SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
JUDGMENT
Not Reportable
Case no: 5138/2023
In the matter between:
NAD PROPERTY INCOME FUND (PTY) LTD FIRST APPLICANT
ERF [...] H[...] T[...]
INVESTMENTS PTY LTD SECOND APPLICANT
and
SASUL INVESTMENTS PTY LTD FIRST RESPONDENT
THE BUSHBUCKRIDGE LOCAL
MUNICIPALITY SECOND RESPONDENT
THE NATIONAL MINISTER OF AGRICULTURE, LAND
REFORM AND RURAL DEVELOPMENT THIRD RESPONDENT
THE SETHLARE TRADITIONAL COUNCIL FOURTH RESPONDENT
Neutral citation: NAD Property Income Fund (Pty) Ltd and Another v SASUL Investments (Pty) Ltd and Others (Case no 5138/23) [2025] ZAMPMBHC (12 December 2025)
Coram: MANGENA AJ
Heard: 04 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for hand-down of the judgment
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is deemed to be 14h30 on 12 December 2025.
Summary: Administrative law – review and setting aside –Promotion of
Administrative Justice Act 3 of 2000 — Spatial Planning Land Use Management Act
16 of 2013.
ORDER
1. The decision of the Second Respondent on 07 June 2022 to approve the
consent use application of the First Respondent and to issue a development
permit to the First Respondent is reviewed and set aside.
2. The decision of the Second Respondent on 05 June 2023, to approve the site
development plan of the First Respondent is reviewed and set aside.
3. The Second Respondent is ordered to pay the costs on a party and party scale
B of the High Court tariffs.
JUDGMENT
Mangena AJ
Introduction
[1] Writing on the aftermath of the 1913 Natives Land Act, Sol Plaatjie said,
“Awaking on Friday morning, June 20, 1913, the South African native found
himself not actually a slave, but a pariah in the land of his birth." 1
112 years later, Black people are still faced with the consequences of land
dispossession and its sister twin of apartheid spatial planning , which excluded them
from meaningful participation in the economy and only as providers of labour and
consumers of goods. By no design of their own, they are economic pariahs in the
land of their birth. Will they ever get a fair chance to develop their land and
participate as equals in the economy of their country? Not unless those elected to
govern us comply with the laws passed to develop rural land for the establishment of
factories and creation of employment opportunities for the communities , which by
apartheid design, occupy the periphery of the economy.
[2] This case is about the development of a portion of land known as Greenvalley
Trust under the chieftaincy of Sethlare Traditional Council , the Fourth Respondent. It
1 Plaatje Native life in South Africa: Before and since the European War and the Boer Rebellion , 1 ed (PS King
& Son Limited , London, 1917) at 17, available at:
https://archive.org/details/in.ernet.dli.2015.236312/page/16/mode/2up.
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falls under Bushbuckridge Local Municipality, the Second Respondent, which is an
organ of state with a constitutional mandate to co -ordinate land use, planning and
development within its boundaries.
[3] The municipality granted a development permit for a filling station and
ancillary retail shops to Sasul Investment (Pty) Ltd, the First Respondent. It also
approved a site development plan for the establishment of a multi -purpose centre
covering approximately 7500 square metres , which will include a convenience shop,
restaurants, a tyre fitment workshop, a butchery, a supermarket as well as offices.
[4] In supporting the development, the municipality believed that it was pursuing
its local economic goals and that this would assist in alleviating historical socio-
economic imbalances through job creation and poverty eradication. These are
indeed noble goals to pursue if rural land were to be exploited to arrest migration and
create jobs closer to the people.
[5] However, the applicants see it differently and argue that every development
must comply with the law. They seek an order from this court to review and set aside
the decisions of the municipality on the basis that they are unlawful, irregular and
constitute unfair administrative action as contemplated in the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). Only the municipality opposes the
application.
Parties
[6] The first applicant is NAD Property Income Fund (Pty) Ltd is a registered
company with interests in property development and petroleum. It is the owner of the
Acornhoek Mall established on a property known as Erf 9[...] Greenvalley Extension I
Township. The first applicant hold s a site licence issued by the Controller of
Petroleum Products2 (Controller) in respect of this ERF.
