of the founding
affidavit constituted concessions by the appellants that the property was rezoned,
when in fact the appellants were referring to a letter written by the first respondent
addressed to a Mr Ndimeni.
22 Act 3 of 2000.
12.6 in not disposing of all the issues in the application before it, whether there was
an actual decision to rezone the property, and whether the second respondent
complied with SPLUMA.
12.7 in finding that the appell ant ought to have exhausted other remedies before
approaching the court when the facts of the matter required that the appellants’
approach the court for a declarator.
12.8 in finding that the appellant did not elaborate in what manner the respondents
violated the various statutory provision whereas such violations were expressly set
out in the founding affidavit.
[13] On 26 May 2016, the second respondent submitted an application to the first
respondent to have the property rezoned from Special Residential to Institutional
Zone, to have it subdivided as well as the removal of certain title deeds restrictive
conditions. The application was prepared by ZVT Tepping and was carried out in
terms of SPLUMA and the Township Ordinance 33 of 1934. It was advertised in a
newspaper called Pondo News on 27 May 2016, accompanied by a notice to
affected parties having the same date. The notice conveyed the fact of the
application for rezoning and invited objections and queries. The notice was
distributed to the affected parties as marked on the zoning plan. Annexure B to the
first respondent’s answering affidavit served before the first respondent for
approval. The first respondent alleged that the notices which appeared on Annexure
B were delivered to 44 affected property owners. The approval of the application
dated 24 June 2016, was conveyed to the second respondent under cover of a letter
dated 28 June 2016. The requisite building plan approval was obtained by the
second respondent and the building of the church commenc ed. The second
respondent contended that it did all that it had to do and was assured by the first
respondent that the legal procedure was followed ensuring that a church could be
built on the site.
[14] During October 2017, the appellant observed that the re was a construction
that had commenced on the property. Upon investigating this, it came to their
knowledge that the structure that was being built was a church. They contacted the
first respondent and made enquiries. Ms Nobuhle Mafumbatha, the Senior
Manager of Development Planning of the first respondent, confirmed that the
church was indeed being built on the property as the property had been rezoned.
The appellant advised Ms Mafumbatha that they did not receive notices for the
proposed rezoning of Erf 1[...]. Ms Mafumbatha promised to investigate the matter
and revert to them, which did not happen. There was discontentment regarding the
rezoning amongst the property owners, the appellant and other rate payers.
[15] The first respondent convened another me eting on or about November 2017
which the appellant attended and enquired about the construction of the church on
the property without the neighbours’ consultation. Mr Mashaba of the first
respondent confirmed that a church was indeed being constructed and informed her
that the property had been rezoned. The appellant informed him that the notice was
not served on her by hand advising that the property was going to be rezoned and
restrictions would be relaxed. During this meeting, Messrs Mgqebane, owner of
Erf 1[...]4 and Mr Mpinda, Erf 1[...]5, advised that they were also not served with
the said notice. At this stage, Mr Valikho who chaired the meeting, advised that
another meeting would be arranged for further consultation and discussion of the
issue. The constru ction on the property was at foundation level, at the time. The
understanding was that the construction would be halted pending further
consultations. Shortly after the meeting, the construction stopped, and the appellant
and other neighbours laboured unde r the impression that the first respondent had
instructed the second respondent to stop the construction. In the meantime, Mr
Mpinda tried to arrange a meeting of the residents with the representatives of the
first respondent, which did not take place.
[16] During April/May 2018, the church construction resumed but no
consultation with the residents had taken place. Mr Mpinda had, on numerous
occasions, attempted to arrange a meeting with the first respondent as well as
contacting the Municipal Manager, Mr L Mahlaka, and the Mayor, Ms Daniswa
Mafumbatha, but that never materialised.
[17] The appellant, Mr Mpinda and the affected neighbours addressed a letter
dated 29 June 2028, to the Municipal Manager advising him that they had not been
consulted about the rezoning of the property. They requested the Municipal
Manager to furnish them with the procedure followed in rezoning the property to
confirm consultation. Amongst other things, the letter addressed to the Municipal
Manager recorded: “… We have consulted w ith the rate payers that stand to be
directly affected by this development and none of them seen (sic) to have any
knowledge of a rezoning and have never received any notice in this regard. We ask
your office to furnish us with an account of the process th at was followed in
rezoning this property, if it was indeed rezoned.”
[18] On 02 July 2018, the first respondent responded by addressed a letter to the
appellant confirming that the property was rezoned and that a notice in terms of the
Township Ordinance 33 of 1934 and Mbizana Spatial Planning and Land Use
Management By-law, was published in a newspaper called Pondo News on 27 May
2016. No objections were received from the property owners who would have been
affected. In this letter, the appellant was advi sed that if the objections were
received, that would not compel the first respondent to refuse to consider any land
use application submitted because approval solely depended on the desirability and
validity of the objection. The letter further invited the appellant to a meeting which
was to be held on 11 July 2018. Amongst others, the letter addressed to the
appellant and other neighbours recorded:
“… [A]pplication for the rezoning, removal or restrictions and subdivision of F 1[...], Bizana was
approved by the municipality. The application was submitted to the municipality and considered
as it was consistent with the municipal plans. The advert was published on Pondo News, on 27
May 2016 to allow for public participation. Notices were served to adjoining prop erty owners
inviting them to submit their objections if they were earning (sic)…”
[19] On 03 July 2018, Mr Maxwell Ndimande residing on Erf 1[...]3 addressed a
letter to the first respondent and registered his objections to the church construction
on the property. On 11 August 2018, the Ratepayers Association, a voluntary
association attended a meeting held at the offices of the first respondent between
the officials of the first and second respondents and registered their objections to
the rezoning of the property. The representatives of the second respondent had
expressed that it was for the first time that they learnt that there were objections to
their building of the church on the property and had they known before, they would
not have started with it. The ratepayers requested the second respondent to stop the
construction until the objections were finalised.
[20] A subsequent meeting was held on 11 July 2018, Mbizana Ratepayers’
Association at the offices of the first respondent with the respondents wh ere the
appellant and other residents registered their objections to the rezoning of Erf 1[...]
alleging that they had not been consulted. Ms Mafumbatha, the lady who chaired
the meeting, informed them that she convened the meeting as they had to discuss
how they were going to make it work having a church situated on Erf 1[...] because
the first respondent had already taken a decision. She informed the residents that
she was not there to discuss their objections. She apologized for having called the
second respon dent to the meeting. The representatives of the second respondent
intimated that they were unaware that the residents were objecting to the
construction of the church. Before they left, they enquired as to whether they
should continue with the construction . The residents requested them to stop the
construction pending the outcome of their objections. However, Ms Mafumbatha
directed that the construction should continue until further notice. At that moment,
the second respondent left the meeting. Ms Mafumbat ha informed the appellant
and other residents that she was not able to take a decision regarding their
objections on her own and would first consult with her superiors. She promised to
arrange a further meeting with the ratepayers and her superiors. A subs equent
meeting was held on 01 August 2018.
