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
NORTH WEST DIVISION, MAHIKENG
Not Reportable
CASE NO: M717/2023
In the matter between:
N12 EAST FILLING STATION (PTY) LTD Applicant
and
CITY OF MATLOSANA First Respondent
MUNICIPAL MANAGER:
CITY OF MATLOSANA Second Respondent
LESEDI LA KA TRADING AND PROJECTS CC Third Respondent
CONTROLLER OF PETROLEUM PRODUCTS Fourth Respondent
MINISTER OF ENERGY Fifth Respondent
Coram: Petersen ADJP
Date enrolled: 13 February 2026
Judgment reserved: 13 February 2026
Delivered: This judgment was handed down electronically , circulated to the
parties’ representatives via email , uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be 15h00 on 27 February 2026.
Summary: Judicial Review — Administrative Law — Land Use and Zoning —
Promotion of Administrative Justice Act 3 of 2000 (PAJA) and principle of
legality — application to set aside unilateral alteration of zoning from
‘Industrial 2 ’ to ‘Special’ — First Respondent raised points of law regarding
non-exhaustion of internal remedies under Section 7(2) of PAJA and
prematurity of review — internal appeal mechanism in Town -planning and
Townships Ordinance 15 of 1986 previously declare d unconstitutional by
Constitutional Court in Pieterse NO v Lephalale Local Municipality — no
obligation to exhaust non -existent or unconstitutional remedies — review not
premature despite pending petroleum license appeals as land -use and petroleum
regulation constitute separate functional domains — Municipality acted ultra
vires by bypassing formal rezoning, public participation, and gazetting
processes — administrative “reversion” of zoning rights is legally untenable
under SPLUMA — zoning designation in 2023 Consolidated Scheme declared
invalid to extent of the property — punitive costs on scale C awarded against
First Respondent for serious dereliction of statutory duties and procedurally
unfair conduct.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP
Introduction
[1] This is an opposed review application brought under the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’). The applicant seeks to set aside a
decision or a series of administrative acts by the first respondent ( ‘the
Municipality’) which purported to alter the zoning of Erf 3[...], Stilfontein
Extension 7 ( ‘the Property ’) from ‘Industrial 2 ’ back to ‘Special’ without
following the prescribed statutory procedures.
[2] The applicant further seeks declaratory relief regarding the City of
Matlosana Land Use Scheme, 2023 ( ‘the 2023 Scheme’), to declare the zoning
designation of the Property therein invalid to the extent that it reflects the
unlawful ‘Special’ zoning.
[3] The first and second respondents opposed the application by way of a
notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court, raising two
points in law that the applicant failed to exhaust an internal remedy in terms of
the Klerksdorp Land Use Manage ment Scheme 2005 (KLUMS) as required by
section 7(2) of PAJA ; and prematurity of the review based on an intended
appeal by the applicant against a decision of the Controller of Petroleum
Products. No answering affidavit was filed regarding the merits.
[4] The third, fourth, and fifth respondents have not actively participated in
these proceedings until the third respondent , at the eleventh hour, sought to
enter the arena on 12 February 2026 . The third applicant sought to adduce , for
the consideration of thi s Court, what it termed an ‘Explanatory Affidavit’ to
assist the Court in determining a “just and equitable” remedy. I handed down an
ex tempore judgment on 13 February 2026, refusing to admit the said affidavit. I
do not propose to traverse the reasons for that order in this judgment.
Factual Background
[5] Before turning to the Rule 6(5)(d)(iii) notice of the first respondent, it is
apposite to sketch a background of the history of th e matter. The relevant facts,
which stand uncontested due to the lack of an answering affidavit from the
Municipality, may be succinctly summarised as follows. The Property was
originally established in 1991 with a ‘Special’ zoning that permitted, inter alia, a
public garage. This right was carried forward into the Klerksdorp Land Use
Management Scheme, 2005 ( ‘the 2005 Scheme ’). However, in 2009, the
Municipality approved Amendment Scheme 516. This amendment rezoned the
Property from ‘Special’ to ‘Industrial 2’. This rezoning was duly promulgated in
the Provincial Gazette on 29 September 2009. Under the 2005 Scheme, an
‘Industrial 2’ zoning does not automatically permit a public garage , as such use
requires a special consent application. It is commo n cause that no such consent
was ever granted.