2 Section 3(1) of the Petroleum Products Act 120 of 1977.
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[7] The second applicant is Erf [...] H[...] T[...] Investments (Pty) Ltd, a company
duly registered and carrying on business as a retailer of petroleum products under
Puma Filling Station. It holds a retail licence issued to it by the Controller and carries
on its retailing activities on a site owned by the first applicant, to wit , Erf 9[...]
Greenvalley Extension I.
[8] The First Respondent is Sasul Investments (Pty) Ltd, a company duly
incorporated, and the holder of the development permit granted by the municipality in
respect of the land under the custodianship of the Sethlare Traditional Council. As
alluded to earlier, the First Respondent was also issued with an approved Site
Development Plan in respect of the affected land to establish a multi -purpose centre.
The company is not participating in these proceedings, despite being invited to do
so.
[9] The Second Respondent is Bushbuckridge Local Municipality, an organ of
state duly established in terms of the laws of the Republic and is responsible for local
government affairs within its area of demarcation. The affected land area, the
Greenvalley Trust under the Sethlare Traditional Council , falls within its area of
jurisdiction. It is the municipality which granted the development permit and the
approval of the Site Development Plan, whose decisions are the subject of this
review.
[10] The Third Respondent is the Minister of Agriculture, Land Reform and Rural
Development, cited in these proceedings; however, no relief is sought against him.
He is not participating. The Fourth Respondent is the Sethlare Traditional Council
under Kgoshi Chiloane. Greenvalley Trust falls under its authority. No relief is sought
against her.
Background
[11] In 2023, the First Respondent appointed a consulting company to conduct a
Basic Assessment Process for the construction of a filling station on the farm
Greenvalley 213 KU, Acornhoek.
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[12] The consulting company published a notice inviting stakeholders to register as
interested and affected parties but also to give their comments on the proposed
development of the filling station. It is this advert that caught the attention of the
Applicants, as they are also role players in the petroleum industry by virtue of the site
and retail licences issued to them by the Controller. They registered as interested
and affected persons as per the invitation.
[13] In the intervening period, the Applicants , through their attorneys , sought to
obtain information from the municipality regarding the procedure used by the First
Respondent to obtain approval for both the development permit and site
development plan. When the information was not forthcoming, the Applicants utilised
the Promotion of Access to Information Act (PAIA)3 to exact a response from the
municipality.
[14] The documents received subsequent to the PAIA request revealed the
following:
(a) The consent use application consisted of two pages, and the motivation for
the development co mprises 2 (two) lines as follows: ‘We want to develop
business that will create jobs for the local community’.
(b) The existing land use was “Agriculture”.
(c) The application was not accompanied by a power of attorney from the
owner.
(d) The application for consent use was dated and submitted to the
municipality on 07 June 2022, the same day upon which the development
was issued.
(e) The site development plan was approved without being circulated to other
departments in the municipality and was issued on the same day, 05 June
2023, that an application was submitted.
3 Promotion of Access to Information Act 2 of 2000.
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(f) Both the consent use application and site development application were
granted and approved by one official , namely, Mr Hlabane, the
municipality’s town planning official.
[15] The Applicants contend that the above information shows that the procedure
followed was flawed in that it did not allow for both internal and external comments
from interested and affected persons. They argue that they were denied an
opportunity to comment on the proposed development and participate in the process
leading to its approval. Lastly, they argue that the municipality ignored its own
byelaw and the governing legislation, namely, the Spatial Planning Land Use
Management Act 16 of 2013 (SPLUMA).
[16] They further argue that as entities involved in the petroleum industry, the
establishment of an additional filling station within their proximity will negatively
impact their business.
[17] For the above reasons, they ask this court to grant the prayers as contained in
the notice of motion and referred to in paragraph 5 above.
[18] The municipality opposes the application and the relief sought and contends
in the main that the decisions taken are legally tenable and comply with the standard
expected of a reasonable decision maker.
[19] Upfront, the municipality disputes the factual averments made by the
Applicants relating to their interests in the matter. It is submitted on its behalf that the
subject property is not located in close proximity to Puma filling station, operated and
managed by the Second Applicant. By extension of logic, so it is submitted, the
establishment of an additional filling station on the subject property will not negatively
affect the business efficacy of Puma filling station.