[21] This meeting was attended by the Mayor, Municipal Manager and the
ratepayers Association. When they raised their objection to the building of the
church on Erf 1[...], the mayor informed them that they should ex haust all avenues
before approaching court, which should be the last resort. She further informed the
ratepayers that rezoning was completed in 2012 as the ratepayers had consented to
it and the advertisement was done in 2016 in compliance with SPLUMA. In
response, the ratepayers demanded proof that they had consented to the rezoning,
which never happened. When the first respondent could not resolve the issue, the
ratepayers forwarded a letter to the first respondent which was delivered on 10
August 2018. Subsequently, a meeting was arranged to be held on 13 August 2018.
The representatives of the first respondent who were present at the meeting advised
that they had no knowledge of the issue regarding rezoning of Erf 1[...] and
attended the meeting to listen to the complaints of the ratepayers. In the meantime,
the second respondent was directed to continue with the construction as there was
no alternative vacant land, and the rezoning of Erf 1[...] would not change. The
subsequent meeting was not forthcoming. At that time, the appellant was under the
impression that a decision had been taken by the first respondent allowing the
second respondent to rezone the Erf. The rate payers advised that the subsequent
meeting could proceed only if the Mayor and the Municipal Manager were present
as they were present in the previous meeting.
[22] On 20 March 2019, the second respondent was served with the application
launched by the appellant seeking a declaratory order for the rezoning of the
property. The appellant alleged t hat the church building that was built on the
property was unlawful and in contravention of SPLUMA.3
[23] A deeds office search showed that no special condition or rezoning was
recorded by the Deeds Office regarding the property.
[24] The appellant denies that she was served with a notice by the first
respondent. She further denies that the rezoning of Erf 1[...] was displayed in the
first respondent’s website thereby contravening Section 21 of the Municipal
Systems Act 32 of 2000 4. Moreover, the Land Scheme displayed at the offices of
the first respondent still reflects that Erf 1[...] is a residential site.
[25] The appellant submitted that the Pondo News referred to by the first
respondent is not a distributed newspaper envisaged by law and is available at th e
front gate of the first respondent. It cannot be found anywhere else in Bizana and is
not a widely circulated newspaper and is not sold in the shops. They submit further
that the Pondo News did not comply with Section 4(3) of PAJA 5 as well as
Regulations 18(1) (b), 18(3) (a) and 18(4) (a) of PAJA.6
3 Act 16 of 2013.
4 Section 21 of the Municipal Systems Act 32 of 2000 provides: “21(1) When anything must be notified by a
municipality through the media to the local community in terms of this Act or any other applicable legislation, it
must be (a) in the local newspaper o f its area; (b) in a newspaper or newspaper circulating in its area and determined
by the council as a newspaper of record…”
5 Section 4(3) of Promotion of Administrative Justice Act 3 of 2000 (PAJA) provides: “(3) If an administrator
decides to follow a notice and comment procedure, the administrator must –
(a) Take appropriate steps to communicate the administrative action to those likely to be materially and
adversely affected by it and call for comments from them;
(b) Consider any comments received;
[26] Mr Ndimeni who resides at Erf 1[...]3 opposite Erf 1[...], informed the
appellant that he also informed the first respondent of his objection via a letter
dated 03 July 2018 and requested that it reviews its decision to consider the views
of the neighbours of Erf 1[...]. The following can be gleaned from Mr Ndimeni’s
letter:
“Mr Mahlaka, I was greatly shocked to wake up to a church structure mushrooming and rising up
amongst our residential ho uses, with us not informed, approached or approving. And as I write
workmen are busy on it today going ahead with construction despite Mrs Ntshebe and others
having approached your office sometime in November objecting… We strongly object the
construction of any church in the area… It is the municipality that is wrong…
What the municipality is doing is wrong and bad in law as it is stipulated clearly in your
municipal rules that no development of any king (sic) can be allowed to take place in an area
with residents having not been approached and approving... For this reason, we are putting the
blame upon you, Mr. Mahlaka as you should have ascertained yourself that all the rules or laid
down procedures have been followed up in letter and spirit, especially a fter Mrs Ntshebe and
others visited your office complaining… As it is now, the mere sight of these people going ahead
(c) Decide whether or not to take the administrative action, with or without changes; and
(d) Comply with the procedures - to be followed in connection with notice and comment procedures, as
prescribed.
6 Regulations 18(1) (b), 18(3) (a) and 18(4) (a) of PAJA respectively pro vide: 18(1) (b) if the administrative action
affects the rights of the public in a particular province only, in the Provincial Gazette of that province and a
newspaper which is distributed, or in newspapers which collectively are distributed, throughout th at province…
-18(3) (a) - A notice published in terms of subregulation (1) must—
-18(3) (a) - A notice published in terms of subregulation (1) must—
(a) contain sufficient information about the proposed administrative action to enable members of the public to
submit meaningful comments; and
-18(4) (a) of PAJA A notice pub lished in terms of subregulation (1)(a) and (b) in a newspaper may,
notwithstanding the provisions of subregulations (2) and (3), only contain—
(a) a concise statement of the proposed administrative action.
with the structure; with the municipality remaining mum and unmoved by our objections is
indicative of a municipality that is undermining us. …
For that reason, it is your office that must direct that construction on the site is halted forthwith
until the matter is attended and finalized…Further, no one can exclude any possibility that one
may even escalate this to higher levels of government AND/OR even take this matter to court for
that matter.”
[27] Despite continuous requests, the appellant asserted that the first respondent
failed to provide information relating to the rezoning process. The appellant
requested the court to invoke Section 5 of the Promotion of Administrative Justice
Act and find that the administrative decision taken by the first respondent was
taken without good reason and therefore unlawful. The appellant alleged that
information relating to the removal of restrictions f rom the title deeds should be
kept by the first respondent and be accessible to the public in compliance with
Section 31 of Spatial Planning and Land Use Management Act (“SPLUMA”)7. She
alleged further that Section 28 (2) of SPLUMA 8 which states that whe re a
municipality intends to amend its land use scheme in terms of subsection (1), a
public participation process must be undertaken to ensure that all affected parties
could make representation on, object to and appeal the decision. The appellant
7 Section 31 of SPLUMA provides: “31 Record of amendments to land use scheme
(1) The municipality must keep and maintain a written record of all applications submitted and the reasons for
decisions in respect of such applications for the amendment of its land use scheme.
(2) The written record referred to in subsection (1) must be accessible to members of the public during normal office
hours at the municipality's publicly accessible office.”