[6] In January 2023, the third respondent applied to the fourth respondent for
a site and retail license to operate a filling station on the Property. In support of
this application, a zoning certificate issued b y the Municipality on 16 January
2020 was submitted, erroneously reflecting the zoning as ‘Special’. Upon
investigation, the applicant discovered that the Municipality had unilaterally
treated the zoning as having ‘reverted’ to ‘Special’. This ‘reversion’ occurred
without a rezoning application, public participation, a Municipal Planning
Tribunal hearing, or gazette publication. The Municipality subsequently adopted
the 2023 Scheme, which enshrined this incorrect ‘Special’ zoning based on the
preceding unlawful administrative actions.
The Rule 6(5)(d)(iii) notice of the first respondent : exhaustion of internal
remedies and prematurity of the review
[7] The first respondent has raised two primary legal points in terms of
Uniform Rule 6(5)(d)(iii) against the application to review and set aside the
decision to rezone Erf 3[...], Stilfontein Ext 7, from ‘Industrial 2’ to ‘Special’.
The first point: non-exhaustion of internal remedies
[8] The first respondent contends that the application must be considered
within the purview of s 7(2) of PAJA’s peremptory provisions . On this
contention, the applicant was required to first lodge an appeal to an internal
planning authority. Essentially, the first respondent takes the point that t he
decision was taken under the Klerksdorp Land Use Management Scheme 2005
(KLUMS). Resultantly, Clause 47.1.9 of the KLUMS, read with the Town
Planning and Township Ordinance 15 of 1986. In terms of KLUMS and the old
Ordinance, the first respondent maintains a clear internal appeal mechanism is
provided for objectors.
[9] The first respondent, therefore, submits that since the applicant’s
objection was dismissed on 09 November 2023, it failed to utili se the internal
appeal process before approaching th e High Court. The applicant so the
argument goes has therefore allegedly failed to advance ‘exceptional
circumstances’ to justify an exemption under s 7(2)(c) of PAJA.
The second point: prematurity of review
[10] The first respondent, in its second point of law , takes the point that the
review is premature . On this score , it argues that t he fourth respondent, the
Controller of Petroleum Products , granted certain licenses to the third
respondent, which the applicant has indicated it intends to appeal internally. By
proceeding with the High Court review while an internal appeal is pending o n
the same subject matter, it argues creates a risk of conflicting outcomes between
the administrative and judicial arms.
The determination of the issues in the Rule 6(5)(d)(iii) notice
[11] The first respondent’s notice calls upon this Court to determine; whether
the KLUMS and the 1986 Ordinance provide an internal remedy that must be
exhausted before judicial review in terms of PAJA ; whether the applicant has
made out a case for ‘exceptional circumstances’ to be exempted from the duty to
exhaust such remedies ; and w hether the existence of a pending internal appeal
against the fourth respondent’s license decision renders the current review
application premature and an abuse of process.
[12] The determination of these points will require a strict application of
established precedents regarding the hierarchy of administrative remedies,
specifically, s 7(2) of PAJA , which bars judicial review until internal remedies
are exhausted, as reinforced by the Constitutional Court in Koyabe and Others v
Minister for Home Affairs and Others 1; and t he interpretation of the Town
Planning and Township Ordinance 15 of 1986 and its application within the
North West Division.
The submissions on the points of law
[13] As evinced from the case for the first and second respondents, they argue
that the application is premature. They contend that s 7(2) of PAJA precludes
this Court from hearing the review because the applicant failed to exhaust
available internal remedies. They s pecifically rely on Clause 47.1.9 of the
Klerksdorp Land Use Management Scheme, which suspends the effect of a
decision for 28 days to allow for objections or appeals. They argue that the
applicant should have utili sed the appeal mechanisms provided for in the Town
Planning and Townships Ordinance 15 of 1986 and the relevant municipal by -
laws before approaching the Court.