[20] With regard to the use of the applicable law, the municipality says that it
approved the development based on the provisions of the Local Government
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Municipal Systems Act4 and its Regulations which were in existence prior to the July
2022 enactments 5, namely the Land Use Scheme of 2017. Mr Hlabane as an
authorised official of the municipality , had the requisite powers and authority to deal
with the kinds of applications we are concerned with here. The application, according
to the municipality, complied with all the requirements and Mr Hlabane was correct to
approve them. It is not a requirement to give notice to interested parties before
granting an approval.
[21] It is now trite that municipal planning is the exclusive terrain of municipalities
in terms of section 156 of the Constitution .6 This power includes granting of land use
rights similar to the one we are dealing with in this case. In exercising its planning
powers, the municipality is required to comply with the law.
[22] SPLUMA was enacted to regulate land development in a consistent,
transparent and efficient manner by municipalities. Municipalities are required to
pass Bye-laws applicable to their demarcated areas , and same must be aligned to
the spirit and ethos espoused in SPLUMA.
[23] Bushbuckridge Local Municipality adopted the Land Use Management Byelaw
2014 and same was promulgated on 30 May 2014. It states that its purpose is to
regulate the use and development of land within the municipality as well as to give
effect to, and be consistent with , the National Spatial Development Framework 7 in
order to promote amongst others economic growth, social inclusion, harmonious and
land use patterns and efficient land development.
[24] Clauses 29, 30, 31 and 32 of the Byelaw deal with types of land use
applications, the parties involved , as well as the procedure the municipality should
follow upon receipt of an application.
4 Local Government Municipal Systems Act 32 of 2000.
5 Bushbuckridge Spatial Planning and Land Use Management By-Law 2022, Provincial Gazette No 3397, Local
Authority Notice 190, 1 July 2022.
Authority Notice 190, 1 July 2022.
6 Constitution of the Republic of South Africa Act 108 of 1996.
7 National Spatial Development Framework G azette No 47999, Notice No 1594, 1 February 2023, e nacted in
terms of section 13(5) of SPLUMA,
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[25] Clause 33 is headed public notice and participation, and I propose to quote it
in full as it forms the core of the dispute between the parties. It says:
“33 Public Notice and Participation —
(1) After a land development application has been registered in terms of
section 32(1)(b) the municipality, or applicant with consent from the
municipality, must give notice of the application within 14 days, subject
to the requirements in section 7, in the following manner: -
(a) Publication of notice, in the format as set out in Schedule 8,
in two local newspapers and the Provincial Gazette once a
week for two consecutive weeks;
(b) By posting a copy of the notice, in the format as set out in
Schedule 8, the size of which must be at least 60 cm by
42cm, on every street boundary of the land which is the
subject of the application, in a conspicuous and easily
accessible place, no later than the date of first publication of
the notice in the Provincial Gazette , which notice must
remain visible and be maintained on the property for a period
of 14 days;
(c) By written notice, in the format as set in schedule 8, to all
adjoining owners and interested and affected parties;
(d) By circulating a copy of the application to all persons, bodies
and state departments as referred to in section 32 (1)(e);
(e) By circulating a copy of the application to every municipality
whose area of jurisdiction is situated within a distance of
10km from the land in respect of which application has been
made; and
(f) The municipality may, in its discretion, prescribe any other
reasonable means of notification that is appropriate for the
local context and which is necessary to ensure that all
persons whose rights may be affected by the application are
adequately informed of it.
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(2) The applicant must submit the following evidence of compliance with the
requirements for public notification, only if the applicant placed the
notices as contemplated in section 33 (1), by providing the municipality
with the following documentation within 21 days from the date on which
the notice was first published:-
(a) A copy of the record of the registered post or delivery of the
notice to all persons and bodies as set out in subsections
1(c) and (d);
(b) Copies of the newspaper advertisements and Provincial
Gazette notice as set out in subsection 1 (a);
(c) Photographs of the notice on site as set out in subsection 1
(b); and
(d) An affidavit that the notice, as set out in subsection 1 (b) was
posted on site and maintained for 14 days after such
posting.”
[26] Clause 34 deals with objections and requires any person with an objection to
lodge same in writing in a prescribed manner within 28 days from the first date of
publication of the notice to the municipality and to the Applicant at the address
provided for that purpose in the public notice.