8 Section 28 (2) of SPLUMA 16 of 2013.
stated t hat the first respondent did not comply with this provision. She stated
further that there was no reason why the first respondent did not advertise in a
widely circulated newspaper like the Daily Dispatch, as it has done in the past. The
first respondent c annot claim compliance with this provision because the Pondo
News is not widely distributed and easily accessible as the appellant did not see the
notice publishing the rezoning application. That is because one could find it at the
gate and premises of the municipality and some government departments. Initially,
the first respondent advertised in the Daily Dispatch, a newspaper which is widely
circulated and could be found in most retail shops. The appellant asserted that
previously the normal practice by t he first respondent would be to hand deliver
notices relating to rezoning or subdivision of properties to the residents’ premises.
In this instance, the first respondent did not take reasonable steps to ensure that the
notice was widely circulated and therefore failed to notify the residents who would
be adversely affected by the rezoning of Erf 1[...].
[28] The appellant asserted that the second respondent gathers for worship on Erf
1[...], approximately 30 metres from Erf 1[...]2 the appellant’s house. In conducting
their services, they use sound amplifying audio equipment that enhances the sound.
Neighbours especially the appellant, could hear the services at night during
weekdays. The noise is unbearable. She has been residing in this house since 1985
when her h usband was still alive. This still is the home of her children and
grandchildren. She alleged that if Erf 1[...] were to be rezoned, that would be
tantamount to ‘ condemning me and my neighbours to spend the rest of the years
having to be subjected to the loud audio of the second respondent’ services.
[29] The appellant contended that the first respondent’s decision to rezone Erf
1[...] caused animosity between the congregants and the residents close to the
church as they would have to complain each time there is non-compliance affecting
their rights. The appellant contended further that the first respondent does not have
a general policy and guideline for adoption and amendment of its land use scheme.
She alleged that the first respondent acted unlawfully and in contravention of
various sections of SPLUMA as follows:
29.1 Section 7(a) (vi) which provides that a Municipal Planning Tribunal should
consider applications before it for removal of restrictions in the exercise of its
discretion solely on the ground that the value of land or property is affected by the
outcome of the application; Section 7(e) (iii) states that the requirements of any
law relating to land use are met timeously; 7(e) (iv) provides that the preparation
and amendment of spatial plans, policie s, land use schemes as well as procedures
for development applications, include transparent processes of public participation
that afford all parties the opportunity to provide inputs on matters affecting them.
29.2 Section 20 and 21
S 20(1) - The Municipal Council of a municipality must by notice in the Provincial
Gazette adopt a Municipal Spatial Development Framework for the municipality;
and
S 21 – A Municipal Spatial Development Framework must – (a) give effect to the
development principles and applicable norms and standards set out in Chapter 2.
Section 35 – (1) A municipality must, in order to determine land use and
development applications within its municipal area, establish a Municipal Planning
Tribunal.
29.3 Section 40 – (1) A Municipal Planning Tribunal may designate at least three
members of the Tribunal to hear, consider and decide a matter which comes before
it.
29.4 Section 42(1) (c) – (1) In considering and deciding an application a Municipal
Planning Tribunal must –
(c) take into account –
(i) the public interest;
(ii) the constitutional transformation imperatives and the related duties of the State;
(iii) the facts and circumstances relevant to the application;
(iv) the respective rights and obligations of all those affected;
(v) the state and impact of engineering services, social infrastructure and open
space requirements; and
(vi) any factor that may be prescribed, including timeframes for making decisions.
29.5 Section 47(1) – A restrictive condition may, with the approval of a Municipal
Planning Tribunal and in the prescribed manner, be removed, amended or
suspended. Paragraph 91 in the founding affidavit referring to non -compliance
with the various SPLUMA provisions by the first respondent was admitted in
paragraph 63 of the answering affidavit.
[30] The appellant contended that the first respondent did not have such Tribunal
and did not categorise development applications to be considered by an official at
the time the second respondent made its application, and it did n ot provide the
appellant with the record of their decision, if it existed. If the decision was taken by
the council, no council resolution was placed before the trial Court. Section 26(2)
was also ignored by the first respondent by allowing the second respondent to build
a church on Erf 1[...] which is not permitted by the land use scheme.
[31] The appellant claimed to have a clear right as a ratepayer and registered
property owner who shares boundaries with Erf 1[...]. The first respondent could
not be allowed t o interfere with their rights as members of the public and as
property owners, as they stand to suffer harm and prejudice. They asserted that that
there was no other remedy available to them. Their efforts to engage with the first
respondent had fallen on deaf ears because the first respondent kept instructing the
second respondent to continue building the church although they had failed to
follow the proper procedure. The appellant stated that they had no option but to
approach the court.
The version of the first respondent
[32] The first respondent denied the appellant’s allegation that the rezoning of Erf
1[...] was unlawful and in contravention of the provisions of SPLUMA. It
contended that the appellant’s allegation is incomplete and incorrect in that even if
the declarator sought by the appellant would be granted, the present zoning of Erf
1[...] permitting the use of building a church by the second respondent, would be
unaffected because the rezoning decision was not challenged or attacked. The first
respondent alleged further that the appellant should have exhausted all internal
processes by firstly lodging an appeal with the appeal authority of the first
respondent in terms of regulation 20 of the Spatial Planning and Land Use
Management Regulations; Land U se Management and General Matters, 2015, 9
read with Section 51(1) and 51(6) of SPLUMA, within 21 days after becoming
aware of the decision to rezone the property before instituting these proceedings.
9 GN R239, GG 38594, 23 March 2015.
[33] The first respondent contended that the applicat ion for the rezoning of Erf
1[...] from special residential to institutional, the subdivision thereof as well as the
removal of certain title deed restrictions, was received during May 2016. The
application was prepared by ZVT Tepping. The application include d a copy of the
advertisement for publication in the local newspaper called Pondo News on 27
May 2016. The second respondent’s application was approved under cover of a
letter dated 28 June 2016. The requisite plan approval was obtained by the second
respondent and construction commenced.
[34] On 15 December 2017, the first respondent and the ratepayers held a
meeting where the rezoning was discussed. The appellant had attended the
meeting. The first respondent explained to those that attended the meeting t hat Erf
1[...] had been rezoned pursuant to a rezoning application by the second
respondent. The appellant addressed a letter dated 29 June 2018, to the first
respondent complaining that they had not been served with any notice regarding
rezoning of Erf 1[...] to place their comments regarding the proposed construction
of the church. They requested the first respondent to furnish them with the process
that was followed in rezoning the property. In reply, the first respondent sent a
letter to the appellant setting out the process followed in rezoning the property.
Further, two meetings were held on 11 July 2018 and 13 August 2018, between
representatives of the first respondent and the ratepayers. The first respondent
contended that it sought to accommodate the fea rs expressed by the ratepayers
without stating what it meant. It contended further that the basis upon which this
matter has been brought to court was incorrect. It alleged that the structure
presently under construction on the property was as per the appr oved plans and in
accordance with the current zoning of the property. It alleged further that the Land
Scheme that still reflects that the property is a residential site is not the current
Land Scheme without detailing what the current Land Scheme is. The first
respondent denied that the Pondo News was not a distributed newspaper as
envisaged in law. It denied further that it did not have the By -laws requested from
it by Mr Mngoma.