[14] The applicant’s submissions on the two points of law may be succinctly
summarised as follows. On the first point of law, the applicant rebuts the
Municipality’s contention that the applicant’s challenge to a zoning decision is
barred by s 7(2) of PAJA because the applicant failed to pursue an internal
appeal under the Town-Planning and Townships Ordinance 15 of 1986, on three
grounds. The applicant maintains that the Municipality ’s claim that it dismissed
the applicant's formal objection is factually incorrect. The applicant asserts that
there was no formal land -use process or hearing. The impugned act was a
‘unilateral administrative fiat ’ communicated via letter from the Municipal
1 Koyabe and Others v Minister for Home Affairs and Others (CCT 53/08) [2009] ZACC 23; 2009
(12) BCLR 1192 (CC) ; 2010 (4) SA 327 (CC) (25 August 2009).
Manager, who, in any event, was not authorised to take such a decision, rather
than a structured decision fo llowing a lawful process. The applicant further
argues that an internal appeal presupposes a decision made under an
empowering provision. Since the official acted without authority, the act is an
administrative nullity for which no internal appeal is contemplated.
[15] The applicant submits that the provincial appeal mechanism in the
Ordinance was declared unconstitutional by the Constitutional Court in Pieterse
NO v Lephalale Local Municipality2.
[16] On the second point of law, the applicant submits that the objection by
the Municipality that a review is premature because a separate appeal is pending
under the Petroleum Products Act (PPA) regarding retail licenses is
‘misconceived’. The applicant asser ts that the review application seeks to
review a municipal zoning decision, not the Controller of Petroleum Products ’
licensing decision. Relying on Maccsand (Pty) Ltd v City of Cape Town and
Others3The applicant argues that municipal land -use controls and national
petroleum licensing are separate functional domains. Compliance with one does
not ‘trump’ or stay the necessity of complying with the other.
[17] The applicant points out that if it were forced to wait for the conclusion of
collateral PPA processes, it would risk falling foul of the 180-day time limit for
bringing a review under PAJA. The applicant concludes that the points of law
are unsupported by the record and inconsistent with administrative law
principles and prays for an order for the dismissal of the first respondent’s
2 Pieterse NO v Lephalale Local Municipality (CCT184/16) [2016] ZACC 40; 2017 (2) BCLR 233
(CC) (10 November 2016).
3 Maccsand (Pty) Ltd v City of Cape Town and Others (CCT103/11) (CC) [2012] ZACC 7; 2012 (4)
SA 181 (CC); 2012 (7) BCLR 690 (CC) (12 April 2012).
points of law with costs , and an order directing that the application be
determined on the uncontested facts of the application before Court.
Evaluation of the points of law raised by the first respondent
The first point of law
[18] The first respondent’s reliance on s 7(2) of PAJA and the appeal
provisions of the Town Planning and Township Ordinance 15 of 1986 is
misplaced in the specific context of this review. The first respondent’s argument
presupposes that a formal ‘decision’ was taken capable of being appealed. The
uncontested evidence is that the Municipality ignored the 2009 Amendment
Scheme and treated the property as ‘Special’ by administrative fiat. There was
no formal application process, no notification to interested parties, and no
resolution that could be the subject of a statutory appeal. One cannot appeal
against a decision that, in law, does not exist or was taken outside of any
cognizable statutory framework. While the Klerksdorp Land Use Management
Scheme 2005 (KLUMS) provides for internal appeals, suc h remedies must be
‘available’ and ‘effective’ to trigger the bar in s 7(2).
[19] The applicant correctly contends that the ‘internal remedy’ cited by the
first respondent, being an appeal to the provincial appellate body , has been
rendered dysfunctional or legally non -compliant following the enactment of
SPLUMA. Under SPLUMA, internal appeals are handled differently, where
municipalities are the authorities of first instance, and the appellate authority
must be an internal municipal body, not a provincial one, as contemplated by the
old 1986 Ordinance. Section 51(1) of SPLUMA provides that anyone whose
rights are affected by a municipal planning decision may appeal in writing to the
municipal manager (or designated official) within twenty-one (21) days. This is
a statutory remedy under SPLUMA, not PAJA. In the present application, there
is no evidence that any such internal appeal was instituted by the applicant, and
very importantly, neither is it contended by the respondent s that the applicant
pursued such a course.