[27] It will be recalled that the municipality has argued that it relied on the 2017
Land Use Scheme to grant both the development permit and the approval of the site
development plan. It also contended that it is not a requirement for neither the
Applicant nor the municipality to give notice to interested and affected parties before
granting the approvals.
[28] The provisions of clauses 33 and 34 displace the municipality’s argument and
smashes it to smithereens. The Byelaw imposes a duty on the municipality to notify
all adjoining owners and interested and affected parties. In addition to the prescribed
manner, the municipality may in its discretion, formulate any other reasonable means
of notification appropriate for the local context in order to ensure that all persons
whose rights may be affected by the application are adequately informed.
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[29] The Applicants are engaged in the retail of petroleum products as holders of a
site and retail licenses , respectively. Puma filling station is located less than a
kilometre from the proposed development. There is accordingly no gainsaying the
fact that they are , in business terms, in close proximity to the land which is the
subject of this application. They are , by virtue of their carrying on business in the
retail of petroleum products , interested and affected parties. The municipality and/or
the First Respondent owed them a duty to notify them about the land development
application before taking a decision.
[30] The Applicants argued that the establishment of a new filling station will result
in the reduction of their sales and that they are accordingly directly affected. They
have a commercial interest which deserves protection. They have, in my view,
sufficiently demonstrated how the proposed development is likely to affect them.
[31] In Gensinger and Neave CC & Others v Minister of Mineral Resources and
Energy & Others8, the court said the following in relation to the issue of direct interest
involving petroleum products:
“The court in Pine Glow found that the fact that the Applicant was a site license
holder, on its own, gave it a direct interest in the matter….The court found that,
in the event of a decline in the number or volume of petroleum products sold by
that Respondent, the knock -on effect on the Applicant, as a holder of a
wholesale license, would be inexorable. It was found that the Applicant’s
interests were not only direct, but also real and not hypothetical. The court
considered the Applicant’s evidence to the effect that if the Respondents were
to be allowed to open an outlet, the Applicant stood to lose on revenue…. the
anticipated decline in volumes and resultant loss of revenue was material ‘and
that it will affect the Applicant negatively in so far as it will diminish its financial
margins.’”
margins.’”
8 Gensinger and Neave CC & Others v Minister of Mineral Resources and Energy & Others 2025(4) SA
84(SCA) at para 23.
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[32] I align myself with the finding of the S upreme Court of Appeal in this regard ,
more especially because it was an affirmation of a decision of this Court per Mashile
J.
[33] The Municipality as an organ of state cannot ignore its own Byelaw. A land
use scheme adopted by the council constitutes binding legislation and the
municipality was duty-bound to comply with it in execution of its functions. It was
required to give the Applicants a notice of this land development as required by
clause 33 of the Byelaw.
[34] The Municipality is undoubtedly a key player in the development of local
communities and is required by law to take appropriate steps to ensure that there is
both the racial and economic integration of the communities within its area. Rural
land is an important resource in the fight against poverty and unemployment. Like all
the land in our country , it has an economic value which can be exploited to take
Black people out of the economic periphery, and this can only happen if appointed
officials follow the letter and spirit of the law. This unfortunately did not happen in this
case.
[35] Given the fact that the municipality did not follow its own legislated procedures
and failed to notify the Applicants as persons who are interested and affected by the
proposed land development, the decisions taken are indisputably unlawful and
constitute an affront to the rule of law. They cannot be allowed to stand.
[36] In the result, the following order is made:
1. The decision of the Second Respondent on 07 June 2022 to approve the
consent use application of the First Respondent and to issue a development
permit to the First Respondent is reviewed and set aside.
2. The decision of the Second Respondent on 05 June 2023, to approve the site
development plan of the First Respondent, is reviewed and set aside.
3. The Second Respondent is ordered to pay the costs on a party and party
scale B of the High Court tariffs.
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M MANGENA
ACTING JUDGE OF THE HIGH
COURT
Appearances:
For the Applicant Adv JA Venter
Instructed by:
Ivan Pauw&Partners Attorneys
For the Respondent: Adv G Shakoane SC (with Adv MH
Mbatha)
Instructed by:
Mpho Mashiloane Attorneys