The findings of the trial court
[35] The trial court dealt with two points in limine raised by the respondents
namely, that the rezoning decision had not been attacked. In dealing with this point,
the court a quo found:
“The respondents’ uncontroverted evidence is that the property was rezoned pursuant to a
decision taken on 24 J une 2016, and that as a consequence to that decision, the title deed was
amended to reflect the change in the zoning. As correctly observed by respondents’ counsel, the
first applicants’ founding affidavit carries an important concession that the property had in fact
been rezoned.”
[36] Regarding the second point in limine, the respondents alleged that the
appellant should have exhausted internal processes by firstly lodging an appeal
with the appeal authority of the first respondent in terms of regulation 20 of the
Spatial Planning and Land Use Management and General Matters, 2015, read with
Section 51(1) and 51(6) of SPLUMA, within 21 days after becoming aware of the
decision to rezone the property before instituting these proceedings, as alluded. In
this regard, the court a quo stated:
“[33] Accepting that the application was submitted on 26th May 2016, the authorised official
approved the application on 24 June 2016 and that the second respondent was advised that the
application was approved by way of a letter dated 28 June 2016, it wou ld seem to me that by
November 2017 or 15 December 2017 (at the time the first respondent explained to the
applicants that the property had been rezoned pursuant to the rezoning application) the horse had
already bolted and left the stable. It would not have been possible for the applicants to bring their
case within section 51(1) of SPLUMA because the appeal process can only be activated within
21 days of notification of the decision. However, even though the applicants could not utilise the
provisions of SPLUMA, there is no indication on the papers that the applicants sought to invoke
the provisions of PAJA. The second point in limine is accordingly upheld. Even were it to be
found that I am wrong in this regard, there are more compelling reasons why this application
should fail.”
On appeal
[37] Mr Mapoma, for the appellant, argued that the application to remove the
restriction on the property was not made in terms of SPLUMA. He argued further
that the application for rezoning which included a copy of the a dvertisement for
publication in the alleged local newspaper called Pondo News was not
accompanied by a notice to the affected parties.
[38] Mr Mapoma contended that there is no record of any decision taken by the
first respondent to rezone Erf 1[...]. He adde d that there is no indication that the
restrictive condition was removed, amended or suspended. He contended further
that any person who purported to remove, amend or suspend the restrictive
condition acted ultra vires and his/her/its actions have no effec t in law. He stated
that factually, the restrictive condition was not removed, amended or suspended.
He stated further hat the title deed did not reflect any change in the zoning of the
property. He contended that no actual resolution was annexed that show ed that a
decision had been taken. Mr Mapoma contended further that the appellant could
only approach court by way of a declarator and not after exhausting other
remedies, which were not detailed.
[39] Regarding mootness, Mr Mapoma argued that despite the mootness of the
interdict relief sought in the notice of motion, the failure by the first respondent to
comply with the provisions of SPLUMA is of public importance and in the
interests of certainty which can only be given if the matter goes on appeal. He
added that the first respondent should not have decided the application on the
provisions of SPLUMA when the application was made in terms of non -applicable
law. For this assertion, he relied on Sigcau v President of the Republic of South
Africa10 where the Court held:
“[24] The implementation of the Commission's decisions under the old Act could thus not be
done under the provisions of the new Act. In argument it was suggested that reference to the
provisions of the new Act in the notice was a mistake. Th e problem was this, however, is that
nowhere in the papers does the President say that it was a mistake.
[27] Because of the material differences between the old Act and the new Act, some of which
have been highlighted, it cannot be said that a notice issu ed under the new Act can be taken to
have been issued under the old Act. In any event such an argument would be inconsistent with
the decision of this court in Harris.
[28] The notice must be set aside. The President purported to exercise powers not confer red on
him by the provisions of the old Act.”
[40] Mr Kunju, on behalf of the respondents, submitted that the interdict sought
in paragraph (b) of the notice of motion is moot because the second respondent
uses the premises for different purposes than the one desired by the appellant. That
is because an interdict is not a remedy for past invasion but to protect against
present and future violation of rights. He added that the rezoning of the property
was done; a building plan was drawn and approved; the app roved structure was
10 2013 (9) BCLR 1091 (CC) at para 24; 27-28.
built; and is currently used for church purposes. He relied on Rusi J’s judgment on
the application for leave to appeal when she held:11
“[38] From the affidavit filed by the second respondent, the fact that the prohibitory interdict
relief sought in the notice of motion has become moot is self-evident.”
[41] Mr Kunju added that at paragraph 40 of her judgment, Rusi J remarked:
“[40] Having considered the application for leave to appeal, and after hearing submissions by
both counsel, I am persuaded that despite the mootness of the prohibitory interdict relief sought
in the notice of motion, there is a discrete question of law which requires a decision of the court
of appeal.”
[42] Mr Kunju argued that neither the interdict nor declarator can succeed where
the issue relates to what had already taken place. For this assertion, he relied on
Section 21(1) of the Superior Practice Act 12 and Rumbu v Mareka and Others 13
where Tokota J stated:
“[19] A declarator is an order by which a dispute over the existence of some legal right or
entitlement is resolved. The right can be existing, prospective or contingent. A declaratory order
need have no claim for specific relief attached to it, but it would not ordinarily be appropriate
where one is dealing with events which occurred in the past. Such events, if they gave rise to a
11 At para [38].
12Section 21(1) of the Superior Courts Act 10 of 2013 provides:”(1) A Division has jurisdiction over all persons
residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all
other matters of which it may according to law take cognisance, and has the power – (a) to hear and determine
appeals from all Magistrates Court within each they are of jurisdiction; (b) to review the proceedings of all such
courts; (c) in its discretion, and at the instance of any interested person, to enquire into and determine any existing,
future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon
the determination.”
13 (239/16) [2017] ZAECBHC 16 (14 November 2017) at para 19.
cause of action, would entitle the litigant to an appropriate remedy. In this case there is no legal
basis upon which the declaratory order in favour of the applicant can be made.”
[43] Regarding how a moot point is dealt with, Mr Kunju relied on Pioneer
Foods Pty (Ltd) v Eskom Holdings SOC Limited & Others 14 where the Court
stated:
“[16] Viewed in light of the above, the appeal has become moot, and it must there fore be
dismissed on this basis alone in terms of s 16(2) (a) (i) of the Superior Courts Act. However, this
Court has a discretion to enter into the merits of an appeal, notwithstanding the mootness of the
issue as between the parties when a ‘discrete lega l issue of public importance arose that would
affect matters in the future’ and on which adjudication of this Court is required. In the present
case, no such issue arises. For all these reasons, the appeal was dismissed.”