[20] There is a more fundamental and unavoidable reality the first respondent
cannot skirt. Since the by -law appeals under the Ordinance are invalid, there
was no available internal remedy for the applicant to pursu e before turning to
the Court. T he provincial appeal mechanism in the Ordinance was declared
unconstitutional by the Constitutional Court in Pieterse NO v Lephalale Local
Municipality, where it found that s 139 of the Town -planning and Townships
Ordinance 15 of 1986 , in terms of the separation of powers between Provincial
Government and Local Government, was constitutionally invalid . The
Constitutional Court found that, in terms of s 155 of the Constitution, exclusive
local government competences cannot be interfered with by the provincial
government, and that all planning f ell within the exclusive competence of
municipalities. The Constitutional Court stated as follows:
‘[8] Municipal land use planning schemes are executive and administrative in nature.
They are exclusively for the municipality to determine. Beyond their constitutionally
allocated powers of oversight and assistance, neither national nor provincial
government may, by legislation or otherwise, interfere with a municipality’s execu tive
powers to administer municipal affairs.
…
[13] Local authorities have a constitutionally entrenched power to manage municipal
planning. “This power is autonomous and under no circumstances can it be intruded
upon.” The functional areas conferred on provinces, whether concurrently or
exclusively, cannot be construed to include components of municipal planning. That
would run counter to the scheme of the Constitution, particularly its provisions
would run counter to the scheme of the Constitution, particularly its provisions
safeguarding municipalities' autonomy and insulating them from interference by the
other spheres. So any mechanism that subjects municipalities’ planning decisions to a
provincial appeal process intrudes into constitutionally prohibited terrain.’
[21] In Tronox KZN Sands (Pty) Ltd v KwaZulu -Natal Planning and
Development Appeal Tribunal and Others 4, the Constitutional Court confirmed
that provincial tribunals usurping municipal planning powers are
unconstitutional.
[22] It follows axiomatically that s 7(2) of PAJA, which bars review where
internal remedies exist and were not exhausted, does not apply here. Therefore,
the ‘remedy’ suggested by the first respondent is a legal nullity. There is no
obligation to exhaust a remedy that is unconstitutional or non-existent in law.
[23] The applicant’s ‘failure’ to lodge a non -existent appeal cannot invalidate
this review. The first respondent’s preliminary point of law is consequently
dismissed. The application is properly before the Court.
The second point of law
[24] The first respondent further argues that the review is premature because
an appeal under the petroleum licencing regime is pending (presumably before
the Controller or his appeal board). The reasoning of the first respondent
appears to be that the outcome of the licencing appeal might negate the need for
this court to intervene.
[25] This argument fails to distinguish between separate statutory regimes.
The impugned decision here is a land-use planning decision (rezoning) taken by
4 Tronox KZN Sands (Pty) Ltd v KwaZulu -Natal Planning and Development Appeal Tribunal and
Others (CCT114/15) [2016] ZACC 2; 2016 (4) BCLR 469 (CC); 201 6 (3) SA 160 (CC) (29 January
2016).
the Municipality. The licensing process under the Petroleum Products Act is a
distinct administrative process governed by the national Department of Energy.
[26] The validity of a zoning scheme is a prerequisite for the lawful exercise
of land -use rights, regardless of whether a commercial license is gran ted. A
delay in the petroleum appeal does not deprive the applicant of the right to
challenge the underlying land-use legality. There is no ‘divergence of decisions’
because the two authorities determine different legal questions . One concerns
town plannin g, and the other concerns petroleum industry regulation. The
zoning of property and scheme validity precedes the issue of a petroleum
licence. By law, no filling station may operate without correct land -use zoning.
Section 29(1) of SPLUMA specifically requ ires a Municipality to coordinate
with other approving authorities for any development , thereby providing a clear
distinction between planning approval and sector -specific licences, such as
petroleum licences, which are separate steps.