[44] A further submission by Mr Ku nju was that the first respondent’s decision
regarding rezoning of the property stands in the absence of an order setting it aside.
Therefore, its legal consequences stand. He stated that there is nothing compelling
in this matter to hear a moot point. According to him, the court procedure followed
is incorrect because the appellant employed a declarator instead of review and the
process followed would not assist its determination.
[45] Mr Kunju submitted that the decision to remove the restrictive conditio n on
the title deed gave effect to the actions of rezoning. For this assertion, he relied on
14 (325/2021) (2022) ZASCA 171 (1 December 2022) at paragraph 16.
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 15 He submitted
further that the restrictions were removed, and rezoning had occurred before the
church w as built and such processes were not challenged. He insisted that the
rezoning brought about the upliftment of the restrictions.
[46] Despite mootness raised by the respondents, the issue on appeal was whether
the respondents complied with SPLUMA and whet her in fact there was a valid
decision taken by the first respondent to rezone the property, which decision ought
to have been reviewed.
Whether the matter is moot
[47] A case is moot when there is no longer a live dispute or controversy between
the parties which would be practically affected in one way or another by a court’s
decision or which would be resolved by a court’s decision. A case is also moot
when a court’s decision would be of academic interest only. 16 The interdict sought
in prayer (b) of the notice of motion is not only a remedy for the past invasion. It
seeks to prevent the first respondent from doing as it pleases and, in the process,
affect the rights of property owners adversely and materially while performing its
administrative duties. It has a duty to act lawfully, reasonably and procedurally fair
as contemplated in Section 33 of the Constitution. This matter deals with a discrete
152004 (6) SA 222 (SCA).
16 Minister of Tourism v AfriForum NPC and Another [2023] ZACC7 para 23.
issue of public importance which would affect matters in the future on which the
adjudication of this court i s required. The first respondent has flouted statutory
provisions of SPLUMA and has admitted that. The fact that the restrictions have
not been upliftment and rezoning of the property did not take place, the matter is
still a live issue irrespective of whe ther the building plans were drawn and
approved; the so -called approved structure was built and is currently used as a
church. What is important is that the issue regarding failure to comply with the
SPLUMA provisions is a live issue for determination by this court. In my view, the
judgment on appeal will not be academic as the merits of this case are not moot.
Whether the Municipality took a valid decision
[48] In paragraph 20 of the answering affidavit of the first respondent deposed to
by Mr Mahlaka, th e then Municipal Manager, states that the application received
favourable consideration and the application was so approved as apparent from
Annexure “B”. Section 35(1) of SPLUMA provides that a municipality must, in
order to determine land use and develop ment applications within its municipal
area, establish a Municipal Planning Tribunal. What is uncontroverted is that the
first respondent did not have a Municipal Planning Tribunal. I say so because in
paragraph 18 of the answering affidavit the first resp ondent averred that Annexure
“B” served before the first respondent for purposes of approval and ‘ was submitted
to the authorised official for eventual approval. ’ This is blatant non -compliance
----
with Section 35(1) of SPLUMA. In Fedsure Life Assurance v Grea ter
Johannesburg Transitional Metropolitan Council and Others17 the CC remarked:
“[58] I t seems central to the conception of our constitutional order that the legislature and
executive in every sphere are constrained by the principle that they may exercise no power and
perform no function beyond that conferred upon them by law. At least in this sense, then, the
principle of legality is implied within the terms of the interim Constitution. Whether the principle
of the rule of law has greater content than the principle of legality is not necessary for us to
decide here. We need merely hold that fundamental to the interim Constitution is a principle of
legality full stop.”
[49] There was therefore no valid/eventual approval by the authorised official
because clearly, there was no Municipal Planning Tribunal. His approval has no
force or effect. That brings me to the next issue.
[50] Considering the first respondent’s purported approval thereby permitting the
second respondent to build a church, the secon d respondent failed to remove the
restrictions on the title deed of Erf 1[...]. The consent given to the second
respondent by the first respondent does not translate into a removal, amendment or
suspension of the restrictions. The second respondent had a duty to do so. Put
differently, the alleged consent of the first respondent cannot absolve the second
respondent from taking the necessary legal steps to have the restriction on the
property removed, suspended or amended accordingly.
17 1999 (1) SA 374 CC at para 58.
[51] I restate what the trial court found in paragraph 33 of its judgment:
“[33] Accepting that the application was submitted on 26 May 2016, the authorised official
approved the application on 24 June 2016 and that the second respondent was advised that the
application was approve d by way of a letter dated 28 June 2016, it would seem to me that by
November 2017 or 15 December 2017 (at the time the first respondent explained to the
applicants that the property had been rezoned pursuant to the rezoning application) the horse had
already bolted and left the stable.”
[52] The first respondent as an organ of state, had an obligation to rezone the
property on its Land Scheme Map which still reflected as being zoned for
residential use. As far as the second respondent is concerned, the pur ported
conditional approval to build the church, which decision is dated 24 June 2016,
granted by the authorised official had several conditions to be fulfilled, in
particular the removal of the restriction was conditional upon the second
respondent comply ing with Section 70(1) of the Mbizana Spatial Planning and
Land Use Management Act By -Law by requiring an application by the second
respondent to the Deeds Registrar. Therefore, compliance also in terms of Section
47(5) of SPLUMA18. What is clear is that t he second respondent failed to apply to
18 Section 47 of SPLUMA provides that: “47(1) A restrictive condition may, with the approval of the Municipal
Planning Tribunal and in the prescribed manner, be removed, amended or suspended. (2) A removal, amendment or
suspension of a restrictive condition c ontemplated in subsection (1) must, in the absence of the contemplated written
consent, be effected –(a) In accordance with section 25 of the Constitution and this Act: (b) With due regard to the
the Deeds Registrar for the removal of the restrictions on the title deed. This means
that the church was built in defiance and contrary to the conditions of the purported
approval by the first respondent. That is because the Deeds Registrar did not record
any removal, suspension or amendment of the restriction in the prescribed manner.
Mere consent by the first respondent did not automatically rezone the land on
which the property is situated, nor did it automaticall y remove the restrictions on
the title deed. Such a finding did not exonerate the second respondent from
complying with his obligation. In my view, the court a quo committed a
misdirection in this regard.
[53] The application by the second respondent to the first respondent prepared by
ZVT Tepping for the rezoning, is dated 05 December 2016. The strange feature
about this is that the purported approval was 24 June 2016. How is it that the
application was approved before it was prepared. This is impossible and there is no
explanation for it.
respective rights of all those affected, and to the public i nterest; and (c) In the prescribed manner, If such removal,
amendment or suspension will deprive any person of property as contemplated in section 25 of the Constitution.
…(5) An applicant at whose instance a restrictive condition is removed, amended or su spended in terms of this Act,
must, within the prescribed period and in the prescribed manner, apply to the Registrar of Deeds concerned for the
appropriate recording of such removal;, amendment or suspension, and the Registrar of Deeds must in the prescri bed
manner record such removal, amendment or suspension.”
[54] The submission for the application to rezone, sub -divide and remove the
restriction on the property to the Executive Committee for consideration was dated
09 November 2018, two years five months afte r the purported approval. The
submission to the Executive Committee proposed an action plan for the
administration to process the application according to applicable laws and
procedures. The relevant question is, if the application was to be processed as of 09
November 2018, how is it that the first respondent alleged that the said application
was approved on 24 June 2016. This is strange.
[55] The appellant insisted that she was not served with the notices pertaining to
the building of the church on the pr operty. The respondents, on the other hand,
alleged that the notices were distributed to the affected parties and annexed as
Annexure “F” and the copies were delivered to 44 affected property owners. When
responding to the appellant’s denial that no notice was served on her which invited
the respondents to provide proof, they said in paragraph 46 of the answering
affidavit: “As indicated above, the properties who received the notices as per
Annexure “E” hereto are those indicated on Annexure “F”. However, when one
looks at Annexure “F” to the answering affidavit where there are Xs on the zoning
plan as proof of delivery, there are 33 Xs and not 44 as indicated by the
respondents. Moreover, there is no proof that the appellant was served with the
notice. It i s also not stated who served the notices; the date of service; how they
were served; and who received same. It only shows “March 2016”. In my view,
Annexure “F” is defective, and no reliance can be placed on it as proof of delivery.
This exhibits non-compliance with Section 4(3) of PAJA.
[56] It is worth mentioning that in the memorandum dated 09 November 2018, to
the Executive Council states that comments received by the first respondent were
null and void because the affected parties failed to raise their objections within the
period set aside for objections. This is, despite the fact that on the notice nothing
states that written objections received after the period set for objections would be
null and void.
[57] The advertisement which appeared in the Po ndo News on 27 May 2016,
stated that the written objections must be lodged in writing to the Municipal
Manager within 30 days of the notice. However, the dates between 27 May 2016 to
24 June 2016 fall short of 30 days because 24 June 2016 was before the ex piry of
the advertisement on 26 June 2016, stated in the notice.
[58] The appellant alleged that in the past whenever there was a notice that
related to rezoning or sub-division of properties, the first respondent set a standard
and it has been normal prac tise in Bizana that notices would be hand delivered to
the property owners, eg “CNN 11” attached to the founding affidavit. The
Integrated Development Plan of the Municipality’s Tarriff Structure prescribes
rates for advertising in the Daily Dispatch (“CNN 10” attached to the founding
affidavit) and the Government Gazette and not the Pondo News. The first
respondent stated that the Pondo News received the broadest circulation in the
Mbizana Area. They do not deny that the Daily Dispatch also circulated in t he area
but that it did not enjoy an extensive distribution. Its reason for not advertising
through the Daily Dispatch is that it sought to avoid placing any advertisement in
the Daily Dispatch and relied on the effectiveness of the Pondo News. It is just the
say so of the first respondent. The relevant question is why the Integrated
Development Plan of the Municipality’s Tarriff Structure prescribed rates for
advertising in the Daily Dispatch and the Government Gazette and not the Pondo
News? This is not e xplained. It is undisputed that SPLUMA and the By -laws
promulgated on 04 March 2016, were the applicable law at the time the application
was made. It is also undisputed that the decision to conditionally approve the
application was made in terms of SPLUMA. If the first respondent decided the
application in terms of non -applicable legislation, it should not have decided the
application using the SPLUMA provisions.
[59] For the reasons stated above, the trial court committed a misdirection when
it found that the decision to rezone was not attacked and remained valid until set
aside. I say this because there is nowhere that shows that a decision was taken.
That is because the Land Scheme Map still reflects that the property is zoned for
residential use. In Spilhaus Property Holdings (Pty) Ltd and Others v Mobile
Telephone Networks (Pty) Ltd and Another19 the Constitutional Court unanimously
remarked:
“[24] It is now settled in our law that a zoning scheme is passed in the interests of the property
owners who hol d property in the area where the scheme applies. The present applicants, being
owners of units in a sectional title scheme to which the relevant zoning scheme applies, are
entitled to institute proceedings to enforce the zoning scheme unless section 41 of the Act
precludes them from doing so.”
[60] In paragraph [40] of the trial court’s judgment, the following records:
“[40] With regard to the complaint relating to the violation of s 4(3) of PAJA and regs 18(1) (b),
18)3) (a) and 18(4) (a) of the PAJA Regul ations, it is opposite to record that these proceedings
are not a review application. Consequently, the reliance of this section and regulations is
misplaced.”
[61] In paragraphs 37, 38, 49 and 50 of Spilhaus supra, the Constitutional Court
added:
“[37] The notion of two claims arising from the common facts is well known in our law. For
example, the same set of facts may give rise to separate claims, one in contract and the other in
delict. But sometimes the common facts may sustain separate statutory claim s. Facts on the
termination of the contract of employment may result in a labour relations claim sourced from
19 2019 (4) SA 406 (CC) at para [24].
the Labor Relations Act, or an administrative law claim based on the Promotion of
Administrative Justice Act…
[38] The concept of separate claims arising from the common facts was also recognized by
this court in Gcaba. It is up to a litigant to whom both claims are available to choose which one
to pursue. Once a claim has been selected and advanced in pleadings before a competent court,
that court is under a duty to adjudicate the claim. The court may not dismiss the pleaded claim on
the ground that another claim arises from the same facts, which can only be pursued by a
different party. In Gcaba this court stated:
‘[The pleadings] contain the legal basis of the claim under which the applicant has chosen to
invoke the court's competence. While the pleadings - including in motion proceedings, not only
the formal terminology of the notice of motion, but also the contents of the supporting affidavits
- must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the
court to say that the facts asserted by the applicant would also sustain another claim, cognisable
in another court.’
…
[49] Here it is common cause that t he relevant zoning scheme was not followed. The applicants
in whose interest the zoning scheme was passed have the right to enforce it. It is this right which
underpins the relief sought. In matters like the present, it is not necessary for the applicants to
show that they have suffered special damages. Their standing flows from the fact that the
conduct complained of is prohibited in the interests of the applicants.