[27] In practical terms , the zoning of Erf 3[...] in the municipal scheme is a
prerequisite to lawful licencing. The fact that the Controller of Petroleum
granted or is considering a licence does not negate the applicant’s right to
challenge a scheme amendment which was effected i n breach of SPLUMA and
may I hasten to add, the Constitution.
[28] If this Court were to uphold the argument of the first respondent in this
regard, thereby effectively delaying the relief sought by the applicant until after
an appeal under the petroleum argu ment, it would undermine municipal
planning authority. The point is thus, the planning outcome should stand or fall
on its own legal merits, regardless of related licencing.
[29] In the final analysis, a pending petroleum appeal does not render the
zooming review premature or academic. The first and second respondents
cannot avoid judicial review of its land -use decision simply because another
separate and distinct application is pending. Given the fact that no lawful
zoning was ever in place until this review was brought, the applicant is entitled
to have the scheme and all related actions taken by the first and second
respondents placed under the mic roscope of judicial scrutiny. The second point
of law is also dismissed.
The Merits: Legality and Ultra Vires
[30] Having dismissed the points in law, I now turn to the merits of the review.
The core issue is the lawfulness of the Municipality’s actions. Specifically,
whether the inclusion of the ‘Special’ zoning in the 2023 scheme from
‘Industrial 2’ and the cancellation of the zoning certificates was authorised.
[31] The principle of legality, a subset of the rule of law, requires that public
power be exercised only by law. In Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council 5, the CC made it plain that a
local authority may only act within the powers conferred upon it by statute. In
Law Society of South Africa v President of the RSA 6, the CC further emphasized
that ‘the exercise of public power is only legitimate when it is lawful’.
[32] Municipal Councils are creatures of statute and may only act within
powers granted by legislation. The zoning of land is a strict statutory process
regulated by SPLUMA and the Municipal Bylaws. A land use scheme has the
force of law. Section 26(1)(a) of SPLUMA provides that ‘an adopted and
5 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA
374 (CC).
6 Law Society of South Africa v President of the RSA 2019 (3) SA 30 (CC).
approved land use scheme…has the force of law, an all land owners and users of
land, including the municipality…are bound by the provisions of such a land
use scheme.’
[33] Once Amendment Scheme 516 was promulgated in 2009, the ‘Industrial
2’ zoning became the only lawful status of the Property. The Municipality’s
contention that the zoning ‘reverted’ to its 1991 status is legally untenable. No
provision in SPLUMA or the Bylaw allows for the automatic reversion of rights
upon non-use or the mere passage of time without a formal process declaring
such a lapse. The tenets of SPLUMA require that any change to a land use
scheme must follow the procedures set by that A ct. Even if ‘lapsing’ provisions
existed, they would require a formal administrative decision to confirm the
lapse, which would trigger procedural fairness requirements.
[34] The Supreme Court of Appeal in Rustenburg Local Municipality v
Mwenzi Service Station CC7 emphasized that a municipality is bound by its own
land use scheme. Section 28(1) of SPLUMA allows a municipality to amend its
scheme by rezoning, to achieve developmental goals, but s 28 (2) requires a full
public participation proce ss, inclu ding allowing for objections and appeals.
Tellingly, s 28 (4) expli citly provides that ‘any change to the land use
scheme…may only be authorised by the Municipal Council.’
[35] The Municipality’s actions clearly failed to meet the se peremptory
requirements. Its purported rezoning of Erf 3[...] to ‘Special’ on 13 February
2020, falls gravely shy of effective or proper compliance with SPLUMA. No
formal amendment ordinance was passed or published, and no public hearing
record is available. In any event, the Town Planning Scheme 2003 was replaced
7 Rustenburg Local Municipality v Mwenzi Service Station CC [2015] 1 All SA 315 (SCA).
by the new Land Use Scheme 2023, whi ch itself incorporated that rezoning
without due process.