[50] In matters such as this where there has been non -compliance with the zoning scheme,
interdictory relief sought is usually granted…”
[62] The above means that the fact that the appellant relied on, amongst others,
PAJA, does not justify the dismissal of the application. The first respondent should
have followed legal prescribed steps in terms of Sections 26(1), 2, (4); and 28(1),
(2) (4) of SPLUMA. In Nelson Mandela Bay Metropolitan Municipality v Harlech
– Jones NO20 Roberson J remarked:
“[8] I do not think the comparison is of assistance in interpreting the restrictive condition. There
is no prescribed wording for restrictive conditions rel ating to residential use. What is significant
is that not only is the word ‘dwelling’ contained in the restrictive condition but also the word
‘used’. This relates to the use of the property. It is the only reference to use of the property in the
conditions contained in the deed of transfer. If one looks at examples of restrictive conditions in
title deed, some reference is usually made to purpose for which the particular property may be
used, eg. For residential purposes, for shop purposes, for a garage se rvice site, for industrial
purposes, etc. The word ‘used’ in conjunction with the word ‘dwelling’ contained in the
restrictive condition therefore, in my view, leads to an interpretation that the property was to be
used for residential purposes, and the op eration of the restaurant is therefore a breach of the
restrictive condition.”
[63] In paragraph 2 of a letter written by Mr L Mahlaka dated 02 July 2018, he
stated:
“No objections were received from the adjoining property owners that were identified to be
affected. Even if the objections were received, that do not compel the municipality not to
consider any land use application submitted, as such, approval solely depend on the desirability
20 [2010] ZAECPEHC 2 (28 January 2010) at para 8.
and validity to of the objection thereof . The church is allowed wit hin the residential area in a
case of a land use change subject to the desirability of the application and is considered through
the consent use or rezoning application in a residential zoned land, unless the land is zoned
institutional, where church is the primary use.”
[64] The above cannot be correct considering the facts of this case. It is common
cause that the Land Use Scheme remained unchanged, and the restrictions were not
removed. Where there is a conflict between a plan to regulate land use and a
condition of title, the following principles apply:
(i) There is no automatic removal of a title deed restriction.
(ii) A consent given by a municipality in conflict with a condition in a title deed is
of no force and effect. This kind of restrictive condi tion takes precedence over the
municipality’s zoning and planning schemes. 21 Generally, this flows from their
character as praedal servitudes in favour of other erf holders. Consequently, any
possible permission by the municipality to build or use building contrary to the
conditions cannot be lawful; and furthermore, a municipality cannot, in deciding
whether or not to approve a rezoning application, ignore the rights conferred by a
restrictive condition; or refuse to consider objections from such right hol ders
because from a town planning view it is desirable to approve the restriction.22
21 Van Rensberg NO v Nelson Mandela Metropolitan Municipality 2008 (2) SA ECLD at paras 7 to 8.
22 Naidoo NNO v Van Rensburg NO 2011 (4) SA 149 (SCA) at para [37].
(iii) A municipality must refuse a building plan in conflict with a title deed
condition.23
(iv) A subsequent town planning scheme does not override the conditions of title
where there is a conflict between the two. Moreover, a consent by a local authority
in terms of a town planning scheme does not authorise the user of an erf to use it
contrary to its registered title conditions.
(v) Before an owner (the second respondent in this case) can implement or take
advantage of the terms of the town planning scheme he or she must remove any
legal impediment which may exist. This is so because a consent given by a local
authority to use property given in terms of a town planning scheme does not entitle
the owner to use the property for the purposes for which that consent was given. In
terms of the scheme itself, that consent may be worthless to the owner by virtue of
the restrictions which exist in the title deed.24
[65] It is undisputed that the restrictive condition referred to in this case favours
the appellant, who in my view, has a clear right. In Edrei Investments 9 (in
Liquidation) v Dis -Chem Pharmacies (Pty) Ltd 25 the Court as per Eksteen J held
that the wor d ‘clear’ in ‘ clear right’ relates to the degree of proof required to
23 Shell SA (Pty) Ltd v Alexene Investments (Pty) Ltd 1980 (1) SA 683 (W) at 689H.
24 Enslin v Vereeniging Town Council 1976 (3) SA 443 (T) at 447A-D.
25 2012 (2) SA 553 (ECP) at 556B-C.
establish the right and should strictly not be used to qualify the right at all.
Considering the facts of this case, the appellant has established that she has a clear
right.
[66] I have already dealt with the fact that no decision was taken by the first
respondent on 24 June 2016 and the property had not been rezoned. Paragraphs 51
and 73 of the founding affidavit, upon which the respondents place their reliance in
alleging that a conces sion had been made by the appellant that the property had
been rezoned read:
“[51] Mr Ndimeni who resides at ERF 1[...]3 which is across the street from ERF 1[...] also
advised me that he had sent correspondence to the First Respondent as well, also voicing out h is
objection and requesting the First Respondent to review its decision and to consider the rights of
the neighbours of ERF1[...]. A copy of which letter, dated 3 July 2018 (and received by the First
Respondent on the same day), is attached here to marked Annexture CNN 7.
73. Despite the continuous request for information, as set out above in this affidavit, the First
Respondent has failed to provide us with the information. In this regard, and in terms of Section
5 of PAJA the Honourable Court must find that the administrative decision taken by the First
Respondent was taken without good reason and therefore unlawful.”
[67] In my view, the trial court misdirected itself when it found that ‘evidence is
that the property was rezoned pursuant to a decision taken on 24 June 2016 .’
Rezoning is complete when gazetted.
[68] The trial court also misdirected itself when it found that the alleged
contraventions of PAJA and its regulations only apply to review application and
therefore the appellant should have approached this matter by way of review. I say
so because the preamble to PAJA states that the purpose of PAJA is; (i) to provide
for the review of administrative action by a court or, where appropriate, an
independent and impartial tribunal; (ii) impose a duty on the state to give effect to
those rights; and (iii) promote an efficient administration action; … promote an
efficient administration and good governance; and create a culture of
accountability, openness and transparency in the public administrati on or in the
exercise of a public power or the performance of a public function by giving effect
to the right to just administrative action. These purposes of PAJA are clearly
independent of the other and therefore PAJA was not created/meant for only
reviews.
[69] In its answering affidavit, the first respondent asserted that the appellant
ignored the appeal procedure as contemplated in Section 51 of SPLUMA. Section
51(1) of SPLUMA provides that a person whose rights are affected by a decision
taken by a Municipal Planning Tribunal may appeal against that decision by giving
written notice of the appeal and reasons to the municipal manager within 21 days
of the date of notification of the decision. Notification was supposed to have been
made in terms of secti on 25(2) of the Municipal Regulations/By law, by
notification in the Government Gazette, when such a decision would have become
effective. Since there was no such notification, there was no effective decision to
appeal against by the appellant. This clearl y shows that there was no other remedy
available to the appellant.
[70] The allegation by the appellant was that the first respondent failed to comply
with various provisions of SPLUMA as indicated earlier and this allegation was
not disputed by the first respondent in paragraph 63 of the answering affidavit.
Evidently, the injury was committed or reasonably apprehended. In paragraphs 11,
and 12 of the answering affidavit, the first respondent averred:
“11. Pursuant to the decision, as minuted in annexure “ A” hereto, the First Respondent
promulgated in the Government Gazette of 4 March 2016 Spatial Planning and Land Use
Management By-laws and promulgated Land Use Scheme Regulations, all as contemplated by
Act 16 of 2023.
12. The application for rezoning of E rf 1[...] was dealt with in terms of the By -laws and the
Regulations referred to above, read with the Spatial Planning and Land Use Management Act,
Act 16 of 2023.”
[71] This averment is clearly not supported by the facts of this case. The first
respondent di d not attach a Government Gazette to the answering affidavit. The
purported approval of the restriction was conditional on the compliance with
Section 70(1) of the Municipal Regulations as stated in paragraph 3 of the
document titled ‘ APPLICATION FOR REZON ING, SUB -DIVISION AND
REMOV AL OF RESTRICTIONS: ERF 1[...], BIZANA ’ dated 28 June 2016
(Annexure “G”), a letter addressed to the second respondent. The effect of the
notification of the approval in the Government Gazette, which was the final step in
the process, was that the owner of the land was permitted to exercise the ordinary
right of an owner to develop the land, provided that the development was in
accordance with the approval and did not conflict with other restrictions.26
[72] In the absence of the not ice in the Government Gazette, the second
respondent was unlawfully allowed to develop Erf 1[...] because the said Erf is
restricted only to developments falling into Institutional Zone developments.
[73] During the hearing of the appeal, the appellant did no t insist on prayers (c)
and (d) of the notice of motion regarding compensation of the second respondent
by the first respondent and the demolition of the building.
Declarator
[74] The respondents contended that because the decision of the first respondent
was not reviewed, the actions of the second respondent were lawful. In Oudekraal
supra 27 the Court held:
26 Oudekraal Estates (Pty) Ltd v The City of Cape Town [2004] 3 All SA 1 (SCA) at para 39-page 14g-i.
27 At para [31].
“[31] Thus the proper inquiry in each case at least at first is not whether the initial act was valid
but rather whether its substantive validity was a necessary precondition for the validity of
consequent acts. If the validity of consequent acts is dependent on no more than the virtual
existence of the initial act, then the consequent act will have a legal effect for so long as the
initial act is not set aside by a competent court.”
[75] The building of the church by the second respondent was dependent on no
more than the factual existence of the initial act, the alleged conditional consent by
the first respondent. The second respondent was required by law to have applied
independently in the prescribed manner to the Deeds Registrar to remove the
restrictions, which it did not do in contravention of Section 47(5) of SPLUMA.
[76] Section 21(1) (c) of the Superior Courts Act 28 sets out the requirements o f a
declarator as follows:
“21 Persons over whom and matters in relation to which Divisions have jurisdiction.
(1) A Division has jurisdiction over all persons residing or being in, and in relation to all
causes arising and all offenses triable within, its area of jurisdiction and all other matters
of which it may according to law take cognizance, and has the power-
(a)…
(c) in its discretion, and at the instance of any interested person, to enquire into and
determine any existing, future or contingent right or obligation, notwithstanding that such
person cannot claim any relief consequential upon the determination.”
28 Act 10 of 2013.
[77] The exercise of the court’s jurisdiction in terms of section 21(1) (c) follows a
two legged enquiry – (i) the court must first be satisfied that the applicant is a
person in an existing, future or contingent right or obligation; and if so, (ii) the
court must decide whether the case is a proper one for the exercise of its
discretion.29
[78] In paragraph 59 of Oakbay above, the Court added:
“[59] Herbstein & Van Winsen extrapolates from decided cases factors courts have taken
into account to determine whether judicial discretion should be exercised positively or
negatively in an application for declaratory relief. These include (i) the existenc e or
absence of a dispute; (ii) the utility of the declaratory relief and whether, if granted, it will
settle the question in issue between the parties; (iii) whether a tangible and justifiable
advantage in relation to the applicant’s position appears to f low from the grant of the
order sought; (iv) considerations of public policy, justice and convenience; (v) the
practical significance of the order; and (vi) the availability of other remedies.”
[79] In Bengwenyama Minerals (Pty) Ltd and Others v Genorah Re sources (Pty)
Ltd and Others30 the Constitutional Court remarked:
“But then the law often is a pragmatic blend of logic and experience. The apparent rigour of
declaring conduct in conflict with the Constitution and PAJA unlawful is ameliorated in both the
29 See Minister of Finance v Oakbay Investments (Pty) Ltd and Others 2018 (3) SA 515 GP where the applicant
sought declaratory relief that he was not by law empowered or obliged to intervene in the relationship between the
respondent and various banking institutions. The court found that such an order was unnecessary on the facts before
it. However, it restated the applicable law on declaratory orders and the requirements thereof.
30 2011 (4) SA 113 CC at para [85].
Constitution and PAJA by providing for a just and equitable remedy in its wake. I do not think
that it is wise to attempt to lay down inflexible rules in determining a just and equitable remedy
following upon a declaration of unlawful administrative action . The rule of law must never be
relinquished, but the circumstances of each case must be examined in order to determine whether
factual certainty requires some amelioration of legality and, if so, to what extent. The approach
taken will depend on the kind of challenge presented - direct or collateral; the interests involved
and the extent of materiality of the breach of the constitutional right to just administrative action
in each particular case.” Emphasis added
[80] In my view, the declarator prayed f or in the notice of motion should have
been granted by the trial court.
[81] In the circumstances, I issue the following order.
ORDER
1. The appeal is upheld.
2. The decision of the trial Court is accordingly set aside and substituted
with the following order:
2.1 A declarator is issued declaring that the actions of the first
respondent in rezoning ERF 1[...] were unlawful and is in
contravention of the Spatial Planning and Land Use Management
Act No. 16 of 2013.
2.2 The first and/or second respondents are interdicted from utilizing
the property known as ERF 1[...] Bizana, for any other purpose other
than that envisaged in the restrictive condition of the title deed of the
property which provides that, “it shall be used only for the purpose of
erecting thereon one dwelling together with such outbuilding as are
ordinarily required to be used therewith”
2.3 The first and second respondents are directed to pay the costs of
the application jointly and severally the one paying the other to be
absolved.
______________
BM PAKATI
JUDGE OF THE HIGH COURT, EASTERN CAPE DIVISION, GQEBERHA
I agree
_______________
F DAWOOD
JUDGE OF THE HIGH COURT, EASTERN CAPE DIVISION, MTHATHA
I agree
_______________
NR MTSHABE
ACTING JUDGE OF THE HIGH COURT, EASTERN CAPE DIVISION
APPEARANCES:
APPELLANTS COUNSEL : ADV SX MAPOMA SC
INSTRUCTED BY : NKELE ATTORNEYS
RESPONDENTS COUNSEL : ADV V KUNJU SC WITH
ADV GQETYWA
INSTRUCTED BY : KONYANA ATTORNEYS
HEARD ON: 03 FEBRUARY 2025
DELIVERED ON: 12 JUNE 2025