[36] In the final analysis, the ‘Special’ zoning of Erf 3[...] was never validly
enacted. The Municipality lacked authority to insert that zone outside of the
formal scheme-amendment process. Since the s cheme provisions in force have
legal effect, any amendment outside the prescribed procedures is ultra vires and
of no legal effect. This includes the 2020 resolution, which was never published,
and the 2024 scheme amendment, which merely rubber stamped the illegitimate
rezoning.
Conclusion
[37] It should be accepted as trite that all aspects of planning and zoning must
comply with the statutory scheme. The inclusion of the ‘Special’ zoning for Erf
3[...] in the 2023 Scheme is the fruit of an unlawful process and cannot be
countenanced. While the 2023 Scheme is legislative in nature, it cannot validate
a zoning designation that was never lawfully acquired. The original zoning ,
‘Industrial 2’ therefore remains the only applicable zone. Accordingly, any
purported certificate or approval dependent on the non-existent ‘Special’ zoning
is invalid.
[38] The applicant is entitled to a declaration of invalidity to correct the public
record. The decisions of the first and/or second respondents stand to be
reviewed and set aside.
Costs
[39] The Municipality’s conduct represents a serious dereliction of its
statutory duties. It attempted to circumvent established town planning laws,
thereby prejudicing the rights of the applicant and the public. The failure to file
an answering affidavit or pr ovide a record until compelled to do so further
demonstrates a disregard for this Court ’s processes . It evinces the notion of
suppressing information to prevent the truth being revealed.
[40] In the circumstances, punitive costs are warranted to express the Co urt’s
displeasure at the first respondent’s conduct.
Order
[41] In the result, the following order is made:
1. The following decisions and actions by the first and/or second
respondent are reviewed and set aside in terms of section 6, read with
section 8(1) of the Promotion of Administrative Justice Act 3 of 2000:
1.1. The decision to rezone and consequently amend the Klerksdorp
Land Use Management Scheme, 2005, by changing the zone
categorisation for Erf 3[...], Stilfontein Ext 7, Stilfontein, North West
Province (Title Deed T[...]) from “Industrial 2” to “Special” for purposes
of a public garage, a drive-in restaurant and service enterprise.
2. The First and Second Respon dents are ordered to take the
necessary actions to amend the zoning for Erf 3[...], Stilfontein Ext 7,
Stilfontein, North-West Province (Title Deed T[...]) to “Industrial 2.”
3. The City of Matlosana Land Use Scheme, 2023 is declared invalid
and set aside to the extent that it designates the zoning of Erf 3[...],
Stilfontein Ext 7, Stilfontein, North -West Province (Title Deed T[...]) as
“Special” (for the purposes of a public garage, a drive -in restaurant and a
service enterprise) in terms of section 17 2(1) of the Constitution. The
declaration of invalidity is limited to the aforesaid portion of the 2023
Scheme applicable to Erf 3[...], and does not affect the validity of the
Scheme in respect of any other property.
4. The First and Second Respondents are or dered, in terms of section
172(1)(b) of the Constitution, to take all necessary steps to amend or
rectify the City of Matlosana Land Use Scheme, 2023 so as to reflect that
Erf 3[...], Stilfontein Ext 7, Stilfontein, North -West Province (Title Deed
T[...]) is zoned “Industrial 2” (with all associated rights and land -use
entitlements attaching to an “Industrial 2” zoning in terms of the 2023
Scheme).
5. The First and Second Respondents must furnish the Applicant and
Third Respondent, within 30 days from this Court’s order, with a zoning
certificate confirming that under the City of Matlosana Land Use
Scheme, 2023, Erf 675, Stilfontein Ext 7, Stilfontein, North -West
Province (Title Deed T[...]) is zoned “Industrial 2.”
6. The First Respondent is ordered to pay the costs of this application
on scale C of Rule 67, which costs shall include the costs of counsel.
_______________________
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances:
For the Applicant: Adv E Van As
Instructed by: Ivan Pauw and Partners
c/o Maree & Maree Attorneys
Mafikeng
For the First and Second
Respondents: Adv H J Scholtz
Instructed by: Lezanne Swanepoel Inc
c/o LFS Attorneys
Mafikeng